Civil servants who work for the federal government cannot be forced to retire. However, under current federal human rights legislation, mandatory retirement may be allowed for non-civil servants who work for an employer in a federally regulated industry. The CHRA, section 15(1)(c) 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".
Recently, Air Canada pilots George Vilven and Neil Kelly, succeeded in challenging Air Canadas mandatory retirement policy. Mandatory retirement for Air Canada at age 60 has been a company policy and part of their pension plan since 1957. Since the early 1980s, provisions mandating retirement at age 60 have been part of the collective agreement between Air Canada and the Air Canada Pilots Association ("ACPA") (Vilven v Air Canada; Kelly v Air Canada, 2009 FC 367).
Vilven had been a pilot for Air Canada for a number of years. He turned 60 in 2003, and in accordance with the mandatory retirement provisions of the collective agreement, was required to retire on September 1 (Vilven v Air Canada; Kelly v Air Canada, 2009 FC 367). There was no suggestion of job performance-related issues or medical fitness issues. The sole reason for Vilven's employment termination was the mandatory retirement provision in the collective agreement.
In August 2004, Mr. Vilven filed a complaint against Air Canada with the Canadian Human Rights Commission, alleging discrimination on the basis of age, contrary to sections 7, 9 and 10 of the CHRA. Likewise, Mr. Kelly filed a complaint against both Air Canada and ACPA in March 2006. A group of current and former Air Canada pilots wanting to eliminate mandatory retirement ("Fly Past 60 Coalition") was granted interested party status in the case. This group filed a Notice of Constitutional Question, challenging the constitutionality of subparagraph 15(1) (c) of the CHRA on the basis that it violated the Canadian Charter of Rights and Freedoms ("Charter bisection 15(1).
The Canadian Human Rights Tribunal ("Tribunal") dismissed Vilven's and Kelly's complaints, and also found that CHRA section 15(l)(c) did not contravene Charter section 15(1) (Vilven and Kelly v Air Canada and Air Canada Pilots Association, 2007 CHRT 36 ("Vilven and Kelly Tribunal 200/'). The Tribunal accepted evidence that 60 was the "normal age of retirement" for persons working in positions similar to Vilven and Kelly. While the Tribunal determined that the complainants had made out a prima facie claim that they had been discriminated against under CHRA, it also held that Air Canada had established that 60 was the normal age of retirement, and thus, the policy did not amount to a discriminatory practice.
Vilven and Kelly applied to the Federal Court for judicial review of the Tribunal's decision. Madam Justice Anne Mactavish of the Federal Court first found as reasonable the Tribunal's conclusion that the normal age of retirement for persons in positions similar to those occupied by Vivien and Kelly was 60 and thus was not discriminatory. Thus, the fact that they were required to retire at 60 in accordance with the collective agreement was not a discriminatory practice under section 15(l)(c) of the CHRA.
Next, the Federal Court examined whether section 15(l)(c) violated Charter s. 15(1). The Federal Court concluded that it did, because it denies older workers the equal protection of the law, and has the effect of perpetuating the group disadvantage and prejudice faced by older workers in Canada. In addition, the provision perpetuates the view that older workers are less capable, or less deserving of recognition or value as human beings or members of Canadian society.
Since the Tribunal had determined that section 15(1) (c) of the CHRA did not offend Charter section 15(1), it had not addressed the question of whether the section could nevertheless be justified under Charter section 1. The Federal Court set aside the Tribunal decision and sent it back for reconsideration. If the Tribunal eventually determined that section 15(1) (c) is not saved by Charter section 1, the Federal Court instructed the Tribunal to decide whether the mandatory retirement provision was nevertheless a bona fide occupational requirement under CHRA sections 15(l)(a) and 15(2).
In reconsidering the issues, the Tribunal first dealt with whether CHRA section 15(1) (c) could be saved by Charter section 1. The Tribunal relied on the test set out in R v Oakes,  1 SCR 103 to determine whether the impugned provision is a "reasonable limit prescribed by law as can be justified in a free and democratic society."
However, the Tribunal also discussed some more recent decisions. In these cases, courts have indicated that the social and economic context in which the McKinney decision was rendered had changed sufficiently to leave the Supreme Court of Canada's decision in McKinney inapplicable to today's circumstances with respect to Charter s. 1. The Tribunal noted:
* Mandatory retirement is no longer as prevalent in Canada as it was when McKinney was decided;
* Expert evidence before it questioned many of the concerns raised in McKinney; and
* The loss of work can have a detrimental impact on an individual's sense of self-worth and well-being.
