On February 3, 2011, the Federal Court of Canada issued a decision in Vilven v. Air Canada, the prolonged legal battle of two Air Canada pilots who challenged the Company's mandatory retirement policy for pilots who reached the age of 60. In that decision, the judge sent the matter back to the Canadian Human Rights Tribunal (the "Tribunal") to determine whether Air Canada could demonstrate that age is a bona fide occupational requirement under the Canadian Human Rights Act (the "Act"). In July 2011, the Tribunal rendered its decision and upheld Air Canada's policy.  The mandatory retirement policy was also upheld by the Tribunal in August 2011 in another decision involving seventy other retired Air Canada pilots.  The following outlines the pilots' saga.

Context

On the day following their 60th birthdays, two pilots, George Vilven and Robert Kelly, retired from Air Canada in accordance with their collective agreement. They later filed a complaint under the Act alleging that they had been subjected to a discriminatory practice based on their age.

From this initial complaint and for the past four years, a dialogue has unraveled between the Tribunal and the Federal Court on a number of constitutional and human rights issues. As a result, in this decision, the Tribunal only deals with the issue of whether age is a bona fide occupational requirement for Air Canada's pilots considering the International Civil Aviation Organization's ("ICAO") new rules for pilots between the ages of 60 and 65.  The ICAO, the UN organization charged with promoting civil aviation safety, allows Captains and Pilots-in-Command between the ages of 60 and 65 to fly internationally but only if another pilot in the crew is under the age of 60. This rule is also referred to as the "over/under rule".  

The Meiorin Test as Interpreted by the Federal Court

In order to determine whether age is a bona fide occupational requirement for Air Canada's pilots, the Tribunal applied the test developed by the Supreme Court in Meiorin and interpreted by the Federal Court in 2011.

The Meiorin test provides that an employer must establish on a balance of probabilities that it adopted the standard (1) for a purpose rationally connected to the performance of the job, (2) in an honest and good faith belief that the standard was necessary to the fulfillment of that legitimate work-place purpose and that (3) the standard is reasonably necessary for the accomplishment of the work-place purpose and, consequently, accommodating the class of individuals would cause undue hardship to the employer.

The Federal Court then interpreted this test. It established that, in order to ensure that the standard does not have a discriminatory foundation, the first and second steps require an assessment of the legitimacy of the general purpose of the standard and of the employer's intent in adopting it. As for the third step, it requires an assessment of whether the standard is required to accomplish a legitimate purpose and whether the employer can accommodate the complainants without suffering undue hardship considering health, safety and cost.

The Tribunal's Decision

By applying the Meiorin test as interpreted by the Federal Court, the Tribunal first said that on a balance of probabilities the Air Canada's mandatory retirement policy did not have a discriminatory foundation. It explained that Air Canada had always engaged in a meaningful bargaining process with the pilot's union that led to a lasting collective agreement that embraced seniority and provided for mandatory retirement at the age of 60 with a reasonable pension.

The Tribunal then said that, on a balance of probabilities, the mandatory retirement policy was reasonably necessary to accomplish the legitimate purpose of integrating the Air Canada's needs and the pilots' rights and needs.

Finally, the Tribunal determined that Air Canada would suffer undue hardship considering health, safety and cost in accommodating pilots over the age of 60. The Tribunal recognized that the majority of Air Canada domestic flights either fly over American airspace or have an American airport as an alternate airport. Therefore, eliminating mandatory retirement at the age of 60 and applying the ICAO's "over/under rule" would significantly increase operational costs, cause inefficiency in scheduling pilots for flights and negatively impact pilots' pension plan and the rule of seniority, which is central to the pilots' collective agreement.

The Saga Continues…

This long-lasting debate was reignited in August 2011 when the Tribunal rendered yet another decision in a new case involving another seventy retired Air Canada pilots. Although the Tribunal dismissed the pilots' complaint, it did so on different grounds by applying paragraph 15(1)(c) of the Act which provides 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.  It said that 60 was the normal retirement age for airline pilots in Canada and therefore the policy was not discriminatory.

At a time when employers are faced with the challenge of retaining their older workforces while trying to make way for younger employees, we can hope that the courts will offer some clear guidance in the future on this matter. Of course, these decisions only apply to federally regulated employers as mandatory retirement has been abolished in many provinces.