I. Introduction
[1]
Paragraph
15(1)(c) of the Canadian Human Rights Act, R.S., 1985, c. H-6, [CHRA]
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,
Part 1 of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982 c.11, 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,
[2010] 2 F.C.R. 189, [2009] F.C.J. No. 475, at paras. 9 and 337-339 (“Vilven
#1”).
[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 #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 1980’s, 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.
[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 Air
Transport Pilot’s License.
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: Annex 1 -
International Standards and Recommended Practices -Personnel Licensing (Chicago
Convention), 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947),
see Annex I (Personnel Licensing, 10th ed., 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 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 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 currently before the Court.
[25]
The
original hearing into Messrs. Vilven and Kelly’s complaints took place in 2007.
ACPA was granted “interested party” status before 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 and provincial Attorneys General, advising
that the constitutionality of paragraph 15(1)(c) of the CHRA was in
issue in the proceeding. As was noted earlier, paragraph 15(1)(c) of the Act
provides that it is not a discriminatory practice if 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”.
[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 and Air Canada Pilots Association, 2007 CHRT 36 (Tribunal
decision #1). The Tribunal found that 60 was the normal age of retirement for
persons working in similar positions, and further found that paragraph 15(1)(c)
of the Act did not contravene subsection 15(1) of the Charter. Because
of its finding on the section 15 Charter issue, the Tribunal did not
have to decide whether paragraph 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 of retirement for individuals employed
in positions similar to those occupied by Messrs. Vilven and Kelly prior to
their retirement was reasonable: Vilven #1 at para. 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 denies
the equal protection and equal benefit of the law to workers over the normal
age of retirement for similar positions. Consequently, I quashed the
Tribunal’s decision as it related to the Charter issue, and remitted the
matter to the Tribunal for it to determine whether paragraph 15(1)(c) of the
Act could be demonstrably
justified as a reasonable limit in a free and democratic society: Vilven
#1, at para. 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, I directed that it address the merits of
Messrs. Vilven and Kelly’s human rights complaints. This would require the
Tribunal to consider Air Canada’s argument that requiring that all of its
pilots be younger than 60 constituted a bona fide occupational
requirement within the meaning of paragraph 15(1)(a) of the CHRA:
Vilven #1, at para. 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 and Air Canada Pilots Association, 2009 CHRT 24 (Tribunal decision
#2).
[32]
In assessing whether paragraph
15(1)(c) of the CHRA was saved under section 1 of the Charter,
the Tribunal applied the test articulated by the Supreme Court of Canada in R.
v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. The Oakes test
requires that two criteria be satisfied: the objective of the law must relate
to a societal concern that is “pressing and substantial”, and the means 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 and should impair as little as possible the right or
freedom in question. It also requires that there be proportionality between the
objectives and the effects”: Tribunal decision #2 at para. 12, citing Oakes
at para. 70.
[34]
The Tribunal
recognized that in cases such as McKinney v. University of Guelph,
[1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, and Harrison v. University of
British Columbia, [1990] 3 S.C.R. 451, [1990] S.C.J. No. 123, the Supreme
Court of Canada had found that provisions in the Ontario and British Columbia
human rights codes limiting the protection of the legislation to those
under 65 were reasonable 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 the issue of mandatory retirement involved a
complex balancing of competing interests upon which expert opinion was divided.
The Tribunal went on, however, to observe that several more recent decisions
had determined that the social and economic context had changed sufficiently
since McKinney and Harrison were decided as to render
those decisions no longer applicable to present day circumstances: Tribunal
decision #2, at paras. 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 was decided. At the time of the hearing, only three
provinces allowed for the imposition of mandatory retirement. In all of the
other provinces, mandatory retirement was either prohibited, or was permitted
only where it was based on a bona fide occupational requirement or bona
fide pension or retirement plan: Tribunal decision #2, at paras. 26 and 27.
[37]
The Tribunal observed
that the abolition of mandatory retirement in these provinces had not spelled
the end of deferred compensation, pension and benefit schemes, and seniority
arrangements: Tribunal decision #2, at paras. 29 and 34. The Tribunal also
noted that the expert evidence before it called into question the concerns
identified by the Supreme Court in McKinney as to the potential negative
consequences that could flow from the abolition of mandatory retirement for
matters such as pension plans and deferred compensation schemes. Consequently,
the Tribunal concluded that paragraph 15(1)(c) of the CHRA could not be
justified under any 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 mandatory retirement 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 Service Employee Relations
Commission) v. British Columbia Government and Service Employees' Union
(B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, [1999] S.C.J.
No. 46 at para. 54.
[40]
According
to the
Tribunal, neither Messrs. Vilven and Kelly nor the Commission disputed that the
first two components of the Meiorin test had been satisfied: that is,
that the mandatory retirement provisions of the Air Canada pension plan and the
Air Canada/ACPA collective agreement had been adopted for a purpose that was
rationally connected to the performance of the job, and that the 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 hardship to Air Canada and/or ACPA: Tribunal decision #2,
at paras. 82-83.
[42]
After
examining the evidence adduced by the applicants in this regard, the Tribunal
found that neither Air Canada nor ACPA had established 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 with the 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 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.
[44]
The
second issue is whether the Tribunal erred in determining that Air Canada had
not established that the mandatory retirement age provisions of the Air Canada
Pension Plan and the Air Canada/ACPA collective agreement constituted a bona
fide occupational requirement.
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 the CHRA is saved by section 1 of the Charter
is reviewable against the standard of correctness. The Commission takes no
position on the Charter issue.
[46]
I
agree that correctness is the appropriate standard with respect to this aspect
of the Tribunal’s decision. Charter questions must be decided
consistently and correctly: see Dunsmuir v. New Brunswick, 2008 SCC 9,
at paras. 58 and 163, [2008] S.C.J. No. 9 (QL); Nova Scotia (Workers'
Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para.
32. That said, purely factual findings made by the Tribunal in the course of
its constitutional analysis are entitled to deference: see, for example, Consolidated
Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009]
3 S.C.R. 407, at para. 26.
[47]
Messrs.
Vilven and Kelly, the Commission and Air Canada also agree that the Tribunal’s
finding as to whether Air Canada had established a bona fide
occupational requirement defence is reviewable on the reasonableness standard.
ACPA takes no position on the bona 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. The question of whether a bona fide
occupational requirement defence has been made out in a particular case is a
question of mixed fact and law, requiring the Tribunal to apply its enabling
legislation to the facts before it. Such a finding attracts judicial
deference: Brown v. Canada (National Capital Commission), 2009 FCA 273,
[2009] F.C.J. No. 1196, at para. 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 facts and the law: see Dunsmuir, at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at para. 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 and Provincial Attorneys General
pursuant to the provisions of section 57 of the Federal Courts Act, R.S.,
1985, c. F-7, advising that the constitutional validity of paragraph 15(1)(c)
of the CHRA is in 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 CHRA statutorily empowers the Tribunal to decide
questions of law: see subsection 50(2), and Nova Scotia
(Workers' Compensation Board) v. Martin, above, at para. 3.
[52]
The
parties agree that the onus of justifying the
limitation on Messrs. Vilven and Kelly’s equality rights rests on Air Canada
and ACPA: see Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R.
483, [1990] S.C.J. No. 125, at para. 50. The standard of proof under
section 1 of the Charter is the ordinary civil standard, that is, the
balance of probabilities: Oakes, at para. 67.
[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 be justified 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 by looking 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 1980’s in Ontario
(Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202,
[1982] S.C.J. No. 2. The appellants in that case
were firemen employed by the Borough of Etobicoke. Each had filed a complaint
under the Ontario Human Rights Code, R.S.O. 1970, c. 318, because
he had been forced to retire 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 be
shown to be a bona fide occupational requirement for the position in
question. A human rights Board of Inquiry determined that the municipality had
not established the existence of a bona fide occupational requirement
for its firefighters. That decision was overturned by 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 to establish that being
under 60 was a bona fide occupational requirement. The Court observed
that everyone ages chronologically at the same rate, but that individuals may
age in a “functional sense” at very different and largely unpredictable rates.
The Court went on to observe that in cases where the employer's concern is one
of productivity rather than safety, “it may be difficult, if not impossible, to
demonstrate that a mandatory retirement at a fixed age, without regard to
individual capacity, may be validly imposed under the Code”: at p. 209.
[58]
The Court rejected the employer’s argument that the mandatory
retirement age at issue should be considered to be a bona fide
occupational requirement as it had been agreed to as part of a collective
agreement: at p. 212. As the Code had been enacted for the benefit of both the
community at large and of its individual members, the Supreme Court was of the
view that its protection could not be waived or varied by private contract: at
pp. 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 under section 15 of the Charter:
McKinney; Harrison; Stoffman; Douglas Kwantlen Faculty
Assn. v. Douglas College [1990] S.C.J. No. 124; [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 ACPA argue that McKinney was
binding on the Tribunal, and should have dictated a finding by the Tribunal
that paragraph 15(1)(c) of the CHRA was saved by section 1 of the Charter.
By failing to follow McKinney, the applicants say that the Tribunal
erred in law. In light of this 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, in accordance with the
universities’ mandatory retirement policies. As in the present case, the
professors were unable to seek recourse under human rights legislation, because subsection 9(a) of
the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, limited the protection against 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 to government action. However,
the Court went on in obiter to examine the universities’ retirement
policies on the assumption that the universities were government actors,
finding them to be justifiable.
[63]
Insofar
as the constitutionality of subsection 9(a) of the Ontario Human Rights Code
was concerned, the Supreme Court was unanimous in finding that the
statutory provision in issue violated subsection 15(1) of the Charter,
as it deprived individuals of a benefit under the Code on the basis of an
enumerated ground. The Court was, however, divided on the question of whether
the provision was 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 and Sopinka each wrote separate reasons, concurring in the
result. Justices Wilson and L’Heureux-Dubé each wrote dissenting judgments disagreeing
with the majority as to whether subsection 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, public and private pension plans had been established to
provide income security after the age of 65 and that as of 1990, mandatory
retirement was “part of the very fabric of the organization of the labour
market in this country”: at para. 84.
[66]
The
objectives of the legislation were described by Justice La Forest as being an
effort to balance the Legislature’s concern for denying protection beyond age 65
against the fear that such a change could result in delayed retirement and
delayed benefits for older workers. Concern was also expressed as to the
potential impact that a change would have for labour markets and pensions. In Justice La Forest’s view, these objectives were pressing and substantial.
[67]
The
majority also found that subsection 9(a) of the Code was rationally connected
to these objectives. In this regard, Justice La Forest observed that “there is
nothing irrational in a system that permits those in the private sector to
determine for themselves the age of retirement suitable to a particular area of
activity”: at para. 101.
[68]
In
relation to the issue of minimal impairment, Justice La Forest noted that where
the Legislature was faced with competing socio-economic theories and social
science evidence, it was entitled to choose between them and to proceed
cautiously in effecting change. The question for the Court was whether the
government had a reasonable basis for concluding that the legislation
impaired the relevant right as little as possible, in light of the government's
pressing and substantial objectives: at para. 123,
emphasis added.
[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 para.
96. 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 para.
108.
[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 para.
104.
[71]
Finally,
Justice La Forest found that there was proportionality between the effects of
subsection 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
para. 129.
[72]
Justices
Cory and Sopinka agreed in their concurring reasons that subsection 9(a) of the
Code was saved under section 1 of the Charter.
[73]
In
contrast, Justice Wilson observed that subsection 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 para. 350.
[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 paras. 351-353.
[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
para. 352.
[76]
Justice
L’Heureux-Dubé agreed with Justice Wilson that subsection 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 paras. 389-393.
[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
paras. 398-399.
[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
subsection 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 would have 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 university setting was back before the
Supreme Court in Dickason v. University of Alberta, [1992] 2 S.C.R. 1103,
[1992] S.C.J. No. 76.
[87]
The
issue in Dickason was whether McKinney
fully decided “whether a mandatory retirement policy in a private employment
setting 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 para. 33. 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 a
clause in her collective agreement. Dr. Dickason filed a complaint with
the Alberta Human Rights Commission alleging that the mandatory retirement
provision of the collective agreement violated the IRPA.
[89]
Unlike the Ontario and British Columbia
human rights legislation at issue in McKinney and Harrison, the IRPA
did not limit its protection against age-based employment discrimination to
those under the age of 65. Rather, section 11.1 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 the Charter,
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 majority including Justices La Forest, Gonthier and Iacobucci),
discussed the difference between the rights conferred by human rights
legislation and 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 para.
18.
[91]
As
a consequence, although the decision in McKinney
provided guidance, Justice Cory held that it
did not determine the outcome of Dr. Dickason’s case, as no deference was owed
to the policy choices of the university as a private institution: at para. 22.
[92]
While recognizing that parties may not generally contract out of
human rights statutes, Justice Cory noted that the mandatory retirement provision at issue was
arrived at through the collective bargaining process. In his view, this could
provide evidence of the reasonableness of a practice which appeared on its face
to be discriminatory: at para. 39.
[93]
With this in mind, Justice Cory
examined whether the objectives of promoting tenure, academic renewal,
planning and resource management, and retirement with dignity justified the
placing of age limits on the substantive rights to equal treatment: at para.
33. The evidence regarding the role of mandatory retirement in this context was
very similar to that which was before the Court in McKinney, and the
majority concluded that the mandatory retirement policy was reasonable and justifiable.
[94]
Justices
L’Heureux-Dubé and McLachlin dissented, finding the university’s mandatory
retirement policy to be neither reasonable nor justifiable. Given that parties
generally cannot contract out of human rights legislation, the dissenting
judges were of the view that the fact that the mandatory retirement requirement
was found in a collective agreement was not evidence of the reasonableness of
the discriminatory practice in Dr. Dickason’s case. While accepting that this
could be a factor to consider in exceptional circumstances, the collective
agreement would nevertheless have to be carefully scrutinized in order to
ensure that it was truly freely negotiated, and did not discriminate unfairly
against a minority of the union membership: at para. 118.
[95]
Justice
Sopinka concurred with Justices L’Heureux-Dubé and McLachlin, holding that Dr.
Dickason’s appeal should be allowed on the basis that the Board of Inquiry had
found only a weak connection between the University’s objective and its
mandatory retirement policy. The Board had also found that there were other,
more reasonable ways for the University to achieve its objectives, and that no
valid 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 of mandatory retirement.
This was explicitly recognized by the Court itself in New Brunswick (Human
Rights Commission) v. Potash Corporation 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 para. 4. However, the facts of the Potash
case did not present the proper opportunity for such a reconsideration, as no
constitutional challenge had been made to the relevant provision of the New Brunswick Human Rights Code, 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, should have 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 1 issue.
[99]
The
applicants contend that the only real change that had taken place between the
time of the Supreme Court’s decision in McKinney and the hearing before
the Tribunal in this case was that mandatory retirement had been abolished in Ontario, a development that occurred after the termination of Messrs. Vilven and
Kelly’s employment with Air Canada. This single development did not, in the
applicants’ 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 section 9 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” 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:
|
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 …
|
15. (1) Ne
constituent pas des actes discriminatoires :
….
c) le fait de mettre fin à l’emploi d’une personne en appliquant
la règle de l’âge de la retraite en vigueur pour ce genre d’emploi …
|
[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 para. 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 para. 94.
[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 #1 at paras.
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 1980’s.
[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 para. 106. 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 #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 para. 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 #1 at para. 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 “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”: Vilven #1, at para. 112.
[122] Even if the individual
was able to properly identify the appropriate comparator group, and to identify
which positions were similar to his or her own job, the employee would then
have to assemble the necessary information as to the number of individuals
occupying similar positions with other employers. The individual would also
have to be able to find out what the retirement policies were governing these
other employees. This would be necessary to determine whether there was a
“normal age of retirement” for these types of positions, and what that age was.
[123] Numerical information
as to the number of individuals employed in specific positions is often highly
sensitive proprietary information that may not be readily accessible to
employees of other companies. Indeed, there was evidence before the Tribunal in
this case as to the difficulties that Messrs. Vilven and Kelly encountered in
trying to gather this type of information from Air Canada’s competitors. By
the time the case came before the Tribunal, the record in this regard was still
not complete.
[124] There is a further
consideration that distinguishes paragraph 15(1)(c) of the CHRA from the
provisions of the Ontario and British Columbia human rights legislation at
issue in McKinney and Harrison. That is, the upper age limit on
the protection against age discrimination specified in the provincial
legislation applied equally to all employees working in the province in
question. In contrast, the age limit contemplated by paragraph 15(1)(c) of the
CHRA may vary from industry to industry and from position to position.
[125] Moreover, unlike the
provincial legislation at issue in McKinney and Harrison, paragraph
15(1)(c) of the CHRA permits a single dominant player within an industry
to effectively set the normal age of retirement for the entire industry. Once
again, this distinguishing feature is illustrated by the facts of this case.
[126] Other Canadian
airlines do not require that their pilots retire at age 60. At the time that
Messrs. Vilven and Kelly were forced to retire from Air Canada, several Canadian airlines allowed their pilots to fly until they were 65, and one
had no mandatory retirement policy whatsoever: Vilven #1, at para. 173.
[127] However, Air Canada
occupies a dominant position within the Canadian airline industry, employing
the majority of pilots flying aircraft of varying
sizes and types, transporting passengers to both domestic and international
destinations through Canadian and foreign airspace. As a result, Air
Canada (with ACPA) is able to set the industry norm, and can effectively
determine the ‘normal age of retirement’ for all Canadian pilots for the
purposes of paragraph 15(1)(c) of the Act: see Vilven #1, at para. 171.
[128] In other words, paragraph
15(1)(c) of the Act allows Air Canada and ACPA’s own discriminatory conduct to
provide them with a defence to Messrs. Vilven and Kelly’s human rights
complaints: see Vilven #1, at para. 313.
