Vilven v. Air Canada

Vilven v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2009-04-09
Neutral citation
2009 FC 367
File numbers
T-1674-07, T-1678-07, T-1680-07
Notes
Reported Decision
Decision Content
Date: 20090409
Docket: T-1674-07
Citation: 2009 FC 367
Ottawa, Ontario, April 9, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
GEORGE VILVEN
Applicant
and
AIR CANADA,
AIR CANADA PILOTS ASSOCIATION, and
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
Docket: T-1678-07
AND BETWEEN:
ROBERT NEIL KELLY
Applicant
and
AIR CANADA,
AIR CANADA PILOTS ASSOCIATION, and
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
Docket: T-1680-07
AND BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
and
GEORGE VILVEN
ROBERT NEIL KELLY
AIR CANADA
AIR CANADA PILOTS ASSOCIATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
PARA.
I. Introduction…………………………..…………………………………………….. 1
II. Background to the Complaints……………………………………………………... 11
i) Mandatory Retirement at Air Canada…………………………………….…11
ii) George Vilven’s Complaint…………………………………………………13
iii) Robert Neil Kelly’s Complaint…………………………………………….. 19
III. The Human Rights Complaints……………………………...………………...….… 24
IV. The Proceedings before the Canadian Human Rights Tribunal………………...…… 28
V. Issues…………………………………………………………………………...……58
VI. Standard of Review………………………………………………………………….60
VII. Did the Tribunal Err in Defining the “Normal Age of Retirement”
for Employees Working in Positions Similar to Those Occupied by
Messrs. Vilven and Kelly? .............................................................................................75
i) The Canadian Human Rights Act…………………………………………..….76
ii) Where the Onus Lies in Relation to Paragraph 15(1)(c) of the CHRA………....84
iii) The Characterization of Messrs. Vilven and Kelly’s Positions and
the Choice of Comparator Group…………………………………………..…..87
iv) Is a Binding Rule Required for There to be a “Normal Age of Retirement? ....128
v) Was There a “Normal Age of Retirement” for Canadian Airline Pilots?...........165
vi) Conclusion with Respect to the Availability of the “Normal Age of
Retirement” Defence………………………………………………………..176
VIII. Does Paragraph 15(1)(c) of the CHRA Violate Subsection 15(1) of the Charter?.....185
i) Early Supreme Court of Canada Jurisprudence Regarding
Mandatory Retirement…………………………………………………….191
ii) The Decision in Law v. Canada…………………………………………...201
iii) The Tribunal’s Decision on the Charter Issue……………………………...205
iv) The Supreme Court’s Decision in Kapp……………………………………229
v) Analysis……………………………………………………………………243
a) The Purpose of Paragraph 15(1)(c) of the CHRA……...….............244
b) Does Paragraph 15(1)(c) of the CHRA Create a Distinction
Based on an Enumerated Ground? ..................................................250
c) Does the Age-Related Distinction Contained in Paragraph
15(1)(c) of the CHRA Create a Disadvantage by
Perpetuating Prejudice or Stereotyping? .........................................263
i) Pre-Existing Disadvantage Suffered by the Individual
or Group……………………………………………………...266
ii) The Degree of Correspondence between the Impugned Law
and The Actual Needs, Circumstances, and Capacities of the
Individual or Group…………………………………......…….280
iii) Does the Law Have an Ameliorative Purpose or Effect?...........284
iv) The Nature and Scope of the Interest Affected………………..292
v) Other Observations………………………………………..….304
d) Conclusion with Respect to the Subsection 15(1)
Charter Issue………………………………………….….…….…335
IX. Disposition…………………………………………………………………….……341
X. Costs…………………………..……………………………………………………343
I. Introduction
[1] Paragraph 15(1)(c) of the Canadian Human Rights Act is an unusual provision to find in human rights legislation, in that it allows for employers to discriminate against their employees on the basis of age, as long as that discrimination is pervasive within a particular industry.
