# TRU/Law3020/GroupE/McKinneyVUniversityofGuelph

< TRU‎ | Law3020‎ | GroupE

# McKinney v. University of Guelph, [1990] 3 SCR 229

## Summary of Case

McKinney v. University of Guelph upheld provisions requiring mandatory retirement at the age of 65 at the University of Guelph. This was a leading case on age discrimination in Canada.

The appellants, eight professors and a librarian at the University of Guelph, sought a declaration that the university’s policy of mandatory retirement at age 65 was discriminatory. The case was appealed to the Supreme Court of Canada where the Majority held that universities are private parties to which the Canadian Charter of Rights and Freedoms does not apply, and on those grounds decided that the provision in question was not discriminatory.

However, the court took the opportunity to comment on mandatory retirement.

Had the Charter applied, the Majority found that there would be an infringement of section 15, but that it was justifiable as a reasonable limit under section one of the Charter. The rational connection is that the limit is "intimately tied to the tenure system" and provides for a renewal of faculty, which leads to the influx of new and challenging ideas. A replacement system is necessary because of the limited resources available to the university. It is essential to balance the benefits of the many against the few. When the Charter and the Human Rights Code were first implemented, age 65 was the norm in society for retirement. This was a large contributing factor in application of the rational connection and minimal impairment standard.

While the Majority of the court determined that there was no infringement, both Justices Wilson and L'Heureux-Dube dissented. Justice Wilson reminded the court the purpose of the Charter was to protect dignity, which requires preventing implementation based on stereotypes. She scrutinized mandatory age requirements for enforcing aspects of prejudice and stereotypes. She identified the stereotype of older people as less intellectually competent and capable. Justice L'Heureux-Dubé found that the age of 65 was arbitrary and artificial. There was no evidence that mandatory retirement was the quid pro quo of the tenure system. It is not age but incompetence that is a threat to the tenure system, and the strict age is too restrictive given advances in medicine allowing people to live longer.

### Methodology

The summary above provides the major points from the case. The discussion below identifies the major issues and underlying themes. We have attempted to organize our treatment of these issues as a conversation between the various theorists. We turn to a specific theorist where it most capably explains the features of a particular question.

## Topic 1: Law in the context of the Mandatory Retirement policy Imposed by the University of Guelph

### Sub-Topic 1: What is 'law'? And what makes it valid?

For Thomas Aquinas, the source of a valid law was divine. Other theorists departed from this view, but retained Aquinas' teleologial (ends-focused) perspective on what makes a law good or desirable.

McKinney v University of Guelph deals primarily with university policy that imposes a mandatory retirement age of 65. The first question to ask is whether this policy qualifies as valid ‘law’, and if so, why is it valid.

According to the legal realists Oliver Wendell Holmes and Jerome Frank, the law is whatever judges say it is. As such principles and case law act as merely the justifications for the judicial outcome. In this regard, as the majority decision is that mandatory retirement policy is a valid restriction on an individual’s employment, for that reason alone it is a valid law. The judges felt that this is what the law should be based on their values and experiences, so they selected the principles of academic excellence and the efficiency of the work-force and applied them to the case to achieve their desired outcome.

Ronald Dworkin would agree with the final appearance of the legal realists' decision, as the judicial outcome appears to have been guided by principles; however, Dworkin posits that the decision making process occurs in a different way. Unlike legal realism where the outcome is justified by principles, Dworkin believes the reverse is true and that the outcome has already been decided by underlying principles. There is always a right answer in the law, which is reached by drawing on general principles developed by the law, especially the underlying principles of justice and fairness. Using legal reasoning, much of which is weighing and balancing these principles, the judges reach their outcome. The same approach occurs in situations where the law is in conflict, but the balancing is much harder. In this case, the majority decision weighed the principles of mandatory retirement against Charter values.

According to Thomas Aquinas and the theory of traditional natural law, the law is inherently moral and is channeled to mere humans by means of authorities put in place by God. Aquinian theory postulates that there are four elements of a valid law: (1) the law must be directed to the common good, (2) the law must follow practical reason (reasonable steps leading to the common good), (3) the law must be made by a valid lawmaker (ruler within community, who hold this position by reason of the natural order), and (4) the law must be promulgated. Any directive that fails to meet these conditions is not a valid law.

In regards to the mandatory retirement policy, Aquinas would agree with the realists and Dworkin in considering this to be a valid law. The mandatory retirement policy can be seen as directed towards societal efficiency. Since this goal values structure and efficiency, which is in the common good and in line with utilitarian ideals, it would be strongly supported by Thomas Aquinas as well as economic theorist Ronald Coase, and positivist Jeremy Bentham. Mandatory retirement also focuses on the biological reality of decreased productivity as the body ages. This law parallels the natural law that we become slower and less efficient as time progresses. The legislation is put in place to help individuals know when to retire from the workforce before they become a detriment to society due to their increasing age. Further, as mere subjects, we cannot comprehend the essence of the common good. The authorities in the community are the rulers by reason of the natural order - there are some who are naturally rulers and know what is necessary to lead society towards universal happiness. They set out rules for us to follow to achieve the goal of the common good. In this case, those in the position to know what is best for the university community created the mandatory retirement legislation. Finally, the policy is outlined in the employment contract, and therefore meets the requirement of promulgation. As such, this mandatory retirement directive is a valid law from an Aquinian perspective.

Charlie Chaplin as an extreme embodiment of positivism. According to John Austin, the father of positivism, a valid law is simply a command, issued by superiors to subordinates, and backed by sanctions.

