2015 FCA 153, 2015 FCA 153

[2016] 2 F.C.R. 75 2015 FCA 153 A-105-14 A-111-14 A-112-14 Robert Adamson et al. and Air Canada and Air Canada Pilots Association ( Appellants ) v . Canadian Human Rights Commission and Donald Paxton ( Respondents ) Indexed as: Adamson v. Canada (Canadian Human Rights Commission) Federal Court of Appeal, Pelletier, Trudel and Boivin JJ.A.—Ottawa, January 20 and June 26, 2015.

Human Rights — Appeals from Federal Court decision disposing of five applications for judicial review of Canadian Human Rights Tribunal decision dismissing group of complaints made under Canadian Human Rights Act — Complainants, all past members of Air Canada Pilots Association (ACPA), former employees of Air Canada, forced to retire at age 60 due to mandatory retirement rule (MRR) in collective agreement between Air Canada, ACPA — Complainants alleging that MRR constituting discriminatory practice under Act — Tribunal finding in particular that MRR constituting prima facie discrimination but accepting Air Canada’s defence under Act, s. 15(1)(c), concluding that age 60 normal age of retirement for pilots in Canada — Federal Court, inter alia, accepting complainants challenge of Tribunal’s finding on normal age of retirement — What was appropriate appellate standard of review in present case? — Whether Federal Court choosing, applying appropriate standard of review when discussing Tribunal’s conclusion on normal age of retirement — Whether Tribunal erring in concluding that age 60 constituting normal age of retirement for pilots in Canada during years at issue — Whether Tribunal otherwise erring in concluding that complaints should be dismissed on basis of Act, s. 15(1)(c) — Standard of reasonableness constituting applicable standard of review to Tribunal’s identification of appropriate comparator group for determining normal age of retirement — While Federal Court choosing proper standard of review, not applying standard correctly — Also not properly applying reasonableness standard to Tribunal’s assessment of normal age of retirement — Federal Court applying factors in Vilven v.

Air Canada (Vilven F.C.) to evidence in present case to reach own conclusion — However, factors set out in Vilven F.C. not formula that Tribunal having to get right to survive challenge on judicial review — Federal Court failing in task of assessing reasonableness of Tribunal’s decision on own merits, also misplacing focus on Air Canada’s main competitors — Tribunal’s decision not unreasonable — While this conclusion on Act, s. 15(1)(

c) issue sufficient to dispose of appeal, portion of Federal Court’s reasons dealing with prima facie discrimination commented on — Federal Court erring by considering this issue, not raised by parties, without giving them notice, opportunity to provide submissions — Appeals in A-111-14 and A-112-14 allowed; appeal in A-105-14 dismissed. These were consolidated appeals from a Federal Court decision disposing of five applications for judicial review of a Canadian Human Rights Tribunal decision dismissing a group of complaints made under the Canadian Human Rights Act .

The complainants were all past members of the Air Canada Pilots Association (ACPA) and former employees of Air Canada who were forced to retire at age 60 due to the mandatory retirement rule (MRR) in the collective agreement between Air Canada and the ACPA. They brought complaints against both organizations alleging that the MRR constituted a discriminatory practice under the Act, contrary to sections 7 and 10 thereof. The Tribunal found that the MRR constituted prima facie discrimination and rejected the organizations’ defence of bona fide occupational requirement (BFOR) under paragraph 15(1)(

a) of the Act. However, it accepted Air Canada’s defence under paragraph 15(1)(c); and concluded that age 60 was the normal age of retirement for pilots in Canada. The three parties applied for judicial review of a portion of the Tribunal’s decision. As for the Federal Court, it accepted the complainants’ challenge of the Tribunal’s finding on the normal age of retirement, dismissed Air Canada’s challenge of the Tribunal’s conclusion that it had not proven a BFOR under paragraph 15(1)(

a) but accepted the ACPA’s challenge on that same point. On appeal, the complainants submitted in particular that the Federal Court should not have granted the ACPA’s application for judicial review and should have instead upheld the Tribunal’s conclusion that the ACPA could not rely on paragraph 15(1)(

a) of the Act. Air Canada and the ACPA both submitted that the Federal Court erred in allowing the complainants’ application for judicial review on the normal age of retirement and Air Canada argued that the Court should have accepted its BFOR defence under paragraph 15(1)(

a) of the Act. The issues were what was the appropriate appellate standard of review in this case; whether the Federal Court chose and applied the appropriate standard of review when discussing the Tribunal’s conclusion on the normal age of retirement; whether the Tribunal erred in concluding that age 60 was the normal age of retirement for pilots in Canada during the years at issue; and whether the Tribunal otherwise erred in concluding that the complaints should be dismissed on the basis of paragraph 15(1)(c).

Held , the appeals brought by Air Canada (A-111-14) and the ACPA (A-112-14) should be allowed and the appeal brought by Robert Adamson et al. (A-105-14) should be dismissed. The standard of review applicable to the Tribunal’s identification of the appropriate comparator group for determining the normal age of retirement was reasonableness. While the Federal Court chose the proper standard of review, it did not apply it correctly. It rather substituted its own opinion for that of the Tribunal, imposing its own characterization of the factors enunciated in the Federal Court’s earlier decision in Vilven v.

Air Canada ( Vilven F.C.) (first litigation on the MRR involving the complaints of two Air Canada pilots who were forced to retire at 60) and applying those factors to the evidence to reach its own conclusion. The Federal Court did not properly apply the reasonableness standard to the Tribunal’s assessment of the normal age of retirement. Paragraph 15(1)(

c) of the Act requires that the complainant establish a prima facie case of discrimination, which then requires that the

employer justify the discrimination on the basis of that provision. This mandates a comparison between the impugned standard and thenormal age of retirement for employees working in positions similar to the complainant. The reasons in Vilven F.C. and the eliminationof Air Canada’s competitors as a result of the Tribunal’s approach in this case were the key elements of the Federal Court’s analysis andits ultimate conclusion that the Tribunal’s conclusion on the paragraph 15(1)(

c) issue could not stand. However, there were a number offactors limiting Vilven F.C.’s direct applicability to the matter herein. The factors it set out were not a formula that the Tribunal had toget right to survive a challenge on judicial review and should not be divorced from the particular factual context of the complaints andtransformed into a prescriptive standard.

Since Vilven F.C. did not establish a binding precedent, the Federal Court’s continual referenceto the “Vilven F.C.” test detracted from a holistic consideration of the Tribunal’s decision on judicial review and led the Federal Court tofocus excessively on the reasons from Vilven F.C. By treating the Vilven F.C. factors as a kind of legislation, the Federal Courterroneously moved away from the only legislative enactment that governed the issue and which would ultimately determine whether AirCanada and the ACPA could rely on the BFOR defence: paragraph 15(1)(

a) of the Act. Taking that approach led the Court away fromthe task of assessing the reasonableness of the Tribunal’s decision on its own merits. Here, the Tribunal explained its rationale forreading Vilven F.C. the way it did. It was entitled when applying the Vilven F.C. factors to opt for the conjunctive approach and to relyon paragraphs 112 and 125 of that decision. Despite identifying several errors in the Tribunal’s reasoning, the Federal Court clearly fastened onto the fact that the Tribunal’sapproach to Vilven F.C. resulted in the elimination of Air Canada’s major competitors.

The Federal Court’s focus on Air Canada’s maincompetitors was misplaced. There was no evidence presented to the Tribunal regarding the identity of Air Canada’s major domesticcompetitors. The threshold for judicial review was not met in this case. The Federal Court could not set aside the Tribunal’s decision onthe normal age of retirement issue primarily on the basis of a consideration not supported by the evidence. As to the Tribunal’s decision, it was not unreasonable for the Tribunal to adopt certain paragraphs of Vilven F.C. as a guideline for itsanalysis of the evidence on the normal age of retirement.

