View cases - Stewart McKelvey

[34] According to the Supreme Court, a prima facie case of discrimination is one that covers theallegations made, and which, if believed, is complete and sufficient for a decision in favour of thecomplainant, in the absence of a reasonable answer from the respondent. Once a prima facie case ofdiscrimination has been established by a complainant, the burden then shifts to the respondent toprovide a reasonable explanation for the conduct in issue.[35] As the Tribunal noted, it is the respondent that will ordinarily be in possession of the necessaryinformation to respond to the prima facie case. Indeed, in this case, Mr. Vilven testified as to thesignificant difficulties he had encountered in trying to assemble information with respect toretirement ages and mandatory retirement policies at other airlines in Canada and around the world.In contrast, with some effort, Air Canada was able to obtain a considerable amount of data withrespect to the retirement policies and retirement ages for airlines around the world.[36] Having regard to the remedial nature of the legislation, the Tribunal was satisfied that the goalsof the Canadian Human Rights Act were best attained by placing the onus on employers todemonstrate that their employees were retired in accordance with the normal age of retirement forsimilar positions.2009 FC 367 (CanLII)[37] Given that there was no question but that the employment of Messrs. Vilven and Kelly hadbeen terminated because they had reached 60 years of age, the Tribunal was satisfied that a primafacie case of discrimination contrary to the provisions of section 7 of the Canadian Human Rights Acthad been established against Air Canada in each case.[38] The Tribunal was also satisfied that a prima facie case of discrimination contrary to paragraph10(b) of the Canadian Human Rights Act had been made out as against Air Canada and ACPA. Thisprovision makes it a discriminatory practice for an employer or employee organization to enter intoan agreement that deprives an individual of an employment opportunity on a prohibited ground. Inlight of the mandatory retirement provisions of the Air Canada/ACPA collective agreement, theTribunal found that there had been a prima facie breach of this statutory provision as well.[39] The Tribunal further found that ACPA had agreed to the inclusion of the mandatory retirementprovision in the collective agreement. Given that section 9 of the Act makes it a discriminatorypractice for an employee organization to act in a way that would deprive an individual of anemployment opportunity, the Tribunal concluded that a prima facie case against the union had alsobeen established in relation to the section 9 complaint asserted in Mr. Kelly’s case.[40] As a consequence, the Tribunal held that the burden shifted to Air Canada and ACPA todemonstrate that 60 was indeed the normal age of retirement for pilots in similar positions.[41] In this regard, the Tribunal observed that the term “normal age of retirement” in paragraph15(1)(c) is identified in relation to “employees working in positions similar to the position of theindividual” who filed the complaint. This led the Tribunal to ask itself two questions: firstly, “What isthe proper comparator group to identify the positions that are similar to that occupied by thecomplainants?” and secondly, “What is the normal age of retirement?”.[42] In relation to the first question, the Tribunal rejected ACPA’s submission that it should limitits consideration to individuals occupying positions with airlines within Canadian federal jurisdiction.The Tribunal noted that using Canadian airline pilots as the proper comparator group would result inAir Canada setting the industrial norm, because of its dominance in Canada’s airline industry. This inturn would allow Air Canada to effectively determine the application of paragraph 15(1)(c) of the Actas it relates to the airline industry in this country.[43] In the Tribunal’s view, in choosing the appropriate comparator group, the proper approach wasto identify the essential features of the positions in question. In this regard, the Tribunal was of theview that no differentiation should be made between pilots working as captains, and those working as