John Austin, as a legal positivist, would agree with Aquinas’s affirmation that the retirement policy is valid law. However, he would come to this conclusion by taking a different road. Unlike Aquinas, Austin believes that law and morality are separate. According to Austin, presuming that law embodies morality will render the law unchallengeable and unworkable. However, because laws have developed through history, through this process they may embody moral principles. In order for a law to be valid law, it must fit the criteria of the “Pedigree Test:” a valid law is a command, issued by superiors to subordinates, and backed by sanctions. All law comes from the legislature, and judges are delegated a small role in the process of creating law. A complication arises in applying the Charter to the mandatory retirement law because it is uncertain as to whether the Charter is valid law. To pass the “Pedigree Test”, the law must be to subordinates, but the Charter purports to apply to everybody, including the sovereign (Parliament). However, restricting the "Pedigree Test" to the scale of the university community, Austin would consider the retirement policy to be valid law. It is a command to stop working at a certain age that has been issued by the superiors of the university (the sovereign) to the subordinate employees. In this case, the command of mandatory retirement, the sanction of no longer holding a job with the university is part of the penalty, and would then allow further sanctions through trespass actions.

Building in the idea of Legal Positivism in a more modern mind-set, the utilitarian theorist Jeremy Bentham would find that this policy is a valid law, but for different reasons. The proper way for Bentham to evaluate the law is to maximize happiness for the greatest number of people. However, the fact that the law should be utilitarian does not mean that the law has moral aspects. Joseph Raz would also come to the conclusion of the retirement policy being valid law through his analysis of law as a service conception. The mandatory retirement age services society by eliminating older and less efficient employees from the workforce while allowing turnover for younger workers to enter the workforce bringing with them efficiency and new ideas.

HLA Hart builds on Austin’s idea of the “Pedigree Test.” While he agrees that law and morality exist as two separate systems, he feels the law needs something more than being made in the right form by the right authority. In order to be valid, law needs to have a sense that people ought to follow them for reasons of psychological and social recognition, not merely as avoidance of punishment. This requirement is rooted in Hart’s “Rule of Recognition” and the idea of the penumbra. In response to the ‘hard cases’ that do not fall within the settled core of meaning, Hart draws on the principles of the rule-governed practice to fill in the gaps and complete the law in accordance with the needs of society.

Here, the mandatory retirement policy satisfies the “Rule of Recognition” as it was created by a competent institution and adopted by the general community as valid. This case falls squarely in the realm of the penumbra. The mandatory retirement policy falls between the Charter guaranteed right against discrimination based on age and the Human Rights Code that limits the operation of that guarantee to between the ages of 18 and 65. The judges are left to draw on the principles of the rule governed practice and to apply their discretion to determine an outcome consistent with that practice. In this case the majority relies on the principles of academic excellence and the economic need for turnover in the workforce to decide that the mandatory retirement policy is valid law.

Ronald Dworkin would provide a different perspective on the interpretation of Hart’s “hard case.” According to Dworkin, even when rules are not decisive to come to an conclusion in a penumbra scenario, it is principles which will provide the answer. It is judicial application of principles, through a process of legal reasoning, which leads to the decision in a “hard case.”

#### Law and morality - a discussion between HLA Hart and Lon Fuller.

As the Charter has overtaken Parliament in terms of jurisprudential primacy, is there an argument that the Charter itself is actually a 'sovereign' in terms of how positivists use the word?

Lon Fuller has four main critiques of the Separation thesis. First, he rejects Hart’s Rule of Recognition in that social acceptance of legal rules ultimately comes from an external morality, rather than the recognition that the rule ‘ought’ to be followed. Second, he argues for an intrinsic, internal morality of law that deeply informs the legal system to produce order. Third, he claims that Positivists fails to adequately explain the distinction between an individual’s obligation to obey the law contrasted against their duty to not obey an immoral one. Finally, he rejects the theory of judicial interpretation where cases fall within either a core of settled meaning or the ‘penumbra’ and the role of judges. He argues that legislation is precedent and should be interpreted in context with reference to the purpose of the ‘rule’ and what good it was designed to accomplish. Any ‘hard cases’ arise when the purpose of the law is uncertain. Judicial interpretation with reference to both internal and external morality comes into play to determine this purpose.

To this end, Fuller would disagree with both Hart and the majority decision. In the university community, the recognition of the rule would not satisfy his argument. The recognition did not arise through an external morality, but merely because the individuals felt that it ‘ought’ to be adopted. He would characterize the mandatory retirement policy as discriminatory based on the stereotype of age and incompetence. This characterization would not conform to the production of a system of order informed by an internal morality. According to his theory, by no means could a discriminatory policy be informed by intrinsic morality. In contrast, he would agree with the dissenting arguments written by Wilson and L'Heureux-Dubé fueled by the values of fairness and equality. Justice Wilson's declaration of the protection of dignity by way of preventing implementation of policy based on stereotypes and prejudices would resonate with Fuller's idea of external morality.

### Is the Charter the Sovereign?

However, under Austin's theory, there are two possible ways to view the constitution. It can be seen as the sovereign because it is above all other authority, it contains written commands to subordinates, and it has penalties, which hurt those who don’t comply by making their attempt to achieve their goal void. It is also possible not to view the Charter as a sovereign because the Charter, despite its claim as the ultimate law in Canada, can be amended by the Parliament and the Legislatures, which renders it not the peak of authority and therefore not the sovereign. However, it is possible to argue that the amending formula is so tough that it is practically impossible to meet. It creates the same illusion as a communist election, where it is technically possible for the leader to lose, but there is no realistic chance that this will actually happen.

## Topic 2: The Moral Aspects of Mandatory Retirement

Legal realists such as Oliver Wendell Holmes and Jerome Frank believed that the law and morality are separate and it that it was for judges to decide what is socially advantageous and what is good public policy. Holmes asserted that facts would incline a court to rule one way or another. However, Frank is skeptical of this and says that judges may decide similar cases differently, as the facts will have persuasive power. This is clearly evident in the discussion the objectives of mandatory retirement, and the drastically different characterizations of the majority versus the dissent. These different characterizations of the objectives lead to different conclusions in relation to the validity of the policy.

