ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT (ESTATE OF), COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE- BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DO, 2014 FC 83

Source: Federal Court

Date: 2014-01-27

Jurisdiction: Federal

Docket: T-1428-11

Citation: 2014 FC 83

Opinion

Date: January 27, 2014 Dockets: T-1428-11 T-1453-11 T-1463-11 T-971-12 T-979-12 Citation: 2014 FC 83 Ottawa, Ontario, January 27, 2014 PRESENT: The Honourable Mr. Justice Annis Docket: T-1428-11 BETWEEN: ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E.

DENOVAN, MAURICE DURRANT (ESTATE OF), COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE- BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G.

Docket: T-1453-11 AND BETWEEN: AIR CANADA Applicant and ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E.

DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G.

Docket: T-1463-11 AND BETWEEN: AIR CANADA PILOTS ASSOCIATION Applicant and ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E.

LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL- WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE, AND CANADIAN HUMAN RIGHTS COMMISSION AND AIR CANADA Respondents Docket: T-971-12 AND BETWEEN: AIR CANADA Applicant and ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G.

CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT, LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER, GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN, TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN, JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES, GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING, GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE, HARRY G.

Docket: T-979-12 AND BETWEEN: AIR CANADA PILOTS ASSOCIATION Applicant and ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER, DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON, WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF, JAMES E.

LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC, DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD, PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD, BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN, GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON, MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE, MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT, PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULIST, DONALD SMITH, OWEN STEWART, RAY THWAITES, DALE TRUEMAN, ANDRE VERSCHELDEN, DOUGLAS ZEBEDEE AND CANADIAN HUMAN RIGHTS COMMISSION AND AIR CANADA Respondents REASONS FOR JUDGMENT AND JUDGMENT APPLICATIONS for judicial review of the Canadian Human Rights Tribunal’s dismissal on August 10, 2011 ( 2011 CHRT 11 ) of age- based discrimination complaints filed by seventy complainants on the basis that the contested mandatory age of retirement did not amount to a discriminatory measure pursuant to section 15(1) (

c) of the Canadian Human Rights Act . Applications allowed in T-1428-11 and T-1463-11; application dismissed in T-1453-11. Applications T-971-12 and T-979-12 are dismissed. TABLE OF CONTENTS Paragraph I. INTRODUCTION............................................................................................................... 1 II. JUDICIAL HISTORY....................................................................................................... 24 A. Vilven v Air Canada , 2007 CHRT 36 [ Vilven Tribunal #1 ] ........................................... 26 B.

Vilven v Air Canada , 2009 FC 367 [ Vilven ] .................................................................. 33 C. Vilven v Air Canada , 2009 CHRT 24 [ Vilven Tribunal #2 ] ........................................... 50 D. Vilven v Air Canada , 2010 CHRT 27 [ Vilven Tribunal Damages ] ................................ 61 E. Air Canada Pilots Association v Kelly , 2011 FC 120 [ Kelly ] ......................................... 62 F. Kelly & Vilven v. Air Canada & ACPA , 2011 CHRT 10 [ Kelly Tribunal ] ..................... 69

G. Adamson v Air Canada , 2011 CHRT 11 [“ Adamson ” or “this matter”] ........................ 74 H. Air Canada Pilots Association v Kelly , 2012 FCA 209 [ Kelly FCA ] ............................. 75 III. ISSUES............................................................................................................................. 77 IV. ANALYSIS....................................................................................................................... 78 A. Standard of Review...................................................................................................... 78 B.

Section 15(1) (c) : Normal Age of Retirement................................................................ 86

(1) The Vilven Test....................................................................................................... 89

(2) The Tribunal’s Reasoning....................................................................................... 100

(3) Errors in the Tribunal’s Decision............................................................................ 101 (a). The Unreasonableness of the Elimination of Air Canada s Competitors ...................................................................................... 101 (b). The Failure to Conduct a Functional Analysis of the Positions ........................ 102 (c). The Failure to Conduct Contextual Analysis of the Vilven Reasoning .............................................................................................. 110 (d).

An Overlooked Reference to Explain the Meaning of “Both” .......................... 115 (e). An Implication that Vilven was Based on a Misapprehension of Evidence ....................................................................................................... 116 (f).. Too Limited a Comparator Group ................................................................... 121 (g). A Contextual

Interpretation of “Both” ............................................................. 123

(4) Conclusion on Normal Age of Retirement............................................................. 128 C. AIR CANADA’S DEFENCE OF A BONA FIDE OCCUPATIONAL REQUIREMENT......................................................................................................... 133 D. ACPA’S DEFENCE OF A BONA FIDE OCCUPATIONAL REQUIREMENT........................................................................................................ 162

(1) Introduction............................................................................................................ 162

(2) CHRA Provisions Regarding BFOR...................................................................... 170

(3) Section l5(1) (a) : Are Unions Entitled to Advance a BFOR Defence?.................. 171

(4) Is Section 15(2) Limited to Its Enumerated Hardship Factors?............................. 177 (a). Lack of Policy Rationale for the Imposition of Absolute Liability ..................... 188 (b). Avoidance of Absolute Liability ........................................................................ 193 (c). Expressio Unius Est Exclusio Alterius .............................................................. 200 (d). Exceptions to Human Rights Legislation should be Narrowly Construed ......................................................................................... 204 (

e) Parliamentary Intention .................................................................................... 209

(5) Modification of the Meiorin Test to Apply to Unions........................................... 216 (a). First Step - Piggyback on the Employer ........................................................... 221 (b). Second Step - Good Faith of the Union ............................................................ 224 (c). Third Step - Hardship ....................................................................................... 225 (d). Fourth Step - Weighing Hardship and the Nature of the Discrimination .................................................................................................. 226

(6) Applying the Modified Meiorin Test to ACPA..................................................... 228 (a). Step One - Rational Connection and Attempts to Accommodate ...................... 228

(b). Step Two - Good Faith of ACPA ...................................................................... 236 (c). Step Three - Hardship ...................................................................................... 238 ..... (

i) The Evidence on Undue Hardship to the Comparator Pilots ...................... 238 ..... (ii) The Tribunal’s Decision on Hardship ......................................................... 249 ..... (iii) Errors in the Tribunal’s Decision .............................................................. 253 1. Reduced Salary During the Make-up Period....................................... 253 2. Permanence of Lost Wages due to Deferral of Salary Until Age 60.............................................................................. 260 3.

The Windfall Earnings of the Complainants........................................ 267 4. The Infringement of the Comparator Pilots’ Employment Rights................................................................................................... 271 5.

