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Group I: Hafiz Karim, Jill Karras, Allie Laurent, and Kara Leduc

GVRD Employees’ Union v Greater Vancouver Regional District 2001 BCCA 435


This wiki will consider and discuss how each of the theoretical perspectives covered in this course applies to, illustrates, and explains the key issues in our case, and the approach that was taken by the court. The objective is to engage these theoretical perspectives with one another. Some of the focus questions being addressed are: Can the court’s reasoning (including any dissenting opinion) be understood as incorporating any features of that week’s theoretical topic and readings? How would a leading theorist discussed in that week’s readings approach the issues considered in the assigned case? And, do you think his/her approach would yield a different outcome than the one reached by the court in that case?

Case Overview: GVRD Employees’ Union v Greater Vancouver Regional District, 2001 BCCA 435

Ray Coutts started his employment with Greater Vancouver Regional District (the “Employer”) as an operator in the wastewater treatment plant. This was a position within the bargaining unit, represented by the Greater Vancouver Regional District Employees. When Coutts commenced his employment he was 65 years old, but the Employer was unaware of this. After the Employer discovered Coutts’ age, he was terminated.  A major concern in this case is that the Employer subjected Mr Coutts to an unwritten policy of mandatory retirement at age 65. However, the Employer did eventually adopt a written policy in August of 1998, confirming its policy of mandatory retirement at 65. The Employer did still permit some employees to continue work after age 65 in certain circumstances, as auxiliary employees without seniority or benefits. It is important to note that the collective agreement between the Employer and the Union did not contain any provisions concerning mandatory retirement.  The issue faced is whether the mandatory retirement policy was prescribed by law within the meaning of s.1? Using the mandatory authority of McKinney, the majority in this case decided all mandatory retirement policies could prima facie be saved under s.1. However the Supreme Court of Canada, in GVRD called for the re-examination of McKinney to reassess whether this policy did violate s.15 of the Charter. In their conclusion the court held that Mr. Coutts s.15 rights were violated by the mandatory retirement policy and that this was not justifiable under s.1. The dissenting judgment on the other hand found that there was a justification for the mandatory retirement policy found within the Human Rights Code, and that McKinney cab be applied to both private and public sectors.

Traditional Natural Law Theory: Law for the Common Good

In his theory of natural law St. Thomas Aquinas (“TA”) presents four elements required for a valid law: (1) that it must be directed to the common good; (2) that it must follow practical reason (reasonable steps leading to the common good); (3) that it must be made by a valid lawmaker (ruler within community, who holds this position by reason of the natural order); and (4) that it must be promulgated.

In applying Thomas Aquinas’s four elements to the decision in GVRD we are assessing the validity of s.15 of the Charter. The majority would have held that the common good of s.15 is directed at equality for all people. That there should be no discrimination, particularly on the basis of something uncontrollable like age or gender. Through the promotion of equality people will be able to exercise their spiritual and intellectual capacities and to sustain themselves in an ordered society without government. The second element is related to this concept that reasonable steps are taken. In this case the majority felt that reasonable steps are actions such as Charter challenges. This is because through these challenges the courts can determine how the common good can be upheld. Though the courts recognize that the Charter only protects relations between individuals and governments, naturalists would understand that Charter protections should apply to a wider scope of society based on the principles of morality.

The third and fourth factors have to do with the fact that the law must be made by a valid law maker and that it must be promulgated. The Charter was drafted by Parliament and as it is an elected representative body, Thomas Aquinas would hold that it is a valid lawmaker. It also has been promulgated because s.15 is written down and available to the public physically in the Charter. The conflicting legislation, the BC Human Rights Code, has also been made by an elected body and has been promulgated.

In examining the BC Human Rights Code and its specific limits of protection only until the age of 65, Naturalists may argue that the common good is achieved because a wide subset of the working population is covered. They may also argue that employers may achieve a common good through the use of a mandatory retirement age because it allows for planning of financial obligations. This type of planning is in line with how Natural Law expects the common good to be reached. The dissenting opinion would also hold that the Human Rights Code takes reasonable steps and is a reasonable way of reaching this common good. On the final two points, Natural Law theorists would come to a similar conclusion as the majority in that the legislation was created by the BC legislature and that it was promulgated in the written BC Human Rights Code.

Thomas Aquinas would likely define the issue in GVRD as ‘whether the mandatory retirement age of 65, in the Human Rights Code violates s.15 Charter rights?’ His focus would be on how these two pieces of legislation work together to achieve the common good. To do this he would have to determine what the common good is, in other words, what would be advantageous to most. In this case, equality seems to be the most obvious common good that Thomas Aquinas would focus on. Next, his task would be to consider how to remedy these two pieces of legislation. Thus, Natural Law would work to find a way in which the common good can be desired in both statutes and therefore upheld.