The Majority justifies the regulation on the grounds that the objectives of excellence in higher education, preservation of academic freedom, permitting flexibility in resource application, minimizing destructive modes of performance are all of such importance that it warrants overriding the rights of the employees. The Dissent expresses strong moral arguments that mandatory retirement provisions enforce stereotypes, and that the objectives identified by majority are not as correlative as they would indicate, as age is not a threat for tenure, and academic freedom is not compromised. Since according to Fuller, an accurate interpretation of the law is a reflection of the law's purpose, he would agree with Holmes and Frank that how the judges interpret the purpose of the law has a significant outcome on the decision.

Frank states that the reasoning of the judiciary is heavily informed by what individual judges want as a final outcome. A simple example of this type of reasoning is a pair of friends deciding between various fruits as a snack. One friend says "I only want to eat a red fruit" while the decision is being made, thus limiting the possible decision to the one he consciously or unconsciously wants. (An apple, in case that was unclear).

According to Frank, the decision of the judiciary is what determines their reasoning. This aspect can be seen best in Justice Wilson's decision, where the facts inspired what the decision should be, and then drove her towards that end. Holmes would agree that this is a clear example of the law being whatever a judge says it is. Judges may decide a case differently depending on their personal characteristics and perceptions of the case. With Justice Wilson's judgment, it is clear that she thinks this discrimination is wrong and she did everything she could to work her analysis toward demonstrating that end.

The positivist John Austin would disagree with the judiciary playing such a role in interpreting the law. For Austin, any law that does not correlate with the Charter would be void. In this case, as the mandatory retirement provision violates the section 15 right to have protection from discrimination based on age, he would have struck down the law (setting aside the issue of whether the Charter applies to universities). Austin asserts that judges are formulaic and mechanical; they should apply rules to facts, and nothing more. The legal realists clearly disagree with this conception, and criticize the lack of flexibility.

Thomas Aquinas would categorize mandatory retirement as mala prohibita because there is nothing inherently immoral in working past the age of 65. The only reason it is wrong is because the university has deemed it to be so. However, based on the finding of fact that people get slower after the age of 60, this could be considered a natural law based on a biological reality, which is then paralleled by human laws as well. This would be a point that comes from the laws of nature as opposed to divine laws.

Human nature is argued to naturally incline one to the common good. In order to meet the goal of academic excellence, there must be a mix of new and old scholars. Therefore, part of meeting the common good is forcing people to retire in order to create the appropriate balance of representation of old and new. The tenure system is the law creating the steps that lead to common good, and the final stage of the tenure system is mandatory retirement.

For John Stuart Mill, however, there should never be such a thing as a law concerning mandatory retirement because there is an interference with the individual's liberty when there is no harm to others. With adequate evidence, it could be argued that if this individual liberty ultimately reduces academic excellence it could be identified as a harm to society. However, the more likely characterization of such a scenario is as a benefit which has yet to be conferred and may not even exist. Yet even for Mill such a finding would not be decisive because liberty is not the only value that is to be considered. This case strongly illustrates the balance of liberty of the individual against the community benefits of academic excellence free from controls and scrutiny. The majority felt that the balance tilted more in favour of group benefits whereas the minority felt that the autonomy of the individual was more important. Bentham's utilitarian ideals support the majority position on this issue, which is a strong contrast to Mill. Mill would likely feel that the balance has not been properly achieved here because the detriment that is taken on the by the individual is much more serious than the benefits gained by the slight increase in academic excellence.

## Topic 3: What Moral Issues are Raised by Mandatory Retirement in Terms of Underlying Assumptions Regarding Age?

How did the Supreme Court's allowance for mandatory retirement reinforce stereotypes regarding older Canadians?

For Lon Fuller, a modern naturalist, laws are always interpreted in context and with reference to the purpose of the “rules” and what they were set out to accomplish. If Fuller had the knowledge of the culture in which the mandatory age provision was established, and also what led to the exclusion of those over age 65 from protection under the Human Rights Code, he would agree that these provisions are justified.

The exclusion of those over age 65 from protection under the Human Rights Code was meant to serve a purpose of balancing between the benefits available for those over 65, and due to these additional advantages they did not need the same rights afforded to them. Retirement at age 65 was common, and considered a norm of society.

However, this justification of creating balance is now obsolete, as society has changed and age is no longer an accurate indicator of a person’s ability to intellectually function. The moral judgments that are made by the imposition of a mandatory retirement regime include the implication that older people are somehow less valuable in an employment context. This judgment regarding comparative worth is problematic because it bases an evaluative distinction on something which is not an indicator of actual capability. It is artificial and arbitrary.

Bentham’s approach would consider the social utility of the University regulation requiring retirement at the age of 65. Specifically, Bentham would consider how the law creates the greatest good for the greatest number of people – perhaps pointing to some of the reasons cited in the teleological analysis such as allowing for turnover of personnel within an organization. Bentham would perceive this feature of the law as a desirable outcome, which benefitted the greatest number of people in society. He would therefore view this aspect of the law as desirable. Such an interpretation would depend largely on his subjective evaluation of the effect of the law itself. For instance, the concept of the "greatest good for the greatest number of people" is quite subjective and difficult to objectively determine. Consider the fact that the University of Guelph's regulation regarding mandatory retirement would result in a rather negative outcome for the retirees who do not want to retire at age 65 and possess the capacity to continue working well beyond this age. This pragmatic consideration is not dealt with in the materials we studied, but is not central to a basic understanding of Bentham's approach to positivism. In summary, Bentham was extremely critical of natural law theory, and believed that there were valid and invalid laws. His assessment of the mandatory retirement age law in this case would be dependent on his evaluation of the law in utilitarian terms - an evaluation with a rather unclear outcome.