The Impact of Pensions on Working to Age 63................................... 284 - The Increase in the Value of Pensions at Age 63 ............................... 288 - The NPV at Age 63 Net of Pension Benefits ....................................... 294 - Conclusion on Pension Evidence ....................................................... 307 (iv) Hardship Factors Other Than Costs .......................................................... 317 (

d) Fourth Step - Whether a Lower Standard May be Defended ............................ 325 (

i) A Nuanced Approach to Age Discrimination ............................................... 327 (ii) Adverse Differential Impact ........................................................................ 329 (

e) Conclusion and Directions on ACPA’s BFOR Defence ................................... 332 E. IS THE MANDATORY RETIREMENT PROVISION DISCRIMINATORY?................................................................................................ 335

(1) Introduction............................................................................................................ 335

(2) Scope of “Employment Opportunities” in

Section 10 of the CHRA ..................... 352

(3) Formalistic versus Substantive Prima Facie Discrimination.................................. 359

(4) Mandatory Retirement as an Essential Component of a Larger Ameliorative Benefits Scheme................................................................... 385 (

a) Differing Factors to Determine Discrimination ................................................ 385 (

b) The Ameliorative Purpose of the Mandatory Retirement Provision in the Collective Agreement .............................................................. 387 (

c) The Vilven Tribunal s Conclusion of “No Unfairness” ..................................... 395 (

d) Fairness Reconsidered Based on the Adverse Differential Impact .................... 403

(5) Perpetuation of Stereotypes, Prejudice or Disadvantage Against Older Workers. 406 (

a) Discriminatory Stereotypes of Older Workers ................................................... 406 (

b) The Impact of Retirement on Pilots ................................................................... 415 (

c) McKinney’s Rejection of Making Way for the Younger Worker ........................ 418

(6) Conclusions on Revisiting Whether the Age 60 Rule of Retirement is Discriminatory........................................................................................................ 429 V. DECISIONS ON THE APPLICATIONS OF THE COMPLAINANTS, AIR CANADA AND ACPA....................................................................................................................... 432 VI. COSTS............................................................................................................................... 435

I. INTRODUCTION [ 1 ] This is a judicial review of a decision of the Canadian Human Rights Tribunal (CHRT or “the Tribunal”), 2011 CHRT 11 . The complainants initiated a complaint pursuant to the Canadian Human Rights Act , RSC 1985, c H-6 [CHRA or the Act ] against Air Canada and the Air Canada Pilots Association [ACPA] (together “the respondents”), claiming an alleged discriminatory practice relating to age with respect to the mandatory retirement rule in their collective agreement.

A judicial review was also sought of a related further decision of the Tribunal, 2012 CHRT 9 , concerning an amended remedy pending an appeal to the Federal Court of Appeal; this has been dismissed. [ 2 ] The complainants are a group of individual applicants gathered into the “Fly Past 60 Coalition”. They are past members of ACPA employed by Air Canada, an organization which employs over 2,800 pilots in total.

Other similar cases of retired pilots may be waiting to be heard after this matter is disposed of. [ 3 ] The complainants allege that Air Canada and ACPA contravened sections 7 and 10 of the CHRA by requiring them to retire as each reached the age of 60 at various dates between 2005 and 2009, regardless of merit or ability to continue flying, none of which is denied. [ 4 ] Air Canada pilots are the best paid in Canada, with generous benefits and excellent working conditions, particularly as pilots gain seniority.

The benefits include a lucrative defined benefit pension awaiting them upon retirement, along with good job prospects to fly for other airlines after retiring on account of their training and experience. Accordingly, this case should be circumscribed to its facts of a mandatory retirement provision [MRP] in an area of scarce good jobs with relatively little financial hardship on retirement. [ 5 ] Since 1957, the Air Canada pension plan has stipulated that 60 is the compulsory age of retirement for pilots.

As of the early 1980's, provisions mandating retirement at age 60 were included as part of the collective agreement in force between Air Canada and its pilots' union. Since 1995, ACPA has been the union representing Air Canada pilots. Under the terms of the collective agreement and pension plan between Air Canada and ACPA, Air Canada pilots are required to retire on the first day of the month following their 60th birthday. [ 6 ] A relevant constraint is that Canada adheres to International Civil Aviation Organization (ICAO) standards.

Until March 2006, ICAO set a maximum age of 60 for a pilot in command and recommended, but did not require, that a co-pilot on an international flight not fly past his or her 60 th birthday.

In March 2006, coming into force in November 2006, ICAO set 65 as the maximum age for pilots and set as the standard that if one pilot was over 60, the other must be under 60. [ 7 ] In 2011 CHRT 11 , the Tribunal made an initial finding of prima facie discrimination, which was never in dispute due to legacy proceedings which will be described below, and the fact that the respondents did not contest it. [ 8 ] The Tribunal also rejected the Bona Fide Occupational Requirement ( BFOR) defences of Air Canada and ACPA.

Ultimately, however, the allegations of a discriminatory practice were not upheld because the Tribunal concluded that 60 was the “normal age of retirement” in the Canadian passenger airline industry, thereby denying liability pursuant to section 15(1) (

c) of the Act . [ 9 ] All three parties filed judicial review applications seeking to set aside that aspect of the Tribunal’s decision which was not in their favour. The complainants challenged the finding on normal age of retirement (Court file T-1428-11) while Air Canada and ACPA sought to set aside the Tribunal’s decision rejecting their BFOR defences (T-1453-11 and T-1463-11 respectively). [ 10 ] The Canadian Human Rights Commission (Commission) also applied for judicial review (T-1456-11, now discontinued),

seeking a determination of the constitutionality of section 15(1)(c). The Commission discontinued this application when the CHRTagreed to consider the question. [11] On April 18, 2012, the Tribunal issued 2012 CHRT 9, finding that section 15(1)(

c) violated the guarantee of equality insection 15(1) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act1982 (UK), 1982, c 11 [the Charter]. This reversed the previous outcome of the complaint, as Air Canada and ACPA no longer had avalid defence to the prima facie discrimination. Air Canada applied for judicial review of this new decision (T-971-12), as did ACPA (T-979-12). [12] However, shortly afterwards, on July 17, 2012, in Air Canada Pilots Association v Kelly, 2012 FCA 209 [“Kelly FCA”], theFederal Court of Appeal, considering a previous series of Tribunal and Federal Court decisions on the Air Canada mandatory retirementage of 60, upheld the constitutionality of section 15(1)(c).

Leave to appeal was denied by the Supreme Court in [2013] SCCA No 395(QL). The Tribunal’s decision in 2012 CHRT 9 is therefore no longer valid, and Court files T-971-12 and T-979-12 are dismissed. [13] In the reasons that follow, I allow the application of the complainants, setting aside the Tribunal’s decision on the normal ageof retirement of pilots at age 60. Conversely, I dismiss Air Canada’s application to set aside the Tribunal’s decision rejecting its BFORdefence.

Most significantly however, I allow ACPA’s application to set aside the Tribunal’s decision dismissing its BFOR defence and Isend the matter back for redetermination by the same panel. [14] I say significantly because my decision is based on an important distinction in the facts from those in the many similar casesthat have preceded this one.

In the present case, ACPA based its hardship argument on new evidence demonstrating an adversedifferential financial impact affecting its younger members in the event of the elimination of the age 60 rule in the collective agreement.The Tribunal nevertheless dismissed ACPA’s application, finding that ACPA’s evidence on hardship presented a “close call”. [15] In this regard, I conclude that the Tribunal failed to properly justify its decision in a transparent fashion.

By that I mean theTribunal omitted to consider important aspects of the evidence that demonstrated a significant adverse financial impact on youngerpilots. Most importantly, it mischaracterized the impact of extending the pilots’ careers as a matter of delaying retirement, withoutconsidering ACPA’s submission that the pilots would be working an additional three years to achieve the net total revenues situationportrayed at age 63.

In the case of the younger pilots, this would mean working for highly reduced effective rates of pay or even for freeduring those three years. [16] However, it was not a straightforward matter to set aside the Tribunal’s decision concerning ACPA’s application and simplysend it back for reconsideration on the hardship issue.

