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Court File No. 35014

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

ROBERT NEIL KELLY and GEORGE VILVEN

APPLICANTS (Respondents in the Federal Court of Appeal)

- and-

AIR CANADA PILOTS ASSOCIATION, CANADIAN HUMAN RIGHTS COMMISSION and AIR CANADA

RESPONDENTS (Appellant and Respondents in the Federal Court of Appeal)

-and-

ATTORNEY GENERAL OF CANADA

RESPONDENT (Respondent as of Right Under s.27 of the Federal Courts Act

in the Federal Court of Appeal)

MEMORANDUM OF ARGUMENT OF THE APPLICANTS, GEORGE VILVEN AND ROBERT NEIL KELLY

Counsel for the Applicants

BAKERLAW Barristers and Solicitors 509-4711 Yonge Street Toronto, ON M2N 6K8 David Baker LSUC#: 17674M Tel: 416-533-0040 Fax: 416-533-0050 Email: dbaker@bakerlaw.ca

Raymond D. Hall Barrister & Solicitors 2226 West Taylor Blvd. Winnipeg MB R3P 2J5, Canada Tel: 204.977.1818 Fax: (877)778.8482 Email: raymond@flypast60.com

Agent for the Applicants

CHAMP & ASSOCIATES I CHAMP & AVOCATS 43 Florence Street Ottawa, Ontario K2P OW6

Paul Champ Bijon Roy Tel: 613-237-4740 Fax: 613-232-2680

Email: pchamp@champlaw.ca broy@champlaw.ca

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TABLE OF CONTENTS

Part I - Overview 1

Introduction 1

Facts 1

Decisions Below 4

(1) Vilven v. Air Canada, 2009 CHRT 24 (CanLIl) 4

(2) Air Canada Pilots Association v. Kelly, 2011 FC 120 (CanLIl) 5

(3) Air Canada Pilots Association v. Kelly, 2012 FCA 209 (CanLIl) 6

Part II - Questions in Issue 7

Part III - Statement of Argument 7

(i) Time to Retire McKinney 7

(ii) Stare Decisis is not determinative 11

Intention 17

Evidentiary Record and Public Policy 17

(iii) Section 52 Remedy 18

Part IV - Submissions Concerning Costs 20

Part V - Order Sought 20

Part VI - Table of Authorities 21

Part VII - Statutes, Regulations, Rules relied on 25

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PART I - OVERVIEW

Introduction

1. The material facts and the analytical framework underpinning the Court's

decision in McKinney have materially changed over the intervening period. I The

Court now has an opportunity to review its earlier decision.

2. Unlike previous cases where the application of stare decisis by the courts below

has no bearing on their ultimate outcome, in this case it really matters. If leave is

granted, the Court can re-examine the impact of Supreme Court decisions on the role

of adjudicators, including administrative tribunals, in Charter cases.2

3. The Federal Court found in s. 15(1)(c) of the Canadian Human Rights Act

("CHRA") to be inconsistent with the supreme law of Canada but declined to grant a s.

52 remedy.3 This case raises the question of whether the Federal Courts Act (the

"Act') deprives courts of jurisdiction or confers discretion to refuse to make a s. 52

order, having found a law to be unconstitutional. 4

Facts

4. First Officer George Vilven and Captain Neil Kelly (the "Pilots") were

terminated by their employer Air Canada upon turning 60. There was no issue of their

being incapable of flying safely.5 Their employment was terminated solely because

they had reached the mandatory age of retirement specified in the collective agreement

I McKinney v. University o/Guelph, [1990] 3 S.C.R. 229; Harrison v. University o/British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Douglas/Kwantlen Faculty Assn v. Douglas College, [1990] 3 S.C.R. 570; Dickason v. University 0/ Alberta, [1992] 2 S.C.R. 1103 (hereinafter referred to collectively as "McKinney", except where specific page citations to McKinney are indicated).

2 Canadian Charter 0/ Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. II ["Charter"].

3 Canadian Human Rights Act, R.S.C., 1985, c. H-6. 4 Federal Courts Act, R.S.C., 1985, c. F-7.

5 Transport Canada issues licences and certifies pilot competency. It has no maximum age cutoff for a commercial pilot licence. Pilots under age 40 must be medically examined once a year and pilots over age 40, twice a year (Vilven v. Air Canada, 2007 CHRT 36 (CanLIO, ["2007 CHRT Decision"] at para. 24; Vilven v. Air Canada, 2009 FC 367 (CanLII), [2010] 2 F.C.R. 189 ["2009 Federal Court Decision"] at paras. 7 and 31).

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2

between Air Canada and the Air Canada Pilots Association ("ACP A"). 6

5. Mr. Vilven filed a human rights complaint alleging discrimination based on age

against Air Canada. Mr. Kelly filed complaints against both Air Canada and ACP A.

The Pilots each sought the usual human rights remedies of reinstatement in their jobs,

and compensation for the discrimination experienced. In addition they sought the

usual "public interest" remedy of an order that the respondents cease discriminating.

6. The complaints were referred to the Canadian Human Rights Tribunal (the

"Tribunal') for hearing. Following a lengthy hearing the Tribunal held that a prima

facie case of discrimination based on age had been made out pursuant to sections 7, 9

and 10 of the CHRA.7

7. At this point the onus shifted to the respondents to establish a defence. The

respondents both asserted a statutory exception defence based on s. 15( 1 )( c) of the

CHRA which provides:

s. 15( 1) It is not a discriminatory practice if ...

(c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the positions of that individual. ..

8. In evaluating this statuory defence, the 2007 Tribunal decided it was necessary

to include international airlines amongst the comparators. Gathering information about

numbers of pilots at any particular airline is problematic because the information is

considered confidential and proprietary. Based on the evidence available to it, the

Tribunal determined that age 60 was the normal age of retirement. 8

9. On judicial review, the Federal Court upheld the Tribunal's determination that

age 60 was the relevant normal age of retirement, but based this conclusion on

available data for domestic air carriers. The Court found Air Canada employed

"almost all of the 56.13% of the Canadian airline pilots" who were subject to

6 2007 CHRT Decision, ibid. at paras. 1-3 and 41. 7 Ibid. at paras. 40-43.

8 Ibid. at paras. 50-69; 2009 Federal Court Decision, supra note 5 at paras. 42-52.

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3 mandatory retirement at age 60.9 It ultimately held that as "the dominant player in the

Canadian airline industry, it was Air Canada's own mandatory retirement policy that

effectively set the industry norm".10 Thus, ifs. 15(1)(c) was valid law, the complaints

would have been dismissed.

