View cases - Stewart McKelvey

[16] There is no suggestion that there were any job performance problems or medical fitness issueswith respect to Mr. Vilven. Indeed, it is common ground that the sole reason for the termination of hisemployment with Air Canada was the application of the mandatory retirement provisions of thecollective agreement in effect between Air Canada and ACPA.[17] Based upon his years of service with Air Canada, together with his pre-employment militaryservice, Mr. Vilven received pension benefits of $6 094.04 per month until he turned 65, and willreceive $5 534.33 per month from age 65 until his death.[18] After leaving his employment with Air Canada, Mr. Vilven was able to continue his career inaviation. He flew with Flair Airlines from April of 2005 until May of 2006, when he ceased flying inorder to prepare for his hearing before the Canadian Human Rights Tribunal. At the time of theTribunal hearing, Mr. Vilven continued to hold a valid Canadian Air Transport Pilot’s Licence.(iii)Robert Neil Kelly’s complaint[19] Robert Neil Kelly was hired by Air Canada as a DC-8 second officer in September of 1972.Using his seniority, he was able to qualify as a Captain in 1992, flying as the pilot-in-command ofvarious types of aircraft. At the time of his retirement from Air Canada, Mr. Kelly was flying as thecaptain and pilot-in-command of an Airbus 340.2009 FC 367 (CanLII)[20] The term “pilot-in-command” should not be confused with that of “captain”. Pilot positions atAir Canada include captains, first officers and relief pilots. The “International Standards on PersonnelLicensing” promulgated by the International Civil Aviation Organization (ICAO), the United Nationsorganization charged with fostering civil aviation safety, requires that one pilot on each flight bedesignated as the pilot-in-command of the flight: see the International Civil Aviation Organization,International Standards and Recommended Practices, Annex 1 to the Convention on InternationalCivil Aviation: Personnel Licensing (Montréal: ICAO, 2006). Although the captain of an aircraft willordinarily be the pilot-in-command, this is not necessarily the case.[21] Mr. Kelly turned 60 on April 30, 2005. In accordance with the mandatory retirementprovisions of the collective agreement, Mr. Kelly 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 agree that the only reason for the termination of Mr. Kelly’s employment with AirCanada was the application of the mandatory retirement provisions found in the governing collectiveagreement.[22] In accordance with the pension option that he selected, Mr. Kelly will receive $10 233.96 inpension benefits each month until he turns 65, and $9 477.56 per month thereafter until his death.[23] Like Mr. Vilven, Mr. Kelly was able to continue flying after leaving Air Canada. He initiallyworked on contract as a first officer with Skyservice Airlines, flying Boeing 757s and 767s. At thetime of the Tribunal hearing, Mr. Kelly continued to hold a valid Canadian Air Transport Pilot’sLicence, and was working on contract with Skyservice as a captain and pilot-in-command, flyingroutes, including international routes, on Boeing 757s.III. The human rights complaints[24] Mr. Vilven filed his complaint against Air Canada with the Canadian Human RightsCommission in August of 2004. He asserted that in forcing him to retire at age 60, Air Canadaviolated sections 7 and 10 [as am. by S.C. 1998, c. 9, s. 13(E)] of the Canadian Human Rights Act. Acopy of the relevant statutory provisions is attached as an appendix to these reasons.