[129] None of these issues were
considered by the Supreme Court in McKinney and Harrison in
determining whether the legislation at issue in those cases was demonstrably
justifiable under section 1 of the Charter. The differences between the
provisions of the Ontario and British Columbia
human rights legislation and paragraph 15(1)(c) of the Canadian Human Rights
Act are sufficiently material as to justify the finding that the Supreme
Court’s decision in McKinney should not automatically dictate the result
of a section 1 Charter analysis in this case.
ii) McKinney
did not Purport to be the Final Word on the Subject of Mandatory Retirement
[130] The second reason for
concluding that McKinney does not dictate the result in this case is
that the majority decision in McKinney did not purport to be the final
word on the subject of mandatory retirement for all time.
[131] The constitution is a
“living tree capable of growth and expansion within its natural limits”. The
result of this is that constitutional rights are subject to changing judicial
interpretations over time: see Edwards v. Attorney-General for Canada,
[1930] A.C. 124 at p. 136 (P.C.), per Lord Sankey.
[132] However, as the
Ontario Superior Court observed in Bedford v.
Canada (Attorney General), 2010
ONSC 4264, [2010] O.J. No. 4057, while the Supreme Court of
Canada has the power to revisit its earlier decisions, “lower courts must only
do so in very limited circumstances”: at para. 78.
[133] As to what those
limited circumstances may be, the Court in Bedford quoted comments in Wakeford
v. Canada (Attorney General) (2001), 81 C.R.R. (2d) 342, [2001] O.J. No.
390 (Ont. Sup. Ct.), aff'd (2001), 156 O.A.C. 385, leave to appeal to S.C.C.
refused, [2002] S.C.C.A. No. 72. There, Justice Swinton stated that where a
decision of the Supreme Court is squarely on point, “there must be some
indication - either in the facts pleaded or in the decisions of the Supreme
Court - that the prior decision may be open for reconsideration...: at para.14.
[134] As was explained earlier,
I am not persuaded that McKinney and the other Supreme Court mandatory
retirement jurisprudence is “squarely on point”. In any event, the Supreme
Court clearly indicated in McKinney that it did not intend that its
judgment on the section 1 issue be the final word on the subject.
[135] Justice La Forest observed that “the
ramifications of mandatory retirement on the organization of the workplace and
its impact on society generally are not matters capable of precise
measurement”. He went on to state that “the effect of its removal by judicial
fiat is even less certain”. He noted that decisions made in relation to such
matters “must inevitably be the product of a mix of conjecture, fragmentary
knowledge, general experience and knowledge of the needs, aspirations and
resources of society, and other components”: all quotes from McKinney at
para. 104.
[136] In discussing the
expert evidence provided by labour economists with respect to the potential
consequences of abolishing mandatory retirement, Justice La Forest observed
that mandatory retirement could not be looked at in isolation, and that,
according to the experts, “the repercussions of abolishing mandatory retirement
would be felt ‘in all dimensions of the personnel function: hiring, training,
dismissals, monitoring and evaluation, and compensation’”: at para. 109.
Consequently, Justice La Forest stated that “it should not be altogether
surprising that the Legislature opted for a cautious approach to the matter”:
at para. 112.
[137] However, in the very
next paragraph, Justice La Forest went on to note that mandatory retirement had
been abolished in a number of jurisdictions, albeit by legislative
choice rather than judicial fiat, and that the apprehended effects had not
resulted. He observed that “we do not really know what the ramifications of
these new schemes will be and the evidence is that it will be some 15 to 20
years before a reliable analysis can be made”: at para. 113, emphasis
added.
[138] Thus, Justice La Forest’s statement
that he was “not prepared to say that the course
adopted by the Legislature […] is not one that reasonably balances the
competing social demands which our society must address” was specifically made
in the social and historical context of the early 1990’s: at para. 123. He
clearly left the issue open for revisitation in the future, when reliable
evidence became available as to what actually happened when mandatory
retirement was abolished.
[139] Where earlier Supreme
Court decisions can and should be revisited, “such revisitations must
necessarily commence at the trial court level”: Leeson v. University of
Regina, 2007 SKQB 252, 301 Sask. R. 316, at para. 9.
[140] This case thus falls
within the exceptional circumstances discussed in Wakeford. It was open
to the Tribunal to revisit the issue of mandatory retirement as it related to paragraph
15(1)(c) of the Canadian Human Rights Act, in light of more recent
evidence.
[141] This then takes us to
the third distinguishing feature of this case, which is the differences in the
evidentiary records that were before the Supreme Court in McKinney and
the Tribunal in this case.
iii) The Differences in
the Evidentiary Records
[142] Supreme Court
jurisprudence may also be revisited where there are “new facts that may have
called into question the basis for the Supreme Court decision”: see Bedford, at para. 80.
[143] In Leeson, the
Court considered when it is appropriate for a lower court to revisit the
decisions of a higher court. It is noteworthy that this discussion took place
in relation to a Charter challenge brought by university professors to a
provision of The Saskatchewan Human Rights Code, S.S.1979, c. S-24.1,
limiting the protection against age discrimination provided by the Code to
those under 65. This was essentially the issue that was before the Supreme
Court of Canada in McKinney.
[144] The Court addressed
the professors’ argument that the social, political
and economic assumptions underlying the McKinney decision were no longer
valid. In this regard, the Court stated that “When such change is
alleged, and there are at least some facts alleged which support such change,
it is not appropriate to prevent the matter from proceeding on the basis of stare
decisis”: Leeson, at para. 9. The Court went on, however, to
dismiss the professors’ Charter challenge on other grounds.
[145] It has now been some 18 years since McKinney was
decided, and approximately 24 years since the evidentiary record would have
been assembled in that case. The Supreme Court did not know what the
ramifications of abolishing mandatory retirement would be when it decided McKinney . As will be discussed further on in these reasons, there is now
expert evidence available as to the impact that the abolition of mandatory retirement
has actually had for traditional labour market structures, including deferred
compensation and pension schemes, seniority and tenure systems, and so on.
[146] Consequently,
I am satisfied that there are new facts available which call into question the
factual underpinning of the Supreme Court’s decision in McKinney.
iv) The New Developments in
Public Policy
[147]
Bedford also stated that
Supreme Court jurisprudence could be revisited where there were “new
developments in public policy … that may have called into question the basis
for the Supreme Court decision”: at para. 80.
[148] There have
been developments
in both public policy and non-Charter human rights jurisprudence that
further call into question the basis for the Supreme Court decisions in McKinney
and related cases.
[149] Numerous
studies have been carried out since McKinney with respect to the effects
of abolishing mandatory retirement in Canada. Indeed, the author of the
majority decision in McKinney - Justice La Forest himself - examined the
issue in his role as Chair of the Canadian Human Rights Act Review Panel. This
Panel recommended 10 years ago that there should no longer be blanket
exemptions for mandatory retirement policies in the Canadian Human Rights
Act: see the Report of the Canadian Human Rights Act Review Panel,
Promoting Equality: A New Vision, (Ottawa: Canadian Human Rights Act Review
Panel, June 2000), at p.119.
[150] While
recognizing that further study was required in order to develop alternatives to
mandatory retirement, the Report of the Canadian Human Rights Act Review Panel
emphasized that such studies should keep equality issues in mind.
Significantly, the Report says that “Employers should not be able to justify
forcing someone to retire simply because this has been the normal age of retirement
for similar jobs” (emphasis added). According to the authors, “This is a
very arbitrary approach that incorporates the types of historical assumptions
that human rights legislation is supposed to eliminate”: at p.121.
[151] The Report
does accept that mandatory retirement may be justified in certain workplaces,
citing the Canadian Forces as an example. However, it recommends that “In the
absence of blanket mandatory retirement defences in the Act, the government
should require employers to justify their mandatory retirement policies with a bona
fide occupational requirement”: at pp.120-121.
[152] The Report
of the Canadian Human Rights Act Review Panel reflects the fact that societal
attitudes towards age discrimination have evolved since McKinney was
decided. As the Ontario Superior Court observed in Assn. of Justices of the Peace of
Ontario v. Ontario (Attorney General), (2008), 92 O.R. (3d) 16, [2008]
O.J. No. 2131, (“Justices of the Peace”), “society’s
understanding of age discrimination, prohibited by the Charter,
has evolved to the extent that practices considered acceptable 20 years ago are
now prohibited”: at para. 177.
[153] In
addition, post-McKinney Supreme Court of Canada human rights
jurisprudence in the non-Charter context has reinforced the need for employers
to avoid generalized assumptions as to the capacity of individual employees.
[154] That is,
in Meiorin, cited above, and British Columbia (Superintendent of
Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3
S.C.R. 868, [1999] S.C.J. No.73 (“Grismer”), the Supreme Court restated
the test for discrimination, and imported the duty to accommodate into cases of
direct discrimination under human rights codes.
[155] In so
doing, the Court emphasized the need for individualized assessments, in order
to avoid
stereotyping based upon proscribed grounds. In this regard, the Court stated
that employers “must accommodate factors relating to
the unique capabilities and inherent worth and dignity of every individual, up
to the point of undue hardship”: Meiorin at para. 62.
[156] These
circumstances further support the view that the Supreme Court’s decision in McKinney should not dictate the result of a section 1 Charter analysis in
this case.
v) Other Post-McKinney
Mandatory Retirement Jurisprudence
[157] Before leaving this
issue, I would note that my conclusion that the Supreme Court’s decisions in McKinney
and its companion cases do not require a finding that paragraph 15(1)(c) of the
CHRA is saved by section 1 of the Charter is reinforced by a
review of several lower court post-McKinney decisions.
[158] These cases deal
either with the constitutional validity of mandatory retirement policies or of
legislation, and, in one case, deal specifically with the constitutional
validity of paragraph 15(1)(c) of the Canadian Human Rights Act itself.
In each of these cases, superior or appellate Courts in three different
provinces have concluded that the contextual assumptions upon which the Supreme
Court’s decision in McKinney was founded are no longer valid.
a) Greater
Vancouver Regional District Employees’ Union v. Greater Vancouver Regional
District
[159] The first of these
decisions is the judgment of the British Columbia Court of Appeal in Greater
Vancouver Regional District Employees’ Union v. Greater Vancouver Regional
District, 2001
BCCA 435, 206 D.L.R. (4th) 220. This case did not involve a Charter
challenge to human rights legislation, but rather the review of an arbitrator’s
decision striking down an employer’s mandatory retirement policy.
[160] In dismissing the employer’s appeal, the Court
held that the mandatory retirement policy was discriminatory, and that the
employer had not met its burden of establishing that the policy was justified
under section 1 of the Charter. In coming to this conclusion, the Court was not
persuaded that McKinney and subsequent decisions had decided that “all
mandatory retirement policies in the public sector are saved under s.1 of the Charter
simply because they do not contravene relevant provincial human rights
legislation”: Greater
Vancouver,
at para. 120.
[161]
Of particular significance are the comments in Greater Vancouver with respect to the
ongoing relevance of the McKinney decision. In this regard, the Court
observed that McKinney was not intended to be a final determination of the mandatory
retirement question, and that, as I have noted earlier, there were intimations
in the reasons of the majority that the issue should be revisited in the
future: at para. 28.
[162]
The majority decision in Greater Vancouver goes on to observe that “Since it is now 11
years since McKinney was decided, and since the issue of mandatory
retirement is one of considerable importance and concern in our society, I
respectfully suggest that the time for revisiting the issue is upon us”: at para.
28.
[163]
Under the heading “Time for
Reconsideration”, the majority in Greater Vancouver conclude with the
following cri de cœur urging the Supreme Court of Canada to reconsider
the issue of mandatory retirement:
Eleven years have now passed since McKinney was decided. The
demographics of the workplace have changed considerably, not only with respect
to the university community, but also in the workplace at large. At least two
other countries, Australia and New Zealand have abolished mandatory retirement.
Recent studies have been done on the effect of abolishing mandatory retirement
in Canada and elsewhere. (See, for example, The Report of the Canadian Human
Rights Act Review Panel […] and Ontario Human Rights Commission, Time
for Action: Advancing Human Rights for Older Ontarians (Toronto: Queen's
Printer for Ontario, 28 June 2001). The extent to which mandatory retirement
policies impact on other equality rights, and on the mobility of the workforce,
have become prominent social issues. The social and legislative facts now
available may well cast doubt on the extent to which the courts should defer to
legislative decisions made over a decade ago. The issue is certainly one of
national importance.
b) Assn. of Justices of
the Peace of Ontario v. Ontario (Attorney General)
[164] Seven years later, the
Ontario Superior Court was called upon to consider a constitutional challenge
to legislation requiring that Justices of the Peace retire at age 70, rather
than age 75, as is the case for judges: Justices of the Peace, above.
[165] To the extent that
much of the decision focuses on mandatory retirement as it relates to judicial
independence, the decision is not directly on point. That said, the Court goes
through a detailed discussion of the “striking change” that had taken place in Ontario with respect to mandatory retirement since the time that McKinney was
decided, in both legislation and public attitudes: see paras. 33-45. The Court
observed that where mandatory retirement had once been generally accepted as a
social norm, “it is now the exception, applicable to only a select few
occupations for which it is viewed as necessary”: at para. 33.
[166] After reviewing
various studies and legislative initiatives advocating the abolition of
mandatory retirement in Ontario, the Court concluded its analysis by observing
that since McKinney was decided, “there has been a sea change in the
attitude to mandatory retirement in Ontario, led by the efforts of the [Ontario
Human Rights] Commission”. This attitudinal change had culminated in
legislative reform, with the Ontario Legislature having recognized that
“mandatory retirement is a serious form of age discrimination”, leading to its
abolition in both the public and private sectors in that province: at para. 45.
c) CKY-TV v.
Communications,
Energy and Paperworkers Union of Canada, Local 816
[167] The most recent and
most directly relevant cases are a pair of decisions rendered first by a labour
arbitrator, and then by the Manitoba Court of Queen’s Bench, expressly dealing
with the constitutionality of paragraph 15(1)(c) of the CHRA. Both
decisions conclude that paragraph 15(1)(c) violates subsection 15(1) of the Charter
and that it is not saved by section 1.
[168] CKY-TV v.
Communications, Energy and Paperworkers Union of Canada (Local 816) (Kenny
Grievance),
[2008] C.L.A.D. No. 92 is the arbitral decision dealing with the mandatory
retirement of a maintenance technician with CKY-TV at age 65 in accordance with
a company policy. The employee’s union grieved the termination of his
employment, also challenging the constitutionality of paragraph 15(1)(c) of the
CHRA.
[169] In concluding that paragraph
15(1)(c) violated subsection 15(1) of the Charter and was not saved by
section 1, Arbitrator Peltz found that the Supreme Court had proceeded on the
basis of contextual assumptions in McKinney, which assumptions were no
longer valid in light of the expert evidence before him.
[170] The arbitrator’s
section 1 analysis turned on the issue of minimal impairment, with the
arbitrator concluding that the evidence before him did not establish that
“there is a reasonable basis for believing that the employment regime of
pensions, job security, good wages and reasonable benefits requires the
maintenance of mandatory retirement at age 65 or a predominant age”: at para.
216.
[171] The arbitrator’s
decision was subsequently confirmed by the Manitoba Court of Queen’s Bench: see
CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816, 2009 MBQB 252, [2009] M.J. No. 336. The Court agreed with
the arbitrator that the employer had not satisfied the minimal impairment
component of the Oakes test, in light of the evidence in the record
regarding current social and economic conditions.
[172] The Court observed
that the operation of paragraph 15(1)(c) was not limited to situations where
unions or employees had negotiated or agreed to mandatory retirement at any
particular age. Rather, the exception to the prohibition on age discrimination
created by paragraph 15(1)(c) went “far beyond limiting the discriminatory
practice to those situations where contracts are truly negotiated”: at para.
32.
[173] Indeed, the Court
found that paragraph 15(1)(c) “purports to permit an employer to terminate a
person's employment simply by establishing or proving a ‘normal age of
retirement’ for workers in similar positions”. As a consequence, the Court was
satisfied that the arbitrator’s conclusion on the issue of minimal impairment
was correct: at para. 32.
d) Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission)
[174] Before leaving this
issue, there is one other post-McKinney decision that bears comment.
This is the decision of the Supreme Court in Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights
Commission), [1996] S.C.J. No. 115 (“Bell and Cooper”).
[175] Bell and Cooper is
not technically a mandatory retirement decision, inasmuch as the issue before
the Supreme Court was whether either the Canadian Human Rights Commission or
the Tribunal had jurisdiction to consider the constitutional validity of a
provision of the CHRA.
[176] What is noteworthy,
however, is that the statutory provision at issue in Bell and Cooper
was paragraph 15(1)(c) of the Act, and that the case arose in the context of
human rights complaints brought by two former Canadian Airlines pilots. Messrs.
Bell and Cooper alleged that they had been the victims of age discrimination
when they were forced to retire from Canadian Airlines at the age of 60, in
accordance with the provisions of their collective agreement.
[177] The human rights complaints
were investigated by the Commission, and the investigator found that 60 was the
normal age of retirement for airline pilots. However, before a decision could
be made by the Commission with respect to the complaints, the Supreme Court
released its decision in McKinney. The Commission subsequently advised
the complainants that a Tribunal inquiry into their complaints was not
warranted, and that the Commission was bound by McKinney.
[178] As noted earlier, the
issue that ultimately came before the Supreme Court was a jurisdictional one.
The majority of the Court found that neither the Commission nor the Tribunal had
the jurisdiction to consider the constitutional validity of paragraph 15(1)(c)
of the CHRA. Consequently, the majority did not address the significance
of McKinney for Messrs. Bell and Cooper’s human rights complaints.
[179] In their dissenting
judgment, Justices McLachlin and L’Heureux-Dubé found that both the Commission
and the Tribunal had the power to consider whether the Charter rendered
the normal age of retirement defence invalid.
[180] More importantly for
the purposes of this case, the dissenting judges rejected the airline’s
argument that McKinney provided a complete answer to Messrs. Bell and
Cooper’s human rights complaints. They noted that “Everyone agrees that the
issue of whether a section of the Canadian Human Rights Act has been
invalidated by s. 15 of the Charter and s. 52 of the Constitution Act,
1982 is an important issue for the appellants and for Canadians generally”: at para.
