View cases - Stewart McKelvey

Page: 32[124] There is a further consideration that distinguishes paragraph 15(1)(c) of the CHRA from theprovisions of the Ontario and British Columbia human rights legislation at issue in McKinney andHarrison. That is, the upper age limit on the protection against age discrimination specified in theprovincial legislation applied equally to all employees working in the province in question. Incontrast, the age limit contemplated by paragraph 15(1)(c) of the CHRA may vary from industry toindustry and from position to position.2011 FC 120 (CanLII)[125] Moreover, unlike the provincial legislation at issue in McKinney and Harrison, paragraph15(1)(c) of the CHRA permits a single dominant player within an industry to effectively set thenormal age of retirement for the entire industry. Once again, this distinguishing feature is illustratedby the facts of this case.[126] Other Canadian airlines do not require that their pilots retire at age 60. At the time thatMessrs. Vilven and Kelly were forced to retire from Air Canada, several Canadian airlines allowedtheir pilots to fly until they were 65, and one had no mandatory retirement policy whatsoever:Vilven #1, at para. 173.[127] However, Air Canada occupies a dominant position within the Canadian airline industry,employing the majority of pilots flying aircraft of varying sizes and types, transporting passengersto both domestic and international destinations through Canadian and foreign airspace. As a result,Air Canada (with ACPA) is able to set the industry norm, and can effectively determine the ‘normal