As the Natural Law theory is focused on establishing laws that will enable society to reach a common good, Thomas Aquinas would likely agree with the majority in this case. This is because he would feel that equality would be a greater good for society then the good that would result from allowing a mandatory retirement age policy. He would not agree that the Charter should only apply between the state and individuals, but instead he would prefer that it also apply to private actors. This is because by extending the rights guaranteed under the Charter a greater proportion of society will be protected. Also, while he would recognize that the aim of the Human Rights Code is to protect individuals and achieve a kind of common good, it is restrictive in its coverage; as it is limited to people ages 19-65 and, is thus not a reasonable action. Thomas Aquinas would disagree with the decision in McKinney because upholding this policy allowed for continued discrimination against older employees. Therefore, in conclusion, Thomas Aquinas would likely agree with the majority in this decision and agree with their decision to not strictly follow McKinney.

It is important to note that because Aquinas holds that laws embody morality that it is very hard to challenge the law. Particularly if that law is made by man because man is acting as a channel for the moral power. Under this theory, TA would not have seen the need for paternalistic laws; morality would have no bias towards gender.

Legal Positivism: Austin and Beyond

Positivism was a reaction to the teleological nature of Natural Law. It holds that moral content is not a necessary element of law, and therefore law is separate from morality. There are four main legal positivists, the founder John Austin, and the modern positivists, Bentham, Hart and Raz. Two natural group divisions have formed between the positivists. This division is directly reflected between the majority and dissenting opinions within the case.

In general, under the separation theory, a law that is immoral can still be upheld regardless of the fact that it is immoral. Therefore, when thinking within the Legal Positivist mind set, a number of issue questions are posed in relation to the issue of morality: is the GVRD policy a policy about mandatory retirement? Is the policy upheld under the Human Rights Code of BC, regardless of the fact that it is prejudiced against elderly people? Whether the mandatory retirement age, within the Human Rights Code of BC, can be saved under s.1 of the Charter?

Hart positivists view laws as human artifacts like a plows or a pitchers. They are not dependent on moral content for their law-ness but on their empirical value. Further, laws are not characterized as “commands”, but instead are categorized into primary rules (rules which tell us what we can and cannot do), and secondary rules (rules by which we can change the rules). Keeping this in mind, Hart would find that the Charter is the primary rule, and that the Human Rights Code is a secondary rule. He would likely hold that you must follow both pieces of legislation, and where there is conflict you would have to abide by what is valid under the primary law.

Bentham in similar fashion believes that law is a man made artifact and as such should be evaluated within the utilitarianism view. Therefore, laws are not created on the basis of morality, but are instead created to foster the common good, that is the greatest good for the greatest number of people . Bentham would argue that the Charter should be followed because as a utilitarian he would find that the Charter would promote the rights of the greatest number of Canadians.

In GVRD, the majority mentions that Australia and New Zealand have abolished the mandatory retirement age. This type of action from the utilitarian perspective conforms with the Positivists view that laws should be challenged, critiqued and changed if needed. As eliminating discrimination would result in greater happiness for the greatest number of people in society, any legislation that can be perceived as discriminatory should not be upheld under the Charter.

Finally, Raz elaborates on the modern Positivists view by adding in a “service conception” of legal authority in which law claims authority. A claim of authority is justified when the authority actually performs a service for its subjects, helping them really act better than they would without the benefit of the authority's intervention. Therefore, Raz would specifically look at the justification behind a mandatory retirement age in determining the outcome of this case. He would agree that the Charter performs a service to the subject. On the other hand, the Human Rights Code, as a piece of legislation, also seems to be performing a service to the government. However without the intervention of the Charter, the Code would result in discrimination in society in employment on the basis of age. Therefore, keeping the claim of authority with the purpose of performing a service in mind, the Charter furthers social and individual good more so than the Human Rights Code and thus provides a better “service” to society.

John Austin on the other hand, believes in the law as a command, and presents three kinds of directives governing humans. The three directives are: God’s Law, Positive Morality, and Positive Law. In GVRD, neither the Charter or the Code is God’s Law. However, this law can still be determined to be a valid law if certain conditions are met. These conditions are that there must be a command issued by superiors to subordinates and backed by sanctions. The dissent would understand that the decision upheld in the McKinney case is an example of a “command” in action that should be followed. This precedent should be followed because it adheres to the legislation (BC Human Rights Code) which comes in the form of a command, from a sovereign to a group of subjects with various sanctions. In regards to the Charter, it is a command, issued by Parliament, however it may lack sanctions because there are no consequences or sanctions on the government if the command is not followed. Instead of a sanction government will amend the legislation thereby changing the “command”. Legal Realists would critique Austin’s view of judges as just being subordinates carrying out the commands of the sovereign, and support the majority’s use of their judicial “hunch” to determine their reasoning in GVRD in order to make a decision for the common interest.

Therefore since the Charter lacks sanctions it is not in fact a law according to Austin, and thus he would agree with the dissent preferring the Human Rights Code because it is a command, it is issued by the provincial government to all subjects, and it is backed by sanctions. In other words, the precedent case of McKinney would stand.

