In Vilven v. Air Canada et al (Vilven), the Canadian Human Rights Tribunal (CHRT) has held that Air Canada’s mandatory retirement policy must be rewritten. The CHRT has found that the mandatory retirement saving provision of the Canadian Human Rights Act (CHRA) is unconstitutional. This decision will interest all employers dealing with an ageing workforce.

The History of the Dispute

Under the CHRA, it is not a discriminatory practice to terminate the employment of an individual who has reached the normal age of retirement for employees working in similar positions. This is the so-called “saving” provision. At Air Canada, pilots must retire at age 60. In Canada, about 56 per cent of airline pilots, in the relevant similar positions, have retired by age 60. The CHRT and the Federal Court (Trial Division) agreed that the normal age of retirement for airline pilots is 60 and that the saving provision, read by itself, justifies the retirement policy.

The central question in Vilven is whether the saving provision is itself compliant with the Canadian Charter of Rights and Freedoms. This involves a two-step legal analysis. Firstly, is the saving provision discriminatory? If discriminatory, can the government establish that the provision is a reasonable limit, “justified in a free and democratic society”? In 2007, the CHRT decided that the saving provision was not discriminatory. The Federal Court overturned that decision, found discrimination and sent the matter back to the CHRT to consider the second step of the analysis.

The CHRT released its decision on August 28, 2009. It has found that the saving provision cannot be justified and that it cannot be applied. In addition, it held that the mandatory retirement policy could not be saved as a bona fide occupational requirement (BFOR). Accordingly, the airline’s mandatory retirement policy violates the CHRA and must be modified. The nature of the modifications and the remedies to be granted to the complainants are to be decided in a further hearing before the CHRT.

The Decision

The CHRT used the multi-layered analytical framework set down by the Supreme Court of Canada in constitutional cases. In so doing, it distinguished that Court’s seminal 1990 decision in McKinney, finding that the factual and social context had changed. The CHRT accepted expert evidence to the effect that Canada was facing skill and labour shortages. It also accepted that, by 2010, 70 per cent of the net increase in working age population from 2000 would be in the 55 to 64 age group and that, by 2020, all the net increase would be in that group. The CHRT held, therefore, that permitting mandatory retirement is no longer a pressing and substantial social need; preventing mandatory retirement may now be.

Both the airline and the pilots’ union next argued that retirement at age 60 is a BFOR. In deciding that issue, the CHRT relied on another complex analytical framework penned by the Supreme Court, the so-called Meiorin analysis. To establish a BFOR, it must be shown that the complainants cannot be accommodated without causing undue hardship for the employer, and for the union and its members as well. The CHRT held that the defenders of the mandatory retirement policy had not shown that allowing the complainants to continue working, albeit under modified working conditions, would cause undue hardship.

Accommodation

It is the CHRT’s discussion of accommodation that pushes the boundaries of the mandatory retirement debate. The CHRT heard evidence of the standards imposed by the International Civil Aviation Organization (ICAO). ICAO standards required, before November 2006, that captains over 60 not fly internationally, although there was no age limit for first officers. After October 2006, captains under 65 can fly internationally, provided that one of the other pilots is under 60.

The airline called evidence of the effect on its business of allowing pilots to fly after age 60, while complying with the ICAO standards. The CHRT found that the evidence was insufficient to demonstrate undue hardship for the airline. It pointed out that the evidence set out a number of conclusions, without setting out the factual underpinnings of those conclusions. For example, the airline’s expert testified that accommodating the older pilots would result in materially lower “quality monthly schedules” for certain pilots. The CHRT noted that no evidence was led to as the meaning of the quoted phrase or as to the reasons for expert’s opinion.

Neither could the union show undue hardship to its members. The union had argued that accommodation would impose a significant and unreasonable cost on pilots under 60. The CHRT found support in the evidence not of a denial of career progression and the associated salary increases, but only of a modest delay.

To show an example of successful accommodation, the CHRT pointed to changes to the employment relationship that had been made by another airline in order to reconcile the abolition of mandatory retirement at age 60 and the ICAO standards. In the words of the CHRT, “[i]nstead of forcing workers to retire at a certain age, the parties can agree that at a certain age, the terms and conditions of employment will change”.

The Order

The complainants had asked for reinstatement, restoration of seniority and service and damages for lost income as well as for lost benefits. The Canadian Human Rights Commission asked for significant revisions to the employer’s mandatory retirement policies. The CHRT indicated that it needed further evidence and submissions before deciding upon suitable remedies. It remains seized of the matter for this purpose.

Comment

Vilven is instructive not only for the fact that it strikes down certain parts of federal human rights legislation but also for its discussion of the need to accommodate the older worker by making appropriate changes to the employment contract, including the collective agreement. Accommodation of the older worker is an issue in all jurisdictions where mandatory retirement has been abolished. In the words of airline’s own expert witness, “[w]e are being pushed into a new world here and we are going together in this, so we have to make it work for everyone”. In a world where mandatory retirement no longer exists, the need for creativity in employment solutions is of prime importance.