69.
[181] Justices McLachlin and
L’Heureux-Dubé did not accept the airline’s contention that because McKinney held that age 65 was the normal age of retirement for the
university professors, it necessarily followed that a statute providing for
retirement at the normal age for the occupation in question must also be saved
under section 1.
[182] According to the
dissenting judges, “this argument oversimplifies the process envisaged under s.
1 of the Charter”. They stated that “Even if one were to accept the doubtful
submission that the conclusion that the infringement in McKinney was
justified under s. 1 of the Charter solely on the ground that this was
the normal age of retirement, one cannot conclude that that factor alone would
suffice in all cases to justify an infringement of s. 15”: at para. 106.
[183] Justices McLachlin and
L’Heureux-Dubé held that section 1 “is about much more than what is usual or
‘normal’”. They were of the view that a usual practice “may be unjustifiable,
having regard to the egregiousness of the infringement or the insubstantiality
of the objective alleged to support it”. As a result, each case had to be
examined in light of its own circumstances: at para. 106.
[184] Consequently, the
dissenting judges found that the Commission had erred in concluding that McKinney presented a complete answer to Messrs. Bell and Cooper’s human rights
complaints.
[185] It is thus clear that
for at least two judges of the Supreme Court, the decision in McKinney
does not provide a complete answer to a challenge to the constitutional
validity of paragraph 15(1)(c) of the CHRA.
C. Is Paragraph 15(1)(c)
of the CHRA Justifiable Under Section 1 of the Charter?
[186] Having thus determined
that McKinney does not provide a complete answer to Messrs. Vilven and
Kelly’s Charter challenge, the question for this Court is whether the
Tribunal’s finding that paragraph 15(1)(c) of the CHRA is not saved by
section 1 of the Charter is correct.
i) The Section 1
Analytical Framework
[187] As was previously
noted, the parties agree that the Oakes test should be applied by the
Court in determining whether paragraph 15(1)(c) of the CHRA is saved by
section 1 of the Charter. In order to satisfy this test, Air Canada and ACPA must demonstrate that:
(1) the objective of the
legislation is pressing and substantial; and that
(2) the impairment of the right
is proportional to the importance of the objective in that
(a) the means chosen are
rationally connected to the legislative objective;
(b) the means chosen impairs the
Charter right minimally or “as little as possible”; and
(c) there is a proportionality
between any deleterious effects of the legislation and its salutary objective,
so that the attainment of the legislative goal is not outweighed by the
abridgment of the right in question.
See Oakes at paras. 69 and 70. See also R.
v. Edwards Books & Art Ltd., [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70
(QL); RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R.
199, [1995] S.C.J. No. 68; Irwin Toy v. Québec (Attorney General),
[1989] 1 S.C.R. 927, [1989] S.C.J. No. 36.
[188] The starting point of
a section 1 inquiry is to identify the objectives of the law, in order to
determine whether these objectives are sufficiently important as to warrant the
limitation of a constitutional right: see Stoffman, above, at para.
50.
[189] In order to identify
the objectives of the law, the Court must examine the nature of the social
problem that the legislation addresses. The context of the impugned legislation
“is also important in order to determine the type of proof which a court can
demand of the legislator to justify its measures under section 1”: see Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, [1998]
S.C.J. No. 44, at paras. 87 and 88. As the Supreme Court observed in Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J.
No. 86, “where the legislation under consideration involves the
balancing of competing interests and matters of social policy, the Oakes test
should be applied flexibly, and not formally or mechanistically”: at para. 85.
[190] The Supreme Court also
observed in Eldridge that the application of the Oakes test
“requires close attention to the context in which the impugned legislation
operates”: at para. 85.
[191] Relevant contextual
factors may include the nature of the harm addressed, the vulnerability of the
group protected, subjective fear and apprehension of harm, and the nature and
importance of the infringed activity: see R. v. Bryan, 2007 SCC 12,
[2007] 1 S.C.R. 527, at para. 10. See also Thomson Newspapers Co., and Harper
v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827.
[192] Although this Charter
challenge arises in the context of the forced retirement of two Air Canada pilots, I agree with the parties that my section 1 analysis should not be restricted
to this context. Messrs. Vilven and Kelly were not denied the protection of the
CHRA because they were airline pilots working for Air Canada, but
because they had reached the “normal age of retirement” for similar positions,
as contemplated by paragraph 15(1)(c) of the CHRA.
[193] As the Supreme Court
observed in McKinney, to limit a section 1 analysis to the specific
factual context in which the challenge arises would be inconsistent with the Oakes
test, which requires a consideration of whether the measures adopted have
been carefully designed to achieve the objective in question. Paragraph
15(1)(c) of the CHRA is not restricted to the airline industry, and
while evidence relating to the specific situation of Air Canada pilots may “serve as an example to demonstrate the reasonableness of the objectives, it must
not be confused with those objectives”: McKinney, at para. 91.
[194] With these principles
in mind, I now turn to consider paragraph 15(1)(c) of the CHRA in light
of the Oakes test.
ii) What are the
Objectives of Paragraph 15(1)(c) of the CHRA?
[195] The first element of
the Oakes test requires the Court to identify the objectives of the
legislative provision in question. I identified the objectives of paragraph
15(1)(c) of the Canadian Human Rights Act in Vilven #1 in the
following terms:
[243] The Tribunal described the
purpose of paragraph 15(1)(c) of the Canadian Human Rights Act as being
“to strike a balance between the need for protection against age discrimination
and the desirability of those in the workplace to bargain for and organize
their own terms of employment …” : at para. 98.
[244] The Tribunal’s description
of the purpose of the provision is accurate, as far as it goes. A more fulsome
description of the purpose of the impugned legislation was provided by the
arbitrator in the CKY-TV case cited earlier. In this regard, the
arbitrator observed that the legislative objective underlying paragraph
15(1)(c) of the Act “was to protect a longstanding employment regime”.
[245] Referring to the comments
of Minister Basford cited earlier in these reasons, the arbitrator noted that
the Minister had made reference to the “‘many complex social and economic
factors’ involved in mandatory retirement”, leading the arbitrator to conclude
that “the government's stated preference was to continue the traditional
approach whereby the issue in the private sector was addressed between
employers and employees”: CKY-TV, at para.. 210.
[246] The arbitrator further held
that the objective of paragraph 15(1)(c) of the Act was to allow for the
continuation of a socially desirable employment regime, which included
pensions, job security, wages and benefits. This was to be achieved by
allowing mandatory retirement “if the age matched the predominant age for the
position”: CKY-TV, at para.. 211.
[247] It is clear from the
statements made by Minister Basford and Assistant Deputy Minister Strayer at
the time that the Canadian Human Rights Act was enacted that paragraph
15(1)(c) of the Act was intended to create an exception to the
quasi-constitutional rights otherwise provided by the Act, so as to allow for
the negotiation of mandatory retirement arrangements between employers and
employees, particularly through the collective bargaining process.
[196] No appeal was taken from
my decision in Vilven #1, and ACPA and Air Canada do not now take issue
with my characterization of Parliament’s objectives in enacting paragraph
15(1)(c) of the CHRA. Rather, their argument is that the Tribunal erred
by failing to find that these objectives were pressing and substantial.
iii) Are The Objectives
of Paragraph 15(1)(c) of the CHRA Pressing and Substantial?
[197] The Tribunal found that Parliament’s objectives
in enacting paragraph 15(1)(c)
of the CHRA
were neither pressing nor substantial, as the alternatives to mandatory
retirement used in other jurisdictions preserve the benefits of current labour
market structures, such as deferred compensation and pension schemes, without
discriminating on the basis of age. In light of this, the Tribunal asked how
the goal of permitting freedom of contract could be sufficiently important as
to justify overriding a constitutional right: Tribunal decision #2, at para.
45.
[198]
The Tribunal further
found that the link between mandatory retirement and the benefits traditionally
associated with it was not as strong as was once believed: at para. 47. As
these benefits could be achieved without mandatory retirement, the Tribunal
held that it was “difficult to see how permitting it to be negotiated in the
workplace is important enough to warrant the violation of equality rights that
was identified by the Federal Court in the present case”: at para. 49.
[199]
Having regard to the
aging of the workforce, and the fact that many individuals want or need to
continue working, the Tribunal concluded that preventing, rather than
permitting, age discrimination after the normal age of retirement has become a
pressing and substantial need in society: at para. 48.
[200] In my view, the
Tribunal erred by conflating elements of the proportionality analysis with its
assessment of whether Parliament’s objectives in enacting paragraph 15(1)(c) of
the CHRA were pressing and substantial.
[201] I have previously
found that the objective of paragraph 15(1)(c) was to permit the negotiation of
mandatory retirement arrangements between employers and employees, particularly
through the collective bargaining process, so as to allow for the preservation
of socially desirable employment regimes which include matters such as
pensions, job security, wages and benefits. Such an objective continues to be a
pressing and substantial one in our society. Indeed, I note that this point
was conceded by the union in CKY-TV.
[202] The means chosen by
Parliament to achieve this objective was the enactment of the permissive provision
in the CHRA that allows mandatory retirement where the retirement age
matches the “normal age of retirement” for similar positions. Whether the means
chosen to attain the objectives of paragraph 15(1)(c) can still be shown to be
rationally connected to the preservation of socially desirable employment
regimes in light of current social science evidence is another question
altogether, one that properly forms part of the proportionality analysis.
[203]
Similarly,
the aging of the
workforce and the fact that many individuals may want or need to continue
working are matters that should properly form part of the minimal impairment
analysis. These matters also factor into the assessment of whether there
is proportionality between the deleterious effects of the legislation and its
salutary objectives.
[204] Having concluded that
Parliament’s objectives in enacting paragraph 15(1)(c) of the CHRA are
still pressing and substantial, it remains to be determined whether the means
employed by Parliament to achieve this objective are proportional, having
regard to the remaining elements of the Oakes test.
iv) The Proportionality
Component of the Oakes Test
[205]
Once
the objectives of the legislation in issue have been identified and are determined
to be pressing and substantial, the impugned law is then subjected to the proportionality test. This assesses
whether the means chosen by Parliament to achieve its objectives are
proportional or appropriate to the ends. Context
infuses every aspect of this component of the Oakes
test: Health
Services and Support - Facilities Subsector Bargaining Assn. v. British
Columbia,
2007 SCC 27, [2007] S.C.J. No. 27, at para. 195.
[206] At this
stage of the analysis, the objectives of the legislation are to be balanced
against “the nature of the right it violates, the extent of the infringement
and the degree to which the limitation furthers other rights or policies of
importance in a free and democratic society”: Stoffman, at para. 50,
per Justice Wilson dissenting, but not on this point.
[207] Put another way, the
task for the Court at this stage of the inquiry is to determine whether
impugned legislation is “carefully designed, or rationally connected, to the
objective”. Legislation “must impair the right in issue as little as possible”,
and the effect of the legislation “must not so severely trench on individual or
group rights that the legislative objective, albeit important, is nevertheless
outweighed by the abridgment of rights”: see R. v. Edwards Books, above,
at para.117.
v) Rational
Connection
[208] The first question, then, is whether there is a
rational connection between the legislative objective and the provision in the CHRA
that permits mandatory retirement at the “normal age of retirement” for similar
positions.
[209]
As Chief Justice
Dickson observed in Canada (Human Rights Commission) v. Taylor, [1990] 3
S.C.R. 892, [1990] S.C.J. No. 129, “... as long as the challenged provision can
be said to further in a general way an important government aim it
cannot be seen as irrational”: at para. 56, emphasis added.
[210] Justice Wilson observed in her dissenting
opinion in Stoffman that the rational connection element of the
proportionality test is meant to “engage the Court in an examination of whether
government is proceeding logically in the pursuit of its aims”. She noted that
“all the rational connection branch of s. 1 requires is a demonstration that
there is some logical connection, however slight, between the objective
and the means by which it is sought to be achieved” [emphasis added]. She did,
however, go on to note that “the quality and extent of the connection becomes
crucial” in relation to the last two elements of the Oakes test: all
quotes at para.118.
[211] The Supreme Court has recently
stated that the party invoking section 1 of the Charter must show that
it is “reasonable to suppose that the limit may further the goal, not
that it will do so.”: Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567, at para. 48, emphasis added.
[212]
In this case, the
Tribunal noted my observation in Vilven #1 that the ‘normal age of
retirement’ rule in paragraph 15(1)(c) allows a dominant player in an industry
to set the mandatory retirement age for the entire industry. According to the
Tribunal, the result is that employees in smaller companies, who have not
negotiated mandatory retirement in exchange for wage and pension benefits,
could still be subject to the mandatory retirement age set by the dominant
industry player: at paras. 54-56.
[213]
The Tribunal
concluded that the ‘normal age of retirement’ criterion was not rationally
connected to the goal of allowing for negotiated mandatory retirement, as it
permitted mandatory retirement to be imposed upon workers without negotiation,
as long as the retirement age corresponded to the industry norm.
[214] Keeping in mind Chief Justice Dickson’s
admonition in Taylor that a legislative provision cannot be seen to be
irrational as long as it can be said to further an important government aim in
a general way, I am satisfied that there is indeed a logical connection
between paragraph
15(1)(c) of the CHRA and the objectives that it seeks to
accomplish. I note that my conclusion in this regard is consistent with the
finding of the Manitoba Court of Queen’s Bench in CKY-TV: at para. 27.
[215] Moreover, it is clear
that in at least some workplaces, mandatory retirement is negotiated through
the collective bargaining process in exchange for wage, pension, and other
benefits. To the extent that paragraph 15(1)(c) eliminates a legal barrier to
mandatory retirement, it is rationally connected to the legislative objective
of preserving socially desirable employment regimes that are beneficial to both
employers and employees.
[216] As the Tribunal noted,
there is a real question as to the extent to which mandatory retirement is a
necessary and integral part of such labour market structures. However, the
fact that mandatory retirement may not be essential to the preservation of
socially desirable employment regimes does not mean that paragraph 15(1)(c) of
the CHRA fails the rational connection test, as mandatory retirement is
logically connected to the maintenance of such schemes: see McKinney, at
para. 63.
[217] As was noted earlier,
the connection
between impugned legislation and its objectives need only be slight. The
quality and extent of the connection are relevant, and indeed crucial
considerations, but the place for such considerations to be taken into account
is in relation to the second and third elements of the Oakes
proportionality test, to which I now turn.
vi) Minimal Impairment
[218] The next stage of the Oakes
analysis requires the Court to examine whether paragraph 15(1)(c) of the CHRA
impairs the Charter rights of workers over the normal age of retirement
for their type of position minimally or “as little as possible”: R. v.
Edwards Books, above, at para. 117.
a) The
Applicable Legal Principles
[219] As the Supreme Court
observed in Health Services and Support, the contextual factors relevant
to a particular case affect the overall degree of deference to be afforded to
the government in determining whether the legislative measures in issue are
demonstrably justified: at para. 195. Greater deference should be shown to
Parliament where the Court is examining a legislative provision that attempts
to strike a balance between the claims of competing groups on the basis of
conflicting social science evidence, as opposed to cases involving a contest
between an individual and the State: see Irwin Toy Ltd., above, at para.
79 and RJR-MacDonald, above, at para. 135.
[220] When dealing with such
polycentric issues, “considerable flexibility must be accorded to the
government to choose between various alternatives”: Tétreault-Gadoury v.
Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 222,
[1991] S.C.J. No. 41, at para. 47. This is especially so when dealing with
policy issues in the field of labour relations, which are generally best left
to the political process: R. v. Advance Cutting & Coring Ltd., 2001
SCC 70, [2001] 3 S.C.R. 209, at para. 257.
[221] As the Supreme Court
observed in McKinney, the question under the relaxed
minimal impairment test articulated in Irwin Toy is “whether the
government had a reasonable basis for concluding that it impaired the
relevant right as little as possible given the government's pressing and
substantial objectives”: at para. 68, emphasis added.
[222] This does not “absolve
the judiciary of its constitutional obligation to scrutinize legislative action
to ensure reasonable compliance with constitutional standards”. It does,
however, require that the reviewing court utilize greater circumspection in
such cases: McKinney, at para. 104.
[223] The question of
minimal impairment, once decided, is not necessarily cast in stone for all
time. Rather, it must be assessed in the context of the current social and
historical context: see McKinney, at para. 123.
[224] As the British Columbia Court of Appeal observed in Greater Vancouver, the Legislature may
have had limited facts at its disposal, such that no legislative deference will
be appropriate. Alternatively, the Court may be presented with arguments that
were not considered by the Legislature in making its policy choices: at para.
84.
[225] Thus the question for
this Court is whether, in light of the evidence before it, the Tribunal was
correct in finding that Air Canada and ACPA had failed to demonstrate that the
government continued to have a reasonable basis for concluding that paragraph
15(1)(c) of the CHRA interferes as little as possible with the equality
rights of workers over the normal age of retirement, having regard to the
government’s pressing and substantial objectives: see the arbitrator’s decision
in CKY-TV at para. 216, and the Manitoba Court of Queen’s Bench decision
at para. 31.
b) The
Tribunal’s Findings with Respect to the Minimal Impairment Issue
[226] The Tribunal found that paragraph 15(1)(c) did
not minimally impair older workers’ equality rights as far less intrusive
options could be, and are used, rather than simply allowing for mandatory
retirement. These other legislative options include bona fide
occupational requirement and bona fide retirement or pension plan
justifications. According to the Tribunal, the use of these types of less
intrusive measures have not caused the collapse of employee pension and benefit
schemes in the jurisdictions where they were in effect. The Tribunal did,
however, find that a more carefully tailored provision might satisfy the
minimal impairment component of the Oakes test: Tribunal decision #2, at
paras. 57-64.
c) Air Canada and ACPA’s Arguments with Respect to Minimal Impairment
[227] Air Canada and ACPA submit that the Tribunal
erred by requiring that the government select the least intrusive possible
option, rather than one that fell within a range of reasonable options. They
say that the Supreme Court had already determined in McKinney and Harrison
that limiting the availability of mandatory retirement to cases where age
could be shown to be a bona fide occupational requirement could not
satisfy the objectives of similar provisions in Ontario and British Columbia
human rights legislation.