It is worth noting that Bentham would have be in favor of any policy that attempts to create the most happiness for employers, employees, and the labour market in general. In McKinney, LaForest argued that the mandatory retirement policy was advantageous to employers and employees because it created stability. If it could be proven that this created the greatest benefit for the greatest number of people Bentham would have supported this idea, however it would seem that an even greater benefit is achieved without this policy.

For Thomas Aquinas, there is an obligation to abide by the law because the law is moral, and obedience to law is morality. However, for Austin, moral obligation to obey all “valid” law means evaluating law, morality, and lawmakers, striving for congruence with morality, but reminding us that the law itself is the standard of justice. If we we compare the legal positivism to the theory of natural law it can be said that Positivists are not concerned with the purpose/morality of the law but rather that it is a law in form and function. Naturalists, like Thomas Aquinas, are focused on upholding morality as the true purpose of law and thus laws are difficult to challenge. While in contrast, Positivists are not concerned that the law be moral but rather that it be a command, issued by superiors to subordinates and backed by sanctions. However like Natural Law theorists it is possible that legal positivists; like Bentham, Raz and Hart, would also hold that the mandatory retirement age within the BC Human Rights Code is discriminatory and should not be upheld under s.1 of the Charter.

Legal Positivism can also in some ways be understood as the basis for the paternalistic and racial laws that Critical Legal Studies are based on. This is because the Positivist law makers who have the authority to make commands are those in power in society, which in most cases meant older white males. Another example could be the Nazi commanders in Germany who made Nazi laws that were immoral but were upheld because they were commands issued by superiors to subordinates and backed by sanctions.

Hart’s Separation Thesis: Decision Making in the Penumbra

In GVRD, the courts reasoning is an example of the separation thesis in application. The mandatory retirement age provisions established in BC’s Human Rights Code are provisions that are motivated by a desire for economic stability in the job market. This case arose because it was argued that an employment policy that requires mandatory retirement is discriminatory. Keeping the separation thesis in mind, the issue in this case from Hart’s perspective is whether discrimination is an influencing factor in regards to the mandatory retirement age provision? This is the penumbra. It needs to be decided whether discrimination is immoral on its own, or whether equality is a fundamental justice that influences morality?

It is unclear as to whether Hart would agree with the majority. He would disagree in this case, if equality is a moral influencing factor. However, if it could be argued that equality is a principle of fundamental justice, that happens to be influenced by morality, then it is accepted. It’s likely that Hart would agree that equality is a principle of fundamental justice and it would be acceptable, meaning that Hart agrees with the judgement of the majority. As the constitution is based on the principles of fundamental justice. Hart is trying to remedy Austin’s rigid interpretation which would hold the constitution and the Charter non-binding on sovereigns.

Hart advocates that there are fundamental principles of justice, such as equality which may be influenced by morality. This allows for a modern interpretation of Austin’s positivism. This remedies Austin’s view that laws will be valid because they are commands because it holds that they are valid as commands based on fundamental principles. Austin and Hart would agree if the judicial interpretation was influenced by a conception of equality that is influenced by morality.

Even though this case was not argued on s. 7, Hart may also have examined this issue from the view that there was a s. 7 Charter violation. This is because retirement set at age 65 is arbitrary and thus violates a person’s liberty. This is similar to Hart’s view of Morgentaler that the law should not impede on an individual’s liberty. In this case the liberty being infringed is the liberty to work.

Overall, this is a modern attempt to build on the Positivist perspective, that recognizes that there may be a coincidence between morality and laws. In some respects, this theory combines elements of Positivism and Law as Morality as advocated by Austin and Thomas Aquinas. By holding that equality is a principle of fundamental justice that is influenced by morality, law becomes not solely based on morality but rather based on principles that are significantly influenced by morality.

Fuller's Morality of Law

When questioning the Separation Thesis, Fuller presents three main arguments in relation to whether law is connected to morality. Firstly, Fuller believes that the social acceptance of legal rules depends on a grounding in morality. In other words, the focus is on the external morality, or morality as an influencing factor. In relation to GVRD, there is a social acceptance of s. 15 of the Charter due to the fact that it is grounded in the idea that all people are equal and people should not be discriminated against. Having laws that are against discrimination, has meant that situations like Nazi Germany cannot occur in Canada. Further, the social acceptance of the Human Rights Code that allows for age discrimination for those aged 65 years or older is waning and this measure is being seen as arbitrary. The goal of the Human Rights Code, as it stands does promote order, however, as Fuller explains the belief is that the legislation must promote good order, not just simply order. Fuller believes that rules have to have some connection of ideas and understanding with society.

