• First Reference
  • About us
  • Contact us
  • Blog Signup 📨

First Reference Talks

Discussions on Human Resources, Employment Law, Payroll and Internal Controls

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies
You are here: Home / Human Rights / The Air Canada pilots’ mandatory retirement saga – will it end with the tribunal’s third decision?

By Christina Catenacci, BA, LLB, LLM, PhD | 2 Minutes Read August 26, 2011

The Air Canada pilots’ mandatory retirement saga – will it end with the tribunal’s third decision?

In July, the Canadian Human Rights Tribunal made its third decision in the case of two Air Canada pilots who challenged the airline’s mandatory retirement policy. The tribunal decided in favour of Air Canada. Then, in August, the tribunal decided in a similar case involving 70 other Air Canada pilots. The tribunal again decided in favour of the airline, but for different reasons. For those hoping the July decision would settle the matter once and for all, the August decision is sure to confuse matters.

I wrote about the history of the case last August, and Yosie followed up with a look at the second tribunal decision in November.

The Canadian Human Rights Tribunal (Vilven v. Air Canada, 2011 CHRT 10) confirmed that, while Air Canada’s policy of mandatory retirement for pilots at age 60 was discriminatory, it was also justifiable. The policy constituted a bona fide occupational requirement (BFOR). Convincing evidence established that, in light of the 2006 International Civil Aviation Organization (ICAO) standards and in particular the “over/under rule”, Air Canada was not able to accommodate the pilots without suffering undue hardship considering health, safety, and cost.

Essentially, based on this most recent Vilven decision, Air Canada doesn’t have to reinstate the pilots or pay them for lost wages and benefits.

But is this the end of the story? I don’t think so; not if you take a look at the case decided by the same tribunal one month later. Thwaites et al. v. ACPA and Air Canada, 2011 CHRT 11 (PDF) involved 70 other pilots launching a similar complaint; this time, the tribunal concluded that Air Canada did not prove that mandatory retirement was a BFOR. However, the tribunal found that 60 is the normal age of retirement for airline pilots in Canada, and thus, the mandatory retirement policy did not contravene subsection 15(1)(c) of the Canadian Human Rights Act:

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.

Thus, the pilots were still denied any of the things they wanted, but for the first reason cited back in 2009.

What does it all mean?

At this point, the tribunal has upheld Air Canada’s policy requiring pilots to retire at 60, but the reasoning may be a little shaky.

What employers can take from this situation is that if they want to have a limiting policy such as mandatory retirement, they are going to have to show that the discrimination on its face is justified. An effective way to accomplish this goal is to prove (with evidence) that they will experience undue hardship in terms of health, safety and cost, if they were to accommodate the employees.

What do you think about this case? It has gone on for a great deal of time, and the seemingly contradictory decisions between the tribunal and the Federal Court suggest that this should have been resolved a long time ago. Do you think that the various decision makers took too long? Do you agree with their reasoning?

Christina Catenacci
First Reference Human Resources and Compliance Editor

  • About
  • Latest Posts
Follow me
Christina Catenacci, BA, LLB, LLM, PhD
Christina Catenacci, BA, LLB, LLM, PhD, is 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. She continues to contribute to First Reference Talks as a regular guest blogger, where she writes on privacy and surveillance topics. Christina has also appeared in the Montreal AI Ethics Institute's AI Brief, International Association of Privacy Professionals’ Privacy Advisor, Tech Policy Press, and Slaw - Canada's online legal magazine.
Follow me
Latest posts by Christina Catenacci, BA, LLB, LLM, PhD (see all)
  • Hefty GDPR fine for Meta - January 20, 2023
  • 2022 report: More data breaches and costs rising - November 1, 2022
  • Bill C-27: a look at proposed AI provisions - August 9, 2022

Article by Christina Catenacci, BA, LLB, LLM, PhD / Human Rights, Union Relations / accommodation, Air Canada, Air Canada pilots, bona fide occupational requirement, Canadian Human Rights Tribunal, discrimination based on age, duty to accommodate, employment law, Federal Court, mandatory retirement, undue hardship

Share with a friend or colleague

Get the Latest Posts in your Inbox for Free!

Electronic monitoring

About Christina Catenacci, BA, LLB, LLM, PhD

Christina Catenacci, BA, LLB, LLM, PhD, is 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. She continues to contribute to First Reference Talks as a regular guest blogger, where she writes on privacy and surveillance topics. Christina has also appeared in the Montreal AI Ethics Institute's AI Brief, International Association of Privacy Professionals’ Privacy Advisor, Tech Policy Press, and Slaw - Canada's online legal magazine.

Footer

About us

Established in 1995, First Reference is the leading publisher of up to date, practical and authoritative HR compliance and policy databases that are essential to ensure organizations meet their due diligence and duty of care requirements.

First Reference Talks

  • Home
  • About
  • Archives
  • Resources
  • Buy Policies

Main Menu

  • About First Reference
  • Resources
  • Contact us
  • 1 800 750 8175

Stay Connected

  • Facebook
  • LinkedIn
  • Twitter
  • YouTube

We welcome your comments on our blog articles. However, we do not respond to specific legal questions in this space.
We do not provide any form of legal advice or legal opinion. Please consult a lawyer in your jurisdiction or try one of our products.


Copyright © 2009 - 2023 · First Reference Inc. · All Rights Reserved
Legal and Copyright Notices · Publisher's Disclaimer · Privacy Policy · Accessibility Policy