[228] The applicants further
submit that the fact that other jurisdictions may have adopted different approaches
to the issue of mandatory retirement simply shows that some provincial
legislatures have struck a different balance in relation to a complex set of
competing values: citing McKinney, at para. 123.
[229] The task of the
Tribunal was not, the applicants say, to step into the shoes of Parliament, and
reweigh the pros and cons of mandatory retirement in light of the available
social science evidence. Rather, the question for the Tribunal was whether the
government had a reasonable basis for concluding that the impugned legislation
impaired the relevant right as little as possible, having regard to the
government’s pressing and substantial objectives: citing McKinney, at para.112,
and Irwin Toy, at para. 81.
[230] The applicants contend
that the Tribunal also erred by failing to give due consideration to the
existence of the collective agreement freely negotiated between Air Canada and ACPA. They point out that the Supreme Court recognized in Dickason that
collective agreements authorizing mandatory retirement can represent carefully
constructed, fairly negotiated bargains between employer and employees, which
can be indicative of the reasonableness of the practice.
[231] Air Canada and ACPA point out that in Health
Services and Support, the Supreme Court affirmed that values such as
human dignity, equality, liberty, respect for the autonomy of the person and
the enhancement of democracy are all complemented and promoted by collective
bargaining: at para. 81.
[232] The applicants contend
that the Tribunal disregarded the benefits conferred by the collective
agreement and the fact that the agreement reflected Charter values, including
dignity of the individual. The Tribunal also failed to properly consider the
fact that the collective agreement provided evidence of the reasonableness of the
mandatory retirement policy.
[233] Instead, the
applicants say that the Tribunal approached its minimal impairment analysis as
if it had a free hand in directing what Parliament’s choices should have been.
In so doing, the Tribunal disregarded the admonition of the Supreme Court in McKinney that decision-makers should not lightly use the Charter to
second-guess legislative decisions as to how quickly it should proceed in
moving forward toward the ideal of equality: citing McKinney, at para.
131.
d) The Expert
Evidence
[234]
As
the Supreme Court observed in Newfoundland (Treasury Board) v. Newfoundland
and Labrador Assn. of Public and Private Employees (N.A.P.E.), 2004 SCC 66,
[2004] 3 S.C.R. 381, the evidence led in support of a
section 1 justification will be very important to the outcome where the Court
is dealing with matters that require close
attention to context: at para. 55.
[235] I will therefore start
my analysis by examining the evidence that was before the Tribunal in relation
to the minimal impairment issue. This primarily took the form of expert
evidence from labour economists led by Air Canada and the Commission with
respect to the justification for mandatory retirement. Neither side contested
the expertise of the opposing witness in labour economics, specifically the
economic theory underlying mandatory retirement. ACPA and Messrs. Vilven and
Kelly chose not to lead any expert evidence on this issue.
[236] Air Canada’s expert was Dr. H. Lorne Carmichael, a Professor of Economics at Queen's
University. Dr. Carmichael holds a PhD in Economics from Stanford University, and chairs the undergraduate studies program at Queen’s. Dr. Carmichael has written
extensively on labour market institutions, and has also edited several leading
economics journals.
[237] The Commission’s
expert was Dr. Jonathan Kesselman. Dr. Kesselman is a professor in the Public
Policy Program at Simon Fraser University, and holds a Canada Research Chair in
Public Finance. He has worked and published in the field for many years, and
has also edited several leading journals in the field of public policy and
taxation.
[238] In order to put the
evidence of the experts into context, it is helpful to start by recalling some
of the key findings in the majority decision in McKinney with respect to
the issue of minimal impairment.
[239] Justice La Forest
observed that by 1990, roughly 50% of the Canadian work force held positions
that were subject to mandatory retirement, and that approximately two-thirds of
collective agreements provided for mandatory retirement at the age of 65: at
para. 83. Sixty-five had become the “normal” age of retirement in Canada, and had become “part of the very fabric of the organization of the labour market in
this country”: at para. 84. Mandatory retirement had profound implications for
the structuring of pension plans, for fairness and security of tenure in the
workplace, and for work opportunities for others.
[240] Justice La Forest
acknowledged that age had
not been historically recognized as an unacceptable ground of discrimination,
although he recognized that there
had been “a profound alteration in society's view of age discrimination in
recent years and, in consequence, of mandatory retirement”: at paras. 85-86.
[241] In finding that the Legislature had a reasonable basis for concluding that
subsection 9(a) of the Code impaired older workers’ right to equality as little
as possible, Justice La Forest characterized the issue of mandatory retirement
as “a complex socio-economic problem that involves the basic and interconnected
rules of the workplace throughout the whole of our society”: at para. 96. Mandatory
retirement is 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 para. 108.
[242] Justice La Forest
observed that the ramifications that abolishing mandatory retirement would have
for the organization of the workplace, and for society in general, were things
that could not readily be measured: at para. 104. He anticipated, however,
that evidence as to the actual impact of the abolition of mandatory retirement
would be available in 15-20 years, in light of the fact that by 1990, mandatory
retirement had been abolished in several provinces: at para. 113.
[243] The evidence of the
labour economists in this case was given with the benefit of two decades of
experience as to the impact that the abolition of mandatory retirement in Canada has actually had for organization of the workplace, including its impact on matters
such as deferred compensation and seniority, pension and benefit schemes. This
evidence seriously calls into question the assumption underlying the majority
decision in McKinney that mandatory retirement is inextricably linked to
the preservation of these beneficial employment regimes.
[244] According to Dr.
Kesselman, the real-world experience in the jurisdictions where mandatory
retirement has been abolished for some time has shown that the abolition of
mandatory retirement has not, in fact, led to the end of such beneficial
workplace arrangements. None of the adverse consequences that have traditionally
been expected to flow from the abolition of mandatory retirement have actually
materialized in jurisdictions such as Manitoba and Quebec, where mandatory
retirement was abolished many years ago.
[245] Dr. Kesselman
explained that one of the principal justifications for mandatory retirement has
traditionally been that it allows for older employees to benefit from deferred
compensation. Deferred compensation is the practice of paying workers less than
their productivity would warrant in the earlier years of their employment, and
more than their productivity would justify in the employees’ later years. As
part of such arrangements, most deferred compensation systems (including Air Canada’s) provide pensions and other post-retirement benefits, the value of which increase
with years of service.
[246] Deferred compensation
systems benefit both employers and employees. Employees’ earnings rise over
time. This promotes loyalty, as workers will want to stay with their employer
for a long time in the expectation of rich salary and pension benefits down the
road. This in turn encourages employers to invest in employee training, in the
knowledge that employees will be around long enough to allow the employers to
reap the rewards of their investment.
[247] Another traditional justification
for mandatory retirement is that the existence of a fixed mandatory retirement
age allows employers to plan for employee turn-over, and frees up positions for
younger workers. It avoids the need for close and potentially demeaning
performance monitoring for employees whose productivity may have declined with
age. It also imposes a cap on the number of years in which an older employee’s
pay can exceed his or her productivity, thereby encouraging more efficient
agreements.
[248] Dr. Kesselman says
that there are three flaws in the traditional justification for mandatory
retirement.
[249] The first flaw is that
it assumes that agreements allowing for mandatory retirement are consensual
arrangements between contracting parties. Dr. Kesselman says that in actual
fact, most mandatory retirement provisions have their source in collective
agreements rather than individual employment contracts. This allows the will of
the majority to trump the equality rights of individual employees who may need
or want to continue working after the mandatory age of retirement.
[250] Dr. Kesselman’s thesis
is borne out by the facts of this case. That is, 25% of Air Canada pilots supported the abolition of mandatory retirement in the referendum carried out
by ACPA shortly before the Tribunal hearing. Nevertheless, the mandatory
retirement provision was retained in the Air Canada/ACPA collective agreement
in accordance with the wishes of the majority.
[251] Dr. Kesselman
confirmed Justice L’Heureux-Dubé’s observation in McKinney that the group
of employees who will want and need to continue working will be
disproportionately made up of women who may have entered the workforce late, or
who may have taken time away from the paid workforce because of family
responsibilities. Recent immigrants will also be disproportionately negatively
affected by mandatory retirement policies because of their late entry into the
Canadian workforce. Both groups may be unable to accumulate the necessary
pensionable earnings as to allow them to retire with the financial security
available to others.
[252] Dr. Kesselman points
out that people who want or need to continue working will also face
difficulties obtaining alternate employment after their forced retirement
because of societal attitudes towards older workers, and because it may be
uneconomical for new employers to provide them with the necessary training.
These negative financial consequences may be all the more severe for women,
because of their longer life expectancy.
[253] According to Dr.
Kesselman, the second flaw in the traditional justification for mandatory
retirement relates to the benefits that it purportedly confers on both
employers and employees.
[254] Mandatory retirement
is said to benefit younger workers because it frees up jobs. However, Dr.
Kesselman points out that Canada is currently facing a shortage of skilled
workers. As a consequence, the economy would actually benefit from experienced
older workers being encouraged to continue working.
[255] Moreover, Dr.
Kesselman says that experience has shown that the number of workers who would
actually continue working is relatively small. Unconstrained by mandatory
retirement policies, two-thirds of employees still choose to retire before age
65, with the average age of retirement being 61. Empirical research suggests
that there would be little effect on job creation for younger workers if
mandatory retirement were abolished.
[256] As for the benefit of
avoiding potentially demeaning performance monitoring for those employees whose
productivity may have declined with age, Dr. Kesselman observes that there is
no evidence that ability or productivity abruptly declines at a specific age. He
points out, somewhat ironically, that the mean age of the judges deciding McKinney was 65 years of age, and that several of the judges were over that age.
[257] Experience and
reliability can compensate for declining abilities, says Dr. Kesselman.
Moreover, employees whose abilities are in fact declining will be the ones most
likely to choose voluntary retirement.
[258] Dr. Kesselman also
points out that employers already need to have reliable performance monitoring
systems in place, and that such systems are all the more necessary for workers
who have many years in the workforce ahead of them. More importantly, he notes
that there is no evidence that costly new performance monitoring systems have
in fact been implemented in jurisdictions that have abolished mandatory
retirement.
[259] Dr. Kesselman says
that mandatory retirement is not essential to the maintenance of deferred
compensation schemes, given the evidence indicating that few workers would
actually choose to continue working. If three to ten percent of employees over
65 were to continue working for an additional three years, the average length
of a career would only rise by one to four months - hardly enough to upset
deferred compensation schemes.
[260] Dr. Kesselman also
questions the premise that deferred compensation provides a useful incentive
for employers to invest in training their employees at the beginning of their
careers, allowing employers to benefit from that investment over the career of
the individual. He notes that the more rapid obsolescence of skills in today’s
workplace means that employee training has become an ongoing process.
[261] The third flaw in the
traditional economic analysis of mandatory retirement identified by Dr.
Kesselman is that it fails to consider the cost that compulsory mandatory
retirement imposes on the rest of society.
[262] Older employees forced
to leave their employment pay less in income and other taxes. Some begin
drawing public pension benefits earlier than they might otherwise have done,
and fewer benefits get clawed-back through the tax system. The decrease in tax
revenues and increase in public pension claims will impose a bigger drain on
systems already under strain as the population ages. In this regard, Dr.
Kesselman notes that while only 7.6% of the Canadian population was over 65 in
the mid-1960s, they made up 12% of the population by 2004 and are projected to
make up 23% of the population by 2030.
[263] Other costs to the
public purse include increased demands on the health-care system by employees
who have lost their private, work-related supplemental insurance coverage, and
by individuals whose loss of employment results in them qualifying for
means-based benefits. Dr. Kesselman also points to research indicating that
physical and mental inactivity can contribute to a variety of health problems, imposing
a further strain on the public purse.
[264] Dr. Kesselman says
that to the extent that mandatory retirement decreases tax revenues and
increases public expenditures, it will put upward pressure on income tax rates
for Canadians. These pressures will increasingly be felt as baby-boomers leave
the workforce. The aging of the workforce combined with increasing life
expectancies means that mandatory retirement will have a much greater adverse
impact on the economy in the future than it has in the past.
[265] Dr. Kesselman
identifies several ways in which compensation, pension and employee benefit
plans can be modified so as to allow for the continued employment of older
workers. These include eliminating long term disability insurance for employees
over the age of 65 and reducing coverage for employer-paid life insurance.
[266] Dr. Kesselman says
that “the case for allowing [compulsory mandatory retirement] to continue is
based on economic analysis that presumes markets always produce desirable
results”: Johnathan R. Kesselman, “Mandatory Retirement and Older Workers:
Encouraging Longer Working Lives” (2004) 200 C.D. Howe Institute Commentary
1, at p. 18. This presumption, he says, was accepted by the Supreme Court of
Canada in McKinney, which found age discrimination in the form of
mandatory retirement to be justifiable on the grounds of its asserted economic
benefits.
[267] However, Dr. Kesselman
observes that market forces once perpetuated discrimination on the basis of sex
and race in hiring and compensation practices. Indeed, it was not so long ago
that married women in Canada were forced out of the workplace by market pressures
in order to free up positions for men. As Dr. Kesselman points out, it is no
different to say that older workers should be compelled to leave the workforce
to create positions for younger workers.
[268] The burden is, of
course, on Air Canada and ACPA to demonstrate that paragraph 15(1)(c) of the CHRA
is a reasonable limit in a free and democratic society, and that the government
continues to have a reasonable basis for believing that it impairs the Charter
rights of workers over the normal age of retirement for their type of position
“minimally” or “as little as possible”. With this in mind, it is necessary to
examine what Dr. Carmichael had to say about the economic theory justifying the
continued perpetuation of mandatory retirement for federally-regulated employees.
[269] Dr. Carmichael
describes mandatory retirement as an institution that has evolved in labour
markets where employees - often represented by strong unions - have been free
to negotiate their own employment conditions with employers. These negotiations
result in arrangements that are beneficial to both sides, particularly when
viewed over the entire life-cycle of individual careers.
[270] The benefits that Dr.
Carmichael says flow from labour market structures that include mandatory
retirement are many of the same advantages identified by the Supreme Court of
Canada in McKinney. As these have already been discussed at some length
earlier in these reasons, I will review Dr. Carmichael’s evidence on this point
somewhat briefly.
[271] Dr. Carmichael says
that mandatory retirement is an integral part of the overall package of
benefits and obligations that comprise the employment relationship. This
package includes seniority and deferred compensation systems, whereby employees
are able to earn higher wages, receive better employment security and
opportunities and better pensions over time. Mandatory retirement opens up job
opportunities for younger workers, facilitates planning by both employers and
employees, allows for less stringent monitoring of older workers, and allows
employees to leave the workforce with dignity. According to Dr. Carmichael, mandatory
retirement is the quid pro quo for these benefits, and that the
interdependence of mandatory retirement and deferred compensation schemes “is
evident from the data”.
[272] Insofar as the aging
of the population is concerned, Dr. Carmichael says that older workers do not
necessarily have to leave the workforce after being forced to retire from their
jobs. Workers may find alternate employment, and may even be able to continue
working for their former employer under renegotiated conditions that better
reflect the workers’ current productivity.
[273] While recognizing that
mandatory retirement can have an adverse differential impact on women and
immigrants, Dr. Carmichael says that good public policy requires that the
effects of an institution be evaluated for all of the groups affected, and that
some balance be maintained.
[274] The groups that would
benefit most from the abolition of mandatory retirement are older workers who have
already benefited from the seniority system. According to Dr. Carmichael, this
group is predominately made up of men from the baby boom generation, many of whom
do not need the money. Those who would lose out would be younger men and women,
as well as those who entered the workforce later in life. According to Dr.
Carmichael, there are better ways to address the plight of this latter group,
such as financial support and the recognition of foreign credentials for
immigrants.
[275] Dr. Carmichael agrees with
Dr. Kesselman that abolishing mandatory retirement will not have a major impact
on the average age of retirement in the economy as a whole, as most individuals
will choose to retire at the same age as would otherwise have been imposed upon
them. It could, however, have a more significant impact in relation to airline
pilots, given their high rate of pay and significant level of job satisfaction.
[276] Dr. Carmichael also
agrees with Dr. Kesselman that the costs associated with the elimination of
mandatory retirement would be “relatively small”: transcript, at p.1524.
[277] It was evident from
the cross-examination of Dr. Carmichael that the philosophical underpinning of
his opinion is his belief that mandatory retirement is something that is
“freely negotiated” by knowledgeable individuals. Indeed, Dr. Carmichael stated
that he “would always support something that had been freely negotiated”:
transcript, at p.1537.
[278] Dr. Carmichael
conceded that an agreement between two groups could cause hardship to third
parties, and that society may legitimately refuse to enforce such agreements.
However, he says that no third parties are hurt when an employer and a union
negotiate a collective agreement that involves mandatory retirement. Workers
enter into arrangements that positively affect their own future compensation
and job security, and their welfare has to be judged over the entire life-cycle
of their careers: Carmichael Report, at pp. 8-10.
[279] However, as was noted
earlier, Dr. Carmichael acknowledged that mandatory retirement can indeed have an
adverse differential impact on women and immigrants, whose interests may be
“lost in the mix”: transcript at p. 1573. He believes that may be the
strongest argument advanced against mandatory retirement. At the same time, he
states that “it is not clear that it discriminates against women as a group”:
Carmichael Report at pp.1 and 13.
[280] With this
understanding of the expert evidence, I turn now to the application of the
minimal impairment test.
e) The
Application of the Minimal Impairment Test
[281] I recognize at the
outset that significant deference is to be shown to Parliament where the Court
is examining a legislative provision that attempts to strike a balance between
the claims of competing groups on the basis of potentially conflicting social
science evidence. That said, as was noted earlier, this deference does not
absolve the Court of its constitutional obligation to scrutinize legislative
action to ensure reasonable compliance with Charter standards.
