Air Canada pilots’ challenge to mandatory retirement shot down

Tribunal finds no age discrimination due to ‘rich’ benefits and privileges of negotiated pension plan

A provision in the collective agreement between Air Canada and its pilots’ union which requires retirement at age 60 is not discriminatory, the Canadian Human Rights Tribunal has decided.

Two Air Canada pilots, George Vilven and Robert Kelly, were terminated on Sept. 1, 2003 and May 1, 2005, respectively. Both terminations were within days of the men turning 60 and were in accordance with the mandatory retirement age provisions of the pilots’ pension plan, which is 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. After their terminations, both men took piloting jobs with other airlines. They filed complaints with the commission claiming Air Canada discriminated against them on the basis of age, contrary to the Canadian Human Rights Act (CHRA), by requiring them to retire at 60.

The collective agreement’s pension plan, in addition to the mandatory retirement age, structures the pilots’ pension payments according to their service time. In addition to a regular pension, they receive a supplemental amount which allows them to have a pension higher than the maximum allowed by the Income Tax Act. Vilven was entitled to a monthly pension of more than $6,000 until age 65 and more than $5,500 after that. Kelly was entitled to more than $10,000 a month until age 65 and almost $9,500 after that.

The tribunal found the only reason for the termination of Vilven and Kelly was they had turned 60 and this deprived the two men of employment based on a ground prohibited under the CHRA. On the surface, this appeared to constitute discrimination, but the tribunal found there were several factors to take into account.

The tribunal found the International Civil Aviation Organization (ICAO), which Air Canada is subject to, has standards which outline the “normal” age of retirement for airline pilots. At the time of each of Vilven and Kelly’s retirements, the ICAO’s 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.

The tribunal also looked at several major international airlines for comparison. Of all the pilot positions in those airlines, the tribunal found 80 per cent required mandatory retirement at age 60 or younger.

Using the comparisons of other major airlines and the ICAO standards, the tribunal found 60 was the normal age of retirement for pilots in 2003 and 2005. As a result, Air Canada’s mandatory retirement policy did not discriminate against Vilven and Kelly under the CHRA.

The tribunal noted both men were able to get work as pilots after their terminations, which demonstrated they did not suffer any disadvantages from their age and employment status.

The tribunal also found the mandatory retirement policy was part of a negotiated agreement with the union. It was put in place in exchange for “the rich compensation package” pilots receive upon their retirement. It noted both Vilven and Kelly were aware of the policy when they began working for Air Canada and “reaped the benefit” of it during their careers through promotions caused by the departure of other pilots at 60, as well as other benefits negotiated on the basis of the mandatory retirement provision.

The tribunal agreed termination has “a profound impact on the self-worth and dignity of an individual.” However, the generous pension package and the benefits throughout their careers as Air Canada pilots were based on retirement at 60. The tribunal ruled mandatory retirement was “their final responsibility as Air Canada pilots” and didn’t devalue their status or dignity or marginalize them as valued members of society.

“An important characteristic of a mandatory retirement policy (is) that employees, including Air Canada pilots, are not faced with the indignity of retiring because they have been found to be incapable of performing the requirements of their position or because of failing health,” the tribunal said. “Rather, retirement at age 60 for pilots is the fully understood and anticipated conclusion of a prestigious and financially rewarding career.”

For more information see:

George Vilven and Robert Kelly v. Air Canada, 2007 CHRT 36 (Can. Human Rights Trib.).

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