Air Canada Pilots Association v. Kelly

Air Canada Pilots Association v. Kelly
Court (s) Database
Federal Court Decisions
Date
2011-02-03
Neutral citation
2011 FC 120
File numbers
T-1606-09, T-1615-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20110203
Docket: T-1615-09
T-1606-09
Citation: 2011 FC 120
Ottawa, Ontario, February 3, 2011
PRESENT: The Honourable Madam Justice Mactavish
Docket: T-1615-09
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
ROBERT NEIL KELLY, GEORGE VILVEN, CANADIAN HUMAN RIGHTS COMMISSION, and AIR CANADA
Respondents
Docket: T-1606-09
AND BETWEEN:
AIR CANADA
Applicant
and
ROBERT NEIL KELLY, GEORGE VILVEN, CANADIAN HUMAN RIGHTS COMMISSION, and AIR CANADA PILOTS ASSOCIATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
PARA.
I. Introduction............................................................................................................. 1
II. Background............................................................................................................. 7
A. Mandatory Retirement at Air Canada............................................................... 8
B. George Vilven’s Career................................................................................... 10
C. Robert Neil Kelly’s Career.............................................................................. 15
III. The Human Rights Complaints.............................................................................. 20
IV. Procedural History................................................................................................. 24
V. The Tribunal’s Second Decision............................................................................ 31
VI. The Issues.............................................................................................................. 43
VII. Standard of Review............................................................................................... 45
VIII. Is Paragraph 15(1)(c) of the Canadian Human Rights Act a
Reasonable Limit in a Free and Democratic Society?........................................... 50
A. The Supreme Court of Canada’s Mandatory Retirement Jurisprudence......... 54
i) Ontario (Human Rights Commission) v. Etobicoke.................................. 55
ii) McKinney v. University of Guelph............................................................ 59
iii) Harrison v. University of British Columbia.............................................. 80
iv) Douglas/Kwantlen Faculty Assn v. Douglas College.............................. 82
v) Stoffman v. Vancouver General Hospital................................................ 83
vi) Dickason v. The Governors of the University of Alberta......................... 86
vii) New Brunswick v. Potash Corporation of Saskatchewan Inc................... 96
B. Why the Supreme Court’s Decision in McKinney does not Determine the
Result of this Case........................................................................................... 98
i) The Differences Between the Legislative Provisions............................. 103
ii) McKinney did not Purport to be the Final Word on the Subject of
Mandatory Retirement........................................................................... 130
iii) The Differences in the Evidentiary Records.......................................... 142
iv) The New Developments in Public Policy............................................... 147
v) Other Post-McKinney Mandatory Retirement Jurisprudence................. 157
a) Greater Vancouver Regional District Employees’ Union v.
Greater Vancouver Regional District................................................ 159
b) Assn. of Justices of the Peace of Ontario v.
Ontario (Attorney General)............................................................... 164
c) CKY-TV v. Communications, Energy and Paperworkers
Union of Canada, Local 816............................................................ 167
d) Bell v. Canada (Canadian Human Rights Commission);
Cooper v. Canada (Canadian Human Rights Commission).............. 174
C. Is Paragraph 15(1)(c) of the CHRA Justifiable Under Section 1 of the
Charter? ........................................................................................................ 186
i) The Section 1 Analytical Framework..................................................... 187
ii) What are the Objectives of Paragraph 15(1)(c) of the CHRA?.............. 195
iii) Are the Objectives of Paragraph 15(1)(c) of the CHRA
Pressing and Substantial?...................................................................... 197
iv) The Proportionality Component of the Oakes Test............................... 205
v) Rational Connection.............................................................................. 208
vi) Minimal Impairment.............................................................................. 218
a) The Applicable Legal Principles....................................................... 219
b) The Tribunal’s Findings with Respect to Minimal Impairment ....... 226
c) Air Canada and ACPA’s Arguments with Respect to Minimal
Impairment ...................................................................................... 227
d) The Expert Evidence ...................................................................... 234
e) The Application of the Minimal Impairment Test .......................... 281
f) Conclusion on the Minimal Impairment Issue ................................ 323
vii) Proportionality between the Effects of the Legislation
and its Objectives................................................................................. 327
viii) Conclusion on the Charter Issue........................................................... 350
IX. Is Age a Bona Fide Occupational Requirement for Air Canada Pilots? ............ 352
A. Legal Principles Governing Bona Fide Occupational Requirements............. 353
B. The Tribunal’s Decision................................................................................. 359
C. The Significance of the ICAO Standards..................................................... 377
D. Timing and the Duty to Accommodate......................................................... 381
E. Factors to Consider in Relation to the Issue of Accommodation................. 386
F. Accommodation in the Pre-November 2006 Period...................................... 405
i) The Accommodation of Mr. Vilven in the Pre-November 2006 Period.. 408
ii) The Accommodation of Mr. Kelly in the Pre-November 2006 Period.... 415
G. Accommodation in the Post-November 2006 Period.................................... 429
i) The Tribunal’s Treatment of Captain Duke’s Evidence........................... 431
ii) The Tribunal’s Finding Regarding the First Two Elements of the
Meiorin Test............................................................................................. 466
X. Remedy................................................................................................................ 472
XI. Conclusion........................................................................................................... 490
XII. Costs.................................................................................................................... 493
I. Introduction
[1] Paragraph 15(1)(c) of the Canadian Human Rights Act, R.S., 1985, c. H-6, [CHRA] allows an employer to terminate the employment of an individual if that person has reached the “normal age of retirement” for those working in similar positions.