The Tribunal did not act unreasonably or proceed on wrong principles whenapplying the Vilven F.C. factors to the facts in a conjunctive manner. As to the Tribunal’s decision to eliminate the five Canadian airlinesmentioned in Vilven F.C. in the comparator group, this exclusion was not done arbitrarily. It resulted from the application of the VilvenF.C. factors, read conjunctively, to the evidence accepted by the Tribunal. There was evidence supporting the Tribunal’s findings andconclusions and there was no reason to intervene. While the appeals were dismissed on the Act, paragraph 15(1)(

c) issue, part of the Federal Court’s reasons were commented on. TheFederal Court intervened regarding the Tribunal’s finding that the mandatory retirement provision under the collective agreementconstituted prima facie discrimination under the Act when it directed the Tribunal to reconsider the question and decide whether themandatory retirement provision amounted to prima facie discrimination. This issue was not raised by the parties or the Court at theFederal Court hearing.

The Federal Court erred by considering a new issue that had not been raised by the parties without giving themnotice and an opportunity to provide submissions. Even if the Federal Court believed that this issue had to be raised to avoid an injustice,it nevertheless had to follow the proper procedures when exercising its discretion and it failed to do so. Those omissions constituted anerror of law and resulted in a breach of the parties’ right to procedural fairness.

As well, the Federal Court erred in law on the merits ofthe issue by suggesting that complainants have the burden of showing “substantive discrimination” under the Act. It failed to followbinding case law on this question. It was not open to the Federal Court to ignore authoritative precedents that rendered mandatoryretirement prima facie discriminatory under the Act and to suggest that a complainant had to show that the impugned practice resulted in“substantive discrimination”.

Thus, the Federal Court was obliged to apply the principles from a binding precedent and uphold theTribunal’s finding that the mandatory retirement practice constituted prima facie discrimination under the Act. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 15. Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 7, 10, 15. Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a). Keeping Canada’s Economy and Jobs Growing Act, S.C. 2011, c. 24, s. 166. Ontario Human Rights Code, R.S.O. 1970, c. 318. TREATIES AND OTHER INSTRUMENTS CITED International Civil Aviation Organization. Annex 1 to the Convention on International Civil Aviation: Personnel Licensing, 10th ed.Montréal: ICAO, 2006. CASES CITED FOLLOWED: McKinney v.

University of Guelph, (SCC), [1990] 3 S.C.R. 229, (1990), 76 D.L.R. (4th) 545. APPLIED: Air Canada Pilots Association v. Kelly, 2012 FCA 209, [2013] 1 F.C.R. 308; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; R. v. Spence,2005 SCC 71, [2005] 3 S.C.R. 458; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689;Ontario Human Rights Commission et al. v. Borough of Etobicoke, (SCC), [1982] 1 S.C.R. 202, (1982), 132 D.L.R. (3d)14; Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101.

DISTINGUISHED: Vilven v. Air Canada, 2009 FC 367, [2010] 2 F.C.R. 189. CONSIDERED: Vilven v. Air Canada, [2007] CHRT 36, [2008] CLLC 230-011; Bailie et al. v. Air Canada and Air Canada Pilots Association, 2012CHRT 6; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3,(1999), 176 D.L.R. (4th) 1. REFERRED TO: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Servicemaster Company v. 385229Ontario Ltd. (Masterclean Service Company), 2015 FCA 114, 472 N.R. 120; Merck Frosst Canada Ltd. v.

Canada (Health), 2012 SCC3, [2012] 1 S.C.R. 23; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59,[2011] 3 S.C.R. 616; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R.654; Canada (Commissioner of Competition) v. Superior Propane Inc., 2003 FCA 53, [2003] 3 F.C. 529; Catalyst Paper Corp. v. NorthCowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Labatt BrewingCompany Ltd. v.

NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677; Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 250,125 C.P.R. (4th) 81. APPEALS from a Federal Court decision (2014 FC 83, 13 C.C.E.L. (4th) 1) disposing of five applications for judicial review of aCanadian Human Rights Tribunal decision (2011 CHRT 11) dismissing a group of complaints made under the Canadian Human RightsAct. Appeals in A-111-14 and A-112-14 allowed; appeal in A-105-14 dismissed. APPEARANCES David Baker for appellants Robert Adamson et al. Maryse Tremblay for appellant Air Canada.

Bruce Laughton for appellant Air Canada Pilots Association. Daniel Poulin and Erin Collins for respondent Canadian Human Rights Commission. SOLICITORS OF RECORD Bakerlaw, Toronto, for appellants Robert Adamson et al. Borden Ladner Gervais LLP, Montréal, for appellant Air Canada. Laughton & Company, Vancouver, for appellant Air Canada Pilots Association. Canadian Human Rights Commission, Ottawa, for respondent Canadian Human Rights Commission. The following are the reasons for judgment and judgment rendered in English by Trudel J.A.: I. Overview [1] The Canadian Human Rights Act, R.S.C., 1985, c.

H-6 (the Act [or CHRA]), proscribes discrimination on the basis of anindividual’s age. Under

section 7 of the Act, it is a discriminatory practice “to refuse to employ or continue to employ any individual” onthe basis of a prohibited ground of discrimination, including age, unless the employer can successfully raise one of the defences availableunder

section 15 of the Act. At the time the complaints at issue in these appeals were filed, an employer could attempt to demonstrate, forexample, that a mandatory retirement rule (MRR) was based on a bona fide occupational requirement (BFOR) and that without theMRR, accommodation of the needs of the affected individuals would impose undue hardship on the employer, “considering health,safety and cost” (paragraph 15(1)(

a) and subsection 15(2) of the Act). Alternatively, an employer could try to show that “an individual’semployment [was] terminated because that individual [had] reached the normal age of retirement for employees working in positionssimilar to the position of that individual” (paragraph 15(1)(

c) of the Act). Paragraph 15(1)(

c) of the Act was repealed in 2011 [S.C. 2011,c. 24, s. 166]. The relevant sections of the Act are appended to these reasons (see Appendix I). [2] Age as a prohibited ground of discrimination and these two defences—the BFOR and the normal age of retirement—are at issuein these consolidated appeals of a judgment of the Federal Court by Annis J. (Judge), issued on January 27, 2014 [Adamson v. AirCanada] 2014 FC 83, 13 C.C.E.L. (4th) 1 (judgment) along with a 435-paragraph set of reasons (reasons).

By this judgment, the Judgedisposed of five applications for judicial review (three of these five applications are relevant for the purposes of these consolidatedappeals—T-1428-11, T-1453-11 and T-1463-11) of a decision of the Canadian Human Rights Tribunal (Tribunal), which had dismissed agroup of complaints made under the Act. [3] The Tribunal’s decision dated, August 10, 2011, is indexed as 2011 CHRT 11 [Adamson v.

Air Canada]. [4] The complainants are all past members of the Air Canada Pilots Association (ACPA) and former employees of Air Canada whowere forced to retire at age 60 due to the MRR in the collective agreement between Air Canada and the ACPA. They brought complaintsagainst both organizations, alleging that the MRR constituted a discriminatory practice under the Act.

[ 5 ] The Tribunal found that the MRR constituted prima facie discrimination. It rejected the organizations’ BFOR defences under paragraph 15(1)(

a) of the Act. However, it accepted Air Canada’s defence under paragraph 15(1)(c), concluding that age 60 was the normal age of retirement for pilots in Canada. As a result, the complaints were dismissed. [ 6 ] The three parties each applied for judicial review of a portion of the Tribunal’s decision. [ 7 ] In the Federal Court, the complainants successfully challenged the Tribunal’s finding on the normal age of retirement (docket file No. T-1428-11).

