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Air Canada pilots’ mandatory retirement saga continues

Image: www.aircanada.com

As you may recall, Air Canada pilots launched human rights complaints on the ground of age discrimination because the company forced them to retire at age 60. In a history of decisions spanning back to 2007 challenging the Air Canada policy that requires pilots to retire at the age of 60, which section 15(1)(c) of the Canadian Human Rights Act purports to allow, the Canadian Human Rights Tribunal recently made two more decisions. One involved the Thwaites et al. case, and the other involved the Bailie case.

The saga began with these cases.

Vilven and Kelly

The question was whether the provision requiring retirement at age 60 violated the Canadian Charter of Rights and Freedoms. By 2011, after being at the tribunal five times and the Federal Court twice, one final result was that the retirement requirement was discriminatory, but Air Canada had established a bona fide occupational requirement defence, and another conflicting final result was that the requirement was unconstitutional and could not be saved by Section One of the Charter, and a remedies hearing took place. Vilven and Kelly asked for judicial review of the decision regarding the bona fide occupational requirement defence for the complaints that were dismissed by the tribunal, and requested a review concerning the pensions assessment for the finding regarding remedies.

Thwaites et al.

In 2011, the tribunal dismissed the complaints of 69 pilots on the basis that age 60 is the normal age of retirement for pilots, but also rejected Air Canada’s bona fide occupational requirement defence altogether. The tribunal did not address whether the provision violated the Charter. The complainants have asked that the decision be judicially reviewed regarding the failure to address the constitutionality of the retirement requirement and the calculation of the normal retirement age. This hearing has been reopened but we are awaiting the tribunal’s decision.

Bailie et al.

Complaints remain active regarding whether the requirement to force pilots to retire at age 60 is discriminatory. These 89 pilots were retired and argued that the requirement to retire was discriminatory under the Canadian Human Rights Act.

Now, two new issues have made their way to the Canadian Human Rights Tribunal.

First, a decision was made in Bailie to adjourn the matter pending completion of the other similar two cases, Vilven and Kelly and Thwaites in order to prevent to an abuse of process.

Second, in Thwaites, the tribunal decided it had already found the retirement requirement unconstitutional in Vilven and Kelly, and that decision was binding on the tribunal. To that end, the tribunal amended the Thwaites decision to add that Air Canada could not rely on its bona fide occupational requirement defence. And the constitutionality of the retirement requirement remains unresolved. Since it found the Vilven and Kelly result binding, the tribunal refused to apply the mandatory retirement provision because it was unconstitutional, and the complaints were substantiated.

So what now?

Although the federal government recently passed legislation that will repeal section 15(1)(c) of the CHRA, which permits employers to terminate employees because they have reached the normal age of retirement for their industry, this law will only come into force on December 15, 2012. The problem is that this law is not retroactive to these cases. So the courts must still find a final resolution to them.

As can be seen from recent developments, there are still some questions that have not been resolved concerning this saga. Vilven and Kelly contained several conflicting decisions at the various levels of the adjudication process; trying to follow what has happened and which issues are still active can be quite confusing.

Similarly, Thwaites is still open and awaiting judicial review regarding the constitutionality of the retirement requirement. These questions are clearly complicated, and the adjudicators involved have not made matters easier to understand. But what we do know from these last two decisions is that, in order to prevent further confusion, one case has been adjourned, and another has been made more in line with Vilven and Kelly.

As consequence, the careers and lives of the pilots in question in these cases continue in limbo. As a result, many of the pilots will not have the opportunity of being reinstated.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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