• Mandatory Retirement Policies Discriminate Against Pilots Over the Age of 60
  • December 6, 2010 | Author: Richard G. Petrie
  • Law Firm: Stewart McKelvey - Fredericton Office
  • In a recent case released by the Canadian Human Rights Tribunal (the “CHRT”), the CHRT found that a policy, flowing from a collective bargaining agreement between Air Canada and the Air Canada Pilots Association requiring mandatory retirement for pilots at age 60, is a discriminatory practice under the Canadian Human Rights Act. Both Air Canada and the pilots association were found liable. As long as a pilot has a valid pilot license and a medical certificate allowing commercial flight, that individual cannot be forced to retire.

    In the subsequent decision to determine the appropriate remedy, Vilven v. Air Canada, pilots George Vilven and Robert Neil Kelly sought the following remedies:

    • A cease and desist order, preventing the mandatory retirement provisions in the future;

    • Reinstatement of Vilven and Kelly as pilots with Air Canada, with seniority;

    • Compensation for lost wages from the date of their retirement to the date of their reinstatement;

    • Upon reinstatement, continuing accrual of pension, other benefits, and out of pocket expenses for Vilven and Kelly on the same terms and conditions as before their retirement;

    • $20,000 as compensation for wilful and reckless conduct of Air Canada and the pilots association and another $20,000 for pain and suffering for both pilots;

    The award is noteworthy and we therefore set out the decision in each of the points below.

    Cease and Desist Order

    The CHRT found in its decision that because this particular complaint dealt with the complaints of two individuals as opposed to a group of individuals, it did not have the authority to implement a broad constitutional remedy quashing the applicability of the mandatory retirement provisions in the collective bargaining agreement.

    Although the CHRT did not issue a cease and desist order, future individuals who are forced to retire will rely on this decision to seek a remedy.

    Reinstatement with Seniority

    In determining the proper seniority of  Vilven and Kelly, the CHRT reiterated the established legal principle that in human rights jurisprudence, the purpose of awarding a remedy is to make whole the victim of the discrimination in the appropriate circumstances, indicating that they should be credited with the seniority that they would have accrued had they not been retired, unless there is some reason for discounting their seniority. The tribunal ruled that unless seniority can be tied exclusively to compensation, which it could not be in this case as seniority brings many benefits besides compensation, then Vilven and Kelly should have the seniority they would have had if they were never retired and the CHRT awarded them the seniority as they requested it.

    Compensation for Lost Wages

    While the CHRT acknowledged the principle that those subject to discrimination should be put in the position that they would have been in had they not been discriminated against, the CHRT also acknowledged the danger of retroactive decisions in unfairly affecting parties who believed they were acting within the law at the time they took the action in question. The CHRT referred to the Supreme Court in noting that identifying a point in time when the law changed makes it easier to ensure that parties who relied on the former legal rule while it prevailed will be protected, therefore striking a balance between the legitimate interests of parties who make decisions based on a reasonable assessment of the state of the law at the relevant time on the one hand and the need to allow constitutional jurisprudence to evolve over time on the other.

    The CHRT found that Air Canada and the pilots association acted in good faith and reasonably in applying the mandatory retirement policy to the complainants and awarded lost compensation from the date when the decision was made that the mandatory retirement policy was discriminatory, August 28, 2009. The CHRT considered this to be a fair balance between compensating Vilven and Kelly and not imposing the burden of damages for a policy that was legal at the time.

    Continued Pension and Other Benefits

    While the CHRT did not make a decision with respect to the pension plan, the CHRT exercised its discretion to award lost compensation related to bonuses and profit sharing from the compensation period starting on August 28, 2009.

    Pain and Suffering and Wilful and Reckless Conduct

    The two pilots were asking for the maximum that the CHRT can award, $20,000 for pain and suffering. The CHRT found that the tribunal jurisprudence clearly established that the maximum award is reserved for the “most egregious discriminatory practice” and that the facts of this particular case did not meet that standard. In fact, the CHRT found that the facts of the case militated against such a finding because the pilots did nothing to challenge the policy, despite being well aware of it, until they were retired. This allowed them to benefit from the discriminatory practice by being able to move up more quickly in terms of seniority as more senior pilots retired at the age of 60.

    The pilots argued that Air Canada and the pilots association were wilful or reckless in not re-hiring them immediately after the finding that the mandatory retirement policy was discriminatory. The CHRT rejected this argument because other remedies besides reinstatement were available and such an order was not automatic. Because reinstatement does not necessarily flow from a finding of liability, the pilots’ decision to wait until the CHRT decision on remedy did not amount to wilful or reckless conduct.