Nedelec et al. v. Air Canada and Air Canada Pilots Association

Nedelec et al. v. Air Canada and Air Canada Pilots Association
Collection
Canadian Human Rights Tribunal
Date
2019-07-26
Neutral citation
2019 CHRT 32
File number(s)
T1536/8210 à T1607/5310; T1630/17610 à T1645/17610; T1664/01911 à T1681/03611; T1707/6211 à T1722/7711; T1755/11011 à T1768/12311; T1780/1012, T1781/1012; T1793/2312, T1794/2412; T1801/3112 à T1806/3612; T1801/3112, T1802/3212; T1858/812 à T1861/9112
Decision-maker(s)
Thomas, David L.
Decision type
Ruling
Grounds
Age
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
32
Date:
July 26, 2019
File Nos.:
T1536/8210 to T1607/5310; T1630/17610 to T1645/17610; T1664/01911 to T1681/03611; T1707/6211 to T1722/7711; T1755/11011 to T1768/12311; T1780/1012 & T1781/1012; T1793/2312 & T1794/2412; T1801/3112 to T1806/3612; T1801/3112 & T1802/3212; T1858/812 to T1861/9112
Between:
Gary Nedelec, Alexander Samanek, Michael S. Sheppard, Douglas Goldie, Gary Bedbrook, Pierre Garneau, Jacques Couture, Larry James Laidman, Robert Bruce Macdonald, Gordon A.F. Lehman, Eric William Rogers, Peter J.G. Stirling, David Malcom Macdonald, Robert William James, Camil Geoffroy, Brian Campbell, Trevor David Allison, Benoit Gauthier, Bruce Lyn Fanning, Marc Carpentier, Mark Irving Davis, Raymond Calvin Scott Jackson, John Bart Anderson, David Alexander Findlay, Warren Stanley Davey, Raymond Robert Cook, Keith Wylie Hannan, Michael Edward Ronan, Gilles Desrochers, William Lance Frank Dann, Robert Francis Walsh, John Andrew Clarke, Bradley James Ellis, Michael Ennis, Stanley Edward Johns, Thomas Frederick Noakes, William Charles Ronan, Barrett Ralph Thornton, Robert James McBride, John Charles Pinheiro, David Allan Ramsay, Harold George Edward Thomas, Murray James Kidd, William Ayre, Stephen Norman Collier, William Ronald Clark
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Air Canada and Air Canada Pilots Association
Respondents
Ruling
Member:
David L. Thomas
I. Overview 1
II. Background 2
III. Judicial history of the similar complaints in Vilven/Kelly & Thwaites/Adamson 3
IV. The Issues 5
Issue #1 – Is the Constitutional Question Moot? 6
Issue #2 – Does the Tribunal have the Ability to Award Damages Retroactively? 13
Issue #3 – Was section 15(1)(c) of the CHRA Unconstitutional? 18
V. Conclusion 33
I. Overview
[1] This is a ruling concerning a motion filed by a group of complainants in this matter, represented by Mr. Raymond Hall (the “Coalition Complainants”), challenging the constitutional validity of a former section of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the “CHRA”). Mr. Hall served Notice of the Constitutional Question on February 26, 2018. This Motion is dated June 5, 2018 and questions the constitutional validity of Section 15(1)(c) of the CHRA as it existed until its repeal on December 15, 2012 (see S.C. 2011, c. 24, s. 166).
[2] This motion relates to a group of complaints that are a part of a complex matter involving the mandatory retirement of Air Canada pilots at the age of 60. In a previous ruling on a motion by the Air Canada Pilots Association (“ACPA”) to dismiss all complaints, I partially granted ACPA’s request and dismissed the complaints of those complainants who had reached the age of 60 prior to December 31, 2009 (see 2017 CHRT 22). This matter now concerns only the remaining complainants, those who reached the age of 60 on January 1, 2010 or later.
