Adamson v. Air Canada

Adamson v. Air Canada
Court (s) Database
Federal Court Decisions
Date
2014-01-27
Neutral citation
2014 FC 83
File numbers
T-1428-11, T-1453-11, T-1463-11, T-971-12, T-979-12
Decision Content
Date: January 27, 2014
Dockets:
T-1428-11
T-1453-11
T-1463-11
T-971-12
T-979-12
Citation: 2014 FC 83
Ottawa, Ontario, January 27, 2014
PRESENT: The Honourable Mr. Justice Annis
Docket:
T-1428-11
BETWEEN:
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT (ESTATE OF), COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY,
MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE
Applicants
and
AIR CANADA,
AIR CANADA PILOTS ASSOCIATION AND CANADIAN HUMAN RIGHTS COMMISSION
Respondents
Docket:
T-1453-11
AND BETWEEN:
AIR CANADA
Applicant
and
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN,
KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY,
MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, AND DOUGLAS ZEBEDEE, CANADIAN HUMAN RIGHTS COMMISSION, AIR CANADA PILOT ASSOCIATION
Respondents
Docket:
T-1463-11
AND BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN,
KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE, AND CANADIAN HUMAN RIGHTS COMMISSION AND AIR CANADA
Respondents
Docket:
T-971-12
AND BETWEEN:
AIR CANADA
Applicant
and
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS,
DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE, AND CANADIAN HUMAN RIGHTS COMMISSION AND AIR CANADA PILOTS ASSOCIATION
Respondents
Docket:
T-979-12
AND BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER,
DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE AND CANADIAN HUMAN RIGHTS COMMISSION AND AIR CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATIONS for judicial review of the Canadian Human Rights Tribunal’s dismissal on August 10, 2011 (2011 CHRT 11) of age-based discrimination complaints filed by seventy complainants on the basis that the contested mandatory age of retirement did not amount to a discriminatory measure pursuant to section 15(1)(c) of the Canadian Human Rights Act. Applications allowed in T-1428-11 and T-1463-11; application dismissed in T-1453-11. Applications T-971-12 and T-979-12 are dismissed.
TABLE OF CONTENTS
Paragraph
I. INTRODUCTION............................................................................................................... 1
II. JUDICIAL HISTORY....................................................................................................... 24
A. Vilven v Air Canada, 2007 CHRT 36 [Vilven Tribunal #1]........................................... 26
B. Vilven v Air Canada, 2009 FC 367 [Vilven].................................................................. 33
C. Vilven v Air Canada, 2009 CHRT 24 [Vilven Tribunal #2]........................................... 50
D. Vilven v Air Canada, 2010 CHRT 27 [Vilven Tribunal Damages]................................ 61
E. Air Canada Pilots Association v Kelly, 2011 FC 120 [Kelly]......................................... 62
F. Kelly & Vilven v. Air Canada & ACPA, 2011 CHRT 10 [Kelly Tribunal]..................... 69
G. Adamson v Air Canada, 2011 CHRT 11 [“Adamson” or “this matter”]........................ 74
H. Air Canada Pilots Association v Kelly, 2012 FCA 209 [Kelly FCA]............................. 75
III. ISSUES............................................................................................................................. 77
IV. ANALYSIS....................................................................................................................... 78
A. Standard of Review...................................................................................................... 78
B. Section 15(1)(c): Normal Age of Retirement................................................................ 86
(1) The Vilven Test....................................................................................................... 89
(2) The Tribunal’s Reasoning....................................................................................... 100
(3) Errors in the Tribunal’s Decision............................................................................ 101
(a). The Unreasonableness of the Elimination of Air
Canada s Competitors...................................................................................... 101
(b). The Failure to Conduct a Functional Analysis of the Positions........................ 102
(c). The Failure to Conduct Contextual Analysis of the
Vilven Reasoning.............................................................................................. 110
(d). An Overlooked Reference to Explain the Meaning of “Both”.......................... 115
(e). An Implication that Vilven was Based on a Misapprehension
of Evidence....................................................................................................... 116
(f).. Too Limited a Comparator Group................................................................... 121
(g). A Contextual Interpretation of “Both”............................................................. 123
(4) Conclusion on Normal Age of Retirement............................................................. 128
C. AIR CANADA’S DEFENCE OF A BONA FIDE OCCUPATIONAL
REQUIREMENT......................................................................................................... 133
D. ACPA’S DEFENCE OF A BONA FIDE OCCUPATIONAL
REQUIREMENT........................................................................................................ 162
(1) Introduction............................................................................................................ 162
(2) CHRA Provisions Regarding BFOR...................................................................... 170
(3) Section l5(1)(a): Are Unions Entitled to Advance a BFOR Defence?.................. 171
(4) Is Section 15(2) Limited to Its Enumerated Hardship Factors?............................. 177