Raz's approach to the law in this case would be to consider the law from service-based perspective. Raz builds on the utilitarian approach to state that a law is only valid if it provides a service to people by allowing them to act in a way that benefits them or the society. Raz' evaluation of a mandatory retirement age regulation would be dependent on how he valued the competing benefits of the law, but he would hold that the valid position was one which effected the best outcome in terms of this service-based approach.

Both of these perspectives contrast sharply with Aquinas' Natural Law perspective, which characterizes law as flowing from a divine source. Both Bentham and Raz do not believe law is from such a source, and criticize laws that do not create a positive end state for the greatest number of individuals.

Utilitarian theory holds that the most desirable outcomes should be sought out in society. These outcomes are ones that maximize the greatest collective good. The limitation on freedom from discrimination on the basis of age in this case would therefore be justifiable because it satisfies the idea of maximizing the collective benefit. The coercion to stop working is for the collective benefit of the society in allowing maximum participation by younger employees in the workforce. Of course, a utilitarian perspective would also look at the non-utility maximization of the arrangement in terms of forcing very knowledgeable individuals to retire, against their will. A younger individual without experience does not easily replace an accomplished professor with forty years of academic practice. These effects on the conception of the common good would be identified through the application of a utilitarian perspective.

## Topic 4: Does Mandatory Retirement Compromise Social or Individual Choice?

### Liberalism / Paternalism

From a paternalistic perspective, law lets us ride in the sidecar, but always drives.

According to paternalism, the law is justified in restricting individual liberty in certain situations. Paternalists would maintain that the law (as it has developed) knows best. Paternalism, unlike economic theory, would say that human beings behave irrationally. The theory states that people require assistance in making the correct decisions, and legislation is thus created to assist people in making the transition out of the organization. In this case, paternalists would say that the legislators know what is best, and the policy should be upheld.

Paternalism contrasts sharply with liberalism, as liberal theory postulates the perspective that individuals should have the capacity to make their own individual choices. Neo-liberalism would argue that the state should leave individuals alone entirely to make their own decisions regarding an appropriate age at which to retire. A less extreme position would likely consider the fact that individuals are both individual and social. That is, they belong to a larger society in which their individuality must be subordinated to the majority’s wellbeing. This qualified manifestation of liberal ideals is how society is contemporarily structured. As an example, a person may really enjoy expensive automobiles, but their preference for them does not give them the right to take them freely from their neighbours. In this way, individual rights and preferences are limited. This idea applies similarly to the argument as it was structured in McKinney, where individual rights are subordinated to the idea of creating a social good.

According to Mill, the only legitimate justification of infringing individual liberty is to prevent serious harm to others. Paternalistic laws were also allowed so long as they applied only to people of such limited mental capacity that they were not capable on their own of preventing their actions from harming others or themselves. In this case, Mill would look at what harm is being prevented by imposing mandatory retirement. This imposition is especially important because the group subject to this law is academics at the end of their careers, which is the exact opposite of the non age exception. The majority decision justified mandatory retirement by stating that it supported academic freedom, staff renewal, and access to knowledge. It prevents the university from becoming stagnant in the closed tenurial system, and encourages contribution from newcomers.

However, Mill also warned to beware of the tyranny of the majority. Mill would consider the mandatory retirement legislation as imposing too far on the rights of individuals, and that the provision is an example of the exercise of tyranny.

## Topic 5: Does Mandatory Retirement Creatively Circumvent Human Rights Legislation?

Ronald Dworkin was a respected modern legal scholar. He argued for a moral interpretation of the law and was active in arguing for fundamental human rights. Sadly, he passed away during this semester.

### Law as a System of Rights (Dworkin)

The positivist would argue that where the judges are assessing the weights to be given to each of these principles, that is the judges exercising their discretion and there really is no settled answer because judges come to different weights for the same principles. Realists would argue that the judge giving a different weight to a different principle is the judge using his own values to bend the legal principles to reach the decision that he wanted to reach in the end. Aquinas would argue that the weighing of the principles is the example of the natural tendency of the judge to want to act in the common good and the decision that they reach will help set people follow the proper path.

Dworkin believes that principles come from the norms of the past that have developed over time. Certain principles of our system became so accepted that they were placed in Canadian Charter of Rights and Freedoms. These values have continued to be expanded upon in cases that came after the Charter was implemented because the law is integral and functions as a chain novel. This case is a good example of a principle in its transitional stages. As can be seen in the chart under topic 8, the today's society has essentially reversed the majority judgment. However, at the time of this case the majority found that while equality and prevention of stereotyping were important principles, the disturbances caused by implementing them into the existing system meant they did not outweigh the benefits of academic excellence and freedom (and the others mentioned under topic 2). The dissenting opinions of Wilson and L'Heureux-Dubé felt that the principles of equality and fairness were of such a weight that they did outweigh their disturbances and the benefits from the existing system. Therefore, this case can be seen as a transitional point where a developing principle had not quite reached the level of acceptance necessary to establish it as a new principle. The next chapter in the law chain novel is forming.

## Topic 6: Who is Actually Protected by Human Rights Legislation?  Why?

### Economic Theory / Feminist Theory

Economic theory would explain the infringement of s. 15 equality rights as a societal choice or value that allows a university to make a mandatory retirement restriction that allows for a wealth-maximizing option - efficiency in terms of turnover within the organization. Transaction costs associated with non-mandatory retirement, such as infighting between employees, uncertainty, and the stagnation of fresh ideas, are avoided through a rigid application of a mandatory retirement policy.

This situation is clearly not a win-win for all involved, and certainly moral-legal theorists would have something to say about the marginalization of older individuals for the benefit of younger individuals. However, there are a number of positive arguments for a win-lose arrangement. Individuals in this case are forced to retire, and they are fully compensated - but does this have an effect on their dignity? Additionally, an economic theorist would likely discuss the fact that a pension financially compensates and incentivizes mandatory retirement at the age of 65.

