View cases - Stewart McKelvey

Page: 75[287] It is true mandatory retirement is often a feature of unionized workplaces, and can benegotiated through the collective bargaining process in exchange for benefits such as good pensionsand employment security. However, it must also be recognized that a significant number offederally-regulated employers (such as the entire banking industry) are not unionized.[288] Moreover, even in cases such as this one, where the mandatory retirement provision in theAir Canada/ACPA collective agreement was freely negotiated between an employer and a strong2011 FC 120 (CanLII)union, it can nevertheless be imposed on the one-quarter of ACPA members who voted against thepreservation of mandatory retirement. This was referred to by Dr. Carmichael as the “tyranny of themajority” argument.[289] Dr. Carmichael says that this “is a strange argument, given that all of our valued democraticinstitutions are based on the idea that collective decisions should be guided by the wishes of themajority”: Carmichael report, at page12.[290] While this is unquestionably true in many contexts, it is nevertheless a basic principle ofCanadian law that the fundamental human rights of individuals cannot be compromised simplybecause a majority may not believe them to be worthy of recognition.[291] If it were otherwise, there would be no obligation on an employer to accommodate anemployee whose religious beliefs precluded work on Saturdays, if the majority of the individual’sco-workers were unwilling to accept any modifications to their own work schedules so as to allow