View cases - Stewart McKelvey

Page: 79and 1986, but the Court considered several journal articles from 1987 to 1989 in assessing theconstitutionality of the legislation.[302] Moreover, the Supreme Court held in McKinney that the issue of minimal impairment mustbe assessed in the context of the current social and historical context: at para. 123.[303] Even if I am wrong in this regard, and the Tribunal should not have considered the after-thefactabolition of mandatory retirement in Ontario, the evidence adduced by Air Canada and ACPA2011 FC 120 (CanLII)simply did not establish that the negative consequences for employment regimes apprehended bythe Supreme Court in its mandatory retirement jurisprudence have materialized in the otherCanadian jurisdictions where mandatory retirement has long been abolished.[304] Dr. Kesselman says that experience in the years since McKinney has shown that theabolition of mandatory retirement has not had any demonstrable negative impact on beneficialworkplace arrangements such as deferred compensation and pension schemes, seniority systems andthe like. This leads him to conclude that mandatory retirement is not in fact integral to thepreservation of these labour market structures in the way that it was understood to be at the time thatMcKinney was decided.[305] Dr. Carmichael takes issue with this conclusion, arguing that “it is evident from the data”that mandatory retirement is indeed integrally connected to beneficial employment regimes. Thedata that he cites to support his view is found in a 1981 American study entitled “MandatoryRetirement Study: Final Report (Washington: Urban Institute,1981), and in a Canadian study by