View cases - Stewart McKelvey

Page: 70[267] However, Dr. Kesselman observes that market forces once perpetuated discrimination onthe basis of sex and race in hiring and compensation practices. Indeed, it was not so long ago thatmarried women in Canada were forced out of the workplace by market pressures in order to free uppositions for men. As Dr. Kesselman points out, it is no different to say that older workers should becompelled to leave the workforce to create positions for younger workers.[268] The burden is, of course, on Air Canada and ACPA to demonstrate that paragraph 15(1)(c)2011 FC 120 (CanLII)of the CHRA is a reasonable limit in a free and democratic society, and that the governmentcontinues to have a reasonable basis for believing that it impairs the Charter rights of workers overthe normal age of retirement for their type of position “minimally” or “as little as possible”. Withthis in mind, it is necessary to examine what Dr. Carmichael had to say about the economic theoryjustifying the continued perpetuation of mandatory retirement for federally-regulated employees.[269] Dr. Carmichael describes mandatory retirement as an institution that has evolved in labourmarkets where employees - often represented by strong unions - have been free to negotiate theirown employment conditions with employers. These negotiations result in arrangements that arebeneficial to both sides, particularly when viewed over the entire life-cycle of individual careers.[270] The benefits that Dr. Carmichael says flow from labour market structures that includemandatory retirement are many of the same advantages identified by the Supreme Court of Canadain McKinney. As these have already been discussed at some length earlier in these reasons, I willreview Dr. Carmichael’s evidence on this point somewhat briefly.