10. At the hearing, the Tribunal granted interested party status to the "Fly Past 60

Coalition", a group of current and former Air Canada pilots who disagreed with the

position ACP A was taking on mandatory retirement. II It was the "Fly Past 60

Coalition" together with Mr. Vilven, which served the requisite Notice of

Constitutional Question and raised the Charter challenge to s. 15(1)(C).12 No

submission was made by any party that the Charter challenge be dismissed on the

basis of stare decisis. The Tribunal had extensive documentary and viva voce expert

evidence upon which to base a Charter decision. 13

11. The Tribunal observed that s. 15(1)(c) of the CHRA was ''very differently

worded", though "similar" to those considered by this Court in McKinney and

Harrison. 14 It also determined that this Court's s. 15 Charter jurisprudence had

changed substantially since McKinney, making particular reference to this Court's

decision in Law. 15 Treating this Court's decision in McKinney as authoritative, but not

binding upon it, the Tribunal accepted the respondents' submission that s. 15(1)(c) did

not violate s. 15(1) ofthe Charter. 16

12. On judicial review, the Federal Court agreed that McKinney should be treated

as authoritative but not binding, because of significant differences between the

statutory language, legislative purposes and legislative histories of the statutes under

9 2009 Federal Court Decision, ibid. at para. 179, see generally paras. 106-126, and 164-174. 10 Ibid. at para. 313.

II 2007 CHRT Decision, supra note 5 at para. 5. 12 Ibid. at para. 6. 13 Ibid., see generally paras. 70-110. 14 Ibid. at paras. 77 and 71, see also paras. 72-76; McKinney, supra note 1. 15 2007 CHRT Decision, ibid. at paras. 80-85, stating in particular at para. 80: "At the time that McKinney was decided, however, such considerations regarding the nature and scope of the rights under s. 15 were dealt with under s. I of the Charter. Since McKinney was decided in 1990, the law regarding the analysis of discrimination claims under s. IS of the Charter has evolved." 16 Ibid. at 70-110.

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4 review in this case and in McKinney. The Federal Court, noting this Court's decision

in Kapp, concluded that s. 15(1)(c) violates s. 15(1) of the Charter, and remitted the

matter back to the Tribunal to determine whether the violation was saved under s. 1 of

the Charter. 17

Decisions Below

(1) Vi[ven v. Air Canada, 2009 CHRT 24 (CanLII)

13. As the adjudicator of first instance in relation to s. 1 Charter evidence, the

Tribunal heard and assessed the viva voce evidence. IS As it noted, much of the

evidence had changed significantly from that which was before this Court in

McKinney. Moreover the evidence was to a remarkable degree consensual. 19

14. While beginning its analysis with a careful review of the findings of this Court

in McKinney, it then proceeded to independently apply the s. 1 Oakes test to the

evidence before it. 20 It held that the respondents failed to discharge the onus upon

them in relation to all four elements of the Oakes test.

15. Having found that s. 15(1)(c) was not a reasonable limit saved by s. 1, the

Tribunal went on to hold that the respondents could not rely on their s. 15(1)(a) bona

fide occupational requirement defences.21 It therefore held the complaints of Mssrs.

17 R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; 2009 Federal Court Decision, supra note 5 at paras. 204-340 (see especially paras. 227-241 and 303-313). The Federal Court adopted the analysis of Arbitrator Peltz in CKY-TV v. Communications, Energy and Paperworkers Union of Canada (Local 816) (Kenny Grievance) (2008), 175 L.A.C. (4th) 29; [2008] C.L.A.D. No. 92 ["CKY Arbitration Decision"], who ruled s. 15(l)(c) was constitutionally invalid for the purposes of the arbitration before him. The CKY Arbitration Decision was upheld on judicial review: CKY­TV v. Communications, Energy and Paperworkers Union of Canada (Local 816), 2009 MBQB 252, [2009] M.1. No. 336 (QL) ["CKY (MBQB)"]. 18 Vi/yen v. Air Canada, 2009 CHRT 24 (CanLII) ["2009 CHRT Decision"]; See also Canada (Attorney General) v. Bedford, 2012 ONCA 186 (CanLII) ["Bedford (C.A.)"] at para. 76, leave to appeal to S.C.C. requested. 19 2009 CHRT Decision, ibid. at para. 34.

20 See R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 ["Henry"] at para. 56 per Binnie J. encouraging an application of the principle of stare decisis that does not "deprive the legal system of much creative thought on the part of counsel and judges in other courts in continuing to examine the operation of legal principles in different and perhaps novel contexts ... ". He went on at para. 57, "The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity". R. v. Oakes, [1986] 1 S.C.R. 103; 2009 CHRT Decision. ibid. at paras. 11-71. 21 2009 CHRT Decision, ibid. at paras. 72-157.

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5 Kelly and Vilven had been substantiated. 22

(2) Air Canada Pilots Association v. Kelly, 2011 FC 120 (CanLII)

16. Unlike the Tribunal, the Federal Court hearing the matter on judicial review

dealt expressly and extensively with the issue of stare decisis?3 The Court recognized

the fact that both legislative provisions involve exceptions to human rights statutes

concerning mandatory retirement. Nevertheless, and as it had done in its earlier

decision on s. 15 of the Charter, the Court pointed to their differing provisions,

legislative purposes and legislative histories, rejecting in the process the argument that

the ratio decidendi of McKinney was so broad as to address mandatory retirement in

any form.24 Following a detailed analysis of the legislative provisions, the Court

concluded that McKinney was not binding in this case because:

1. The significant differences between the legislative provisions in issue;

2. The clear indication in McKinney that the Supreme Court did not intend that the decision be the final word on the subject of mandatory retirement for all time;

3. The differences in the evidentiary records that were before the Supreme Court and the Tribunal; and

4. The developments in public policy that have occurred since McKinney was decided.25

17. Having found that it was not bound by the outcome in McKinney, the Court

noted that substantial judicial authority supported a conclusion that "the contextual

assumptions in McKinney are no longer valid," a conclusion the Court found to be

22 Following a further hearing, the Tribunal awarded Mssrs. Kelly and Vilven compensation commencing on the date of its s. I decision, and ordered that they be reinstated provided they met all applicable Transport Canada licencing requirements. It declined the public interest remedy of ordering Air Canada to cease mandatorily retiring its pilots at age 60 (Vilven v. Air Canada, 2010 CHRT 27 (CanLII) ["CHRT Remedy Decision"]).

23 Air Canada Pilots Association v. Kelly, 2011 FC 120 (CanLII) ["2011 Federal Court Decision"] at paras. 98-125.

24 Ibid. at paras. 103-129 and 134; See Bell v. Canada (Canadian Human Rights Comission); Cooper v. Canada (Canadian Human Rights Commision). [1996] 3 S.C.R. 854 at para. 106, per McLachlin 1. (as she then was), dissenting. 25 Ibid. at para. 101.