(a). Lack of Policy Rationale for the Imposition of Absolute Liability..................... 188
(b). Avoidance of Absolute Liability........................................................................ 193
(c). Expressio Unius Est Exclusio Alterius.............................................................. 200
(d). Exceptions to Human Rights Legislation should be
Narrowly Construed......................................................................................... 204
(e) Parliamentary Intention.................................................................................... 209
(5) Modification of the Meiorin Test to Apply to Unions........................................... 216
(a). First Step - Piggyback on the Employer........................................................... 221
(b). Second Step - Good Faith of the Union............................................................ 224
(c). Third Step - Hardship....................................................................................... 225
(d). Fourth Step - Weighing Hardship and the Nature of the
Discrimination.................................................................................................. 226
(6) Applying the Modified Meiorin Test to ACPA..................................................... 228
(a). Step One - Rational Connection and Attempts to Accommodate...................... 228
(b). Step Two - Good Faith of ACPA...................................................................... 236
(c). Step Three - Hardship...................................................................................... 238
..... (i) The Evidence on Undue Hardship to the Comparator Pilots...................... 238
..... (ii) The Tribunal’s Decision on Hardship......................................................... 249
..... (iii) Errors in the Tribunal’s Decision.............................................................. 253
1. Reduced Salary During the Make-up Period....................................... 253
2. Permanence of Lost Wages due to Deferral of
Salary Until Age 60.............................................................................. 260
3. The Windfall Earnings of the Complainants........................................ 267
4. The Infringement of the Comparator Pilots’ Employment
Rights................................................................................................... 271
5. The Impact of Pensions on Working to Age 63................................... 284
- The Increase in the Value of Pensions at Age 63............................... 288
- The NPV at Age 63 Net of Pension Benefits....................................... 294
- Conclusion on Pension Evidence....................................................... 307
(iv) Hardship Factors Other Than Costs.......................................................... 317
(d) Fourth Step - Whether a Lower Standard May be Defended............................ 325
(i) A Nuanced Approach to Age Discrimination............................................... 327
(ii) Adverse Differential Impact........................................................................ 329
(e) Conclusion and Directions on ACPA’s BFOR Defence................................... 332
E. IS THE MANDATORY RETIREMENT PROVISION
DISCRIMINATORY?................................................................................................ 335
(1) Introduction............................................................................................................ 335
(2) Scope of “Employment Opportunities” in Section 10 of the CHRA..................... 352
(3) Formalistic versus Substantive Prima Facie Discrimination.................................. 359
(4) Mandatory Retirement as an Essential Component of a
Larger Ameliorative Benefits Scheme................................................................... 385
(a) Differing Factors to Determine Discrimination................................................ 385
(b) The Ameliorative Purpose of the Mandatory Retirement
Provision in the Collective Agreement.............................................................. 387
(c) The Vilven Tribunal s Conclusion of “No Unfairness”..................................... 395
(d) Fairness Reconsidered Based on the Adverse Differential Impact.................... 403
(5) Perpetuation of Stereotypes, Prejudice or Disadvantage Against Older Workers. 406
(a) Discriminatory Stereotypes of Older Workers................................................... 406
(b) The Impact of Retirement on Pilots................................................................... 415
(c) McKinney’s Rejection of Making Way for the Younger Worker........................ 418
(6) Conclusions on Revisiting Whether the Age 60 Rule of Retirement is
Discriminatory........................................................................................................ 429
V. DECISIONS ON THE APPLICATIONS OF THE COMPLAINANTS, AIR CANADA
AND ACPA....................................................................................................................... 432
VI. COSTS............................................................................................................................... 435
I. INTRODUCTION
[1] This is a judicial review of a decision of the Canadian Human Rights Tribunal (CHRT or “the Tribunal”), 2011 CHRT 11. The complainants initiated a complaint pursuant to the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA or the Act] against Air Canada and the Air Canada Pilots Association [ACPA] (together “the respondents”), claiming an alleged discriminatory practice relating to age with respect to the mandatory retirement rule in their collective agreement. A judicial review was also sought of a related further decision of the Tribunal, 2012 CHRT 9, concerning an amended remedy pending an appeal to the Federal Court of Appeal; this has been dismissed.