[3] Section 15(1)(c) of the CHRA permitted the termination of an individual’s employment based on age, if it was the “…normal age of retirement for employees working in positions similar to the position of that individual.” The constitutionality of section 15(1)(c) was essentially resolved in the matter of an earlier group of Air Canada pilots with similar complaints, referred to as the Vilven/Kelly group. That matter was determined by the Federal Court of Appeal (FCA) which affirmed the constitutional validity of the section, overturning the Federal Court’s judicial review of the Tribunal’s decision (see 2012 FCA 209). Leave to appeal the FCA decision to the Supreme Court of Canada (SCC) was denied in 2013 (2013 CanLII 15565).
[4] The present motion seeks to re-visit the constitutionality of section 15(1)(c) on the basis that there have been changes since the Supreme Court of Canada decision in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (“McKinney”) in 1990 that are significant enough to warrant a different finding. The motion asks the Tribunal to find that s.15(1)(c) of the CHRA is of no force or effect, and therefore not a defence available to the Respondents for these complaints.
[5] In May of 2019, the Tribunal wrote to the parties and requested submissions on two questions that were not addressed in their earlier submissions. The Tribunal asked the parties to consider whether or not the constitutional challenge is a moot question. Secondly, if the Tribunal concluded that s.15(1)(c) is unconstitutional, could it order any remedies, more specifically the reinstatement of the Complainants in their employment and the payment of damages/remedies by the Respondents.
[6] The Canadian Human Rights Commission did not make submissions on the original constitutional question motion or to the Tribunal’s subsequent request on the two questions.
II. Background
[7] This inquiry involves the complaints of retired Air Canada pilots who claim that Air Canada engaged in a discriminatory practice and applied a discriminatory policy by requiring them to retire at the age of 60. The mandatory retirement policy was established pursuant to the collective agreement negotiated between Air Canada and the bargaining agent, ACPA, and was reflected in the pilots’ pension plan. As a result, human rights complaints have been filed by many of these retired pilots throughout the years, against both Air Canada and ACPA. In this instance, the complaints of the forty-five (45) remaining pilots have been combined into a single inquiry by the Tribunal, now referred to as the “Nedelec” matter. (Prior to the release of 2017 CHRT 22, it was previously referred to as the “Bailie” matter.) The Complainants claim that requiring them to retire at age 60 is in violation of sections 7, 9 and 10 of the CHRA.
[8] Prior to the Bailie/Nedelec group of complainants, there were two other groups of Air Canada retired pilot complainants before the Tribunal who had also alleged age discrimination with respect to the mandatory retirement policy. The Tribunal similarly grouped those complainants together into separate hearings. The first inquiry will be referred to as the Vilven/Kelly matter, and the second inquiry will be referred to as the Thwaites/Adamson matter. Commencing with the Vilven/Kelly matter, complaints of this nature by Air Canada pilots have been before the Tribunal since 2005.
III. Judicial history of the similar complaints in Vilven/Kelly & Thwaites/Adamson
[9] The Vilven/Kelly matter was the first proceeding regarding the mandatory retirement rules for pilots who were forced to retire from Air Canada at the age of 60. Two (2) complaints were combined for the proceeding, Mr. Vilven’s and Mr. Kelly’s, and both were represented by the same counsel, Mr. Hall. The timeframe assessed in the Vilven/Kelly proceeding was in respect of pilots who had been forced to retire between 2003 and 2005.
[10] The threshold issue in that case was whether the mandatory retirement defence prescribed in section 15(1)(c) of the CHRA was constitutionally valid under s. 15 and s. 1 of the Canadian Charter of Rights and Freedoms (the “Charter”). Section 15(1)(c) of the CHRA then permitted the termination of employment based on age, if it was the “normal age of retirement for employees working in positions similar to the position of that individual.” In that case, if s.15(1)(c) was constitutionally applicable, then the second issue was whether the complainants’ employment had been terminated at the normal age of retirement for similarly employed pilots in Canada, and how that should be determined.
