Mandatory retirement for Air Canada pilots still up in the air

Federal Court sends case back to human rights tribunal to judge whether age maximum is legitimate job requirement

A long-running dispute between Air Canada and two pilots forced to retire at age 60 is continuing after the Federal Court overturned a human rights tribunal decision that reinstated the pilots.

Air Canada terminated the employment of George Vilven and Neil Kelly in 2003 and 2005, respectively, within days of each turning 60, in accordance with the mandatory retirement age provisions of the pilots’ pension plan enshrined in the collective agreement. The Canadian Human Rights Tribunal originally found the retirement provision didn’t violate the Canadian Human Rights Act because it allowed for termination of employees who reach “the normal age of retirement for employees working in positions similar to the position of that individual.” It based its decision on the International Civil Aviation Organization (ICAO) maximum age for pilots — 60 years old — and the fact other international airlines had similar mandatory retirement provisions.

The pilots appealed and the Federal Court found the provision violated the right to equal treatment under the Canadian Charter of Rights and Freedoms. The tribunal reheard the case in 2009 and found the abolition of mandatory retirement didn’t create undue hardship for Air Canada and it could accommodate older pilots with domestic flights so it didn’t have to worry about ICAO regulations. Air Canada was ordered to reinstate Vilven and Kelly.

The case went back to the Federal Court on an appeal from the pilots’ union. The court agreed the mandatory retirement provision violated Vilven and Kelly’s charter rights, but found the tribunal made an error by not giving enough consideration to whether being under 60 years of age was a bona fide occupational requirement allowing the provision to stand.

While the tribunal found Air Canada didn’t provide sufficient evidence to prove the provision was necessary for the pilot job, the court found the airline did provide data supporting its position. Air Canada had argued it had a limited number of domestic flights and it wouldn’t be able to accommodate the large number of pilots who would be turning 60 in the near future. It also provided evidence on potential costs of hiring more pilots for its international flights while keeping older pilots on board.

The Federal Court remanded the case back to the tribunal and ordered it to re-examine the issue of whether Air Canada’s mandatory retirement provision was a bona fide occupational requirement that would justify the violation of Vilven and Kelly’s charter rights.

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