[282] As the Supreme Court
observed in RJR-MacDonald, “Deference must not be carried to the point
of relieving the government of the burden which the Charter places upon
it of demonstrating that the limits it has imposed on guaranteed rights are
reasonable and justifiable”: at para. 136.
[283] While Chief Justice
McLachlin recognized the role of Parliament to choose the appropriate response
to social problems, she nevertheless went on in RJR-MacDonald to observe
that it was the role of the courts to determine whether Parliament’s choice
fell within the limiting framework of the Constitution. In this regard she
cautioned that “To carry judicial deference to the point of accepting
Parliament’s view simply on the basis that the problem is serious and the
solution difficult, would be to diminish the role of the courts in the
constitutional process and to weaken the structure of rights upon which our
constitution and our nation is founded”: at para. 136.
[284] The question, then, is
whether the government continues to have a reasonable basis for concluding that
paragraph 15(1)(c) of the CHRA minimally impairs the rights of workers
over the normal age of retirement for their positions.
[285] ACPA and Air Canada argue that this is indeed the case, particularly in light of the fact that since McKinney was decided, the Supreme Court has itself recognized the importance of
collective bargaining and its role as a Charter value.
[286] While acknowledging
the importance of collective bargaining as a Charter value, it must also
be recognized that paragraph 15(1)(c) of the CHRA does not permit
mandatory retirement at a specific age to be imposed only in cases where
it has been freely negotiated, either as a term in an individual’s employment
contract, or through the collective bargaining process. Indeed, as long as the
age selected by an employer conforms to the “normal age of retirement” for a
particular class of positions, paragraph 15(1)(c) permits employers to
unilaterally impose mandatory retirement on unwilling employees.
[287] It is true mandatory
retirement is often a feature of unionized workplaces, and can be negotiated
through the collective bargaining process in exchange for benefits such as good
pensions and employment security. However, it must also be recognized that a
significant number of federally-regulated employers (such as the entire banking
industry) are not unionized.
[288] Moreover, even in
cases such as this one, where the mandatory retirement provision in the Air
Canada/ACPA collective agreement was freely negotiated between an employer and
a strong union, it can nevertheless be imposed on the one-quarter of ACPA
members who voted against the preservation of mandatory retirement. This was
referred to by Dr. Carmichael as the “tyranny of the majority” argument.
[289] Dr. Carmichael says
that this “is a strange argument, given that all of our valued democratic
institutions are based on the idea that collective decisions should be guided
by the wishes of the majority”: Carmichael report, at page12.
[290] While this is
unquestionably true in many contexts, it is nevertheless a basic principle of
Canadian law that the fundamental human rights of individuals cannot be
compromised simply because a majority may not believe them to be worthy of
recognition.
[291] If it were otherwise,
there would be no obligation on an employer to accommodate an employee whose
religious beliefs precluded work on Saturdays, if the majority of the
individual’s co-workers were unwilling to accept any modifications to their own
work schedules so as to allow for the accommodation of the individual: see Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.
489, [1990] S.C.J. No. 80.
[292] Nor would there be any
obligation on the government to provide sign-language interpretation for deaf
patients dealing with health-care providers, if the majority of taxpayers did
not believe that such services should be paid out of the public purse: see Eldridge,
above.
[293] As the British
Columbia Court of Appeal observed in Greater Vancouver, the problem with
according too much deference to the demands of organized labour in examining a
section 1 justification for a breach of section 15 equality rights is that
collective bargaining may “focus on majority rule, rather than on the
protection of minority rights”: at para. 83.
[294] The Court went on in Greater
Vancouver to note that not every provision of a collective agreement will
necessarily protect minority rights. The Court observed that “little credence”
would be given to legislative or labour preferences “if the groups subjected to
discriminatory treatment were women or ethnic minorities”. Why, then, the
Court asks, “should the courts give credence to these views where the group
discriminated against is the elderly and where the sole basis of discrimination
is that they are elderly?”: at para. 83.
[295] As Justice Cory
observed in Dickason, a collective agreement can provide evidence of the
reasonableness of a practice which appears on its face to be discriminatory. He
went on to qualify this statement, however, by noting that not only would it
have to be shown that the agreement was indeed freely negotiated, but also that
it did not discriminate unfairly against individuals on the basis of a
proscribed ground: at para. 39.
[296] Moreover, as Justices
L’Heureux-Dubé and McLachlin noted in Bell and Cooper, the
involvement of unions in determining what will be a “normal age of retirement”
does not automatically guarantee that it is justifiable. They observed that
“there may be many reasons why a union does not take up a particular cause. The
concern may be of interest only to a minority of its members, or the union may
have other more important issues on the bargaining table”: at para.107.
[297] In this case, Dr.
Carmichael and Dr. Kesselman agree that mandatory retirement provisions in
collective agreements such as that between Air Canada and ACPA have an adverse
differential impact on both women and immigrants. Dr. Carmichael suggests that
rather than limiting the freedom of employers and employees to negotiate
mandatory retirement, programs could be designed to compensate these groups for
the financial disadvantages resulting from forced retirement. However, as the
Tribunal observed, not only is it questionable whether financial aid would
provide a sufficient degree of income security, more importantly, Dr.
Carmichael’s suggestion “does not address, and indeed may even exacerbate the
loss of dignity and pride that flows from being unemployed”: Tribunal decision
#2, at para. 69.
[298] By the time the
Tribunal heard Messrs. Vilven and Kelly’s human rights complaints, mandatory
retirement had been abolished in the Province of Ontario, and several other
provinces only allowed for compulsory retirement at a specified age in cases
where employers could demonstrate that it was based on bona fide
retirement or pension plans, or bona fide occupational requirements. As
a consequence, mandatory retirement is no longer as integral to the
organization of the Canadian labour market as it was in 1990, when McKinney was decided.
[299] Air Canada and ACPA argue that the fact that mandatory retirement had been abolished in Ontario should not have been considered by the Tribunal, as it occurred in 2006 - after
the termination of Messrs. Vilven and Kelly’s employment with Air Canada. According to the applicants, the question of whether or not paragraph 15(1)(c) of
the CHRA is a reasonable limit in a free and democratic society should
have been assessed as of 2003 and 2005.
[300] The ongoing
constitutional validity of legislation is surely a matter best determined on
the basis of up-to-date evidence. As the Supreme Court observed in Irwin Toy
Ltd., above, once the legislative objective has been characterized, “the
government surely can and should draw upon the best evidence currently
available” to prove that this original objective remains pressing and
substantial: at para. 66. One can infer from this that this “best evidence”
standard could be used in the minimal impairment and proportionality stages of
the Oakes test as well: see Matthew Taylor and Mahmud Jamal, The
Charter of Rights in Litigation: Direction from the Supreme Court of Canada,
loose-leaf (Aurora: Canada Law Book, 1990) s. 6:12, p. 6-78.
[301] This view is borne out
when one examines the way in which social science evidence has been treated by
the Supreme Court in section 1 cases. For example, the professor in Dickason
was forced to retire on June 30, 1985. However, the Supreme Court considered
journal articles from 1986 and 1988 in its decision. Similarly, the professors
in McKinney were forced to retire in 1985 and 1986, but the Court
considered several journal articles from 1987 to 1989 in assessing the
constitutionality of the legislation.
[302] Moreover, the Supreme
Court held in McKinney that the issue of minimal impairment must be
assessed in the current social and historical context: at para. 123.
[303] Even if I am wrong in
this regard, and the Tribunal should not have considered the after-the-fact
abolition of mandatory retirement in Ontario, the evidence adduced by Air
Canada and ACPA simply did not establish that the negative consequences for
employment regimes apprehended by the Supreme Court in its mandatory retirement
jurisprudence have materialized in the other Canadian jurisdictions where
mandatory retirement has long been abolished.
[304] Dr.
Kesselman says that experience in the years since McKinney has shown
that the abolition of mandatory retirement has not had any demonstrable
negative impact on beneficial workplace arrangements such as deferred
compensation and pension schemes, seniority systems and the like. This leads
him to conclude that mandatory retirement is not in fact integral to the
preservation of these labour
market structures in the way that it was understood to
be at the time that McKinney was decided.
[305] Dr.
Carmichael takes issue with this conclusion, arguing that “it is evident from
the data” that mandatory retirement is indeed integrally connected to
beneficial employment regimes. The data that he cites to support his view is
found in a 1981 American study entitled “Mandatory Retirement Study: Final
Report (Washington: Urban Institute,1981), and in a Canadian study by
Gunderson and Pesando entitled “The Case for Allowing Mandatory Retirement”,
(1988) 14 Canadian Public Policy, at pp. 32-39.
[306] Although I
have not been provided with the actual studies relied upon by Dr. Carmichael,
the studies do not appear to have been based upon long-term, real-life
experience. I say this because, according to Dr. Carmichael’s own report, the
American study was carried out before mandatory retirement was abolished
in the United States. The Canadian study was published in 1988 - before the
decision of the Supreme Court of Canada in McKinney, and before reliable
evidence was available as to the actual, non-speculative and non-theoretical
consequences of the abolition of mandatory retirement in Canada.
[307] Indeed, in
McKinney, the Supreme Court relied heavily on work by Gunderson and
Pesando in coming to the conclusion that the permissive legislative provision
at issue in that case was saved by section 1 of the Charter. However, as
was discussed earlier in these reasons, the Court was clearly troubled by the
fact that reliable evidence regarding the actual impact that the abolition of
mandatory retirement had in fact had for deferred compensation and other
beneficial employment regimes was not yet available.
[308] Dr. Kesselman’s
evidence thus calls into question a major underlying premise of Dr.
Carmichael’s evidence - namely that mandatory retirement is an integral part of
traditional labour market structures that include seniority systems, deferred
compensation and pension schemes and the like, and is essential to the
preservation of these arrangements for the benefit of employees and employers
alike.
[309] We now have long-term,
real-life experience in Canadian jurisdictions where mandatory retirement has
been abolished. This experience goes back more that 25 years in the cases of Manitoba and Québec. Thus the actual impact of the abolition of mandatory retirement in
these jurisdictions could be evaluated, and evidence adduced as to the
consequences that the abolition of mandatory retirement has actually had for
matters such as seniority systems, deferred compensation and pension schemes.
[310] Dr. Carmichael did not
identify any significant negative consequences that
have actually come to pass in those jurisdictions where mandatory retirement
has been prohibited for some time. Indeed, he appeared to concede in
cross-examination that mandatory retirement is not essential to the
maintenance of mutually advantageous labour market structures: see transcript,
at p.1556.
[311] The onus is on ACPA
and Air Canada to demonstrate that Parliament continues to have a reasonable
basis for believing that paragraph 15(1)(c) minimally impairs the rights of
those affected by it. One would have thought that if
there was current empirical evidence available to demonstrate the negative
effects that the abolition of mandatory retirement has in fact had for beneficial
workplace arrangements, it would have been put before the Tribunal by the
applicants in order to show that mandatory retirement
is indeed integral to the preservation of these labour market structures. It
was not.
[312] It was also evident
from Dr. Carmichael’s testimony that his opinion was based upon his belief that
older workers have already enjoyed their share of the benefits associated with
employment arrangements involving seniority and deferred compensation systems.
In his view, the concern should be for younger workers. He testified that “I
don't think the baby-boomers need any more benefits, they have done extremely
well. I think we should be more concerned about the people who follow behind
them and how they are going to do”: transcript, at p.1542.
[313] I would first note
that there has been no suggestion that “younger workers” constitute a
historically disadvantaged group who are being targeted by the legislation.
Moreover, the Supreme Court held in McKinney that the plight of younger
workers was a matter that should not be accorded a central role in the debate
on mandatory retirement: at para.102.
[314] Justice La Forest observed that
if a free and democratic society’s values include respect for the inherent
dignity of the individual and a commitment to social justice and equality, then
forcing older workers to retire in order to free up positions for younger
workers would itself be discriminatory. This is because “it assumes that the
continued employment of some individuals is less important to those
individuals, and of less value to society at large, than is the employment of
other individuals, solely on the basis of age”: McKinney, at para. 97.
[315] Furthermore, Dr.
Carmichael himself conceded that the abolition of mandatory retirement would
not significantly change the age at which most individuals would choose to
retire, and that it would have little impact on the average age of retirement
in the economy as a whole. As a result, the number of employment opportunities
for younger workers would not be greatly affected by the abolition of mandatory
retirement.
[316] I do accept Dr.
Carmichael’s point that a higher than average percentage of Air Canada pilots may wish to continue working, given their high rate of pay and significant
level of job satisfaction. I also recognize that there are some unique features
of Air Canada pilot positions - particularly with respect to the steepness of
the wage curve and the extent to which the positions are in demand.
[317] However, what is at
issue here is not a Charter challenge to the mandatory retirement
provisions of the Air Canada pension plan and the Air Canada/ACPA collective
agreement, but rather a challenge to the permissive provision of the CHRA
that allows for the promulgation of such arrangements. Indeed, Air Canada and ACPA agree that the Court’s section 1 analysis should not be limited to the specific
context of Air Canada pilots.
[318] Air Canada and ACPA
argue that the fact that most people would not change their behaviour and
choose to retire at an older age if mandatory retirement was no longer
permitted means that only a few people are actually negatively affected by paragraph
15(1)(c) of the CHRA. With respect, in examining the issue of minimal
impairment, it is the quality of the impact on the Charter rights of
older workers that is in issue, and not the number of older workers who would
otherwise have wished to continue working.
[319]
Dr.
Carmichael also testified before the arbitrator in CKY-TV. The
arbitrator described his evidence in that case as providing “a coherent defence of mandatory
retirement”. The arbitrator noted that “the employment life cycle and the
regime of pensions, security and favourable compensation were seen for many
years as an integrated whole”, and that mandatory retirement assisted employers
in managing salary expenses and planning their financial obligations: at para. 217.
This was the view espoused by the Supreme Court at the time that McKinney was decided.
[320]
However, as the
arbitrator observed, Dr. Carmichael’s position is sound, “but only on the
premise that mandatory retirement is necessary to the realization of all the
foregoing”: at para. 217. As was explained earlier in these reasons, the
evidence in this case does not establish that mandatory retirement is in fact
an integral and necessary part of traditional labour market structures, as was
previously believed. Nor does it demonstrate that employment regimes that
include seniority, pension, deferred compensation and the like have been
negatively affected in the Canadian jurisdictions in which mandatory retirement
has been prohibited for many years.
[321]
In Thomson Newspapers Co. v.
Canada (Attorney General), [1998] 1 S.C.R. 877, the Supreme Court stated
that the minimal impairment test is intended to determine whether there is an
efficiency between the infringing measure and the justified purpose. The
question at this stage of the analysis is whether the impugned provision
infringes the relevant Charter rights to the minimum extent possible,
while still fulfilling the justified purpose: at para. 124.
[322] If permitting the
negotiation of mandatory retirement is not necessary in order to maintain the
longstanding and beneficial employment regimes described by Dr. Carmichael and
discussed by the Supreme Court in McKinney, there is little efficiency
between the infringing measure and the justified purpose, and the legislation does
not fulfill that purpose. Thus it cannot be said that older workers’ Charter
rights are minimally impaired by the legislation.
f) Conclusion
on the Minimal Impairment Issue
[323] While accepting that
the government is entitled to a significant degree of deference in legislating
in this area, the evidence before the Tribunal 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) of the CHRA, to the extent
that these objectives relate to the preservation of mutually-beneficial labour
market structures.
[324] Consequently, I find
that the Tribunal was correct in finding that ACPA and Air Canada have not
established that older
workers’ Charter rights are minimally impaired by paragraph
15(1)(c) of the Canadian Human Rights Act. 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) of the CHRA.
[325]
Before leaving this
issue, I would note that I do accept that there could potentially be specific
employment situations where mandatory retirement could be demonstrably
necessary for the maintenance of a particular negotiated package of rights and
benefits. As the arbitrator observed in CKY-TV, “A more carefully
tailored version of section 15(1)(c), which limited the exception to those
kinds of circumstances, might pass the section 1 test”: at para. 218. That is,
however, an issue for another day.
[326]
In light of my
conclusion with respect to the minimal impairment issue, it is not necessary to
examine the Tribunal’s finding with respect to the proportionality between the
effects of paragraph 15(1)(c) of the CHRA and the objectives of the
legislation. I will do so, however, in case a reviewing Court takes a
different view of the minimal impairment issue.
vii) Proportionality
between the Effects of the Legislation and its Objectives
[327] In R. v. Edwards
Books, the Supreme Court described this final element of the
proportionality component of the Oakes test as requiring the Court to
determine whether the effects of the legislation “so severely trench on
individual or group rights that the legislative objective, albeit important, is
nevertheless outweighed by the abridgment of rights”: at para.117.
[328] There was criticism of
this formulation, which was viewed by some as simply duplicating what had
already been accomplished through the first two elements of the proportionality
analysis. More recent Supreme Court jurisprudence has reformulated this
component of the Oakes test so as “to give it a distinct scope and
function”: see Thomson Newspapers Co., at paras.123-124.
[329] The Supreme Court
observed in Thomson Newspapers that the focus of the first two steps of
the Oakes proportionality analysis “is not the relationship between the
measures and the Charter right in question, but rather the relationship
between the ends of the legislation and the means employed”. In contrast, this
last stage of the proportionality analysis allows the Court to “assess, in
light of the practical and contextual details which are elucidated in the first
and second stages, whether the benefits which accrue from the limitation are
proportional to its deleterious effects as measured by the values underlying
the Charter”: at para.125.
[330] This analysis involves many of the same considerations that
were discussed in connection with the issue of minimal impairment, albeit
through the lens described in Thomson Newspapers Co.: see McKinney, at para. 126.
[331] The Tribunal found that allowing the
negotiation of mandatory retirement in the workplace provides “a
powerful bargaining chip” for unions and employees. It allows them to
negotiate “a number of important benefits including deferred compensation, the
equitable distribution of benefits and job advancement opportunities”.
