View cases - Stewart McKelvey

situation of pilots working in Canada, including those transporting passengers for regional carriers,charter and discount airlines, amongst others. Subject to the comments below, Messrs. Vilven andKelly submit that the comparator group should properly be “Canadian pilots holding airline transportlicenses”.[96] The applicants contend that the Tribunal should have asked itself whether, in enactingparagraph 15(1)(c) of the Canadian Human Rights Act, Parliament intended that the rights ofCanadian citizens be determined by reference to the forced retirement of individuals in othercountries, countries which may not offer the same level of protection against age discrimination asdoes Canada, and not at all by reference to the normal age of retirement for airline pilots in thiscountry.[97] The applicants further submit that even if the comparator group should properly be “Canadianpilots holding airline transport licenses”, it would still be inappropriate to use statistical informationwith respect to retirement ages for Canadian airline pilots. This is because Air Canada plays such adominant role within the Canadian airline industry. The high proportion of Canadian pilots flying forAir Canada means that the company would effectively set the industry norm.2009 FC 367 (CanLII)[98] In these circumstances, the applicants submit that there is no appropriate comparator group inthis case. As a consequence, there can be no “normal age of retirement” for airline pilots, with theresult that the defence under paragraph 15(1)(c) of the Canadian Human Rights Act should not beavailable to the respondents.[99] Air Canada argues that the Tribunal’s characterization of the essential elements of Messrs.Vilven and Kelly’s positions was a finding of fact made by the Tribunal based upon their ownevidence, and was not unreasonable. The evidence established that there were significant differencesbetween flying for Air Canada, and flying for regional carriers such as Jazz. The evidence alsoindicated that pilot positions with Air Canada were acknowledged to be the most prestigious, highlypaid and highly sought-after pilot positions in Canada.[100] Air Canada further submits that the Tribunal did not limit its consideration to the positionsactually held by Messrs. Vilven and Kelly immediately prior to their retirement. According to AirCanada, the applicants’ argument about the potential for “shopping the comparator group” ispredicated upon the erroneous assumption that pilot positions at Air Canada can be divided into thosethat fly internationally and those that do not. In fact, 86% of Air Canada flights are either to aninternational destination, or pass through foreign (primarily American) airspace, en route to aCanadian destination. Between 20 and 25% of the remaining 14% of Air Canada flights have anAmerican airport as an alternate airport where planes are to land if, for example, weather precludeslanding at the regularly scheduled Canadian airport.[101] As a result, only 10.5% of Air Canada’s “domestic” flights are truly domestic, and less than5% of Air Canada’s overall operations involve flying on purely Canadian routes. According to AirCanada, it was therefore reasonable for the Tribunal to have concluded that an essential feature of thecomparator group positions was that they involved international flying—a determination that issignificant in light of the ICAO standards dealing with pilot age.[102] Air Canada also points out that nothing in the Canadian Human Rights Act specificallyrequires that the comparator group used for the purposes of paragraph 15(1)(c) be solely made up ofCanadian workers.[103] Air Canada further contends that even though pilots for other Canadian airlines fly tointernational destinations, they nevertheless do not occupy “positions similar” to those that wereoccupied by Messrs. Vilven and Kelly. According to Air Canada, they do not fly “regularinternational flights”, as such flights are not substantively part of their airlines’ mandates, but arerather simply part of the airlines’ schedules.