View cases - Stewart McKelvey

Page: 78requirements. As a consequence, mandatory retirement is no longer as integral to the organizationof the Canadian labour market as it was in 1990, when McKinney was decided.[299] Air Canada and ACPA argue that the fact that mandatory retirement had been abolished inOntario should not have been considered by the Tribunal, as it occurred in 2006 - after thetermination of Messrs. Vilven and Kelly’s employment with Air Canada. According to theapplicants, the question of whether or not paragraph 15(1)(c) of the CHRA is a reasonable limit in afree and democratic society should have been assessed as of 2003 and 2005.2011 FC 120 (CanLII)[300] The ongoing constitutional validity of legislation is surely a matter best determined on thebasis of up-to-date evidence. As the Supreme Court observed in Irwin Toy Ltd., above, once thelegislative objective has been characterized, “the government surely can and should draw upon thebest evidence currently available” to prove that this original objective remains pressing andsubstantial: at para. 66. One can infer from this that this “best evidence” standard could be used inthe minimal impairment and proportionality stages of the Oakes test as well: see Matthew Taylorand Mahmud Jamal, The Charter of Rights in Litigation: Direction from the Supreme Court ofCanada, loose-leaf (Aurora: Canada Law Book, 1990) s. 6:12, p. 6-78.[301] This view is borne out when one examines the way in which social science evidence hasbeen treated by the Supreme Court in section 1 cases. For example, the professor in Dickason wasforced to retire on June 30, 1985. However, the Supreme Court considered journal articles from1986 and 1988 in its decision. Similarly, the professors in McKinney were forced to retire in 1985