Monday, September 28, 2009

Canadian Mandatory Retirement Dealt 'Fatal Blow' by Ruling

If mandatory retirement is not dead, it was certainly dealt a fatal blow by a Canadian Human Rights Tribunal ruling in two cases decided August 28, 2009.

George Vilven and Robert Kelly are two Air Canada pilots who were forced to retire at age 60. Both Vilven and Kelly felt that being forced to retire when they were clearly able to perform their jobs was obvious discrimination.

S. 15(1)(c) of the Canadian Human Rights Act, however, gave employers in the federally regulated sphere a defence to a complaint of discrimination if they could show there was a “normal retirement age” in a particular industry.

Yet, s. 15(1)(c) of the Canadian Human Rights Act remained anomalous as jurisdictions from British Columbia to Newfoundland abandoned mandatory retirement. As the workforce got older it made less sense to force workers to retire, especially when some wanted or needed to continue working.

It has been a difficult fight for both pilots. The case was first heard at the Canadian Human Rights Tribunal in the summer of 2007. The Tribunal then found that Air Canada had indeed shown there was a normal retirement age of 60 in the airline industry. The Tribunal rejected the notion that s.15(1)(c) was unconstitutional since, they believed, there was no affront to a person’s dignity when a generous pension plan was negotiated between an employer and a union.

The pilots applied to the Federal Court of Canada for judicial review on the grounds that the constitutional question was not properly considered. The Federal Court agreed and haughtily sent the case back to the Tribunal, with step by step notes as to how to properly consider the equality guarantee under the Charter.

The second time around the Tribunal got it right, finding that s.15(1)(c) could not be justified as a reasonable limit on equality rights. The Tribunal therefore ordered the pilots’ reinstatement with full benefits and entitlements.

Before this decision mandatory retirement still affected 10% of the Canadian workforce. Now employers in the federal sphere are scrambling to navigate the implications of this decision – and workers who have been adversely affected by mandatory retirement have finally been vindicated by the Canadian Human Rights Tribunal.

The full text of this ruling is available online. See: George Vilven and Canadian Human Rights Commission and Robert Neil Kelly and Canadian Human Rights Commission, 2009 CHRT 24 (CanLII).

- Stephen Ellis, Toronto

UPDATE: September 29, 2009

Air Canada announced today that it is appealing the recent CHRT decision that ruled that s.15(1)(c) was unconstitutional. Air Canada states that the Tribunal did not apply the proper rules as set out by the Supreme Court of Canada which permit mandatory retirement when such a limit is collectively bargained. The Pilots say the are ready for the fight. Stay tuned, it looks as though there may be one more chapter to this story.
- Stephen Ellis

Stephen Ellis practises Employment Law in Toronto.


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