[2] This Court has previously found that paragraph 15(1)(c) of the Act violates subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c.11, 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 stereotypical view that older workers are less capable, or less deserving of recognition or value as human beings or as members of Canadian society: see Vilven v. Air Canada, [2010] 2 F.C.R. 189, [2009] F.C.J. No. 475, at paras. 9 and 337-339 (“Vilven #1”).
[3] These reasons pertain to two applications for judicial review of a subsequent decision of the Canadian Human Rights Tribunal which found that paragraph 15(1)(c) is not a reasonable limit justifiable in a free and democratic society as contemplated by section 1 of the Charter. One application is brought by Air Canada and the other by the Air Canada Pilots Association (or “ACPA”), the bargaining agent for Air Canada pilots. The applications were consolidated by order of this Court.
[4] For the reasons that follow, I find that the Tribunal’s decision on the Charter issue was correct. As a result, ACPA’s application, which only raises the Charter issue, will be dismissed.
[5] Also at issue in Air Canada’s application for judicial review is whether the Tribunal’s finding that Air Canada had failed to demonstrate that age was a bona fide occupational requirement for its pilots was reasonable. I have concluded that the Tribunal erred in its analysis of the bona fide occupational requirement issue as it related to the period after November of 2006. Consequently, Air Canada’s application for judicial review will be granted in part.
[6] What is not in issue in these proceedings is any question relating to pilot safety. 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’s pilot’s license will not be renewed.
II. Background
[7] In order to provide a context for these reasons, I will provide a brief summary of the facts, which is largely taken from my decision in Vilven #1.
A. Mandatory Retirement at Air Canada
[8] Mandatory retirement for pilots at Air Canada was initially a company policy. Since 1957, the Air Canada pension plan has identified 60 as the compulsory retirement age for pilots. As of the early 1980’s, provisions mandating retirement at age 60 have been included in the collective agreement in force between Air Canada and its pilots’ union. ACPA began representing Air Canada pilots in 1995.
[9] Shortly before the commencement of the initial Tribunal hearing of Messrs. Vilven and Kelly’s human rights complaints, ACPA held a referendum on the mandatory retirement issue. Seventy-five percent of ACPA members voted in favour of retaining mandatory retirement for Air Canada pilots.
B. George Vilven’s Career
[10] George Vilven was hired by Air Canada in May of 1986. Over the ensuing years, he was able to use his seniority to bid on a succession of higher status and higher paying positions on increasingly larger aircraft. In his last position with Air Canada, Mr. Vilven was flying as a First Officer on Airbus 340 aircraft.
[11] Mr. Vilven turned 60 on August 30, 2003. In accordance with the mandatory retirement age provisions of the Air Canada/ACPA collective agreement and the Air Canada pilot pension plan, he was required to retire on the first day of the month following his 60th birthday.
[12] There is no suggestion that there were any performance problems or medical fitness issues with respect to Mr. Vilven. Indeed, it is common ground that the only reason for the termination of his employment was the application of the mandatory retirement provisions of the Air Canada/ACPA collective agreement and the Air Canada pilot pension plan, which is incorporated by reference into the collective agreement.