That part of the Tribunal’s decision was set aside and the issue remitted to it for re-determination in accordance with the Judge’s reasons and directions. [ 8 ] Air Canada (docket file No. T-1453-11) and the ACPA (docket file No. T-1463-11) both took exception to the Tribunal’s conclusion that neither had proven a BFOR under paragraph 15(1)(

a) of the Act. [ 9 ] The Judge dismissed Air Canada’s application but allowed the ACPA’s application. As a result, this issue was also remitted to the Tribunal with specific directions as to how to re-determine the validity of the ACPA’s BFOR defence. [ 10 ] The parties have each appealed to our Court from the Judge’s judgment. [ 11 ] The complainants submit that the Judge should not have granted the ACPA’s application for judicial review and should have instead upheld the Tribunal’s conclusion that the ACPA could not rely on paragraph 15(1)(

a) of the Act. They add that the Judge should not have dealt with the issue of prima facie discrimination and, in any event, was bound by previous jurisprudence on this matter (appeal No. A-105-14, related to No. T-1463-11). [ 12 ] For its part, Air Canada submits that the Judge erred in allowing the complainants’ application for judicial review on the normal age of retirement; further he ought to have accepted its BFOR defence under paragraph 15(1)(

a) of the Act (appeal No. A-111-14, related to Nos. T-1428-11 and T-1453-11). [ 13 ] The ACPA also submits that the Judge should not have granted the complainants’ application for judicial review on the normal age of retirement (appeal No. A-112-14, related to No.

T-1428-11). [ 14 ] Finally, the Canadian Human Rights Commission (Commission), which appeared both before the Tribunal and the Federal Court, argues that the Judge properly set aside the Tribunal’s finding on the normal age of retirement but erred in allowing the application with respect to the ACPA’s BFOR defence and in adding a requirement that complainants under the Act prove “substantive discrimination”. [ 15 ] For the reasons that follow, I conclude that the Judge erred in substituting his own opinion for that of the Tribunal on the normal age of retirement.

Therefore, I would allow the appeals of Air Canada and the ACPA on that issue. [ 16 ] The record reasonably supports the Tribunal’s finding at paragraph 181 of its decision that “for each of the years 2005-2009, the majority of pilots working for Canadian airlines, including Air Canada, in similar positions to that of the [c]omplainants, retire[d] by the age of 60.” [ 17 ] As a result of my conclusion, I would not deal with the parties’ submissions regarding paragraph 15(1)(

a) of the Act, i.e., the BFOR defences. Hence, I would dismiss the complainants’ appeal in file No. A-105-14. I would allow the appeals brought by Air Canada and the ACPA in files Nos. A-111-14 and A-112-14. [ 18 ] Finally, I would accept the Commission’s invitation to comment on the part of the Judge’s reasons and judgment that deal with the issue of prima facie discrimination. To this end, the judgment is appended to these reasons as Appendix II. II. Facts and Judicial History [ 19 ] The facts of this case are straightforward. The same cannot be said for its procedural history.

As mentioned above, the complainants (or the Adamson Group) are all pilots previously employed by Air Canada and who were members of the ACPA. The collective agreement between the two required that pilots retire at age 60. The complainants reached this milestone at various dates between 2005 and 2009. They brought complaints against Air Canada and the ACPA alleging discrimination contrary to sections 7 and 10 of the Act (also reproduced at Appendix I).

The Adamson Group is part of a larger group of current and former Air Canada pilots called the “Fly Past 60 Coalition” who have challenged Air Canada’s MRR. [ 20 ] The first litigation on the MRR involved the complaints of two Air Canada pilots, George Vilven and Robert Neil Kelly, who were forced to retire at 60. This matter was finally resolved by our Court’s decision cited as Air Canada Pilots Association v. Kelly , 2012 FCA 209 , [2013] 1 F.C.R. 308 ( Vilven or Kelly F.C.A.), which declared that paragraph 15(1)(

c) of the Act was constitutionally valid. Given the Federal Court’s earlier judgment in Vilven v. Air Canada , 2009 FC 367 , [2010] 2 F.C.R. 189 ( Vilven F.C.), upholding the Tribunal’s finding that 60 was the normal age of retirement for pilots and the fact that the complaints of Messrs. Kelly and Vilven were caught by paragraph 15(1)(c), the Tribunal was directed to dismiss their complaints. The Tribunal’s decision, where it made the finding of the normal age of retirement, is cited as Vilven v .

Air Canada , 2007 CHRT 36 , [2008] CCLC 230-011. [ 21 ] In addition, the complaints of yet another group of retired pilots have been referred to the Tribunal (the Bailie Group). In February 2012, the Tribunal granted the ACPA’s motion to adjourn the proceedings in that matter until the Adamson Group’s litigation has concluded ( Bailie et al. v. Air Canada and Air Canada Pilots Association , 2012 CHRT 6 ). [ 22 ] Finally, I should note that the MRR has been eliminated from the current collective agreement between Air Canada and the ACPA.

This change was obviously made in response to Parliament’s repeal of paragraph 15(1)(

c) of the Act through

section 166 of the Keeping Canada’s Economy and Jobs Growing Act , S.C. 2011, c. 24.

[ 23 ] Counsel for the complainants admits that neither this legislative amendment nor a favourable judgment from this Court could entitle the members of the Adamson Group to reinstatement, as none of them could go back to work as an Air Canada pilot. Indeed, the complainants retired and are now over 65 years of age. In accordance with international norms applicable to Air Canada, 65 is the maximum age for pilots-in-command.

Moreover, if one member of the multi-pilot flight crew is over 60, the other must be under 60 (see Annex 1 to the Convention on International Civil Aviation: Personnel Licensing , 10th. ed., Montréal: ICAO, July 2006, art. 2.1.10, entitled “Limitation of privileges of pilots who have attained their 60th birthday and curtailment of privileges of pilots who have attained their 65th birthday”). [ 24 ] Thus, from a practical point of view, the Adamson Group states that a judgment from this Court upholding the Judge’s ruling would possibly pave the way for an action in damages against Air Canada and the ACPA. III.

The Issues [ 25 ] In view of my proposed disposition of these appeals, the relevant issues are: 1. What is the appropriate appellate standard of review? 2. Did the Judge choose and apply the appropriate standard of review when discussing the Tribunal’s conclusion on the normal age of retirement? 3. Did the Tribunal err in concluding that age 60 was the normal age of retirement for pilots in Canada during the years 2005 to 2009? [ 26 ] My comments on part of the Judge’s reasons and judgment will appear at

section 4 of my analysis. I will discuss the following: • The Judge’s consideration of the question of prima facie discrimination. • The Judge’s modification of the three-part test developed by the Supreme Court of Canada for determining if a prima facie discriminatory practice constitutes a BFOR. IV. Analysis 1 . The Standard of Review [ 27 ] On appeal from a Federal Court judgment on applications for judicial review, our Court must determine whether the Judge identified the proper standard of review and applied it correctly ( Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ( Agraira ), at paragraph 45 ; Servicemaster Company v. 385229 Ontario Ltd. (Masterclean Service Company) , 2015 FCA 114 , 472 N.R. 120, at paragraph 17 ). [ 28 ] Stated differently, it means that we are stepping into the shoes of the Federal Court such that our focus is, in effect, on the Tribunal’s decision ( Agraira , at paragraph 46 , citing Merck Frosst Canada Ltd. v.

Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23, at paragraph 247 ). [ 29 ] The standard of review applicable to the Tribunal’s identification of the appropriate comparator group for determining the normal age of retirement is reasonableness. The Judge so held at paragraph 80 of his reasons without further explanation. [ 30 ] In my view, this issue essentially involves the Tribunal’s

interpretation of its home statute and the application of paragraph 15(1) (

c) in the context of the complaints. Both of these considerations weigh heavily in favour of a reasonableness review. The Supreme Court in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraphs 53–54 , held that reasonableness is the proper standard where a tribunal is dealing with a question “where the legal and factual issues are intertwined” or when it is interpreting a statute “closely connected to its function, with which it will have particular familiarity” (for a more recent application of this principle, see Nor-Man Regional Health Authority Inc. v.

Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 S.C.R. 616, at paragraph 36 ; also Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654). Similarly, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471, at paragraph 26 , it held that the Tribunal’s

interpretation of a provision of the Act was owed deference. Accordingly, the Tribunal’s determination of the proper comparator group for calculating the normal age of retirement, as well as its overall conclusion on this issue, are owed deference on review. [ 31 ] I disagree with the complainants’ submission that correctness is the appropriate standard. They argue that since the Tribunal was required to follow the directions of Mactavish J. from Vilven F.C., the rule of stare decisis applies and the Tribunal’s decision must be reviewed on a correctness standard.

The complainants point to our Court’s decision in Canada (Commissioner of Competition) v. Superior Propane Inc. , 2003 FCA 53 , [2003] 3 F.C. 529 ( Superior Propane ) as support for this proposition. While I accept the principle that the directions of a reviewing court bind a tribunal sitting on a re-determination (see Superior Propane , at paragraph 54), the rule does not apply in these circumstances. The Tribunal in this matter was not engaged in a re-determination following a judicial review. It was simply assessing the complaints at first instance.

While there is obvious overlap with the Vilven / Kelly litigation, the matters have a different evidentiary record and should be considered distinct. The Tribunal was not required to blindly follow Vilven F.C .

That decision should not be understood as mandating a correctness standard of review but rather as limiting the range of reasonable options open to the Tribunal when crafting the comparator group under paragraph 15(1)(c). [ 32 ] I agree with the Commission’s argument that existing jurisprudence on the proper comparator groups for Canadian pilots “affects the reasonability of the [Tribunal’s] decision, not the standard under which it is reviewed” (Commission’s memorandum of fact and law, at paragraph 24).

The Supreme Court in Dunsmuir held that reasonableness relates to both “the existence of justification, transparency and intelligibility within the decision-making process” and whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (at paragraph 47). Accordingly, Vilven F.C., at best, constrains both the Tribunal’s

reasoning (e.g., it could not reasonably avoid mention of the decision altogether) and the range of acceptable outcomes. [ 33 ] In

summary, then, did the Judge choose the proper standard of review? Yes. Did he apply it correctly? No. With respect, the Judge rather substituted his own opinion for that of the Tribunal. He imposed his own characterization of the factors enunciated in Vilven F.C. and applied them to the evidence to come to his own conclusion. 2 . Did the Judge properly apply the reasonableness standard to the Tribunal’s assessment of the normal age of retirement? 2.1 Paragraph 15(1)(

c) of the Act: the normal age of retirement [ 34 ] The Judge discusses the normal age of retirement from paragraph 86 to paragraph 132 of his reasons. The Tribunal does so at paragraph 4 through to 182 of its decision. They agree on the basic

interpretation and operation of paragraph 15(1)(

c) of the Act. [ 35 ] Paragraph 15(1)(

c) operates as a defence and amounts to a limited exception to discrimination based on age when there is an industry practice regarding retirement age (see Vilven F.C.A., at paragraphs 51–52). For ease of reference, I reproduce here paragraph 15(1)(c): Exceptions 15

(1) It is not a discriminatory practice if … (

c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual; [ 36 ] In practice, paragraph 15(1)(

c) requires that the complainant establish a prima facie case of discrimination. Once done, the burden shifts to the employer to justify the discrimination on the basis of that provision, which mandates a comparison between the impugned standard and the normal age of retirement for employees working in positions similar to the complainant. [ 37 ] As a result, the Tribunal is required to first identify a comparator group consisting of those workers who hold similar positions. Next, the Tribunal must calculate the normal age of retirement for the comparator group and compare it to the MRR.

If the normal age of retirement for this group is equal to or less than the MRR, the employer has established the defence under paragraph 15(1)(c). [ 38 ] Here, the Tribunal found that Air Canada had met its burden and dismissed the complaints. 2.2 The Judge’s approach to the normal age of retirement issue [ 39 ] After reproducing paragraph 15(1)(

c) of the Act, the Judge began his discussion of the normal age of retirement by stating that the

interpretation of the Vilven F.C. test was the central issue before the Tribunal. When correctly characterized, this test determined whether Air Canada could rely on this provision (reasons, at paragraph 88). I do not read Vilven F.C. as determining a test; from now on I shall refer to the Vilven F.C. factors. [ 40 ] This said, the Judge then turned immediately to Vilven F.C. in search of its true meaning (reasons, at paragraph 89 and following). [ 41 ] In Vilven F.C., the Federal Court identified the correct comparator group at paragraphs 111, 112, 125 and 170 of its reasons.

Their relevant parts read as follows: The essence of what Air Canada pilots do is to fly aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace. .… In light of the essential features of Messrs.

Vilven and Kelly’s positions, the appropriate comparator group should have been pilots working for Canadian airlines who fly aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace. … To summarize my findings to this point: the essence of what Air Canada pilots do can be described as “flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace”.

There are many Canadian pilots working in similar positions, including those working for other Canadian airlines. These pilots form the comparator group for the purposes of paragraph 15(1) (

c) of the Canadian Human Rights Act . … … I am of the view that the Tribunal erred in its identification of the “positions similar” to those occupied by Messrs. Vilven and Kelly.

It is pilots working for Canadian airlines flying aircraft of various sizes to domestic and international destinations, through Canadian and foreign airspace, that form the proper comparator group. [Emphasis added.] [ 42 ] At the hearing of these appeals, as they had done below, the parties expressed their respective views as to which paragraph best summarizes the Federal Court’s finding in Vilven F.C. with respect to the proper comparator group. [ 43 ] All of the parties accept that the activities of other Canadian airline pilots must be examined on the basis of the factors identified in Vilven F.C.

These factors are:

• Flying domestically • Flying internationally • Transporting passengers • Flying varying sizes of aircraft • Flying varying types of aircraft [ 44 ] The parties disagree sharply over which factors are paramount and, most importantly, whether these factors are to be read conjunctively , as decided by the Tribunal, or disjunctively , as found by the Judge.

More particularly, they ask whether the word “both”, which appears at paragraphs 112 and 125 of Vilven F.C. to qualify the expression “to domestic and international destinations”, was voluntarily or accidentally dropped from paragraph 170 (I note that the word is also found at paragraph 111). For the Judge, the presence or absence of the word “both” is significant.

A conjunctive formulation will exclude airlines which do not exhibit all of the factors taken from Vilven F.C. (reasons, at paragraph 93) while looking at the same factors disjunctively allows for the inclusion of pilots of any airline exhibiting any single factor from the above-mentioned list. [ 45 ] The Judge was of the view that the Tribunal’s conjunctive reading of the Vilven F.C. factors resulted in the elimination of “Air Canada’s major competitors on a test meant to compare airlines based on the similarity of their pilots’ functions and duties” (reasons, at paragraph 99).

As a result, airlines considered in Vilven F.C., namely the Canadian airlines Jazz, Air Transat, Skyservice, CanJet and WestJet, were excluded by the Tribunal when it crafted its comparator group. [ 46 ] For the Judge, such an outcome was “patently unreasonable” and resulted from the application of wrong principles. Thus, it justified setting aside the Tribunal’s decision. The remainder of the Judge’s discussion would seem to be a closer examination of the Tribunal’s reasons for the purpose of identifying how the Tribunal erred in its application of Vilven F.C.

