View cases - Stewart McKelvey

Page: 80Gunderson and Pesando entitled “The Case for Allowing Mandatory Retirement”, (1988) 14Canadian Public Policy, at pp. 32-39.[306] Although I have not been provided with the actual studies relied upon by Dr. Carmichael,the studies do not appear to have been based upon long-term, real-life experience. I say thisbecause, according to Dr. Carmichael’s own report, the American study was carried out beforemandatory retirement was abolished in the United States. The Canadian study was published in1988 - before the decision of the Supreme Court of Canada in McKinney, and before reliable2011 FC 120 (CanLII)evidence was available as to the actual, non-speculative and non-theoretical consequences of theabolition of mandatory retirement in Canada.[307] Indeed, in McKinney, the Supreme Court relied heavily on work by Gunderson and Pesandoin coming to the conclusion that the permissive legislative provision at issue in that case was savedby section 1 of the Charter. However, as was discussed earlier in these reasons, the Court wasclearly troubled by the fact that reliable evidence regarding the actual impact that the abolition ofmandatory retirement had in fact had for deferred compensation and other beneficial employmentregimes was not yet available.[308] Dr. Kesselman’s evidence thus calls into question a major underlying premise of Dr.Carmichael’s evidence - namely that mandatory retirement is an integral part of traditional labourmarket structures that include seniority systems, deferred compensation and pension schemes andthe like, and is essential to the preservation of these arrangements for the benefit of employees andemployers alike.