How old is too old (to be a pilot)?

By Stuart Rudner and Anique Dublin 

Readers will likely already know that the era of mandatory retirement in Canada is long gone. Dismissing an employee based solely on her age is not only a poor business plan, but an unlawful one in almost all cases.

The issue of mandatory retirement for pilots has been litigated several times. It is important to note that this was in the context of the federal human rights legislation, which used to permit some exceptions to the rule against mandatory retirement.

The Canadian Human Rights Tribunal recently announced it will hold a new hearing into whether Air Canada discriminated against some pilots by forcing them to retire at age 60. Tribunal member David Thomas noted that the Federal Court of Appeal had determined, in its Thwaites/Adamson decision, that “60 was the normal age of retirement for pilots working for Canadian airlines in similar positions to the complainants in the years 2005-2009”; but a group of pilots who retired after that period have not yet had the opportunity to test their case. In the interim, in 2011, the federal government passed a law forbidding federally regulated companies such as Air Canada from enforcing a mandatory retirement age.

Mandatory retirement at Air Canada

The Air Canada pension plan has stipulated that 60 is the compulsory age of retirement for pilots since 1957. In the early 1980s, provisions mandating retirement at age 60 were included as part of the collective agreement in force between Air Canada and its pilots’ union. Since 1995, Air Canada pilots have been represented by the Air Canada Pilots Association (ACPA).

First proceeding: The Vilven/Kelly matter was the first proceeding in the series of challenges to mandatory retirement at Air Canada. The decision considered the impact on pilots retiring between 2003 and 2005.

The parties agreed that the sole reason for the termination of the complainants' employment with Air Canada was the application of the mandatory retirement provisions of the collective agreement in effect between Air Canada and ACPA.

The primary issue was whether the mandatory retirement rule under section 15(1)(c) of the Canadian Human Rights Act (CHRA) was constitutional. Section 15(1)(c) (since repealed) permitted the termination of employment based on age, if it was the “normal age of retirement for employees working in positions similar to the position of that individual.” If section 15(1)(c) applied, then the tribunal had to decide what the normal age of retirement was for similarly employed pilots in Canada.

The Federal Court upheld the tribunal’s finding that 60 was the normal age of retirement for pilots and that Kelly and Vilven were caught by section 15(1)(c). The complainants challenged the constitutionality of section 15(1)(c), and this issue was resolved by the Federal Court of Appeal (FCA), which declared that section 15(1)(c) was constitutionally valid. Leave to appeal to the Supreme Court of Canada was denied.

It should be noted that Parliament repealed section 15(1)(c) of the CHRA in December 2012 and thereafter Air Canada ceased requiring that pilots retire at age 60.

Second proceeding: The Thwaites/Adamson matter was the second proceeding in this series, and it considered the situation of seventy pilots with retirement dates between 2005 and 2009.

The tribunal’s decision was considered by the Federal Court of Appeal, which accepted the tribunal’s finding that “for each of the years 2005-2009, the majority of pilots working for Canadian airlines, including Air Canada, in similar positions to that of the complainants, retired by the age of 60.” The Court of Appeal determined that 60 was the normal age of retirement for pilots working for Canadian airlines in similar positions to the complainants in the years 2005 -2009.

Current proceedings

The Bailie et al matter is the latest proceeding on the issue of the mandatory retirement rules and pilots forced to retire from Air Canada at the age of 60. There were originally 97 complainants, with retirement dates ranging from June 2004 to February 2012. The ACPA filed a motion to dismiss the complaint brought by Bailie et al on the basis that the facts in issue had already been argued, in Vilven/Kelly and Thwaites/Adamson. The tribunal agreed that this was the case for the 52 complainants who had retired between 2005 and 2009, and they were excluded from the action.

The remaining 45 pilots, who retired between December 31, 2009 and February 2012, were allowed to pursue their claim and will have their retirement age reviewed by the tribunal, which will consider evidence of the normal age of retirement from 2010 to 2012. Notably, the tribunal accepted that there may have been changes in the industry during that period which would make the forced retirement discriminatory on the basis of age, but described the possibility as “highly improbable”:

“While I am sympathetic to the respondents’ arguments that it is “highly improbable” that a meaningful change to the material facts affecting the normal age of retirement occurred during the short period after Dec. 31, 2009, until the last Bailie complainant reached the age of 60 in February of 2012, I have not been provided with satisfactory information that there were no changes in the industry.”

So, this claim will proceed, with an analysis of the ordinary age of retirement for pilots. While it will be interesting to follow, the precedential value of the case is minimal at best. It is a very unusual situation being assessed based on outdated laws that are no longer in force, and employers should not be fooled into thinking that they can impose mandatory retirement based upon a notional “ordinary age of retirement”.

As an aside, it is interesting to note that the abolition of mandatory retirement has had some unfortunate unintended consequences. Some employers have chosen not to hire “older” workers due to the uncertainty as to how long they would be “stuck” with them, whereas when mandatory retirement existed, those employers knew that the relationship could only last for a fixed period. In some cases, the legislative change had the opposite effect of what was intended, exposing older workers to additional discrimination.

Anique Dublin is a law clerk at Rudner Law.