[13] Based upon his years of service with Air Canada and his pre-Air Canada military service (which are included as years of service for the purpose of Air Canada’s pension plan), Mr. Vilven is entitled to receive substantial pension benefits until his death.
[14] After leaving 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 quit flying in order to prepare for his Tribunal hearing. At the time of the original Tribunal hearing, Mr. Vilven continued to hold a valid Canadian Air Transport Pilot’s License.
C. Robert Neil Kelly’s Career
[15] Robert Neil Kelly was hired by Air Canada in September of 1972. At the time of his retirement from Air Canada, he was flying as the Captain and Pilot-in-command of Airbus 340’s.
[16] 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 (or “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 Convention on International Civil Aviation: Annex 1 - International Standards and Recommended Practices -Personnel Licensing (Chicago Convention), 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947), see Annex I (Personnel Licensing, 10th ed., 2006). Although the Captain of an aircraft is ordinarily the Pilot-in-command, this is not necessarily always the case.
[17] Mr. Kelly turned 60 on April 30, 2005, and 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 acknowledge that the only reason for the termination of his employment was the application of the mandatory retirement provisions found in the governing pension plan and collective agreement.
[18] Like Mr. Vilven, Mr. Kelly is entitled to receive substantial pension benefits for the rest of his life.
[19] Mr. Kelly was also able to continue his flying career after leaving Air Canada. He initially worked on contract as a First Officer with Skyservice Airlines. At the time of the original Tribunal hearing, he was working for Skyservice as a Captain and Pilot-in-command, flying routes, including international routes, on Boeing 757’s.
III. The Human Rights Complaints
[20] Mr. Vilven filed his complaint against Air Canada with the Canadian Human Rights Commission in August of 2004. His complaint asserted that by forcing him to retire at age 60, Air Canada violated sections 7 and 10 of the CHRA. The full text of the relevant statutory provisions is attached as an appendix to these reasons.
[21] Mr. Kelly’s human rights complaint was filed on March 31, 2006 and was brought against both Air Canada and ACPA. His complaint alleged discrimination on the basis of age, contrary to the provisions of sections 7, 9 and 10 of the Act.
[22] Both complaints were referred to the Canadian Human Rights Tribunal by the Commission, and the two cases were heard and decided together.
[23] In the course of the parties’ oral submissions, I was advised that the Tribunal has now held a hearing in relation to 68 additional complaints brought by former Air Canada pilots who were forced to retire against their will. The Tribunal currently has its decision with respect to that case under reserve. I was also advised that there is another “large group” of former Air Canada pilots whose human rights complaints have been referred to the Tribunal by the Canadian Human Rights Commission, and still another “large group” of former Air Canada pilots who have age discrimination complaints pending before the Commission.
IV. Procedural History
[24] In order to put the issues into context, it is necessary to understand the procedural history giving rise to the applications currently before the Court.
[25] The original hearing into Messrs. Vilven and Kelly’s complaints took place in 2007. 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 mandatory retirement at Air Canada.
[26] In advance of the Tribunal hearing, the Fly Past 60 Coalition served a Notice of Constitutional Question on the federal and provincial Attorneys General, advising that the constitutionality of paragraph 15(1)(c) of the CHRA was in issue in the proceeding. As was noted earlier, 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”.
[27] In a decision rendered in August of 2007, the Tribunal dismissed Messrs. Vilven and Kelly’s human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada Pilots Association, 2007 CHRT 36 (Tribunal decision #1). The Tribunal found that 60 was the normal age of retirement for persons working in similar positions, and further found that paragraph 15(1)(c) of the Act did not contravene subsection 15(1) of the Charter. Because of its finding on the section 15 Charter issue, the Tribunal did not have to decide whether paragraph 15(1)(c) of the CHRA could be justified under section 1 of the Charter.
[28] On judicial review, I found that although there were errors in the Tribunal’s analysis, the finding that 60 was the normal age of retirement for individuals employed in positions similar to those occupied by Messrs. Vilven and Kelly prior to their retirement was reasonable: Vilven #1 at para. 174.
