2011 FC 120, 2011 FC 120

[2012] 4 F.C.R. 277 2011 FC 120 T-1615-09 Air Canada Pilots Association ( Applicant ) v. Robert Neil Kelly, George Vilven, Canadian Human Rights Commission and Air Canada ( Respondents ) and T-1606-09 Air Canada ( Applicant ) v. Robert Neil Kelly, George Vilven, Canadian Human Rights Commission and Air Canada Pilots Association ( Respondents ) Indexed as: Air Canada Pilots Association v. Kelly Federal Court, Mactavish J.—Ottawa, November 22, 23, 24, 2010 and February 3, 2011. * Editor’s Note: This decision has been reversed on appeal (A-107-11, 2012 FCA 209 ).

The reasons for judgment, handed down July 17, 2012, will be published in the Federal Courts Reports . Human Rights — Labour relations — Judicial review of Canadian Human Rights Tribunal decision finding Canadian Human Rights Act , s. 15(1) (

c) not reasonable limit under Canadian Charter of Rights and Freedoms, s. 1, applicants not demonstrating age bona fide occupational requirement for pilots — Respondents pilots, forcibly retiring pursuant to mandatory retirement provision in collective agreement — Tribunal finding, inter alia, s. 15(1)(

c) objectives not pressing, substantial; McKinney v. University of Guelph not applicable; International Civil Aviation Organization (ICAO) standards for international flight not barring respondents from flying as first officers prior to 2006 — Whether Tribunal erring in finding s. 15(1)(

c) not reasonable limit, mandatory retirement provisions not constituting bona fide occupational requirement — Tribunal correctly concluding s. 15(1)(

c) not saved under Charter, s. 1 — Appropriately applying Oakes test, refusing to follow McKinney — Erring in finding s. 15(1)(

c) neither pressing nor substantial by conflating elements of proportionality analysis with assessment of Parliament’s objectives — Mandatory retirement objective of preserving employment regimes pressing, substantial — S. 15(1)(

c) rationally connected to objective — No evidence to conclude mandatory retirement arrangements necessary for achieving s. 15(1)(

c) objectives — Possible to attain objectives without impairing Charter rights of older workers — Tribunal assessment of proportionality issue correct — Deleterious effects of mandatory retirement outweighing benefits — Tribunal finding of liability on part of Air Canada for termination of respondents’ employment reasonable — Nothing preventing over-60 pilots from flying under former ICAO standards — Air Canada not considering all forms of accommodation — Tribunal’s bona fide occupational requirement analysis under new ICAO standards not reasonable — Overlooking Air Canada evidence on impact of accommodation under new standards — In this respect decision lacking transparency, accountability — Remitted to Tribunal for redetermination — Application in T-1615-09 dismissed; application in T-1606-09 allowed in part.

Constitutional Law — Charter of Rights — Limitation Clause — Respondents pilots, forcibly retiring pursuant to mandatory retirement provision in collective agreement — Canadian Human Rights Tribunal finding Canadian Human Rights Act , s. 15(1) (

c) not reasonable limit under Charter, s. 1 , its objectives not pressing, substantial — Appropriately applying Oakes test, refusing to follow McKinney v. University of Guelph — Erring in finding s. 15(1)(

c) neither pressing nor substantial by conflating elements of proportionality analysis with assessment of Parliament’s objectives — Mandatory retirement objective of preserving employment regimes pressing, substantial — S. 15(1)(

c) rationally connected to objective — No evidence to conclude mandatory retirement arrangements necessary for achieving s. 15(1)(

c) objectives — Possible to attain objectives without impairing Charter rights of older workers — Tribunal assessment of proportionality issue correct — Deleterious effects of mandatory retirement outweighing benefits. Construction of Statutes — Canadian Human Rights Tribunal finding Canadian Human Rights Act (CHRA), s. 15(1) (

c) not reasonable limit justifiable under Canadian Charter of Rights and Freedoms, s. 1 — Whether Tribunal erring in interpreting CHRA, s. 15(2) — Tribunal relying on McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal to consider matters other than health, safety, cost in s. 15(2) — Tribunal

interpretation of CHRA, s. 15(2) unreasonable — McGill not made under CHRA, not involving statutory provision such as s. 15(2) — Tribunal failing to address interpretative principles (i.e. expressio unius est exclusio alterius; approach to be taken in interpreting human rights statutes) suggesting factors identified in CHRA, s. 15(2) should be read as exhaustive list — Parliament intending list in 15(2) to be exhaustive. Judges and Courts — Stare decisis — Canadian Human Rights Tribunal finding Canadian Human Rights Act (CHRA), s. 15(1) (

c) not reasonable limit under Canadian Charter of Rights and Freedoms, s. 1 — Appropriate for Canadian Human Rights Tribunal to apply Oakes test, refuse to follow McKinney v. University of Guelph, companion cases — McKinney not dictating result herein because (1) significant differences between CHRA, s. 15(1)(c), provisions of provincial human rights legislation at issue in McKinney;

(2) Supreme Court not intending McKinney be final word on mandatory retirement; (3) new facts available calling into question factual underpinning of McKinney; (4) developments in public policy, non-Charter human rights case law calling into question basis for Supreme Court’s decision in McKinney, related cases, reflecting fact societal attitudes towards age discrimination having evolved since McKinney decided. These were two consolidated applications for judicial review of a decision by the Canadian Human Rights Tribunal finding that

paragraph 15(1) (

c) of the Canadian Human Rights Act (CHRA), which allows an employer to terminate the employment of an individual if that person reaches the “normal retirement age” for those working in similar positions, is not a reasonable limit justifiable in a free and democratic society as contemplated by

section 1 of the Canadian Charter of Rights and Freedoms (Charter), and that the applicant Air Canada failed to demonstrate that age was a bona fide occupational requirement for its pilots. The respondents First Officer George Vilven and Captain Robert Kelly, former pilots for Air Canada, were forced to retire in 2003 and 2005 respectively as a result of a provision in the collective agreement between Air Canada and its pilots mandating retirement at age 60. In assessing whether paragraph 15(1) (

c) of the CHRA was saved under

section 1 of the Charter , the Tribunal found that Parliament’s objectives in enacting paragraph 15(1)(

c) were neither pressing nor substantial and that the link between mandatory retirement and its benefits is not as strong as it was once believed. It also noted that McKinney v. University of Guelph , wherein the Supreme Court found that provisions limiting the protection of legislation to those under 65 were reasonable limitations within the meaning of

section 1 of the Charter, is no longer applicable because the social and economic context has changed. The Tribunal also found that paragraph 15(1)(

c) did not minimally impair older workers’ equality rights, and that depriving individuals over the normal age of retirement of the protection of the CHRA produces deleterious effects that outweigh the benefits generated by paragraph 15(1)( c ). In considering whether the applicants had demonstrated that mandatory retirement at 60 constituted a bona fide occupational requirement for Air Canada pilots, the Tribunal examined health, safety and cost issues pursuant to subsection 15(2) of the CHRA, as well as other matters.

Prior to their amendment in 2006, the International Civil Aviation Organization (ICAO) standards governing international flights and the age limits under which pilots are permitted to fly internationally stipulated that pilots-in-command over the age of 60 could not fly internationally, but there was no mandatory upper age limit for first officers. The amended ICAO standards provide that pilots-in-command under the age of 65 can fly internationally if one of the pilots in a multi-pilot crew is under 60 (over/under rule).

The Tribunal found that there was no bar to the respondents from flying as first officers prior to the 2006 amendment. Consequently, the Tribunal found that the applicants had not established a bona fide occupational requirement defence for their discriminatory conduct. The Tribunal also found deficiencies in Air Canada’s evidence of the scheduling difficulties that would result if the company were required to accommodate pilots under the amended ICAO standards, and concluded that Air Canada would not suffer undue hardship. At issue was whether the Tribunal erred in finding that paragraph 15(1) (

c) of the CHRA is not a reasonable limit justifiable in a free and democratic society within the meaning of

section 1 of the Charter ; in interpreting subsection 15(2) of the CHRA; and in determining that Air Canada had not established that the mandatory retirement provisions constituted a bona fide occupational requirement. Held , the application in T-1615-09 should be dismissed; the application in T-1606-09 should be allowed in part. The Tribunal was correct in concluding that the applicants did not demonstrate that paragraph 15(1) (

c) of the CHRA is saved under

section 1 of the Charter . It was appropriate for the Tribunal to apply the Oakes test and to refuse to follow McKinney v. University of Guelph and its companion cases. McKinney should not dictate the result of this case because (1) there are significant differences between paragraph 15(1)(

c) and the provisions of the provincial human rights legislation that were at issue in McKinney , such as their legislative histories and objectives; (2) the Supreme Court did not intend McKinney to be the final word on mandatory retirement, leaving the issue open for revisitation when evidence regarding the consequences of the abolishment of mandatory retirement is available; (3) new facts are available which call into question the factual underpinning of McKinney ; and (4) there have been developments in public policy and non-Charter human rights case law that call into question the basis for the Supreme Court’s decision in McKinney and related cases, reflecting the fact that societal attitudes towards age discrimination have evolved since McKinney was decided.