[2] The complainants are a group of individual applicants gathered into the “Fly Past 60 Coalition”. They are past members of ACPA employed by Air Canada, an organization which employs over 2,800 pilots in total. Other similar cases of retired pilots may be waiting to be heard after this matter is disposed of.
[3] The complainants allege that Air Canada and ACPA contravened sections 7 and 10 of the CHRA by requiring them to retire as each reached the age of 60 at various dates between 2005 and 2009, regardless of merit or ability to continue flying, none of which is denied.
[4] Air Canada pilots are the best paid in Canada, with generous benefits and excellent working conditions, particularly as pilots gain seniority. The benefits include a lucrative defined benefit pension awaiting them upon retirement, along with good job prospects to fly for other airlines after retiring on account of their training and experience. Accordingly, this case should be circumscribed to its facts of a mandatory retirement provision [MRP] in an area of scarce good jobs with relatively little financial hardship on retirement.
[5] 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 were included as part of the collective agreement in force between Air Canada and its pilots' union. Since 1995, ACPA has been the union representing Air Canada pilots. Under the terms of the collective agreement and pension plan between Air Canada and ACPA, Air Canada pilots are required to retire on the first day of the month following their 60th birthday.
[6] A relevant constraint is that Canada adheres to International Civil Aviation Organization (ICAO) standards. Until March 2006, ICAO set a maximum age of 60 for a pilot in command and recommended, but did not require, that a co-pilot on an international flight not fly past his or her 60th birthday. In March 2006, coming into force in November 2006, ICAO set 65 as the maximum age for pilots and set as the standard that if one pilot was over 60, the other must be under 60.
[7] In 2011 CHRT 11, the Tribunal made an initial finding of prima facie discrimination, which was never in dispute due to legacy proceedings which will be described below, and the fact that the respondents did not contest it.
[8] The Tribunal also rejected the Bona Fide Occupational Requirement (BFOR) defences of Air Canada and ACPA. Ultimately, however, the allegations of a discriminatory practice were not upheld because the Tribunal concluded that 60 was the “normal age of retirement” in the Canadian passenger airline industry, thereby denying liability pursuant to section 15(1)(c) of the Act.
[9] All three parties filed judicial review applications seeking to set aside that aspect of the Tribunal’s decision which was not in their favour. The complainants challenged the finding on normal age of retirement (Court file T-1428-11) while Air Canada and ACPA sought to set aside the Tribunal’s decision rejecting their BFOR defences (T-1453-11 and T-1463-11 respectively).
[10] The Canadian Human Rights Commission (Commission) also applied for judicial review (T-1456-11, now discontinued), seeking a determination of the constitutionality of section 15(1)(c). The Commission discontinued this application when the CHRT agreed to consider the question.
