In an August 17, 2007 decision1, the Canadian Human Rights Tribunal (hereinafter the "C.H.R.T.") dismissed complaints by two Air Canada pilots who were forced to retire at age 60 pursuant to the mandatory retirement provisions of the Air Canada pilots’ pension plan, which had been incorporated in the collective agreement signed between Air Canada and the union representing the Air Canada pilots.

The C.H.R.T. found that the fact the complainants’ employment had been terminated solely due to the mandatory retirement policy constituted prima facie evidence of the existence of the practice of age-related discrimination in violation of Sections 7, 9 and 10 of the Canadian Human Rights Act2 (hereinafter the "C.H.R.A.").

Pursuant to those sections, on a prohibited ground of discrimination it is a discriminatory practice:

  • to directly or indirectly refuse to employ or continue to employ any individual3;
  • for an employee organization to take steps that would deprive a member of employment or advancement opportunities or limit his employment opportunities or otherwise adversely affect his status4; and
  • for an employer, employee organization or employer organization to enter into an agreement affecting any aspect of employment that tends to deprive an individual of any employment or advancement5.

Age is one of the prohibited grounds mentioned in Section 3 of the C.H.R.A.

In defence, the employer raised Section 15 (1) (c) of the C.H.R.A., which states that it is not a discriminatory practice if "an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual".

The C.H.R.T. found that the onus was on the employer to prove the normal retirement age for an appropriate comparator group. The C.H.R.T. found the appropriate comparator group to be the pilots who make routine international flights for major international airlines. According to the evidence adduced, it was shown that 60 was the mandatory retirement age in effect for pilots with such major airlines.

Moreover, the C.H.R.T. found that Section 15 (1) (c) C.H.R.A. does not contravene Section 15 of the Canadian Charter of Rights and Freedoms6, which states that a statute cannot discriminate based, among other things, on age. This is the first decision in which the C.H.R.T. has ruled on the constitutionality of Section 15(1)(c) C.H.R.A.