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6 supported by the record in this case.26 It then proceeded to subject Parliament's

objectives in enacting s. 15(1)( c), as originally identified in its s. 15 decision, to the

Oakes analysis and held that the provision did not minimally impair the Charter rights

of workers over the normal age of retirement for their respective positions, nor were

the effects of the rights limiting legislation proportionate; instead, the Court found its

deleterious effects outweighed the public benefits that accrue from it. 27

18. Notwithstanding its finding of a Charter violation, the Court declined to issue

an order pursuant to s. 52 of the Constitution Act. It assumed, without deciding, that it

lacked jurisdiction under the Federal Courts Act to grant declaratory relief to a

respondent on a judicial review application. Alternatively, it decided that the Act

conferred discretion to issue declaratory relief, but for reasons given it elected not to

grant s. 52 relief on the facts ofthis case.28

(3) Ai, Canada Pilots Association v. Kelly, 2012 FCA 209 (CanLII)

19. Neither Air Canada nor ACPA appealed the Federal Court decision on the

ground that stare decisis prescribed the outcome of its s. 1 Charter decision. The

Attorney General became a party immediately prior to the hearing. It was the first to

raise the stare decisis issue.29

20. The Court of Appeal held that "there is no meaningful distinction to be drawn

with respect to the objectives of the Code and the CHRA", nor did it ultimately find

the difference in wording to be material.30

21. The Court ruled that " ... according to the doctrine of stare decisis, McKinney

26 Ibid. at para. 158.

27 Ibid. at para. 186-351.

28 Ibid. at paras. 472-489. In the proceeding, Air Canada, but not ACP A, also sought judicial review of the Tribunal's BFOR analysis. The Court found a reviewable error, quashed the Tribunal's decision, and referred the issue back to the same panel if available (at paras. 491-92). A different Tribunal panel reached a different conclusion on the BFOR issue: Vilven v. Air Canada, 2011 CHRT 10, [2011] C.H.R.D. No. 10 (QL). A judicial review of this decision has been argued and is currently under reserve in the Federal Court. 29 Air Canada Pilots Association v. Kelly, 2012 FCA 209 (CanLII) ["FCA Decision"] at paras. 13-15. This precluded any possibility of moving the Federal Court's decision per saltum to this Court (Supreme Court Act, R.S.C., 1985, c. S-26 s. 38) . .10 FCA Decision, ibid. at paras. 26, 52, 80-81.

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7 was a binding precedent that the Tribunal and the Federal Court ought to have

followed".31 It set aside the decision of the Federal Court and returned the matter to

the Tribunal with a direction to dismiss the complaints.

PART II - QUESTIONS IN ISSUE

22. The Applicants submit that this case raises the following issue of public and

national importance, and of legal significance:

(i) Can s. 15(1)(c) of the CHRA be saved pursuant to s. 1 of the Charter?

(ii) Having heard and decided that s. 15(1)(c) of the CHRA violates s. 15(1) of the

Charter, did the Tribunal and Federal Court err by hearing and deciding the s. 1

issue rather than deciding they were bound by the precedent of McKinney to

dismiss the Pilots' complaints?

(iii) Do s. 18(1)(a) or s. 18.1(3)(b) of the Federal Courts Act deprive the court of

jurisdiction, or confer discretion to refuse to grant a remedy pursuant to s. 52 of

the Constitution Act?

PART III - STATEMENT OF ARGUMENT

(i) Time to Retire McKinney

23. The applicants take the position that the courts and Tribunal below were not

bound by stare decisis to follow McKinney. If correct, the decisions of the Tribunal

and Federal Court therefore come before this Court for review based on a standard of

review of correctness. The Federal Court of Appeal held that McKinney was a binding

precedent. If correct, the applicants ask this Court to overrule McKinney.

24. This Court has overruled its own decisions where compelling reasons exist for

doing so. The Court exercises particular caution before reversing a precedent where

the effect is to diminish Charter protection, or where the precedent represents the

"considered view of firm majorities" or is of "recent vintage", none of which apply in

.11 Ibid. at para. 3.

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8

this case.32

McKinney

25. McKinney diminishes Charter rights, not Charter protection. McKinney has

been cited in hundreds of cases over the years, and remains an "elephant in the room"

in relation to age discrimination generally. The instant case represents an opportunity

for the Court to bring the issue of mandatory retirement into closer alignment with

fundamental human rights principles.33

26. Courts confronted with the issue of whether or not McKinney is binding upon

them have expressed concern that a decision of this Court, whether binding or just

authoritative, should influence the outcome of the cases before them when so much

has changed since McKinney was decided. In 2001, the British Columbia Court of

Appeal recognized that "the [McKinney] decision was not intended by that court to be

a determination of the issue for all time". 34 It then went on under the heading "Time

for Reconsideration" to issue what the Federal Court characterized as a "eri de coeur"

for review of McKinney. 35

320ntario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 ["Fraser"] at para. 57; see also Henry, supra note 20 at para. 44. 33 Ontario Human Rights Commission v. Etobicoke [1982] I S.C.R. 202 at 209: "We all age chronologically at the same rate, but aging in what has been termed the functional sense proceeds at widely varying rates and is largely unpredictable. In cases where concern for the employeee's capacity is largely economic ... it may be difficult, if not impossible, to demonstrate that a mandatory retirement age at a fixed age, without regard to individual capacity, may be validly imposed under the Code." Likewise in Winnipeg School Division No.1 v. Craton, [1985] 2 S.C.R. 150, where legislation authorizing the employer to establish an age for compulsory retirement, conflicted with the province's human rights legislation. The Court held that the human rights legislation must prevail. Absent a clear legislative pronouncement to the contrary, human rights legislation, being quasi-constitutional, must prevail.

34 Greater Vancouver Regional District Employees' Union v. Greater Vancouver Regional District, 2001 BCCA 435 (CanLU) [Greater Vancouver] at para. 127.

3S 2011 Federal Court Decision, supra note 23 at para. 163. In a later case involving legislation requiring Justices of the Peace to retire at age 70, the Ontario Superior Court felt impelled to comment on the changes that had occurred since McKinney was decided. Noting that the Court in McKinney had made express reference to a "profound alteration in society'S view of age discrimination in recent years," it went on to describe the "sea change in the public attitude to mandatory retirement in Ontario" that had occurred, in the ensuing sixteen years. The Court held that the mandatory retirement of justices of peace "must be considered in this context" (Association of Justices of the Peace of Ontario v. Ontario (Attorney General), [2008] 0.1. No. 1131 (QL) ["Justices of the Peace"] at paras. 34-45).