[11] On April 18, 2012, the Tribunal issued 2012 CHRT 9, finding that section 15(1)(c) violated the guarantee of equality in section 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 (UK), 1982, c 11 [the Charter]. This reversed the previous outcome of the complaint, as Air Canada and ACPA no longer had a valid defence to the prima facie discrimination. Air Canada applied for judicial review of this new decision (T-971-12), as did ACPA (T-979-12).
[12] However, shortly afterwards, on July 17, 2012, in Air Canada Pilots Association v Kelly, 2012 FCA 209 [“Kelly FCA”], the Federal Court of Appeal, considering a previous series of Tribunal and Federal Court decisions on the Air Canada mandatory retirement age of 60, upheld the constitutionality of section 15(1)(c). Leave to appeal was denied by the Supreme Court in [2013] SCCA No 395 (QL). The Tribunal’s decision in 2012 CHRT 9 is therefore no longer valid, and Court files T-971-12 and T-979-12 are dismissed.
[13] In the reasons that follow, I allow the application of the complainants, setting aside the Tribunal’s decision on the normal age of retirement of pilots at age 60. Conversely, I dismiss Air Canada’s application to set aside the Tribunal’s decision rejecting its BFOR defence. Most significantly however, I allow ACPA’s application to set aside the Tribunal’s decision dismissing its BFOR defence and I send the matter back for redetermination by the same panel.
[14] I say significantly because my decision is based on an important distinction in the facts from those in the many similar cases that have preceded this one. In the present case, ACPA based its hardship argument on new evidence demonstrating an adverse differential financial impact affecting its younger members in the event of the elimination of the age 60 rule in the collective agreement. The Tribunal nevertheless dismissed ACPA’s application, finding that ACPA’s evidence on hardship presented a “close call”.
[15] In this regard, I conclude that the Tribunal failed to properly justify its decision in a transparent fashion. By that I mean the Tribunal omitted to consider important aspects of the evidence that demonstrated a significant adverse financial impact on younger pilots. Most importantly, it mischaracterized the impact of extending the pilots’ careers as a matter of delaying retirement, without considering ACPA’s submission that the pilots would be working an additional three years to achieve the net total revenues situation portrayed at age 63. In the case of the younger pilots, this would mean working for highly reduced effective rates of pay or even for free during those three years.
[16] However, it was not a straightforward matter to set aside the Tribunal’s decision concerning ACPA’s application and simply send it back for reconsideration on the hardship issue. Before dismissing the hardship claims, the Tribunal had already concluded that ACPA’s application would fail, because as a union, it did not meet the requirements of steps one and two of the test in British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union (BCGSEU) (Meiorin Grievance), [1999] 3 SCR 3, [1999] SCJ No 46 (QL) [Meiorin] at para 54. The Tribunal’s hardship analysis was carried out as a matter of “prudence”, most likely to demonstrate to ACPA that its application was dismissed on substantive grounds.
[17] Accordingly, setting aside the Tribunal’s ruling on ACPA’s BFOR defence required surmounting a number of preliminary obstacles and reconsidering previous jurisprudence touching on these issues. For this purpose, I first concluded that in accordance with the Supreme Court decision in Central Okanagan School District v Renaud, [1992] 2 SCR 970, [1992] SCJ No 75 (QL) [Renaud], the Meiorin test could be modified to avoid imposing absolute liability on ACPA. The Meiorin BFOR test was therefore amended to reflect ACPA’s joint liability with Air Canada. I also added a fourth step to the Meiorin test, as appeared to be the Supreme Court’s direction in Renaud, requiring weighing the importance of preventing the discriminatory practice in allowing a defence of hardship.
[18] As an adjunct to the proscription in Renaud against imposing absolute liability, and for other reasons, I also respectfully disagreed with this Court’s previous decision in Vilven v Air Canada, 2009 FC 367, [Vilven] that held that the categories of hardship should be confined to those expressly enumerated in section 15(2) of the CHRA, being factors of safety, health and costs.
