Mandatory retirement quashed for pilots (Legal view)

Tribunal changes tune on requirements, finds premise violates rights and freedoms
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 11/02/2009

A collective agreement between Air Canada and its pilots that required retirement at age 60 is discriminatory, the Canadian Human Rights Tribunal has ruled. The decision marks a change in approach for the tribunal after the Federal Court asked it to reconsider its 2007 dismissal of the complaints of two pilots forced to retire under the policy.

The two Air Canada pilots, George Vilven and Robert Kelly, were terminated in 2003 and 2005, respectively. Both terminations were within days of the men turning 60 and were in accordance with mandatory retirement age provisions of the pilots’ pension plan, which are part of the collective agreement.

Vilven and Kelly wanted to continue flying as pilots with Air Canada. There is no maximum age in Canada for the licensing of airline pilots and they both passed the required medical examinations for pilots over 40. Both men filed complaints claiming Air Canada discriminated against them on the basis of age, contrary to the Canadian Human Rights Act (CHRA).

Mandatory retirement ‘normal’ for pilots: Tribunal

The tribunal originally found the International Civil Aviation Organization (ICAO), which governs all international flights and to which Air Canada is subject, stipulated the maximum age for pilots in command was 60 and it recommended co-pilots not in command also retire at 60. In November 2006, the ICAO changed its maximum age to 65 — but it was 60 at the time of Vilven’s and Kelly’s retirements. Also, most other international airlines required mandatory retirement at age 60 or younger, found the tribunal.

Retirement at 60 for pilots was allowed under the CHRA, which had a provision stating it was not discrimination to terminate employment if an individual has reached “the normal age of retirement for employees working in positions similar to the position of that individual.” So the tribunal dismissed the pilots’ complaint.

However, the Federal Court found this provision of the CHRA violated the Canadian Charter of Rights and Freedoms and its requirement for equal treatment. The court referred the case back to the tribunal to determine if the CHRA provision was a reasonable limit under the charter and whether the mandatory retirement provision in the collective agreement was a bona fide occupational requirement.

With Vilven’s and Kelly’s complaints back in its lap, the tribunal re-examined the CHRA. It found the provision used to justify mandatory retirement was intended to help negotiation of mandatory retirement through collective bargaining at a time when the labour market was different. Now, said the tribunal, the workforce is older and more people want to work past the mandatory retirement age. And evidence showed the abolition of mandatory retirement didn’t create problems originally feared, such as costly monitoring of older employees and deferred seniority and pay increases for other employees.

Despite the provision’s intention, there was no requirement to negotiate mandatory retirement, said the tribunal, which permitted it to be imposed without negotiation as long as it was related to what was considered normal for the industry.

Air Canada was also “a dominant actor” in the air travel industry in Canada, found the tribunal, and a policy of mandatory retirement for pilots at age 60 could set a normal retirement age for the entire industry.

As a result, the CHRA’s provision permitting mandatory retirement at the normal retirement age in an industry was not a reasonable limit on the equality rights of the pilots under the charter, said the tribunal.

Mandatory retirement not occupational requirement

Since the tribunal determined enforcing mandatory retirement for Air Canada’s pilots was discriminatory, the onus was on the airline to prove this was a bona fide occupational requirement. Air Canada argued the ICAO standards prevented it from scheduling pilots over 60 for flights over international airspace, which involved most of their flights. Accommodating them as first officers only, which was allowed, or only on domestic flights would be too costly, it claimed. The pilots’ union also claimed undue hardship as it said accommodating Vilven and Kelly would negatively affect the seniority, compensation and advancement of other pilots.

The tribunal didn’t find adequate proof supporting the arguments of Air Canada and the pilots’ union, finding accommodation of pilots over 60 would not bring undue hardship. It pointed to a system used by Air Canada Jazz, where pilots over 60 years old were required to bid on domestic flights. If there were scheduling problems, the airline could look at other possibilities or, perhaps, remove a pilot from the position.

As there was a possibility for accommodation, mandatory retirement at 60 years old was not a bona fide occupational requirement and the tribunal upheld the claims of Vilven and Kelly.

The tribunal ended up reversing course on the complaints of Vilven and Kelly, finding the mandatory retirement for pilots was discriminatory, the CHRA provision permitting it was unconstitutional and not reasonable under the charter. Because of the complexities involved with potentially reinstating Vilven and Kelly, the tribunal asked for more information before deciding on a proper remedy.

The case didn’t end there, however, as the pilots’ union asked the Federal Court to step in once again. The union said the tribunal should have found it acceptable for a negotiated retirement age to be set through the collective bargaining process.

For more information see:

Vilven v. Air Canada, 2009 CarswellNat 2849 (Can. Human Rights Trib.).

Vilven v. Air Canada, 2007 CarswellNat 4249 (Can. Human Rights Trib.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter. For more information, visit employmentlawtoday.com. He also blogs regularly on employment law issues at www.hrreporter.com.

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