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9 27. The contextual evidence in the case before this Court is based on data collected

following the repeal of mandatory retirement in a variety of jurisdictions, rather than

on the projections and economic models upon which the McKinney Court necessarily

relied. According to the Tribunal which heard the evidence, both the expert called by

the Commission and the expert called by Air Canada agreed on very fundamental

factual issues.36

28. The McKinney Court was aware that its decision was taken in the face of

shifting public attitudes and based on ephemeral evidence. It described the evidence as

". " as mix of conjecture, fragmentary knowledge, general experience and knowledge

of the needs, aspirations and resources of society, and other components. ,,37

29. The Court prophesied, ''we do not really know what the ramifications of these

new schemes will be and the evidence is that it will be some 15 to 20 years before a

reliable analysis can be made.,,38 That evidence is now available to this Court.

30. The McKinney Court's deferential approach was also based on a perception that

the Charter not be used to oblige "a Legislature" to "deal with all aspects of a problem

at once. It must surely be permitted to take incremental measures".39 The

constitutional doctrine of incrementalism was adopted from American precedent.4o

More recently incrementalism has been severely criticized in a series of judgments of

this Court.41 With the Charter passing its 25th year, the Court may choose to

mandatorily retire incrementalism, as having outlived its usefulness.

31. A review of the McKinney Court's treatment of age discrimination may also

warrant re-examination. The Court describes age as being different from " ... most of

the [ other] specified grounds of discrimination" mentioned in s.15( 1).42 Disability as

well as age are notably absent from the Court's list of grounds that do not inherently

36 2009 CHRT Decision, supra note 18 at para. 34. 37 McKinney, supra note 1 at 304-05. 38 Ibid. at 310. 39 Ibid. at 317.

40 Ibid. at 317-18.

41 Vriend v. Alberta, [1998] 1 S.C.R. 493 ["Vriend"] at para. 122; M v. H, [1999] 2 S.C.R. 3 [I'M v. H"] at para. 128. 42 McKinney, supra note 1 at 297.

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10 correlate with ability. Reference to legal analysis of the "levels of scrutiny" hierarchy

of justification applied under the United States equal protection clause is equally

disquieting, as is the Court's reference to a General Assembly Resolution where age

based discrimination is subjected to the additional proviso of "whenever and wherever

the overall situation allows". 43 These jurisdictions accord second class protection

against discrimination based on age.

32. It is submitted that the Court has expressly rejected a hierarchy of grounds, or

levels of scrutiny approach where different scrutiny is applied depending on the nature

of ground or right. As explained by the Court in Andrews, rights protections in

jurisdictions such as those referenced by the McKinney Court "[contain] no limiting

provisions similar to s. 1 of the Charter".44

33. The correct test is to look at the purpose or effect of the law on the group

identified by the enumerated ground and decide if it is discriminatory. If it is

discriminatory then the onus shifts and the law is subjected to the Oakes review. Once

a s.15( 1) violation has been identified, age discrimination should be accorded the same

level of scrutiny as all other Charter rightS.45

34. In a recent British Columbia case, attention was focused on the way the Court's

decision in Hutterian Brethren "put life" into the final stage of the Oakes

proportionality analysis.46 The contrast between the McKinney and the Federal

Court's final stage analysis is far more dramatic. The Federal Court is deferential to

the McKinney Court's framework, noting this Court's statement that the final stage

"involves many of the same considerations that were discussed in connection with the

43 Ibid. at 317-18 and 296. In the United States discrimination based on age and disability is accorded the lowest level of scrutiny. William Black, "The Search for Reasonable Limits: Is Oakes Retired?" (1990-1991) 2 Const. F. 78 at 79. 44 Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 at 177-78; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769 at para. 51. 45 Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 at paras. 27 and 31. 46 Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 ["Hutterian Brethren"] at paras. 35-104; Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII) ["Carter"] at paras. 986-998.

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11 issue of minimal impainnent".47 But the Federal Court added a proviso: that it would

follow McKinney, "albeit through the lens described in Thomson Newspapers Co.'.48

35. The Thomson lens transfonns the third stage analysis. While virtually

redundant in McKinney, the third stage becomes a crucial balancing process, in which

the benefits that accrue from a law are proportional to it deleterious effects, all

measured in Charter values. There was no balancing in McKinney. As the Federal

Court's analysis demonstrates, the change in this Court's s. 1 analytical framework,

particularly for the third stage of the proportionality test, would have a direct bearing

on not only the outcome ofthe s. 1 analysis in this case.49

36. It should be a matter of national concern that there currently exist a Manitoba

Court of Queen's Bench decision, as well as the s. 15(1) decision of the Federal Court

in this case, which are diametrically at odds with the decision of the Court of Appeal

below.5o

37. Workers and their trade unions are now bringing repeated challenges to age

discrimination. Their. cases, to a greater or lesser extent, all lead back to McKinney.

The applicant Pilots have persevered and ultimately managed to bring the issue of

McKinney to this Court.51

(il) Stare Decisis is not determinative

38. Unlike cases where a declaration is sought, this is a case where damages have

been detennined to be available, but only from the date of the Tribunal's

determination that s. 15(1)(c) in unconstitutional in this case. The applicability of stare

47 2011 Federal Court Decision, supra note 23 at para. 330; McKinney, supra note 1 at 316; Thomson Newspaper Co. v. Canada (Attorney Genera/), [1998] 1 S.C.R. 877 ["Thomson"]. 48 2011 Federal Court Decision, ibid.

49 Ibid. at paras. 327-349; see also McKinney, supra note 1 at 318-19; Compare Vriend, supra note 41 at paras. 46, 65-66. 50 CKY Arbitration Decision, supra note 17; CKY (MBQB), supra note 17; 2009 Federal Court Decision, supra note 5.

51 Workers and their trade unions have launched many challenges, including in CKY Arbitration Grievance, supra note 17 and Greater Vancouver, supra note 34. The Ontario Nurses Association's legal representatives have expresses deep concern about the application of the outmoded McKinney's analysis to the age based discrimination issues of today and tomorrow (Danielle Bisnar, Elizabeth McIntyre, Jo-Anne Pickel, "Lessons for Litigators from DNA v. Chatham-Kent" (unpublished manuscript».

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12 decisis will be detenninative of the Tribunal's jurisdiction to award make whole

remedies.