According to the Tribunal, mandatory retirement also “allows employers to plan
for the flow of labour into a workplace, to manage wage bills and to plan their
financial obligations: Tribunal decision #2, at para. 66.
[332]
At
the same time, the Tribunal found that depriving individuals over the normal
age of retirement of the protection of the CHRA produced significant deleterious effects that
outweighed the benefits generated by paragraph 15(1)(c) of the CHRA:
Tribunal decision #2, at paras. 65-70.
[333] The Tribunal noted that Dr. Kesselman and Dr.
Carmichael agreed that mandatory retirement had a particularly negative impact
on people who needed to work past the normal age of retirement - a group predominantly
made up of women and immigrants. These individuals face considerable
hardship when they are forced to retire, as they have not had the time to
accumulate significant pension benefits. They may also face significant
difficulties finding alternate employment that fully utilizes their skills and
experience. This results in “a heavy personal and financial blow to the
individual”: see Tribunal decision #2, at para. 68.
[334] The Tribunal rejected
Dr. Carmichael’s claim that it would be better to create programs to compensate
these individuals for the financial disadvantages that result from mandatory
retirement, rather than eliminating the freedom to negotiate mandatory
retirement. As was noted earlier, the Tribunal questioned whether financial aid
would provide a sufficient degree of income security. Moreover, Dr.
Carmichael’s proposal did not address and could even exacerbate the loss of
dignity and pride that flows from being unemployed: Tribunal decision #2, at para.
69.
[335] Paragraph 15(1)(c) of
the CHRA has the effect of depriving individuals of legal redress for
the harm suffered when they are forced to retire at the “normal age of
retirement”. In the Tribunal’s view, the negative effects of depriving
individuals of the protection of a quasi-constitutional statute outweighed the
positive benefits associated with paragraph 15(1)(c) of the Act: Tribunal
decision #2, at para.70.
[336] The Tribunal concluded
its Charter analysis by observing that “perhaps one of the most
disturbing aspects of this provision was the one first noted by the Court in Vilven
[#1]: it allows employers to discriminate against their employees on the
basis of age so long as that discrimination is pervasive in the industry”: at
para. 70.
[337] The Tribunal was
correct in its assessment of the proportionality issue.
[338] The focus of the
analysis at this stage of the inquiry is on whether the salutary benefits of
the impugned legislation outweigh its deleterious effects. The Tribunal described
the benefits of paragraph 15(1)(c) of the CHRA for both employers and
employees. Some of these benefits are enjoyed by employees throughout the
life-cycle of their employment.
[339] It has not, however,
been established that such beneficial employment regimes require that parties
be free to negotiate employment terms that include mandatory retirement in
order for such regimes to continue. Indeed, the evidence before the Tribunal
clearly demonstrated that the benefits of such regimes have continued in
jurisdictions where mandatory retirement has been eliminated.
[340] 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, how can it be said that the benefits associated with permitting
mandatory retirement outweigh its deleterious effects?
[341] It is also important
to have regard to the nature of the interest affected, in assessing whether the
salutary benefits of paragraph 15(1)(c) outweigh its deleterious effects. For
individuals over the normal age of retirement, the interest at stake is the
ability of the individual to continue working in the career of his or her
choice. As I said in Vilven #1, “the importance of this interest cannot
be overstated”, as “Canadian jurisprudence is replete with references to the
crucial role that employment plays in the dignity and self-worth of the
individual”: at para. 293.
[342] For example, in Reference
re Public Sector Employee Relations Act (Alberta) [1987] 1 S.C.R. 313, [1987]
S.C.J. No.10, the Supreme Court of Canada stated that “Work is one of the most
fundamental aspects in a person's life, providing the individual with a means
of financial support and, as importantly, a contributory role in society”: at para.
91.
[343] Indeed,
the majority in McKinney observed that “In a work-oriented society, work
is inextricably tied to the individual's self-identity and self-worth”: at para.
93. With this in mind, Justice La Forest went on to draw a link between
mandatory retirement and the loss of an individual’s self-worth, identity and
emotional well-being, stating that “Mandatory retirement takes this away, on
the basis of a personal characteristic attributed to an individual solely
because of his association with a group”: McKinney, at para. 52.
[344] There are other
deleterious effects associated with paragraph 15(1)(c) of the CHRA.
Unlike the situation facing the Supreme Court in McKinney and Harrison, Parliament has not itself chosen what the appropriate age of retirement
should be for federally-regulated employees. Instead, it has left it to private
parties to decide what the “normal age of retirement” should be for specific
types of positions. As was explained earlier, this can create uncertainty as to
the scope of employees’ rights under the CHRA, as it may be very
difficult for an individual to ascertain exactly what the normal age of
retirement is for his or her particular type of position.
[345] There is no doubt that
collective bargaining is itself a Charter value, and that this is a
consideration that must be weighed in the mix. However, while a mandatory age
of retirement may be freely negotiated in some cases through the collective
bargaining process in exchange for other employment benefits, paragraph
15(1)(c) of the CHRA does not require that this be so.
[346] Moreover, paragraph
15(1)(c) does not just permit the unilateral imposition of mandatory retirement
by employers on unwilling employees, it also allows for the dominant player in
an industry to set the industry norm. In other words, paragraph 15(1)(c) allows
a single private sector employer to determine the extent of the
quasi-constitutional rights of an entire class of federally-regulated
employees.
[347] Air Canada and ACPA argue that a company’s role as a dominant industry player is not cast in
stone for all time, and that the “normal age of retirement” may change as
companies come and go. While this may be true, it also undermines one of the claimed
salutary effects of paragraph 15(1)(c) of the CHRA - namely the
certainty that a fixed retirement age provides to employers, allowing them to
plan for the flow of labour, and to manage wages and other financial
obligations.
[348] Also troubling is the
fact that even in industries that are not dominated by a single player,
age-based discrimination is permitted by paragraph 15(1)(c) of the CHRA,
as long as that discrimination is pervasive within an industry.
[349] As a result, the
Tribunal was correct in finding that the benefits that accrue from paragraph
15(1)(c) of the CHRA are outweighed by its deleterious effects, when
measured by the values underlying the Charter.
viii) Conclusion on the
Charter Issue
[350] I found in Vilven
#1 that paragraph 15(1)(c) of the CHRA violates subsection 15(1) of
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.
[351] For the reasons given
in this case, I find that the Tribunal was correct in concluding that Air
Canada and ACPA had not satisfied the onus on them to demonstrate that paragraph
15(1)(c) of the CHRA is saved under section 1 of the Charter.
Air Canada and ACPA have not shown that the broadly-worded exception to the
otherwise discriminatory practice of mandatory retirement contained in paragraph
15(1)(c) of the CHRA is a reasonable limit justifiable in a free and
democratic society.
IX. Is Age a Bona
Fide Occupational Requirement for Air Canada Pilots?
[352] Having concluded that paragraph
15(1)(c) of the CHRA does not provide Air Canada and ACPA with a defence
to Messrs. Vilven and Kelly’s human rights complaints, the next question is
whether the Tribunal’s finding that Air Canada had not established that being
under 60 was a bona fide occupational requirement for its pilots was
reasonable.
A. Legal Principles
Governing Bona Fide Occupational Requirements
[353] Paragraph 15(1)(a) of
the CHRA provides that it is not a discriminatory practice if “any
refusal, exclusion, expulsion, suspension, limitation, specification or
preference in relation to any employment is established by an employer to be
based on a bona fide occupational requirement”.
[354] The test to be applied
for determining whether an employer has established a bona fide
occupational requirement is that articulated by the Supreme Court of Canada in Meiorin,
above, at para. 54.
[355] That is, an employer
must establish on a balance of probabilities that:
(1) The employer adopted the
standard for a purpose rationally connected to the performance of the job;
(2) The employer adopted the
particular standard in an honest and good faith belief that it was necessary to
the fulfillment of that legitimate work-related purpose; and
(3) The standard is reasonably
necessary to the accomplishment of that legitimate work-related purpose. To
show that the standard is reasonably necessary, it must be demonstrated that it
is impossible to accommodate individual employees sharing the characteristics
of the claimant without imposing undue hardship upon the employer.
[356] The first and second
steps of the Meiorin test require an assessment of the legitimacy of the
standard’s general purpose, and the employer’s intent in adopting it. This is
to ensure that, when viewed both objectively and subjectively, the standard
does not have a discriminatory foundation. The third element of the Meiorin test
involves the determination of whether the standard is required to accomplish a
legitimate purpose, and whether the employer can accommodate the complainant
without suffering undue hardship: McGill University Health Centre v.
Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, [2007]
1 S.C.R. 161, at para.14.
[357] As the Supreme Court
of Canada observed in Hydro-Québec v. Syndicat des employé-e-s de techniques
professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ),
2008 SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in
connection with the third element of the Meiorin test had led to a
certain amount of confusion. The Court clarified that what is required is “not
proof that it is impossible to integrate an employee who does not meet a
standard, but proof of undue hardship, which can take as many forms as there
are circumstances”: at para.12.
[358] As to the scope of the
duty to accommodate, the Supreme Court stated that “The employer does not have
a duty to change working conditions in a fundamental way, but does have a duty,
if it can do so without undue hardship, to arrange the employee's workplace or
duties to enable the employee to do his or her work: Hydro-Québec, at para.16.
B. The Tribunal’s
Decision
[359] Because Canada is a signatory to the Chicago Convention, Air Canada is governed by the standards and
recommended practices developed by ICAO.
[360] Air Canada’s position before the Tribunal was that it could not accommodate pilots over the age
of 60 without experiencing undue hardship in light of the constraints imposed
on it by the ICAO standards governing international flights. According to Air Canada, being able to fly lawfully over foreign countries is an integral part of the pilot job at
Air Canada.
[361] ACPA submitted that
the abolition of the mandatory retirement provision in the Air Canada pension
plan and the Air Canada/ACPA collective agreement would cause undue hardship to
its members as it would limit the number of positions available to pilots under
60 years of age and would dilute their seniority. It would, moreover, interfere
with the ability of younger pilots to plan for their retirement, which would in
turn have a negative effect on pilot morale.
[362] Prior to November of
2006, ICAO’s standards stipulated that Pilots-in-command over the age of 60
could not fly internationally. There was, however, no mandatory upper age
limit for First Officers, although ICAO recommended that individuals over the
age of 60 not be permitted to co-pilot aircraft engaged in international air
transport operations.
[363] The ICAO standards
were amended on November 23, 2006. As of that date, ICAO’s rules provided that
Pilots-in-command under the age of 65 could fly internationally, as long as one
of the pilots in a multi-pilot crew was under 60 (known as the “over/under
rule”). ICAO also recommended, but did not require, that First Officers cease
commercial flying after reaching age 65.
[364] The Tribunal found
that there was no bar to Mr. Vilven flying internationally as an over-60 First
Officer under the pre-November 2006 ICAO standards, and that Air Canada had not
offered any evidence to show that allowing him to do so would cause it any
undue hardship.
[365] While accepting that
Mr. Kelly could not have flown as a Captain/Pilot-in-command between the time
that he turned 60 in 2005 and November of 2006, the Tribunal found that there
was no reason why he could not have continued to fly for Air Canada as a First Officer.
[366] Consequently, the
Tribunal found that Air Canada and ACPA had not established a bona fide
occupational requirement defence for their discriminatory conduct in relation
to either Mr. Vilven or Mr. Kelly during the period up to November of 2006.
[367] Air Canada’s evidence on the issue of undue hardship concentrated on the period after November
of 2006 and came primarily from Captain Steven Duke. Captain Duke is a “Six
Sigma Black Belt for Flight Operations” at Air Canada, a management position
that he had held since 2006. Six Sigma is a business improvement process
adopted by Air Canada. The description of Captain Duke as a “Black Belt” recognizes
his expertise in this process.
[368] The focus of Captain
Duke’s evidence was on the impact that having pilots over the age of 60 would
have for Air Canada’s operations - particularly as it related to the issue of
pilot scheduling - in light of Air Canada’s international obligations.
[369] According to Captain
Duke, the requirements of the over/under rule meant Air Canada could only accommodate a very limited number of potentially restricted pilots before
pilot scheduling would become unworkable. “Potentially restricted pilots” were
described by the Tribunal as Captains over 60 and under 65 and First Officers
over 60.
[370] The Tribunal accepted
that Air Canada could not schedule Pilots-in-command over 65 years of age to
fly internationally, as this would prevent Air Canada from flying many of its
international routes: Tribunal decision #2, at para.100.
[371] However, the Tribunal
found that there were numerous deficiencies in Captain Duke’s evidence with
respect to the scheduling difficulties that would result if Air Canada were required to accommodate pilots over the age of 60 who were not flying as Pilots-in-command.
This led the Tribunal to conclude that Captain Duke’s evidence was not
sufficient to establish undue hardship to Air Canada: Tribunal decision #2 at para.122.
[372] Insofar ACPA was
concerned, the Tribunal examined the issue of hardship to the union in light of
the principles articulated by the Supreme Court in Central Okanagan School
District v. Renaud, [1992] 2 S.C.R. 970, [1992] S.C.J. No. 75. The
Tribunal had particular regard for the effect that accommodative measures would
have had on other ACPA members.
[373] The Tribunal found
that there was no evidence to show that a delay in the career progression and
salary increases of younger pilots would cause substantial interference with
the rights of these employees: Tribunal decision #2, at para.140. According to
the Tribunal, forcibly retiring older workers in order to make way for younger
workers would itself be discriminatory, as it assumed that the continued employment
of older individuals is less important to those individuals and of less value
to society at large than the continued employment of younger individuals.
[374] Seniority at Air Canada determines, amongst other things, the equipment that a pilot will fly on and the
schedule that he or she will receive. The Tribunal did not accept ACPA’s
argument that accommodating over-60 pilots would dilute the seniority rights of
under-60 pilots, particularly with respect to scheduling, while giving the
seniority rights of over-60 pilots full measure, all to the detriment of pilot
morale.
[375] The Tribunal found
that there may be ways to address the scheduling problems that would
potentially arise from the implementation of the over/under rule. For example,
the Tribunal said that rather than requiring under-60 First Officers to
accommodate the over-60 Captains, ACPA and Air Canada could agree that in the
event of a scheduling problem, over-60 Captains would be required to bid into
positions where they could be accommodated: Tribunal decision #2, at para.
149.
[376] The Tribunal also
found that ACPA had failed to establish that the level of disruption and the
inevitable prospect of interference with other employees' rights that would
result from the removal of the mandatory retirement provision in the collective
agreement constituted an undue hardship. ACPA has not challenged the Tribunal’s
bona fide occupational requirement finding in its application for
judicial review.
C. The Significance of
the ICAO Standards
[377] To properly understand
Air Canada’s position on the bona fide occupational requirement issue,
and in order to put Captain Duke’s evidence into context, it is first necessary
to consider the significance of the changes to the ICAO standards that occurred
after the termination of Messrs. Vilven and Kelly’s employment.
[378] It will be recalled
that as of November, 2006, ICAO’s “over/under rule” permitted Pilots-in-command
between the ages of 60 and 65 to continue to fly internationally, but only if
one of the other pilots in a multi-pilot crew is under 60.
[379] The ICAO standards
only apply to international flights. However, the vast majority of Air Canada flights have an international aspect to them. In fact, 86% of Air Canada flights are either to an international destination, or pass through foreign
(primarily American) airspace, en route to a Canadian destination. Between 20
and 25% of the remaining 14% of Air Canada flights have an American airport as
an alternate airport where planes are to land if, for example, weather precludes
landing at the regularly-scheduled Canadian airport.
[380] The consequences of
failing to comply with the over/under rule could potentially be severe for Air
Canada, as contracting States may ground aircraft and deny entry into their
airspace to any aircraft flown by pilots who do not meet ICAO standards.
D. Timing and the Duty
to Accommodate
[381] The first question for
the Court to consider is when the issues of accommodation and undue hardship
had to be assessed in relation to Messrs. Vilven and Kelly’s human rights
complaints.
[382] In some cases, it will
not be appropriate to simply examine the situation as of the date of the
termination of an individual’s employment. For example, where an employee is
dismissed because of health-related absenteeism, the employer’s claim of undue
hardship must be assessed globally, taking the entire situation leading up to
the termination into account: see Hydro-Québec, at para. 21.
[383] In this case, Messrs.
Vilven and Kelly had no need of any accommodation until such time as they
reached the age of 60, at which point, their employment was terminated in
accordance with the mandatory retirement provisions of the Air Canada pension
plan and the Air Canada/ACPA collective agreement. I agree with Air Canada that in these circumstances, the issue of accommodation must first be assessed as of
the date of termination. In the case of Mr. Vilven, this was 2003. In Mr.
Kelly’s case, it was 2005.
[384] I also agree with Air
Canada that having regard to the systemic nature of Messrs. Vilven and Kelly’s
human rights complaints and the fact that the potential invalidation of the
mandatory retirement provisions in the Air Canada Pension Plan and the Air
Canada/ACPA collective agreement would affect other Air Canada pilots, it was also
appropriate for the Tribunal to examine the issue of undue hardship on a
going-forward basis, taking into account the subsequent changes to the ICAO
standards.
[385] Such a forward-looking
examination was also necessitated by the fact that Messrs. Vilven and Kelly
were seeking reinstatement into the positions that they would have held, had
they not been required to retire at age 60.
E. Factors to Consider
in Relation to the Issue of Accommodation
[386] Subsection 15(2) of
the CHRA provides that in order to establish the existence of a bona
fide occupational requirement or justification, “it must be established
that accommodation of the needs of an individual or a class of individuals
affected would impose undue hardship on the person who would have to
accommodate those needs, considering health, safety and cost”. [emphasis
added].