How did McKinney v. University of Guelph arrive at a decision where one age group was deemed to be more deserving of protection under the Charter?

An illustration of pareto superiority, inferiority, and optimality is helpful in order to understand the circumstances relating to the various outcomes of the mandatory retirement provisions. This concept regards the economics of decision-making. For example, a group of individuals wants to make juice on Saturday. The group has a choice between everyone receiving an apple or each receiving an orange. No one in the group has any preference as to what type of juice they make on Saturday so they decide everyone will receive apples. If just one member of the group prefers apples to oranges, the choice of everyone receiving apples is pareto superior to the choice of everyone receiving oranges vice the pareto inferior opposite. Pareto optimality is the solution that has no other outcome that is pareto superior to it.

In the McKinney case, from an economic perspective, the final outcome of the university upholding mandatory retirement could be said to be a rational choice, as it upholds maximizing efficiency and therefore wealth for the entire society. Of course, a number of theories would refute this belief in economic rationality, most notably feminism, legal morality, and utilitarianism. Feminist theory would question the conception of rationality and efficiency as essentially male characteristics which uphold the functioning of the patriarchy. Legal moralists such as Dworkin would question the moral effects of the law - understanding the law both subjectively and objectively as a system, which affects and is affected by morality. Utilitarianism would disagree with the economists by focusing not on the wealth maximization created by the law, but on the maximization of good by the greatest number of people in society.

Interestingly in contrast, human rights legislation allows for age discrimination outside of the ages of 18 to 65. Why is this the optimal balance for Canadian society? This points to the comparative validity of a partially economic, functionalist perspective. When an individual is younger they are taken care of by their family. When an individual is older, the contemporary idea is that an individual is taken care of by their pension - thus permitting the maximization of social wealth. Economic theory would hold that society makes the determination that enactment of mandatory retirement law is the best way to achieve this end.

The dissenting idea of performance evaluation is the epitome of economic theory because people are being evaluated on how well they are doing at their job. It seeks to remove the inefficiencies of people who are not as good at what they do and therefore increase transaction costs. There would be an increased transaction cost, but it would be internalized and much more obvious than it is without an evaluation system because with a mandatory retirement system there is no evidence about who is performing optimally.Regulation is clearly used as a methodology to achieve what is characterized by policymakers as the optimal scenario - an appropriate balance of the young and new. Believing that a policy requiring mandatory retirement is the most efficient way of doing so, the mandatory retirement policy was enacted as a rational response.

People are rational actors who behave in their own self-interest. The idea that enactment of a mandatory retirement law aims to prevent is individuals working until they died, preventing turnover within organizations altogether, so they regulate to prevent this.

From an economic perspective, the externalities are numerous as the result of a mandatory retirement provision: young people are permitted a more rapid entry and advancement within the workforce, experience is lost from the organization (via the retirees) and the pension system (and by extension the economy) is strained. In addition to these societal externalities, there are also externalities experienced at the micro or personal level. These include: changes to personal relationships, loss of identity, loss of purpose or effects on self-worth, and financial difficulty. These individual factors are identified by feminist theory as a real and important consideration, which informs analysis. Apart from these individual factors, feminist theory would be outright critical of a blanket characterization of older people as “past their prime” or “in decline.” Feminist theory points to the need for understanding individuals as individuals, and avoiding any attempt to generalize the experience of a group of individuals as a lens with which to judge the experience of all.

Justice Christopher Salmon Patterson served on the Supreme Court of Canada in the late 19th century. Unfortunately, he was characteristic of most of the Justices on the SCC until 1982, in terms of being an older, white man. 1982 saw Canada's first woman, Justice Bertha Wilson appointed to the SCC. Feminist legal theory argues that patriarchal structures affect minorities and women in negative ways, and that this impact continues today throughout our justice systems. Was Justice Patterson actually Santa? We can never know.

Mandatory retirement imposes a socially defined construct on the employees subjected to it. It is based on the assumption that all employees do not contribute to the workforce equally because of their age. While there some physical characteristics that do diminish with age, increased age usually comes with increased experience, which compensates for diminished characteristics. Mandatory retirement also assumes that it is good for all who are retiring. Feminist theory acknowledges that these assumptions are wrong and rejects them. Just as feminist theory rejects universal explanations of how society works, it also rejects universal theories of what is good for everybody. Feminists believe that it is necessary to focus on particularity and diversity within the group. Feminists would therefore be much more supportive of the evaluation standard rejected by the majority than a base age which is supposed to serve as a proxy for ability.

By saying that it is for the greater good of society to have mandatory retirement, the ruling majority is justifying mandatory retirement by imposing its values on other members of society. Ultimately, they are devaluing individuals for the sake of the economy. The majority makes powerful, sweeping statements of older individual’s value to society and what they can contribute based on age alone. Third wave feminism would look past the simple literal interpretation of the law to determine how such laws uphold and empower patriarchal power structures and laws. As the Charter does not apply to the university as a non-governmental organization, the university is free to make their own patriarchal system. The Charter and social constructs that apply to everyone else are patriarchal in itself.

The legislation of the university was most likely written by men. These rules then instigated the development of a mini-patriarchal structure covering the university. It was likely at the time the decision was made, that the majority of tenured positions at the point of mandatory retirement were men - this could be considered good from a feminist perspective because the outcome is that tenured men are losing jobs and ideally women will replace them until the proper 50/50 balance has been achieved. It may permit women and other minorities a more realistic mode of access into the organization.