Secondly, Fuller believes that law itself has an inner morality. He argues that the purpose of law is to affect order in society. In order to achieve this purpose and function, the law must have certain characteristics. For example, coherence, rationality, and consistency; further, these requirements should be known by law and capable of explanation. In our case, the issue is that the McKinney case is precedent. However, it is an eleven year old case, it is thus questionable whether this precedent law is coherent, rational and consistent with current demographic requirements and needs of the workplace. Further, as the Human Rights Code allowance for age discrimination is inconsistent with s. 15 of the Charter, this leads to further lack of coherence and results in greater inconsistency. As stated in the case, to prevent arbitrary discrimination, this key policy factor needs to be authorized by law and known by citizens. To do this the policy should be accessible to the public in order for people to have regular conduct and guidance.

That being said, in relation to what Fuller believes, judges and lawyers interpret laws to give effect to inner morality; courts always interpret the law to give effect to the purpose of the law. This view of Fuller is directly linked to the majority’s discussion in the case. There is a problem with consistency in our case, as the McKinney precedent may be viewed as problematic as it is not in line with current social factors of the workplace. Therefore, to be faithful to the law, Fuller means interpreting and applying the law in such a way as to give effect to its inner morality. Again, in line with the majority, in terms of how it is believed that the courts should not use legislative decisions made over a decade ago that have no relation to the current social and legislative facts now available.

Thirdly, Fuller believes that immoral laws cannot actually be explained by the Separation Thesis as the Separation Thesis does not provide an adequate explanation for a general obligation to obey the law. As theHuman Rights Code is immoral as it leads to arbitrary discrimination, according to Fuller there is no explanation for why someone would obey this law. It is clear that this is a truth, as this law is incapable of fulfilling the common good. Further, in relation to the actual company policy on mandatory retirement, as it is unwritten, this is also an example of an immoral policy.

To bolster the above arguments, it is important to note when rules fail to be laws. In terms of the unwritten mandatory retirement policy of the company this lacks understanding and public knowledge and it goes against s. 15 of the Charter. For example, once a person in the company reaches the age of 65, they have to terminate employment with the corporate, but there is an option to fill out an application for auxiliary positions, only if a vacant one is available. Further, the discrimination is being placed on people about the age of 65 or older in the Human Rights Code contradicts the s. 15 equality rights embedded in the Charter. There is an apparent dis-junction between rules, and rules as actually administered.

Hart’s view of the “core” and “penumbra” theory of judicial interpretation would also be criticized by Fuller, since it does not follow the judicial duty to be consistent with its purpose. The reasoning used by the majority in GVRD would follow Fuller’s view of being consistent with the inner and external morality of the law with regards to equality rights as deemed morally acceptable by society and as entrenched in the Charter. The majority was able to come to the conclusion that the GVRD was not able to justify their mandatory retirement age of 65 since it did not match up with the purpose of s.15 and the infringement could not be saved under the proportionality test of s.1 of the Charter.

Overall, Fuller’s reasoning can be applied to GVRD and he would agree with the majority in the case. Here the court goes against the McKinney precedent which states that all public companies do not need to apply a s. 1 justification, because it is automatically this section has not been triggered. However this goes against the current societal values that justify a free and democratic society, which are held as important to Fuller. Fuller would agree with the interpretation of this case, in that when interpreting the precedent you have to understand the current purposes and how this precedent will apply. Fuller would also agree that a mandatory retirement age is not good law, and that this law contradicts the Charter. Therefore, the Oakes test in general should always be applied, no matter if the company is public, as this test is reasonable and rational and fits within Fuller’s notion.

Fuller is essentially in agreement with Naturalists that laws must be moral. However the difference is that morality is the essence of the law in Naturalism while in Fuller’s conception of morality the morality of a law is exhibited through the legal system.

Ronald Dworkin: Law, Principles and Rights

Dworkin states that law contains not only rules, but principles and the role of principles in the law undermines the Positivist position. The court is relying on equality which is a fundamental principle, which Dworkin is in favour of. He would agree with the majority in GVRD and how they attempt to resolve this discrepancy. Further, in terms of integrity, Dworkin would also agree with the majority's reasoning since it was interpretive and looked backwards at other cases dealing with similar situations. Even though this framework is case-by-case, the court was not making something up on their own. Dworkin would reject the Legal Realists’ view that judges should rely on themselves in making their decisions. The court’s reasoning in GVRD is different than in McKinney because it is an ongoing narrative. The judges are looking at the substance of the matter (to promote equality), particularly within the municipal government perspective.

Under the law of integrity, the dissent is continuing to write the narrative, without taking the current subject matter into consideration. Dworkin would criticize this as the court is not taking into account the principles that need to be applied in cases by judges and accepting the precedent of McKinney as status quo. Dworkin believes that decisions that seem right in isolation must nevertheless be brought within some “comprehensive theory of principles and policies” which justifies other “right” decisions and require reconciliation with how these principles have changed over time.

Dworkin would consider that times have changed, such as the social conditions since McKinney with society’s understanding of age, contingencies in the job market, and economic factors, all of which impacts what is considered appropriate. McKinney would not necessarily be considered wrong, it is just that society’s idea of fairness has changed and that because of this the Supreme Court of Canada decision should carry less weight. Also, Dworkin would question why the fact that McKinney, as a professor, was not considered to be a government actor should have been taken into consideration by the dissent.