[19] In addition, although this issue was not raised by the respondents, I concluded that the new evidence on adverse differential impact required a fresh consideration of whether the MRP was substantively discriminatory. This consideration was premised on comments of the Supreme Court in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, [1999] SCJ No 12 (QL) [Law] and Withler v Canada (Attorney General), 2011 SCC 12, [2011] SCJ No 12 (QL) [Withler] that together allow for a suggestion that the mandatory retirement rule should be seen as serving an ameliorative purpose to provide for the beneficial age-based equal distribution of benefits among ACPA’s members, as opposed to serving to perpetuate stereotypes and prejudice.
[20] Where the introduction of adverse differential impact evidence appears capable of affecting conclusions on both discrimination and hardship issues, it does not make sense in a redetermination to consider only one of the issues, and not the other.
[21] In a similar vein, I queried whether in the 21st century it remains realistic to argue that there exist widespread attitudinal stereotypes and prejudice that disadvantage older workers in the workplaces. Accordingly, my direction to the Tribunal includes instructions permitting the introduction of evidence with the view to reconsider past judicial notice conclusions of the Supreme Court, principally from McKinney v University of Guelph, [1990] 3 SCR 229, [1990] SCJ No 122 (QL) [McKinney], relied on in Vilven to support the Tribunal’s finding that the retirement rule perpetuated stereotypes and prejudice against older workers.
[22] This direction is based on the comments of LeBel J. in Québec (AG) v A, 2013 SCC 5, [2013] SCJ No 5 (QL) [Québec v A] at para 154 that “the court can take judicial notice of certain facts or matters but must be careful not to use judicial notice to recognize social phenomena that may not truly exist.”
[23] My reasons in support of the foregoing rulings and directions follow below.
II. JUDICIAL HISTORY
[24] In order to provide context for these issues, it is necessary to understand the lengthy procedures which have preceded the present review hearing. The numerous tribunal and court rulings result from different issues being decided at different steps in the judicial history, giving rise to further additional issues as decisions of the Tribunal were set aside and new issues set out for consideration. Unfortunately, this pattern of overturning the Tribunal’s decision and sending the matter back for redetermination on different issues does not end with this case.
[25] Several aspects of the case currently before me are legacy issues from a previous series of challenges to Air Canada’s mandatory retirement provision, those being the Vilven and Kelly cases described in the following sections.
A. Vilven v Air Canada, 2007 CHRT 36 [Vilven Tribunal #1]
[26] Two issues were decided by the Tribunal in this matter. First, it concluded that the normal age of retirement of airline pilots in comparator airlines was age 60. This finding resulted in a dismissal of the complaints on the basis that the MRP in the collective agreement was saved by section 15(1)(c) of the CHRA, which provides that it is not a discriminatory practice if termination results “because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual”. Second, the Tribunal determined that para 15(1)(c) did not infringe section 15(1) of the Charter. Both decisions were overturned by the Federal Court.
[27] The basic facts were similar to those in the present case. Two retired pilots, George Vilven and Robert Neil Kelly, complained of age discrimination to the CHRC in 2007. Mr. Vilven had been employed from May 26, 1986 until the day after he turned 60 on August 30, 2003; Mr. Kelly had been employed from September 11, 1972 until the day after he turned 60 on April 30, 2005.
[28] Mr. Vilven had risen to the position of First Officer on an A340 aircraft based in Vancouver, after which he chose not to become a pilot in command but instead used his seniority to remain on that aircraft type and in Vancouver near his family. Upon retiring from Air Canada, he was entitled to a pension of $6,094.04 per month until the age of 65 and $5,534.33 thereafter. He pursued his flying career with a smaller airline. Mr. Kelly had risen to the position of pilot in command on an A340. He was entitled to a pension of $10,233.96 per month until the age of 65 and $9,477.56 thereafter. He too pursued his flying career with smaller airlines after leaving Air Canada.
[29] The complainants established a prima facie case of discrimination against Air Canada under sections 7 (refusing to continue to employ an individual on the basis of age, a prohibited ground of discrimination) and 9 (depriving individuals of employment opportunities on a prohibited ground) of the CHRA. A similar finding was made against ACPA under section 10(b) (an employee organization entering into an agreement that deprives individuals of employment opportunities on a prohibited ground).
