View cases - Stewart McKelvey

[123] Finally, although the survey information that was before the Tribunal suggests that the “legalretirement age” for pilots flying for Cathay Pacific Airways was 60 at the relevant time, this evidencealso indicates that Cathay Pacific pilots had to retire at age 55, unless their contracts of employmentwere extended by the airline. Whether or not this occured in a given case appears to be adiscretionary decision on the part of the airline. There is no suggestion in the evidence that pilotshave any legal entitlement to employment after age 55.[124] As was noted earlier, the Canadian Human Rights Act was enacted to give effect to thefundamental Canadian value of equality—a value which the Supreme Court of Canada has describedas lying at the very heart of our free and democratic society. By ignoring the situation of otherCanadian pilots, and by comparing Air Canada pilots to pilots flying for legacy carriers in othercountries, the Tribunal compared the situation of individuals who enjoy the protection of the Act tothose who do not. This was, in my view, unreasonable.[125] To summarize my findings to this point: the essence of what Air Canada pilots do can bedescribed as “flying aircraft of varying sizes and types, transporting passengers to both domestic andinternational destinations, through Canadian and foreign airspace”. There are many Canadian pilotsworking in similar positions, including those working for other Canadian airlines. These pilots formthe comparator group for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act.2009 FC 367 (CanLII)[126] In determining what the normal age of retirement is for the comparator group, it is nextnecessary to decide whether paragraph 15(1)(c) requires that there be a binding rule mandatingretirement at a given age in order for the defence to be available.(iv) Is a binding rule required for there to be a “normal age of retirement”?[127] The Tribunal recognized in its reasons that there is a difference between the English andFrench versions of paragraph 15(1)(c). According to the Tribunal, one could use either a normativeapproach to determining the normal age of retirement in a given industry, based upon the Frenchversion of the legislation, or an empirical approach, based upon the English version.[128] Likely because the issue was not argued before it, the Tribunal did not attempt to reconcilethe two versions of the legislation, or to find their shared meaning, which, the applicants now say,amounts to an error of law. Instead, the Tribunal considered the issue from both a normative and anempirical approach, coming to the conclusion that 60 was the normal age of retirement for pilots inpositions similar to those of Messrs. Vilven and Kelly, whichever approach was used.[129] While Air Canada initially objected to the issue of the need to reconcile the English andFrench versions of paragraph 15(1)(c) being raised for the first time before this Court, the airlinesubsequently acknowledged that the issue involves a question of law, that the record relating to theissue is complete, and that it has not been prejudiced in any way by having the issue raised for thefirst time on judicial review. As a consequence, I will deal with the applicants’ argument.[130] Although I agree with Messrs. Vilven and Kelly that the Tribunal erred in finding that therewas a rule governing the maximum age of retirement in the airline industry, I am not persuaded thatproof of the existence of such a rule was in fact required before the defence under paragraph 15(1)(c)could be established.[131] The Tribunal held that the ICAO standard in effect at the time of the retirements of Messrs.Vilven and Kelly qualified as a “rule” governing the age of retirement in the airline industry, as itgoverned the same community of international carriers that the Tribunal had chosen as comparatorsto determine “positions similar” to those of Messrs. Vilven and Kelly. This finding is problematicfrom a couple of perspectives.