Dworkin would recognize that this is a hard case because there is a conflict between the Human Rights Code as it is applied in British Columbia by the GVRD and the Charter goal of non-discrimination. To resolve this conflict, Dworkin would advocate that the courts must use the principles of law. These principles are similar in some respect to rules however they differ because they do not work to supersede other principles but to work together. He also recognizes that these principles are why judges have discretionary power and that this power is kept in check because these principles must be applied in every case. Particularly, Dworkin would state that the principle of fairness must be emphasized in this case.

Feminist Theorists would critique the paternalistic liberal view of Dworkin as being promulgated in the Human Rights Code and the Charter. Critical Race Theorists would also critique how liberalists have been blind to race theory and have chosen to only to deal with issues through anti-discrimination laws.

The conflict in this case has arisen because of the conflict between the Charter and the Human Rights Code legislation, judges must interpret the legislation with the principle of fairness in mind. This is because it would seem that unfairness is what the GVRD Union is saying this policy violates because it results in an discriminatory treatment of employees over 65. Thus, Dworkin would argue that while this is a hard case if principles like fairness are applied in the judicial legal reasoning then the court will be able to find the “right answer.”

This is in contrast to Hart’s theory of the penumbra and judicial interpretation. Instead, Dworkin would hold that if courts apply these legal principles in every case alongside the rules then they will reach the right conclusion. Such that Dworkin would hold that this case would not be in the penumbra because courts can look to the principles. He would also use these principles to determine whether the precedent from McKinney should be followed.

This case is determined on whether GVRD’s mandatory retirement policy can be saved under s. 1 of the Charter. Dworkin would consider s.1 to be a balancing exercise in weighing principles that are conflicting. He could see this exercise as redundant though, since the use of the fairness principle was already considered in the assessment of s.15 and the conflicting mandatory retirement age provision in the Employer’s policy based on the rule set out in the Human Rights Code allowing for discrimination for those aged 65 or older. Dworkin would also like how the court threw back to the legislator regarding setting up a more coherent policy, since the Human Rights Code does not match up with the s. 15 of the Charter as the former has policy factors that do not really stand up today, and some of these factors do not take into account the fundamental principles that underly the Charter.

Overall, Dworkin would agree with the majority even though it is in contrast to the Supreme Court of Canada precedent of the McKinney decision due to the changes in the policy factors over time and the principles of the fairness and equality.

Mill's On Liberty (Liberty/Paternalism)

The concept of liberty does not ask what should be law, but rather when law’s should apply. As such, in Mill’s treatise On Liberty he advocates that the presumption in favor of liberty restricts the application of laws. Mill does recognize that there is a social and ordering value in law because they can be applied in situations to prevent serious harm to others. This is the basis of what he calls the ‘harm principle’. The concept of paternalism relates to this conceptualization of liberty as a theory on how laws should be restricted. Paternalism holds that personal liberties can be restricted when this restriction serves to offer protection from harm caused by the exercise of liberty. Though it should be recognized that racial disadvantages as discussed in Critical Race theory are not harms that Mill actively addresses.

In GVRD it is more difficult to apply these theories because there is no obvious harm that the legislation is targeting. In the situations advanced by Mill and in (the two cases last week) the issue is whether the legislation minimally restricting individual liberties because having those liberties could cause harm to another individuals or themselves. While in GVRD the harm that occurs is as a result of the Human Rights Code, though this is not an intended harm, it does seem that the legislation has harmed elderly people by restricting their ability to work.

The majority finds that the British Columbia Human Rights Code is a law that is harmful in itself because it only offers protection to a restricted class of people based on age. Therefore, the majority seems to agree with Mill’s conception that individual liberties should only be restricted if this restriction will protect people from harms caused by the exercise of those liberties. In GVRD, the liberty that the majority is protecting is the liberty of choice to continue or keep working once you are over the age of 65. The majority is breaking with the precedent from McKinney, in finding that there is no harm in the Human Rights Code, which omits protections for these individuals who are older but able-bodied. Therefore, it would seem that the court has affirmed the paternalistic approach to the limitation of liberties.

The dissenting opinion in GVRD held that the Human Rights Code was valid legislation and did not breach the equality rights upheld in the Charter. The dissent argued that this court should follow the McKinney decision because it has established a precedent and that the legislation targets the harm that may occur through uncertainty for employers if people older than 65 are permitted to work. However, Mill would disagree with the dissent because he would find that the legislation does not protect the largest number individuals from a valid harm, this is in line with the Utilitarian approach. He may also find that the legislation actually creates a harm because of its infringement of personal liberties. As the legislation prevents people over the age of 65 from working in the public sector, it effectively impedes their liberty to provide for themselves and may make them dependent on the state. He would find that the state has interfered with the limit on individual independence and that it is no longer a protection from harm.