In finding that the objectives of paragraph 15(1)(

c) were neither pressing nor substantial, the Tribunal erred by conflating elements of the proportionality analysis with its assessment of Parliament’s objectives in enacting paragraph 15(1)( c ). One of the objectives of paragraph 15(1)(

c) is to allow for the negotiation of mandatory retirement arrangements between employers and employees. This objective is pressing and substantial because it allows for the preservation of socially desirable employment regimes that include matters such as pensions and job security. To the extent that paragraph 15(1)(

c) eliminates a legal barrier to mandatory retirement, it is also rationally connected to its objective. However, the evidence did not demonstrate that the government continues to have reasonable basis for concluding that allowing parties to negotiate mandatory retirement arrangements is necessary for the achievement of the objectives of paragraph 15(1) ( c ). The Tribunal correctly found that the applicants did not establish that older workers’ Charter rights are minimally impaired by paragraph 15(1)( c ).

Parliament’s objectives can be attained without impairing the Charter rights of workers over the normal age of retirement to the extent permitted by paragraph 15(1)( c ). The Tribunal was also correct in its assessment of the proportionality issue. It has not been established that beneficial employment regimes require that parties be free to negotiate employment terms that include mandatory retirement in order for such regimes to continue.

In the absence of evidence that any of the benefits associated with traditional labour market structures have been lost in provinces that have abolished mandatory retirement, it cannot be said that the benefits of mandatory retirement outweigh its deleterious effects. The Tribunal’s

interpretation of subsection 15(2) of the CHRA was unreasonable. While the Tribunal was within its expertise in interpreting its enabling statute and dealing with the scope of the duty to accommodate, the decision it relied upon to determine that it could look at matters other than health, safety and cost was not made under the CHRA and did not involve a statutory provision such as subsection 15(2). Moreover, the Tribunal failed to address two different interpretative principles, both of which suggest that the factors identified in subsection 15(2) should be read as an exhaustive list.

These are the principle of expressio unius est exclusio alterius ; and the approach that is to be taken in interpreting human rights statutes. The failure of Parliament to mention a thing in a list will give rise to the inference that it was deliberately excluded. In this case, a substantial body of Supreme Court case law had developed well before the addition of subsection 15(2) to the CHRA in 1998, with respect to the nature and scope of the duty to accommodate and the factors to be considered in assessing whether that duty had been fulfilled.

Parliament would thus have been well aware that factors such as impact on employee morale and interference with the rights of other employees had been identified as relevant considerations in an accommodation analysis. In enacting subsection 15(2), Parliament did not say that the Tribunal was to consider matters “such as”, or “including”, health, safety and cost. This gives rise to a strong inference that Parliament intended the list set out in subsection 15(2) to be exhaustive.

This conclusion is reinforced when the issue is examined in light of the principles to be applied when interpreting human rights legislation. While the quasi-constitutional rights conferred by human rights legislation are to be broadly interpreted, defences to the exercise of those rights are to be interpreted narrowly. In determining whether Air Canada established that the mandatory retirement provisions constituted a bona fide occupational requirement, it was appropriate for the Tribunal to assess the issue of accommodation as of the date of termination of employment, and

the issue of hardship on a going-forward basis, taking into account the changes to the ICAO standards. The Tribunal’s finding of liabilityon the part of Air Canada for the termination of Mr. Vilven’s employment was reasonable. There was nothing in the ICAO standards ineffect when Mr. Vilven was forced to retire that prevented first officers aged 60 and over from flying internationally. Mr. Vilven andother first officers of that age continued to satisfy the requirements of their jobs under the old ICAO standards. The Tribunal’s finding ofliability for the termination of Mr. Kelly’s employment was also reasonable.

There was no licensing or operational restriction preventingMr. Kelly from using his seniority to bid for a pilot position as a first officer once he turned 60. It was incumbent upon Air Canada toshow that it considered and reasonably rejected all viable forms of accommodation. Air Canada did not establish that allowing Mr. Kellyto have continued his pilot career, albeit in a different capacity, would have caused undue hardship to the company in the period leadingup to the amendment of the ICAO standards. Consequently, the Tribunal’s finding of liability for the termination of Mr.

Kelly’semployment was reasonable. The Tribunal’s bona fide occupational requirement analysis was not reasonable as it related to Air Canada’s ability to accommodatepilots over the age of 60 after 2006. The Tribunal’s treatment of Air Canada’s evidence on the company’s ability to accommodatecaptains and first officers over the age of 60, in light of the impact of the over/under rule on seniority and scheduling, is problematic. TheTribunal’s statements that there was no evidence on certain points gave rise to the inference that important portions of Air Canada’sevidence were overlooked.

The Tribunal also omitted to explain why evidence regarding the costs of hiring additional pilots was lacking,despite Air Canada actually providing that evidence. This element of the Tribunal’s decision lacks the transparency and accountabilityrequired of a reasonable decision. For these reasons, the question of whether being under 60 is a bona fide occupational requirement forAir Canada pilots after 2006 was remitted to the Tribunal for redetermination. 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, 9 (as am. by S.C. 1998, c. 9, s. 12), 10 (as am. idem, s. 13(E)), 15(1)(a) (as am.idem, s. 10), (c) (as am. idem), (2) (as am. idem), 48.3(10) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27),50(1) (as am. idem), (2) (as am. idem), 51 (as am. idem). Constitution Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1). Federal Courts Act, R.S.C., 1985, c.

F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s.27), 57 (as am. by S.C. 1990, c. 8, s. 19; 2002, c. 8, s. 54). Human Rights Act, R.S.N.B. 1973, c. H-11. Human Rights Act, S.B.C. 1984, c. 22, s. 1 “age”. Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a) “age”. Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, s. 11.1 (as enacted by S.A. 1985, c. 33, s. 5). Ontario Human Rights Code, R.S.O. 1970, c. 318. Saskatchewan Human Rights Code (The), S.S. 1979, c. S-24.1.

TREATIES AND OTHER INSTRUMENTS CITED Convention on International Civil Aviation, December 7, 1944, [1944] Can. T.S. No. 36. International Civil Aviation Organization. Annex I to the Convention on International Civil Aviation: Personnel Licensing, 10th ed.Montréal: ICAO, 2006. CASES CITED not followed: Syndicat des employées et employés professionnels-les et de bureau,

section locale 434 (FTQ) c. Gagnon, (Que.Sup. Ct.). applied: The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103, (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321; British Columbia(Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3, (1999), 176 D.L.R. (4th) 1,[1999] 10 W.W.R. 1. distinguished: McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229, (1990), 76 D.L.R. (4th) 545, 91 CLLC 17,004;Harrison v. University of British Columbia, (SCC), [1990] 3 S.C.R. 451, (1990), 77 D.L.R. (4th) 55, 52 B.C.L.R. (2d)105; Stoffman v.

Vancouver General Hospital, (SCC), [1990] 3 S.C.R. 483, (1990), 76 D.L.R. (4th) 700, [1991] 1W.W.R. 577; Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC), [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th)94, [1991] 1 W.W.R. 643; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital généralde Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, 277 D.L.R. (4th) 577, [2007] C.H.R.R. D/259.

considered: Vilven v. Air Canada, 2009 FC 367, [2010] 2 F.C.R. 189, 74 C.C.E.L. (3d) 1, 191 C.R.R. (2d) 66, revg in

part Vilven v. Air Canada;Kelly v. Air Canada, 2007 CHRT 36, 61 C.H.R.R. D/149, [2008] CLLC 230-011; Ontario (Human Rights Commission et al. v. Boroughof Etobicoke, (SCC), [1982] 1 S.C.R. 202, (1982), 132 D.L.R. (3d) 14, 82 CLLC 17,005; Dickason v. University ofAlberta, (SCC), [1992] 2 S.C.R. 1103, (1992), 95 D.L.R. (4th) 439, [1992] 6 W.W.R. 385; Edwards, Henrietta Muir v.Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.); Bedford v. Canada (Attorney General), 2010ONSC 4264 , 102 O.R. (3d) 321, 327 D.L.R. (4th) 52, 262 C.C.C. (3d) 129; Wakeford v. Canada (Attorney General), , 81 C.R.R. (2d) 242 (Ont.

