Between November 22 and November 25, 2010, the Federal Court of Canada will hold hearings and then decide whether the mandatory retirement age of 60 years should stand for about 3,000 Air Canada pilots.
I reviewed the case history and found that this saga has been going on for years.
It seems to revolve around one subsection of the Canadian Human Rights Act: 15(1)(c) states that it is not a discriminatory practice if an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual.
This section has created some controversy. In fact, it has been questioned in the courts, and there may be a final answer about its effect on pilots’ retirements after these hearings take place.
The story is that two Air Canada pilots were required to retire at the age of 60 years pursuant to Air Canada’s policy. Although they retired pursuant to the policy, they both filed human rights complaints in 2005 alleging that the mandatory retirement policy was discriminatory.
In August 2007, the Canadian Human Rights Tribunal found that Air Canada was permitted to require both pilots to retire at 60 years because subsection 15(1)(c) of the Act permitted the airline to have a policy of mandatory retirement as long as it was consistent with the retirement age of similarly placed employees. Indeed, the retirement age for most pilots working for major international carriers was 60 years. What’s more, this section of the Act was not contrary to section 15 of the Canadian Charter of Rights and Freedoms (equality provisions).
The pilots appealed to the Federal Court.
In April 2009, the Federal Court concluded that the tribunal had incorrectly analyzed the application of the Charter to section 15(1)(c) of the Act, and referred the matter back to the tribunal for further consideration.
In August 2009, the tribunal released a second decision; this time, it found that section 15(1)(c) of the Act was actually inconsistent with section 15 of the Charter. Further, the tribunal found that previous Supreme Court of Canada decisions on the matter were distinguishable based on current circumstances, including the fact that many provincial jurisdictions had since abolished mandatory retirement. They no longer set the precedent.
It is not over yet. The judicial review of the tribunal’s second decision is about to be decided. Time will tell what will come of mandatory retirement ages for Air Canada pilots, and how other federally regulated employees will be affected by the decision.
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, Ph.D.
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