In this vein, the Judge specifically identified seven errors, including once again the elimination of Air Canada’s main competitors.

They are as follows: 1. the unreasonableness of the elimination of Air Canada’s competitors; 2. the failure to conduct a functional analysis of the functions and duties of Air Canada pilots; 3. the failure to conduct a contextual analysis of the reasoning from Vilven F.C.; 4. the failure to consider paragraph 173 of Vilven F.C., where the word “both” is also omitted; 5. the failure to properly assess paragraph 113 of Vilven F.C., which dealt with the other five principal airlines in Canada transporting passengers to domestic and international destinations; 6. the failure to discuss paragraph 171 of Vilven F.C. and the concern expressed therein regarding Air Canada’s dominant position within the Canadian airline industry; and finally 7. the failure to interpret the word “both” contextually. [ 47 ] The reasons in Vilven F.C. and the elimination of Air Canada’s competitors as a result of the Tribunal’s approach here were the key elements of the Judge’s analysis and his ultimate conclusion that the Tribunal’s conclusion on the paragraph 15(1) (

c) issue could not stand. It is therefore useful to examine Vilven F.C. more closely. 2.3 The Vilven F.C. decision and its applicability to the present complaints [ 48 ] There is no doubt that Vilven F.C. presents factual similarities with the appeals at bar: Messrs. Vilven and Kelly were Air Canada pilots and had both complained about the same MRR challenged by the Adamson Group. [ 49 ] In Vilven F.C., the Federal Court found that the Tribunal had erred in its identification of the essential features of Messrs. Vilven and Kelly’s positions.

As a result, the Tribunal had also erred in its choice of the comparator group for the purposes of calculating the normal age of retirement under paragraph 15(1)(

c) of the Act. In particular, the Tribunal had focused on the status and prestige attached to a pilot’s position at Air Canada and made this an essential feature of the position. The Federal Court found this to be unreasonable. Rather, the Tribunal had to look at “the actual functional requirements of the positions” ( Vilven F.C., at paragraph 107). It should have concentrated on the “objective duties and functional responsibilities” of a pilot’s position in Canada to assess whether a position was similar to that occupied by Messrs.

Vilven and Kelly ( Vilven F.C., at paragraph 109). [ 50 ] It is within that context that the Federal Court turned its mind to the essential features of Messrs. Vilven and Kelly’s positions and wrote paragraphs 111 and 112, summarizing its findings at paragraph 125. I note that these paragraphs are found in the

section of Vilven F.C. entitled “The characterization of Messrs. Vilven and Kelly’s positions and the choice of comparator group”. Paragraphs 170 and 173 come much later, once the Federal Court has already characterized the position. The latter paragraphs appear in the

section dealing with the normal age of retirement for Canadian airline pilots. [ 51 ] I also note that, in Vilven F.C., the Tribunal’s erroneous approach to the essential features of an Air Canada pilot’s position was not determinative of the outcome of the case. Indeed, reviewing the Tribunal’s finding on a reasonableness standard, the Federal Court upheld the Tribunal’s conclusion that, for Canadian airline pilots, 60 was the normal age of retirement.

The Federal Court agreed with the empirical approach taken by the Tribunal in determining the issue, i.e., a statistical analysis of the total number count of relevant positions in the Canadian airline industry. To this end, the Federal Court wrote at paragraphs 173 and 174: The statistical information before the Tribunal with respect to airline pilots working for both Air Canada and other Canadian airlines flying aircraft of various sizes to domestic and international destinations, through Canadian and foreign airspace, reveals that at the time

that Messrs. Vilven and Kelly were forced to leave their positions at Air Canada, several Canadian airlines allowed their pilots 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 age 60. Therefore, despite the errors identified above, the Tribunal’s conclusion that 60 was the normal age of retirement for employees in positions similar to those occupied by Messrs.

Vilven and Kelly prior to their forced retirements from Air Canada was one that fell within the range of possible acceptable outcomes which are defensible in light of the facts and the law. [ 52 ] I see three factors limiting Vilven F.C.’s direct applicability to the matter before us. [ 53 ] First, as previously discussed in the standard of review analysis, Vilven F.C. was a separate matter involving different complainants and different evidence. Notwithstanding the clear similarities between both sets of complainants, the proceedings are formally distinct.

The complaints considered in Vilven F.C. were effectively resolved by our Court’s decision in Vilven F.C.A., which upheld the constitutionality of paragraph 15(1)(

c) of the Act. By contrast, the Tribunal here was assessing the complaints in first instance. As a result, it was not automatically constrained by the findings or conclusion in Vilven F.C. The Tribunal had to decide for itself how to deal with Vilven F.C., subject of course to the possibility of judicial review for reasonableness. [ 54 ] Second, Vilven F.C. was based on a particular factual record. This is an important distinction. Vilven F.C. involved an agreed statement of facts (see e.g.

Vilven F.C., at paragraphs 113–114), which was the basis for Mactavish J.’s finding that 56 percent of Canadian airline pilots retired by the age of 60 ( Vilven F.C., at paragraph 173). Furthermore, this agreed statement of facts was in great

part centered on the retirement ages for international commercial airline pilots (see

Schedule A of the agreed statements of facts, appeal book, Vol. 2, tab I-3, at pages 306–308, Exhibit C-2 before the Tribunal and Exhibit 3 to the affidavit of Harlan Clark, Director, of Labour Relations for Air Canada). In the case at bar, however, there was no agreed statement of facts and the parties introduced extensive evidence at the hearing. The Tribunal was required to sift through this evidence and decide how to use it in the normal age of retirement analysis.

This difference suggests that Vilven F.C. should be viewed as intimately connected to its particular factual context. [ 55 ] I note as well that the comparator group factors that Mactavish J. identified in Vilven F.C. [at paragraph 111], namely “fly[ing] aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canada and foreign airspace”, do not match the information contained in

Schedule A attached to the agreed statement of facts referred to above. For instance, Mactavish J. did not have evidence on the types or sizes of aircraft Canadian airlines flew or what destinations they served. While her analysis of the normal age of retirement was based on the agreed statement of facts, the limited nature of this evidence meant that she could not put the comparator group factors into practice.

The divide between the stated factors and the evidence in Vilven F.C. suggests to me that the decision was not intended to be an authoritative treatment of the proper comparator group for Air Canada pilots. Rather, the criteria were a way of highlighting the error in the Tribunal’s analysis, which had focused on subjective factors such as the prestige associated with working for a “‘major international carrier’” (see Vilven F.C., at paragraphs 107 and 165). [ 56 ] Third, Vilven F.C. represents a particular application of the normal age of retirement defence and did not purport to be a generalized

interpretation of paragraph 15(1)(

c) of the Act. In fact, Vilven F.C. was addressing the first part of the normal age of retirement analysis (i.e., the proper comparator group) in the particular context of the two complaints. The doctrine of stare decisis is not at play here. [ 57 ] Although both deal with the doctrine of stare decisis , this finding is distinct from my earlier conclusion that the Tribunal was not required to apply Vilven F.C. because it was not engaged in a re-determination of these complaints. The practical result of these two conclusions is the same.

The Tribunal was not obliged to apply the Vilven F.C. factors in the same manner as Mactavish J. suggested, but rather it had greater leeway in deciding how to make use of these factors. [ 58 ] These considerations all point toward giving Vilven F.C. a more limited role when reviewing the Tribunal’s decision. The factors are not a formula that the Tribunal had to get right to survive a challenge on judicial review.