Sup. Ct.), affd , 156 O.A.C. 385 (Ont. C.A.), leave to appeal to S.C.C.refused, [2002] 2 S.C.R. ix; Leeson et al. v. University of Regina et al., 2007 SKQB 252 , 301 Sask. R. 316; Assn. of Justices ofthe Peace of Ontario v. Ontario (Attorney General), , 92 O.R. (3d) 16, 292 D.L.R. (4th) 623, 67 C.C.E.L. (3d) 56(Ont. Sup. Ct.); Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District, 2001 BCCA 435, 206 D.L.R. (4th) 220, 43 Admin. L.R. (3d) 12, [2002] CLLC 230-002; CKY-TV v.

Communications, Energy and PaperworkersUnion of Canada (Local 816) (Kenny Grievance) (2008), 175 L.A.C. (4th) 29, affd 2009 MBQB 252 , 246 Man. R. (2d) 100,[2010] 1 W.W.R. 493, [2009] CLLC 230-036; Cooper v. Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R.854, (1996), 140 D.L.R. (4th) 193, 43 Admin. L.R. (2d) 155; R. v. Edwards Books & Art Ltd., (SCC), [1986] 2 S.C.R.713, (1986), 35 D.L.R. (4th) 1, 30 C.C.C. (3d) 385; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995]3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1, 100 C.C.C. (3d) 449; Irwin Toy Ltd. v.

Quebec (Attorney General), (SCC),[1989] 1 S.C.R. 927, (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 47; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877, (1998), 38 O.R. (3d) 735, 159 D.L.R. (4th) 385; Eldridge v. British Columbia (AttorneyGeneral), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577, [1998] 1 W.W.R. 50; Canada (Human RightsCommission) v.

Taylor, (SCC), [1990] 3 S.C.R. 892, (1990), 75 D.L.R. (4th) 577, 3 C.R.R. (2d) 116; Alberta v.Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, 460 A.R. 1, 310 D.L.R. (4th) 193; Tétreault-Gadoury v.Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22, (1991), 81 D.L.R. (4th) 358, 50Admin. L.R. 1; Reference re Public Sector Employee Relations Act (Alta), (SCC), [1987] 1 S.C.R. 313, (1987), (MB CA), 78 A.R. 1, 28 D.L.R. (4th) 161; Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et debureau d’Hydro-Québec,

section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561, 294 D.L.R. (4th) 407, 63 C.H.R.R.D/301; Zurich Insurance Co. v. Ontario (Human Rights Commission), (SCC), [1992] 2 S.C.R. 321, (1992), 93 D.L.R.(4th) 346, 12 C.C.L.I. (2d) 206. referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Nova Scotia (Workers’Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, 217 N.S.R.(2d) 301, 231 D.L.R. (4th) 385; Consolidated Fastfrate Inc. v.

Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R.407, 469 A.R. 50, 313 D.L.R. (4th) 285; National Capital Commission v. Brown, 2009 FCA 273, 69 C.H.R.R. D/209, 394 N.R. 348;Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th) 1; NewBrunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604, 332 N.B.R.(2d) 341, 295 D.L.R. (4th) 1; British Columbia (Superintendent of Motor Vehicles) v.

British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868, 181 D.L.R. (4th) 385, [2000] 1 W.W.R. 565; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527,276 D.L.R. (4th) 513, [2007] 5 W.W.R. 1; Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, 348 A.R. 201, 239D.L.R. (4th) 193; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2S.C.R. 391, 283 D.L.R. (4th) 40, [2007] 7 W.W.R. 191; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, 205D.L.R. (4th) 385, 76 C.L.R.B.R. (2d) 1; Newfoundland (Treasury Board) v.

N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, 242 Nfld. &P.E.I.R. 113, 244 D.L.R. (4th) 294; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), (SCC), [1990] 2S.C.R. 489, (1990), 111 A.R. 241, 72 D.L.R. (4th) 417; Central Okanagan School District No. 23 v. Renaud, (SCC),[1992] 2 S.C.R. 970, (1992), 95 D.L.R. (4th) 577, [1992] 6 W.W.R. 193; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1,[2011] 1 S.C.R. 3, 327 D.L.R. (4th) 513, 14 Admin. L.R. (5th) 1; Brossard (Town) v.

Quebec (Commission des droits de la personne), (SCC), [1988] 2 S.C.R. 279, (1988), 53 D.L.R. (4th) 609, 88 CLLC 17,031; Hutchinson v. B.C. (Min. of Health), 2004BCHRT 58; Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.); Cepeda-Gutierrez v. Canada (Ministerof Citizenship and Immigration), , 157 F.T.R. 35 (F.C.T.D.); League for Human Rights of B’nai Brith Canada v.Canada, 2010 FCA 307, [2012] 2 F.C.R. 312, 93 Imm. L.R. (3d) 1, 409 N.R. 298; Moktari v. Canada (Minister of Citizenship andImmigration), (FCA), [2000] 2 F.C. 341, (1999), 70 C.R.R. (2d) 133, 12 Imm.

L.R. (3d) 12 (C.A.); Gwala v. Canada(Minister of Citizenship and Immigration), (FCA), [1999] 3 F.C. 404, (1999), 68 C.R.R. (2d) 48, 3 Imm. L.R. (3d) 26(C.A.). AUTHORS CITED Canadian Human Rights Act Review Panel. Promoting Equality: A New Vision, Ottawa: Department of Justice, 2000. Gunderson, Morley and James Pesando. “The Case for Allowing Mandatory Retirement” (1988), 14 Can. Pub. Pol’y 32. Jamal, Mahmud and Matthew Taylor. The Charter of Rights in Litigation: Direction from the Supreme Court of Canada, loose-leaf.Aurora, Ont.: Canada Law Book, 2001.

Kesselman, Jonathan R. “Mandatory Retirement And Older Workers: Encouraging Longer Working Lives” (2004), 200 C.D. HoweInstitute Commentary 1, online: <http://www.cdhowe.org/pdf/commentary_200.pdf>. Mandatory Retirement Study: The Effects of Raising the Age Limit for Mandatory Retirement in the Age Discrimination in EmploymentAct.

Part 1: Final Report. Washington: The Urban Institute, 1981. Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis Canada, 2008.

Zinn, Russel W. The Law of Human Rights in Canada: Practice and Procedure , loose-leaf, Aurora, Ont.: Canada Law Book, 1996. appLicationS for judicial review of a Canadian Human Rights Tribunal decision ( 2009 CHRT 24 , 77 C.C.E.L. (3d) 128, 69 C.H.R.R. D/419) finding that paragraph 15(1) (

c) of the Canadian Human Rights Act is not a reasonable limit justifiable in a free and democratic society as contemplated by

section 1 of the Canadian Charter of Rights and Freedoms , and that the applicant Air Canada failed to demonstrate that age was a bona fide occupational requirement for its pilots. Application in T-1615-09 dismissed; application in T-1606- 09 allowed in part. APPEARANCES Bruce Laughton, Q.C. , for Air Canada Pilots Association (applicant in T-1615-09 and respondent in T-1606-09). Raymond D. Hall and David Baker for respondents Robert Neil Kelly and George Vilven. Daniel Poulin for respondent Canadian Human Rights Commission.

Gavin MacKenzie and Christianna Scott for Air Canada (respondent in T-1615-09 and applicant in T-1606-09). SOLICITORS OF RECORD Laughton & Company , Vancouver, for Air Canada Pilots Association (applicant in T-1615-09 and respondent in T-1606-09). Bakerlaw , Toronto, for respondents Robert Neil Kelly and George Vilven. Canadian Human Rights Commission , Ottawa, for respondent Canadian Human Rights Commission. Heenan Blaikie LLP , Montréal, for Air Canada (respondent in T-1615-09 and applicant in T-1606-09). Table of Contents Paragraph I. Introduction 1 II. Background 7 A. Mandatory retirement at Air Canada 8 B.