[29] However, as noted earlier, I concluded that paragraph 15(1)(c) of the Act violated 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. Consequently, I quashed the Tribunal’s decision as it related to the Charter issue, and remitted the matter to the Tribunal for it to determine whether paragraph 15(1)(c) of the Act could be demonstrably justified as a reasonable limit in a free and democratic society: Vilven #1, at para. 340.
[30] In the event that the Tribunal determined that paragraph 15(1)(c) of the CHRA was not saved under section 1 of the Charter, I directed that it address the merits of Messrs. Vilven and Kelly’s human rights complaints. This would require the Tribunal to consider Air Canada’s argument that requiring that all of its pilots be younger than 60 constituted a bona fide occupational requirement within the meaning of paragraph 15(1)(a) of the CHRA: Vilven #1, at para. 341.
V. The Tribunal’s Second Decision
[31] In August of 2009, the Tribunal issued a second decision with respect to Messrs. Vilven and Kelly’s human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada Pilots Association, 2009 CHRT 24 (Tribunal decision #2).
[32] In assessing whether paragraph 15(1)(c) of the CHRA was saved under section 1 of the Charter, the Tribunal applied the test articulated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. The Oakes test requires that two criteria be satisfied: the objective of the law must relate to a societal concern that is “pressing and substantial”, and the means used to attain the objective must be “proportional”.
[33] The Tribunal noted that in order to be proportional, the measures selected “must be rationally connected to the objective and should impair as little as possible the right or freedom in question. It also requires that there be proportionality between the objectives and the effects”: Tribunal decision #2 at para. 12, citing Oakes at para. 70.
[34] The Tribunal recognized that in cases such as McKinney v. University of Guelph, [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, and Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, [1990] S.C.J. No. 123, the Supreme Court of Canada had found that provisions in the Ontario and British Columbia human rights codes limiting the protection of the legislation to those under 65 were reasonable limitations within the meaning of section 1 of the Charter.
[35] The Tribunal also noted that the majority judgment in McKinney accorded a high degree of deference to the Legislature, as the issue of mandatory retirement involved a complex balancing of competing interests upon which expert opinion was divided. The Tribunal went on, however, to observe that several more recent decisions had determined that the social and economic context had changed sufficiently since McKinney and Harrison were decided as to render those decisions no longer applicable to present day circumstances: Tribunal decision #2, at paras. 18 and 19.
[36] The Tribunal compared the factual and social context of this case to that which was before the Supreme Court in McKinney, finding that the evidence before it demonstrated that mandatory retirement was no longer as prevalent as it had been when McKinney was decided. At the time of the hearing, only three provinces allowed for the imposition of mandatory retirement. In all of the other provinces, mandatory retirement was either prohibited, or was permitted only where it was based on a bona fide occupational requirement or bona fide pension or retirement plan: Tribunal decision #2, at paras. 26 and 27.
[37] The Tribunal observed that the abolition of mandatory retirement in these provinces had not spelled the end of deferred compensation, pension and benefit schemes, and seniority arrangements: Tribunal decision #2, at paras. 29 and 34. The Tribunal also noted that the expert evidence before it called into question the concerns identified by the Supreme Court in McKinney as to the potential negative consequences that could flow from the abolition of mandatory retirement for matters such as pension plans and deferred compensation schemes. Consequently, the Tribunal concluded that paragraph 15(1)(c) of the CHRA could not be justified under any of the elements of the Oakes test.
[38] It was thus necessary for the Tribunal to go on to consider whether Air Canada and ACPA had demonstrated that mandatory retirement at 60 constituted a bona fide occupational requirement for Air Canada pilots.
[39] In answering this question, the Tribunal applied the test established by the Supreme Court in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46 at para. 54.
[40] According to the Tribunal, neither Messrs. Vilven and Kelly nor the Commission disputed that the first two components of the Meiorin test had been satisfied: that is, that the mandatory retirement provisions of the Air Canada pension plan and the Air Canada/ACPA collective agreement had been adopted for a purpose that was rationally connected to the performance of the job, and that the provisions had been adopted in the honest and good faith belief that they were necessary to the fulfillment of a legitimate work-related purpose.
[41] The “real issue” for the Tribunal was whether Messrs. Vilven and Kelly could be accommodated without causing undue hardship to Air Canada and/or ACPA: Tribunal decision #2, at paras. 82-83.