Classical Feminist theory would refute mandatory retirement provisions because it disavows anything that blocks access to equality. Despite the fact that men mostly hold the positions and ideally will be replaced by women, mandatory retirement is still a bar to equality because it restricts one person’s rights for the benefit of another and eventually this will have just as big of an impact on women as it does on men. Just as when women entered the workforce, and as they still face today, stereotypes are the source of most bars to equality and that is what occurs here as well. Older people are stereotyped as being less useful, intelligent, and efficient than younger people and they are penalized for it.

Ageism is a parallel to stereotypes regarding gender. Women were kept out of the workforce for a long period of time based on a biological distinction, which had very little to do with their ability to perform their jobs. Although the biological distinction is different, the same logic is being applied to force older employees out of their jobs. It is not justifiable to exclude women on this logic, so it cannot be acceptable to exclude older employees on this basis.

Mackinnon's perspective would likely be very much the same as L'Heureux Dube’s and Wilson’s when it comes to the Human Rights Code. She championed the idea of women’s need to vocalize legal injustice in many of her judgments. That is what the Human Rights Codes are supposed to do, but people 65 and over and 7 and younger are purposely excluded from these codes. Since the dissenting opinions felt that this legislation is flawed, they struck down the flawed aspects. This would be very much supported by radical feminists because it is attempting to go to the heart of the problem and remove it. it cannot be rebuilt, but must be made again. While they did not do the most radical thing, namely striking down the legislation as a whole, this would undoubtedly be seen as a step in the right direction.

## Topic 7: When Taken Together, does the Body of Law Effect a ‘Good’ or Desirable Outcome (The Mandatory Retirement Provisions, The Human Rights Legislation, The Charter)

Natural law, utilitarianism, and economic theorists would all generally agree that the mandatory retirement provision has led to a good and desirable outcome, and therefore the majority decision was correct.

According to natural law theorists such as Thomas Aquinas, the law is teleological and will take us towards the common good. The law is set out by authorities for individuals to guide towards this end, and this in turn makes the law valid. The major issue in this case is whether the mandatory retirement of age 65 set by the university infringes section 15 of the Charter. Both the university and the majority justify the policy by its contribution to social benefits through job turnover, academic freedom, and idea sharing.

In evaluating whether the policy was valid, the court balanced the benefit of society against the detriments of the small aging group. The court found that the mandatory age of retirement was justified. This suggests that it meets the purpose of the common good. Aquinas would agree with this conclusion. The law has been set out in order to provide the steps for individuals to follow in order to achieve common good. In this case, the law has set out that mandatory retirement is the method in which society will benefit most. In this vein of reasoning, feminist theory would draw attention to the psychological and sociological pressures which cause people to be forced into decisions through implicitly or explicitly stated expectations regarding age and mandatory retirement. Feminist theory would consider how, for instance, an individual comes to internalize the expectations regarding age and retirement, and how these individuals come to be characterized as having less worth to the society in terms of their ability to contribute to the organization and generally to society as a whole. Feminists would also draw attention to the power structures inherent in this law. Within the university context, academics, rational thinkers and largely white/European males are given the power to define the laws and determine their application. The implication is that these paternalistic power structures and the individuals placed into the positions of decision-makers ‘know best.’ Any attention to the experience of individuals or minority cultural groups swept away by the adherence to the law created by the patriarchal power structures. An example would be Aboriginal studies departments. In the Aboriginal culture, elders are revered and their experience and knowledge is held in the highest regard for social learning. A mandatory retirement law ignores this cultural difference, and subordinates it to the will of the powerful majority.

Although concepts of 'goodness' and 'desirability' sound attractive, how do these concepts appear when we consider different cultural perspectives (from a postmodern, deconstructivist standpoint)? As an example, would many Aboriginal cultures disagree with the marginalization and forced retirement of elders within their communities?

Economic theorists would side with Aquinas in agreement that the majority decision was correct. As the law is maximizing social wealth, in this case through employment and academic excellence, the mandatory retirement provision is beneficial. This is similar to the perspective held by utilitarian theorists, such as Jeremy Bentham. For Bentham, it is not a question or whether the law aligns with morality but rather, whether it is maximizing utility. A law is a good law if it makes more people better off than causes detriment. The majority court in McKinney understood that there were detriments associated with imposing mandatory retirement, such as causing emotional distress for those who do not want to retire, and encouraging discrimination based on an arbitrary distinction of age. However, the benefits of enabling universities to achieve excellence by allowing faculty renewal, and preserving academic freedom were found to outweigh the detriments. If mandatory retirement were not imposed, the amount of job openings would greatly diminish, thus depriving the younger generations of potential employees from having an opportunity to gain employment and contribute to society. In addition, the court pointed out that mandatory retirement is also associated with other benefits such as the ability to plan for retirement and do so with dignity. Bentham’s approach would consider the social utility of the University regulation requiring retirement at the age of 65. Specifically, Bentham would consider how the law creates the greatest good for the greatest number of people – perhaps pointing to some of the reasons cited in the teleological analysis such as allowing for turnover of personnel within an organization. Bentham would perceive this feature of the law as a desirable outcome, which benefitted the greatest number of people in society. He would therefore view this aspect of the law as desirable. Such an interpretation would depend largely on his subjective evaluation of the effect of the law itself. For instance, the concept of the "greatest good for the greatest number of people" is quite subjective and difficult to objectively determine. Consider the fact that the University of Guelph's regulation regarding mandatory retirement would result in a rather negative outcome for the retirees who do not want to retire at age 65 and possess the capacity to continue working well beyond this age. This pragmatic consideration is not dealt with in the materials we studied, but is not central to a basic understanding of Bentham's approach to positivism. In summary, Bentham was extremely critical of natural law theory, and believed that there were valid and invalid laws. His assessment of the mandatory retirement age law in this case would be dependent on his evaluation of the law in utilitarian terms - an evaluation with a rather unclear outcome.