[2] George Vilven and Robert Kelly were each forced to retire from their positions as pilots with Air Canada when they turned 60 years of age, in accordance with the mandatory retirement provisions of the collective agreement in force between their union and the airline.
[3] Human rights complaints filed by Messrs. Vilven and Kelly were dismissed by the Canadian Human Rights Tribunal, which found that 60 was the “normal age of retirement” for positions similar to those that they occupied at the time of their retirement, as contemplated by paragraph 15(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. As a result, the termination of their employment did not amount to a discriminatory practice within the meaning of the Act.
[4] The Tribunal also found that paragraph 15(1)(c) of the Canadian Human Rights Act did not violate subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
[5] Mr. Vilven, Mr. Kelly, and the Canadian Human Rights Commission have each brought applications for judicial review with respect to the Tribunal’s decision. All three applications challenge the Tribunal’s finding that 60 was the normal age of retirement for positions similar to those occupied by Messrs. Vilven and Kelly at the time of their retirement from Air Canada. Messrs. Vilven and Kelly have each also challenged the constitutionality of paragraph 15(1)(c) of the Canadian Human Rights Act in their applications, while the Commission has not.
[6] The three applications for judicial review were heard together, and these reasons pertain to all three cases, with the proviso that the Court’s Charter analysis does not apply in relation to the Commission’s application for judicial review (File T-1680-07).
[7] It should also be noted at the outset that while the applicants have raised a number of issues in their various applications for judicial review, what is not in issue in this case is any question relating to pilot safety. The parties agree that the fitness of individual pilots to fly is determined not by Air Canada, but by Transport Canada, as part of its pilot licensing regime. If, after an individualized assessment, Transport Canada determines that an individual is no longer fit to fly, then that individual will not receive a pilot’s license.
[8] For the reasons that follow, I find that while the Tribunal made errors in relation to its “normal age of retirement” analysis, its conclusion that 60 was the normal age of retirement for pilots in positions similar to those occupied by Messrs. Vilven and Kelly was reasonable. Consequently, the Canadian Human Rights Commission’s application for judicial review will be dismissed.
[9] However, the Tribunal erred in its analysis of the constitutionality of paragraph 15(1)(c) of the Canadian Human Rights Act. The statutory provision violates subsection 15(1) of the Charter, as it denies the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. In so doing, paragraph 15(1)(c) has the effect of perpetuating the group disadvantage and prejudice faced by older workers by promoting the perception that such individuals are less worthy and less deserving of the protection of the law.
[10] As a consequence, Messrs. Vilven and Kelly’s applications for judicial review will be allowed, the decision of the Canadian Human Rights Tribunal will be set aside, insofar as it relates to the Charter issue, and the matter will be remitted to the Tribunal for further consideration in accordance with these reasons.
II. Background to the Complaints
i) Mandatory Retirement at Air Canada
[11] Mandatory retirement for pilots at Air Canada began as a company policy. Since 1957, the Air Canada pension plan has stipulated that 60 is the compulsory age of retirement for pilots. As of the early 1980’s, provisions mandating retirement at age 60 have been included as part of the collective agreement in force between Air Canada and its pilots’ union. Since 1995, Air Canada pilots have been represented by the Air Canada Pilots Association (ACPA).
[12] Shortly before the Tribunal hearing regarding Messrs. Vilven and Kelly’s human rights complaints was to begin, ACPA held a referendum on the mandatory retirement issue, with 75% of its members voting in favour of retaining mandatory retirement for Air Canada pilots.
ii) George Vilven’s Complaint
[13] George Vilven was hired as a Pilot-in-training by Air Canada in May of 1986. Shortly thereafter, he qualified as a Second Officer on Boeing 727 aircraft, and began flying from a base in Winnipeg. As a result of his seniority, Mr. Vilven was subsequently able to bid for a position as a First Officer on Boeing 727 aircraft. After receiving the necessary training, Mr. Vilven qualified as a First Officer in January of 1990.