Before dismissing the hardship claims, the Tribunal had already concluded thatACPA’s application would fail, because as a union, it did not meet the requirements of steps one and two of the test in British Columbia(Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union (BCGSEU) (MeiorinGrievance), (SCC), [1999] 3 SCR 3, [1999] SCJ No 46 (QL) [Meiorin] at para 54.

The Tribunal’s hardship analysiswas carried out as a matter of “prudence”, most likely to demonstrate to ACPA that its application was dismissed on substantive grounds. [17] Accordingly, setting aside the Tribunal’s ruling on ACPA’s BFOR defence required surmounting a number of preliminaryobstacles and reconsidering previous jurisprudence touching on these issues.

For this purpose, I first concluded that in accordance withthe Supreme Court decision in Central Okanagan School District v Renaud, (SCC), [1992] 2 SCR 970, [1992] SCJ No75 (QL) [Renaud], the Meiorin test could be modified to avoid imposing absolute liability on ACPA. The Meiorin BFOR test wastherefore amended to reflect ACPA’s joint liability with Air Canada.

I also added a fourth step to the Meiorin test, as appeared to be theSupreme Court’s direction in Renaud, requiring weighing the importance of preventing the discriminatory practice in allowing a defenceof hardship. [18] As an adjunct to the proscription in Renaud against imposing absolute liability, and for other reasons, I also respectfullydisagreed with this Court’s previous decision in Vilven v Air Canada, 2009 FC 367, [Vilven] that held that the categories of hardshipshould be confined to those expressly enumerated in section 15(2) of the CHRA, being factors of safety, health and costs. [19] In addition, although this issue was not raised by the respondents, I concluded that the new evidence on adverse differentialimpact required a fresh consideration of whether the MRP was substantively discriminatory.

This consideration was premised oncomments of the Supreme Court in Law v Canada (Minister of Employment and Immigration), (SCC), [1999] 1 SCR497, [1999] SCJ No 12 (QL) [Law] and Withler v Canada (Attorney General), 2011 SCC 12, [2011] SCJ No 12 (QL) [Withler] thattogether allow for a suggestion that the mandatory retirement rule should be seen as serving an ameliorative purpose to provide for thebeneficial age-based equal distribution of benefits among ACPA’s members, as opposed to serving to perpetuate stereotypes and

prejudice. [20] Where the introduction of adverse differential impact evidence appears capable of affecting conclusions on bothdiscrimination and hardship issues, it does not make sense in a redetermination to consider only one of the issues, and not the other. [21] In a similar vein, I queried whether in the 21st century it remains realistic to argue that there exist widespread attitudinalstereotypes and prejudice that disadvantage older workers in the workplaces.

Accordingly, my direction to the Tribunal includesinstructions permitting the introduction of evidence with the view to reconsider past judicial notice conclusions of the Supreme Court,principally from McKinney v University of Guelph, (SCC), [1990] 3 SCR 229, [1990] SCJ No 122 (QL) [McKinney],relied on in Vilven to support the Tribunal’s finding that the retirement rule perpetuated stereotypes and prejudice against older workers. [22] This direction is based on the comments of LeBel J. in Québec (AG) v A, 2013 SCC 5, [2013] SCJ No 5 (QL) [Québec v A] atpara 154 that “the court can take judicial notice of certain facts or matters but must be careful not to use judicial notice to recognize socialphenomena that may not truly exist.” [23] My reasons in support of the foregoing rulings and directions follow below.

II. JUDICIAL HISTORY [24] In order to provide context for these issues, it is necessary to understand the lengthy procedures which have preceded thepresent review hearing. The numerous tribunal and court rulings result from different issues being decided at different steps in thejudicial history, giving rise to further additional issues as decisions of the Tribunal were set aside and new issues set out forconsideration.

Unfortunately, this pattern of overturning the Tribunal’s decision and sending the matter back for redetermination ondifferent issues does not end with this case. [25] Several aspects of the case currently before me are legacy issues from a previous series of challenges to Air Canada’smandatory retirement provision, those being the Vilven and Kelly cases described in the following sections. A. Vilven v Air Canada, 2007 CHRT 36 [Vilven Tribunal #1] [26] Two issues were decided by the Tribunal in this matter. First, it concluded that the normal age of retirement of airline pilots incomparator airlines was age 60.

This finding resulted in a dismissal of the complaints on the basis that the MRP in the collectiveagreement was saved by section 15(1)(

c) of the CHRA, which provides that it is not a discriminatory practice if termination results“because that individual has reached the normal age of retirement for employees working in positions similar to the position of thatindividual”. Second, the Tribunal determined that para 15(1)(

c) did not infringe section 15(1) of the Charter. Both decisions wereoverturned by the Federal Court. [27] The basic facts were similar to those in the present case. Two retired pilots, George Vilven and Robert Neil Kelly,complained of age discrimination to the CHRC in 2007. Mr. Vilven had been employed from May 26, 1986 until the day after he turned60 on August 30, 2003; Mr. Kelly had been employed from September 11, 1972 until the day after he turned 60 on April 30, 2005. [28] Mr.

Vilven had risen to the position of First Officer on an A340 aircraft based in Vancouver, after which he chose not tobecome a pilot in command but instead used his seniority to remain on that aircraft type and in Vancouver near his family. Upon retiringfrom Air Canada, he was entitled to a pension of $6,094.04 per month until the age of 65 and $5,534.33 thereafter. He pursued his flyingcareer with a smaller airline. Mr. Kelly had risen to the position of pilot in command on an A340. He was entitled to a pension of$10,233.96 per month until the age of 65 and $9,477.56 thereafter.

He too pursued his flying career with smaller airlines after leavingAir Canada. [29] The complainants established a prima facie case of discrimination against Air Canada under sections 7 (refusing to continue toemploy an individual on the basis of age, a prohibited ground of discrimination) and 9 (depriving individuals of employmentopportunities on a prohibited ground) of the CHRA. A similar finding was made against ACPA under

section 10(b) (an employeeorganization entering into an agreement that deprives individuals of employment opportunities on a prohibited ground).

[ 30 ] The Tribunal determined that the proper comparator group by which to establish the normal age of retirement in the airline industry was “pilots who fly with regularly scheduled international flights with a major international airline.” The parties produced a joint statement of facts listing 22 major international comparator airlines of which only six were Canadian. For those major international airlines for which complete data was available, 80% of pilot positions had required mandatory retirement at age 60 or younger in 2003, and the Tribunal concluded that this remained the case in 2005.

Thus, age 60 was held to be the mandatory age of retirement for the majority of positions similar to those of the complainants. [ 31 ] The Tribunal further found that section 15(1) (

c) of the CHRA did not contravene section 15(1) of the Charter . In doing so, it applied Law , in which the Supreme Court had stated that the overriding concern was to protect and promote human dignity. It concluded that to continue an arrangement which constituted prima facie age discrimination based on a justification of section 15(1)(

c) of the CHRA did not have a negative impact on the complainants’ dignity, in the context of a system which was designed to allocate/spread the responsibilities and benefits of being an Air Canada pilot over different stages in pilots’ careers. [ 32 ] Because of its finding on the

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

c) of the CHRA could be justified under

section 1 of the Charter , nor whether the mandatory retirement policy was a BFOR under sections 15(1) (

a) and 15(2) of the CHRA. B. Vilven v Air Canada , 2009 FC 367 [ Vilven ] [ 33 ] Messrs. Vilven and Kelly applied for judicial review of the Tribunal’s two decisions referred to above. With respect to the normal age of retirement issue, Justice Mactavish rejected the Tribunal’s test for determining the comparator airlines.