[387] In assessing whether
Air Canada could accommodate pilots over the age of 60, the Tribunal determined
that it could look at matters other than health, safety and cost. The Tribunal
observed that in Meiorin, the Supreme Court indicated that the factors
to be considered in determining whether accommodation imposes undue hardship
are not entrenched, unless they are expressly included or excluded by statute:
Tribunal decision #2, at para. 78, citing Meiorin, at para. 63.
[388] The Tribunal further
observed that in McGill University Health Centre, above, the Supreme
Court emphasized that the factors that will support a finding of undue hardship
should be applied with flexibility and common sense. The Court identified the
cost of the possible accommodation, employee morale and mobility, interference
with other employees' rights, and disruption of the collective agreement as
examples of factors that may be considered: Tribunal decision #2, at paras. 79
and 80, citing McGill University Health Centre, at para. 15.
[389] This was of particular
significance as it related to the Tribunal’s analysis of the undue hardship arguments
advanced by ACPA, which were largely based upon the impact on the rights of
other employees that would result from the accommodation of over-60 pilots. As
mentioned earlier, ACPA has not challenged the Tribunal’s bona fide
occupational requirement finding.
[390] The undue hardship
evidence adduced by Air Canada related primarily to operational considerations
that would affect the company’s costs. However, other forms of hardship were also
identified by the company, primarily the impact that accommodating pilots over
60 would have on the seniority rights of other Air Canada employees. The
question thus arises as to whether the Tribunal was statutorily limited to
considering the factors of health, safety and cost in assessing whether a bona
fide occupational requirement defence had been established.
[391] I recognize that in
determining that it could look at matters other than health, safety and cost, the
Tribunal was interpreting its enabling statute and was dealing with the scope
of the duty to accommodate - a matter squarely within the Tribunal’s
expertise. As a result, its interpretation of subsection 15(2) of the CHRA
is entitled to deference: see Celgene Corp. v. Canada (Attorney General),
2011 SCC 1, at para. 34. Nevertheless, I am satisfied that the Tribunal’s
interpretation of this provision was unreasonable.
[392] It is true that the
Supreme Court has identified matters such as employee morale and mobility,
interference with other employees’ rights, and disruption of the collective
agreement as factors that may be considered in relation to the question of
accommodation. The McGill University Health Centre decision relied upon
by the Tribunal is an example of this. This was not, however, a decision under
the CHRA, and did not involve a statutory provision such as subsection
15(2).
[393] As the Tribunal itself
noted, the Supreme Court stated in Meiorin that the factors to be
considered in determining whether accommodation imposes undue hardship “are not
entrenched, unless they are expressly included or excluded by statute”:
at para. 63, emphasis added. In this case, Parliament has chosen to
specifically identify the matters that may be taken into account by the
Tribunal in an accommodation analysis: see Russel Zinn, The Law of Human
Rights in Canada: Practice and Procedure, loose-leaf, (Aurora: Canada Law
Book, 1996) at s. 14:60:2.
[394] Moreover, there are
two different interpretative principles that were not addressed by the
Tribunal, both of which suggest that the factors identified in subsection 15(2)
of the Canadian Human Rights Act 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.
[395] The “expressio
unius est exclusio alterius” maxim refers to a general principle of
statutory interpretation which suggests that to express one thing is to exclude
another: see Ruth Sullivan, Sullivan on the Construction of Statutes, 5th
ed. (Markham: LexisNexis, 2008) at p. 244.
[396] That is,
the failure of Parliament to mention a thing in a list will give rise to the
inference that it was deliberately excluded. As Professor Sullivan says, “The
force of the implication depends on the strength and legitimacy of the
expectation of express reference. The better the reason for anticipating
express reference to a thing, the more telling the silence of the legislature”:
at p. 244.
[397] In this
case, a substantial body of Supreme Court jurisprudence 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: see, for
example, Central Alberta Dairy Pool, and Renaud, both previously
cited. 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.
[398] Nevertheless, in
enacting subsection 15(2) of the CHRA,
Parliament did not say that the Tribunal was to consider matters “such as”
or “including” health, safety and cost, but chose instead to
specifically identify the factors to be considered in relation to the question
of accommodation as being these three specific matters. These circumstances
give rise to a strong inference that Parliament intended the list set out in subsection 15(2) of the CHRA to be an exhaustive
one.
[399] My conclusion that
subsection 15(2) of the Canadian Human Rights Act
should be interpreted as limiting the factors to be taken into account in an
accommodation analysis to health, safety and cost is reinforced when the issue
is examined in light of the principles to be applied when interpreting human
rights legislation.
[400] That is,
while the quasi-constitutional rights conferred by human rights legislation are
to be broadly interpreted, this is not so with respect to the defences provided
in the human rights statute in question. Defences to the exercise of those rights are to be
interpreted narrowly: see Brossard (Town) v. Québec (Commission des
droits de la personne), [1988] 2 S.C.R. 279, [1988] S.C.J. No. 79 (QL) at
para. 56, and Dickason, at para. 17.
[401] As Justice
Sopinka observed in Zurich
Insurance Co. v. Ontario (Human Rights Commission) [1992] 2 S.C.R. 321, [1992]
S.C.J. No. 63, human rights legislation is often “...the final refuge of the
disadvantaged and the disenfranchised”. He went on to observe that “As the
last protection of the most vulnerable members of society, exceptions to such
legislation should be narrowly construed ...”: at para.18.
[402] That is not to say
that matters such as employee morale and mobility, interference with other
employees’ rights, and disruption of a collective agreement could never be
relevant in a claim under the CHRA. Rather, my interpretation of the
legislation simply means that in order to be taken into account in an
accommodation analysis, these matters must be of a sufficient gravity as to
have a demonstrable impact on the operations of an employer in a way that
relates to health, safety or cost.
[403] Before leaving this
matter, I would acknowledge that the Superior Court of Québec came to a
different conclusion in relation to this question in Syndicat des employées
et employés professionnelles et professionnels de bureau, section locale 434
(FTQ) c. Gagnon, [2005] J.Q. no 9368, at para. 39. There, the Court stated
that the list contained in paragraph 15(2) of the CHRA was descriptive,
rather than limiting. However, no reasons were provided for this conclusion,
and I must respectfully disagree with it.
[404] Although I have found
that the Tribunal erred in its interpretation of subsection
15(2) of the CHRA, as will be explained further on in these
reasons, the determinative issue on the bona fide occupational
requirement issue is the Tribunal’s treatment of the evidence regarding
cost-related operational matters affecting the Air Canada’s ability to
accommodate over-60 pilots in the post-November, 2006 period. Before going
there, however, the Court must first consider the reasonableness of the
Tribunal’s bona fide occupational requirement finding as it relates to
the pre-November, 2006 period.
F. Accommodation in
the Pre-November 2006 Period
[405] The next question,
then, is whether the Tribunal’s finding that Air Canada had not established the
existence of a bona fide occupational requirement defence for its
discriminatory conduct vis-à-vis Messrs. Vilven and Kelly during the
period prior to the changes to the ICAO standards in November of 2006 was
reasonable.
[406] The primary thrust of
Air Canada’s argument as it related to the bona fide occupational
requirement issue was that the Tribunal misunderstood and mischaracterized the
evidence put forward by Captain Duke, and ignored important portions of that
evidence.
[407] Captain Duke’s
evidence focused primarily on the operational and scheduling difficulties that
Air Canada would encounter if mandatory retirement was abolished, in light of
the post-2006 ICAO standards. Air Canada made only brief submissions to the
Court with respect to the Tribunal’s bona fide occupational requirement
finding regarding the period before November of 2006.
i) The Accommodation
of Mr. Vilven in the Pre-November 2006 Period
[408] The burden is on the
employer to produce concrete evidence to establish undue hardship: see Hutchinson v. British Columbia (Ministry of Health) (No. 4) (2004),
49 C.H.R.R. D/348, 2004 BCHRT 58, at paras. 69 and 230, and Grismer, above,
at para. 41.
[409] The Tribunal found
that Air Canada had not offered any evidence to show that allowing Mr. Vilven
to continue flying as a First Officer after he turned 60 would have caused it
any undue hardship in the pre-November 2006 period. Air Canada says that the Tribunal erred in this regard by only considering the situation of Mr.
Vilven in its undue hardship analysis.
[410] By looking only at
whether Mr. Vilven could have been accommodated, Air Canada says that the
Tribunal asked itself the wrong question, given that what the complainants were
seeking was the invalidation of the mandatory retirement requirement for all
Air Canada pilots. Air Canada submits that the Meiorin test required the
Tribunal to determine whether it would have been possible for Air Canada to accommodate not just the individual complainant, but all employees sharing
the characteristics of the complainant, without imposing undue hardship upon
the employer.
[411] Air Canada had, however, conceded before the Tribunal that nothing in the ICAO standards in effect at
the time that Mr. Vilven was forced to retire from Air Canada in 2003 prevented over-60 First Officers from flying international flights:
transcript, at p. 2170.
[412] Indeed, Air Canada
could not point to any evidence in the record that would suggest that the
answer would have been any different, depending on whether the Tribunal was
considering Air Canada’s ability to accommodate Mr. Vilven alone, or all
over-60 First Officers in the period prior to November of 2006. Consequently,
any error that the Tribunal may have committed in this regard was not material
to the result.
[413] Given that the ICAO
standards did not impose any mandatory restrictions on the ability of over-60
First Officers to continue flying, it follows that Mr. Vilven and other over-60
First Officers continued to be able to satisfy the requirements of their jobs,
as long as they were able to meet Transport Canada’s licensing requirements.
[414] As a result, the
Tribunal’s finding of liability on the part of Air Canada for the termination
of Mr. Vilven’s employment was reasonable. The reasonableness of the
Tribunal’s findings with respect to the ability of Air Canada to continue to accommodate Mr. Vilven and other over-60 First Officers after the coming
into force of the new ICAO standards in November of 2006 will be addressed
further on in these reasons.
ii) The
Accommodation of Mr. Kelly in the Pre-November 2006 Period
[415] The Tribunal found
that although Mr. Kelly could not have continued to fly as a
Captain/Pilot-in-command after he turned 60 in 2005, there was no reason why he
could not have continued to fly internationally for Air Canada as a First Officer. The Tribunal noted that Air Canada did not consider or offer
such accommodation to Mr. Kelly, nor did ACPA make any efforts to seek such an
accommodation for Mr. Kelly as it was required to do.
[416] As was the case with
Mr. Vilven, Air Canada says that the Tribunal erred by only looking at whether
Mr. Kelly could have been accommodated, rather than considering whether all
over-60 Captains could have been accommodated by Air Canada.
[417] Where accommodation is
required, the obligation is not on the employee to originate a solution. It is
the employer who will be in the best position to determine how the complainant
can be accommodated without undue interference in the operation of the
employer’s business: see Renaud, above, at para. 44.
[418] As the Supreme Court
observed in the Hydro-Québec case, an employer has the duty to arrange
the employee’s workplace or duties so as to enable the employee to do his or
her work, if it can do so without undue hardship: at para. 16.
[419] Where an employer has
initiated an accommodation proposal that is reasonable and which would, if
implemented, fulfill the duty to accommodate, the complainant has a duty to
facilitate the implementation of the proposal. If the employee fails to take
reasonable steps causing the employer’s proposal to founder, the employee’s
human rights complaint will be dismissed: Renaud, at para. 44.
[420] While the pre-2006
ICAO standards restricted the capacity in which Mr. Kelly could have continued
to fly for Air Canada once he turned 60, there was no licensing or operational
restriction that would have prevented him from using his considerable seniority
to bid into pilot positions other than that of Captain/pilot-in-command, such
as a First Officer position.
[421] Thus, as of the date
of the termination of Mr. Kelly’s employment in 2005, there was no legal
impediment, other than the mandatory retirement provisions of the Air Canada
pension plan and the Air Canada/ACPA collective agreement, that would have
precluded him from remaining employed as a pilot with Air Canada.
[422] Meiorin imposes both
procedural and substantive obligations on employers when dealing with
discriminatory employment standards. One important question to be considered in
determining whether these obligations have been satisfied is whether the
employer has investigated alternative approaches that do not have a
discriminatory effect. Another important question is whether there are
different ways to perform the job, while still accomplishing the employer's
legitimate work-related purpose: see Meiorin, at paras. 65-66.
[423] That is, it will be
incumbent on an employer to show that it had considered and reasonably rejected
all viable forms of accommodation: see Grismer, at para. 42.
[424] The evidence before
the Tribunal was that Air Canada never considered whether it was possible to
accommodate its over-60 Captains, including Mr. Kelly.
[425] We do not know whether
flying as a First Officer would have been an acceptable alternative for Mr.
Kelly. He may well have been willing to start flying as a First Officer after
he turned 60, if the alternative was that he would have lost his job. We do not
know for sure, however, because Mr. Kelly was never given that option. Indeed,
no accommodation proposal was ever forthcoming from Air Canada.
[426] Air Canada had an obligation to arrange its employees’ duties so as to enable them to do their
work, if it could do so without undue hardship. Air Canada did not establish
that allowing Mr. Kelly to have continued his pilot career with Air Canada, albeit in a different capacity, would have caused undue hardship to the company in
the period leading up to November of 2006.
[427] Moreover, as was the
case with Mr. Vilven, Air Canada has not pointed to concrete evidence to show
that the answer would have been different, if the Tribunal had considered Air
Canada’s ability to accommodate all over-60 Captains in the period prior to
November of 2006. Consequently, the Tribunal’s finding of liability for the
termination of Mr. Kelly’s employment in 2005 was reasonable.
[428] The next issue, then,
is the reasonableness of the Tribunal’s findings with respect to the ability of
Air Canada to continue to accommodate over-60 pilots after the coming into
force of the new ICAO standards in November of 2006.
G. Accommodation
in the Post-November 2006 Period
[429] As was noted earlier,
Air Canada says that the Tribunal misunderstood and mischaracterized the
evidence put forward by Captain Duke in support of its undue hardship
argument. Air Canada also contends that the Tribunal ignored important
portions of Captain Duke’s evidence as to the operational and scheduling
difficulties that would result if Air Canada were required to accommodate
pilots over the age of 60. According to counsel for Air Canada, it is “wholly unsatisfactory that such an important issue be resolved on the basis
of reasons that are flawed, unreasonable and inadequate”.
[430] As will be explained
further on in these reasons, Messrs. Vilven and Kelly also take the position that
the Tribunal erred in its assessment of the bona fide occupational
requirement issue, although they say that it ultimately got to the right
result, albeit for the wrong reasons.
i) The
Tribunal’s Treatment of Captain Duke’s Evidence
[431] The Tribunal
recognized that Air Canada’s ability to accommodate pilots over the age of 60
was “more problematic” under the post-November 2006 ICAO standards: Tribunal
decision #2, at para. 95.
[432] Captain Duke’s
evidence focused on the impact that the elimination of mandatory retirement
would have in relation to several different aspects of Air Canada’s operations. One of the issues that he addressed was the uncertainty that could
result with respect to the hiring and training of pilots if mandatory
retirement were abolished at Air Canada. Captain Duke explained that it takes
the company about three months to schedule and train a pilot. As most Air Canada pilots now wait until they reach 60 to retire, this allows Air Canada to predict its staffing
and training needs with a relative degree of certainty.
[433] Captain Duke testified
that if mandatory retirement were abolished at Air Canada, the airline could be
caught short if an over-60 pilot suddenly decided to retire, as nothing in the
collective agreement requires pilots to give advance notice of when they intend
to retire. According to Captain Duke, an unanticipated retirement could have a
serious impact on the company’s operations.
[434] Captain Duke conceded that
this would not be an issue if Air Canada and ACPA were to agree to a
requirement that pilots give a year’s advance notice of their intention to
retire, or if the Tribunal were to make such an order. While observing that
such a requirement could potentially be difficult to enforce as it is hard to
force someone to work if they do not want to, Captain Duke acknowledged that
economic incentives could be created to encourage the giving of timely notice.
[435] Air Canada does not take issue with this assertion, but says that the Tribunal erred in failing
to order that such a provision be included in the Air Canada/ACPA collective
agreement. I am not persuaded that the Tribunal erred as alleged.
[436] As noted above,
Captain Duke’s evidence was that a notice requirement could either be imposed
by the Tribunal, or could be negotiated by Air Canada and ACPA. The Tribunal
observed that the burden was on Air Canada and ACPA to demonstrate that the
renegotiation of the collective agreement would constitute undue hardship, and
that it was not sufficient to merely assert that this is so without producing
evidence to back it up. The Tribunal went on to note that Captain Duke had
testified that, with some cooperation from the union, the necessary changes to
the workplace rules could indeed be made.
[437] The Tribunal was
clearly satisfied that this was a matter that could be worked out between Air Canada and ACPA. As the Tribunal observed, Captain Duke himself had testified that “We are
being pushed into a new world here and we are going together in this, so we
have to make it work for everyone”: transcript, at p. 1438.
[438] The Tribunal went on
to note that “Presumably as a co-respondent and prompted by the Tribunal's
decision, Air Canada would be motivated to cooperate in this process: see
Tribunal decision #2, at paras. 153-154. As a matter of law, ACPA would also
have an obligation to “make it work”: see Renaud, above.
[439] The Tribunal accepted
Captain Duke’s evidence on a second point, namely that the post-November 2006
ICAO standards prevented Air Canada from using Captains over the age of 65 on
its international flights. I do not understand Messrs. Vilven and Kelly to
dispute this finding.
[440] The Tribunal did not
address Captain Duke’s evidence as it related to Air Canada’s ability to have
Captains over the age of 65 fly purely domestic routes, as Messrs. Vilven and
Kelly had each indicated that they wanted to continue flying internationally.
No issue was taken with respect to this point by Air Canada.
[441] The major focus of
Captain Duke’s evidence, and of the Tribunal’s analysis, was on the ability of
Air Canada to accommodate Captains and First Officers over the age of 60, in
light of impact of the over/under rule on seniority and scheduling.
[442] Captain Duke presented
demographic evidence that showed that within five years of the abolition of
mandatory retirement at Air Canada, a very substantial percentage of Air Canada pilots would be over the age of 60, assuming that all of them continued working: see
slides 60-68 of Captain Duke’s PowerPoint presentation.
