The two Air Canada pilots whose Charter challenge helped to spur on the elimination of mandatory employment for all other employees in federal workplaces must now head to the Supreme Court of Canada to get justice for themselves and all those who lost their jobs before the new law takes effect.

Theirs has been a tortuous process. After being forced to retire at age 60, they were ordered reinstated by the Canadian Human Rights Tribunal in 2010 after the Tribunal found their mandatory retirement at age 60 was in violation of the Charter of Rights and Freedoms. They were subsequently re-terminated after a second Tribunal panel dismissed their human rights complaints. They have now taken their Charter case to the Supreme Court of Canada.

First Officer George Vilven, whose employment was terminated in 2003, and Captain Neil Kelly, whose employment was terminated in 2005, were both re-employed for seven months while their legal saga continued to play out before the Tribunal and the courts. The most recent development was the Federal Court of Appeal’s decision to overturn the decision of the Federal Court, issued in February, 2011, upholding the Tribunal’s Charter decision, on the ground that both the Tribunal and the Federal Court had failed to abide by a 1990 Supreme Court of Canada decision, known as McKinney, finding that the termination of employment of several university professors did not violate their Charter rights.

The Federal Court of Appeal, in its August decision declined to deal with the substantive Charter issues placed before it in argument, stating instead that in order to overcome the McKinney precedent, the pilots had to take their own case to the Supreme Court.

That is what they have now done. On Monday, they filed their application for leave to appeal with the Court. Although the SCC grants leave to only a fraction of the number of applications filed, this case represents the first time that the Court will have an opportunity to revisit its 1990 decision and to assess the Charter issue in the context of vastly different legal and social circumstances.

Since 1990, every Province and Territory in Canada has repealed, absolutely or conditionally, legislation that permits exemptions to the general prohibition against discrimination on the basis of age. In December, 2011, the federal government formally repealed the mandatory retirement exemption in the Canadian Human Rights Act (the repeal comes into force December 15, 2012), but the echoes of the McKinney decision still redound through the legal system.

For example, even though Ontario repealed the mandatory retirement exemption in the Ontario Human Rights Code, effective December, 2006, it did not amend the coincident regulations that permit discrimination on the basis of age with respect to disability benefits to employees over age 65. New Brunswick permits an absolute exemption to the prohibition of mandatory retirement for any employer that provides its employees a bona fide pension plan.

The time has come for the Supreme Court of Canada to revisit and revise its McKinney decision to reflect the fact that mandatory retirement is nothing more than unjustified, statutorily sanctioned age discrimination, plain and simple.

The demographic make-up of our labour force has changed substantially in the intervening 22 years since McKinney, with increased life expectancies, a bulging population of persons electing to continue employment beyond the historical normal retirement age, and a shortage of skilled and experienced workers in key sectors of the economy.

Many individuals are seriously and adversely affected by forced retirement, including spouses who have spent long periods out of the labour force raising families, as well as recent immigrants who have not earned enough pension credits to establish a satisfactory retirement income prior to having their employment involuntarily terminated.

Although these concerns were identified in the dissenting opinions of two of the judges who participated in the 1990 Supreme Court of Canada case, they have been exacerbated since then.  It is indeed time for the courts to finally retire mandatory retirement.

The application by the two pilots raises another key issue: access to justice.  According to Raymond Hall, legal counsel for the pilots and a former pilot himself whose employment was terminated by Air Canada in 2009, one of the key questions raised in this case is the role of the Tribunals and the Courts in adjudicating Charter issues. He points out that the Federal Court of Appeal, in its judgment, found that in order to arrive at a different Charter interpretation in their own factual situation, the pilots must take their case back to the Supreme Court of Canada:

“How beneficial is the Charter to the average Canadian, if individuals whose Charter rights are ostensibly violated must spend years in litigation and hundreds of thousands of dollars in legal fees to go all the way to the Supreme Court simply to have their own factual situation assessed through the lens of the Charter?” he asks. “The Charter then becomes a shield for large corporations and large unions,” he suggests, “not a tool available to the average person. Surely that is not its purpose.”