The main issue in the GVRD case is whether the Human Rights Code legislation violates s.15 of the Charter. If we were to apply Mill’s approach of liberty and paternalistic protection from harm to the GVRD case the first issue would be to determine what harm the Human Rights Code is protecting individuals from. Proponents of that section of the code would argue that it protects employers from workplace uncertainties and they may also make an argument that it protects the workforce from older employees who may be more prone to accidents (though this is a stretch).

Having characterized the harm Mill would likely find that the harm that is being produced by the legislation is a more significant harm that should be guarded against. He would also argue that the actors being legislated against are people in possession of mature faculties and as such the rule of liberty should apply to them. However he may recognize that this type of age restrictive legislation could be valid as a protection against children. For example, there is a real harm to young children in the workforce and therefore providing legislative protection to them because they are not fully developed is reasonable. It would seem that only if these elderly people fell into the category of what Mill calls barbarians would they need this type of protection.

As the legislation’s major purpose is to protect individual rights, which is what the Charter specifically purports to do in sections like s.15, which aim to protect individual rights, this should be the primary law we look to. Therefore, he would find the fact the conflict between these two pieces of legislation to be a non-conflict because that section of theHuman Rights Code does not have a valid purpose and therefore should not be valid legislation. He would be unable to find a justification for this type of restriction on liberty because there is no harm, no need for the application of paternalism, and there is no social or community values that are being compromised or offended.

Mill’s approach would likely affirm the outcome reached in GVRD. The court in this case has chosen to read down legislation that interferes with the personal liberty of people over the age of 65 and Mill would be in support of this. Paternalistic theorists would also agree with the majority because they would not find a sufficient justificatory reason for interfering with individual liberties because there is no harm to protect against. Lastly, Dworkin would also affirm this decision because there are would be no destructive changes as a result of allowing people over 65 to work. This is proven in the fact that the GVRD already allows some employees over this age in seasonal/temporary type positions. This is strong evidence that the mandatory retirement policy is not a protection, and as such, should not be upheld by the Human Rights Code. Overall in this case there is no sufficient harm that requires the use of this type of legislation.

Law and Economics: Law as Efficiency

The Normative theory states that good legal rules are efficient rules. The reasoning of the majority in GVRD is concerned with maximizing efficiency because efficiency results in having the largest group of people working. Being unable to work results in staying at home and being a drain on the economy as that person draws from the system but does not contribute. Therefore anything that adds value to society has economic value and therefore maximizing your available workforce adds the greatest amount of economic value, and thus social wealth.

Mandatory retirement might be efficient in terms of promoting social wealth because it gives other people, particularly the younger population, a chance to work. However this rational does not seem to take into consideration the needs that the elder people will still have economically and how these can be met if they are unable to work. The Human Rights Code is not enabling people to get jobs in our case but it protects them and enables them to keep their jobs as long as they are under the age of 65. It’s intention is to protect individuals in the scope of employment but in this model, it only protects you within a certain time frame (age wise).

The argument for mandatory retirement would be that it is more efficient because it allows the jobs to go to the younger population. The idea being that the baby boomers are clogging the job market making it substantially difficult for young, qualified people to get jobs. It would be more efficient for the retiree's claiming their pensions, which they paid into over the course of their employment rather than young workers relying on EI, which they did not pay into. Thus, the population as a whole is supporting younger workers which is not efficient. The majority in McKinney saw the economic benefit of mandatory retirement age because it maximizes efficiency in terms of the employer’s perspective, and since it is less costly to hire employees under 65 than it is to keep employees over 65. For example, the economic planning benefit given to employers and the government revenue pool. However, this thinking takes a one sided approach to economic maximization because it is only focused on a group of people instead society as a whole.

The contrasting argument is that mandatory retirement is not efficient because it does not promote wealth maximization. If there are more people working in the economy then there will be more wealth. If more people have jobs than they will be able to purchase more items, the more items purchased the more jobs there will be, based on the cycle of supply and demand. The economy working as a free market would promote wealth maximization because the greatest number of people working would be able to make the greatest amount of wealth without requiring government supports. Also, other measurable satisfactions such as happiness and community engagement would be achieved if the maximum number of people are working.

In this case the law and economics meta-theory would go against the dissent and agree with the majority in terms of reconsidering the mandatory retirement age and the precedent case of McKinney. This is because efficient laws are ones that work well from an economic perspective, and this mandatory retirement age is discriminatory against a certain group of the workforce making it a non-efficient law.

Another aspect of law and economics that can be examined in detail in relation to this case is the “pareto” superiority concept. Pareto superiority can be achieved through a win-win transaction, or a win-lose situation, where winner fully compensates loser for her loss, but still comes out ahead because she is not at a loss. In other words, no party is worse off. In relation to the case, this concept is reflected by considering the following: if the benefit accruing to the employer is no better than the benefit accruing to the employee then that would not be maximization. Therefore without the mandatory retirement age, the older person gets to maintain their job (win) and the employer retains an efficient employee (win). Whereas, if there is a mandatory retirement age in place, the older person does not get to maintain their job (loss) and the employer loses their employee; or if they do find another employee we are still at an overall loss. Therefore it is up to the employer to balance this potential benefit, in terms of bringing in a new young employee into their workforce, and they lose in terms of losing an an efficient and optimally performing employee, which leaves them with the challenge of rehiring and retraining for this position. The rational man would most likely view these situations and decide in line with the win-win pareto-optimality.