[14] Over the ensuing years, Mr. Vilven relocated to Toronto, and was later able to use his seniority to transfer his base from Toronto to Vancouver. He was also able to bid on a succession of higher status and higher paying positions as a First Officer on larger and larger aircraft. In his last position with Air Canada, Mr. Vilven was flying as a First Officer on Airbus 340 aircraft.
[15] Mr. Vilven turned 60 on August 30, 2003. In accordance with the mandatory retirement provisions of the collective agreement, Mr. Vilven was required to retire on the first day of the month following his 60th birthday – namely September 1, 2003.
[16] There is no suggestion that there were any job performance problems or medical fitness issues with respect to Mr. Vilven. Indeed, it is common ground that the sole reason for the termination of his employment with Air Canada was the application of the mandatory retirement provisions of the collective agreement in effect between Air Canada and ACPA.
[17] Based upon his years of service with Air Canada, together with his pre-employment military service, Mr. Vilven received pension benefits of $6094.04 per month until he turned 65, and will receive $5534.33 per month from age 65 until his death.
[18] After leaving his employment with Air Canada, Mr. Vilven was able to continue his career in aviation. He flew with Flair Airlines from April of 2005 until May of 2006, when he ceased flying in order to prepare for his hearing before the Canadian Human Rights Tribunal. At the time of the Tribunal hearing, Mr. Vilven continued to hold a valid Canadian Air Transport Pilot’s License.
iii) Robert Neil Kelly’s Complaint
[19] Robert Neil Kelly was hired by Air Canada as a DC-8 Second Officer in September of 1972. Using his seniority, he was able to qualify as a Captain in 1992, flying as the Pilot-in-command of various types of aircraft. At the time of his retirement from Air Canada, Mr. Kelly was flying as the Captain and Pilot-in-command of an Airbus 340.
[20] The term “Pilot-in-command” should not be confused with that of “Captain”. Pilot positions at Air Canada include Captains, First Officers and Relief Pilots. The “International Standards on Personnel Licensing” promulgated by the International Civil Aviation Organization (ICAO), the United Nations organization charged with fostering civil aviation safety, requires that one pilot on each flight be designated as the Pilot-in-command of the flight: see the International Civil Aviation Organization, Convention on International Civil Aviation: Annex 1- International Standards and Recommended Practices- Personnel Licensing (Montreal: ICAO, 2006). Although the Captain of an aircraft will ordinarily be the Pilot-in-command, this is not necessarily the case.
[21] Mr. Kelly turned 60 on April 30, 2005. In accordance with the mandatory retirement provisions of the collective agreement, Mr. Kelly was forced to retire from Air Canada on May 1, 2005. As was the case with Mr. Vilven, there was no issue as to Mr. Kelly’s capacity to fly safely, and the parties agree that the only reason for the termination of Mr. Kelly’s employment with Air Canada was the application of the mandatory retirement provisions found in the governing collective agreement.
[22] In accordance with the pension option that he selected, Mr. Kelly will receive $10,233.96 in pension benefits each month until he turns 65, and $9,477.56 per month thereafter until his death.
[23] Like Mr. Vilven, Mr. Kelly was able to continue flying after leaving Air Canada. He initially worked on contract as a First Officer with Skyservice Airlines, flying Boeing 757s and 767s. At the time of the Tribunal hearing, Mr. Kelly continued to hold a valid Canadian Air Transport Pilot’s License, and was working on contract with Skyservice as a Captain and Pilot-in-command, flying routes, including international routes, on Boeing 757s.
III. The Human Rights Complaints
[24] Mr. Vilven filed his complaint against Air Canada with the Canadian Human Rights Commission in August of 2004. He asserted that in forcing him to retire at age 60, Air Canada violated sections 7 and 10 of the Canadian Human Rights Act. A copy of the relevant statutory provisions is attached as an appendix to these reasons.
[25] In contrast, Mr. Kelly’s human rights complaint was brought against both Air Canada and ACPA, and was filed with the Commission on March 31, 2006. His complaint alleged discrimination on the basis of age, contrary to the provisions of sections 7, 9 and 10 of the Act.
[26] Both complaints were referred to the Canadian Human Rights Tribunal by the Commission, and the two cases were heard together at a single hearing.
