However, for greater clarity, the legal rights of the two pilots were decided in two separate streams
1. an August 2009 decision of the Tribunal found that their equality rights under the Charter were breached and the breach was not saved by Section 1 of the Charter. This decision was appealed by Air Canada and was affirmed by the February 3rd Federal Court decision; and
2. a November 2010 decision of the Tribunal to reinstate the two pilots and order damages – which would have been overturned if the Federal Court had ruled the other way
The reasons for judgement are important. In dismissing Air Canada’s appeal the Federal Court stated emphatically that the 1990 Supreme Court of Canada line of cases upholding the mandatory retirement exemption under Section 1 of the Charter was no longer applicable to current social and human rights values, and could no longer stand.
This finding will be binding on the Tribunal and will have obvious implications for the approximately 150 other Air Canada pilots who currently have age-based wrongful dismissal complaints before the Tribunal. However, each case must still proceed to its individual conclusion and the 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 most certainly wind up before the Supreme Court of Canada.
Proposed legislation is currently before Parliament that would repeal the mandatory retirement exemption under the Canadian Human Rights Act. Private Member’s Bill, C-481, sponsored by Liberal MP, Raymonde Folco, passed Second Reading in December with all party support, and is the subject of Parliamentary Committee hearings February 10th. If successful in Committee, the Bill is expected to go back to Parliament for Third Reading and passage later in February. If it receives Royal Assent before a federal election is called, mandatory retirement as permitted by Section 15(1)(c) will be consigned to the dustbin of history.
The question is who will do it first: Parliament or the Courts.
On November 8, 2010, the Canadian Human Rights Tribunal released its long-overdue decision to reinstate two Air Canada pilots, George Vilven, 67 and Neil Kelly, 65 whose employment was terminated in 2003 and 2005 respectively pursuant to the mandatory retirement provisions of their collective agreement.
The case deals strictly with the issue of mandatory retirement in the federal jurisdiction—namely, do employers have the right to terminate the employment of individuals on the basis of an arbitrary age? And does the Canadian Human Rights Act – which purports to allow such age discrimination – contravene the Canadian Charter of Rights and Freedoms?
For federally regulated industries, mandatory retirement has been allowed under Section 15(1)(c)of the Canadian Human Rights Act [“Section 15(1)(c)“] if the individuals are forced to retire at what is referred to as “the normal age of retirement for individuals doing similar work.” Vilven and Kelly challenged Section 15(1)(c)as violating the equality provision of the Charter. The Tribunal found in their favour in August, 2009 [“Rights Decision”]. It then held a hearing earlier this year to determine the remedy that should result from that violation of their rights [“Remedy Decision”].