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Expect application for leave to appeal to Supreme Court of Canada in Air Canada mandatory retirement case

As I recently mentioned, the Federal Court of Appeal upheld the mandatory retirement practice for Air Canada pilots because the discrimination was justified under Section one of the Canadian Charter of Rights and Freedoms. Ultimately, the court returned the matter to the Canadian Human Rights Tribunal with a direction to dismiss the pilots’ complaints.

Since that decision, some developments have taken place. First, in the primary Vilven and Kelly case, there will likely be an application filed to obtain leave to appeal to the Supreme Court of Canada regarding the constitutionality of section 15(1)(c) of the Canadian Human Rights Act.

In terms of a timeline, the pilots have 60 days to make this application, and then the Supreme Court of Canada will probably take a few months to decide whether it will hear the matter. The application is expected to be filed in the next couple of weeks.

We’ll likely know in the fall if the court will proceed, and then, there will potentially be a hearing in the new year. The court typically takes a few months to make an ultimate decision on an appeal, and thus we may know about the constitutionality issue by the spring of 2013.

So how does this work, given the fact that there are currently other lines of cases taking place about mandatory retirement of Air Canada pilots?

As I mentioned earlier, some matters in these cases have been put on hold pending decisions in the Vilven and Kelly case – but only if the issue deals with the constitutionality of the mandatory retirement requirement for pilots (the Charter issue).

That is, for the Thwaites et al. case, there are other live issues that will be proceeding while the Charter issues in Vilven and Kelly likely go to the Supreme Court of Canada. There is still a dispute with respect to the “normal age of retirement” being 60 years.

In fact, there were so many ongoing proceedings to follow that there was a hearing to consolidate five judicial reviews and one motion into one three-day hearing, which has not yet been set.

What’s more, there is still the issue of the bona fide occupational requirement, which may or may not be decided upon by the Federal Court – as we have seen in Vilven and Kelly and Thwaites et al., the bona fide occupational requirement issue remains live. However, the larger question is whether this entire issue should be put off until the Supreme Court of Canada makes a decision.

Confused? Certainly, it is complicated, and this has led to the setting of an upcoming case management conference call at the end of August to decide which issues should move forward and which should not in light of the events following the Federal Court of Appeal’s decision.

This situation is so perplexing, I expect the only way it will be completely resolved is when the Supreme Court of Canada steps in and decides on the Charter, the “normal age of retirement”, and the bona fide occupational requirement issues all at once to provide one solid decision.

I wonder if any of the pilots involved knew that it would come to this back in 2007. One thing is certain; most of them will likely not be flying again.

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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