[27] In the course of the parties’ oral submissions, I was advised that there are some 58 additional human rights complaints brought by former Air Canada pilots now pending before the Tribunal. The hearings into these complaints are evidently on hold, pending receipt of the Court’s decision in this matter.
IV. The Proceedings before the Canadian Human Rights Tribunal
[28] The hearing into Messrs. Vilven and Kelly’s complaints was held over some eleven days, before a three-person panel of the Canadian Human Rights Tribunal. The two complaints were joined, and ACPA was granted “interested party” status before the Tribunal in relation to Mr. Vilven’s complaint. The Tribunal also granted interested party status to the “Fly Past 60 Coalition”, a group of current and former Air Canada pilots who are united in their goal of eliminating the mandatory retirement age at Air Canada.
[29] In advance of the Tribunal hearing, the Fly Past 60 Coalition filed a Notice of Constitutional Question, challenging the constitutionality of paragraph 15(1)(c) of the Canadian Human Rights Act on the basis that it violated subsection 15(1) of the Charter. Paragraph 15(1)(c) of the Act provides that it is not a discriminatory practice if an individual’s employment is terminated “because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual”.
[30] As was noted earlier, the Canadian Human Rights Tribunal dismissed Mr. Vilven’s and Mr. Kelly’s complaints, finding that age 60 was the normal age of retirement for persons working in positions similar to those of the complainants at the operative time. The Tribunal also found that paragraph 15(1)(c) of the Canadian Human Rights Act did not contravene subsection 15(1) of the Charter.
[31] In concluding that age 60 was the normal age of retirement for persons working in positions similar to those of Messrs. Vilven and Kelly, the Tribunal started by observing that Canada has no maximum licensing age for airline pilots. To be licensed, pilots must successfully pass a medical examination approved by Transport Canada. Pilots under the age of 40 must undergo a medical examination once a year, whereas pilots over 40 must undergo a medical examination twice each year.
[32] The Tribunal then considered where the burden of proof lay in relation to paragraph 15(1)(c) of the Act. That is, the Tribunal asked itself whether it was up to complainants to demonstrate that they had not reached the normal age of retirement for positions of the type that they had occupied, or whether it was up to Air Canada and ACPA to show that 60 was indeed the normal age of retirement for the purposes of the statutory provision. The Tribunal concluded that the onus lay on Air Canada and ACPA to show that 60 was the normal age of retirement for the purposes of paragraph 15(1)(c) of the Act.
[33] In coming to this conclusion, the Tribunal had regard to the decision in Ontario Human Rights Commission and O’Malley v. Simpson Sears Ltd. [1985] 2 S.C.R. 536, where the Supreme Court of Canada held that the burden was on a complainant to establish a prima facie case of discrimination.
[34] According to the Supreme Court, a prima facie case of discrimination is one that covers the allegations made, and which, if believed, is complete and sufficient for a decision in favour of the complainant, in the absence of a reasonable answer from the respondent. Once a prima facie case of discrimination has been established by a complainant, the burden then shifts to the respondent to provide a reasonable explanation for the conduct in issue.
[35] As the Tribunal noted, it is the respondent that will ordinarily be in possession of the necessary information to respond to the prima facie case. Indeed, in this case, Mr. Vilven testified as to the significant difficulties he had encountered in trying to assemble information with respect to retirement ages and mandatory retirement policies at other airlines in Canada and around the world. In contrast, with some effort, Air Canada was able to obtain a considerable amount of data with respect to the retirement policies and retirement ages for airlines around the world.
[36] Having regard to the remedial nature of the legislation, the Tribunal was satisfied that the goals of the Canadian Human Rights Act were best attained by placing the onus on employers to demonstrate that their employees were retired in accordance with the normal age of retirement for similar positions.
[37] Given that there was no question but that the employment of Messrs. Vilven and Kelly had been terminated because they had reached 60 years of age, the Tribunal was satisfied that a prima facie case of discrimination contrary to the provisions of section 7 of the Canadian Human Rights Act had been established against Air Canada in each case.
