Air Canada Pilots Association v. Kelly et al. 2012 FCA 209
Aeronautics - Pilots - General - Mandatory retirement
Two Air Canada pilots filed discrimination complaints under the Canadian Human Rights Act (CHRA) when they were each forced to retire at age 60, in accordance with the mandatory retirement provisions of a collective agreement. The Canadian Human Rights Tribunal (CHRT), relying on the exception provision (s. 15(1)(c)) of the CHRT, dismissed the complaints finding that 60 was the “normal age of retirement” in the industry and, therefore, the mandatory retirement provisions were not discriminatory (See 2007 CHRT 36). The CHRT also found that s. 15(1)(c) did not violate the guarantee of equal treatment in s. 15(1) of the Charter. The pilots applied for judicial review.
The Federal Court, in a decision reported 344 F.T.R. 104, found that the CHRT erred in its analysis of the constitutionality of s. 15(1)(c) of the CHRA. The statutory provision violated s. 15(1) of the Charter (equality provision). Therefore, the court allowed the pilots’ applications for judicial review, set aside the decision of the CHRT and remitted the matter to the tribunal to consider whether s. 15(1)(c) could be saved by s. 1 of the Charter.
The Canadian Human Rights Tribunal, in a decision with neutral citation 2009 CHRT 24, determined that s. 15(1)(c) was not saved by s. 1. Two judicial review applications were launched, one by Air Canada and the other by the Air Canada Pilots Association. Both applications raised an issue as to whether the CHRT erred in its s. 1 Charter analysis.
The Federal Court, in a decision reported 383 F.T.R. 198, found that the CHRT’s decision on the Charter issue was correct (i.e., s. 15(1)(c) could not be saved by s. 1 of the Charter). The Air Canada Pilots Association appealed.
The Federal Court of Appeal allowed the appeal, set aside the decision of the Federal Court and returned the matter to the CHRT with a direction to dismiss the pilots’ complaints on the ground that s. 15(1)(c) of the CHRA was constitutionally valid. The court held that both the CHRT and the Federal Court were bound by the doctrine of stare decisis to follow McKinney v. University of Guelph (SCC 1990) on the issue of mandatory retirement, and thus erred in concluding that s. 15(1)(c) of the CHRA was not saved by s. 1 of the Charter.