George Vilven’s career 10 C. Robert Neil Kelly’s career 15 III. The human rights complaints 20 IV. Procedural history 24 V. The Tribunal’s second decision 31 VI. Issues 43 VII. Standard of review 45 VIII. Is paragraph 15(1)(

c) of the Canadian Human Rights Act a reasonable limit in a free and democratic society? 50 A. The Supreme Court of Canada’s mandatory retirement jurisprudence 54 (

i) Ontario (Human Rights Commission) v. Etobicoke 55 (ii) McKinney v. University of Guelph 59 (iii) Harrison v. University of British Columbia 80 (iv) Douglas/Kwantlen Faculty Assn. v. Douglas College 82 (

v) Stoffman v. Vancouver General Hospital 83 (vi) Dickason v. University of Alberta 86 (vii) New Brunswick v. Potash Corporation of Saskatchewan Inc. 96 B. Why the Supreme Court’s decision in McKinney does not determine the result of this case 98 (

i) The differences between the legislative provisions 103 (ii) McKinney did not purport to be the final word on the subject of mandatory retirement 130 (iii) The differences in the evidentiary records 142 (iv) The new developments in public policy 147 (

v) Other post- McKinney mandatory retirement jurisprudence 157 (

a) Greater Vancouver Regional District Employees’ Union v. Greater Vancouver Regional District 159 (

b) Assn. of Justices of the Peace of Ontario v. Ontario (Attorney General) 164 (

c) CKY-TV v. Communications, Energy and Paperworkers Union of Canada (Local 816) 167 (

d) Cooper v. Canada (Human Rights Commission) 174 C. Is paragraph 15(1)(

c) of the CHRA justifiable under

section 1 of the Charter ? 186 (

i) The

section 1 analytical framework 187 (ii) What are the objectives of paragraph 15(1) (

c) of the CHRA ? 195 (iii) Are the objectives of paragraph 15(1) (

c) of the CHRA pressing and substantial? 197 (iv) The proportionality component of the Oakes test 205

(

v) Rational connection 208 (vi) Minimal impairment 218 (

a) The applicale legal principles 219 (

b) The Tribunal’s findings with respect to minimal impairment issue 226 (

c) Air Canada and ACPA’s arguments with respect to minimal impairment 227 (

d) The expert evidence 234 (

e) The application of the minimal impairment test 281 (

f) Conclusion on the minimal impairment issue 323 (vii) Proportionality between the effects of the legislation and its objectives 327 (viii) Conclusion on the Charter issue 350 IX. Is age a bona fide occupational requirement for Air Canada pilots? 352 A. Legal principles governing bona fide occupational requirements 353 B. The Tribunal’s decision 359 C. The significance of the ICAO standards 377 D. Timing and the duty to accommodate 381 E. Factors to consider in relation to the issue of accommodation 386 F. Accommodation in the pre-November 2006 period 405 (

i) The accommodation of Mr. Vilven in the pre-November 2006 period 408 (ii) The accommodation of Mr. Kelly in the pre-November 2006 period 415 G. Accommodation in the post-November 2006 period 429 (

i) The Tribunal’s treatment of Captain Duke’s evidence 431 (ii) The Tribunal’s finding regarding the first two elements of the Meiorin test 466 X. Remedy 472 XI. Conclusion 490 XII. Costs 493 The following are the reasons for judgment and judgment rendered in English by Mactavish J.: I. Introduction [ 1 ] Paragraph 15(1) (

c) of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 (CHRA or the Act), allows an employer to terminate the employment of an individual if that person has reached the “normal age of retirement” for those working in similar positions. [ 2 ] This Court has previously found that paragraph 15(1) (

c) of the Act violates subsection 15(1) of the 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] [the Charter], as it denies the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. In so doing, paragraph 15(1) (

c) has the effect of perpetuating the group disadvantage and prejudice faced by older workers by promoting the stereotypical view that older workers are less capable, or less deserving of recognition or value as human beings or as members of Canadian society: see Vilven v. Air Canada , 2009 FC 367 , [2010] 2 F.C.R. 189 ( Vilven No. 1), at paragraphs 9 and 337–339. [ 3 ] These reasons pertain to two applications for judicial review of a subsequent decision of the Canadian Human Rights Tribunal which found that paragraph 15(1) (

c) is not a reasonable limit justifiable in a free and democratic society as contemplated by

section 1 of the Charter . One application is brought by Air Canada and the other by the Air Canada Pilots Association (or ACPA), the bargaining agent for Air Canada pilots. The applications were consolidated by order of this Court. [ 4 ] For the reasons that follow, I find that the Tribunal’s decision on the Charter issue was correct.

As a result, ACPA’s application, which only raises the Charter issue, will be dismissed. [ 5 ] Also at issue in Air Canada’s application for judicial review is whether the Tribunal’s finding that Air Canada had failed to demonstrate that age was a bona fide occupational requirement for its pilots was reasonable. I have concluded that the Tribunal erred in its analysis of the bona fide occupational requirement issue as it related to the period after November of 2006.

Consequently, Air Canada’s application for judicial review will be granted in part. [ 6 ] What is not in issue in these proceedings is any question relating to pilot safety. The fitness of individual pilots to fly is determined not by Air Canada, but by Transport Canada as part of its pilot licensing regime. If, after an individualized assessment, Transport Canada determines that an individual is no longer fit to fly, then that individual’s pilot’s license will not be renewed. II. Background [ 7 ] In order to provide a context for these reasons, I will provide a brief

summary of the facts, which is largely taken from my decision in Vilven No. 1. A. Mandatory Retirement at Air Canada [ 8 ] Mandatory retirement for pilots at Air Canada was initially a company policy. Since 1957, the Air Canada pension plan has

identified 60 as the compulsory retirement age for pilots. As of the early 1980s, provisions mandating retirement at age 60 have been included in the collective agreement in force between Air Canada and its pilots’ union. ACPA began representing Air Canada pilots in 1995. [ 9 ] Shortly before the commencement of the initial Tribunal hearing of Messrs. Vilven and Kelly’s human rights complaints, ACPA held a referendum on the mandatory retirement issue. Seventy-five percent of ACPA members voted in favour of retaining mandatory retirement for Air Canada pilots. B.

George Vilven’s Career [ 10 ] George Vilven was hired by Air Canada in May of 1986. Over the ensuing years, he was able to use his seniority to bid on a succession of higher status and higher paying positions on increasingly larger aircraft. In his last position with Air Canada, Mr. Vilven was flying as a first officer on Airbus 340 aircraft [A340]. [ 11 ] Mr. Vilven turned 60 on August 30, 2003.

In accordance with the mandatory retirement age provisions of the Air Canada/ACPA collective agreement and the Air Canada pilot pension plan, he was required to retire on the first day of the month following his 60th birthday. [ 12 ] There is no suggestion that there were any performance problems or medical fitness issues with respect to Mr. Vilven.

Indeed, it is common ground that the only reason for the termination of his employment was the application of the mandatory retirement provisions of the Air Canada/ACPA collective agreement and the Air Canada pilot pension plan, which is incorporated by reference into the collective agreement. [ 13 ] Based upon his years of service with Air Canada and his pre-Air Canada military service (which are included as years of service for the purpose of Air Canada’s pension plan), Mr. Vilven is entitled to receive substantial pension benefits until his death. [ 14 ] After leaving Air Canada, Mr.

Vilven was able to continue his career in aviation. He flew with Flair Airlines from April of 2005 until May of 2006, when he quit flying in order to prepare for his Tribunal hearing. At the time of the original Tribunal hearing, Mr. Vilven continued to hold a valid Canadian airline transport pilot licence. C. Robert Neil Kelly’s Career [ 15 ] Robert Neil Kelly was hired by Air Canada in September of 1972. At the time of his retirement from Air Canada, he was flying as the captain and pilot-in-command of Airbus 340’s. [ 16 ] The term “pilot-in-command” should not be confused with that of “captain”.

Pilot positions at Air Canada include captains, first officers and relief pilots. The International Standards on Personnel Licensing promulgated by the International Civil Aviation Organization (or ICAO), the United Nations organization charged with fostering civil aviation safety, requires that one pilot on each flight be designated as the pilot-in-command of the flight: see the Convention on International Civil Aviation , December 7, 1944, [1944] Can. T.S.

No. 36 (Chicago Convention) (entered into force 4 April 1947), see Annex I to the Convention on International Civil Aviation: Personnel Licensing (Personnel Licensing, 10th ed. Montréal: ICAO, 2006). Although the captain of an aircraft is ordinarily the pilot-in- command, this is not necessarily always the case. [ 17 ] Mr. Kelly turned 60 on April 30, 2005, and was forced to retire from Air Canada on May 1, 2005. As was the case with Mr. Vilven, there was no issue as to Mr.

Kelly’s capacity to fly safely, and the parties acknowledge that the only reason for the termination of his employment was the application of the mandatory retirement provisions found in the governing pension plan and collective agreement. [ 18 ] Like Mr. Vilven, Mr. Kelly is entitled to receive substantial pension benefits for the rest of his life. [ 19 ] Mr. Kelly was also able to continue his flying career after leaving Air Canada. He initially worked on contract as a first officer with Skyservice Airlines.

