Employees in federal jurisdiction still face mandatory retirement

Casual followers of the news can be forgiven for experiencing some confusion when reading this week that Air Canada pilots can be forced to retire at age 60. With all the news about the abolition of mandatory retirement across this country, it is easy (but incorrect) to assume that mandatory retirement is a thing of the past.

  

While a number of provinces have now announced, or implemented, legislation to end mandatory retirement, other Canadian jurisdictions have yet to follow suit. The federal context, governed by the Canadian Human Rights Act, is one such  jurisdiction. This has resulted in a checkerboard of mandatory retirement rules across the country.

  

In B.C., the provincial government has passed legislation which will render illegal employers' policies imposing mandatory retirement at age 65. While the B.C. Human Rights Code has always prohibited discrimination on the basis of age, that prohibition only applied to persons 19 years or older and less than 65 years.

  

This meant that employers could impose retirement (and a variety of other measures) with relative impunity against employees older than 65. In effect, it didn't matter if the retirement was being imposed solely because the person had turned 65 - the employer was immune to complaints of discrimination.

  

Newspaper headlines this past weekend announced that two Air Canada pilots had lost their bid to keep working past age 60. That decision arose in the context of the specific provisions of the Canadian Human Rights Act because Air Canada falls within the federal jurisdiction.

  

The federal Act allows employers to impose mandatory retirement on an individual at the "normal age of retirement" for persons working in positions similar to the position of that individual. This allows parties such as Air Canada and its pilots' union to negotiate collective agreements which include a mandatory retirement provision. In practice, it means that only those who have not reached the "normal" age of retirement can complain about the termination of their employment based on age. 

  

In this 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. It is worth noting that neither of the complainants was forced to stop working altogether - both 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, has no maximum licensing age for airline pilots. To be licensed, pilots must successfully pass medical examinations approved by Transport Canada. Pilots under the age of 40 must pass such an examination once per year. After age 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, interestingly, 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 is the normal retirement age. None of the other 6 Canadian airlines (Jazz, Skyservice, Air Transat, Harmony, Canjet, and Zoom) were considered because they do not meet the definition of a major international carrier where pilots fly regularly scheduled international flights. 

  

This 80% retirement rate was sufficient for the Tribunal to conclude that 60 is the "normal" retirement age in this context. The Tribunal went on to conclude that the provision of the Act allowing mandatory retirement at the "normal" retirement age does not violate Canada's Charter of Rights and Freedoms.

  

The Tribunal's conclusion means that Air Canada's 3,000 pilots will continue to be compelled to retire at age 60. That is not necessarily the case for the almost 900 pilots at Canada's other airlines (and it can be inferred from the Tribunal's decision that Air Canada's retirement practices would not be relevant for determining the "normal" retirement age for those employers). 

  

For what it's worth, when you're flying on Air Canada, you can continue to rest assured that the person at the controls is under 60 years of age. Those pilots forcibly retired from Air Canada will just have to satisfy themselves with receiving their "elite" pension benefits while earning a salary flying for other airlines.