She concluded that it erred by focusing on the subjective perceptions of pilot positions such as status or prestige, when the characteristics of comparator airlines should have been based on the objective duties and functional responsibilities of the position in question, that is “what pilots actually do”. [ 34 ] Rather than setting aside the decision, however, since the factual foundation was based upon the Agreed Statement of Facts describing the major international airlines, she concluded that the five Canadian airlines on that list should constitute the comparator airlines for the purpose of determining normal age of retirement.

On the basis of those airlines, as well as Air Canada, the Court upheld the Tribunal’s decision that 60 was the normal age of retirement for individuals employed in positions similar to those occupied by Messrs. Vilven and Kelly prior to their retirement. [ 35 ] A series of decisions on the constitutionality of section 15(1)(

c) followed, but ultimately the provision was found not to infringe the Charter . Accordingly, Justice Mactavish’s decision on the normal age of retirement resulted in the dismissal of the Vilven and Kelly complaints. Its legacy in the present matter relates to the

interpretation of her test to determine comparator airlines, which formed the basis of the Tribunal’s decision in this matter in favour of Air Canada. Ultimately, I set aside the Tribunal decision for not having properly applied Justice Mactavish’s test [ 36 ] Justice Mactavish thereafter reviewed the Tribunal’s decision that section 15(1) (

c) did not infringe the Charter . The Tribunal had considered McKinney , Gosselin v Quebec (AG) , 2002 SCC 84 , [2002] 4 SCR 429 [ Gosselin ] and subsequent jurisprudence. It reached the conclusion that the loss of the opportunity to challenge the MRP had not violated the dignity of the complainants nor failed to recognize them as full and equal members of society. [ 37 ] Turning to the constitutional question, Justice Mactavish asked whether section 15(1) (

c) of the CHRA violated section 15(1) of the Charter . She reviewed the Supreme Court jurisprudence on mandatory retirement, including the Law case and R v Kapp , 2008 SCC 41 , [2008] 2 SCR 483 [ Kapp ] , as well as the Tribunal’s decision on the issue. She commented that the focus of section 15(1) of the Charter was on preventing governments from making distinctions based on enumerated or analogous grounds which had the effect of perpetuating group disadvantages and prejudice or which imposed disadvantages on the basis of stereotyping.

For there to be discrimination, there first had to be a distinction, and then that distinction had to be shown to create a disadvantage. She took note of the Supreme Court’s recognition that “human dignity,” as an abstract and subjective notion, posed difficulties as a test, and that the perpetuation of disadvantage or stereotyping was a preferable test. [ 38 ] She noted that the objective of section 15(1) (

c) of the CHRA had previously been described as allowing for the continuation of a socially desirable employment regime, which included pensions, job security, wages, and benefits. It was intended to create an exception to the quasi-constitutional rights otherwise provided by the Act .

[ 39 ] Examining section 15(1)( c ), she found that by exempting mandatory retirement from conduct which would otherwise amount to prima facie age discrimination, it created a distinction based on an enumerated ground. She noted that the relevant comparison was between older workers having exceeded the normal age of retirement for their positions and younger workers in similar positions who had not yet reached that age.

The effect of the provision was to deny the older workers the equal protection and benefit of the CHRA . [ 40 ] She then considered whether this distinction created a disadvantage by perpetuating prejudice or stereotyping. Air Canada had argued, citing Gosselin , that age-based distinctions are a common way of ordering our society and do not automatically evoke a pre- existing disadvantage. Justice Mactavish commented that this was based on comments made by the Supreme Court in a case involving a statutory age-based distinction that had an adverse differential effect on younger individuals, and that age-based

section 15 claims were typically brought by older people, who were presumed to lack abilities which they might in fact possess. [ 41 ] The Tribunal found that Messrs. Vilven and Kelly were members of a group identified as older workers, a group the Supreme Court had repeatedly recognized as suffering from pre-existing disadvantages and stereotyping.

In addition to its comments in Gosselin and Law , the Supreme Court referred in McKinney to “the stereotype of older persons as unproductive, inefficient, and lacking in competence.” By denying the benefit of, in that case, the Ontario provincial Human Rights Code , RSO 1990, c H.19, to older workers, the effect was to reinforce “the stereotype that older employees are no longer useful members of the labour force and their services may therefore be freely and arbitrarily dispensed with.” [ 42 ] As discussed below, when raising the issue as to whether the differential adverse impact evidence not before Justice Mactavish should give rise to an issue of whether the MRP is discriminatory, I query the validity of a widespread negative stereotype against older workers in our present society. [ 43 ] In the cases of Messrs.

Vilven and Kelly, the Tribunal accepted this general proposition, but found that there was no indication that either complainant had personally experienced such age-related disadvantages or stereotypes. Justice Mactavish observed that first, to the extent that the analysis was of the group to which the claimants belonged – older workers – it was clear that there was pre-existing disadvantage, vulnerability, stereotyping, or prejudice. Second, although there was no concern with the individual abilities of Messrs.

Vilven and Kelly, they were nonetheless disadvantaged by being forced to leave positions that they clearly loved, merely because they had reached the age of 60. She was satisfied that this had the effect of perpetuating a group disadvantage, suggesting that the MRP violated section 15(1) of the Charter . [ 44 ] She examined whether the provision had an ameliorative purpose or effect which could save it. Air Canada had argued that it had the effect of freeing up positions for younger workers.

However, Justice Mactavish found that there had been no suggestion that younger workers constituted a disadvantaged group which was being targeted by the CHRA . [ 45 ] As for whether the MRP is discriminatory as opposed to the constitutionality of section 15(1)( c ), to the extent that there is overlapping of relevant considerations, I conclude that there is an important distinction between the factual foundation in the matter that was before Justice Mactavish and the current matter.

Based on the evidentiary record which was placed before me, I find that the increase in the retirement age to 63 would result in a significant adverse differential impact on younger pilots. [ 46 ] In Vilven , Justice Mactavish pointed out that the Supreme Court had stated in McKinney that legislation that had as its objective the forcible retirement of older workers in order to make way for younger workers would be in itself discriminatory, since it would assume that the continued employment of some individuals was less important and of less value to society, than the employment of other individuals, based solely on age. [ 47 ] In the case of Messrs.

Vilven and Kelly, the interest at stake was the ability to continue to work in the career of their choice. The importance of this could not be overstated, commented Justice Mactavish. She concluded that section 15(1) (

c) of the Act violated section 15(1) of the Charter , by denying the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. [ 48 ] Consequently, she quashed the Tribunal's decision as it related to the Charter , and remitted the matter to the Tribunal for determination of whether section 15(1) (

c) of the Act could be demonstrably justified as a reasonable limit in a free and democratic society under

section 1 of the Charter .

