Mandatory Retirement offends Charter: Federal Court – CARP calls for Parliamentary Action


February 8, 2011

TORONTO, ON: In the wake of yet another key Court ruling that mandatory retirement offends the Charter of Rights and Freedoms, CARP calls on Parliament to act swiftly on Bill C-481.

On February 3, 2011, the Federal Court released its decision that the mandatory retirement exemption of the Canadian Human Rights Act unequivocally violates the equality provisions of the Charter of Rights and Freedoms. Had it ruled the other way and allowed an application by Air Canada and the pilots’ union for a judicial review, it would have effectively overturned the recent reinstatement of two Air Canada pilots, George Vilven, 67 and Neil Kelly, 65. Click here to read decision

The Court ruled that Section 15(1)(c)of the Canadian Human Rights Act [“Section 15(1)(c)“] which allows mandatory retirement for federally regulated industries, breached the equality rights protected under the Canadian Charter of Rights and Freedoms and that the breach was not “saved” by Section 1 of the Charter which permits infringements on equality rights that “can be demonstrably justified in a free and democratic society”.

By finding that the breach of Vilven and Kelly’s equality rights was not justified, the Court, in effect, allowed to stand their reinstatement and the damages that were ordered by the Tribunal in its November 8, 2010 decision. Vilven and Kelly are currently undergoing the final phase of their training to return them to active status.

“The Court has left no doubt that mandatory retirement is anachronistic, and that employees in federally regulated industries such as transportation, media and finance will soon catch up with the rest of the country’s labour force and be free from age discrimination and arbitrary agreements made by their employers and their unions that override their personal choices. However, this case only applies to Messrs Vilven and Kelly. And although it is a binding precedent, the other pilots who have been involuntarily retired will still have continue their legal proceedings to assert their rights”, said Raymond D. Hall, legal counsel for the Fly Past 60 Coalition.

Despite finding that Section 15(1)(c) breached the equality rights protected under the Charter of Rights and Freedoms and that breach was not “saved” by Section 1 of the Charter, the Court declined, on technical grounds, to declare paragraph 15(1)(c) invalid which would have applied to all federally regulated industries. Previously, the Tribunal declined to issue a cease order requiring Air Canada to stop terminating its pilots’ employment at age 60. Consequently, while this case serves as a strong precedent for the approximately 150 other Air Canada pilots who currently have age-based wrongful dismissal complaints before the Tribunal and any others in a similar position, each case must still proceed to its individual conclusion and the Federal Court finding is likely to be appealed.

Air Canada and the pilots’ union have thirty days from the February 3rd decision to file an appeal to the Federal Court of Appeal. Given the public interest and legal significance of the decision, an appeal is likely and ultimately, the case will almost certainly wind up before the Supreme Court of Canada.