At the time of the original Tribunal hearing, he was working for Skyservice as a captain and pilot-in-command, flying routes, including international routes, on Boeing 757’s. III. The Human Rights Complaints [ 20 ] Mr. Vilven filed his complaint against Air Canada with the Canadian Human Rights Commission in August of 2004. His complaint asserted that by forcing him to retire at age 60, Air Canada violated sections 7 and 10 [as am. by S.C. 1998, c. 9, s. 13(E)] of the CHRA . The full text of the relevant statutory provisions is attached as an appendix to these reasons. [ 21 ] Mr.

Kelly’s human rights complaint was filed on March 31, 2006 and was brought against both Air Canada and ACPA.

His complaint alleged discrimination on the basis of age, contrary to the provisions of sections 7 , 9 [as am. idem , s. 12] and 10 of the Act . [ 22 ] Both complaints were referred to the Canadian Human Rights Tribunal by the Commission, and the two cases were heard and decided together. [ 23 ] In the course of the parties’ oral submissions, I was advised that the Tribunal has now held a hearing in relation to 68 additional complaints brought by former Air Canada pilots who were forced to retire against their will. The Tribunal currently has its decision with respect to that case under reserve.

I was also advised that there is another “large group” of former Air Canada pilots whose human rights complaints have been referred to the Tribunal by the Canadian Human Rights Commission, and still another “large group” of former Air Canada pilots who have age discrimination complaints pending before the Commission. IV. Procedural History

[24] In order to put the issues into context, it is necessary to understand the procedural history giving rise to the applications currentlybefore the Court. [25] The original hearing into Messrs. Vilven and Kelly’s complaints took place in 2007. ACPA was granted “interested party” statusbefore the Tribunal in relation to Mr. Vilven’s complaint.

The Tribunal also granted interested party status to the “Fly Past 60 Coalition”,a group of current and former Air Canada pilots who are united in their goal of eliminating mandatory retirement at Air Canada. [26] In advance of the Tribunal hearing, the Fly Past 60 Coalition served a notice of constitutional question on the federal andprovincial Attorneys General, advising that the constitutionality of paragraph 15(1)(

c) of the CHRA was in issue in the proceeding. Aswas noted earlier, paragraph 15(1)(

c) of the Act provides that it is not a discriminatory practice if an individual’s employment isterminated “because that individual has reached the normal age of retirement for employees working in positions similar to the positionof that individual.” [27] In a decision rendered in August of 2007, the Tribunal dismissed Messrs. Vilven and Kelly’s human rights complaints: Vilven v.Air Canada; Kelly v. Air Canada, 2007 CHRT 36, [2008] CLLC 230-011 (Tribunal decision No. 1). The Tribunal found that 60 was thenormal age of retirement for persons working in similar positions, and further found that paragraph 15(1)(

c) of the Act did not contravenesubsection 15(1) of the Charter. Because of its finding on the

section 15 Charter issue, the Tribunal did not have to decide whetherparagraph 15(1)(

c) of the CHRA could be justified under

section 1 of the Charter. [28] On judicial review, I found that although there were errors in the Tribunal’s analysis, the finding that 60 was the normal age ofretirement for individuals employed in positions similar to those occupied by Messrs. Vilven and Kelly prior to their retirement wasreasonable: Vilven No. 1, at paragraph 174. [29] However, as noted earlier, I concluded that paragraph 15(1)(

c) of the Act violated subsection 15(1) of the Charter, as it deniesthe equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. Consequently, Iquashed the Tribunal’s decision as it related to the Charter issue, and remitted the matter to the Tribunal for it to determine whetherparagraph 15(1)(

c) of the Act could be demonstrably justified as a reasonable limit in a free and democratic society: Vilven No. 1, atparagraph 340. [30] In the event that the Tribunal determined that paragraph 15(1)(

c) of the CHRA was not saved under

section 1 of the Charter, Idirected that it address the merits of Messrs. Vilven and Kelly’s human rights complaints. This would require the Tribunal to considerAir Canada’s argument that requiring that all of its pilots be younger than 60 constituted a bona fide occupational requirement within themeaning of paragraph 15(1)(

a) of the CHRA: Vilven No. 1, at paragraph 341. V. The Tribunal’s Second Decision [31] In August of 2009, the Tribunal issued a second decision with respect to Messrs. Vilven and Kelly’s human rights complaints:Vilven v. Air Canada; Kelly v. Air Canada, 2009 CHRT 24, 77 C.C.E.L. (3d) 128 (Tribunal decision No. 2). [32] In assessing whether paragraph 15(1)(

c) of the CHRA was saved under

section 1 of the Charter, the Tribunal applied the testarticulated by the Supreme Court of Canada in The Queen v. Oakes, (SCC), [1986] 1 S.C.R. 103. The Oakes testrequires that two criteria be satisfied: the objective of the law must relate to a societal concern that is “pressing and substantial”, and themeans used to attain the objective must be “proportional”. [33] The Tribunal noted that in order to be proportional, the measures selected “must be rationally connected to the objective andshould impair as little as possible the right or freedom in question.

It also requires that there be proportionality between the objectivesand the effects”: Tribunal decision No. 2, at paragraph 12, citing Oakes, at page 139. [34] The Tribunal recognized that in cases such as McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229,and Harrison v. University of British Columbia, (SCC), [1990] 3 S.C.R. 451, the Supreme Court of Canada had foundthat provisions in the Ontario and British Columbia human rights codes limiting the protection of the legislation to those under 65 werereasonable limitations within the meaning of

section 1 of the Charter. [35] The Tribunal also noted that the majority judgment in McKinney accorded a high degree of deference to the Legislature, as theissue of mandatory retirement involved a complex balancing of competing interests upon which expert opinion was divided.

TheTribunal went on, however, to observe that several more recent decisions had determined that the social and economic context hadchanged sufficiently since McKinney and Harrison were decided as to render those decisions no longer applicable to present daycircumstances: Tribunal decision No. 2, at paragraphs 18 and 19. [36] The Tribunal compared the factual and social context of this case to that which was before the Supreme Court in McKinney,finding that the evidence before it demonstrated that mandatory retirement was no longer as prevalent as it had been when McKinney wasdecided.

At the time of the hearing, only three provinces allowed for the imposition of mandatory retirement. In all of the otherprovinces, mandatory retirement was either prohibited, or was permitted only where it was based on a bona fide occupationalrequirement or bona fide pension or retirement plan: Tribunal decision No. 2, at paragraphs 26 and 27. [37] The Tribunal observed that the abolition of mandatory retirement in these provinces had not spelled the end of deferredcompensation, pension and benefit schemes, and seniority arrangements: Tribunal decision No. 2, at paragraphs 29 and 34.

The Tribunalalso noted that the expert evidence before it called into question the concerns identified by the Supreme Court in McKinney as to thepotential negative consequences that could flow from the abolition of mandatory retirement for matters such as pension plans anddeferred compensation schemes. Consequently, the Tribunal concluded that paragraph 15(1)(

c) of the CHRA could not be justified underany of the elements of the Oakes test. [38] It was thus necessary for the Tribunal to go on to consider whether Air Canada and ACPA had demonstrated that mandatoryretirement at 60 constituted a bona fide occupational requirement for Air Canada pilots.

[39] In answering this question, the Tribunal applied the test established by the Supreme Court in British Columbia (Public ServiceEmployee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3 (Meiorin), at paragraph 54. [40] According to the Tribunal, neither Messrs.

Vilven and Kelly nor the Commission disputed that the first two components of theMeiorin test had been satisfied: that is, that the mandatory retirement provisions of the Air Canada pension plan and the AirCanada/ACPA collective agreement had been adopted for a purpose that was rationally connected to the performance of the job, and thatthe provisions had been adopted in the honest and good faith belief that they were necessary to the fulfillment of a legitimate work-related purpose. [41] The “real issue” for the Tribunal was whether Messrs.

Vilven and Kelly could be accommodated without causing undue hardshipto Air Canada and/or ACPA: Tribunal decision No. 2, at paragraphs 82–83. [42] After examining the evidence adduced by the applicants in this regard, the Tribunal found that neither Air Canada nor ACPA hadestablished that the retirement of Air Canada pilots at age 60 constituted a bona fide occupational requirement. Consequently, Messrs.Vilven and Kelly’s human rights complaints were deemed to have been substantiated, and the Tribunal retained jurisdiction to deal withthe issue of remedy. VI.