[49] In the event that the Tribunal determined that section 15(1)(

c) of the CHRA was not saved under

section 1 of the Charter, shedirected that it address the issue of whether the age 60 retirement rule was a BFOR for Air Canada within the meaning of section 15(1)(

a) of the CHRA. C. Vilven v Air Canada, 2009 CHRT 24 [Vilven Tribunal #2] [50] As a result of the Federal Court decision in Vilven, two further issues were remitted to the Tribunal for determination: whethersection 15(1)(

c) of the CHRA could be justified under

section 1 of the Charter and whether Air Canada and ACPA had established aBFOR for mandatory pilot retirement at age 60. [51] In assessing whether section 15(1)(

c) of the CHRA was saved under

section 1 of the Charter, the Tribunal applied the testarticulated by the Supreme Court in R v Oakes, (SCC), [1986] 1 SCR 103, [1986] SCJ No 7 (QL) [Oakes]. It concludedthat section 15(1)(

c) of the CHRA could not be justified under any of the elements of the test. [52] It was thus necessary for the Tribunal to consider whether Air Canada and ACPA had demonstrated that mandatory retirementat age 60 constituted a BFOR for Air Canada pilots. [53] In answering this question, the Tribunal applied the Meiorin test established by the Supreme Court. [54] According to the Tribunal, neither Messrs.

Vilven and Kelly nor the Commission disputed that the first two components ofthe Meiorin test had been satisfied (that the MRP be rationally connected to the performance of the job and good faith adoption of theprovision). This finding was later disputed before the Federal Court. In any event, the Tribunal only considered what it saw as the "realissue": whether Messrs.

Vilven and Kelly could be accommodated without causing undue hardship to Air Canada and/or ACPA. [55] In analyzing undue hardship, the Supreme Court indicated in Meiorin that the factors of health, safety, and costs listed atsubsection 15(2) of the CHRA were not entrenched unless expressly included or excluded by a statute being considered.

Further supportfor the non-exhaustive nature of this list could be found in McGill University Health Centre v Syndicat des employés de l’Hôpitalgénéral de Montréal, 2007 SCC 4, [2007] 1 SCR 161, where the Supreme Court emphasized that the factors which would support afinding of undue hardship were to be applied with flexibility and common sense. [56] In the case before the Tribunal, Air Canada argued that the ICAO standards caused undue hardship – that it would haveimposed major financial burdens and disruption to operations to accommodate captains over the age of 60 under the pre-November 2006rules, which banned them from flying internationally.

The Tribunal considered the submissions as to the hardship resulting from thedifficulty of scheduling pilots over 60.

After examining the evidence the Tribunal found that Air Canada had not established that theretirement of Air Canada pilots at age 60 caused hardship and dismissed its BFOR defence. [57] ACPA, in a different situation as a union and not an employer, argued that the hardship from its point of view, as in Renaud,was whether there would be prejudice to its members if the accommodation measures were adopted. [58] ACPA submitted that removal of the MRP would limit the number of positions available to pilots under 60, dilute theirseniority, interfere with their ability to plan for retirement in terms of timing and pension, and have a negative effect on morale.

It alsoclaimed that the difference in salary which would result from younger pilots being blocked from moving up would be measured in thetens of thousands of dollars.

It offered expert opinion evidence to the effect that three to ten percent of pilots could be expected to worklonger if allowed to, and that assuming they worked for an average of three extra years each, this would delay promotion for youngerpilots by one to four months. [59] The Tribunal found that a delay in career progression and salary increases for younger employees was not a substantialinterference with their rights, and that it was not more important to make way for younger workers than to continue the employment ofolder workers.

In this regard it concluded that “It is not as ACPA stated, that the over 60 pilots would be taking money out of theyounger workers' pockets if the age 60 rule was removed.” Rather, the younger pilots would take longer to achieve the salary increasesthat they desired.

It also found that “Offset against the delay in career progression would be the fact that the younger pilots would havethe freedom - when they reached age 60 - to work as long as they needed or wished to work.” [60] The Tribunal also rejected the proposition that younger pilots would not be able to enjoy the benefits of the seniority system ifthe older pilots were not forced to retire, as not having been established on the evidence and as being inconsistent with the human rights

principle stated in Renaud. Insisting that the absolute preservation of a younger pilot’s seniority took precedence over the continuedemployment of older colleagues was a purely age-based and therefore arbitrary judgment about the relative worth to society of the workperformed by each age group, and the relative importance to the individual of being employed. It concluded that ACPA had also notestablished that the retirement of Air Canada pilots at age 60 constituted a BFOR. D.

Vilven v Air Canada, 2010 CHRT 27 [Vilven Tribunal Damages] [61] In this decision, the CHRT found that the appropriate way to remedy the discrimination against Messrs. Vilven and Kelly wasto order their reinstatement as pilots with Air Canada. This involved “unwinding” the previous pension transactions; the two successfulcomplainants were to repay the pension payments they had received and remit the pension contributions they would have made. E. Air Canada Pilots Association v Kelly, 2011 FC 120 [Kelly] [62] Air Canada and ACPA both applied for judicial review of Vilven Tribunal #2, concluding that

section 1 of the Charter did notjustify section 15(1)(

c) of the CHRA. Justice Mactavish dismissed their applications, which – until this was reversed by the Court ofAppeal - foreclosed any argument regarding the normal age of retirement issue. Ultimately, however, by the Court of Appeal’s decisionin Air Canada Pilots’ Association v Kelly, 2012 FCA 209, the complainants’ case was dismissed on this issue based upon JusticeMactavish’s conclusions in Vilven on normal age of retirement. [63] With respect to the BFOR issue, only Air Canada sought judicial review of the Tribunal’s decision.

It again argued thehardship imposed by the ICAO standards governing international flights. [64] As for the scope of the undue hardship factors with regard to accommodation, Justice Mactavish rejected the Tribunal’sdetermination that it could look at factors other than health, safety, and cost.

Air Canada had argued that elimination of the MRP wouldinterfere with employee morale, and that this was an eligible factor for consideration. [65] Justice Mactavish analyzed section 15(2) in light of both the interpretive principle of expressio unius est exclusio alterius (toexpress one thing is to exclude another) and the principle that defences within human rights statutes should be interpreted narrowly.

Sheconcluded that the express inclusion of three specific factors was to be construed as limiting consideration to those three factors. [66] She also found that as human rights legislation is “the final refuge of the disadvantaged and the disenfranchised” and “the lastprotection of the most vulnerable members of society” (Zurich Insurance Co v Ontario (Human Rights Commission), (SCC), [1992] 2 SCR 321, [1992] SCJ No 63 (QL) [Zurich] at para 18), only matters of a sufficient gravity as to have a demonstrableimpact on the operations of an employer in a way that related to health, safety, or cost should be taken into account as defences.

Inaddition, she imputed knowledge to Parliament of decisions by the Supreme Court which provided unlimited scope to hardship factors asdemonstrating the legislative intent to narrow these to the factors expressly referred to in the provision. As I respectfully disagree withthis

interpretation of section 15(2), these and other considerations will be reviewed below. [67] Justice Mactavish set aside the Tribunal’s decision dismissing Air Canada’s BFOR defence.

She found that it had failed toaddress significant evidence on hardship as it pertained to the impact on scheduling of retaining pilots older than the ICAO standardspermitted on international flights which meant that this element of its decision lacked the transparency and accountability required of areasonable decision. [68] She also found that, contrary to the Tribunal’s view, no concession had been made on steps one and two of the Meiorin test,and sent that issue back for reconsideration. F.

