View cases - Stewart McKelvey

Page: 88[334] The Tribunal rejected Dr. Carmichael’s claim that it would be better to create programs tocompensate these individuals for the financial disadvantages that result from mandatory retirement,rather than eliminating the freedom to negotiate mandatory retirement. As was noted earlier, theTribunal questioned whether financial aid would provide a sufficient degree of income security.Moreover, Dr. Carmichael’s proposal did not address and could even exacerbate the loss of dignityand pride that flows from being unemployed: Tribunal decision #2, at para. 69.[335] Paragraph 15(1)(c) of the CHRA has the effect of depriving individuals of legal redress for2011 FC 120 (CanLII)the harm suffered when they are forced to retire at the “normal age of retirement”. In the Tribunal’sview, the negative effects of depriving individuals of the protection of a quasi-constitutional statuteoutweighed the positive benefits associated with paragraph 15(1)(c) of the Act: Tribunal decision#2, at para.70.[336] The Tribunal concluded its Charter analysis by observing that “perhaps one of the mostdisturbing aspects of this provision was the one first noted by the Court in Vilven [#1]: it allowsemployers to discriminate against their employees on the basis of age so long as that discriminationis pervasive in the industry”: at para. 70.[337] The Tribunal was correct in its assessment of the proportionality issue.[338] The focus of the analysis at this stage of the inquiry is on whether the salutary benefits of theimpugned legislation outweigh its deleterious effects. The Tribunal described the benefits of