The November 8, 2010 Remedy Decision provided that answer. The Tribunal:
1. ordered the two pilots to be reinstated at full seniority
2. ruled that the damages would be determined as of September 1, 2009 – immediately following the Tribunal’s earlier ruling that the their employment was wrongfully terminated on the basis of age – but not retroactive to the date of termination; and
3. declined to issue a cease order forcing Air Canada to stop terminating its pilots’ employment at age 60.
The convoluted case has been hampered by extensive delays in legal proceedings, including a two-year delay resulting from an appeal of the original Tribunal decision to the Federal Court. The first Federal Court finding that Section 15(1)(c)contravened the equality provisions of the Charter of Rights and Freedoms was not appealed. So, pursuant to that finding, the Tribunal was asked to rule on the remedies set out above.
In a separate proceeding, the case was sent back to the Tribunal to determine if that violation was justified under Section 1 of the Charter which permits a contravention if it is a “reasonable limit[s] prescribed by law as can be demonstrably justified in a free and democratic society”. The Tribunal ruled that Section 15(1)(c)was not saved by this provision and Air Canada appealed to the Federal Court. That appeal was argued in November 2010 and the Federal Court issued its decision on February 3rd, 2011.
In the meantime, the proceedings on the Remedy phase have continued. Pursuant to the November 8, 2010 Tribunal decision, Neil Kelly and George Vilven have been reinstated and are currently undergoing the final phase of their training to return them to active status.
The Tribunal’s Remedy Decision established the individual remedies available to the two named complainants but did not constrain Air Canada from continuing to retire its pilots as they are scheduled to do.
In declining to use its discretionary power to order Air Canada to cease its practice of requiring its pilots to retire at age 60, the Tribunal made it clear that the decision in the case for these two pilots does not conclude the issue of whether mandatory retirement is eliminated for everyone else in federally regulated industries – or even other pilots at Air Canada. The Federal Court also declined to make a declaration that would have applied to anyone besides the two named pilots.
The judicial process has been closely watched by about 150 other Air Canada pilots in the queue at the Canadian Human Rights Tribunal who are awaiting hearings regarding their mandatory retirement. In addition, several other groups, airline and non-airline, apparently have similar age-discrimination complaints in process before the Canadian Human Rights Commission and/or the Tribunal, including truckers and longshoremen.
Air Canada has taken the position that all judicial rulings to date apply only to the named complainants prompting the expectation that every pilot seeking to resist mandatory retirement will have to go through the long and costly court process which has taken seven years to date.