Kelly & Vilven v Air Canada & ACPA, 2011 CHRT 10 [Kelly Tribunal] [69] By the direction of the Federal Court in Kelly, the Tribunal was required to consider first whether Air Canada had met the firsttwo steps of the Meiorin test and second, whether it had demonstrated hardship for the period after 2006 due to scheduling complicationscaused by the elimination of the MRP and costs associated with those complications. [70] The Tribunal noted that the first and second steps of the Meiorin test require an assessment of the legitimacy of the standard'sgeneral purpose, and the employer's intent in adopting it.

This was to ensure that, when viewed both objectively and subjectively, thestandard does not have a discriminatory foundation.

[ 71 ] The CHRT found that for decades Air Canada had engaged in a legitimate and meaningful bargaining process with the pilots’ union that resulted in an enduring collective agreement which enshrined seniority and provided for mandatory retirement at age 60 with a generous pension. As a result, Air Canada had been able to effectively manage the introduction of new pilots to replace a predictable number of retiring pilots. Assessing this situation both subjectively and objectively, the Tribunal concluded on a balance of probabilities that the MRP did not have a discriminatory foundation.

In this matter, the complainants in the current proceedings argue that Air Canada did not consider measures that could have been implemented to accommodate the retiring pilots, allowing them to fly without causing undue hardship, an argument I reject as not being feasible in the circumstances. [ 72 ] The Tribunal, in what I would describe as an abridged analysis, also found that Air Canada had proved that it would suffer undue hardship in accommodating the complainants due to the restrictions of the ICAO over/under rule.

It concluded that abolishing mandatory retirement would have negative consequences for Air Canada by significantly increasing operational costs and inefficiency in the scheduling of pilots and, to a lesser extent, causing negative ramifications for the pilots’ pension plan and the collective bargaining agreement, by affecting the rule of seniority.

In this regard, it would appear that the Tribunal ignored the direction in Kelly limiting hardship to the factors in section 15(2) . [ 73 ] In the matter before me, it should be noted that the Tribunal came to a different conclusion, rejecting Air Canada’s BFOR defence. I dismiss Air Canada’s application seeking to set aside this later Tribunal decision for the reasons described below. G. Adamson v Air Canada , 2011 CHRT 11 [“ Adamson ” or “this matter”] [ 74 ] This is the matter with which I am seized. A detailed analysis follows below.

There are two legacy issues arising out of the previous decisions, but now grounded in new evidence: from Vilven , the normal age of retirement defence raised by Air Canada; and from Kelly , the BFOR defences raised by Air Canada and ACPA. H. Air Canada Pilots Association v Kelly , 2012 FCA 209 [ Kelly FCA ] [ 75 ] As already mentioned, the Federal Court of Appeal overturned the decision in Kelly that rejected Air Canada and ACPA’s argument that section 15(1) (

c) of the CHRA could be justified pursuant to

section 1 of the Charter . The Court found that this question had been decided by the Supreme Court in McKinney and that both the Tribunal and the Federal Court had erred in concluding that they were not required to follow that precedent.

It therefore returned the matter to the Tribunal with the direction to dismiss the complaints. [ 76 ] Upon refusal of leave to appeal, the Vilven proceeding was brought to end as ratified in Vilven v Air Canada , 2013 FC 368 , which dismissed the appeal from the Kelly Tribunal decision ( 2011 CHRT 10 ), concluding that “the central legal question [was] fully determined by the decision of the Court of Appeal”. III. ISSUES [ 77 ] The issues in this matter are: a. The appropriate standard of review; b. With respect to determining the normal age of retirement pursuant to section 15(1) (

c) of the Act , did the Tribunal err in its

interpretation of the test applied to determine the comparator airlines which had employees working in positions similar to the positions of Air Canada pilots? c. Did the Tribunal err in deciding that Air Canada was not entitled to advance a BFOR defence under sections 15(1) (

a) and 15(2) of the Act ? d. Did the Tribunal err in deciding that ACPA was not entitled to advance a BFOR defence under sections 15(1) (

a) and 15(2) of the Act , with specific reference to the following issues: i. Whether the defence under section 15(1) (

a) applies to ACPA as an employee organization? ii. Whether section 15(2) is limited to the hardship factors of health, safety and cost? iii. Whether ACPA is barred by the CHRA from justifying the rule of retirement at age 60 in the collective agreement by demonstrating hardship in accommodating the change to the rule and if not, whether the Tribunal should apply a modified application of the test in Meiorin in relation to the principles in Renaud ?

iv. Whether the Tribunal erred in its finding that no undue hardship to ACPA would arise from the elimination of compulsory retirement at age 60? e. Did the Tribunal err in finding that the rule in the collective agreement imposing retirement at age 60 was discriminatory? IV. ANALYSIS A. Standard of Review [ 78 ] As the Supreme Court noted at para 54 of Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ], the deferential standard of reasonableness will normally be called for where a Tribunal is interpreting its own statute or statutes closely connected to its function.

However, t here are broader questions of law at play in this matter which are of "central importance to the legal system ... and outside the ... specialized area of expertise", as described in Dunsmuir at para 60 . [ 79 ] The standard of review is correctness for the legal questions of whether unions are entitled to advance a BFOR defence under section 15(1)(

a) and the scope of the hardship factors in section 15(2) of the CHRA . Because another judge of the Federal Court has made rulings on aspects of the BFOR and hardship issues, these issues must be reviewed on a correctness standard.

T he question of the modification of the Meiorin test as applied to unions has not previously been decided, nor has the requirement to establish substantive discrimination as an element of the term “discriminatory practice” under the CHRA. [ 80 ] The standard of review for the CHRT’s application of the direction from Vilven and its application of the comparator group test is reasonableness. Reasonableness is also the standard of review for the CHRT’s overall decision in light of the pension evidence available to it.

As the Supreme Court explained in Dunsmuir at para 47 , “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [ 81 ] Justification, transparency and intelligibility all share the purpose of providing a reasonable explanation for the basis of a decision, without which it lacks legitimacy . [ 82 ] Something is justified when the components of the explanation line up logically to establish the conclusion. Something is intelligible when the explanation is understandable, such that the justification can be discerned from the reasons.

Transparency is really a subset of both justification and intelligibility. A failure of transparency is most often a failure to consider properly a significant outlier issue or fact that stands in the way of a logical and understandable explanation. The substantial failure to meet any of the three requirements is normally fatal to the decision. [ 83 ] Correctness applies where there is not a range of acceptable answers, but only a single right one.

The Supreme Court explained in Dunsmuir at para 50 that in such cases a reviewing court “ will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer.

From the outset, the court must ask whether the Tribunal's decision was correct.” [ 84 ] As well, for this matter it is important to distinguish between reweighing the evidence and not considering factors or conclusions that flow from undisputed facts based on the evidence. Weighing evidence has to do with “believability”. It relates to the credibility and reliability of the evidence in proving a probative relevant conclusion of some kind.

Weighing of evidence is for the ultimate determination of the trier of fact, and not the trier of law. [ 85 ] However, a court conducting judicial review may interfere if it concludes that a decision maker has mischaracterized or failed to consider a significant factor or conclusion that is logically or patently obvious from undisputed facts. Suresh v Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 SCR 3 supports this proposition at para 37 as follows: 37 The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context.