Another important aspect of law and economics to mention is that most discriminatory practices run counter to efficiency. The issue here would be whether the Human Rights Code is efficient? At the moment it is not producing a win/win for both the parties and therefore is not.

In general, if companies do not have a clear employment contract there will be more situations that arise like the one presented in this case which will likely result in more transaction costs due to having to hire more employees and potentially have to deal with more lawsuits, such as the case at hand. In the law and economics theory, contracts promote efficiency, further these contracts should be in writing and be clearly understood by all parties. This will lead to higher expectations for employers and employees will be able to fully understand their rights. If you have an explicit employment contract you are more likely to have a better workplace as people will be more efficient and there will be fewer situations where there are damages as a result of disgruntled employee. 

Overall, the law and economic theories would agree with the majority’s decision. The judges are acting as rational actors, trying to establish a situation where there is a net increase and greater value added to all parties involved to achieve pareto-optimality. This is evident in the majority agreeing to go against the precedent case of McKinney and re-evaluate the mandatory retirement age. Through its elimination of the mandatory retirement age; which will lead to efficiency and maximization of social wealth, the majority has upheld an economic perspective.

Feminist Jurisprudence: Law as Patriarchal Instiution

The Feminist theories of law form a cluster of related views rather than a single school of thought. However Feminist theories are united in their view that the world as we know it has been structured by the patriarchy. Of these Feminist theories, there are two central theses: (1) the world as we know it and have known it is structured by patriarchy, and (2) this patriarchy is bad for women, morally unjustified and ought to be eliminated. The diversity in Feminist jurisprudence is understandable, given their methodology. It rejects the idea of having a meta-theory that explains everything, which is in line with the abstract theory of Dworkin and the Law and Economics rational man theory. Instead Feminist theory tends to focus on the “specific, concrete, lived experiences of women in all of their particularity and contextual detail”.

Our case focuses on the impact of the incorporation of mandatory retirement in a collective agreement and the relationship between the Charter and the BC Human Rights Code. This being said, there is no apparent direct link to Feminist theory, other than the systematic and systemic domination of women by men which is reflected in our laws and other societal norms. However there are several parallels and underlying themes that can be established. The main one present is that of promotion of equality.

Feminist perspective, like Legal Realism challenges a number of core traditional legal values that are believed to result in the inequality of women. In our case, the mandatory retirement age legislation promotes an inequality based on age, which is in some ways analogous to an inequality based on gender because both are traits that are biological.

Feminists’ theories raise the assumption that equality must function as a formal notion rather than a substantive one, such that in the eyes of the law, difference must be shown to be “relevant” in order to be admissible and visible. This can be related to the issue of whether the mandatory retirement policy breaches an individual’s equality right based on discrimination in the workplace. Essentially it raises the question of whether a distinction based on age has any relevance to employ-ability or an employee’s ability to do the job.

Within our case, the precedent of McKinney was examined. In that case the court decided that mandatory retirement policies in the public sector could be saved under s. 1 of the Charter because they do not contravene relevant provincial human rights legislation. However, the majority was not persuaded by this decision, and decided that an extensive analysis of s. 1 should be engaged by all courts when addressing mandatory retirement policies, even if it complies with human rights legislation. Additionally, the majority decided that since eleven years had passed since McKinney was decided this precedent should be re-examined. This was largely due to policy considerations, such as changing demographics in the workplace, changes in other countries where mandatory retirement policies have been abolished, and recent studies highlighting the negative view of mandatory retirement policies.

It is apparent that Feminism would be directly in line with this outcome – a time for reconsideration of the mandatory retirement age. This case falls in line with Liberal Feminism. Liberal Feminists believe in the core idea that subordination of women “blocks” to access to success in public spheres, therefore by removing these blocks we will be able to achieve equal opportunity. Again this is analogous to the case at hand, because removing the mandatory retirement age would create equal opportunity. Further, in line with this view, there is an aspect of stereotyping that appears; in other words informal discrimination towards women. By maintaining the mandatory retirement age this directly discriminates against employees on the basis of age, further stereotyping the elderly community as a group of individuals who lack the ability to perform a job. However, this discrimination requires reorganization of domestic life to provide for attainable opportunities for all people. Individuals cannot be marginalized and devalued just for sharing the common characteristics of being “too old”. This can be seen within women's circumstances in terms formal equality and the ideal of “gender blind law”, in other words, no special treatment.