More importantly, they should not be divorced from the particular factual context of the complaints and transformed into a prescriptive standard. [ 59 ] Given my conclusion that Vilven F.C. did not establish a binding precedent, I believe that the Judge’s continual reference to “the Vilven FC test” detracted from a holistic consideration of the Tribunal’s decision on judicial review and led the Judge to focus excessively on the reasons from Vilven F.C. [ 60 ] If Vilven F.C. was not a controlling precedent, this raises the question of what exactly its effect on the current proceedings was.

In my view, the decision should be seen as informing the context in which the Tribunal’s decision was made. Review on a standard of reasonableness is primarily a contextual inquiry: Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5, at paragraph 18 . As stated previously, jurisprudence, including Vilven F.C., restricts the Tribunal’s range of options and constrains its analysis when determining the normal age of retirement. It does not follow that the Tribunal was required to apply the factors in the same manner as Mactavish J. intended.

Accordingly, I find that the Judge took a wrong path when narrowly examining the wording from Vilven F.C. and comparing his preferred

interpretation with that of the Tribunal. [ 61 ] A court conducting review on a standard of reasonableness must take as its starting point the tribunal’s decision and examine it in light of the law and the record before the decision maker. [ 62 ] It is worth repeating that where the standard of review is reasonableness, a reviewing court that finds the tribunal’s decision unreasonable is not entitled to substitute its own decision for that of the tribunal. It can identify factors which the tribunal may wish to consider but it cannot impose its views on the tribunal.

The matter must be returned to the tribunal so that it may decide the matter for itself in light of the reviewing court’s reasons. While these may provide a line of reasoning which the tribunal could profitably consider, the ultimate decision rests with the tribunal. The scope of its decision is limited only by the requirement of reasonableness. [ 63 ] Here, the Judge’s overall approach to Vilven F.C. was similar to an exercise in statutory

interpretation. In other words, he seemingly concluded that Vilven F.C. needed to be correctly interpreted in the abstract before it could be applied to the case at hand. As a matter of fact, the Judge turned to Vilven F.C. before even discussing the Tribunal’s decision. In my view, by treating the Vilven F.C.

factors as a kind of legislation, the Judge erroneously moved away from the only legislative enactment that governed the issue and which would ultimately determine whether Air Canada and the ACPA could rely on the BFOR defence: paragraph 15(1)(

a) of the Act. The provision barely figures in the Judge’s analysis and is overshadowed by the Vilven F.C. decision. Said differently, Vilven F.C. was not a comprehensive code that, when properly interpreted, would determine the outcome of the complaints. In my respectful view, taking this approach led the Judge away from the task of assessing the reasonableness of the Tribunal’s decision on its own merits. [ 64 ] On that point, I note paragraphs 128 and 129 of the Judge’s reasons where he states: Recognizing the deference owed the Tribunal, I nevertheless find that the Tribunal erred in principle in its

interpretation of the direction of the Court in Vilven as imposing a rule consisting of a series of factors to be considered conjunctively, when the decision interpreted in its context clearly directed the Tribunal to apply those factors disjunctively. On the basis of the foregoing, I adopt the reasons of Justice Mactavish in Vilven as properly determining the attributes of Comparator Airlines in so far as the enumerated factors are to be applied disjunctively.

Otherwise, I would respectfully disagree with her decision on the basis of my reasons described above, which in my view require the enumerated factors identified in her decision to be applied disjunctively in order to avoid the unreasonable outcome of Air Canada’s major competitors being eliminated as Comparator Airlines. [Emphasis added.] [ 65 ] It follows from these paragraphs that Vilven F.C. can be read in more than one way. [ 66 ] Here, the Tribunal explained its rationale for reading Vilven F.C. the way it did.

The Tribunal was entitled, when applying the Vilven F.C. factors, to opt for the conjunctive approach and to rely on paragraphs 112 and 125 of Vilven F.C. I discuss the Tribunal’s decision in further detail below. 2.4 The Judge’s error in relying on the elimination of Air Canada’s competitors as a reviewable error [ 67 ] Despite identifying several errors in the reasoning of the Tribunal, the Judge clearly fastened onto the fact that the Tribunal’s approach to Vilven F.C. resulted in the elimination of Air Canada’s major competitors (reasons, at paragraphs 94, 98, 99, 101, 107, 114, 120, 129 and 130).

The other errors are mostly subsumed under this finding. As mentioned above, this is why the Judge found the Tribunal’s decision to be “patently unreasonable”. [ 68 ] In my view, the Judge’s focus on Air Canada’s main competitors was misplaced. There was no evidence presented to the Tribunal with regard to the identity of Air Canada’s major domestic competitors. This is not surprising, as the parties were focused on bringing evidence relating to the Vilven F.C. factors; the notion of competitors is not one of the factors identified in that decision.

To the contrary, in Vilven F.C., Mactavish J. disapproved of the Tribunal’s approach when the latter concluded that only pilots working for major international airlines should be included in the comparator group ( Vilven F.C., at paragraphs 90 and 109). [ 69 ] Rather, the listed factors were identified based on the actual requirements of a pilot’s position, not on any of the commercial attributes of airlines. [ 70 ] In their memorandum of fact and law at paragraph 85, the complainants assert that the Judge was entitled to use his “own common sense and common knowledge” when discussing Air Canada’s major competitors.

I disagree. The threshold for judicial notice is uncompromising. As stated in R. v. Spence , 2005 SCC 71 , [2005] 3 S.C.R. 458, at paragraph 53 , quoting R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863, at paragraph 48 : .… a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy…. [ 71 ] Although stated in the criminal context, this rule applies as well to civil matters (see e.g.

Quebec (Attorney General) v. A , 2013 SCC 5 , [2013] 1 S.C.R. 61, at paragraph 237 ). [ 72 ] One cannot say with certainty which airlines were Air Canada’s major or closest competitors between 2005 and 2009. For one thing, this would require identifying the relevant elements or features for assessing whether two airlines are commercial competitors.

These could be similar to the Vilven F.C. factors or entirely different. [ 73 ] Moreover, the parties were not given the opportunity to lead evidence as to the appropriateness or relevancy of taking judicial notice of the finding, which, for all intents and purposes, disposed of the paragraph 15(1)(

c) issue. [ 74 ] In the end, I conclude that the threshold for judicial review was not met. The Judge could not set aside the Tribunal’s decision on the normal age of retirement issue primarily on the basis of a consideration not supported by the evidence. [ 75 ] The question then arises as to whether the Judge had other legitimate grounds to reverse the Tribunal on the issue of the normal age of retirement. This question takes me to the Tribunal’s decision. 3 .

The Tribunal’s decision—Did the Tribunal otherwise err in concluding that the complaints should be dismissed on the basis of paragraph 15(1)(c)? [ 76 ] Contrary to the Judge’s finding, the Vilven F.C. factors were not the main issue in front of the Tribunal. Rather, the validity of the paragraph 15(1)(

c) defence raised by both Air Canada and the ACPA was at issue. To decide that particular point, the Tribunal had to determine the normal age of retirement for pilots working for Canadian airlines, including Air Canada, in similar positions to that of the complainants for each of the years 2005 to 2009. At paragraph 25 of its decision, the Tribunal outlined its task: What the Tribunal must do in this case is what the Court did in [ Vilven FC], which is to ask and answer the question, what is the essence

of what Air Canada pilots do? [77] The Tribunal was willing to follow Vilven F.C. because the evidence showed that the appropriate comparator group fell to bedetermined in accordance with the factors identified at paragraphs 112 and 125 of Vilven F.C. (Tribunal’s decision, at paragraph 25). [78] I have already determined that the Tribunal was entitled to its preferred reading of Vilven F.C., so long as this reading wasreasonable. In this case, it heard the parties’ submissions on the “both” argument, opted for a conjunctive reading of the Vilven F.C.factors, and provided an explanation.