It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors : see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.) ; Re Sheehan and Criminal Injuries Compensation Board (1974),

(ON CA), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Government of Canada, (SCC),[1982] 2 S.C.R. 2; Dagg, supra at paras. 111-12, per La Forest J. (dissenting on other grounds). [Emphasis added] B. Section 15(1)(c): Normal Age of Retirement [86] Section 15(1)(

c) has now been repealed. It read as follows when in force: 15.

(1) It is not a discriminatory practiceif [. . .] (

c) an individual’s employment isterminated because that individual hasreached the normal age of retirement foremployees working in positions similarto the position of that individual; 15.

(1) Ne constituent pas des actesdiscriminatoires: [. . .]

c) le fait de mettre fin à l’emploi d’unepersonne en appliquant la règle de l’âgede la retraite en vigueur pour ce genred’emploi; [87] As described above, the defence based on section 15(1)(

c) of the CHRA was successfully relied upon in Vilven as a defence tothe complaints. Although section 15(1)(

c) has now been repealed, it continues to govern these proceedings as it was in force during thelife of the collective agreement and at the time the complaints were initiated. The provision also survived a constitutional challenge whenupheld by the Federal Court of Appeal. [88] The proper characterization of the test developed in Vilven (“the Vilven test”) to determine the comparator pilots was thecentral issue before the Tribunal in this matter. I am, of course, not bound to apply the Vilven test were I to conclude that it would beinappropriate to do so.

However, I agree that Vilven described the appropriate test, if correctly characterized, which is what this issueturns on. As I have indicated, I am in agreement with the complainants’ characterization of the test and in that guise adopt it as theappropriate test to determine the comparator pilots in this matter.

(1) The Vilven Test [89] The principal purpose of the Vilven test was to determine which airlines (“the Comparator Airlines”) had positions similar tothose of the pilots in Air Canada. The methodology settled upon was described as “statistical”, but in reality it was based on very simplemathematics. The pilots of the Comparator Airlines are added to those of Air Canada, the total which serves as the denominator. Fromthis total, the pilots of the airlines with a mandatory retirement age of 60 are added up to constitute the numerator. If the numerator ismore than 50% of the denominator, then 60 is the normal age of retirement and the defence under section 15(1)(

c) applies. [90] Thus, the case turns on who the Comparator Airlines are. If there are fewer of them, Air Canada wins by its dominance of theindustry. If there are many of them, the complainants would appear to succeed because most other airlines use a retirement age of 65,and combined they outweigh Air Canada and the few other airlines which have an age 60 retirement provision. [91] In her ruling, Justice Mactavish rejected the Tribunal’s conclusion that international airlines could be used as the ComparatorAirlines.

Instead, she substituted a test comprising Canadian airlines possessing a list of attributes that she described in paras 111 and112, that are relied upon by the respondents, and then again in a slightly different version in para 170. These two reiterations of the listcan be interpreted differently. The respondents rely upon the first version, at paras 111-112, while the complainants rely upon thesecond version, at para 170, and they also interpret them differently. The two versions are as follows: In the first description;

[111] 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. [112]… 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. [Emphasis added] Versus the second description; [170] However, as was explained earlier, 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 and types to domestic and international destinations through Canadian and foreign airspace that form the proper comparator group. [ 92 ] All of the above formulations of the Vilven test contain the same four determinative attributes of what Canadian airline pilots do, i.e. flying aircraft of (1) various sizes and (2) various types to (3) domestic destinations and (4) international destinations.

The difference in the positions of the parties and the outcome in determining the comparator pilots is whether these factors should be applied conjunctively, based in large part on the inclusion of the word “both” in paragraphs 111 and 112 above, or disjunctively as argued by the complainants. [ 93 ] The distinction is significant inasmuch as the conjunctive formulation will exclude airlines which do not exhibit all of the factors in the Court's test.

Conversely, treating the factors disjunctively includes the pilots of any airline exhibiting any single characteristic from the list of attributes described by Justice Mactavish. [ 94 ] In applying the test in Vilven the Court was limited to evidence on comparator airlines contained in an Agreed Statement of Facts. Because the parties appeared to have agreed that the Comparator Airlines comprised major airlines that flew internationally, the evidence comprised 22 airlines only six of which were Canadian which flew to international destinations.

The Canadian airlines included the four major competitors at that time, WestJet, Transat Air, Skyservice, and CanJet, which along with Air Canada and its former subsidiary Jazz Air constituted the totality of Canadian airlines found by Justice Mactavish to have similar pilot positions. On the basis of this group of airlines dominated by Air Canada and Jazz, the majority normal age of retirement of pilots in Canadian airlines was age 60. [ 95 ] There is no Agreed Statement of Facts before the Tribunal in the present matter.

Instead, the parties introduced evidence on 38 airlines, the pilots of which it could be argued did what Air Canada pilots do based on the attributes described in the Vilven test. [ 96 ] In determining the Comparator Airlines, the Tribunal adopted Air Canada’s conjunctive

interpretation of the Vilven test as implicitly described in paragraph 55 of its decision and demonstrated in the application of the test to eliminate airlines from the list of those exhibiting one or more of the attributes described by Justice Mactavish. 55 Last but certainly not least, Captain Prentice has constructed his own formula as to what criteria should be used to determine the comparator group . He includes only two of the five criteria enunciated by the Court.

I have decided that all five should be used to determine the comparator . [Emphasis added] [ 97 ] Of the total number of airlines on which evidence was introduced before the Tribunal, only eleven smaller airlines, in addition to Jazz Air, met the conjunctive Vilven test. As mentioned, due to the numerical dominance of Air Canada and its former subsidiary Jazz Air, pilots with a retirement policy of age 60 were found to make up the majority of pilots, i.e. 56% of all pilots of Comparator Airlines.

[ 98 ] I find it significant that the application of the conjunctive test had the effect of eliminating Air Canada's 10 closest major competitors.

Of the comparator airlines considered in Vilven , Transat Air, Skyservice and CanJet were struck from the list because they do not fly domestically, while WestJet was not included because it only flew one type of jet, although in a variety of sizes. [ 99 ] An outcome that eliminates Air Canada’s major competitors on a test meant to compare airlines based on the similarity of their pilots’ functions and duties is patently unreasonable and results from the application of wrong principles.

I will now turn to an explanation of the Tribunal’s failure to apply proper principles, which led to the unacceptable outcome which I determine must be set aside despite the deference owed the decision-maker.

(2) The Tribunal’s Reasoning [ 100 ] The Tribunal sought to apply what it considered to be the essence of the directions of the Federal Court decision in Vilven #1 . For purposes of completeness and as an aid to my analysis, I set out the full Tribunal reasoning in paragraphs 6 to 12 and 20 to 25 of its decision, marked with my emphasis at significant passages: 6 The Court stated that s. 15(1)(

c) requires two questions to be answered. First, "what is the proper comparator group to identify the positions that are similar to that occupied by Air Canada and secondly, what is the normal age of retirement". 7 And when assessing whether a position is "similar" to that occupied by the complainants, the focus should be on the objective duties and functional responsibilities of the position in question.

That is, what do Air Canada pilots actually do? 8 For the Federal Court, " 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 international airspace", (para. 111). 9 Thus the appropriate comparator group for the complainants should be " pilots working for Canadian airlines who fly aircraft of varying sizes and types to both domestic and international destinations, through Canadian and international airspace ", (para.112) ("Test"). 10 The Court reiterated the Test later in paragraph 125 of its decision where it said, " 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 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 CHRA ." 11 The Court observed that, as of the date of the Agreed Statement of Facts that the parties submitted to the Vilven tribunal, there were five airlines in Canada, apart from Air Canada, that transported passengers to domestic and international destinations. They were Jazz, Air Transat, CanJet, Skyservice and WestJet.