[11] On the constitutional issue, the Tribunal initially concluded that the complainants’ right to equality under s.15 of the Charter had not been violated by s. 15(1)(c) of the CHRA, and as such, no determination under s. 1 of the Charter was necessary. It also held that s.15(1)(c) provided a defence to Air Canada, as in the Tribunal’s view, the complainants’ employment had been terminated at the “normal age of retirement” (see 2007 CHRT 36). This decision was judicially reviewed by the Federal Court, and in her ruling, 2009 FC 367, (“Vilven #1”), Mactavish J. found that the Tribunal had come to the proper conclusion regarding whether the s.15(1)(c) defence had been made out on the facts, but that the Tribunal had erred in its Charter conclusion, and that s.15(1)(c) of the CHRA did indeed violate s.15 of the Charter. The case was then remitted to the Tribunal for a determination of whether or not the s.15 breach could be saved by s.1 of the Charter.
[12] The Tribunal’s second decision in Vilven/Kelly (2009 CHRT 24) concluded that s.15(1)(c) of the CHRA was not a reasonable limit on the complainants’ equality rights under s.15 of the Charter. The respondents “bona fide occupational requirement” (BFOR) defences were not established and, as such, the complaints were substantiated. Air Canada and ACPA applied for a judicial review of this decision. However, on this point of constitutionality, the Federal Court held that the Tribunal was correct in its finding that s.15(1)(c) of the CHRA was not saved by s.1 of the Charter. (See 2011 FC 120, “Vilven #2”.) Air Canada and ACPA then filed an appeal to the Federal Court of Appeal.
[13] Meanwhile, the second group of pilots, those involved in the Thwaites/Adamson matter, had their complaints heard before the Tribunal. In this hearing, the parties initially decided to defer the question of the constitutional validity of s.15(1)(c), and instead litigated the question of whether the age-based terminations of employment in this case had occurred at the “normal age of retirement” within the meaning of this provision. The Tribunal concluded that the normal age of retirement was 60, and therefore the complaints were dismissed by operation of s.15(1)(c). (See 2011 CHRT 11.) Unfortunately, the Federal Court finding in Vilven #2, released a few months earlier, had come to the opposite conclusion on the constitutional validity of s.15(1)(c) and upon motion, the Tribunal then amended its previous decision in the Thwaites/Admanson matter, this time substantiating the complaints, as s. 15(1)(c) appeared to be no longer an available defence (see 2012 CHRT 9).
[14] However, the matter was still not settled. Just three months later, the FCA rendered its decision and overturned Vilven #2 on the question of the constitutionality of s.15(1)(c) in Air Canada Pilots Association v. Kelly, 2012 FCA 209 (“Kelly FCA”). The FCA held at paras. 86 and 88 that the Tribunal and the Federal Court were bound to follow the Supreme Court of Canada in McKinney. The McKinney decision had found that mandatory retirement could be justified under s.1 of the Charter when it was a mutually advantageous arrangement between employers and employees which permits the workplace to be organized in a manner that accommodated the needs of both parties (see Kelly FCA, para. 80).
[15] Given the Federal Court’s earlier judgment in Vilven #1, upholding the Tribunal’s finding that 60 was the normal age of retirement for pilots, and that Mr. Kelly and Mr. Vilven were therefore caught by s.15(1)(c), the decision in Kelly FCA upholding the constitutionality of this provision confirmed that their complaints should be dismissed.
[16] Following the decision in Kelly FCA, the Tribunal’s decisions in the Thwaites/Adamson matter were also judicially reviewed by the Federal Court and then appealed to the FCA. There were several matters at issue, and the FCA accepted the Tribunal’s finding that “…for each of the years 2005-2009, the majority of pilots working for Canadian airlines, including Air Canada, in similar positions to that of the complainants, retire by the age 60” (see 2011 CHRT 11, para. 181).
[17] Furthermore, and this is relevant to our context, the FCA found that “McKinney remains a binding precedent” and noted that in “Kelly FCA, this Court held that McKinney was still good law as it pertains to the constitutionality of mandatory retirement schemes…” (Para. 97.)
[18] In addition to the foregoing summary of the jurisprudence, it should be noted that following Parliament’s repeal of s.15(1)(c) of the CHRA effective December 15, 2012, the Respondents ceased requiring Air Canada pilots to retire at age 60.
IV. The Issues
[19] There are the three main issues to be addressed by the Tribunal. This ruling will address the submissions of the parties on each issue separately. The issues are as follows:
Issue #1 – Is the Constitutional Question Moot?
