In a decision dated August 9, 2019, the Federal Court of Appeal dismissed an appeal made by Air Canada pilots regarding their age discrimination claim.
The claim involved Air Canada’s mandatory retirement rule requiring pilots to retire at age 60.
Essentially, Air Canada pilots launched a human rights complaint arguing that they experienced age discrimination because Air Canada had a rule forcing them to retire at age 60. This complaint began at the Canadian Human Rights Tribunal, but eventually made it to the Federal Court of Canada and then the Federal Court of Appeal. Claims were made under both the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms in several different hearings (Vilven and Kelly, Thwaites et al, Bailie et al).
To recap briefly, Air Canada relied on section 15(1)(c) of the Canadian Human Rights Act, which said it was not discriminatory for an employer to terminate employment upon reaching the normal age of retirement for the position. Ultimately, both the Canadian Human Rights Tribunal and the Federal Court of Appeal upheld the mandatory retirement practice for Air Canada pilots because the section 15 discrimination was justified under section 1 of the Canadian Charter of Rights and Freedoms. That is, the Federal Court of Appeal upheld the mandatory retirement practice and returned the matter to the Canadian Human Rights Tribunal with a direction to dismiss the pilots’ complaints.
In response, there was an application for leave to appeal made at the Supreme Court of Canada. Without providing any reasons, the Supreme Court of Canada dismissed the application for leave and refused to hear the matter.
Interestingly, during the course of this human rights saga, section 15(1)(c) of the Canadian Human Rights Act was repealed effective December 15, 2012 (without any retroactive provisions) so that mandatory retirement was banned in federally regulated workplaces. This effectively allowed pilots to fly beyond the age of 60. However, since the repeal made by the Keeping Canada’s Economy and Jobs Growing Act, SC 2011, c 24, s 166 was not retroactive, the pilots in the case who brought attention to the issue were not able to benefit from the change in the law.
The next wave
The saga continued. Pilots whose employment ended in 2011 and 2012 pursuant to the collective agreement in force at the time commenced additional human rights complaints in Gregg v Air Canada Pilots Association.
That is, there were 18 pilots who were subject to Air Canada’s mandatory retirement rule that was in place between March 2011 and October 2012. This was right before the December 15, 2012 repeal. These pilots argued before the Canadian Human Rights Commission that Air Canada discriminated against them on the prohibited ground of age by entering into a collective agreement that imposed mandatory retirement.
In 2013, the Canadian Human Rights Commission decided not to deal with these complaints, and instead relied on section 15(1)(c) of the Canadian Human Rights Act, which established the exception whereby the termination of employment upon reaching the normal age of retirement for a particular position was not discriminatory. Essentially, there was a reliance on the repealed provision. The decision stated that the relied upon provision was constitutional; it confirmed that 60 was the normal age of retirement for the pilots, and it was plain and obvious that the complaint could not succeed. In fact, the decision to not deal with the complaint was based on the conclusion that the complaints were frivolous since two other cases with similar allegations by other Air Canada pilots had also been dismissed and upheld by the federal courts, including Vilven and Kelly. Subsequently, the Federal Court of Canada examined this decision to not hear the complaint.
The decision to not deal with the complaint was made pursuant to section 41(a)(d) of the Canadian Human Rights Act, which stated that the Canadian Human Rights Commission was required to deal with any complaint filed with it unless it appeared that the complaint was trivial, frivolous, vexatious, or made in bad faith.
Ultimately, the Federal Court of Canada found that the Canadian Human Rights Commission’s decision fell in the range of acceptable possible outcomes, and was justified by intelligible and transparent reasons. At the heart of the decision, the court found that the pilots could not prove that the situation of Canadian airlines had changed since the main cases, Vilven and Kelly, and therefore it was just speculative to assert that the normal age of retirement had increased. As a result, the applications were dismissed.
Before the Federal Court of Appeal, the pilots argued that the previous cases were not determinative of subsequent complaints, especially since there were other complaints about mandatory retirement currently before the Canadian Human Rights Tribunal, including Bailie et al. The Canadian Human Rights Tribunal was a separate body to which the Canadian Human Rights Commission could refer its cases. Moreover, they argued that there was an improper onus placed on them to establish a legal and evidentiary basis for their complaints, and this was impossible to discharge since they were not able to obtain the statistical information to establish the normal age of retirement for 2011 and 2012.
The Federal Court of Appeal issued its split decision on August 9, 2019. The majority led by Webb, JA concluded that the Canadian Human Rights Commission should not be criticized for not addressing an argument that was not made – the counsel for the pilots would have known that the complaints brought in Bailie et al were proceeding before the Canadian Human Rights Tribunal and that 10 of the pilots had received a preliminary assessment report recommending that their complaints proceed to the Canadian Human Rights Tribunal because other complaints were before the Canadian Human Rights Tribunal. In fact, the court stated that the pilots should have raised this issue in their submissions to the Canadian Human Rights Commission. Since they did not do so, the Canadian Human Rights Commission did not err in not addressing the argument. The majority dismissed the appeal.
However, it is important to note there was a significant dissent by Rennie, JA, and it was reported first in the decision. Essentially, he stated that dismissing the complaint on the basis that it was plain and obvious that it could not succeed required an assessment of the complaint against objective benchmarks or criteria, including the facts, statutory and jurisprudential requirements, and precedent. In this situation, the Canadian Human Rights Commission was aware that the complaints in Bailie et al, involving the same employer, the same policy and the same legal issue were awaiting determination by the Canadian Human Rights Tribunal. He stated, “I do not know how it could be said that the Gregg complaints were doomed to fail when the Tribunal had not adjudicated on the matter. An explanation is required”. That is, there was one decision maker applying a single test regarding the same subject matter and overlapping facts – the reasons called for an explanation, and a failure to do so made the decision unreasonable. He would have allowed the appeal and quashed the decision of the Canadian Human Rights Commission.
What does this mean?
It is interesting that the dissent was placed first in the decision, and makes one wonder if this really is the end of the matter. When looking at the larger picture, it is concerning that there can be older statutory provisions that are still be upheld that effectively promote age discrimination. This is especially true given that employees work (and typically want to work) for longer periods of time past the age of 60.
One important factor to consider is that, it has been reported that as of 2018, the life expectancy of Canadians is age 84 for men and 87 for women, and the average retirement age in Canada is approximately age 63.
It may be time for our society as a whole to take a closer look at “ageism”, which the Ontario Human Rights Commission defines as a socially constructed way of thinking about older persons based on negative attitudes and stereotypes about aging and a tendency to structure society based on an assumption that everyone is young, thereby failing to respond appropriately to the real needs of older persons.
The Ontario Human Rights Commission states that age discrimination is not taken as seriously as other forms of discrimination, even though it may have the same economic, social, and psychological impact as any other type of discrimination. To combat ageism, it is necessary to raise public awareness and dispel common stereotypes and misperceptions about aging. Older persons make significant contributions to society and it is important to combat ageism by using inclusive planning and design which reflects the circumstances of persons of all ages. In order to ensure that physical, attitudinal, and systemic barriers are avoided, age diversity should be reflected in design stages for policies, programs, services, and facilities.