Dockets: A-105-14
A-111-14
A-112-14
Citation:
2015 FCA 153
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CORAM:
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PELLETIER J.A.
TRUDEL J.A.
BOIVIN J.A.
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BETWEEN:
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ROBERT ADAMSON
ET AL.
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AND
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AIR CANADA
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AND
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AIR CANADA
PILOTS ASSOCIATION
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Appellants
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and
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CANADIAN HUMAN
RIGHTS COMMISSION
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AND
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DONALD PAXTON
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Respondents
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REASONS
FOR JUDGMENT
TRUDEL J.A.
I.
Overview
[1]
The Canadian Human Rights Act, R.S.C.
1985, c. H-6 (the Act), proscribes discrimination on the basis of an
individual’s age. Under section 7 of the Act, it is a discriminatory practice “to refuse to employ or continue to employ any individual”
on the basis of a prohibited ground of discrimination, including age, unless
the employer can successfully raise one of the defences available under section
15 of the Act. At the time the complaints at issue in these appeals were filed,
an employer could attempt to demonstrate, for example, that a mandatory
retirement rule (MRR) was based on a bona fide occupational requirement
(BFOR) and that without the MRR, accommodation of the needs of the affected
individuals would impose undue hardship on the employer, “considering health, safety and cost” (paragraph
15(1)(a) and subsection 15(2) of the Act). Alternatively, an employer
could try to show that “an individual’s employment
[was] terminated because that individual [had] reached the normal age of
retirement for employees working in positions similar to the position of that
individual” (paragraph 15(1)(c) of the Act). Paragraph 15(1)(c)
of the Act was repealed in 2011. The relevant sections of the Act are appended
to these reasons (see Appendix I).
[2]
Age as a prohibited ground of discrimination and
these two defences—the BFOR and the normal age of retirement—are at issue in
these consolidated appeals of a judgment of the Federal Court by Annis J.
(Judge), issued on January 27, 2014 (2014 FC 83, [2014] F.C.J. No. 82)
(Judgment) along with a 435‑paragraph set of reasons (Reasons). By this
Judgment, the Judge disposed of five applications for judicial review (three of
these five applications are relevant for the purposes of these consolidated
appeals - T-1428-11, T-1453-11 and T-1463-11) of a decision of the Canadian
Human Rights Tribunal (Tribunal), which had dismissed a group of complaints
made under the Act.
[3]
The Tribunal’s decision dated, August 10, 2011,
is indexed as 2011 CHRT 11, [2011] C.H.R.D. No. 11.
[4]
The complainants are all past members of the Air
Canada Pilots Association (ACPA) and former employees of Air Canada who were
forced to retire at age 60 due to the MRR in the collective agreement between
Air Canada and the ACPA. They brought complaints against both organizations,
alleging that the MRR constituted a discriminatory practice under the Act.
[5]
The Tribunal found that the MRR constituted prima
facie discrimination. It rejected the organizations’ BFOR defences under paragraph
15(1)(a) of the Act. However, it accepted Air Canada’s defence under
paragraph 15(1)(c), concluding that age 60 was the normal age of
retirement for pilots in Canada. As a result, the complaints were dismissed.
[6]
The three parties each applied for judicial
review of a portion of the Tribunal’s decision.
[7]
In the Federal Court, the complainants
successfully challenged the Tribunal’s finding on the normal age of retirement
(docket file number T-1428-11). That part of the Tribunal’s decision was set
aside and the issue remitted to it for re-determination in accordance with the
Judge’s Reasons and directions.
[8]
Air Canada (docket file number T-1453-11) and
the ACPA (docket file number T‑1463‑11) both took exception to the
Tribunal’s conclusion that neither had proven a BFOR under paragraph 15(1)(a)
of the Act.
[9]
The Judge dismissed Air Canada’s application but
allowed the ACPA’s application. As a result, this issue was also remitted to
the Tribunal with specific directions as to how to re-determine the validity of
the ACPA’s BFOR defence.
[10]
The parties have each appealed to our Court from
the Judge’s Judgment.
[11]
The complainants submit that the Judge should
not have granted the ACPA’s application for judicial review and should have instead
upheld the Tribunal’s conclusion that the ACPA could not rely on paragraph
15(1)(a) of the Act. They add that the Judge should not have dealt with
the issue of prima facie discrimination and, in any event, was bound by
previous jurisprudence on this matter (appeal A-105-14, related to T-1463-11).
[12]
For its part, Air Canada submits that the Judge
erred in allowing the complainants’ application for judicial review on the
normal age of retirement; further he ought to have accepted its BFOR defence
under paragraph 15(1)(a) of the Act (appeal A-111-14, related to
T-1428-11 and T-1453-11).
[13]
The ACPA also submits that the Judge should not
have granted the complainants’ application for judicial review on the normal
age of retirement (appeal A-112-14, related to T‑1428-11).