[20] Is the entire issue before the Tribunal in this motion moot because there is no live controversy anymore and because the Tribunal would not be able to award the remedies sought by the Complainants?
Issue #2 – Does the Tribunal have the Ability to Award Damages Retroactively?
[21] If the Tribunal concludes that no alternative defence is available to the Respondents, would it be fair and just to award damages retroactively if it were determined that the Respondents conducted themselves in accordance with the law as it then stood?
Issue #3 - Section 15(1)(c) of the CHRA
[22] Should the Tribunal find that s.15(1)(c) of the CHRA is of no force or effect, and therefore not a defence available to the Respondents for these complaints, and therefore find liability in favour of the Complainants? To make this finding, the Tribunal must consider the following three questions and answer each successively in the positive:
Have changes to the law of stare decisis, because of the Supreme Court of Canada decisions in Canada (Attorney General) v. Bedford, 2013 SCC 72 (“Bedford SCC”); Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”); and, R. v. Comeau, 2018 SCC 15 (“Comeau”), resulted in Kelly FCA, Adamson FCA and McKinney no longer being binding authorities for the Tribunal on the question of the constitutionality of s.15(1)(c) of the CHRA, and as such, should the Tribunal revisit these findings and conclude that s.15(1)(c) infringes s.15 of the Charter?
If the Tribunal concludes that s.15(1)(c) infringes s.15 of the Charter, is that infringement not saved by s.1 of the Charter?
If the Tribunal concludes that the s.15(1)(c) infringement of s.15 of the Charter is not saved by s.1, and the Respondents do not have an alternative defence, such as a BFOR, is liability predetermined in favour of the Complainants?
[23] I have considered all of the parties’ arguments, although I am not addressing all of them in these reasons. I am addressing the ones that bear on the important points in issue, and on the main relevant factors I must consider (see Turner v. Canada (A.G.) 2012 FCA 159, paras. 40-41).
Issue #1 – Is the Constitutional Question Moot?
[24] In the present motion, the Coalition Complainants are challenging the constitutionality of s.15(1)(c) of the CHRA and are looking for a finding that it is of no force or effect. However, it is not possible for the Tribunal to make a proactive declaration of invalidity because the section has already been repealed. Therefore, are there any remaining issues for the Tribunal to decide? I find there are none and, as such, that the question in this motion is moot.
[25] The Coalition Complainants, in their answer to the Tribunal’s letter, sustained that the motion was not moot. In their view, the primary and sole question is whether the termination of employment, as of the respective dates each pilot turned 60 and was terminated, was in accordance with the law at such times. They argue that the Respondents openly contravened the law by continuing to terminate pilots after the decision of the Federal Court in Vilven #1.
[26] The Respondents, in their submissions, argue that the mootness question depends on the possibility for the Tribunal to award damages retroactively, which will be addressed in the next section of this ruling.
[27] The Supreme Court decision Borowski v. Canada (Attorney General), [1989] 1 SCR 342 established the two-pronged test that must be applied to determine if a case is moot. Firstly, it must be considered whether a live controversy still exists, or if it is merely an academic exercise. If there is no live controversy to be decided, then the court should consider if there are any exceptional reasons to use its discretion to hear the matter anyway. The Supreme Court wrote:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[28] In Saskatchewan (Human Rights Commission) v. Carlson, 2008 SKQB 312 (“Carlson”), the Borowski test was applied under analogous circumstances. Ms. Carlson was forced to retire in 2003 at the age of 65 from her employment as a librarian. At the time, the Saskatchewan Human Rights Code, S.S.1979, c.S-24.1 (the “Saskatchewan Code”) defined “age” as “any age of eighteen years or more but less than sixty-five years”. The Saskatchewan Tribunal concluded that the definition of “age” in the Saskatchewan Code constituted an infringement on the complainant’s equality rights under s.15 of the Charter, but found that it was bound by McKinney. It thus concluded that the infringement was justified under s.1 of the Charter and accordingly dismissed the complaint in October 2007. The complainant appealed.
[29] Meanwhile, the Saskatchewan legislature had introduced amendments to the definition of “age” found in the Saskatchewan Code. In November 2007, the Saskatchewan Code was amended to change the definition of “age” by removing the reference to age sixty-five, thus effectively precluding the possibility of mandatory retirement.
