On Monday, November 8, 2010, the Canadian Human Rights Tribunal ordered Air Canada to reinstate two pilots, aged 65 and 67, who were forced to retire at age 60. In addition, the tribunal ordered the airline and the Air Canada Pilots Association (ACPA) to compensate the men for lost wages from September 1, 2009, plus interest, minus the pension money they had already received.
The tribunal had already ruled in August 2009 that the mandatory retirement provisions in the ACPA collective agreement with Air Canada was discriminatory and not a bona fide occupational requirement.
George Vilven and Robert Neil Kelly were both forced to retire from Air Canada at the age of 60, and took their cases to the Canadian Human Rights Commission. The tribunal initially rejected their complaints based on an exemption in the Canadian Human Rights Act letting employers defend mandatory retirement if the age is the industry norm. The tribunal also rejected the argument that the retirement clause was a breach of the pilots’ Charter rights. However, the Federal Court disagreed and found mandatory retirement was a Charter breach. The Court sent the case back to the tribunal to see if the breach was reasonably justified. And the tribunal ultimately said no.
The tribunal found that Air Canada’s mandatory retirement policy in the collective agreement could not be justified as a bona fide occupational requirement, since airline pilots are given frequent competency and medical tests to ensure they’re capable of flying. Pilots over age 40 are also required to undergo physical examinations every six months.
The complainants, Vilven and Kelly, sought a number of remedies, including reinstatement, restoration of seniority and service, damages for lost income, as well as lost pension and other benefits. The commission also asked for a “cease and desist” order and significant revisions to Air Canada’s workplace policies on mandatory retirement. However, the tribunal felt that these requests would involve considerable readjustment to the current workplace regime, and imposing them would require much more information than had been presented to the tribunal. Thus, the tribunal sought further evidence and submissions from stakeholders, taking into account this decision.
Subsequently, the decision handed down on Monday did provide the remedy stated above, but did not deal with the pilots’ request to force Air Canada to “cease and desist” making pilots retire at 60, meaning the tribunal didn’t order Air Canada to eliminate mandatory retirement for all its pilots. The tribunal also rejected the complainants’ claims of $20,000 each for “pain and suffering”.
However the saga on age discrimination in the federally regulated jurisdiction continues, both Air Canada and the ACPA have appealed the August 2009 ruling to the Federal Court of Canada, and a hearing is slated for this month. The Federal Court will conduct a judicial review of the Canadian Human Rights Tribunal decision that challenged the ability of unions and employers to negotiate mandatory retirement ages for all Air Canada pilots. Hearings will start in Ottawa on November 22, 2010, and run until November 25, 2010.
All Canadian provinces and territories have amended their human rights legislation to abolish mandatory retirement. Meaning, employees can no longer be forced to retire at the age of 65; an employer is not allowed to arbitrarily impose a contractual term or policy requiring an employee to leave the workplace at the age of 65. Consequently, employers face potential challenges and liability risks in dealing with older workers. These issues will become even more important as Canada’s baby boom generation ages. Employers now bear a greater risk when terminating older employees. A long-serving older employee may well be entitled to a lengthy notice period, based on the common law and an employee’s entitlements under employment/labour standards legislation of their jurisdiction. For more information on mandatory retirement and the law, read previous posts here and here.
Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor
Yosie Saint-Cyr, LL.B. Managing Editor
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