Further, there is some overlap between Relational Feminism as well. Specifically women’s different moral perspective and understanding is not a problem to be overcome, but instead adds to the male-value system. For example, women's socialization is different from men’s and therefore produces a different moral perspective and understanding. The idea of an ethics of care is present which places primary value on maintaining nurturing relationships. This presents an interesting parallel in our case, as the majority opinion was present by two female honourable justices’, while the dissent was given by a male justice. This seems to be an example of the fact that the female judges were more sympathetic to the effect this legislation had on elder individuals. The fact that there were female judges deciding this case could be an example of classic Liberal Feminism, since these female judges were able to achieve success by accessing the public sphere of the judiciary.

Another important aspect to note is that the Charter and the Human Rights Code have largely been male creations, a factor feminists would take into consideration . This is therefore an tangible representation of the patriarchy, in which the male is the primary authority figure central to social organization and central roles. Feminist theory typically characterizes patriarchy as a social construction, which can be overcome by revealing and critically analyzing its manifestation. This patriarchy is present within the precedent case of McKinney, in which the Human Rights Code has created a mandatory retirement age, which was justifiable under s. 1. This idea is reflected in the mandatory retirement age which creates a power over elderly and the requirement of being unable to continue working after the age of 65. However, the reconsideration of this decision presented within the GVRD case shows a critical analysis of the issue at hand. Patriarchy for Feminists is a social construct created by humans and therefore can be abolished by them as well. This is in line with our issue as the mandatory retirement policy which was created by humans and can be removed by them. This removal will further the goal of equality and eliminate discrimination in the workplace, just as the Feminist hope for females in society.

Overall, the Feminist approach viewed from a general standpoint will yield the same outcome as the one presented in this case. Maintaining equality as the central overlapping theme between the Feminist theory and the case, mandatory retirement does not foster equality in the eyes of the law as it cannot be shown to be relevant. Feminist jurisprudence has a commitment to improving the lived reality of women’s lives, to make lives of women better. This directly links to the idea of equality and eliminating discrimination, in the case of mandatory retirement age.

Critical Legal Studies and Critical Race Theory

While the topic of race does not directly apply to our case, we can still apply some of the principles of Critical Race Theory to understanding the court’s reasoning. Critical Race Theory is under the umbrella of Critical Legal Studies. The critiques by the Feminist theorists can also be understood as being developed under the Critical Legal Studies umbrella, as critiquing the deeply embedded political structure of society.

In GVRD the majority critiqued McKinney and recognized that the court needs to move away from this precedent when analyzing GVRD, and take into account some policy considerations regarding mandatory retirement. The dissent’s reasoning seems to be blind to the experience of those individuals that are over 65 years old and are forced to retire against their own will. This could be seen as similar to the non-inclusion and invisibility of racial minorities in Canadian law, especially in anti-discrimination law.

Duncan Kennedy would find that the precedent set out in McKinney is inevitably political because of the consequences that occur to those over 65 wanting to continue working based on the precedence set out in the case. This would be political in the sense that it is essentially a recognition of certain rights but that they only apply to a certain subset of the population. He would agree with how the majority critiqued McKinney since the result of this case is embedded in how older employees can be treated unfairly regarding mandatory age retirement.

Even though race is not explicitly discussed in the case, the principles set out by critical race theorists could be applied regarding ageism, including several of the central themes discussed by Wacks. Race is a social construct, just like mandatory age retirement, which has been created by older, white males from predominantly affluent backgrounds. The anti-discrimination laws set out in the Human Rights Code and in s. 15 of the Charter are both blind to race and were created based on the liberal theory of a reasonable, able-bodied man. The Human Rights Code also explicitly excludes those aged 65 years or older.

Critical Race Theorists would see the need to hear people’s stories on what it means to be at the age of retirement. By ignoring people’s stories and not responding to a force that has a negative influence on peoples lives, legislatures are not understanding the impact of arbitrarily forcing people to retire at a certain age. The storytelling aspect from Wacks would help shed light on the reasons why having a mandatory retirement age negatively affects those over 65 that want to continue working for various reasons, including out of necessity, for personal well-being and because they are still capable and willing to work. While there are many people over the age of 65 who are employed and involved in legal institutions, these people may not be directly aware of the negative impact or are not as vulnerable to the impact that this type of discrimination has on other people over 65 who may not have the same opportunities as them. .

If the Critical Legal Studies or Critical Race Theory approach was applied to this case it would still yield the same outcome, finding that the mandatory retirement age violates s. 15 of the Charter. Both theorists would focus their critique on presence of anti-discrimination laws and further how these social constructs that have been created but are not consistently always applied.

Critical Race Theory is similar to feminism in that the core of its critique is focused on the origin of the law. However the difference between the two is that Race Theory is often ignored as an influencing factor and Feminism focuses on how the embeddedness of the patriarchy has caused influenced every aspect of society.

Overall Conclusion

The value of assessing legal decisions from these different perspectives is that it allows you to have a broader understanding of the nexus of influencing factors behind the law and legal decisions. By understanding how or what has influenced laws we gain a better understanding of how to apply the law. It cause you to stop and think about how morality and factors such as feminism, liberty and authority all influence judicial decision making.