[30] In 2008, on appeal before the Court of Queen’s Bench for Saskatchewan, the question of whether the appeal was moot was raised. Applying the first step of the analysis from Borowski, the court concluded that the appeal was moot. The court noted that a declaration that “age” (as it was defined in the Saskatchewan Code at the time) contravened the Charter could not be made retroactively. While a live constitutional controversy may have existed in 2003 when Ms. Carlson filed her human rights complaint, by 2008 the constitutional issues between the parties had become academic, as the impugned provision had been amended. The court further reasoned that it was not possible for the employer to have contravened a provision of the Saskatchewan Code if it was acting in compliance with the existing provisions at the time (paras. 6-11.)
[31] Turning then to apply the second step of the Borowski analysis, the court refused to exercise its discretion to hear the case despite the matter being moot. The court rejected the argument that the case ought to be heard as there were other outstanding similar complaints regarding mandatory retirement, concluding that the issues were moot for these complainants in the same way that they were for Ms. Carlson, and that no remedy was available to any of these complainants.
[32] A similar constitutional challenge to legislation permitting mandatory retirement in Nova Scotia was also declared moot once the legislation had been repealed. See French v. Nova Scotia (Attorney General), 2012 NSSC 394.
[33] In the current case, the Tribunal has to determine whether a “live controversy” still exists between the parties. This is the first part of the test developed by the SCC in Borowski: “to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic”.
[34] The Tribunal thus has to establish what the possible impact of a constitutional challenge to s.15(1)(c) of the CHRA would be, since it has been repealed more than six years ago. In addition to a declaration of invalidity of s.15(1)(c), the Complainants seek the following remedies:
their reinstatement in employment;
damages for lost wages;
Non-monetary remedies relating to pension benefits and employment seniority with respect to retirement pass travel; and
compensation under s.53(2)(e) and 53(3) of the CHRA.
[35] Under s.53(2) of the CHRA, the Tribunal may make an order against a person found to be engaging or to have engaged in a discriminatory practice and may include in the Tribunal order a number of possible enumerated remedies, as well as compensation for willful and reckless conduct under s.53(3). However, it should be obvious that to make such an order, the Tribunal must conclude that a respondent contravened one or more provisions of the CHRA. Following the reasoning of the Saskatchewan Queen’s Bench in Carlson, if the conduct of the Respondents was compliant with the provisions of the CHRA, then a finding of liability would not be possible and no order could be made.
[36] The Coalition Complainants submit that the reasoning in Carlson is “dubious” because of the manner in which it interpreted the Saskatchewan Code. The Saskatchewan Court did appear to be focused on the language in the Saskatchewan Code relating to the failure to comply with an order of the Saskatchewan Tribunal. The relevant provision stated that intent of a violation (failure to comply with an order) must be proved. I would not disagree that the language is different between the Saskatchewan Code and the CHRA, since in the latter, neither intention nor mens rea is required to substantiate a complaint. However, it does not alter the reality that the Tribunal must find that a respondent contravened a provision under the CHRA before it can order damages. It remains a fact, confirmed twice by the Federal Court of Appeal, that the Respondents did not contravene the CHRA with respect to the complainants in the Vilven/Kelly Matter or the Adamson/Thwaites Matter.
[37] Counsel for the Coalition Complainants makes long argument that the pilots in this matter all filed their complaints after the Federal Court decision in Vilven #1. As such, they argue, the Respondents were aware that s.15(1)(c) was constitutionally invalid and despite this, they continued to lay off pilots as they turned 60. In such a way, they sustain that the Respondents willfully and knowingly violated the Charter rights of these pilots. I do not find this argument to be an accurate reflection of what transpired.
[38] The decision in Vilven #1 was released on April 9, 2009. However, the constitutionality of s.15(1)(c) was not finally determined by that Court. The Court did find that s.15(1)(c) of the CHRA violated s.15(1) of the Charter. However, MacTavish J. referred the matter back to the Tribunal for a determination “on the basis of the existing record whether paragraph 15(1)(c) of the CHRA can be demonstrably justified as a reasonable limit in a free and democratic society.” (Paras 339-340.)