[42] After examining the evidence adduced by the applicants in this regard, the Tribunal found that neither Air Canada nor ACPA had established that the retirement of Air Canada pilots at age 60 constituted a bona fide occupational requirement. Consequently, Messrs. Vilven and Kelly’s human rights complaints were deemed to have been substantiated, and the Tribunal retained jurisdiction to deal with the issue of remedy.
VI. Issues
[43] There are two issues on these applications for judicial review. The first is whether the Tribunal erred in finding that paragraph 15(1)(c) of the CHRA is not a reasonable limit justifiable in a free and democratic society within the meaning of section 1 of the Charter.
[44] The second issue is whether the Tribunal erred in determining that Air Canada had not established that the mandatory retirement age provisions of the Air Canada Pension Plan and the Air Canada/ACPA collective agreement constituted a bona fide occupational requirement.
VII. Standard of Review
[45] Messrs. Vilven and Kelly, Air Canada and ACPA all agree that the Tribunal’s finding as to whether paragraph 15(1)(c) of the CHRA is saved by section 1 of the Charter is reviewable against the standard of correctness. The Commission takes no position on the Charter issue.
[46] I agree that correctness is the appropriate standard with respect to this aspect of the Tribunal’s decision. Charter questions must be decided consistently and correctly: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paras. 58 and 163, [2008] S.C.J. No. 9 (QL); Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 32. That said, purely factual findings made by the Tribunal in the course of its constitutional analysis are entitled to deference: see, for example, Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 26.
[47] Messrs. Vilven and Kelly, the Commission and Air Canada also agree that the Tribunal’s finding as to whether Air Canada had established a bona fide occupational requirement defence is reviewable on the reasonableness standard. ACPA takes no position on the bona fide occupational requirement issue.
[48] I agree that reasonableness is the applicable standard of review with respect to this aspect of the Tribunal’s decision. The question of whether a bona fide occupational requirement defence has been made out in a particular case is a question of mixed fact and law, requiring the Tribunal to apply its enabling legislation to the facts before it. Such a finding attracts judicial deference: Brown v. Canada (National Capital Commission), 2009 FCA 273, [2009] F.C.J. No. 1196, at para. 5.
[49] In applying the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within the range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir, at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59.
VIII. Is Paragraph 15(1)(c) of the Canadian Human Rights Act a Reasonable Limit in a Free and Democratic Society?
[50] Before examining this issue, it should be noted that ACPA served a Notice of Constitutional Question on the Federal and Provincial Attorneys General pursuant to the provisions of section 57 of the Federal Courts Act, R.S., 1985, c. F-7, advising that the constitutional validity of paragraph 15(1)(c) of the CHRA is in issue in these applications. None of the Attorneys General have elected to participate in these proceedings.
[51] There is no question that the Canadian Human Rights Tribunal has the power to decide Charter questions, as the CHRA statutorily empowers the Tribunal to decide questions of law: see subsection 50(2), and Nova Scotia (Workers' Compensation Board) v. Martin, above, at para. 3.
[52] The parties agree that the onus of justifying the limitation on Messrs. Vilven and Kelly’s equality rights rests on Air Canada and ACPA: see Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483, [1990] S.C.J. No. 125, at para. 50. The standard of proof under section 1 of the Charter is the ordinary civil standard, that is, the balance of probabilities: Oakes, at para. 67.
[53] There is also no dispute that the Oakes test applied by the Tribunal in deciding whether paragraph 15(1)(c) of the CHRA can be justified under section 1 of the Charter is the appropriate test.
A. The Supreme Court of Canada’s Mandatory Retirement Jurisprudence
[54] The issue of mandatory retirement has been considered by the Supreme Court of Canada on a number of occasions in the last 30 years. Before applying the Oakes test to the facts of this case, and in order to put that discussion into context, it is helpful to start by looking at what the Supreme Court has said on the subject.
i) Ontario (Human Rights Commission) v. Etobicoke
[55] Mandatory retirement first came before the Supreme Court in the early 1980’s in Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, [1982] S.C.J. No. 2. The appellants in that case were firemen employed by the Borough of Etobicoke. Each had filed a complaint under the Ontario Human Rights Code, R.S.O. 1970, c. 318, because he had been forced to retire at age 60 pursuant to the collective agreement governing the terms of his employment.