39. Where a Charter challenge concerns an issue previously considered by a higher

court, it is clear that the adjudicator of first instance must decide whether or not there

is a stare decisis issue. 52 If there is, the limited jurisprudence suggests that an

adjudicator must then determine whether sufficient grounds exist - either in the facts

pleaded or in the decisions of the higher court - to indicate that the prior decision may

be open to reconsideration. 53 If such grounds are found to exist, then the adjudicator

may admit the appropriate evidence and make such rulings as are necessary; if no

such grounds exist, then the Charter challenge is dismissed ab initio. 54 Limited

guidance is available to the adjudicator on the extent to which the Charter challenge

before her could or should result in a different outcome.

40. The heavy responsibility55 of deciding which cases of a higher court may be

open to review thus falls to the court or tribunal56 hearing the matter at the first

instance. This Court has not spoken on the issue of when the initial adjudicator was to

admit evidence, notwithstanding the existence of a stare decisis issue. Neither has this

Court detennined the role of the adjudicator in such a proceeding. Presumably the

adjudicator must ultimately dismiss, but it is unclear whether and when the adjudicator

may conduct a full legal analysis as eventual assistance to a higher court. 57

52 R. v. Prokofiew, 2010 ONCA 423 (CanLII) ["Prokofiew"], appeal argued 8 November 2011, judgment reserved by this Court; Henry, supra note 20; Canada v. Craig, 2012 SCC 43 ["Craig"].

53 Wakeford v. Attorney General of Canada, 2001 CanLII 28318 (ONSC) [" Wakeford, (ONSC)"] at para. 14, affd 2001 CanLII 32775 (ONCA) leave to appeal to S.C.C. refused, [2002] S.e.C.A. No. 72; see also Bedford (e.A.), supra note 18 at paras. 76-80. 54 Wakeford (ONSC), ibid. at paras. 14-20; Bedford (e.A.), ibid.

55 This is the point at which the benefits of stare decisis can be realized because this is where the process ends quickly and with finality. There is no evidence this function is not ably performed. In fact there are only the rarest of cases where a court entertains a case where it acknowledges being bound by stare decisis and refrains from proceeding beyond receiving the relevant evidence to making the decision it considers to be right. Craig, supra note 52 would be an example where it should have. 56 Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504,2003 SCC 54 ["Martin"].

57 Collins v. Canada (T.D.), [2000] 2 F.e. 3 ["Collins"] and Henry, supra note 20, per Binnie J. at paras. 56-7 responding to concerns expressed by Professor Devinat that stare decisis not be

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13 41. The adjudicator's initial decision about whether or not to receive evidence

could be regarded as sufficient to safeguard the purposes advanced by stare decisis.

This decision would be based on having received detailed submissions on the

applicable law. Having overseen the gathering of the facts, including making rulings

that may prove determinative on relevance, the qualifications of experts and

credibility, the adjudicator is in possession of the complete record. Having both the

facts and the law, the initial adjudicator would enhance access to justice by deciding

the case, providing a transparent explanation why the case was not dismissed. This

approach has the benefit of providing the courts above with detailed reasons for

ultimately accepting or dismissing the claim. 58

42. If such an approach is adopted, the party challenging the previous decision

should presumably bear the onus of proof throughout. 59 Presumably as well, a party

seeking to appeal such a decision would be able to seek an appropriate remedy to stay

the application of a judgment pending appeal. 60

43. The complete Latin maxim is "stare decisis et non quieta movere" which has

been translated as meaning ''to [stand] by decisions and not to disturb settled

matters".61 While the translation is accurate there remains an active debate as to

whether or not it is true that "[p ]recedent can almost always be overridden by

principle".62 The debate has become even more acute in Charter cases, where settling

extended to the point where it precluded the role of the lower courts contributing to judicial creativity and the growth of the law. 58 This Court has recently stated that when confronted with a decision on a binding question of statutory interpretation, the proper course to be followed by courts below is to write reasons explaining why the binding precedent is problematic, rather than purporting to overrule it (Craig, supra note 52 at para. 21); And see Collins, ibid.

59 See R. c. Chaput, [2005] 1.0. no 16688 (OL), rev'd on other grounds, Quebec (Procureur general) c. Chaput, [2007] 1.0. no 6986. 60 See e.g. Carter v. Canada (Attorney General), 2012 BCCA 336 (CanLII) (application for a stay of declarations of invalidity and running of suspension of declarations granted, by consent; application for stay of constitutional exemption dismissed); M v. H, [1996] OJ. No. 4419 ["M v. H (C.A.)'1 (declaration of invalidity issued with temporary suspension of one year); M v. H, 1996 CanLII 838 (ON CA) (application for a stay of declarations dismissed). 61 Holmes v. Jarrett (1993), 68 O.R. (3d) 667 at 673. 62 Neil Duxbury, The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008) quoted in a review of the book by Stephen Waddams, (2009) 59 Univ. of Toronto L.l. 127;

226

14 the evidentiary record closely parallels the process of settling the applicable

constitutional principles.63

44. As well, there continue to be debates concerning both (1) the precise

identification of the ratio decidendi of a decision64, said to be the crux of higher

court's prior decision that is binding; and (2) the extent to which obiter decisions,

particularly of this Court, are prescriptive as opposed to authoritative. The obvious

consequence of treating obiter statements as binding is to divert rigorous attention

from the fraught task of determining what constitutes the ratio of a particular case, but

the line drawing does not get any easier.

45. These issues related to ratio and obiter can collectively be referred to as the

debate over the Sellars Principle.65 While this Court's decision in R. v. Henry may not

have resolved all issues in the debate66, it did highlight the particular issues that arise

in Charter cases, and the importance of attempting to determine this Court's intention

that effect be given to obiter statements, particularly those articulating the

"development ofa general [Charter] analytical framework".67

see also The Honourable Madame Justice Claire L'Heureux-Dube, "By reason of Authority or By Authority of Reason", (1993) 27 U.B.C. L. Rev. 1. 63 Danielle Pinard, "Evidentiary Principles with respect to Judicial review of Constitutionality: A Risk Management Perspective", in Law Commission of Canada ed., Law and Risk (UBC Press, 2005) at 124-25. 64 Arthur Peltomaa, "Obiter Dictum of the Supreme Court of Canada: Does It Bind Lower Courts?", (1982) 60 Can Bar Rev. 823 at 825: "There is a wealth of case law and academic literature pertaining to the distinction between ratio and dicta. However there are no universally accepted definitions of these tenns." The impressive case law and academic authorities cited by the author can be updated, but no further light would be shed. 65 This issue was taken up by Professor Mathieu Devinat, whose argument that stare decisis should be reserved for the ratio of a higher court's decision was considered by this Court in Henry, supra note 20 at paras. 56-57. Professor Devinat maintains in a subsequent article, "The Trouble with Henry: Legal Methodology and Precedents in Canadian Law", (2006), 32 Queen's L.J. 278 at paras. 30-32, that some further clarification may be required. See Prokofiew, supra note 52 at paras. 18-40, currently under reserve by this Court. 66 Different panels of the Alberta Court of Appeal have adopted diametrically opposed interpretations of Henry, ibid.: compare R. v. Arcand, 2010 ABCA 363,264 C.C.c. (3d) 134 at para. 13 with R. v. Lee, 2012 ABCA 17, [2012] AJ. No. 41 at paras. 3-7 and 23. 67 Henry, ibid at para. 53, where the Court cites as an example "Dickson C.J. 's classic fonnulation of proportionality in Oakes ".