Issues [43] There are two issues on these applications for judicial review. The first is whether the Tribunal erred in finding that paragraph15(1)(

c) of the CHRA is not a reasonable limit justifiable in a free and democratic society within the meaning of

section 1 of the Charter. [44] The second issue is whether the Tribunal erred in determining that Air Canada had not established that the mandatory retirementage provisions of the Air Canada Pension Plan and the Air Canada/ACPA collective agreement constituted a bona fide occupationalrequirement. VII. Standard of Review [45] Messrs. Vilven and Kelly, Air Canada and ACPA all agree that the Tribunal’s finding as to whether paragraph 15(1)(

c) of theCHRA is saved by

section 1 of the Charter is reviewable against the standard of correctness. The Commission takes no position on theCharter issue. [46] I agree that correctness is the appropriate standard with respect to this aspect of the Tribunal’s decision. Charter questions mustbe decided consistently and correctly: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraphs 58 and 163;Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2S.C.R. 504, at paragraph 32.

That said, purely factual findings made by the Tribunal in the course of its constitutional analysis areentitled to deference: see, for example, Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3S.C.R. 407, at paragraph 26. [47] Messrs. Vilven and Kelly, the Commission and Air Canada also agree that the Tribunal’s finding as to whether Air Canada hadestablished a bona fide occupational requirement defence is reviewable on the reasonableness standard.

ACPA takes no position on thebona fide occupational requirement issue. [48] I agree that reasonableness is the applicable standard of review with respect to this aspect of the Tribunal’s decision. Thequestion of whether a bona fide occupational requirement defence has been made out in a particular case is a question of mixed fact andlaw, requiring the Tribunal to apply its enabling legislation to the facts before it. Such a finding attracts judicial deference: NationalCapital Commission v. Brown, 2009 FCA 273, 69 C.H.R.R.

D/209, at paragraph 5. [49] In applying the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within the range of possible acceptable outcomes which are defensible in light of the factsand the law: see Dunsmuir, at paragraph 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, atparagraph 59. VIII. Is Paragraph 15(1)(

c) of the Canadian Human Rights Act a Reasonable Limit in a Free and Democratic Society? [50] Before examining this issue, it should be noted that ACPA served a notice of constitutional question on the federal andprovincial attorneys general pursuant to the provisions of

section 57 [as am. by S.C. 1990, c. 8, s. 19; 2002, c. 8, s. 54] of the FederalCourts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)], advising that the constitutional validity of paragraph 15(1)(

c) of the CHRA isin issue in these applications. None of the attorneys general have elected to participate in these proceedings. [51] There is no question that the Canadian Human Rights Tribunal has the power to decide Charter questions, as the CHRAstatutorily empowers the Tribunal to decide questions of law: see subsection 50(2) [as am. by S.C. 1998, c. 9, s. 27], and Nova Scotia(Workers’ Compensation Board) v. Martin, above, at paragraph 3. [52] The parties agree that the onus of justifying the limitation on Messrs. Vilven and Kelly’s equality rights rests on Air Canada andACPA: see Stoffman v. Vancouver General Hospital, (SCC), [1990] 3 S.C.R. 483, at page 520. The standard of proofunder

section 1 of the Charter is the ordinary civil standard, that is, the balance of probabilities: Oakes, at page 137. [53] There is also no dispute that the Oakes test applied by the Tribunal in deciding whether paragraph 15(1)(

c) of the CHRA can bejustified under

section 1 of the Charter is the appropriate test. A. The Supreme Court of Canada’s Mandatory Retirement Jurisprudence [54] The issue of mandatory retirement has been considered by the Supreme Court of Canada on a number of occasions in the last 30

years. Before applying the Oakes test to the facts of this case, and in order to put that discussion into context, it is helpful to start bylooking at what the Supreme Court has said on the subject. (

i) Ontario (Human Rights Commission) v. Etobicoke [55] Mandatory retirement first came before the Supreme Court in the early 1980s in Ontario Human Rights Commission et al. v.Borough of Etobicoke, (SCC), [1982] 1 S.C.R. 202. The appellants in that case were firemen employed by the Boroughof Etobicoke.

Each had filed a complaint under the Ontario Human Rights Code, R.S.O. 1970, c. 318, because he had been forced toretire at age 60 pursuant to the collective agreement governing the terms of his employment. [56] The Ontario Human Rights Code provided that the prohibition on age discrimination did not apply in cases where age could beshown to be a bona fide occupational requirement for the position in question. A human rights board of inquiry determined that themunicipality had not established the existence of a bona fide occupational requirement for its firefighters.

That decision was overturnedby the Ontario Divisional Court, and the Divisional Court’s decision was subsequently confirmed by the Ontario Court of Appeal. [57] In restoring the decision of the board of inquiry, the Supreme Court found that the evidence adduced by the employer failed toestablish that being under 60 was a bona fide occupational requirement. The Court observed that everyone ages chronologically at thesame rate, but that individuals may age in a “functional sense” at very different and largely unpredictable rates.

The Court went on toobserve that in cases where the employer’s concern is one of productivity rather than safety, “it may be difficult, if not impossible, todemonstrate that a mandatory retirement at a fixed age, without regard to individual capacity, may be validly imposed under the Code”:at page 209. [58] The Court rejected the employer’s argument that the mandatory retirement age at issue should be considered to be a bona fideoccupational requirement as it had been agreed to as part of a collective agreement: at page 212.

As the Code had been enacted for thebenefit of both the community at large and of its individual members, the Supreme Court was of the view that its protection could not bewaived or varied by private contract: at pages 213–214. (ii) McKinney v. University of Guelph [59] The issue of mandatory retirement was back before the Supreme Court in the early 1990’s in a series of cases brought undersection 15 of the Charter: McKinney; Harrison; Stoffman; Douglas/Kwantlen Faculty Assn. v.

Douglas College, (SCC),[1990] 3 S.C.R. 570. [60] The judgments in all four cases were rendered at the same time, with McKinney as the lead decision. Air Canada and ACPAargue that McKinney was binding on the Tribunal, and should have dictated a finding by the Tribunal that paragraph 15(1)(

c) of theCHRA was saved by

section 1 of the Charter. By failing to follow McKinney, the applicants say that the Tribunal erred in law. In light ofthis argument, it is necessary to examine the Court’s reasoning in McKinney in some detail. [61] The appellants in McKinney were university professors at four Ontario universities who were forced to retire at age 65, inaccordance with the universities’ mandatory retirement policies. As in the present case, the professors were unable to seek recourseunder human rights legislation, because paragraph 9(

a) of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, limited the protectionagainst age discrimination in employment afforded by the Code to those between the ages of 18 and 65. [62] The majority judgment held that universities do not form part of “government”, and that the reach of the Charter is limited togovernment action. However, the Court went on in obiter to examine the universities’ retirement policies on the assumption that theuniversities were government actors, finding them to be justifiable. [63] Insofar as the constitutionality of paragraph 9(

a) of the Ontario Human Rights Code, 1981 was concerned, the Supreme Courtwas unanimous in finding that the statutory provision in issue violated subsection 15(1) of the Charter, as it deprived individuals of abenefit under the Code on the basis of an enumerated ground. The Court was, however, divided on the question of whether the provisionwas justifiable under

section 1 of the Charter. [64] Justice La Forest wrote the majority judgment, with Chief Justice Dickson and Justice Gonthier concurring. Justices Cory andSopinka each wrote separate reasons, concurring in the result. Justices Wilson and L’Heureux-Dubé each wrote dissenting judgmentsdisagreeing with the majority as to whether paragraph 9(

a) of the Code could be justified under

section 1. [65] Justice La Forest began by reviewing the history and role of mandatory retirement in Canada.

He observed that by 1970, publicand private pension plans had been established to provide income security after the age of 65 and that as of 1990, mandatory retirementwas “part of the very fabric of the organization of the labour market in this country”: at page 295. [66] The objectives of the legislation were described by Justice La Forest as being an effort to balance the Legislature’s concern fordenying protection beyond age 65 against the fear that such a change could result in delayed retirement and delayed benefits for olderworkers.

Concern was also expressed as to the potential impact that a change would have for labour markets and pensions. In Justice LaForest’s view, these objectives were pressing and substantial. [67] The majority also found that paragraph 9(

a) of the Code was rationally connected to these objectives. In this regard, Justice LaForest observed that “there is nothing irrational in a system that permits those in the private sector to determine for themselves the age ofretirement suitable to a particular area of activity”: at page 304. [68] In relation to the issue of minimal impairment, Justice La Forest noted that where the Legislature was faced with competingsocio-economic theories and social science evidence, it was entitled to choose between them and to proceed cautiously in effectingchange.

The question for the Court was whether the government had a reasonable basis for concluding that the legislation impaired therelevant right as little as possible, in light of the government’s pressing and substantial objectives: at page 315.