However, there is nothing in this observation that suggests that the Court accepted that these five airlines satisfied all of the comparator criteria set out in paragraphs 112 and 125 . 12 Interestingly, the Court went on to say in paragraph 170 of its decision that, " as explained earlier, the Tribunal erred in its identification of 'positions similar'". It is "pilots working for Canadian airlines flying aircraft of various sizes to domestic and international destinations, through Canadian foreign airspace that form the proper comparator group".

The words, "transporting passengers" and "both" in reference to destinations and "types" in reference to aircraft are absent in this formulation of the test for the comparator group . [. . .] B. What Should be the Test for the Comparator Group?

20 For the comparator group, the Respondents accept and rely on the Court's formula in paragraphs 112 and 125. The Complainants have a different opinion. Both the Complainants and the Canadian Human Rights Commission ("CHRC") assert that the formula prescribed by the Court in these two paragraphs of its decision should not be literally applied in determining the appropriate comparators.

Rather, the test that the Court set out in Vilven was dictated by the facts in that case and should only be considered as guidelines to assist the Tribunal in defining the comparator group. 21 Both the Complainants and the CHRC point to paragraph 170 of the Vilven decision position as support and propose that the Test should be " pilots working for Canadian airlines flying aircraft to either domestic or international destinations through Canadian or foreign airspace " .

They say that the Court inserted "both" in relation to domestic and international destinations in the Test to emphasize that the Tribunal erred in limiting the comparator group to those airlines that fly only to international destinations. The Court did not intend that the definition of the comparator group to be more restrictive than that of the Tribunal. It should be read disjunctively to include an airline whether it operates only domestically or only internationally. 22 Further, both the Complainants and the CHRC assert that the absence of "varying types" in paragraph 170 makes sense.

Otherwise, two of Air Canada's major competitors, who fly only one type of aircraft would be excluded from the comparator group. 23 This is so even though their pilots do essentially do what Air Canada pilots do, fly passengers to domestic and international destinations. The CHRC would also drop Varying Sizes from the Test arguing that size does not matter. Whether an aircraft is small, medium or large, the essence of what a pilot does is the same. 24 It is unfortunate that the Court went on to state the comparator test for yet a third time and somewhat differently as it did in paragraph 170 of its decision.

There is no explanation from the Court, at this late stage of its decision, as to why the comparator test should be modified. In my view, it should be regarded more as a matter of inadvertence rather than a restatement of the comparator group test. 25 What the Tribunal must do in this case is what the Court did in Vilven , which is to ask and answer the question, what is the essence of what Air Canada pilots do? The evidence in this case demonstrates that what Air Canada pilots do is as described by the Court in Vilven in paragraphs 112 and 125 .

Thus, the criteria to be applied in this case will be the same as the criteria applied in Vilven to determine the appropriate group. [Emphasis added]

(3) Errors in the Tribunal’s Decision (

a) The Unreasonableness of the Elimination of Air Canada’s Competitors [ 101 ] While deference is owed to the Tribunal, it is unreasonable to eliminate Air Canada’s main competitors from a list of airlines in Canada whose pilots actually do the same thing as Air Canada pilots. This illogical result is compounded by a number of errors of principle in the Tribunal’s analysis, which are described under the various headings that follow. (

b) The Failure to Conduct a Functional Analysis of the Positions [ 102 ] In Vilven the Court concluded that the functions and duties of Air Canada pilots, what they actually do, should be the overriding consideration in determining appropriate comparators. [ 103 ] As the complainants argued, given that Vilven was based on an Agreed Statement of Facts, Justice Mactavish was not required, nor able, to apply her test based upon the functions and duties of Air Canada to determine whether there were similar positions in other airlines.

Vilven 's only purpose, therefore, was to serve as a guide on how to proceed. [ 104 ] In contradistinction to Vilven , in the present matter the parties introduced concrete evidence on the characteristics of a large variety of airlines. The Tribunal was therefore required to perform the functional analysis described in Vilven to determine whether the

pilots of those airlines actually did the same thing as Air Canada pilots. Unless it first analyzed the functions of Air Canada pilots and determined that every position possessed every one of the five criteria, it could not eliminate pilot positions with other airlines on the basis that the organization did not present one of the factors, such as flying only one type of airplane or flying only domestically, and that this rendered the positions dissimilar. [ 105 ] Take as an example the characteristics of different sizes and types of airplanes.

The employer had to discharge its onus of demonstrating on the basis of the duties and functions of the Air Canada pilots that the function of operating more than one size and more than one type was sufficiently distinct from the function exercised by pilots in other airlines operating only one type or only one size of airplane so as to exclude the latter from being Comparator Airlines. Only then could the Tribunal decide that a certain type or a certain size of airplane should be a limiting factor. The same methodological requirement applied for airlines flying only domestically or only internationally.

This was not done. [ 106 ] I am fairly certain, however, that it would be difficult to establish that the competitor airlines should be excluded on the basis of a disjunctive

interpretation, as there was no suggestion made by the parties that the functions and duties of the pilots of, for instance, Air Transat differed from those of Air Canada when flying to foreign destinations such that any basis existed to eliminate Air Transat as a Comparator Airline. [ 107 ] Likewise, there does not appear to have been any basis to have eliminated WestJet as a Comparator Airline on the functionally irrelevant consideration that its pilots flew only one type of aircraft. Its pilots obviously “actually do” what Air Canada pilots “actually do”.

As its principal competitor vying for the same passenger base, WestJet pilots “actually do” what Air Canada pilots “actually do”: flying the same flights, with similar types of airplanes. [ 108 ] The evidence showed that Air Canada pilots are only permitted to fly one type of airplane at a time after extensive training on that specific airplane, until they change to another plane and are retrained on it.

The actual duties and functions of a pilot at any given time relate to only one type of aircraft. [ 109 ] The obviousness of the fact that WestJet and Transat should qualify as Comparator Airlines demonstrates that the Tribunal did not properly follow the directions in Vilven , which required the comparison of the functions and duties of pilots and did not allow for the elimination of an airline due to a criterion that had no impact on what the pilots actually do. (

c) The Failure to Conduct Contextual Analysis of the Vilven Reasoning [ 110 ] The

interpretation of any term or definition requires that meaning be found in the context of all the surrounding elements that are said to be connected to the proposed term or definition. With respect to the Tribunal’s

interpretation of the concept of comparator airlines, my first conclusion is that its reasoning is circular and tautological. [ 111 ] In its analysis, the Tribunal noted the Court's different statements of the Comparator Airline test as regards the use of the term "both" in relation to domestic and international destinations.

By concluding that the transportation of passengers by an airline had to be both domestic and international, it set the tone for the treatment of the other factors in Justice Mactavish’s list as also being conjunctive. [ 112 ] No logical explanation was provided by the Tribunal for the inconsistent inclusion of the word “both”.

Relying on the enunciation of the test twice with the word “both,” and only once without, without a contextual analysis of the Court’s intention in Vilven , was a superficial and unreasonable explanation for why the restatement not including “both” should be “regarded more as a matter of inadvertence rather than a restatement of the comparator group test”.

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