Canadian Human Rights Tribunal Orders Reinstatement of Air Canada Pilots

The Canadian Human Rights Tribunal has ordered the reinstatement of two Air Canada pilots compelled to retire upon reaching age 60. The pilots’ retirement was mandatory according to the terms of both the pension plan and the collective agreement between the airline and the union. The two Air Canada Pilots argued that being forced to retire at age 60 constituted discrimination on the basis of age, contrary to the Canadian Human Rights Act (CHRA).

In 2007, the Tribunal rejected the pilots’ complaint. Section 15(1)(c) of the Act provides an exception for age discrimination, provided that “an individual’s employment is terminated because that individual has reached the normal age for retirement for employees working in positions similar to the position of that individual.” The rejection of the pilots’ complaint was on the basis that 60 years of age was the normal retirement age for positions similar to those occupied by the complainants, at the time of their retirement. The termination of their employment, therefore, was not found to be a discriminatory practice. The Tribunal also found that section 15(1)(c) of the Act was not a violation of section 15(1) of the Canadian Charter of Rights and Freedoms (the Charter), because the complainants’ had not suffered a loss of dignity.

In 2009, the Federal Court of Canada granted the pilots’ application for judicial review. The pilots argued that the Tribunal had erred in coming to the conclusion that section 15(1)(c) was constitutional, in light of the guarantee of equality without discrimination under section 15(1) of the Charter. The complaint was sent back to the Tribunal. The question to be determined was whether section 15(1)(c) of the CHRA could be justified as a reasonable limit in a free and democratic society, within the meaning of section 1 of the Charter and, if not, whether the mandatory retirement provision in the collective agreement was a bona fide occupational requirement (BFOR) under sections 15(1)(a) and 15(2) of the CHRA.

The Tribunal reversed its 2007 decision and upheld the pilots’ complaint. The Tribunal reinstated the pilots as soon as they met the eligibility requirements, including possession of a valid pilot’s licence and medical certificate. The pilots were awarded compensation for lost wages, but only from September 1st, 2009 until the date of their reinstatement. Given the state of the law prior to 2009, the Tribunal determined that Air Canada had acted in good faith in applying the mandatory retirement policy to the pilots.

The Tribunal, however, did not order the reinstatement of over one hundred other pilots who had put forward complaints regarding forced retirement. Further, the Tribunal did not order the airline and the union to remove the mandatory retirement policy; rather, it determined that individual complaints are to be decided on a case-by-case basis, as the issue does not involve a complaint of systemic discrimination.

The finding that section 15(1)(c) offends the Charter did not set a legal precedent, and was therefore applied only to the facts in the instant case. Citing a number of decisions of the Supreme Court of Canada dealing with the Ontario Labour Relations Board, it was explained that a formal declaration of invalidity is not available to the Board, and that that the Board cannot expect deference in regards to constitutional decisions.

Both parties have filed applications for judicial review of the decision regarding remedy, and it is expected that the Air Canada Pilots Association will file an application for judicial review as well. Bird Richard will keep readers apprised of any further developments.