[14]
Finally, the Canadian Human Rights Commission
(Commission), which appeared both before the Tribunal and the Federal Court,
argues that the Judge properly set aside the Tribunal’s finding on the normal
age of retirement but erred in allowing the application with respect to the ACPA’s
BFOR defence and in adding a requirement that complainants under the Act prove
“substantive discrimination”.
[15]
For the reasons that follow, I conclude that the
Judge erred in substituting his own opinion for that of the Tribunal on the
normal age of retirement. Therefore, I would allow the appeals of Air Canada
and the ACPA on that issue.
[16]
The record reasonably supports the
Tribunal’s finding at paragraph 181 of its decision that “… for each of the years 2005-2009, the majority of pilots
working for Canadian airlines, including Air Canada, in similar positions to
that of the [c]omplainants, retire[d] by the age of 60.”
[17]
As a result of my conclusion, I would not deal
with the parties’ submissions regarding paragraph 15(1)(a) of the Act, i.e.,
the BFOR defences. Hence, I would dismiss the complainants’ appeal in file
A-105-14. I would allow the appeals brought by Air Canada and the ACPA in files
A-111-14 and A-112-14.
[18]
Finally, I would accept the Commission’s
invitation to comment on the part of the Judge’s Reasons and Judgment that deal
with the issue of prima facie discrimination. To this end, the Judgment
is appended to these reasons as Appendix II.
II.
Facts and Judicial History
[19]
The facts of this case are straightforward. The
same cannot be said for its procedural history. As mentioned above, the
complainants (or the Adamson Group) are all pilots previously employed by Air
Canada and who were members of the ACPA. The collective agreement between the
two required that pilots retire at age 60. The complainants reached this
milestone at various dates between 2005 and 2009. They brought complaints
against Air Canada and the ACPA alleging discrimination contrary to sections 7
and 10 of the Act (also reproduced at Appendix I). The Adamson Group is part of
a larger group of current and former Air Canada pilots called the “Fly Past 60
Coalition” who have challenged Air Canada’s MRR.
[20]
The first litigation on the MRR involved the
complaints of two Air Canada pilots, George Vilven and Robert Neil Kelly, who
were forced to retire at 60. This matter was finally resolved by our Court’s
decision cited as Air Canada Pilots Association v. Kelly,
2012 FCA 209, [2013] 1 F.C.R. 308 [Vilven FCA], which declared
that paragraph 15(1)(c) of the Act was constitutionally valid. Given the
Federal Court’s earlier judgment in Vilven v. Air Canada,
2009 FC 367, [2010] 2 F.C.R. 189 [Vilven FC] upholding the
Tribunal’s finding that 60 was the normal age of retirement for pilots and the
fact that the complaints of Messrs. Kelly and Vilven were caught by paragraph
15(1)(c), the Tribunal was directed to dismiss their complaints. The
Tribunal’s decision, where it made the finding of the normal age of retirement,
is cited as Vilven v. Air Canada, 2007 CHRT 36, [2007]
C.H.R.D. No. 36.
[21]
In addition, the complaints of yet another group
of retired pilots have been referred to the Tribunal (the Bailie Group). In
February 2012, the Tribunal granted the ACPA’s motion to adjourn the
proceedings in that matter until the Adamson Group’s litigation has concluded (Bailie
et al. v. Air Canada and Air Canada Pilots Association), 2012 CHRT 6,
[2012] C.H.R.D. No. 6).
[22]
Finally, I should note that the MRR has been
eliminated from the current collective agreement between Air Canada and the
ACPA. This change was obviously made in response to Parliament’s repeal of
paragraph 15(1)(c) of the Act through section 166 of the Keeping
Canada’s Economy and Jobs Growing Act, S.C. 2011, c. 24.
[23]
Counsel for the complainants admits that neither
this legislative amendment nor a favourable judgment from this Court could
entitle the members of the Adamson Group to reinstatement, as none of them
could go back to work as an Air Canada pilot. Indeed, the complainants retired
and are now over 65 years of age. In accordance with international norms applicable
to Air Canada, 65 is the maximum age for pilots-in-command. Moreover, if one
member of the multi-pilot flight crew is over 60, the other must be under 60
(see Annex 1 to the Chicago Convention on International Civil Aviation,
Tenth Edition, July 2006, art. 2.1.10, entitled “Limitation of privileges of
pilots who have attained their 60th birthday and curtailment of privileges of
pilots who have attained their 65th birthday”).
[24]
Thus, from a practical point of view, the
Adamson Group states that a judgment from this Court upholding the Judge’s
ruling would possibly pave the way for an action in damages against Air Canada
and the ACPA.
III.
