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AGING AIR CANADA PILOTS STILL GROUNDED

The saga of Air Canada pilots affected by that airline’s mandatory retirement policy achieved another milestone, recently.  The result, for the moment, is that the mandatory retirement of that airline’s pilots, at age 60, has been upheld.

I first reviewed this case, over 4 years ago, as it began its snakes-and-ladders-like ride through the federal human rights process.  In 2007, all the news in the human resources sector was about the spreading abolition of mandatory retirement across this country.

While many provinces had announced, or implemented, legislation to end mandatory retirement, the federal jurisdiction had yet to follow suit.  And two Air Canada pilots had just lost their bid, pursuant to the Canadian Human Rights Act, to keep working past age 60.

The federal Act, while prohibiting discrimination based on age, continued to allow employers to impose mandatory retirement on an individual at the “normal age of retirement” for persons working in similar positions.  This allowed parties such as Air Canada and its pilots’ union to negotiate collective agreements which included a mandatory retirement provision.

In the Air Canada case, the evidence was that the union had previously agreed to retirement at age 60 for pilots in exchange for a rich compensation package which put the Air Canada pilots in an elite group of pensioners.  Indeed, one of the two complainants was entitled to pension benefits of over $120,000 per year.

Nonetheless the two pilots, Vilven and Kelly, alleged that Air Canada discriminated against them on the basis of age by requiring them to retire at age 60.  Their union supported Air Canada’s opposition to these complaints.  Neither of the complainants was forced to stop working altogether – both had found ongoing employment with other airlines.

The Canadian Human Rights Tribunal dismissed the complaints of discrimination.  It found that age 60 is the “normal” age of retirement, as defined in the Act, for pilots flying regularly scheduled international flights on wide-bodied aircraft with major international airlines.

Canada, in fact, had (in 2007, anyway) no maximum licensing age for airline pilots.  To be licensed, pilots have to successfully pass medical examinations approved by Transport Canada and, after the age of 40, the examination must be passed twice per year. 

Canada is, however, subject to the standards and recommended practices developed by the International Civil Aviation Organization.  The ICAO has standards and recommended practices for the maximum age of pilots flying commercial aircraft internationally.  At the time the pilots were forced to retire from Air Canada, the ICAO’s maximum recommended flying age was 60 (but it has since raised that standard to age 65).

The evidence considered by the Tribunal revealed that, for 80% of pilots flying regularly scheduled international flights on wide-bodied aircraft with major international airlines, age 60 was the normal retirement age.  This was sufficient for the Tribunal to conclude that 60 is the “normal” retirement age in this context. 

That was 2007.  Since then, in more appeals and reconsiderations and rulings on this matter than the average person could hope to count, a number of significant developments have occurred.

In 2009, the Federal Court of Canada and the Canadian Human Rights Tribunal determined that the “normal age of retirement provision” contained in the Canadian Human Rights Act is unconstitutional.  So, regardless of what happens going forward, that protection of the practice of mandatory retirement seems to be a goner.

However, in its most recent ruling, the Tribunal has determined that retirement at age 60 is a “bona fide occupational requirement” in the context of Air Canada’s operations because retaining the pilots beyond that age would constitute an undue hardship for the airline.  This means that the pilots are back where they started in 2007 in that Air Canada can still force them to retire when they turn 60.

In a broader sense, the era of mandatory retirement in the federal jurisdiction for employees who have reached “the normal age of retirement” for persons in similar employment has ended.  This represents one more nail in the coffin of the practice of mandatory retirement from employment.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca.  This subject matter is provided for general informational purposes only and is not intended as legal advice.