[38] The Tribunal was also satisfied that a prima facie case of discrimination contrary to subsection 10(b) of the Canadian Human Rights Act had been made out as against Air Canada and ACPA. This provision makes it a discriminatory practice for an employer or employee organization to enter into an agreement that deprives an individual of an employment opportunity on a prohibited ground. In light of the mandatory retirement provisions of the Air Canada/ACPA collective agreement, the Tribunal found that there had been a prima facie breach of this statutory provision as well.
[39] The Tribunal further found that ACPA had agreed to the inclusion of the mandatory retirement provision in the collective agreement. Given that section 9 of the Act makes it a discriminatory practice for an employee organization to act in a way that would deprive an individual of an employment opportunity, the Tribunal concluded that a prima facie case against the union had also been established in relation to the section 9 complaint asserted in Mr. Kelly’s case.
[40] As a consequence, the Tribunal held that the burden shifted to Air Canada and ACPA to demonstrate that 60 was indeed the normal age of retirement for pilots in similar positions.
[41] In this regard, the Tribunal observed that the term “normal age of retirement” in paragraph 15(1)(c) is identified in relation to “employees working in positions similar to the position of the individual” who filed the complaint. This led the Tribunal to ask itself two questions: firstly, “What is the proper comparator group to identify the positions that are similar to that occupied by the complainants?” and secondly, “What is the normal age of retirement?”
[42] In relation to the first question, the Tribunal rejected ACPA’s submission that it should limit its consideration to individuals occupying positions with airlines within Canadian federal jurisdiction. The Tribunal noted that using Canadian airline pilots as the proper comparator group would result in Air Canada setting the industrial norm, because of its dominance in Canada’s airline industry. This in turn would allow Air Canada to effectively determine the application of paragraph 15(1)(c) of the Act as it relates to the airline industry in this country.
[43] In the Tribunal’s view, in choosing the appropriate comparator group, the proper approach was to identify the essential features of the positions in question. In this regard, the Tribunal was of the view that no differentiation should be made between pilots working as Captains, and those working as First Officers. While noting that Captains have ultimate control over the aircraft, in the Tribunal’s view, the two positions were otherwise very similar.
[44] Based upon the evidence of Messrs. Vilven and Kelly, the Tribunal determined that the appropriate comparator group was “pilots who fly with regularly scheduled, international flights with […] major international airlines”.
[45] Insofar as the determination of the normal age of retirement was concerned, the Tribunal had regard to the wording of both the English and French versions of paragraph 15(1)(c), which provide that:
15. (1) It is not a discriminatory practice if
…
(c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual …
15. (1) Ne constituent pas des actes discriminatoires :
….
c) le fait de mettre fin à l’emploi d’une personne en appliquant la règle de l’âge de la retraite en vigueur pour ce genre d’emploi …
[46] The Tribunal observed that one could use either a normative or an empirical approach in determining the normal age of retirement for similar positions within a given industry. In this regard, the Tribunal found that the French version of paragraph 15(1)(c) suggested the use of a normative approach, in light of the reference to “the application of a rule in force for this type of job” (the Tribunal’s translation). According to the Tribunal, this normative approach asks one to search for the existence of a rule governing the maximum age of retirement in the airline industry.
[47] The Tribunal found just such a rule in the International Standards on Personnel Licensing prescribed by ICAO. Under the ICAO standards in effect at the time of the retirements of Messrs. Vilven and Kelly, contracting states (including Canada) were not to permit anyone to act as Pilots-in-command of aircraft engaged in international air transport operations if the individual had reached his or her 60th birthday. ICAO also recommended, but did not require, that individuals not be permitted to co-pilot aircraft engaged in international air transport operations, if the individual was over the age of 60.
[48] Although not relevant to these complaints, it bears noting that since the time of Messrs. Vilven and Kelly’s retirement, these standards have been amended to allow pilots to continue to fly in international airspace as Pilots-in-command until age 65. The ICAO recommendations with respect to co-pilots now also refer to 65 as the relevant age.