Raz' approach to the law in this case would be to consider the law from service-based perspective. Raz builds on the utilitarian approach to state that a law is only valid if it provides a service to people by allowing them to act in a way that benefits them or the society. Raz' evaluation of a mandatory retirement age regulation would be dependent on how he valued the competing benefits of the law, but he would hold that the valid position was one which effected the best outcome in terms of this service-based approach.

Both of these perspectives contrast sharply with Aquinas' Natural Law perspective, which characterizes law as flowing from a divine source. Both Bentham and Raz do not believe law is from such a source, and criticize laws that do not lead to a positive end state for the greatest number of individuals.

Naturalist, utilitarian, and economic theorists would all agree with the court’s outcome. After weighing the advantages against the disadvantages, the retirement policy was found to benefit more, provide more social wealth, and lead towards the common good.

## Topic 8: Recent Canadian Developments - Theoretical Perspectives

Canadian provinces, with the exception of New Brunswick, discontinued laws allowing employers to mandatorily retire employees at the age of 65 in 2009. This points to the contentious nature of these laws. There is a possible demographic argument for why Canada has experienced these changes in the law surrounding mandatory retirement. Between 2001 and 2006, the number of Canadians aged 55 to 64 jumped by 28% (CBC). This population bubble represents people born in the 1950s - commonly referred to as the “baby boom” following World War II.

These recent developments in mandatory retirement law refute natural law theory. When one considers the idea of the law as being the expression of ‘divine’ manifestations of the ‘good,’ rapid changes in the nature of the law indicates that these laws are not ultimate, and bend to the conditions and needs of contemporary society. Aquinas might say that this simply indicates that they are not “true” law, but the applicability of the themes is apparent here, and similar examples can be found throughout Canadian legal history.

The evolution of the social consensus on mandatory retirement is interesting as an illuminatory point informed by a number of theoretical perspectives. Considering the evolution of society and retirement age, we can see the fact that since the decision in McKinney, society has been slowly moving toward less acceptance for mandatory retirement, culminating in legislation expressly illegalizing mandatory retirement provisions in a number of provinces and a federal act which disallowed mandatory retirement for federal employees.

#### Current Regional Retirement Laws (CBC: 2013)

Province or Territory Retirement rules
Nunavut No mandatory retirement age.
Northwest Territories No mandatory retirement age.
Yukon No mandatory retirement age.
British Columbia Law to eliminate mandatory retirement took effect Jan. 1, 2008.
Alberta No mandatory retirement age.
Saskatchewan Law to eliminate mandatory retirement took effect November 2007.
Manitoba No mandatory retirement age.
Ontario Law to eliminate mandatory retirement took effect Dec. 12, 2006.
Quebec
No mandatory retirement age.
New Brunswick No mandatory retirement, but companies allowed to enforce it under "the terms or conditions of any … retirement or pension plan."
Nova Scotia Law to eliminate mandatory retirement took effect July 1, 2009.
Prince Edward Island  No mandatory retirement age.
Newfoundland and Labrador Law to eliminate mandatory retirement took effect May 26, 2007.

Legal realists would not be surprised that in the time since McKinney was first decided the law regarding mandatory retirement has evolved. These theorists would have accurately predicted that as society evolves, so would the law. The demographic shift that is taking place has had a substantial impact on mandatory retirement law in Canada. The percentage of Canadians aged 55 to 64 rose by 28 per cent between 2001 and 2006.[1] This shift necessitated changes in the law - it is difficult to lose three million workers in the course of a nine-year period.

“Canadian workers don’t come with ‘best before’ dates stamped on their foreheads,” said Mr. David Langtry, Acting Chief Commissioner of the Canadian Human Rights Commission. “These amendments protect the important principle that age discrimination is prohibited under the Canadian Human Rights Act and that retirement is a personal decision.” [2]

Legal realists such as Holmes and Frank would acknowledge that the changes in society regarding ideas of age and retirement should then be reflected in the law. As the law is not settled it must change with society.

For legal realists, judges are not mechanical vessels, who merely apply the law. Rather, they are influenced by the world around them as well as their own thoughts, beliefs, and feelings. The culture in which the judiciary surrounds themselves shapes the reasoning used, and greatly influences the conclusions.
With this in mind, Holmes and Frank attest that the judiciary needs to acknowledge its role in the process of creating law, and use their power in the best interest of society. As situations come forward that allow judicial interpretation, the law will be modified.

### Are Judges Fulfilling Their Role Properly?

Legal realists don't believe the idea that judges are law robots, merely applying law; although that would be awesome.

From the realist perspective the judges properly fulfilled their function because they come to a conclusion, in and of itself. There is no 'right' or 'wrong' answer because the result is justified by their personal experiences. Jerome Frank argues that the best judges seek to achieve justice by using their discretion. This application of discretion is illustrated in both the majority and dissenting judgments. The majority found that justice was best served by upholding the mandatory retirement policy because it was bargained for by the teachers and it gives benefits to society. The dissenting opinions found that justice was better served through the protection of individual rights. The difference in these opinions was created from the judges' differing values and personal experiences, so there was no err in law in this case from the realist perspective because each judge followed the proper realist approach.

For a natural law theorist, the concept of seeking to do justice is also the function of the judge. The judge is to use his or her discretion in order to come to the most just decision possible, which is done by applying the law both in its words and its spirit. For realist judges, there is no spirit to contend with because written law and precedent just support their decision, rather than form the basis of it. As for a natural law judge, he or she must apply all the man made law, unless it is contrary to the public good to do so.