[39] As described above, the Tribunal’s subsequent decision in Vilven/Kelly (2009 CHRT 24), released on August 28, 2009, concluded, inter alia, that s.15(1)(c) of the CHRA was not a reasonable limit on the complainants’ equality rights under s.15 of the Charter. However, it is important to note that this finding was only with respect to “the facts of this case” (para. 155) and that the Tribunal did not order the “cease and desist order” requested by the complainants against the respondents. The Tribunal remained seized of the matter pending further submissions on remedy. (See paras. 158-160.)
[40] The Tribunal held a hearing on remedies and then released its decision (2010 CHRT 27) on November 8, 2010, addressing the remedies sought by Mssrs. Vilven and Kelly. The complainants specifically asked for an an order that the respondents cease requiring pilots to retire upon their 60th birthday. The Tribunal clearly rejected this request in para.12:
Further, and as this Tribunal pointed out in its previous decision, its finding that s. 15(1)(c) offends the Charter is not a legal precedent and is applicable only to the facts of this case. In these circumstances, s. 15(1)(c) remains operative and may be relied upon by other respondents as a defence to any other outstanding or future complaints regarding the mandatory policy in question. To grant the order requested would be to deprive them of the defence afforded by this section.
[41] In Vilven #2, the Federal Court noted that Mssrs. Vilven and Kelley were seeking “an order directing Air Canada to cease applying the mandatory retirement provisions of the pension plan and collective agreement to all Air Canada pilots.” (Para. 474.) Although the Federal Court concurred with the Tribunal’s finding that s.15(1)(c) was not saved by s.1 of the Charter, the court called the request for a cease and desist order “a collateral attack on the Tribunal’s remedial decision.” (Para. 485.) Furthermore, the Federal Court noted that “Tribunals do not have the power to grant general declarations of invalidity.” (Para 479).
[42] Vilven FCA, which overturned the Charter finding affirmed by Vilven #2, also considered Messrs. Vilven and Kelly’s cross-appeal from the Federal Court’s refusal to grant a general declaration of invalidity. However, the FCA did not have to decide on that matter, as it overturned Vilven #2 on the basis of stare decisis and the McKinney decision.
[43] In the absence of a general declaration of the invalidity of s.15(1)(c) of the CHRA, it is not accurate to state that the Respondents were not following the law under the CHRA as it then existed. The Tribunal and the Federal Court were both clear that the remedies granted were only in favour of Messrs. Vilven and Kelly. While there were some submissions that Air Canada may have treated other categories of employees differently after the release of Vilven #1, I do not find that argument, even if true, compelling enough to come to a different conclusion. The decisions from the Tribunal and the Court were very clear that the remedies granted were only applicable to Mssrs. Vilven and Kelly.
[44] For the foregoing reasons, I conclude that the Respondents were following the law, and in compliance with the CHRA, as it then stood at all material times. As stated previously, this finding was confirmed by the Federal Court of Appeal twice.
[45] If the Respondents were following the law as it then stood, then it does not follow that any remedies are available to the Complainants under the CHRA as the Tribunal could not find them to have engaged in a discriminatory practice, thus giving rise to remedies.
[46] Accordingly, the only possible live issue that could remain is the sought remedy of re-instatement of the Complainants’ employment. However, this is a measure that would invoke a valid BFOR defense for Air Canada. The International Civil Aviation Organization (ICAO) Annex 1 on Personnel Licensing states that a “Contracting State, having issued pilot licences, shall not permit the holders thereof to act as pilot of an aircraft engaged in international commercial air transport operations if the licence holders have attained their 60th birthday or, in the case of operations with more than one pilot, their 65th birthday.” The Coalition Complainants concede the impracticality of reinstatement because of this BFOR in paragraph 33 of their supplemental Reply submissions.
[47] It should be noted that the Tribunal adjourned these complaints in 2011 pending the outcome of the appeals in the Vilven/Kelly matter and the Thwaites/Adamson matter. They remained adjourned until March 10, 2016, when the Thwaites/Adamson matter was denied leave to appeal to the Supreme Court of Canada. Today, the youngest complainant in this group is 67 years old.