[49] In the Tribunal’s view, the ICAO standards qualified as a rule or standard within the meaning of paragraph 15(1)(c), as they governed the same community of major international carriers that the Tribunal had chosen as comparators to determine ‘positions similar’ to those of Messrs. Vilven and Kelly. In this regard, the Tribunal did not distinguish between the mandatory rule governing pilots-in-charge, and the recommended practice with respect to co-pilots.
[50] The Tribunal also considered what the result would be if the empirical approach were used to determine the normal age of retirement. In this regard, the Tribunal examined the statistical evidence with respect to retirement ages for commercial airline pilots, both in Canada and around the world. The Tribunal concluded that no Canadian airline other than Air Canada would qualify as a “major international carrier”. As a consequence, the statistical evidence with respect to retirement ages at these airlines could not be considered in determining what the normal age of retirement was for positions similar to those of Messrs. Vilven and Kelly.
[51] The Tribunal found that complete data was available for 10 major international airlines, collectively employing some 25,308 pilots. During the 2003-2005 period, 80% of pilots working for these airlines were required to retire at age 60 or younger. This led the Tribunal to conclude that 60 was the retirement age for the majority of positions similar to those of Messrs. Vilven and Kelly, and was thus the “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act.
[52] As a result, the Tribunal found that Air Canada’s mandatory retirement policy did not amount to a discriminatory practice within the meaning of the Act.
[53] The Tribunal then turned to consider whether paragraph 15(1)(c) of the Canadian Human Rights Act violated subsection 15(1) of the Charter, which provides that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on … age…”.
[54] The Tribunal started its analysis with a consideration of the Supreme Court of Canada’s decisions in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 and Harrison v. University of British Columbia, [1990] 3 S.C.R. 451. The Tribunal noted that in McKinney, the Supreme Court had determined that a statutory provision very similar to paragraph 15(1)(c) of the Canadian Human Rights Act, namely subsection 9(a) of the Ontario Human Rights Code, violated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code on the basis of an enumerated ground.
[55] The Tribunal went on to observe that at the time that McKinney was decided, considerations regarding the nature and scope of rights under subsection 15(1) were dealt with under section 1 of the Charter. Citing the Supreme Court’s intervening decisions in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, and Gosselin v. Quebec (Attorney General), 2002 SCC 84, the Tribunal found that the law regarding the analysis of discrimination claims under subsection 15(1) of the Charter had evolved since McKinney was decided.
[56] After reviewing this jurisprudence, the Tribunal identified the question to be answered in determining whether paragraph 15(1)(c) of the Canadian Human Rights Act violated subsection 15(1) of the Charter as being “whether, as a result of the age-based distinction in s. 15(1)(c) of the CHRA, the Complainants’ dignity was affronted or they experienced negative stereotyping relating to their age”.
[57] The Tribunal concluded that although paragraph 15(1)(c) of the Act deprived Messrs. Vilven and Kelly of the opportunity to challenge the mandatory retirement policy in their workplace, the loss of this opportunity did not violate their dignity, or fail to recognize them as full and equal members of society. As a consequence, the Charter challenge was also dismissed.
V. Issues
[58] These applications for judicial review raise the following issues:
1. Did the Tribunal err in defining the “normal age of retirement” for employees working in positions similar to those occupied by Messrs. Vilven and Kelly by:
Mischaracterizing the essential features of their positions? and Choosing an inappropriate comparator group?
2. Is a binding rule required for there to be a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act ?
3. Was there a “normal age of retirement” for pilots occupying positions similar to those occupied by Messrs. Vilven and Kelly at the time that they were forced to retire from Air Canada? If so, what was it?
4. Did the Tribunal err in concluding that paragraph 15(1)(c) does not violate subsection 15(1) of the Charter?
[59] Before turning to consider each of these questions, however, the Court must first identify the appropriate standard of review to be applied in relation to each of the issues.
VI. Standard of Review
[60] The parties are in agreement as to the standards of review to be applied to every issue in this case, save one.
