View cases - Stewart McKelvey

Page: 84assisted employers in managing salary expenses and planning their financial obligations: at para.217. This was the view espoused by the Supreme Court at the time that McKinney was decided.[320] However, as the arbitrator observed, Dr. Carmichael’s position is sound, “but only on thepremise that mandatory retirement is necessary to the realization of all the foregoing”: at para. 217.As was explained earlier in these reasons, the evidence in this case does not establish thatmandatory retirement is in fact an integral and necessary part of traditional labour market structures,as was previously believed. Nor does it demonstrate that employment regimes that include seniority,2011 FC 120 (CanLII)pension, deferred compensation and the like have been negatively affected in the Canadianjurisdictions in which mandatory retirement has been prohibited for many years.[321] In Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, theSupreme Court stated that the minimal impairment test is intended to determine whether there is anefficiency between the infringing measure and the justified purpose. The question at this stage of theanalysis is whether the impugned provision infringes the relevant Charter rights to the minimumextent possible, while still fulfilling the justified purpose: at para. 124.[322] If permitting the negotiation of mandatory retirement is not necessary in order to maintainthe longstanding and beneficial employment regimes described by Dr. Carmichael and discussed bythe Supreme Court in McKinney, there is little efficiency between the infringing measure and thejustified purpose, and the legislation does not fulfill that purpose. Thus it cannot be said that olderworkers’ Charter rights are minimally impaired by the legislation.