Introduction
Background
Decision
On February 3 2011 Justice Anne Mactavish of the Federal Court of Canada released an important 127-page ruling in the latest round of the dispute between Air Canada (as well as the Air Canada Pilots Association) and two former pilots who were subject to the Air Canada mandatory retirement provision in their collective agreement, forcing them to retire at the age of 60.(1)
In a previous round the Canadian Human Rights Tribunal ruled that these pilots, Robert Kelly and George Vilven, were to be reinstated and compensated for lost income. This remedy came as a result of the tribunal ruling that Section 15(1)(c) of the Canadian Human Rights Act was inconsistent with the Canadian Charter of Rights and Freedoms.
Section 15(1)(c) of the Human Rights Act allows an employer to terminate an employee who has reached the "normal age of retirement" of persons working in similar positions. In this case the tribunal had found that the provision:
"perpetuat[ed] the group disadvantage and prejudice faced by older workers by promoting the stereotypical view that older workers are less capable, or less deserving of recognition or value as human beings or as members of Canadian society."
The judicial review of that tribunal decision is the subject of this update.
The Federal Court had to determine two issues:
- whether Section 15(1)(c) of the Human Rights Act is contrary to the charter; and
- if so, whether the retirement provisions in the Air Canada collective agreement could otherwise be enforceable under the legislation on the basis that they constitute a bona fide occupational requirement for the job.
Given its length and complexity, it is impossible to summarise the decision in its entirety in the space available here. Thus, this update focuses on the second issue.
Mandatory retirement for pilots at Air Canada has been in place since 1957. In the early 1980s it was incorporated into the collective agreement.
Shortly before the initial hearing before the Human Rights Tribunal in this saga, the Air Canada Pilots Association held a referendum on the mandatory retirement requirement. Of its members, 75% voted in favour of maintaining it.
Kelly and Vilven were senior pilots at Air Canada when they retired in 2003 and 2005, respectively. In addition to the complaints of these pilots, the court noted that dozens of other complaints were being held in abeyance by the Human Rights Tribunal pending the court's decision.
Before November 2006, the International Civil Aviation Organisation (ICAO) rules did not permit a pilot over the age of 60 to act as pilot-in-command of a commercial aircraft operating internationally. Also at that time, it was ICAO's recommendation that persons over 60 should not act as first officers on international flights.
In November 2006 the ICAO standards were relaxed. They now permit a person to act as pilot-in-command until the age of 65, as long as one other member of the multi-pilot crew is under 60. There continues to be no mandatory restriction affecting first officers.
On judicial review, the first issue to be decided was whether Section 15(1)(c) of the Human Rights Act is contrary to the charter. On this question, Justice Mactavish upheld the tribunal's decision that the beneficial aspects of this legislative provision are "outweighed by its deleterious effects, when measured by the values underlying the Charter".
In considering this issue, the court examined previous jurisprudence on the enforceability of mandatory retirement provisions and held that this case was not "squarely on point" with the Supreme Court of Canada decision in McKinney v University of Guelph ([1990] 3 SCR 229) involving the mandatory retirement provisions that applied to professors at Ontario universities. In the circumstances of that case, the Supreme Court held that mandatory retirement did not violate the charter.
Mactavish distinguished McKinney on the basis that:
- there were significant differences at play in the wording of the legislation;
- there was a clear indication that the Supreme Court did not expect that McKinney would be the final word on mandatory retirement;
- there were marked differences between the evidentiary records in McKinney and the case at hand; and
- important developments in public policy have occurred since McKinney was decided.
As she did not feel bound by McKinney, Mactavish undertook an analysis to determine whether the prima facie violation of the charter was justified (this is commonly referred to as an Oakes test). She decided that it was not. In working through the Oakes test, Mactavish found, among other things, that the evidence before the tribunal (much of it from expert witnesses) did not demonstrate a reasonable basis for concluding that allowing mandatory retirement arrangements is necessary for the preservation of mutually beneficial labour market structures (as was argued by Air Canada and the Air Canada Pilots Association).
Moreover, Mactavish found that the harm inflicted by this provision of the Human Rights Act was disproportionate to its beneficial effects as a result of its peculiar wording. The provision permits the enforcement of mandatory retirement so long as the age of forced retirement is "the normal age of retirement for employees working in [similar] positions". Mactavish agreed with the tribunal's finding that "perhaps one of the most disturbing aspects of this provision was [that]… it allows employers to discriminate against their employees on the basis of age so long as that discrimination is pervasive in the industry".
Given that the mandatory retirement provisions in the collective agreement were not statutorily protected by Section 15(1)(c) of the Human Rights Act, the court was required to apply the three-pronged test from British Columbia (PSERC) v British Columbia Government and Service Employees' Union (Meiorin Grievance) ([1999] SCR 3) to determine whether the mandatory retirement policy could be enforced by Air Canada on the basis that retirement of 60-year-old pilots was a "bona fide occupational requirement". In order to uphold a prima facie discriminatory employment policy under Meiorin, the employer must demonstrate that:
- it adopted a standard for a purpose rationally connected to the performance of the job;
- it adopted the particular standard in the honest and good-faith belief that it was necessary for the fulfilment of that legitimate work-related purpose; and
- the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship on the employer.