227

15 46. The issue of whether the decision in McKinney is binding in a constitutional

challenge to s. 15( 1)( c) was addressed and settled in the initial s. 15(1) decision of the

Tribunal, which held that it was not bound by stare decisis. It cited changes in the

legal structures of this Court's analysis in s. 15 cases as well as the significant

differences in the sections under review as the basis for its decision.68 While treating

the Court's decision in McKinney as authoritative, it found that s. 15(1)(c) did not

violate s. 15(1) of the Charter. The Federal Court overturned the ultimate Charter

decision of the Tribunal, but upheld its finding that it was not bound by the McKinney

decision. No appeal was taken from this decision by the respondents or the federal

government. 69

47. In its second decision, the Tribunal treated the issue of stare decisis as having

been resolved in the Federal Court's earlier decision, and so did not deal with it in any

detail. On judicial review, the Federal Court dealt with the issue extensively. The

Court adhered to the logic of its earlier decision, including the determination of the

legislative purposes underlying s. 15(1)(c), which was a common issue to both its s.

15(1) and s. 1 analyses. It did not address as it had in its first decision in the case,

changes to the Court's general Charter analytical framework. 70 It did however

address four issues which it cited as justifying conclusion that this Court's decision in

McKinney did not prescribe the outcome of the applicants' Charter challenge to the

validity of s. 15( 1)( c). 71

48. The McKinney court focused heavily on the age 65 cut off, linking it to the

availability of public and private benefits available and the identification of those in

the 45 to 65 age bracket as being in greatest need of protection.72 This is precisely the

68 See also Bedford v. Canada, 2010 ONSC 4264 (CanLII) ["Bedford (ONSC)"]; Bedford (C.A.), supra note 18 and Carter, supra note 46. 69 2007 CHRT Decision, supra note 5; 2009 Federal Court Decision, supra note 5; 2009 CHRT Decision, supra note 18; 2011 Federal Court Decision, supra note 23 at paras. 195-96; CKY Arbitration Decision, supra note 17; CKY(MBQB), supra note 17. 70 2009 Federal Court Decision, ibid. at paras. 200-03 and 228-40; 2011 Federal Court Decision, ibid.; See also Hutterian Brethren, supra note 46 and Carter, supra note 46 at paras. 986-998. 71 2011 Federal Court Decision, ibid. at paras. 98-185. The criteria cited by the Federal Court closely parallel the criteria identified in Wakeford (ONSC), supra note 53, per Swinton J. at para. 14. 72 McKinney, supra note I at 299-300.

228

16 age bracket that is put at risk by the decision to leave mandatory retirement to

practices that are usual in the business.73 The risk is made that much greater where a

dominant player such as Air Canada establishes "the normal age of retirement."

49. It is submitted that the Federal Court erred by not basing its analysis on the

legislative purpose established by the Court in McKinney. It further erred by adopting

the untenable position that the ratio decidendi is that mandatory retirement is

justifiable in all its forms.74

50. McKinney is not determinative of cases of individual public employers, 75

although the courts and tribunals are generally hard pressed to decide what of the

McKinney decision is binding and what is not. It is not determinative of cases

involving legislation authorizing mandatory retirement of particular groups of

73 New Brunswick (Human Rights Commission) v. Potash Corporation o/Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604 ["Saskatchewan Potash"] per McLachlin C.J. partially concurring at para. 56: " ... I cannot agree with the 'usual business practice' requirement proposed by the employer as the second element of the test, nor with the minimal legitimacy requirement proposed by the majority. At the same time, I would reject the Human Rights Commission's individualized approach. In my view, the focus under s. 3(6)(a) is on the pension plan. The issue is whether the mandatory retirement provisions of the plan are connected to its goals and are reasonably necessary for the operation and sustainability of the plan." 74 In contrast, this Court's jurisprudence confirms a more nuanced and thoughtful determination of the ratio decidendi binding on lower courts. For example, in M v. H, Iacobucci J., speaking for the majority, rejected the expansive approach to stare decisis advanced by the government, which had argued that the Court was bound to apply its s. 1 analysis in Egan. Iacobucci J. explained that while both Egan and M v. H concerned the opposite-sex definition of "spouse" in provincial legislation,the ratio in Egan was confined to the specific legislative context before the Court in that case (M v. H, supra note 41 at para. 75; Egan v. Canada, [1995] 2 S.C.R. 513 ["Egan"]; see also M v. H (C.A.), supra note 60 at paras. 19 and 84 where the Court of Appeal also rejected the submission that Egan was dispositive of the outcome). Similarly, in Harper v. Canada (Attorney General), this Court did not find its decision in Libman v. Quebec (Attorney General) was so broad as to render unconstitutional any legislative limits on third party election advertising; rather, the Libman decision served as a useful guide in delinating appropriate considerations in the Charter analysis (Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.c.R. 827,per McLachlin C.J. and Major J. (dissenting in part) at paras. 2, 24, 25, 29,36,37, 39; per Bastarache 1. at paras. 60-65, 72, 83, 86, 100, 101, 108, 116, 121, 127; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569). The trial judge in the Harper case was likewise of the view that the decision in Libman did not determine the issues before him (2001 ABQB 558, [2001] A.J. No. 808 (QL)). In M v. H and Harper, the courts noted the similarity of the records in Egan and Libman, respectively (M v. H (C.A.) at para. 84; Harper at paras. 61 and 94). 75 Glanville Williams, Learning the Law (9th ed.) (London: Stevens, 1973) quoted in David Stockwood, "Stare Decisis: The heart of the system, rarely visited" (2003) 22 Advocates' Soc. J. No.3.; Webber v. Canadian Forest Products Ltd., 2008 AHRC 7.

229

17 worker/professionals. 76 It is not detenninative of cases about the relationship between

pensions77, benefits78 and mandatory retirement. It does not address the issue of

legislation authorizing unions to negotiate mandatory retirement on behalf of its

members any more than does s. 15(1)(c).