[61] Most of the issues relating to the application of paragraph 15(1)(c) of the Canadian Human Rights Act involve the application of the provisions of paragraph 15(1)(c) to the facts of this case. With this in mind, I agree with the parties that deference is owed to these aspects of the Tribunal’s decision, and that each of these issues should be reviewed against the standard of reasonableness.
[62] Insofar as the Tribunal’s finding that paragraph 15(1)(c) of the Canadian Human Rights Act does not violate subsection 15(1) of the Charter is concerned, the parties all accept that this aspect of the Tribunal’s decision is to be reviewed against the standard of correctness. I agree. Charter questions must be decided consistently and correctly: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 58 and 163.
[63] Where the parties disagree is in relation to the standard of review to be applied to the question of whether a binding rule is required for there to be a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act. The answer to this question involves the interpretation of the statutory provision, and the potential need to reconcile the French and English versions of the legislation.
[64] Messrs. Vilven and Kelly submit that as a question of statutory interpretation is involved, the Tribunal’s conclusions should be reviewed against the standard of correctness. In contrast, the Canadian Human Rights Commission, Air Canada and ACPA all submit that as it is the Tribunal’s enabling statute that is at issue in this case, the Tribunal’s interpretation of the statutory provision should be reviewed against the reasonableness standard.
[65] The Tribunal did not make any effort to reconcile the French and English versions of paragraph 15(1)(c) in this case, nor did it identify precisely what was required in order to establish the existence of a “normal age of retirement”, whether it be a binding rule or merely an industry custom or practice. Instead, the Tribunal examined the evidence using both the normative approach which Mr. Vilven and Mr. Kelly say is required by the French version of paragraph 15(1)(c), and the empirical approach arguably required by the English version.
[66] As will be explained below, I agree with the Commission, Air Canada and ACPA that, to the extent that the Tribunal’s reasons could be read to interpret paragraph 15(1)(c) of the Act as requiring that there be a binding rule in place in a given industry mandating retirement at a specified age in order for the defence contemplated by the provision to be available to an employer, the Tribunal’s interpretation should be entitled to deference.
[67] Citing earlier decisions such as Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, and Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, the Supreme Court observed at paragraph 54 of Dunsmuir that “deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity”.
[68] The Supreme Court went on to observe that regard must be had to the nature of the question of law at issue in a given case, in determining whether any deference is owed to the decision-maker. Where the question of law is of “central importance to the legal system ... and outside the ... specialized area of expertise” of the Tribunal in question, the correctness standard will always apply. However, a question of law that does not rise to this level may be compatible with a reasonableness standard: see Dunsmuir, at para. 55. See also Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 25.
[69] In determining whether the reasonableness standard should apply to a question of law in a particular case, the Supreme Court held that regard should be had to whether the statute contains a privative clause. As the Court observed, a privative clause is “a statutory direction from Parliament or a legislature indicating the need for deference”: Dunsmuir, at para. 55.
[70] The reviewing Court should also consider whether there exists “a discrete and special administrative regime in which the decision-maker has special expertise”: Dunsmuir, at para. 55.
[71] The Canadian Human Rights Act does not contain a privative clause, nor does it provide for a statutory right of appeal. It does, however, create a discrete and specialized administrative regime to deal with complaints of discrimination at the federal level. In addition, the Canadian Human Rights Tribunal - the body entrusted by Parliament with the adjudication of such complaints - is an expert tribunal: CHRA, at subsection 48.1(2). Moreover, the Tribunal is one specifically empowered to decide questions of law: CHRA, at subsection 50(2).
[72] The question of law at issue in this case is not one of “central importance to the legal system ... and outside the ... specialized area of expertise” of the Canadian Human Rights Tribunal. Rather, it relates to the proper interpretation of the Tribunal’s enabling legislation, and involves a question that is directly within the Tribunal’s own area of expertise.
[73] In my view, these factors, taken together, point to a standard of reasonableness. As the Supreme Court observed at para. 56 of Dunsmuir, “There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator's decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated.”