[ 69 ] In addressing this question, Justice La Forest described the issue of mandatory retirement as being a complex socio-economic one, which involved “the basic and interconnected rules of the workplace throughout the whole of our society”: at page 302.

He explained that mandatory retirement was part of “a complex, interrelated, lifetime contractual arrangement involving something like deferred compensation”, particularly in union-organized workplaces, where “seniority serves as something of a functional equivalent to tenure”: at pages 306–307. [ 70 ] Justice La Forest further observed that the ramifications that the abolition of mandatory retirement would have for the organization of the workplace, and for society in general, were things that could not readily be measured: at page 304. [ 71 ] Finally, Justice La Forest found that there was proportionality between the effects of paragraph 9(

a) of the Code on the guaranteed right, and the objectives of the provision. He observed that a Legislature is not obliged to deal with all aspects of a problem at once, and that it should be permitted to take incremental measures in relation to issues such as mandatory retirement: at page 317. [ 72 ] Justices Cory and Sopinka agreed in their concurring reasons that paragraph 9(

a) of the Code was saved under

section 1 of the Charter . [ 73 ] In contrast, Justice Wilson observed that paragraph 9(

a) of the Code did not only allow for mandatory retirement; it also permitted age discrimination in the employment context in all its forms for those over the age of 65. As a consequence, she was of the view that the rational connection branch of the Oakes test had not been met: at page 414. [ 74 ] More importantly for our purposes, Justice Wilson found that the legislation did not meet the minimal impairment component of the Oakes test. She noted that older workers would suffer disproportionately greater hardship as a result of the infringement of their equality rights.

She also observed that women are negatively affected by mandatory retirement, as they often have interrupted work histories as a result of their having assumed childcare responsibilities, with the resultant loss of pensionable earnings: at pages 414–416. [ 75 ] Justice Wilson recognized that mandatory retirement requirements are often the product of collective bargaining.

However, she also observed that even if it were acceptable for citizens to bargain away their fundamental human rights in exchange for economic gain, the fact was that the majority of working people in Ontario did not have access to such beneficial contractual arrangements: at page 415. [ 76 ] Justice L’Heureux-Dubé agreed with Justice Wilson that paragraph 9(

a) of the Code could not be justified under

section 1 of the Charter . She found that there was no convincing evidence that mandatory retirement was intimately related to the tenure system. In her view, the value of tenure was threatened, not by the aging process, but by the incompetence of individual workers. Discrepancies between the physical and intellectual abilities of older workers versus younger workers were compensated for by older workers’ increased experience and wisdom, as well as the skills they had acquired over time.

Consequently she found there to be no pressing and substantial objective addressed by the universities’ mandatory retirement policy: at pages 430–432. [ 77 ] Justice L’Heureux-Dubé was further of the view that the means chosen by the Legislature were too intrusive. Individuals over 65 were excluded from the protection of the Code solely because of their age, without regard to their individual circumstances.

She noted that the adverse effects of mandatory retirement are most painfully felt by the poor, and that women are particularly negatively affected as they are less likely to have accumulated adequate pensions: at pages 433–434. [ 78 ] In the absence of a reasonable justification for a legislative scheme permitting compulsory retirement at age 65, Justice L’Heureux-Dubé would have struck out paragraph 9(

a) of the Code in its entirety as unconstitutional. [ 79 ] At the same time that it rendered judgment in McKinney , the Supreme Court of Canada also released its decisions in the three companion cases of Harrison , Stoffman and Douglas College . As these cases relied heavily on the reasoning in McKinney , I will refer to each of them only briefly. (iii) Harrison v. University of British Columbia [ 80 ] Harrison involved a challenge to the University of British Columbia’s mandatory retirement policy. There was also a challenge to the constitutionality of the definition of “age” in

section 1 of the British Columbia Human Rights Act , S.B.C. 1984, c. 22, which limited the protection of the Act to those between the ages of 45 and 65. [ 81 ] The majority decision held that because the facts, issues and constitutional questions in Harrison were similar to those considered in McKinney , Harrison was governed by that case. As a consequence, Harrison adds little to the analysis. However, it does bear noting that Justices Wilson and L’Heureux-Dubé once again dissented on the

section 1 issue. (iv) Douglas/Kwantlen Faculty Assn. v. Douglas College [ 82 ] The appeal in Douglas College involved another challenge to a mandatory retirement provision in a collective agreement. The case was disposed of on jurisdictional grounds, the question being whether the arbitrator had jurisdiction to decide Charter issues. The Court determined that the arbitrator did indeed have jurisdiction to decide Charter issues. However, as the arbitrator had not considered whether the breach of

section 15 of the Charter was justified under

section 1 of the Charter, the Court did not deal with this question. (

v) Stoffman v. Vancouver General Hospital [ 83 ] Stoffman involved a challenge brought by doctors with admitting privileges at the Vancouver General Hospital. A hospital Medical Staff Regulation stipulated that doctors had to retire at the age of 65, unless they were able to demonstrate that they could offer something unique to the hospital. [ 84 ] The doctors were not hospital employees, and thus did not benefit from the protection against age-based employment discrimination provided by the British Columbia Human Rights Act . The Supreme Court found that the doctors were also unable to claim the protection of the Charter , as hospitals were not part of government.

[85] Even if the Charter had applied, the majority would have found that the discriminatory mandatory retirement Regulation wouldhave been saved by

section 1 for the reasons given in McKinney. Justices Wilson, L’Heureux-Dubé and Cory dissented. (vi) Dickason v. University of Alberta [86] Two years after rendering its decisions in McKinney and its companion cases, the issue of mandatory retirement in the universitysetting was back before the Supreme Court in Dickason v.

University of Alberta, (SCC), [1992] 2 S.C.R. 1103. [87] The issue in Dickason was whether McKinney fully decided “whether a mandatory retirement policy in a private employmentsetting can be justified pursuant to the provisions of s. 11.1 of the IRPA [Individual’s Rights Protection Act, R.S.A. 1980, c. I-2]”: at page1128. Once again, the majority and dissenting judgments revealed deep divisions within the Supreme Court on this issue. [88] As in McKinney, the appellant in Dickason was a tenured professor who was forced to retire at age 65, in accordance with aclause in her collective agreement. Dr.

Dickason filed a complaint with the Alberta Human Rights Commission alleging that themandatory retirement provision of the collective agreement violated the IRPA [Individual’s Rights Protection Act, R.S.A. 1980, c. I-2]. [89] Unlike the Ontario and British Columbia human rights legislation at issue in McKinney and Harrison, the IRPA did not limit itsprotection against age-based employment discrimination to those under the age of 65. Rather,

section 11.1 [as enacted by S.A. 1985, c.33, s. 5] of the Individual’s Rights Protection Act prohibited such discrimination unless an employer could demonstrate that it was“reasonable and justifiable in the circumstances”. Dr. Dickason did not challenge the constitutional validity of

section 11.1 under theCharter, but rather the university’s claim that the mandatory retirement requirement in issue was reasonable and justifiable. [90] In rejecting Dr. Dickason’s appeal from the dismissal of her human rights complaint, Justice Cory (writing for a majorityincluding Justices La Forest, Gonthier and Iacobucci), discussed the difference between the rights conferred by human rights legislationand those conferred by the Charter.

He noted that human rights legislation is aimed at regulating the action of private individuals,whereas the Charter’s goal is to regulate government action: at pages 1121–1122. [91] As a consequence, although the decision in McKinney provided guidance, Justice Cory held that it did not determine the outcomeof Dr.

Dickason’s case, as no deference was owed to the policy choices of the university as a private institution: at pages 1123–1124. [92] While recognizing that parties may not generally contract out of human rights statutes, Justice Cory noted that the mandatoryretirement provision at issue was arrived at through the collective bargaining process.

In his view, this could provide evidence of thereasonableness of a practice which appeared on its face to be discriminatory: at page 1131. [93] With this in mind, Justice Cory examined whether the objectives of promoting tenure, academic renewal, planning and resourcemanagement, and retirement with dignity justified the placing of age limits on the substantive rights to equal treatment: at page 1128.The evidence regarding the role of mandatory retirement in this context was very similar to that which was before the Court inMcKinney, and the majority concluded that the mandatory retirement policy was reasonable and justifiable. [94] Justices L’Heureux-Dubé and McLachlin [as she then was] dissented, finding the university’s mandatory retirement policy to beneither reasonable nor justifiable.

Given that parties generally cannot contract out of human rights legislation, the dissenting judges wereof the view that the fact that the mandatory retirement requirement was found in a collective agreement was not evidence of thereasonableness of the discriminatory practice in Dr. Dickason’s case.