[30] The Tribunal determined that the proper comparator group by which to establish the normal age of retirement in the airline industry was “pilots who fly with regularly scheduled international flights with a major international airline.” The parties produced a joint statement of facts listing 22 major international comparator airlines of which only six were Canadian. For those major international airlines for which complete data was available, 80% of pilot positions had required mandatory retirement at age 60 or younger in 2003, and the Tribunal concluded that this remained the case in 2005. Thus, age 60 was held to be the mandatory age of retirement for the majority of positions similar to those of the complainants.
[31] The Tribunal further found that section 15(1)(c) of the CHRA did not contravene section 15(1) of the Charter. In doing so, it applied Law, in which the Supreme Court had stated that the overriding concern was to protect and promote human dignity. It concluded that to continue an arrangement which constituted prima facie age discrimination based on a justification of section 15(1)(c) of the CHRA did not have a negative impact on the complainants’ dignity, in the context of a system which was designed to allocate/spread the responsibilities and benefits of being an Air Canada pilot over different stages in pilots’ careers.
[32] Because of its finding on the section 15 Charter issue, the Tribunal did not have to decide whether section 15(1)(c) of the CHRA could be justified under section 1 of the Charter, nor whether the mandatory retirement policy was a BFOR under sections 15(1)(a) and 15(2) of the CHRA.
B. Vilven v Air Canada, 2009 FC 367 [Vilven]
[33] Messrs. Vilven and Kelly applied for judicial review of the Tribunal’s two decisions referred to above. With respect to the normal age of retirement issue, Justice Mactavish rejected the Tribunal’s test for determining the comparator airlines. She concluded that it erred by focusing on the subjective perceptions of pilot positions such as status or prestige, when the characteristics of comparator airlines should have been based on the objective duties and functional responsibilities of the position in question, that is “what pilots actually do”.
[34] Rather than setting aside the decision, however, since the factual foundation was based upon the Agreed Statement of Facts describing the major international airlines, she concluded that the five Canadian airlines on that list should constitute the comparator airlines for the purpose of determining normal age of retirement. On the basis of those airlines, as well as Air Canada, the Court upheld the Tribunal’s decision 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.
[35] A series of decisions on the constitutionality of section 15(1)(c) followed, but ultimately the provision was found not to infringe the Charter. Accordingly, Justice Mactavish’s decision on the normal age of retirement resulted in the dismissal of the Vilven and Kelly complaints. Its legacy in the present matter relates to the interpretation of her test to determine comparator airlines, which formed the basis of the Tribunal’s decision in this matter in favour of Air Canada. Ultimately, I set aside the Tribunal decision for not having properly applied Justice Mactavish’s test
[36] Justice Mactavish thereafter reviewed the Tribunal’s decision that section 15(1)(c) did not infringe the Charter. The Tribunal had considered McKinney, Gosselin v Quebec (AG), 2002 SCC 84, [2002] 4 SCR 429 [Gosselin] and subsequent jurisprudence. It reached the conclusion that the loss of the opportunity to challenge the MRP had not violated the dignity of the complainants nor failed to recognize them as full and equal members of society.
[37] Turning to the constitutional question, Justice Mactavish asked whether section 15(1)(c) of the CHRA violated section 15(1) of the Charter. She reviewed the Supreme Court jurisprudence on mandatory retirement, including the Law case and R v Kapp, 2008 SCC 41, [2008] 2 SCR 483 [Kapp], as well as the Tribunal’s decision on the issue. She commented that the focus of section 15(1) of the Charter was on preventing governments from making distinctions based on enumerated or analogous grounds which had the effect of perpetuating group disadvantages and prejudice or which imposed disadvantages on the basis of stereotyping. For there to be discrimination, there first had to be a distinction, and then that distinction had to be shown to create a disadvantage. She took note of the Supreme Court’s recognition that “human dignity,” as an abstract and subjective notion, posed difficulties as a test, and that the perpetuation of disadvantage or stereotyping was a preferable test.