[74] In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, as well as whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir, at para. 47.
VII. Did the Tribunal Err in Defining the “Normal Age of Retirement” for Employees Working in Positions Similar to Those Occupied by Messrs. Vilven and Kelly?
[75] In order to put the issues raised by the parties in relation to the normal age of retirement question into context, it is helpful to start by identifying the purpose of the Canadian Human Rights Act, and by reviewing the principles established by the jurisprudence governing the interpretation of human rights legislation.
i. The Canadian Human Rights Act
[76] The Canadian Human Rights Act is quasi-constitutional legislation, which has been enacted to give effect to the fundamental Canadian value of equality, a value which has been described as lying at the very heart of a free and democratic society: see Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at para. 97.
[77] As identified in section 2 of the Act, the purpose of the legislation is to ensure that individuals have an equal opportunity to make for themselves the life that they are able and wish to have, without being hindered by discriminatory practices based upon considerations such as race, sex and age, amongst others.
[78] Human rights legislation has been described as “...the final refuge of the disadvantaged and the disenfranchised”: see Zurich Insurance Co. v. Ontario (Human Rights Commission) [1992] 2 S.C.R. 321, at para. 18. As such, the Supreme Court of Canada has repeatedly warned of the dangers of strict or legalistic approaches which would restrict or defeat the purpose of such a quasi-constitutional document: see Mossop, at para. 95.
[79] Indeed, the Supreme Court has observed on numerous occasions that human rights legislation is to be given a large, purposive and liberal interpretation in a manner consistent with its overarching goals, so as to ensure that the remedial goals of the legislation are best achieved: see, for example, Mossop, at para. 94. See also Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; O’Malley, previously cited; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114.
[80] This means that ambiguous language must be interpreted in a way that best reflects the remedial goals of the statute. It follows that a strict grammatical analysis may be subordinated to the remedial purposes of the law: see New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, at para. 67.
[81] That is, “it is inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which is constitutional or quasi-constitutional in nature”: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27, at para. 30, (citing Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, and O'Malley).
[82] This interpretive approach does not, however, permit interpretations which are inconsistent with the wording of the legislation: see Potash Corporation, at para. 19.
[83] Finally, while human rights legislation is generally to be broadly interpreted, this is not so with respect to the defences provided for in the human rights statute in question, which are to be interpreted narrowly: see Brossard (Town) v. Québec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
ii. Where the Onus Lies in Relation to Paragraph 15(1)(c) of the CHRA
[84] No issue has been taken by either Air Canada or ACPA with respect to the Tribunal’s conclusion that the onus was on Air Canada and ACPA to establish that Messrs. Vilven and Kelly were retired in accordance with the normal age of retirement for similar positions.
[85] I agree that once a complainant has established a prima facie case of discrimination on the basis of a proscribed ground such as age, the burden shifts to the responding parties to bring themselves within one of the exemptions identified in section 15 of the Canadian Human Rights Act, such that there exists a bona fide justification for the action taken: see Québec (Commission des droits de la personne et droits de la jeunesse) v. Maksteel Québec Inc., 2003 SCC 68.
[86] Indeed, as the Supreme Court of Canada has observed, limits on rights conferred by human rights legislation must be justified by those seeking to impose them: see Potash Corporation, at para. 83, per Chief Justice McLachlin.
iii. The Characterization of Messrs. Vilven and Kelly’s Positions and the Choice of Comparator Group
[87] In order to determine whether there existed a “normal age of retirement” within the meaning of paragraph 15(1)(c) of the Act at the time that Messrs. Vilven and Kelly were compelled to retire from Air Canada, the Tribunal had to identify which positions were similar to those that they occupied. This required the Tribunal to first identify the essential features of the complainants’ own positions.
[88] In this latter regard, the Tribunal was of the view that no differentiation should be made between Captains’ positions and those of First Officers. While noting that Captains have ultimate control over the aircraft, in the Tribunal’s view, the positions were otherwise very similar.
[89] Based upon the evidence of Messrs. Vilven and Kelly, the Tribun