View cases - Stewart McKelvey

Page: 85f) Conclusion on the Minimal Impairment Issue[323] While accepting that the government is entitled to a significant degree of deference inlegislating in this area, the evidence before the Tribunal did not demonstrate that the governmentcontinues to have reasonable basis for concluding that allowing parties to negotiate mandatoryretirement arrangements is necessary for the achievement of the objectives of paragraph 15(1)(c) ofthe CHRA, to the extent that these objectives relate to the preservation of mutually-beneficial labourmarket structures.2011 FC 120 (CanLII)[324] Consequently, I find that the Tribunal was correct in finding that ACPA and Air Canadahave not established that older workers’ Charter rights are minimally impaired by paragraph15(1)(c) of the Canadian Human Rights Act. Parliament’s objectives can be attained withoutimpairing the Charter rights of workers over the normal age of retirement to the extent permitted byparagraph 15(1)(c) of the CHRA.[325] Before leaving this issue, I would note that I do accept that there could potentially bespecific employment situations where mandatory retirement could be demonstrably necessary forthe maintenance of a particular negotiated package of rights and benefits. As the arbitrator observedin CKY-TV, “A more carefully tailored version of section 15(1)(c), which limited the exception tothose kinds of circumstances, might pass the section 1 test”: at para. 218. That is, however, an issuefor another day.[326] In light of my conclusion with respect to the minimal impairment issue, it is not necessary toexamine the Tribunal’s finding with respect to the proportionality between the effects of paragraph