The underlying tribunal decision noted that the first two prongs were conceded by the pilots, so only the third Meiorin prong was addressed.
Air Canada's starting position in the debate, in keeping with the classic human rights analysis in Canada, was that it had a prima facie duty to accommodate older pilots - to the point of "undue hardship". In other words, Air Canada must employ pilots beyond the age of 60, unless it would suffer undue hardship by doing so.
Even before November 2006, pilots over the age of 60 could act as first officers without violating the ICAO rules. The tribunal found (and Mactavish agreed) that the international rules did not prevent Air Canada from continuing to deploy its senior pilots as first officers. At the tribunal hearing, it appears that Air Canada did not offer evidence of undue hardship if it were to carry out this method of accommodation pre-November 2006.
The court then considered whether the mandatory retirement policy was a "bona fide occupational requirement" after the change of the ICAO policy.
The vast majority of the evidence advanced by Air Canada addressed the undue hardship that would arise after the November 2006 ICAO rule change (which, for the most part, came from scheduling difficulties arising from the need to ensure that over-60 pilots had access to under-60 first officers for each flight). This evidence came mainly from Captain Steven Duke, described as Air Canada's "Six Sigma Black Belt for Flight Operations".
More specifically, Duke testified that by having a defined retirement age, Air Canada could better predict its future requirements, in that it could more accurately plan for the succession of its pilots in advance, rather than waiting for them to announce their departure. He indicated that if mandatory retirement were abolished, an over-60 pilot could retire without much notice, causing difficulties for Air Canada, since it would take three months to schedule and train a new pilot.
Duke also offered evidence that within five years, a substantial portion of Air Canada's pilots would be over the age of 60. He explained, through a series of "experiments examining the scheduling consequences of having various percentages of A-340 Captains and First Officers being over the age of 60 in Vancouver and Toronto", that under the current ICAO rules, eliminating the requirement to retire at the age of 60 would create an environment where some of Air Canada's more junior pilots would receive "materially lower quality monthly schedules, including being placed on reserve schedules rather than fixed flying schedules".
He went on to testify that to deal with this situation, Air Canada would have to hire additional pilots to ensure that all flights were properly staffed, all the while paying the over-60 pilots whose services could not always be used because of the ICAO policy.
In the end, the tribunal found several deficiencies in Duke's 'experiments', which led the panel to conclude that his evidence was insufficient to establish that scrapping the retirement policy would result in undue hardship to Air Canada.
However, in reviewing the tribunal's decision, Mactavish noted that there were a number of problems with the tribunal's treatment of Duke's evidence. For example, the tribunal noted that there was "no evidence" on certain aspects of Duke's experiments - when it was clear that the tribunal had misapprehended his testimony in this regard.
In another instance, the tribunal noted that Duke had not explained how he had arrived at his conclusions - when the record clearly shows that he had explained that he had used Air Canada's normal scheduling software, identified certain pilots as restricted under the ICAO standards and then tried to generate hypothetical schedules in the same way that Air Canada generates real monthly schedules.
In another section of the tribunal's ruling, the panel found that there was "no evidence as to what is a materially lower quality schedule and why this is so". However, Duke had explained at the hearing that a "materially lower quality schedule was one where senior pilots were awarded the reserve duty that would typically be awarded to more junior pilots, as opposed to a fixed flying schedule". He also explained that seniority determines the quality of the schedule that a pilot can obtain (ie, more senior pilots work fewer days per month).
Mactavish noted that these failings did not result in a problem with the weight given to Duke's evidence; rather, it was the fact that the tribunal had found that there was no evidence at all on these points. For that reason, she concluded that the tribunal had not undertaken a reasonable analysis of the evidence.
She ordered the same panel of the tribunal to reconsider this evidence on the existing record to determine whether Air Canada had established that age was a bona fide occupational requirement for its airline pilots after November 2006. (Little evidence of undue hardship was adduced for the period before the ICAO rule change - so a portion of the tribunal's ruling was upheld.)
Finally, while the tribunal ruled on the basis that the pilots had conceded that Air Canada had met the first two prongs of the Meiorin test, the record stated otherwise - there was ample evidence that the concession was not made.
As a result, Mactavish ordered the tribunal to rule on all three aspects of the Meiorin test when it makes a determination on the issue of whether Air Canada would suffer undue hardship from the disappearance of a mandatory retirement policy, post-November 2006.
For further information on this topic please contact Carlos P Martins at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800), fax (+1 416 982 3801) or email ([email protected]).
Endnotes
(1) Air Canada Pilots Association v Kelly; Air Canada v Vilven, 2011 FC 120.