Mandatory retirement for Air Canada pilots upheld — again

International age restrictions make retirement at 60 a bona fide occupational requirement: Tribunal
|employmentlawtoday.com|Last Updated: 08/30/2011

Another chapter in a five-year legal battle over Air Canada’s mandatory retirement for pilots at the age of 60 has been closed with the Canadian Human Rights Tribunal’s upholding of the policy.

Air Canada terminated the employment of George Vilven and Neil Kelly in 2003 and 2005, respectively, within days of each turning 60, in accordance with the mandatory retirement age provisions of the pilots’ pension plan in the collective agreement. The Canadian Human Rights Tribunal originally found the provision didn’t violate the Canadian Human Rights Act because the act allowed for termination of employees who reach “the normal age of retirement for employees working in positions similar to the position of that individual.” It based its decision on the International Civil Aviation Organization (ICAO) maximum age for pilots — 60 years old — and the fact other international airlines had similar mandatory retirement provisions.

The case was directed to the Federal Court and then back to the tribunal twice, with Air Canada arguing it would be undue hardship to limit the pilots to domestic flights, as international flights were out of the question due to the ICAO rules and the pilots arguing the act’s provision for normal retirement violated their charter rights to equal treatment. The Federal Court referred the case back to the tribunal a second time in early 2011 to re-examine whether mandatory retirement was a bona fide occupational requirement that justified a violation of Vilven and Kelly’s charter rights.

However, the tribunal once again dismissed the pilots’ complaint, finding Air Canada provided sufficient evidence that employing the two of them would be undue hardship because of the international requirements, which would demand extra staffing requirements, schedule problems and more costs.

“I am satisfied on a balance of probabilities that: (1) mandatory retirement of pilots at age 60 is based solely on a bona fide occupational requirement, therefore it is not a discriminatory practice, and (2) accommodating the needs of the complainants after November 2006 would impose undue hardship on Air Canada, considering health, safety and cost," said tribunal member Wallace Craig.

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