51. It is submitted that the decision in McKinney is influential, even authoritative

but it is not binding on the facts in this case. 79 This is precisely how it was treated by

the Tribunal and Federal Court. The legislative effects, purposes and history of

s.15(1)(c) are too materially different from the legislation in McKinney and Harrison

for them to represent a binding precedent.

Intention

52. The Federal court erred by dismissing the intention of the Supreme court as a

relevant factor, when this Court has ruled unanimously that this is in fact the

overriding consideration when considering the significance of Supreme Court

precedent. 80

53. The Federal Court ably and correctly determined that the McKinney Court fully

understood that its decision had a "best before date", and would have welcomed the

thorough and thoughtful approach of both the Tribunal and the Federal COurt.81

54. Institutionally this Court is not intended to receive evidence and functions most

efficiently as an appellate court rather than a court of first instance.82 It is submitted

that when inferring intention, there should be as assumption that these intentions

reflect knowledge of the appropriate functions of the courts and tribunals within this

adjucative hierarchy.

Evidentiary Record and Public Policy

76 Justices of the Peace, supra note 35.

77 Saskatchewan Potash, supra note 73. 78 Bisnar, McIntyre & Pickel, supra note 51.

79 Williams, supra note 75. Williams states that the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same". 80 Henry, supra note 20 at para. 53.

81 2011 Federal Court Decision, supra note 23 at paras. 135-38, 161-163. 82 R. v. Swain, [1991) 1 S.C.R. 933 at 996.

230

18

55. This Court reasonably expects its decisions will provide certainty and

consistency. 83 It is also fully aware that its decisions, particularly those based on the

kinds of evidence identified by Professor Pinard, will be subjected to infonned

criticism and ultimately to judicial review. 84

56. Material changes following a Supreme Court decision warrant an adjudicator of

first instance receiving evidence rather than dismissing the case ab initio.8s Based on

the record, this Court may decide to overturn its earlier decision. The applications

judges in Bedford and in this case decided they were not bound by earlier precedent,

and were overturned by their respective Courts of Appeal. 86

(iii) Section 52 Remedy

57. Having found s. 15(1)(c) to be in contravention ofthe Charter, the only remedy

open to the Tribunal under s. 52 of the Constitution Act was to treat s. 15(1)(c) as

inoperative.87 On the application for judicial review, the Federal Court having already

found that paragraph 15(1)(c) of the CHRA violates s. 15(1) ofthe Charter, upheld the

Tribunal's detennination that the paragraph is not saved under s. 1 of the Charter.

Thereupon the issue of the Courts' jurisdiction to grant a s. 52 remedy arose.88

58. It was acknowledged that where an applicant for judicial review is advancing a

constitutional challenge, the Federal Court has jurisdiction to hear the challenge and

grant declaratory relie£89 The Court assumed that s. 18(1)(4) of the Federal Courts

Act precluded it granting a respondent a s. 52 remedy and limited the Court to granting

or dismissing the application. 90

83 Fraser, supra note 32 at para. 57. 84 Pinard, supra note 63. 85 Wakeford (ONSC), supra note 53.

86 2011 Federal Court Decision, supra note 23; FCA Decision, supra note 29; Bedford (ONSC) supra note 68; Bedford (C.A.), supra note 18. 87 Martin, supra note 56 at para. 31.

882011 Federal Court Decision, supra note 23 at paras. 472-489. In the parallel case of CKY it is not clear from its decision whether the Court hearing the matter granted a s. 52 remedy (CKY (MBQB), supra note 17). 89 Okwuobi v. Lester B. Pearson School Board: Casimir v. Quebec: Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 25745 at 280-81; Martin, supra note 56 at paras. 31, 33. 90 2011 Federal Court Decision, supra note 23 at paras. 480-482.

231

19

59. The Federal Court has jurisdiction to hear and grant a s. 52 Charter remedy to

an applicant. The Court questioned whether s. 18.1(4) of the Act denied it jurisdiction

to grant the same remedy to a successful respondent. In the event that it possessed the

requisite jurisdiction, the Court declined to exercise its discretion to grant a remedy

pursuant to s. 18( 1) of the Act in the circumstances of this case.

60. It is submitted that the Federal Courts Act and its subsequent amendments

''were designed to enhance government accountability and access to justice," and that

it "should be interpreted in such a way that promotes both those objectives.',9l

61. Having the jurisdiction to determine the constitutional issue, the Court

possesses "all the necessary powers to exercise that jurisdiction,,92 "as a superior court

of record,,93, including jurisdiction to grant respondents as well as applicants a s. 52

remedy.94

62. Having found s. 15(1)(c) of the CHRA to be inconsistent with the Charter, it is

further submitted the application judge erred in concluding that the Court had

discretion to refuse declaratory relief. While the Federal Court's jurisdiction is

statutory, when exercising its jurisdiction over constitutional matters, those powers are

to be read in light of s. 52 of the Constitution Act, 1982.

63. This court has made it clear that the wording of s. 52(1) is "mandatory" and that

to the extent of its inconsistency it "must be struck down", and "not left on the books

subject to discretionary case-by-case remedies.,,95 Where the Court had discretion to

determine which s. 52 remedy to grant, it lacked jurisdiction to grant any remedy.

64. Section 15(1)(c) has been repealed effective December 15, 2012 and it may

therefore be argued that as of this date the issue of a s. 52 remedy will have become

91 Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 at para. 32; see also Martin, supra note 56 at para. 29; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26.

92 Nu-Pharm Inc. v. Canada (Attorney General) (C.A.), [2000] 1 F.C. 463 at 468-69.

93 Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at paras. 33 and 36. 94 See ATCO Gas Pipeline v. Alberta Energy and Utilities Board, [2006] 1 S.C.R. 140, 2006 SCC 4 at para 50. '15 R. v. Ferguson, 2008 sec 6, [2008] 1 S.C.R. 96 at para. 65.

232

20 moot in this case.96 It is respectfully submitted that in the context of this appeal the

issue will be well and fully argued, as it was on cross-appeal in the Federal Court of

Appeal. Judicial economy would be advanced, in a case where the applicant Pilots

have endured a daunting process, in significant measure in solidarity with fellow pilots

whose complaints await remedy or hearing before the Tribunal. Finally, it is in the

public interest, as well as a matter of national importance that the matter not be left

unresolved.

PART IV - SUBMISSIONS CONCERNING COSTS

65. The Applicants respectfully request that this Court grant them their costs in the

event leave to appeal is granted.

66. Should leave be refused, the Applicants request that the Court consider the

public interest and importance in resolving the constitutionality of mandatory

retirement, and make no order as to costs.