[56] The Ontario Human Rights Code provided that the prohibition on age discrimination did not apply in cases where age could be shown to be a bona fide occupational requirement for the position in question. A human rights Board of Inquiry determined that the municipality had not established the existence of a bona fide occupational requirement for its firefighters. That decision was overturned by the Ontario Divisional Court, and the Divisional Court’s decision was subsequently confirmed by the Ontario Court of Appeal.
[57] In restoring the decision of the Board of Inquiry, the Supreme Court found that the evidence adduced by the employer failed to establish that being under 60 was a bona fide occupational requirement. The Court observed that everyone ages chronologically at the same rate, but that individuals may age in a “functional sense” at very different and largely unpredictable rates. The Court went on to observe that in cases where the employer's concern is one of productivity rather than safety, “it may be difficult, if not impossible, to demonstrate that a mandatory retirement at a fixed age, without regard to individual capacity, may be validly imposed under the Code”: at p. 209.
[58] The Court rejected the employer’s argument that the mandatory retirement age at issue should be considered to be a bona fide occupational requirement as it had been agreed to as part of a collective agreement: at p. 212. As the Code had been enacted for the benefit of both the community at large and of its individual members, the Supreme Court was of the view that its protection could not be waived or varied by private contract: at pp. 213-214.
ii) McKinney v. University of Guelph
[59] The issue of mandatory retirement was back before the Supreme Court in the early 1990’s in a series of cases brought under section 15 of the Charter: McKinney; Harrison; Stoffman; Douglas Kwantlen Faculty Assn. v. Douglas College [1990] S.C.J. No. 124; [1990] 3 S.C.R. 570.
[60] The judgments in all four cases were rendered at the same time, with McKinney as the lead decision. Air Canada and ACPA argue that McKinney was binding on the Tribunal, and should have dictated a finding by the Tribunal that paragraph 15(1)(c) of the CHRA was saved by section 1 of the Charter. By failing to follow McKinney, the applicants say that the Tribunal erred in law. In light of this argument, it is necessary to examine the Court’s reasoning in McKinney in some detail.
[61] The appellants in McKinney were university professors at four Ontario universities who were forced to retire at age 65, in accordance with the universities’ mandatory retirement policies. As in the present case, the professors were unable to seek recourse under human rights legislation, because subsection 9(a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, limited the protection against age discrimination in employment afforded by the Code to those between the ages of 18 and 65.
[62] The majority judgment held that universities do not form part of “government”, and that the reach of the Charter is limited to government action. However, the Court went on in obiter to examine the universities’ retirement policies on the assumption that the universities were government actors, finding them to be justifiable.
[63] Insofar as the constitutionality of subsection 9(a) of the Ontario Human Rights Code was concerned, the Supreme Court was unanimous in finding that the statutory provision in issue violated subsection 15(1) of the Charter, as it deprived individuals of a benefit under the Code on the basis of an enumerated ground. The Court was, however, divided on the question of whether the provision was justifiable under section 1 of the Charter.
[64] Justice La Forest wrote the majority judgment, with Chief Justice Dickson and Justice Gonthier concurring. Justices Cory and Sopinka each wrote separate reasons, concurring in the result. Justices Wilson and L’Heureux-Dubé each wrote dissenting judgments disagreeing with the majority as to whether subsection 9(a) of the Code could be justified under section 1.
[65] Justice La Forest began by reviewing the history and role of mandatory retirement in Canada. He observed that by 1970, public and private pension plans had been established to provide income security after the age of 65 and that as of 1990, mandatory retirement was “part of the very fabric of the organization of the labour market in this country”: at para. 84.
[66] The objectives of the legislation were described by Justice La Forest as being an effort to balance the Legislature’s concern for denying protection beyond age 65 against the fear that such a change could result in delayed retirement and delayed benefits for older workers. Concern was also expressed as to the potential impact that a change would have for labour markets and pensions. In Justice La Forest’s view, these objectives were pressing and substantial.
[67] The majority also found that subsection 9(a) of the Code was rationally connected to these objectives. In this regard, Justice La Forest observed that “there is nothing irrational in a system that permits those in the private sector to determine for themselves the age of retirement suitable to a particular area of activity”: at para. 101.
[68] In relation to the issue of minimal impairment, Justice La Forest noted that where the Legislature was faced with competing socio-economic theories and social science evidence, it was entitled to choose between them and to proceed cautiously in effecting change. The question for the Court was whether the government had a reasonable basis for concluding that the legislation impaired the relevant right as little as possible, in light of the government's pressing and substantial objectives: at para. 123, emphasis added.