[48] As a result of the foregoing, I find that there are no live issues to be considered by the Tribunal and therefore the question of constitutionality is moot.
[49] The second part of the Borowski test, if it is decided that the question is moot, is to decide whether the Tribunal should exercise its discretion to hear the case regardless. As explained in Powers v. Mitchell, 2019 NLCA 16 at 8:
[8] The discretion to hear a moot appeal is “to be judicially exercised with due regard for established principles” (Borowski, at page 358). As discussed in Borowski, the analysis involves a consideration of three rationales underlying the exercise of the discretion; that is, an adversarial context, consideration of judicial economy, and the adjudicative role of the courts.
[50] I do not find this to be a proper case in which discretion should be exercised. There are no other mandatorily-retired Air Canada pilots before the Tribunal, other than the Complainants in this case. Section 15(1)(c) of the CHRA was repealed long ago, and the Respondents no longer engage in the impugned conduct. There is no basis for the Tribunal to exercise discretion in these circumstances.
[51] In conclusion, the Tribunal finds the issue before the Tribunal in the present motion moot. None of the remedies requested by the complainants could be granted by the Tribunal if s.15(1)(c) of the CHRA was found to be unconstitutional.
Issue #2 – Does the Tribunal have the Ability to Award Damages Retroactively?
[52] In a letter sent to the parties in May 2019, the Tribunal asked them if they thought it was allowed to award retroactive remedies. In Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, [2002] 1 S.C.R. 405, 2002 SCC 13 (“Mackin”), the Supreme Court of Canada reaffirmed the general rule of public law that “courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”, absent conduct that is clearly wrong, in bad faith or an abuse of power (para. 78). The Court noted that public officials and legislative bodies consequently enjoy limited immunity against these types of actions. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, [2004] 1 S.C.R. 789, 2004 SCC 30 (“Communauté Urbaine”), the Supreme Court confirmed that “well-established principles of public law rule out the possibility of awarding damages when legislation is declared unconstitutional”.
[53] Mackin and Communauté Urbaine were cases concerning public party liability. Neither case fully turned to the question of private sector liability when legislation is declared invalid. However, other courts have applied the Mackin and Communauté Urbaine rulings to private parties. For example, in Mullins v. Levy (2005 BCSC 1217) (“Mullins”) the British Columbia Supreme Court concluded that the doctors being sued in that case were entitled to rely on a statutory provision, even though it was later struck down, stating at paras. 191-192:
191 In this fashion has a private dispute between the plaintiff and the defendants evolved to include a public law dispute as to the validity of British Columbia’s mental health legislative scheme. The plaintiff’s challenge is however misguided, as if defendants acted in accordance with the Act, in good faith and for no improper purpose they would not be held liable in damages even if the Act were subsequently held invalid.
192 The constitutional challenge need not therefore be considered when the purpose for it being raised is to obtain damages, as at best it would result in a bare declaration of invalidity.
[54] The decision on this point in Mullins was affirmed on appeal to the British Columbia Court of Appeal. (See 2009 BCCA 6 at para.88.)
[55] The Coalition Complainants are of the view that the Mackin decision is of no help in the current case since it only applies to public party liability. The Coalition Complainants further cite Vancouver (City) v. Ward (2010 SCC 27) (“Ward”) which emphasizes government conduct and state action taken under a statute that was subsequently declared invalid. These were cases concerning public party liability. None of these cases fully turned to the question of private sector liability when legislation is declared invalid. They argue that these cases deal with public law, not private law, and are therefore inapplicable to the issues before the Tribunal in this motion.
