Tribunal to revisit Air Canada retirement

TORONTO • The Canadian Human Rights Tribunal will be revisiting the issue of whether Air Canada was wrong to force some pilots to retire at age 60.

A decision released on Friday says the tribunal will hold another hearing to determine whether the airline had the right to force 45 pilots to retire at an age it deemed to be the industry standard.

The decision says the case originally had 97 complainants, but 52 of them will not have their retirement age scrutinized by the tribunal.

Adjudicator David Thomas wrote in the decision that while the issues had been well explored in previous rulings involving the 52 pilots who had retired before 2010, the 45 who retired after that date have not yet had a chance to air their grievances.

While describing the possibility as improbable, he conceded that there may have been changes in the industry during those years that would make the forced retirement discriminatory on the basis of age.

“... It is not the role of the tribunal to speculate whether certain evidence may or may not exist. The tribunal has no investigatory powers and has no material evidence before it for the younger complainants. It is the right and the obligation of the parties to present that evidence to the tribunal in a quasi-judicial forum.”

A lawyer representing the majority of the pilots expects the new tribunal hearing will get underway in early 2018.

Raymond Hall said he welcomed the latest development in the highly complex case. “We’ve been at it for 12 years,” he said Friday. “It’s no small thing.”

The new hearing will unfold against the complicated backdrop of two past cases as well as changes in federal law.

In 2011, the then Conservative government passed a law forbidding federally regulated companies such as Air Canada to enforce a mandatory retirement age on its employees. The law went into effect in December, 2012.

Prior to that legislation, the issue of retirement age at Air Canada had been hotly contested on at least two occasions at the tribunal.

The first case, named Vilven/Kelly after its two plaintiffs, challenged Air Canada’s imposition of a mandatory retirement age of 60 for pilots forced to stop working between 2003 and 2005.

Despite an initially favourable ruling from the tribunal, the case was challenged in federal court and ultimately quashed by the Court of Appeal.

The second case, dubbed Thwaites/Adamson, involved 70 plaintiffs who retired between 2005 and 2009. That, too, received contradictory rulings from the tribunal and federal courts before ultimately being dismissed by the Court of Appeal.

The third and most recent group of complainants, referred to as Bailie et al, had retirement dates ranging from June, 2004, to February, 2012.