Brick Head wrote:It is rare, if not impossible, to find anything society finds as a reasonable limit on the charter when dealing with race, religion or gender. However, quite the contrary when dealing with age, as limits on individual rights are considered reasonable in many cases. If section 10 was read in isolation then 3 year olds would be driving and a ten year old bellying up to the bar. We all know neither happen and that is because section 10 is not read in isolation, and section 1 takes precedence. Our society believes they are reasonable limits.
From what I see, you are mixing apples and oranges; more specifically, the statute and the
Charter. You are evidently confounding Section 10 of the
Canadian Human Rights Act with some other statutory provision, then applying the Section 1
Charter test to that. That is not the way it works.
As I understand it, the Section 1
Charter test does not come into play until there is a violation under some other provision of the
Charter, such as the equality provisions. For example, if Section 10 was found to violate Section 15(1) of the
Charter, as the mandatory retirement exemption was found to do, then the Section 1 test is made.
Neither Section 7 or Section 10 of the
Canadian Human Rights Act has been found to violate any provision of the
Charter and likely never will. So the Section 1 test under the
Charter does not factor into our decision process at all. In other words, there is no balancing of conflicting objectives, at least as far as Section 7 or Section 10 is concerned. It is valid law that is still in force; the Tribunal and the courts have no option but to
uphold it, not
interpret it in the context of some other objective.
What you have is two provisions of the CHRA that say, "no discrimination on the basis of age." Section 7(b) states that you cannot “differentiate adversely in relation to an employee,” based on age. Section 10 says that you cannot deprive an individual of any employment opportunities, based on age.
The Tribunal and the courts are bound by those statutory provisions. They do not come under any type of Section 1 interpretation that invokes any trade-off or balance, especially a trade-off involving of a “suggestion” by a Tribunal in one historical decision that “alternative means” can be used to accomplish what is assumed to be a legitimate, although unarticulated premise of some other legislation, especially legislation that has been repealed or struck down.
You seem to believe that your presumed inarticulate premise (protect the deferred compensation system) to a legislative provision that is no longer law can be used to override the express language of existing statutory prohibitions against discrimination on the basis of age. That belief is entirely unfounded.
Do you see my point? The Tribunal and the courts are required to uphold compliance with the CHRA Section 7 and Section 10 provisions. They have no discretion, and there is nothing to balance. ACPA and Air Canada must comply with those statutory provisions, or face the consequences in damages.
That is why I asked you earlier, how do you expect to overcome these legislative constraints? By way of a new Memorandum of Agreement? If so, at what risk? $20 million in damages, growing at $1.5 million per month is not enough to pay? Does ACPA have any kind of independent review process in place to examine the underlying assumptions and fallacious reasoning of its decision to blindly keep fighting the inevitable?
