Section 15.1 of the Canadian Charter of Rights and Freedoms (Charter) provides that “every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on…age.” Although the Charter came into force on April 17, 1982, s. 15 was not effective until April 17, 1985, in order to allow governments and federally regulated industries to adapt to the changes imposed by the section. One of the most difficult issues to be grappled with was that of mandatory retirement, and whether such mandatory retirement breached the provisions of s. 15.
The Charter only applies to the actions of the federal government, provincial governments, and federally regulated industries. Recent case law has demonstrated the length to which tribunals and courts are prepared to go to protect Charter rights within those spheres. A recent decision of the Canadian Human Rights Tribunal considered a complaint filed by two Air Canada pilots arising from their forced retirement at age 60. The pilots contended that the airlines’ retirement policy breached their Charter rights under s. 15.1 which prohibits discrimination on the basis of age. Air Canada responded that the discrimination was justified based on s. 15 of the Canadian Human Rights Act. That section provides that it is not a discriminatory practice if employment is refused based on a “bona fide occupational requirement”.
The tribunal had originally held that there had been no Charter violation on the basis that 60 was the normal retirement age for pilots. As a result, the dismissals were protected by s. 15(1)(c) of the Canadian Human Rights Act.
The pilots appealed that ruling and, in April 2009, the federal court granted the Application for Judicial Review and sent the Complaint back to the tribunal for further consideration. The court directed that the tribunal determine whether s. 15(1)(c) could be saved by s. 1 of the Charter as being justified as a reasonable limit in a free and democratic society. If the tribunal found that it was not, it was then directed to determine whether the retirement provision was a “bona fide occupational requirement” under the Human Rights Act.
Following up on the court’s direction, the tribunal held that, in fact, the Complaint by the pilots was justified and that the mandatory retirement requirement was a breach of the pilots’ Charter rights. The tribunal then went on to consider the remedy which flowed from such a finding. The tribunal first ordered that the pilots be reinstated as soon as they could demonstrate that they had met the requirements for service − i.e. a valid Pilot Licence, Medical Certificate, and Instrument Flight Rating Certificate. However, the Tribunal refused the pilots’ request for damages for pain and suffering of $20,000 each as not being justified by the facts. Finally, the tribunal refused to make a general finding with respect to all pilots covered by the policy, on the basis that a general declaration of invalidity of a policy is not available to the tribunal under the statute.
It should be pointed out that the union has launched an Application for judicial review of this decision in federal court. The union supports mandatory retirement as it is in the interests of the bulk of the members to as it creates opportunities for advancement within the airline. The Application for judicial review was argued in November 2010 but no ruling has been issued as yet. No doubt, whichever way the court decides, the case will be appealed further and will likely end up before the Supreme Court of Canada.
Garfinkle, Biderman LLP
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