It was not unreasonable for the Tribunal to adopt paragraphs 111, 112 and 125 of Vilven F.C. as aguideline for its analysis of the evidence on the normal age of retirement. At paragraph 125 of Vilven F.C., Justice Mactavish concludesthe

section of her reasons dealing with the choice of comparator group by expressly stating that Canadian pilots who, amongst otherthings, fly aircrafts to both domestic and international destinations “form the comparator group for the purposes of paragraph 15(1)(

c) ofthe [Act]” (emphasis added). On this basis, it cannot be said that the Tribunal acted unreasonably or proceeded on wrong principleswhen applying the Vilven F.C. factors to the facts in a conjunctive manner. [79] Much was said at the hearing of these appeals about the Tribunal’s decision to eliminate the five Canadian airlines mentioned inVilven F.C., at paragraph 113. The complainants refer to it as the Tribunal’s “glaring error”. Had it included these five Canadian airlinesin the comparator group, the Tribunal would have concluded in favour of the Adamson Group.

In the complainants’ view, the exclusionof these airlines is a reviewable error requiring our intervention (complainants’ memorandum of fact and law, at paragraphs 82–83). Idisagree for two reasons. [80] First, the exclusion of the five Canadian airlines was not done arbitrarily.

It resulted from the application of the Vilven F.C.factors, read conjunctively, to the evidence accepted by the Tribunal. [81] Second, I agree with the Tribunal that there is nothing in Vilven F.C. to suggest that Mactavish J. accepted that the airlinessatisfied all of the factors set out in paragraphs 111, 112 and 125, given that the hearing proceeded on the basis of an agreed statement offacts. As well, as mentioned above,

Schedule A of the agreed statement of facts did not provide information concerning all of the VilvenF.C. factors. Arguably, Mactavish J. was making the calculation to show that even if all Canadian airlines were included in thecomparator group, the complaints would still have to be dismissed. [82] In the present matter, the Tribunal heard extensive evidence on the choice of comparator groups. In the end, it accepted CaptainDuke’s evidence, a witness for Air Canada, to determine the comparator group for the years 2005 to 2008 (Tribunal’s decision, atparagraph 173).

For the year 2009, it accepted the evidence of two witnesses, Captain Paul Prentice, a witness for the complainants, andHarlan Clark, a witness for Air Canada. [83] There was evidence on record supporting the Tribunal’s findings and conclusions. I find no reason to intervene. [84] This should be the end of the matter, as I indicated at the outset that I propose to dismiss the appeals on the paragraph 15(1)(c)issue. But, at the explicit request of the Commission, I will deal with paragraph 3. a. of the judgment [see Appendix II]. I also want to saya few words about paragraph 3. d. of the judgment. 4.

Commentary on the Judge’s reasons and judgment 4.1 Prima facie discrimination and paragraph 3. a. of the judgment [85] The Tribunal found that the mandatory retirement provision under the collective agreement constituted prima faciediscrimination under the Act, as the complainants’ employment with Air Canada was terminated solely because they turned 60 years old(Tribunal’s decision, at paragraph 3). None of the parties challenged this finding in their applications for judicial review.

In addition,neither the parties nor the Judge raised the issue of prima facie discrimination at the hearing at the Federal Court. [86] Nevertheless, the Judge directed the Tribunal to reconsider the question and decide whether the mandatory retirement provisionamounted to prima facie discrimination. Only after the Tribunal found that there was prima facie discrimination would it turn to the issueof hardship.

The Judge acknowledged that the parties had not raised this issue but justified his intervention on the basis that it is an errorin principle to “decide a matter on an incorrect characterization of a fundamental issue” (reasons, at paragraph 345). In a lengthydiscussion of this issue, the Judge hinted that a mandatory retirement policy should not be automatically treated as prima faciediscrimination. Instead, the practice should be evaluated in context to determine if it causes “substantive discrimination” (reasons, atparagraphs 377–378).

In addition, the Judge questioned whether the reasoning from the Supreme Court’s decision in McKinney v.University of Guelph, (SCC), [1990] 3 S.C.R. 229 (McKinney) still applied or whether it had been overtaken bysubsequent jurisprudence (reasons, at paragraphs 19–21). [87] The parties agree that the Judge should not have considered the issue of prima facie discrimination.

They request that paragraph3. a. of the judgment, which refers to this issue, be set aside. [88] I agree with the parties that the Judge erred by considering a new issue that had not been raised by the parties without givingthem an opportunity to provide submissions. In addition, I find that the Judge erred in law on the merits of the issue by suggesting thatcomplainants have the burden of showing “substantive discrimination” under the Act.

The Judge failed to follow binding jurisprudenceon this question. [89] There is no doubt that a judge has the discretion to raise a new issue at the hearing, provided that the judge gives notice to theparties as well as an opportunity to respond. The Supreme Court, in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paragraph 41, heldthat a court may raise an issue of its own initiative when “failing to do so would risk an injustice”.

To ensure that the court maintains itsimpartiality and treats the parties fairly, the Court must provide notice of the new issue as early as practicable and ensure that the partiescan properly address it (Mian, at paragraphs 53–59). While the Supreme Court made these comments in the context of a court raising anew issue on an appeal, I believe they are equally applicable when a court brings up a new issue on an application, such as an applicationfor judicial review (see e.g. Labatt Brewing Company Ltd. v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at

paragraphs 4–5). [90] In this case, the Judge considered the issue of prima facie discrimination of his own motion, as it was not mentioned in thenotices of application and not argued at the hearing. He did not provide notice to the parties and did not grant them the opportunity toprovide submissions on this topic. Even if the Judge believed that this issue had to be raised to avoid an injustice, he nevertheless had tofollow the proper procedures when exercising his discretion. He failed to do so.

These omissions constitute an error of law and resultedin a breach of the parties’ right to procedural fairness. [91] The complainants and the Commission further submit that the Judge erred on the merits of this issue by implying that anindividual should be required to show “substantive discrimination” as part of proving a discriminatory practice under the Act. The twoparties argue that the Judge incorrectly imported principles and jurisprudence relevant to

section 15 of the Charter [Canadian Charter ofRights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,Appendix II, No. 44] (Charter)] and ignored the effect of both McKinney and this Court’s decision in Kelly F.C.A. Air Canada and theACPA made no submissions on this point. [92] I agree with the arguments of the complainants and the Commission. The effect of the decisions in McKinney and Kelly F.C.A. isto render mandatory retirement prima facie discriminatory under the Act.

It was not open to the Judge to ignore these precedents andsuggest that a complainant had to show that the impugned practice resulted in “substantive discrimination”. [93] McKinney concerned the legality of mandatory retirement policies at universities. The appellants in that case challenged thepolicies on two grounds: (1) they were contrary to

section 15 of the Charter and (2) paragraph 9(

a) of the Ontario Human Rights Code,1981, S.O. 1981, c. 53 [the Code], which restricted the protection from age discrimination to individuals under the age of 65, violatedsection 15 of the Charter. The appellants argued that neither of these breaches was justified under

section 1. [94] The Supreme Court diverged on these questions, issuing five sets of reasons. Despite this disagreement, the judges took it as agiven that a mandatory retirement policy was inherently discriminatory, both from the point of view of the

section 15 of the Charter andthe Human Rights Code, 1981. Justice La Forest, writing for the majority, found that it was difficult to argue that mandatory retirementwas not “discriminatory within the meaning of s. 15(1) of the Charter since the distinction is based on the enumerated personalcharacteristic of age” (McKinney, at page 278). Later in his reasons, Justice La Forest turned to paragraph 9(

a) of the Code and assessedwhether it violated

section 15 of the Charter “by reason of the fact that it confines the Code’s prohibition against discrimination inemployment on grounds of age to persons between the ages of 18 and 65” (McKinney, at page 289). His approach implies that, in theabsence of the limitation under paragraph 9(

a) of the Code, there would be no question that mandatory retirement violated the statutoryprotection against age discrimination. In other words, a mandatory retirement practice is presumed to be discriminatory. [95] Similarly, in its earlier decision in Ontario Human Rights Commission et al. v.

