Federal Court will hear appeal of human rights tribunal’s finding that retirement age in Air Canada collective agreement was discriminatory
The pilots’ union for Air Canada is challenging a human rights tribunal decision that a mandatory retirement age for pilots it agreed to with the airline was discriminatory.
Two Air Canada pilots, George Vilven and Robert Kelly, were terminated in 2003 and 2005, respectively, within days of each turning 60 and in accordance with the mandatory retirement age provisions of the pilots’ pension plan, which was part of the collective agreement.
The Canadian Human Rights Tribunal found the International Civil Aviation Organization (ICAO), which governed all international flights and to which Air Canada is subject, stipulated the maximum age for pilots should be 60. Also, the tribunal found most other international airlines required mandatory retirement at age 60 or younger.
The tribunal found retirement at 60 for pilots was allowed under the Canadian Human Rights Act, 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” and dismissed the pilots’ complaint.
However, the Federal Court found the provision violated the requirement for equal treatment under the Canadian Charter of Rights and Freedoms. It referred the case back to the tribunal to determine if the provision was a reasonable limit.
Upon re-examination, the tribunal found the provision was intended to help negotiation of mandatory retirement through collective bargaining at a time when the labour market was different. Now, the tribunal said, the workforce is older and more people want to work past that age. It examined evidence that showed the abolition of mandatory retirement didn’t create the costly problems that had been originally feared.
The tribunal found accommodation of over-60 pilots would not bring undue hardship as there were domestic routes that pilots over 60 years old could fly. As there was a possibility for accommodation, the tribunal ruled mandatory retirement at 60 years old was not a bona fide occupational requirement and upheld the discrimination claims of Vilven and Kelly.
The Air Canada Pilots Association appealed the decision to the Federal Courts, which will hear the case in November. The association is arguing the tribunal’s finding of discrimination in the establishment of a retirement age in its collective agreement ignored “Supreme Court of Canada decisions which found it acceptable for employers and employees to determine a retirement age through the collective bargaining process.” It also said the decision could affect the pay and benefits of Air Canada pilots and other federally regulated workers with fixed retirement ages in their collective agreements.
Vilven and Kelly had requested reinstatement to their positions on international flights but the tribunal reserved judgment on a remedy in its 2009 decision. Vilven told the Toronto Star that he had only been offered entry-level piloting jobs on small planes. Though he can’t command long-haul international flights because of ICAO restrictions, he said he expected to be offered a position as a first officer on those flights.The tribunal is still considering a remedy while the Federal Court will begin hearing the association’s challenge to the decision on Nov. 22 in Ottawa.