While accepting that this could be a factor to consider inexceptional circumstances, the collective agreement would nevertheless have to be carefully scrutinized in order to ensure that it wastruly freely negotiated, and did not discriminate unfairly against a minority of the union membership: at pages 1170–1171. [95] Justice Sopinka concurred with Justices L’Heureux-Dubé and McLachlin, holding that Dr. Dickason’s appeal should be allowedon the basis that the board of inquiry had found only a weak connection between the University’s objective and its mandatory retirementpolicy.

The Board had also found that there were other, more reasonable ways for the University to achieve its objectives, and that novalid reason for disturbing these factual findings had been demonstrated. (vii) New Brunswick v. Potash Corporation of Saskatchewan Inc. [96] As will be discussed below, there have been calls in recent years for the Supreme Court of Canada to revisit the issue ofmandatory retirement. This was explicitly recognized by the Court itself in New Brunswick (Human Rights Commission) v.

PotashCorporation of Saskatchewan Inc., 2008 SCC 45, [2008] 2 S.C.R. 604. [97] The Supreme Court left the door open for a reconsideration of mandatory retirement in the appropriate case: at paragraph 4.However, the facts of the Potash case did not present the proper opportunity for such a reconsideration, as no constitutional challengehad been made to the relevant provision of the New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11. B.

Why the Supreme Court’s Decision in McKinney Does Not Determine the Result of this Case [98] Air Canada and ACPA argue that the Supreme Court’s decision in McKinney was binding on the Tribunal, and, as such, shouldhave dictated a finding that paragraph 15(1)(

c) of the CHRA was saved by

section 1 of the Charter. According to Air Canada and ACPA,there are no factual or evidentiary differences in this case that are sufficiently material as to justify a different conclusion on the

section 1issue. [99] The applicants contend that the only real change that had taken place between the time of the Supreme Court’s decision inMcKinney and the hearing before the Tribunal in this case was that mandatory retirement had been abolished in Ontario, a developmentthat occurred after the termination of Messrs. Vilven and Kelly’s employment with Air Canada. This single development did not, in theapplicants’ view, permit the Tribunal to refuse to follow McKinney. [100] Our legal system operates on the principle of stare decisis. That is, in the interest of providing certainty to the law, decisions of

appellate courts are binding on trial courts and should ordinarily be followed in cases involving similar facts. [ 101 ] While recognizing that Supreme Court of Canada decisions are unquestionably binding on both the Tribunal and on this Court, there are four reasons why the Supreme Court’s decisions in McKinney and its companion cases should not dictate the result of this case. These are: 1. The significant differences between the legislative provisions in issue; 2.

The clear indication in McKinney that the Supreme Court did not intend that the decision be the final word on the subject of mandatory retirement for all time; 3. The differences in the evidentiary records that were before the Supreme Court and the Tribunal; and 4. The developments in public policy that have occurred since McKinney was decided. [ 102 ] Each of these reasons will be discussed in turn. (

i) The Differences Between the Legislative Provisions [ 103 ] While there are similarities between paragraph 15(1)(

c) of the CHRA and the provisions of the Ontario and British Columbia human rights legislation that were at issue in McKinney and Harrison ¸ there are also significant differences in the legislation. [ 104 ] The Ontario Human Rights Code provision under consideration in McKinney contained a general prohibition against age discrimination in employment. “Age” was defined in paragraph 9(

a) of the Code as being “an age that is eighteen years or more and less than sixty-five years”. As a result, those over the age of 65 did not enjoy the protection of the Code. [ 105 ] The provision of the British Columbia Human Rights Act at issue in Harrison defined “age” [in

section 1] as being “an age of 45 years or more and less than 65 years”, with a similar result. [ 106 ] There are undoubtedly similarities between these provisions and paragraph 15(1) (

c) of the CHRA , which provides that: 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 … [ 107 ] None of these legislative provisions mandate retirement at a specified age. All are permissive provisions which limit the protection offered by relevant legislation in the employment context. [ 108 ] ACPA and Air Canada submit that paragraph 15(1) (

c) of the CHRA is more readily defensible, as it is narrower than

section 9 of the Ontario Human Rights Code . As Justice Wilson observed in her dissenting judgment in McKinney ,

section 9 of the Code permits all forms of workplace age discrimination against those over 65, and not just their mandatory retirement: at paragraph 350. In contrast, the exception created by paragraph 15(1)(

c) of the CHRA relates only to the issue of mandatory retirement. [ 109 ] I agree that in this respect, paragraph 15(1) (

c) of the CHRA is narrower than

section 9 of the Ontario Human Rights Code . However, there are other significant differences between paragraph 15(1)(

c) of the CHRA, and the provisions of the Ontario and British Columbia human rights legislation that were in issue in McKinney and Harrison that have a bearing on whether paragraph 15(1) (

c) is saved by

section 1 of the Charter . [ 110 ] First of all, the legislative history and objectives of each provision is different. Justice La Forest discussed the legislative history and objectives of

section 9 of the Ontario Human Rights Code in McKinney . While noting that concern had been expressed by legislators for not affording protection in the employment sector to those over 65, in the end, “other considerations predominated”. These included the potential for delayed retirement and delayed benefits, as well as the effect on hiring and personnel practices, and the impact on youth unemployment: at pages 300–301. [ 111 ] In contrast, when the CHRA was before Parliament, Minister of Justice Ron Basford and Assistant Deputy Minister Barry Strayer testified that the intent of paragraph 15(1) (

c) was to leave the issue of a mandatory retirement age in the private sector to be negotiated between employers and employees: see Vilven No. 1, at paragraphs 159–161 and 243–247. [ 112 ] Moreover, in both the Ontario and British Columbia human rights legislation, the provincial Legislatures specifically identified the age at which the protection afforded by the law should cease being available to employees. Parliament did not make such a policy choice in enacting paragraph 15(1) ( c ).

Rather, it elected to delegate the choice of age at which employees will cease to enjoy the protection of the CHRA to employers employing a particular class of workers. [ 113 ] That is, it is employers who will decide what the “normal age of retirement” will be for various types of positions. This decision may be arrived at through the collective bargaining process, or may result from the unilateral imposition of employer retirement policies. In practice, paragraph 15(1) (

c) of the CHRA applies primarily to private sector employers, as the federal government abolished mandatory retirement for its employees in the 1980s. [ 114 ] There is another difference between the legislation at issue in this case and that at issue in McKinney . In McKinney , the Supreme Court identified 65 as the “normal age of retirement” in Canadian society: at page 306. Thus the legislative provisions at issue in both McKinney and Harrison conformed to this societal norm. In contrast, paragraph 15(1) (

c) of the CHRA permits the imposition of

retirement on employees at an age below 65, so long as it accords with the “normal age of retirement” for a particular type of position. [ 115 ] The younger the mandatory age of retirement, the greater the adverse effects will be for those who have been unable to accumulate sufficient financial resources or pensionable earnings prior to being compelled to retire. The labour economists testifying before the Tribunal agreed that this group will be disproportionately made up of women and immigrants. [ 116 ] Further, as I observed in Vilven No. 1, paragraph 15(1) (

c) of the CHRA is an unusual provision to find in human rights legislation, in that it allows for federally regulated employers to discriminate against their employees on the basis of age, as long as that discrimination is pervasive within a particular industry: at paragraph 1. [ 117 ] The delegation of the choice of the permissible mandatory retirement age to private sector industry players has another consequence for federally regulated employees—one not felt by those working in either Ontario or British Columbia at the time that McKinney and Harrison were decided. [ 118 ] That is, employees in both Ontario and British Columbia could readily have discovered the age at which they would cease to enjoy the protection of the relevant provincial human rights legislation.

In contrast, paragraph 15(1) (

c) of the CHRA does not clearly inform employees of their rights. The uncertainty and practical difficulties that the wording of paragraph 15(1) (

c) creates are illustrated by the facts of this case. [ 119 ] In order to understand his or her rights, a federally regulated employee would have to know which positions were “similar to the position of that individual”. This would require the employee to properly identify the appropriate comparator group. This is not an easy task, even for legally trained individuals familiar with human rights principles. [ 120 ] Indeed, in this case, the Tribunal determined that the appropriate comparator group for the purposes of the paragraph 15(1) (

c) analysis was “pilots who fly with regularly scheduled, international flights with … major international airlines”: see Tribunal decision No. 1, at paragraph 55. [ 121 ] On judicial review, I concluded that the Tribunal had erred in principle in coming to this conclusion, with the result that its choice of comparator was unreasonable. I found that the proper comparator should be “pil

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