[56] Counsel for the Coalition Complainants further acknowledges at para. 4 of his Reply submissions to the Tribunal’s questions that no remedy is sought under s.24(1) of the Charter. However, he argues that the Carlson decision is inconsistent with the reasoning of the Supreme Court of Canada decision in Canada (Attorney General) v. Hislop, 2007 SCC 10 at paras. 81-83:
81 The Constitution empowers courts to issue constitutional remedies with both retroactive and prospective effects: see, e.g., Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 719. Section 24(1) of the Charter enables individuals who have had their Charter rights violated to seek redress for those past wrongs and "obtain such remedy as the court considers appropriate and just". Section 24(1) may also, in some situations, enable the claimant to recover damages, which are necessarily retroactive: Schachter, at pp. 725-26
82 Section 52(1) instructs courts to declare unconstitutional legislation of no force or effect. When a court issues a declaration of invalidity, it declares that, henceforth, the unconstitutional law cannot be enforced. The nullification of a law is thus prospective. However, s. 52(1) may also operate retroactively so far as the parties are concerned, reaching into the past to annul the effects of the unconstitutional law: see, e.g., Miron v. Trudel, [1995] 2 S.C.R. 418.
83 This Court has applied in many cases the "declaratory approach" to constitutional remedies, which implies that s. 52(1) remedies are often given retroactive effect. See, for example, Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54, at para. 28, Gonthier J. On this view, s. 52(1) remedies are deemed to be fully retroactive because the legislature never had the authority to enact an unconstitutional law. In the words of Professor Hogg, a declaration of constitutional invalidity “involves the nullification of the law from the outset” (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 55-2 (emphasis added). If the law was invalid from the outset, then any government action taken pursuant to that law is also invalid, and consequently, those affected by it have a right to redress which reaches back into the past. (Underline added.)
[57] Air Canada also notes that in both Mackin and Communauté Urbaine, the constitutional challenges and recourses were directed at the legislator (the provincial government of New Brunswick in Mackin) or the regulator (the city of Montréal in Communauté Urbaine) who had adopted the impugned legislation or regulation that was found to violate the Charter. They point out that in the present case, neither Air Canada nor ACPA enacted s.15(1)(c) of the CHRA. The Respondents point out that, therefore, following the Court’s reasoning in Mackin, Communauté Urbaine and Ward, if the legislative and regulatory bodies that enacted unconstitutional provisions would enjoy immunity from an award of damages, absent conduct that is clearly wrong, in bad faith or an abuse of power, then it follows that Air Canada, which was solely applying the law as it existed at the time, should benefit from the same immunity.
[58] The Tribunal agrees that the issue at hand does not concern “government action” but rather, the acts of a private party which had no hand in drafting the legislation now alleged to be unconstitutional. The Tribunal believes it cannot order the Respondents to pay monetary damages to the Complainants, either lost wages or compensation under s.53(2)(e) and 53(3) of the CHRA, since at the time of the facts, they were merely private actors applying s.15(1)(c) in good faith and without improper purpose.
[59] In this context, the Tribunal finds that the motion should fail on the basic principles of fairness and the necessity of confidence in the law. Indeed, the Tribunal is being asked to make a ruling that would only impact past events. Specifically, the period in question is January 1, 2010 to December 15, 2012, which is the date when s.15(1)(c) of the CHRA was repealed. The Tribunal is being asked to make a finding that the Respondents were engaging in discriminatory practices during that period.
[60] As concluded in the reasoning above, the Respondents were entitled to rely on s.15(1)(c) of the CHRA at all times before it was repealed. It would be patently unfair to the Respondents today to make a finding that their actions were not in compliance with the Charter during that period. Indeed, they could not have foreseen future changes in the law. Even though the repeal of s.15(1)(c) of the CHRA was announced one year in advance, it was deliberately postponed, giving employers an opportunity to react to the changes. It was not imposed with retroactive application in mind. In fact, it was the opposite, presumably with Parliament’s intention to give employers this flexibility to adjust before the repeal took effect.
[61] Similarly the effect of recent jurisprudence in Bedford SCC, Carter and Comeau could not have reasonably been foreseen. It is not reasonable to hold the Respondents to a standard of foreseeability to changes in the law.
[62] If tribunals and courts were to hold parties to such a standard, then how could anyone conduct themselves today with any confidence? In such a world, persons who are conducting themselves lawfully in the present time would have to be continually concerned that one day in the future, such conduct might be against the law.
[63] In matters of criminal law, it is clear in the Charter itself (s.11(g)) that persons will not be prosecuted for conduct that was committed when such actions were not contrary to the Criminal Code or other international law. Subsequent changes will only have effect on subsequent behaviour ensuring the law is only enforced pro-activel