View cases - Stewart McKelvey

[132] Firstly, as Air Canada has now conceded, the mandatory ICAO standard for pilot-incommandflying in international airspace did not even apply to Mr. Vilven, who was working as afirst officer at the time that he was forced to retire, and thus would not ordinarily have beendesignated as the pilot-in-command of aircraft. As a “co-pilot”, Mr. Vilven would only have beensubject to ICAO’s maximum age recommendation.[133] Secondly, the ICAO standard in effect at the time that Messrs. Vilven and Kelly were forcedto retire from Air Canada did not “require retirement at age 60” for pilots-in-command, as theTribunal stated at paragraph 58 of its decision. The mandatory standard simply stipulated that pilotscould not act as pilots-in-command of aircraft engaged in international commercial air transportoperations if the individual had attained 60 years of age. Nothing in the ICAO standard necessarilyprecluded pilots over the age of 60 from acting as co-pilots on such flights.[134] As was explained earlier, although the “pilot-in-command” of an aircraft would usually bethe captain, this is not necessarily so. As a consequence, Mr. Kelly would not have been caught bythe mandatory ICAO standard if, for example, his first officer was designated as the pilot-incommandon his flights, or if he had used his seniority to bid for a position as a first officer, ratherthan as a captain.2009 FC 367 (CanLII)[135] That said, I am not persuaded that proof of the existence of an industry rule is required inorder for there to be a “normal age of retirement” for the purposes of paragraph 15(1)(c) of the Act.[136] As the Tribunal recognized, there is a difference between the wording of the English versionof paragraph 15(1)(c) of the Canadian Human Rights Act, and that contained in the French version ofthe same provision. The applicants say that the shared meaning of the French and English versions ofthe provision requires that there be a binding rule in place mandating mandatory retirement at a givenage before the defence under paragraph 15(1)(c) will be available to an employer.[137] Given that no such binding rule exists in this case, the applicants argue that the Tribunal’sdecision was unreasonable.[138] The English version of the legislation states that it is not a discriminatory practice if anindividual’s employment is terminated because that individual has reached “the normal age ofretirement for employees working in positions similar to the position of that individual”. In contrast,the French version of paragraph 15(1)(c) provides that it is not a discriminatory practice if anindividual’s employment is terminated “en appliquant la règle de l’âge de la retraite en vigueur pource genre d’emploi” (emphasis added).[139] According to the applicants, the French version of the legislation is perfectly clear, requiringthat there be a “règle” or “rule” in effect for similar positions before the defence provided for inparagraph 15(1)(c) of the Act can be made out. In contrast, the English version of the same provisionis ambiguous, referring as it does to the “normal age of retirement”. The applicants say that if“normal” is understood to mean “usual”, or “the statistical norm”, this then leads to a conflict withthe French version of the legislation.[140] The applicants submit that the French version of the provision is narrower than the Englishversion. Given that paragraph 15(1)(c) creates an exception to the rights provided for in the CanadianHuman Rights Act, the narrower version of the legislation should be preferred.[141] Air Canada and ACPA say that the reconciliation of the two versions of the Act is notdifficult when regard is had to the broader context of the legislation, and, in particular, to subsection9(2) of the Act, which provides that:9. (1) …