[38] She noted that the objective of section 15(1)(c) of the CHRA had previously been described as allowing for the continuation of a socially desirable employment regime, which included pensions, job security, wages, and benefits. It was intended to create an exception to the quasi-constitutional rights otherwise provided by the Act.
[39] Examining section 15(1)(c), she found that by exempting mandatory retirement from conduct which would otherwise amount to prima facie age discrimination, it created a distinction based on an enumerated ground. She noted that the relevant comparison was between older workers having exceeded the normal age of retirement for their positions and younger workers in similar positions who had not yet reached that age. The effect of the provision was to deny the older workers the equal protection and benefit of the CHRA.
[40] She then considered whether this distinction created a disadvantage by perpetuating prejudice or stereotyping. Air Canada had argued, citing Gosselin, that age-based distinctions are a common way of ordering our society and do not automatically evoke a pre-existing disadvantage. Justice Mactavish commented that this was based on comments made by the Supreme Court in a case involving a statutory age-based distinction that had an adverse differential effect on younger individuals, and that age-based section 15 claims were typically brought by older people, who were presumed to lack abilities which they might in fact possess.
[41] The Tribunal found that Messrs. Vilven and Kelly were members of a group identified as older workers, a group the Supreme Court had repeatedly recognized as suffering from pre-existing disadvantages and stereotyping. In addition to its comments in Gosselin and Law, the Supreme Court referred in McKinney to “the stereotype of older persons as unproductive, inefficient, and lacking in competence.” By denying the benefit of, in that case, the Ontario provincial Human Rights Code, RSO 1990, c H.19, to older workers, the effect was to reinforce “the stereotype that older employees are no longer useful members of the labour force and their services may therefore be freely and arbitrarily dispensed with.”
[42] As discussed below, when raising the issue as to whether the differential adverse impact evidence not before Justice Mactavish should give rise to an issue of whether the MRP is discriminatory, I query the validity of a widespread negative stereotype against older workers in our present society.
[43] In the cases of Messrs. Vilven and Kelly, the Tribunal accepted this general proposition, but found that there was no indication that either complainant had personally experienced such age-related disadvantages or stereotypes. Justice Mactavish observed that first, to the extent that the analysis was of the group to which the claimants belonged – older workers – it was clear that there was pre-existing disadvantage, vulnerability, stereotyping, or prejudice. Second, although there was no concern with the individual abilities of Messrs. Vilven and Kelly, they were nonetheless disadvantaged by being forced to leave positions that they clearly loved, merely because they had reached the age of 60. She was satisfied that this had the effect of perpetuating a group disadvantage, suggesting that the MRP violated section 15(1) of the Charter.
[44] She examined whether the provision had an ameliorative purpose or effect which could save it. Air Canada had argued that it had the effect of freeing up positions for younger workers. However, Justice Mactavish found that there had been no suggestion that younger workers constituted a disadvantaged group which was being targeted by the CHRA.
[45] As for whether the MRP is discriminatory as opposed to the constitutionality of section 15(1)(c), to the extent that there is overlapping of relevant considerations, I conclude that there is an important distinction between the factual foundation in the matter that was before Justice Mactavish and the current matter. Based on the evidentiary record which was placed before me, I find that the increase in the retirement age to 63 would result in a significant adverse differential impact on younger pilots.
[46] In Vilven, Justice Mactavish pointed out that the Supreme Court had stated in McKinney that legislation that had as its objective the forcible retirement of older workers in order to make way for younger workers would be in itself discriminatory, since it would assume that the continued employment of some individuals was less important and of less value to society, than the employment of other individuals, based solely on age.
[47] In the case of Messrs. Vilven and Kelly, the interest at stake was the ability to continue to work in the career of their choice. The importance of this could not be overstated, commented Justice Mactavish. She concluded that section 15(1)(c) of the Act violated section 15(1) of the Charter, by denying the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions.
[48] Consequently, she qu