[69] In addressing this question, Justice La Forest described the issue of mandatory retirement as being a complex socio-economic one, which involved “the basic and interconnected rules of the workplace throughout the whole of our society”: at para. 96. He explained that mandatory retirement was part of “a complex, interrelated, lifetime contractual arrangement involving something like deferred compensation”, particularly in union-organized workplaces, where “seniority serves as something of a functional equivalent to tenure”: at para. 108.
[70] Justice La Forest further observed that the ramifications that the abolition of mandatory retirement would have for the organization of the workplace, and for society in general, were things that could not readily be measured: at para. 104.
[71] Finally, Justice La Forest found that there was proportionality between the effects of subsection 9(a) of the Code on the guaranteed right, and the objectives of the provision. He observed that a Legislature is not obliged to deal with all aspects of a problem at once, and that it should be permitted to take incremental measures in relation to issues such as mandatory retirement: at para. 129.
[72] Justices Cory and Sopinka agreed in their concurring reasons that subsection 9(a) of the Code was saved under section 1 of the Charter.
[73] In contrast, Justice Wilson observed that subsection 9(a) of the Code did not only allow for mandatory retirement; it also permitted age discrimination in the employment context in all its forms for those over the age of 65. As a consequence, she was of the view that the rational connection branch of the Oakes test had not been met: at para. 350.
[74] More importantly for our purposes, Justice Wilson found that the legislation did not meet the minimal impairment component of the Oakes test. She noted that older workers would suffer disproportionately greater hardship as a result of the infringement of their equality rights. She also observed that women are negatively affected by mandatory retirement, as they often have interrupted work histories as a result of their having assumed childcare responsibilities, with the resultant loss of pensionable earnings: at paras. 351-353.
[75] Justice Wilson recognized that mandatory retirement requirements are often the product of collective bargaining. However, she also observed that even if it were acceptable for citizens to bargain away their fundamental human rights in exchange for economic gain, the fact was that the majority of working people in Ontario did not have access to such beneficial contractual arrangements: at para. 352.
[76] Justice L’Heureux-Dubé agreed with Justice Wilson that subsection 9(a) of the Code could not be justified under section 1 of the Charter. She found that there was no convincing evidence that mandatory retirement was intimately related to the tenure system. In her view, the value of tenure was threatened, not by the aging process, but by the incompetence of individual workers. Discrepancies between the physical and intellectual abilities of older workers versus younger workers were compensated for by older workers’ increased experience and wisdom, as well as the skills they had acquired over time. Consequently she found there to be no pressing and substantial objective addressed by the Universities’ mandatory retirement policy: at paras. 389-393.
[77] Justice L’Heureux-Dubé was further of the view that the means chosen by the Legislature were too intrusive. Individuals over 65 were excluded from the protection of the Code solely because of their age, without regard to their individual circumstances. She noted that the adverse effects of mandatory retirement are most painfully felt by the poor, and that women are particularly negatively affected as they are less likely to have accumulated adequate pensions: at paras. 398-399.
[78] In the absence of a reasonable justification for a legislative scheme permitting compulsory retirement at age 65, Justice L’Heureux-Dubé would have struck out subsection 9(a) of the Code in its entirety as unconstitutional.
[79] At the same time that it rendered judgment in McKinney, the Supreme Court of Canada also released its decisions in the three companion cases of Harrison, Stoffman and Douglas College. As these cases relied heavily on the reasoning in McKinney, I will refer to each of them only briefly.
iii) Harrison v. University of British Columbia
[80] Harrison involved a challenge to the University of British Columbia’s mandatory retirement policy. There was also a challenge to the constitutionality of the definition of “age” in section 1 of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, which limited the protection of the Act to those between the ages of 45 and 65.
[81] The majority decision held that because the facts, issues and constitutional questions in Harrison were similar to those considered in McKinney , Harrison was governed by that case. As a consequence, Harrison adds little to the analysis. However, it does bear noting that Justices Wilson and L’Heureux-Dubé once again dissented on the section 1 issue.
iv) Douglas/Kwantlen Faculty Assn. v. Douglas College
[82] The appeal in Douglas College involved another challenge to a mandatory