Borough of Etobicoke, (SCC),[1982] 1 S.C.R. 202, at page 208, the Supreme Court unanimously held that a policy of mandatory retirement at the age of 60 was initself sufficient to find prima facie discrimination under the Ontario Human Rights Code, R.S.O. 1970, c. 318. [96] In my view, these two cases establish the principle that a practice of mandatory retirement constitutes prima facie discrimination,which in turn is sufficient to make out a discriminatory practice under

section 10 of the Act. The next question to consider is whether theJudge erred in failing to apply this principle in the case at bar. [97] I find that the Judge did so err, given that McKinney remains a binding precedent. There can be no doubt that courts are bound tofollow and apply authoritative precedents (see e.g. Apotex Inc. v. Pfizer Canada Inc., 2014 FCA 250, 125 C.P.R. (4th) 81, at paragraph114). In Kelly F.C.A., this Court held that McKinney was still good law as it pertains to the constitutionality of mandatory retirementschemes (Kelly F.C.A., at paragraph 80). While the decision in Kelly F.C.A. primarily dealt with whether the Supreme Court’s

section 1analysis from McKinney applied to paragraph 15(1)(

c) of the Act, the principle of stare decisis equally applies to other aspects of theSupreme Court’s analysis. Specifically, any part of the reasoning that was necessary for the Court to reach its result has the force ofbinding authority. As discussed above, the implicit finding that mandatory retirement is a discriminatory practice was an essential part ofthe Supreme Court’s analysis in McKinney.

As a result, this legal characterization was a binding authority that the Judge had to follow. [98] The Judge justified his direction to the Tribunal on multiple grounds, including his view that past jurisprudence on mandatoryretirement had been decided without a full evidentiary record and that broader public policy concerns needed to be taken into account(reasons, at paragraphs 347–350). Here, these are not compelling reasons for revisiting settled case law and not following a highercourt’s decision. [99] In coming to this conclusion, I am mindful of the Supreme Court’s decision in Canada (Attorney General) v.

Bedford, 2013 SCC72, [2013] 3 S.C.R. 1101, at paragraphs 42–46, where it stated that a lower court can revisit binding precedent only if there have beensignificant changes in the evidence or the circumstances that fundamentally alter “the parameters of the debate.” [100] Having carefully considered the record, I find that this threshold is not met.

The Judge was obliged to apply the principles fromMcKinney and uphold the Tribunal’s finding that the mandatory retirement practice constituted prima facie discrimination under the Act. [101] Accordingly, assuming that I would have proposed to uphold the judgment, and also assuming that the Judge had properly raisedthe issue of prima facie discrimination, I would have granted the Commission’s request to strike paragraph 3. a. from the judgment as itis wrong in law. 4.2 Modification of the Meiorin test to apply to Unions: paragraph 3. d. of the judgment [102] While examining issues related to subsection 15(2) of the Act—the BFOR defences—, the Judge turned to the Supreme Court ofCanada’s judgment in British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, (SCC),[1999] 3 S.C.R. 3 (Meiorin). In Meiorin, the Supreme Court established a three-part test for determining if a prima facie discriminatorypractice constitutes a valid BFOR defence (at paragraph 54):

An employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally connected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. [ 103 ] Here, the Judge was of the view that a proceeding where a union raises a BFOR defence constitutes “a novel situation” requiring the modification of the Meiorin test.

To this end, he established a “ hybrid BFOR test” which resulted in a four-part test where the Tribunal would, on re-determination, ask itself whether the “ union adopted the particular standard in an honest and good faith belief that it was in the collective best interests of its membership” (reasons, at paragraph 220; emphasis by Annis J.). [ 104 ] Because of my ultimate conclusion, I need not analyse the Judge’s reasoning on that question and decide whether Meiorin needed to be modified to fit the factual matrix of this case and the parties thereto.

I would therefore limit myself to saying that these reasons shall not be taken as an endorsement of the Judge’s approach on this question and of paragraph 3. d. of his judgment. V. Proposed Disposition [ 105 ] Consequently, I propose to dispose of these appeals as follows: [ 106 ] I would allow the appeals brought by Air Canada and the Air Canada Pilots Association (files Nos. A-111-14 and A-112-14), set aside the judgment of the Federal Court and restore the Tribunal’s decision. [ 107 ] As a result, I would dismiss the appeal brought by Robert Adamson et al. (file No.

A-105-14). [ 108 ] Considering the circumstances of these appeals, I would order that the parties assume their own costs throughout. [ 109 ] A copy of the reasons shall be placed in each of the individual files. Pelletier J.A. : I agree. Boivin J.A. : I agree. Appendix I [ Canadian Human Rights Act , R.S.C., 1985, c. H-6] Employment 7 It is a discriminatory practice, directly or indirectly, (

a) to refuse to employ or continue to employ any individual, or (

b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination … Discriminatory policy or practice 10 It is a discriminatory practice for an employer, employee organization or employer organization (

a) to establish or pursue a policy or practice, or (

b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. … Exceptions 15

(1) It is not a discriminatory practice if (

a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; …

(

c) an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual; … Accommodation of needs

(2) For any practice mentioned in paragraph (1)(

a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(

g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. Appendix II JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application in T-1428-11 is allowed and the decision of the CHRT in respect of normal age of retirement is set aside and remitted to the same panel for reconsideration.

Upon reconsideration, the Tribunal is directed to apply the factors of the test in Vilven disjunctively as described above. It is also directed to determine attributes of similarity of pilots of comparator airlines and those of Air Canada based on what pilots actually do, e.g. are the attributes of positions similar for pilots flying large and small planes in terms of the level of skill, knowledge and responsibilities each requires? 2. The application in T-1453-11 is dismissed. 3.

The application in T-1463-11 is allowed and the CHRT’s decision that ACPA had not established that the mandatory retirement provision in the collective agreement is a BFOR under paragraph 15(1)(

a) and subsection 15(2) of the Act is set aside and returned to the same panel with the following directions: a. ACPA and Air Canada may lead evidence and argue that the age 60 retirement rule in the collective agreement is not discriminatory. b. Paragraph 15(1)(

a) of the CHRA regarding a BFOR defence applies to employee organizations. c. The hardship factors in subsection 15(2) of the CHRA are not limited to safety, health and costs. d. The Tribunal is to apply the four-step hybrid Meiorin test as described at paragraph 220 above. e.

In determining whether hardship is occasioned to the comparator pilots by the elimination of the mandatory retirement provision in the collective agreement, the Tribunal will give due consideration to areas of concern of the Court described above, including permitting the introduction of admissible evidence on the effect of pensions in the determination of any adverse differential effect caused by the elimination of the mandatory retirement rule from the collective agreement. f.

If undue hardship is established to the comparator pilots, the Tribunal shall not dismiss the complaint against ACPA unless satisfied that the importance of upholding age discrimination in all the circumstances is not such that it cannot justify a lesser standard. g. As ACPA and Air Canada are jointly liable for having adopted the age 60 retirement provision, a dismissal of the complaint against ACPA results in the dismissal of the complaint against Air Canada. 4. Applications T-971-12 and T-979-12 are dismissed without costs.