The Tribunal held that that it can no longer be said that the "goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights." Further, the "normal age of retirement" criterion is not rationally connected to the goal of negotiated mandatory retirement, and instead the alternative of applying the defence of the bona fide occupational requirement would be less intrusive. The Tribunal noted that in the British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 SCR 3 ("Meiorin") decision, the Supreme Court had underlined the importance of assessing the capabilities of each individual up to the point of undue hardship, rather than submitting to the concerns about individual accommodation in the collective bargaining process. Finally, the Tribunal concluded that the negative effects of the infringement (depriving individuals of the protection of the CHRA) outweighed the positive benefits associated with section 15(1)(c). Thus, section 15(l)(c) was not a reasonable limit on the complainants' equality rights under Charter section 15(1). In sum, the offending provision of the CHRA could not be saved by Charter section 1.
Next, the Tribunal dealt with whether the mandatory retirement provision in the collective agreement was a bona fide occupational requirement ("BFOR") within sections 15(1) (a) and 15(2) of the CHRA. Tribunals and courts apply the three-step Meiorin test in order to determine whether an employment practice is a BFOR.
1. The mandatory retirement provision must be adopted for a purpose that is rationally connected to the performance of the job.
2. The mandatory retirement provision must be adopted in the honest and good faith belief that it is necessary to the fulfillment of a legitimate work-related purpose.
3. The mandatory retirement provision must be reasonably necessary to the accomplishment of the legitimate work related purpose. It must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer or the union.
In this case, at issue was the third Meiorin factor. Air Canada and ACPA argued that reinstating the two pilots would cause undue hardship. First, there were age limitations on flying internationally and also, ACPA argued that removal of mandatory retirement would limit the number of positions available to pilots under age 60. Also, the removal of the age 60 provision would require ACPA and Air Canada to renegotiate their collective agreement. The Tribunal noted (Vilven and Kelly Tribunal 2007 at para 133) that removal of the mandatory retirement provision would likely result in a delay but not a denial of progression in the careers of younger pilots. Also, the international age requirements could be met if the two pilots flew as first officers rather than captains. Finally, the Tribunal noted that the respondents had not provided sufficient evidence that the renegotiation of the collective agreement would constitute undue hardship. Thus, the Tribunal concluded that the respondents had not established that mandatory retirement was a BFOR under the CHRA.
Air Canada and ACPA appealed the case to the Federal Court and Justice Anne Mactavish also dealt with the second appeal. When the case arrived at the Federal Court for the second time, Justice Mactavish ruled that the Tribunal had acted unreasonably when it failed to acknowledge and analyze the evidence Air Canada had submitted to support its claim that an age limit of 60 for airline pilots is a BFOR.
The Tribunal had applied the three-part test set out in Meiorin (above) for consideration about whether the age limit was a BFOR. In considering the third factor--whether it is impossible to accommodate an employee without imposing undue hardship on an employer--factors considered by the court include cost, safety, employee morale, interference with other employees' rights, and disruption of the collective agreement. However, CHRA section 15(2) states:
(2) For any practice mentioned in paragraph (1)(g) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (l)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost, [emphasis added]
In 2007, the Tribunal held that it was not limited by the factors listed in CHRA section 15(2) (health, safety, and cost) and could also consider other factors, such as employee morale and mobility (etc.). Justice Mactavish ruled that the Tribunal's interpretation of section 15(2) was unreasonable, noting that the wording of the statute indicated Parliament's intention to limit the factors to be taken into account in an accommodation analysis under the CHRA. Justice Mactavish noted that the wording of section 15(2) indicated that strong inference could be made that these three specific matters are exhaustive. However, Justice Mactavish also noted that the breadth of the factors considered had no bearing in this case because the issue of BFOR and undue hardship related to cost-related operational matters. Thus, the issue of the factors of undue hardship to be considered under section 15(2) is not yet settled.
Justice Mactavish returned the matter to the Tribunal for reconsideration a second time because she held that the Tribunal was unreasonable in failing to acknowledge and analyze the evidence that Air Canada had submitted to support its claim that age 60 is a BFOR. She was concerned about the Tribunal's treatment of evidence about the unworkability of scheduling pilots who are over 60. It appears then, that section 15(l)(c) of the CHRA is unconstitutional, as it was found by the Federal Court to violate Charter section 15(1), and then found by the Canadian Human Rights Tribunal as not saved by Charter section 1. Nevertheless, mandatory retirement provisions may be found not to be discriminatory if they are bona fide occupational requirements. It will usually be up to respondents to demonstrate that they cannot accommodate the individual to the point of undue hardship. This will have to be done on an individual assessment basis rather than by relying on a blanket policy or one that provides for the "normal age of retirement" for a particular profession.
In the meantime, Vilven is now 67 and Kelly is 65, and their case does not seem to be close to being resolved.
Linda McKay-Panos, BEd. LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta. Portions of this article are reproduced with permission from ABlawg.ca.
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|Title Annotation:||Human Rights Law|
|Date:||Jul 1, 2011|
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