PART V - ORDER SOUGHT

67. The Applicants respectfully request that this Honourable Court grant:

a. leave to the Applicants to appeal the judgment of the Federal Court of

Appeal, dated July 17, 2012; and

b. costs of this application.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

S~ber28J_O~ /' ~?-r'-C'£ < ---.. ~~

'DaVidBaker bakerlaw, Barristers and Solicitors 509-4711 Yonge Street Toronto, Ontario M2N 6K8 Tel: 416-533-0040 Fax: 416-533-0050 E-mail: dbaker@bakerlaw.ca

Ra ond D. Hall Barrister & Solicitors 2226 West Taylor Blvd. Winnipeg MB R3P 2J5, Canada Tel: 204.977.1818 Fax: (877)778.8482 Email: raymond@flypast60.com

Counsel for the Applicants, George Vilven and Robert Neil Kelly

Q/) Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.

233

21 PART VI - TABLE OF AUTHORITIES

TAB CASES Para. in Memorandum

1. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 34,47 2 S.C.R. 567

2. Association of Justices of the Peace of Ontario v. Ontario (Attorney 26,50 General), [2008] 0.1. No. 2131 (QL)

3. ATCO Gas Pipeline v. Alberta Energy and Utilities Board, [2006] 1 61 S.C.R. 140,2006 SCC 4

4. Bedfordv. Canada, 2010 ONSC 4264 (CanLII) 46,56

5. Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 60 S.C.R.559

6. Bell v. Canada (Canadian Human Rights Commission); Cooper v. 16 Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854

7. Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 64

8. Canada (Attorney General) v. Bedford, 2012 ONCA 186 (CanLII) 13, 39, 46, 56

9. Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 60 S.e.R. 585

10. Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 61 1 S.C.R. 626

11. Canada v. Craig, 2012 SCC 43 39,40,41

12. Carter v. Canada (Attorney General), 2012 BCCA 336 (CanLII) 42

13. Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII) 34,46,47

14. CKY-TV v. Communications, Energy and Paperworkers Union of Canada (Local 816) (Kenny Grievance) (2008), 175 L.A.C. (4th) 29;

12,36,37,46

[2008] C.L.A.D. No. 92

15. CKY-TV v. Communications, Energy and Paperworkers Union of 12,36,46,57 Canada (Local 816), 2009 MBQB 252, [2009] M.J. No. 336 (QL)

16. Collins v. Canada (T.D.), [2000] 2 F.e. 3 40,41

17. Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 1

18. Douglas/Kwantlen Faculty Assn v. Douglas College, [1990] 3 S.C.R. 1 570

234

22 TAB CASES Para. in

Memorandum

19. Egan v. Canada, [1995] 2 S.C.R. 513 49

20. Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 33 429

21. Greater Vancouver Regional District Employees' Union v. Greater 26,37 Vancouver Regional District, 2001 BCCA 435 (CanLII)

22. Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 49 827

23. Harrison v. University of British Columbia, [1990] 3 S.C.R. 451 1,51

24. Holmes v. Jarrett (1993),68 O.R. (3d) 667 43

25. Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769 32

26. Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143 32

27. Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 49

28. Libman v. Quebec (Attorney General), 2001 ABQB 558, [2001] A.l. 49 No. 808 (QL».

29. McKinney v. University of Guelph, [1990] 3 S.C.R. 229 1,28,29,30, 31, 32, 34, 35', 37,46,48, 49, 50,51,53

30. M v. H, [1999] 2 S.C.R. 3 30,49

31. M v. H, [1996] 0.1. No. 4419 (e.A.) (QL) 42,49

32. Mv. H, 1996 CanLII 838 (ON CA) 42

33. New Brunswick (Human Rights Commission) v. Potash Corporation of 48,50 Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604

34. Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia 40,57,58,60 (Workers' Compensation Board) v. Laseur, [2003] 2 S.e.R. 504,2003 SCC 54

35. Nu-Pharm Inc. v. Canada (Attorney General) (CA.), [2000] 1 F.e. 61 463

36. Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec; 58 Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257

235

23 TAB CASES Para. in

Memorandum 37. Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 24,55

38. Ontario Human Rights Commission v. Etobicoke, [1982] I S.C.R. 202 25

39. Quebec (Procureur general) c. Chaput, [2007] J.Q. no 6986 42

40. R. c. Chaput, [2005] J.Q. no 16688 (QL) 42

41. R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134 45

42. R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R.96 63

43. R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 14,24,39,40, 45,52

44. R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 12

45. R. v. Lee, 2012 ABCA 17, [2012] A.J. No. 41 45

46. R. v. Oakes, [1986] 1 S.c.R. 103 14,33,34

47. R. v. Prokofiew, 2010 ONCA 423 (CanLII) 39,45

48. R. v. Swain, [1991] 1 S.c.R. 933 54

49. Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 1

50. Thomson Newspaper Co. v. Canada (Attorney General), [1998] 1 34,35 S.C.R. 877

51. Vriend v. Alberta, [1998] 1 S.C.R. 493 30,35

52. Wakeford v. Attorney General of Canada, 2001 CanLII 28318 39,47,56 (ONSC)

53. Webber v. Canadian Forest Products Ltd., 2008 AHRC 7 50

54. Winnipeg School Division No.1 v. Craton, [1985] 2 S.C.R. 150 25

SECONDARY SOURCES

55. Bisnar, Danielle, McIntyre, Elizabeth & Pickel, Jo-Anne. "Lessons for 37,50 Litigators from ONA v. Chatham-Kent" (unpublished manuscript)

56. Black, William. "The Search for Reasonable Limits: Is Oakes 31 Retired?" (1990-1991) 2 Const. F. 78

236

24 TAB CASES Para. in

Memorandum 57. Devinat, Mathieu. "The Trouble with Henry: Legal Methodology and 45

Precedents in Canadian Law", (2006), 32 Queen's LJ. 278

58. Duxbury, Neil. The Nature and Authority of Precedent (Cambridge: 43 Cambridge University Press, 2008)

59. L'Heureux-Dube, The Honourable Madame Justice Claire. "By 43 Reason of Authority or By Authority of Reason", (1993) 27 U.B.C. L. Rev. 1

60. Peltomaa, Arthur. "Obiter Dictum of the Supreme Court of Canada: 44 Does It Bind Lower Courts?", (1982) 60 Can Bar Rev. 823

61. Pinard, Danielle. "Evidentiary Principles with respect to Judicial 43,55 review of Constitutionality: A Risk Management Perspective", in Law Commission of Canada ed., Law and Risk (UBC Press, 2005)

62. Waddams, Stephen. "Review Article: Authority, Precedent and 43 Principle" (2009) 59 Univ. of Toronto L.J. 127

63. Williams, Glanville Learning the Law (9th ed.) (London: Stevens, 50,51 1973)