[443] Captain Duke says that
Air Canada could only accommodate a very limited number of potentially
restricted pilots (Captains over 60 but under 65, and First Officers over 60) before
pilot scheduling would become unworkable because of the over/under rule.
[444] To demonstrate the
difficulties that Air Canada would encounter if it were required to accommodate
over-60 pilots, Captain Duke ran a series of experiments examining the
scheduling consequences of having various percentages of A-340 Captains and
First Officers being over the age of 60 in Vancouver and Toronto.
[445] He found that a
schedule could be arrived at if 10% of A-340 Captains and First Officers in Vancouver were over 60. It would, however, result in a number of First Officers’
seniority not being respected, with some pilots receiving materially lower
quality monthly schedules, including being placed on reserve schedules rather
than fixed flying schedules. Moreover, the utility of these pilots in
providing reserve coverage would be diminished by the fact that potentially
restricted pilots could not replace a First Officer if the Captain on an
international flight was over 60.
[446] No pilot schedule
could be generated if the percentage of potentially restricted Captains in Vancouver was increased to 20%, and the percentage of potentially restricted First
Officers was increased to 11%. This is because there simply would not be enough
unrestricted pilots available to fly with the restricted pilots.
[447] Captain Duke’s Toronto experiments demonstrated that no solution was possible if more than 30% of A-340
Captains and First Officers were potentially restricted. Similarly, no schedule
could be generated if more than 20% of Captains and 40% of First Officers were
potentially restricted.
[448] According to Captain
Duke, additional pilots would have to be hired by Air Canada to ensure that all flights could be properly staffed. At the same time, the airline
would have to continue paying the over-60 pilots whose services could not be
used. The quality of the schedules generated for some pilots would also be
negatively affected.
[449] The Tribunal
identified several deficiencies in Captain Duke’s evidence, which led the
Tribunal to conclude that the evidence was not sufficient to establish undue hardship
to Air Canada: Tribunal decision #2, at para.122. There are, however, a number
of problems with the Tribunal’s treatment of Captain Duke’s evidence.
[450] For example, Captain
Duke stated that although a scheduling solution could be found if only 10% of Vancouver pilots were “potentially restricted”, it would have resulted in some First
Officers receiving materially lower quality monthly schedules.
[451] The Tribunal noted
that “There is no evidence as to the actual number of restricted pilots
included in the 10% cohort”: Tribunal decision #2, at para.122. However,
Captain Duke’s experiment did not require consideration of the actual number of
over-60 Captains and First Officers in Vancouver at the time. The purpose of
the experiment was to determine whether a flight schedule could be produced if
10% of each group was potentially restricted.
[452] The Tribunal
discounted Captain Duke’s evidence on this point on the basis that he had not
explained how he had arrived at these conclusions: Tribunal decision #2, at para.
124. In actual fact, Captain Duke had explained that he had used Air Canada’s normal scheduling software, identified certain pilots as restricted under the ICAO
standards, and then tried to generate hypothetical schedules in the same way
that Air Canada currently generates real monthly schedules: transcript, at pp.
1409-1411.
[453] The Tribunal also found
that there was “no evidence as to what is a materially lower quality schedule
or why this is so”: Tribunal decision #2, at para. 125. However, Captain Duke
had explained in his testimony that a “materially lower quality schedule” was
one where senior pilots were awarded the reserve (or “on-call”) duty that would
typically be awarded to more junior pilots, as opposed to a fixed, scheduled
block of flying: transcript, at pp.1397-98 and 1410-1411, and slides 16-19 of
Captain Duke’s PowerPoint presentation.
[454] Captain Duke explained
that seniority determines the quality of the schedule that a pilot can obtain.
More senior pilots can work fewer days in a month (potentially as few as eight)
and can avoid working on weekends. Examples of actual pilot schedules of
varying qualities (reflecting varying levels of seniority) were provided to the
Tribunal.
[455] It is true that a
tribunal is not required to refer to every piece of evidence in the record, and
will be presumed to have considered all of the evidence that is before it: see,
for example, Hassan v. Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 946; 147 N.R. 317 (F.C.A.). That said, the more important the
evidence that is not specifically mentioned and analyzed in the tribunal’s
reasons, the more willing a court may be to infer that the tribunal made an
erroneous finding of fact without regard to the evidence: see Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
1425, 157 F.T.R. 35, at paras.14-17.
[456] Captain Duke’s
evidence was central to Air Canada’s bona fide occupational requirement
defence. Moreover, this is not merely a situation where the Tribunal failed to
specifically refer to evidence contrary to its findings. Rather, the Tribunal
stated quite categorically that there was “no evidence” on these points, giving
rise to the inescapable inference that important portions of Captain Duke’s evidence
were overlooked.
[457] The Tribunal stated
that “no explanation” had been provided for why it was that a schedule could
not be generated when the Vancouver experiment shifted to 20% of Captains and
11% of First Officers being potentially restricted: Tribunal decision #2, at para.127.
However, Captain Duke explained why a schedule could not be generated in these
circumstances: see transcript, at pp.1411-1417. It was open to the Tribunal to
reject this explanation, but its statement that “no explanation” had been
provided once again suggests that the evidence on this point was overlooked.
[458] The Tribunal also found
that the evidence was “lacking” as to the potential cost that would be incurred
by Air Canada if it were required to hire at least one additional pilot while
continuing to pay reserve pilots whose services could not be utilized: Tribunal
decision #2, at para. 126.
[459] However, Air Canada had actually provided detailed evidence as to the cost of hiring additional pilots in
order to ensure that its reserve requirements were met. Captain Duke testified
that the average salary and benefits for an Air Canada pilot is $177,000 per
year. Mr. Harlan Clarke, the Manager, Labour Relations at Air Canada, explained the pay system and pay rates for Air Canada pilots under the terms of the Air
Canada/ACPA collective agreement. Mr. Clarke also testified that reserve pilots
are guaranteed a minimum payment of 71 hours of pay per month.
[460] No explanation was
provided by the Tribunal as to why this evidence was “lacking”. Thus this element
of the Tribunal’s decision thus lacks the transparency and accountability
required of a reasonable decision.
[461] While agreeing that
there were problems with the Tribunal’s analysis, Messrs. Vilven and Kelly urge
me to find that its overall conclusion that a bona fide occupational
requirement defence had not been made out by Air Canada was reasonable. They
say that all of the logistical and scheduling problems identified by Captain
Duke could be eliminated if Air Canada simply required that all over-60 pilots
work as First Officers. If there were no over-60 Captains/Pilots-in-command,
Messrs. Vilven and Kelly say that the over/under rule would never come into
play.
[462] The difficulty with
this argument is that the Tribunal did not offer it as a reason for rejecting
Air Canada’s bona fide occupational requirement defence. It did touch
on possible changes that could be made to the duties of
Captains/Pilots-in-command in order to address the scheduling problems that
could result from accommodating over-60 pilots, but did so in the context of
its undue hardship analysis as it related to ACPA: Tribunal decision #2, at paras.148-151.
[463]
In
reviewing a decision against the reasonableness standard, it is not the role of
a reviewing Court to find facts, to reweigh them, or to substitute its decision
for that of the Tribunal: see League for Human Rights of B'Nai Brith Canada v.
Odynsky, 2010 FCA 307, 2010] F.C.J. No. 1424, at para. 85. See also Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59.
[464] For these reasons, I
find that the Tribunal’s bona fide occupational requirement analysis was
not reasonable as it related to Air Canada’s ability to accommodate pilots over
the age of 60 after November of 2006. Consequently, this aspect of the
Tribunal’s decision will be set aside.
[465] Before leaving the bona
fide occupational requirement issue, there is one further matter that must
be addressed, and that is a further error in the Tribunal’s analysis identified
by Messrs. Vilven and Kelly.
ii) The
Tribunal’s Finding Regarding the First Two Elements of the Meiorin Test
[466] Messrs. Vilven and
Kelly take issue with the Tribunal’s statement that they had conceded that the
first two requirements of the Meiorin test had been satisfied: see
Tribunal decision #2, at para. 82. They contend they never conceded that the
mandatory retirement provision of the Air Canada/ACPA collective agreement had
been adopted for a rational purpose connected with the performance of the job, in
the honest and good faith belief that it was necessary to the fulfillment of
this work-related objective. Indeed, Messrs. Vilven and Kelly have advanced a
number of arguments before this Court as to why the first two elements of the Meiorin
test had not been satisfied by Air Canada.
[467] A review of the record
discloses that a concession with respect to the first two elements of the Meiorin
test was made before the Tribunal by counsel for the Canadian Human Rights
Commission: transcript, at p.1984. No such concession appears to have been
made by either Mr. Vilven or Mr. Kelly, or by the interested party, the Fly
Past 60 Coalition.
[468] Complainants and the
Commission have separate party status before the Tribunal: see subsection 50(1)
of the CHRA. Interested party status may also be granted to third
parties by the Tribunal: subsection 48.3(10). The Commission does not represent
the interests of complainants before the Tribunal. Rather, the Commission is
statutorily mandated to take such position before the Tribunal as, “in its
opinion, is in the public interest having regard to the nature of the
complaint”: section 51. As a result, concessions made by the Commission are not
binding on either the complainants or on interested parties.
[469] I have already found
that the Tribunal’s finding with respect to the bona fide occupational
requirement issue as it related to the period before November of 2006 was
reasonable. Consequently, any error on the part of the Tribunal with respect to
the first two elements of the Meiorin test is immaterial as it relates
to that time frame.
[470] However, I have found
that there were a number of errors in the Tribunal’s bona fide
occupational requirement analysis as it related to the post-November 2006
period, rendering this aspect of the Tribunal’s decision unreasonable.
[471] As a result, the
question of whether being under 60 was a bona fide occupational
requirement for Air Canada pilots after November of 2006 will be remitted to
the same panel of the Tribunal, with the direction that the issue must be
examined in light of all three elements of the Meiorin test.
X. Remedy
[472] There is a dispute
between the parties as to the remedy that should be granted by the Court, in
the event that I were to uphold the Tribunal’s decision in relation to the Charter
question, as I have in fact done.
[473] Shortly before the
hearing of these applications for judicial review, Messrs. Vilven and Kelly
brought a motion for leave to amend their memorandum of fact and law. They
sought to include a request for a declaration that paragraph 15(1)(c) of the CHRA
is inconsistent with the Charter and is of no force and effect by
operation of subsection 52(1) of the Constitution Act, 1982.
[474] Messrs. Vilven and
Kelly say that since the commencement of the human rights proceedings, they
have sought an order directing Air Canada to cease applying the mandatory
retirement provisions of the pension plan and collective agreement to all Air
Canada pilots.
[475] It is evident from the
affidavit sworn in support of the motion that the impetus for the respondents’ last-minute
motion was a further decision of the Tribunal dealing with the issue of the
remedies that were to be granted to Messrs. Vilven and Kelly. This decision
was issued a couple of weeks before the commencement of the hearing of these
applications.
[476] In its most recent
decision, the Tribunal refused to order Air Canada and ACPA to cease applying
the mandatory retirement provisions of the collective agreement and Air Canada pension plan to all Air Canada pilots. In the Tribunal’s view, Messrs. Vilven and Kelly were
seeking to have the remedies granted by the Tribunal extend beyond their own
individual complaints.
[477] Citing the decision of
the Supreme Court of Canada in Nova Scotia (Workers' Compensation
Board) v. Martin, above, the Tribunal observed that it did not have the
power to make a general declaration of legislative invalidity. In the
Tribunal’s view, the appropriate remedy was for it to rescind the termination
of Messrs. Vilven and Kelly’s employment by ordering Air Canada to cease applying the mandatory retirement provisions of the pension plan to them.
The Tribunal further ordered that the discriminatory practice be redressed by
directing Air Canada to reinstate Messrs. Vilven and Kelly.
[478] Air Canada and ACPA oppose the motion on the basis that, as respondents to applications for
judicial review, Messrs. Vilven and Kelly are not entitled to the declaratory
relief that they are seeking. According to the applicants, if Messrs. Vilven
and Kelly are successful in defending the applications, the only remedy available
to the Court under section 18.1 of the Federal Courts Act is to dismiss
the applications.
[479] The constitutional
remedies available to administrative tribunals (including the Canadian Human
Rights Tribunal) are limited. Tribunals do not have the power to grant general
declarations of invalidity. A determination by a tribunal that a provision of
its enabling statute is invalid pursuant to the Charter will not be
binding on future decision-makers: see Nova Scotia (Workers'
Compensation Board) v. Martin, at para. 31.
[480] This Court clearly
possesses the jurisdiction to hear constitutional challenges in the context of
applications for judicial review, and to grant declaratory relief in that
regard: see Moktari v. Canada (Minister of Citizenship and Immigration),
[2000] 2 F.C. 341, [1999] F.C.J. No. 1864, (F.C.A.), and Gwala v. Canada
(Minister of Citizenship and Immigration), [1999] 3 F.C. 404, [1999] F.C.J.
No. 792 (F.C.A.). It should be noted, however, that in both of these cases it
was the applicant who was seeking the declaratory relief.
[481] The Court’s power to
grant declaratory relief is predicated upon there first being a finding that
the tribunal in question erred in one of the ways identified in section 18.1(4)
of the Federal Courts Act. This provision states that the Federal Court
may grant relief (including declaratory relief) if it is satisfied that the
federal board, commission or other tribunal erred.
[482] I have concluded that
the Tribunal did not err in finding that paragraph 15(1)(c) of the CHRA
is not saved by section 1 of the Charter. Consequently, the remedial
powers conferred on the Court by subsection 18.1(3) of the Federal Courts
Act are not engaged. The proper remedy is for the Court to dismiss Air Canada and ACPA’s applications for judicial review insofar as they relate to the Charter
issue.
[483] Messrs. Vilven and
Kelly argue that despite the wording of section 18.1 of the Federal Courts
Act, this Court nevertheless has the power to grant a general declaration
of invalidity with respect to paragraph 15(1)(c) of the CHRA under
subsection 52(1) of the Constitution Act, 1982. Subsection 52(1) states
that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.” They have not, however, identified a
single case where declaratory relief, whether constitutional or otherwise, has
been granted to a respondent on an application for judicial review.
[484] Assuming, without
deciding, that such a constitutional remedy could ever be granted to a
responding party on an application for judicial review such as this, there are
two reasons why I do not think it appropriate to do so here.
[485] The first is that what
Messrs. Vilven and Kelly are really trying is to do is to mount a collateral
attack on the Tribunal’s remedial decision. That decision is not before me.
If the respondents are not content with the remedies that were granted by the
Tribunal, it is open to them to seek judicial review of the Tribunal’s remedial
decision.
[486] The second reason that
I would decline to grant such relief is that although the federal and
provincial Attorneys General would have been aware that constitutional validity
of paragraph 15(1)(c) of the CHRA was at issue in this proceeding by
virtue of the Notice of Constitutional Question served by ACPA, this Notice was
served in the context of applications for judicial review brought by ACPA and
Air Canada, and not by Messrs. Vilven and Kelly.
[487] In these
circumstances, I do not believe that the Attorneys General could reasonably
have anticipated that Messrs. Vilven and Kelly would be seeking a general
declaration of invalidity with respect to paragraph 15(1)(c) of the CHRA.
This is especially so in light of the fact that there was no reference to such
relief being sought in Messrs. Vilven and Kelly’s memorandum of fact and law.
[488] A general declaration
of invalidity could potentially have widespread implications for many
federally-regulated workplaces. Had the Attorneys General been aware that such
relief was being sought by the respondents, it could well have affected their
decisions as to whether or not to participate in this proceeding. It is
entirely possible that one or more Attorneys General may have wished to make
submissions, either with respect to the constitutional validity of the
legislation generally, or as to whether any declaratory order should provide
for a period of suspension and what that period should be.
[489] In the absence of any
claim of prejudice on the part of Air Canada and ACPA resulting from the
lateness of the motion, I would grant leave to Messrs. Vilven and Kelly to
amend their memorandum of fact and law to seek declaratory relief. However,
for the reasons given, I decline to grant the relief sought by the amendment.
XI. Conclusion
[490] For these reasons I
have concluded that the finding of the Canadian Human Rights Tribunal that paragraph
15(1)(c) of the CHRA is not a reasonable limit demonstrably justifiable
in a free and democratic society as contemplated by section 1 of the Charter
was correct. Consequently, ACPA’s application for judicial review is dismissed
in its entirety. Air Canada’s application for judicial review is also
dismissed, as it relates to the Charter issue.
[491] The Tribunal’s finding
that Air Canada had not established that being under the age of 60 was a bona
fide occupational requirement for its airline pilots at the time that
Messrs. Vilven and Kelly’s employment was terminated in 2003 and 2005 respectively
was reasonable. However, the Tribunal’s finding that Air Canada had not
established that age was a bona fide occupational requirement for its
pilots in light of the post-November 2006 ICAO standards was not reasonable.
[492] As result, Air Canada’s application for judicial review as it relates to the bona fide occupational
requirement issue will be allowed in part. The question of whether Air Canada has established that age was a bona fide occupational requirement for its
airline pilots after November of 2006 is remitted to the same panel of the
Tribunal, if available, for re-determination on the basis of the existing
record, in light of all three elements of the Meiorin test.
XII. Costs
[493] As success in this
matter was divided, each party should bear its own costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. ACPA’s application for
judicial review is dismissed.
2. Air Canada’s application for judicial review is dismissed, as it relates to the section 1
Charter issue.
3. Air Canada’s application for judicial review is granted, in part, as it relates to the
Tribunal’s finding that Air
Canada had not demonstrated that age was a bona fide occupational
requirement for its pilots.
4. The
question of whether age was a bona fide occupational requirement for Air
Canada pilots after November of 2006 is remitted to the same panel of the
Tribunal, if available, for re-determination in accordance with these reasons,
on the basis of the existing record.
5. Each party shall bear their
own costs.
“Anne Mactavish”
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