A recent decision by the Federal Court of Appeal upholding mandatory retirement for Air Canada pilots “walks us back a couple of decades in terms of social thinking,” says CARP, Canada’s largest seniors’ organization.
But while the July 17 court of appeal decision is a major setback for the retired pilots and others in federally regulated industries facing forced retirement, it won’t affect most Canadians, experts say.
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The little-noticed decision, posted last week to the court of appeal’s website, overturned earlier findings by the Federal Court of Canada and the Canadian Human Rights Tribunal that contractual provisions forcing Air Canada pilots to retire at 60 violated the Charter of Rights.
The court of appeal concluded that a landmark 1990 Supreme Court of Canada decision that mandatory retirement for university teachers does not violate the Charter of Rights was a binding precedent that the Federal Court and tribunal ought to have followed.
The appeal court referred the case — brought by retired Air Canada pilots George Vilven and Robert Kelly — back to the human rights tribunal, with a direction to dismiss the complaints.
The 1990 decision, the court said, found that mandatory retirement is constitutionally permissible if a fixed retirement date “permits the negotiation of mutually beneficial arrangements which might not otherwise be possible.
“That said, it may be that conditions have changed to the point where the Supreme Court is prepared to revisit this issue,” the court said. “If it is, then obviously, nothing in this decision would prevent it from doing so.”
At issue is a section of the Canadian Human Rights Act that allows federally regulated employers to terminate employees who have reached “the normal age of retirement” for workers in similar positions. The section was repealed last December as part of the federal government’s omnibus budget bill, but the change doesn’t take effect until this Dec. 15.
All provinces and territories had earlier repealed similar provisions in their own human rights codes. For federal public servants, mandatory retirement was eliminated in 1986, but the federal act’s provision still applies to 12,000 employers with more than 800,000 employees.
Susan Eng, CARP’s vice-president for advocacy, said appeal court’s decision sends a message about how society values older workers. “This walks us back a couple of decades in terms of social thinking,” she said.
“When the courts take a giant step backwards, we worry that the government might actually take this as a cue to walk it back as well,” she said, though she added: “I’ve got to think it’s not worth their while to do that.”
Kevin Banks, director of Queen’s University’s Centre for Law and the Contemporary Workplace, pointed out that circumstances have changed a lot since the Supreme Court’s 1990 decision.
“The longer-term trend is for labour and skills shortages rather than an oversupply,” Banks said. That has prompted discussion of the need to keep older workers productive and attached to the workforce. “That’s very different from the talk in 1990.”