View cases - Stewart McKelvey

of relevant positions. As the Tribunal observed in Campbell, it would be unreasonable for a verysmall airline to be weighted on an equal footing with a large airline such as Air Canada indetermining the industry norm: see paragraph 5481.[170] However, as was explained earlier, I am of the view that the Tribunal erred in itsidentification of the “positions similar” to those occupied by Messrs. Vilven and Kelly. It is pilotsworking for Canadian airlines flying aircraft of various sizes to domestic and internationaldestinations, through Canadian and foreign airspace, that form the proper comparator group.[171] I also agree with the Tribunal’s observation that there are problems associated with usingCanadian data for comparison purposes. Citing the Tribunal decision in Campbell, the Tribunal notedthat because of Air Canada’s dominant position within the Canadian airline industry, a comparison ofpilot positions within Canada would result in Air Canada setting the industry norm. This would allowAir Canada to effectively determine the “normal age of retirement” for the purposes of paragraph15(1)(c) of the Act.[172] What the Tribunal did not mention was that the Tribunal in Campbell nevertheless went on touse the available Canadian data, noting that its concern with respect to the effect of Air Canada’sindustry dominance was somewhat tempered by the fact that the mandatory retirement age had beennegotiated between Air Canada and Mr. Campbell’s union. ACPA argues that this is also the casehere, and that the retirement age in issue in this case was arrived at through negotiation between AirCanada and a very strong union.2009 FC 367 (CanLII)[173] The statistical information before the Tribunal with respect to airline pilots working for bothAir Canada and other Canadian airlines flying aircraft of various sizes to domestic and internationaldestinations, through Canadian and foreign airspace, reveals that at the time that Messrs. Vilven andKelly were forced to leave their positions at Air Canada, several Canadian airlines allowed theirpilots to fly until they were 65, and one had no mandatory retirement policy whatsoever.Nevertheless, 56.13% of Canadian airline pilots retired by the time they reached the age of 60.[174] Therefore, despite the errors identified above, the Tribunal’s conclusion that 60 was thenormal age of retirement for employees in positions similar to those occupied by Messrs. Vilven andKelly prior to their forced retirements from Air Canada was one that fell within the range of possibleacceptable outcomes which are defensible in light of the facts and the law.(vi) Conclusion with respect to the availability of the “normal age of retirement” defence[175] Given that 60 was the normal age of retirement for employees in positions similar to thoseoccupied by Messrs. Vilven and Kelly, the fact that they were forced to retire at 60 in accordancewith the mandatory retirement provisions of the collective agreement in effect between Air Canadaand ACPA did not amount to a discriminatory practice within the meaning of paragraph 15(1)(c) ofthe Canadian Human Rights Act.[176] Before turning to consider the Tribunal’s decision with respect to whether paragraph 15(1)(c)of the Canadian Human Rights Act violates subsection 15(1) of the Charter, two further commentsshould be made.[177] The first relates to the significance of the ICAO standards regarding pilot age. Although Ihave found that the ICAO standards did not amount to a binding rule for the purpose of the analysisunder paragraph 15(1)(c) of the Canadian Human Rights Act, the standards are not irrelevant toMessrs. Vilven and Kelly’s human rights complaints.[178] That is, the inability to have a pilot-in-command who is over 60 (now 65) on a flight leavingCanadian airspace will undoubtedly cause logistical difficulties for Air Canada in scheduling pilots,having regard to the significant amount of transborder flying carried out by the airline. Whether these