View cases - Stewart McKelvey

Page: 83[316] I do accept Dr. Carmichael’s point that a higher than average percentage of Air Canadapilots may wish to continue working, given their high rate of pay and significant level of jobsatisfaction. I also recognize that there are some unique features of Air Canada pilot positions -particularly with respect to the steepness of the wage curve and the extent to which the positions arein demand.[317] However, what is at issue here is not a Charter challenge to the mandatory retirementprovisions of the Air Canada pension plan and the Air Canada/ACPA collective agreement, but2011 FC 120 (CanLII)rather a challenge to the permissive provision of the CHRA that allows for the promulgation of sucharrangements. Indeed, Air Canada and ACPA agree that the Court’s section 1 analysis should notbe limited to the specific context of Air Canada pilots.[318] Air Canada and ACPA argue that the fact that most people would not change theirbehaviour and choose to retire at an older age if mandatory retirement was no longer permittedmeans that only a few people are actually negatively affected by paragraph 15(1)(c) of the CHRA.With respect, in examining the issue of minimal impairment, it is the quality of the impact on theCharter rights of older workers that is in issue, and not the number of older workers who wouldotherwise have wished to continue working.[319] Dr. Carmichael also testified before the arbitrator in CKY-TV. The arbitrator described hisevidence in that case as providing “a coherent defence of mandatory retirement”. The arbitratornoted that “the employment life cycle and the regime of pensions, security and favourablecompensation were seen for many years as an integrated whole”, and that mandatory retirement