Positivist and teleological legal perspectives would approach the validity of the mandatory retirement provisions from different perspectives, but would likely arrive at the same result in terms of the laws validity. Austins positivism, which characterizes law as an empirically provable social fact, would conclude that this law is valid because it is comprised of a command of the sovereign backed by a threat of punishment. In Hart’s view, the secondary rules govern how the primary rules are enforced. So in this case, the punishment was more a regulatory outcome. In an extreme sense, an individual who refused to comply with the mandatory retirement provisions would simply have had their pay discontinued, and the locks to their office changed. By taking an expansive view of the term ‘punishment,’ we can see how mandatory retirement provisions meet this definition. HLA Hart agreed with this characterization of a sovereign’s command backed by sanction as the definitional feature of a valid law.

According to Hart, when the case falls within the settled core, the judge’s role is to simply apply the law. When the case falls in the penumbra outside the settled core, the judge will draw on the principles of the rule-governed practice to reach a decision. The Realists would reject this view because the law never has a settled meaning because every judge interpreting it would have a different opinion about it. Here, there was no ambiguity in the law itself. Unanimously, the court agreed that the mandatory retirement policy constituted a violation of Charter rights in that it forced individuals out of employment. The penumbra only came into play when the judges applies a Section 1 analysis because they had to consider whether the law of mandatory retirement was reasonably and demonstrably justifiable. Those words do not have a settled meaning and therefore fell within the penumbra and required interpretation. By using their discretion, the judges did decide the case properly from a positivist perspective.

According to Dworkin, judges are there to given meaning to the law by applying it through principles and legal reasoning, which ultimately leads to the right answer. Dworkin would find that the judges in this case took the correct approach. However, since the main principles that underlie the judicial system are justice and fairness, it seems likely he would disagree with the majority decision, because of the discrimination involved in this case. It is never fair to discriminate, although it could possibly be just. This does not mean that the majority applied the wrong approach to the law; they just did not weigh the principles correctly.

Fuller provides a different perspective. In his opinion, a judge’s role is to make the law as it ought to be. He would be very happy with Justice Wilson’s judgment because it tries very hard to make the law as it ought to be. While the realists would say that she reached her conclusion that this law was discriminatory and should be struck down, and then brought in the reasons to justify this, Fuller would see her judgment as an attempt to make the law better by pushing the definition of what constitutes government very far. She took three pieces of previous tests and put them together to form a new test, thus causing the law to evolve in a way that allows it broader coverage. Dworkin would also approve of this approach because it is using the integrity of the law to further develop the law and give meaning to the Charter. It therefore seems that Fuller would fell that Justice Wilson did more to make the law as it ought to be and he would prefer her judgment.

According to Mill, judges should not have been involved the case because an individual is presumed to be the best judge for himself. Because of this presumption, each person should be entitled to continue working as long as she feels able. The employer would receive a benefit, so this could not be conceived of as harm. Finding his basis in the harm principle, Mill believes that the prevention of the harm to others is the only justification for curtailing individual liberty. It follows that he would find restricting the continued employment of an elderly person so that a younger person can be employed would be unjustified. Such action would cause more harm than it prevents since it requires a direct interference with somebody’s liberty in order to give another person the benefits the original person had already worked hard to obtain. As such, Mill would be more akin to the reasoning behind the dissenting judgement.

Feminist theorists would be supportive of the judicial system as a whole because it allows all the perspectives of the judges to be expressed with a majority and a dissent. It also gives the opportunity for each judge to provide their opinion with equal weight, as each judge’s opinion is worth as much as another’s on the same court and the position with the most support wins.

File:Stéréotypes Français.jpg
Critical race theorists assert that racial stereotypes, similar to this cultural one, dictate how individuals are treated by the law. They must be acknowledged in order to be stamped out.

Feminists assert that stereotypes create a bar to equality, and these bars should be removed. Due to the use of stereotypes in the creation and application of the law, feminist theorist would favour the dissenting opinions as opposed to the majority. L'Heureux-Dubé’s dissenting judgment expresses that the law is based on inappropriate age stereotypes, and this is unjustifiable. As forced retirement is an interference with individual autonomy based on the false stereotype, this is a negative aspect and the law should be struck down.

Critical race theorists would have similar feelings to the feminist theorists in regards to the system of law. According to this theory, social constructions and stereotypes of race need to be acknowledged in the legal system before the problems associated with these issues can be addressed. L'Heureux-Dubé recognized the presence of stereotypes and the problems the majority is creating by using them to justify their arguments. Critical race theorists would appreciate the awareness, and posit that once these issues have been recognized, they can begin to be used in the discussion of legal discourse and thus re-shape the law from within. They would thus be happiest with her judgement.

While both feminist and critical race theorists may appreciate that there is the opportunity for different judicial perspectives to be contributed in a court decision, both of these theories would also criticize the role of the judiciary. Both of these theories posit that there is not one single perspective that can apply to everyone, and differences in individuals should be recognized. Therefore, it is impossible for a court ruling to accurately reflect this, as it is the court’s single perspective on what the law should be, and how it is intended to apply to everyone as a whole.

Critical race theorists emphasize the role of lived experience. It is impossible for someone from an outside perspective to completely understand what another person has lived through, as they do not share the same lived experience. Critical race theorists would then apply this to the Supreme Court decision. It is impossible or the judges to understand how those with the mandatory retirement policy are affected, as they are not facing the same situation. While one may argue that the judges are in the perfect position to give their perspective as they also face a mandatory retirement age, critical race theorists would counter that the mandatory retirement age for judges is at age 75, and therefore they cannot understand how those feel being forced to retire at a younger age.

## A Few Jokes so Bad They Should Be Illegal

Q: Why do CLS theorists retire early? ------------------------------------------------------------------------------------------------------------------> A: Because they don't like Dworkin.

Q: Why would feminists dislike keyboards that play music? ---------------------------------------------------------------------------------------------------------------> A: Because they encourage stereotyping.

Q: What do positivism after WWII and the Tin Man have in common? --------------------------------------------------------------------------------------------------------> A: They both needed a Hart.

_____________________________________________________________

REFERENCES