Leave to Appeal Air Canada mandatory retirement case to Supreme Court of Canada dismissed

As I mentioned in an earlier post, I anticipated that following all of the activity occurring in the Vilven and Kelly case (two Air Canada pilots who were forced to retire at 60), there would definitely be an application for leave to appeal to the Supreme Court of Canada. Well indeed, there was an application for leave to appeal, but the Supreme Court of Canada dismissed the application with costs.

To recap briefly, the Canadian Human Rights Tribunal and the Federal Court of Appeal upheld the mandatory retirement practice for Air Canada pilots because the discrimination was justified under section 1 of the Canadian Charter of Rights and Freedoms.

As predicted, there was an application for leave to appeal Air Canada’s mandatory retirement case to the Supreme Court of Canada; however, without providing any reasons, the Supreme Court of Canada dismissed the application for leave and refused to hear the matter.

What does this mean?

While the case was going on, the Canadian Human Rights Act was amended, and effective December 15, 2012 (without any retroactive provisions), mandatory retirement was banned in federally regulated workplaces, such as banking, transportation and telecommunications. Air Canada’s pilots can now fly beyond the age of 60.

Thus, Air Canada and the pilots’ union argued that the Supreme Court shouldn’t hear the case because mandatory retirement has since been repealed. I guess the Supreme Court of Canada agreed with them.

Vilven and Kelly who wanted to fly beyond the mandatory retirement age of 60 are likely very disappointed and out of luck. Although they were the ones that brought attention to the issue and were likely the catalyst for change, they will not benefit from the change in the law or fly again.

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci, BA, LLB, LLM, Ph.D.

Christina Catenacci, BA, LLB, LLM, PhD, was called to the Ontario Bar in 2002 and has since been a member of the Law Society of Ontario. Christina worked as an editor with First Reference between 2005 and 2015 working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk, and First Reference Talks blog discussing topics in Canadian Labour and Employment Law. Christina obtained her Professional LLM Specializing in Labour Relations and Employment Law from Osgoode Hall Law School of York University in 2013, and recently earned her PhD in Law at the University of Western Ontario on October 23, 2020 in the area of privacy in the workplace.

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