View cases - Stewart McKelvey

Page: 81[309] We now have long-term, real-life experience in Canadian jurisdictions where mandatoryretirement has been abolished. This experience goes back more that 25 years in the cases ofManitoba and Québec. Thus the actual impact of the abolition of mandatory retirement in thesejurisdictions could be evaluated, and evidence adduced as to the consequences that the abolition ofmandatory retirement has actually had for matters such as seniority systems, deferred compensationand pension schemes.2011 FC 120 (CanLII)[310] Dr. Carmichael did not identify any significant negative consequences that have actuallycome to pass in those jurisdictions where mandatory retirement has been prohibited for some time.Indeed, he appeared to concede in cross-examination that mandatory retirement is not essential tothe maintenance of mutually advantageous labour market structures: see transcript, at p.1556.[311] The onus is on ACPA and Air Canada to demonstrate that Parliament continues to have areasonable basis for believing that paragraph 15(1)(c) minimally impairs the rights of those affectedby it. One would have thought that if there was current empirical evidence available to demonstratethe negative effects that the abolition of mandatory retirement has in fact had for beneficialworkplace arrangements, it would have been put before the Tribunal by the applicants in order toshow that mandatory retirement is indeed integral to the preservation of these labour marketstructures. It was not.[312] It was also evident from Dr. Carmichael’s testimony that his opinion was based upon hisbelief that older workers have already enjoyed their share of the benefits associated with