The Issues
[25]
In view of my proposed disposition of these
appeals, the relevant issues are:
1. What is the appropriate appellate standard of review?
2. Did the Judge choose and apply the appropriate standard of review
when discussing the Tribunal’s conclusion on the normal age of retirement?
3. Did the Tribunal err in concluding that age 60 was the normal age of
retirement for pilots in Canada during the years 2005 to 2009?
[26]
My comments on part of the Judge’s Reasons and Judgment
will appear at section 4 of my analysis. I will discuss the following:
- The Judge’s consideration of the question
of prima facie discrimination
- The Judge’s
modification of the three-part test developed by the Supreme Court of
Canada for determining if a prima facie discriminatory practice
constitutes a BFOR
IV.
Analysis
1.
The Standard of Review
[27]
On appeal from a Federal Court judgment on
applications for judicial review, our Court must determine whether the Judge
identified the proper standard of review and applied it correctly (Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paragraph 45 [Agraira]; Servicemaster Company v. 385229
Ontario Ltd. (Masterclean Service Company), 2015 FCA 114, [2015] F.C.J. No.
615 at paragraph 17).
[28]
Stated differently, it means that we are
stepping into the shoes of the Federal Court such that our focus is, in effect,
on the Tribunal’s decision (Agraira at paragraph 46, citing Merck
Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at
paragraph 247).
[29]
The standard of review applicable to the
Tribunal’s identification of the appropriate comparator group for determining
the normal age of retirement is reasonableness. The Judge so held at paragraph
80 of his Reasons without further explanation.
[30]
In my view, this issue essentially involves the
Tribunal’s interpretation of its home statute and the application of paragraph
15(1)(c) in the context of the complaints. Both of these considerations
weigh heavily in favour of a reasonableness review. The Supreme Court in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 53-54 [Dunsmuir]
held that reasonableness is the proper standard where a tribunal is dealing
with a question “where the legal and factual issues are
intertwined” or when it is interpreting a statute “closely connected to its function, with which it will have
particular familiarity” (for a more recent application of this
principle, see Nor-Man Regional Health Authority Inc. v. Manitoba
Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616
at paragraph 36; also Alberta (Information and Privacy Commissioner) v.
Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654). Similarly,
in Canada (Canadian Human Rights Commission) v. Canada (Attorney General),
2011 SCC 53, [2011] 3 S.C.R. 471 at paragraph 26, it held that
the Tribunal’s interpretation of a provision of the Act was owed deference. Accordingly,
the Tribunal’s determination of the proper comparator group for calculating the
normal age of retirement, as well as its overall conclusion on this issue, are
owed deference on review.
[31]
I disagree with the complainants’ submission
that correctness is the appropriate standard. They argue that since the
Tribunal was required to follow the directions of Mactavish J. from Vilven
FC, the rule of stare decisis applies and the Tribunal’s decision
must be reviewed on a correctness standard. The complainants point to our
Court’s decision in Canada (Commissioner of Competition) v. Superior
Propane Inc., 2003 FCA 53, [2003] 3 F.C.R. 529 [Superior Propane] as
support for this proposition. While I accept the principle that the directions
of a reviewing court bind a tribunal sitting on a re-determination (see Superior
Propane at paragraph 54), the rule does not apply in these circumstances. The
Tribunal in this matter was not engaged in a re-determination following a
judicial review. It was simply assessing the complaints at first instance. While
there is obvious overlap with the Vilven/Kelly litigation, the
matters have a different evidentiary record and should be considered distinct.
The Tribunal was not required to blindly follow Vilven FC. That decision
should not be understood as mandating a correctness standard of review but
rather as limiting the range of reasonable options open to the Tribunal when
crafting the comparator group under paragraph 15(1)(c).
[32]
I agree with the Commission’s argument that existing
jurisprudence on the proper comparator groups for Canadian pilots “affects the reasonability of the [Tribunal’s] decision, not
the standard under which it is reviewed” (Commission’s memorandum of
fact and law at paragraph 24). The Supreme Court in Dunsmuir held that
reasonableness relates to both “the existence of
justification, transparency and intelligibility within the decision-making
process” and whether “the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (at paragraph 47). Accordingly, Vilven FC, at
best, constrains both the Tribunal’s reasoning (e.g., it could not
reasonably avoid mention of the decision altogether) and the range of
acceptable outcomes.
[33]
In summary, then, did the Judge choose the
proper standard of review? Yes. Did he apply it correctly? No. With respect,
the Judge rather substituted his own opinion for that of the Tribunal. He
imposed his own characterization of the factors enunciated in Vilven FC
and applied them to the evidence to come to his own conclusion.
2.
Did the Judge properly apply the reasonableness
standard to the Tribunal’s assessment of the normal age of retirement?
2.1 Paragraph
15(1)(c) of the Act: the normal age of
retirement
[34]
The Judge discusses the normal age of retirement
from paragraph 86 to paragraph 132 of his Reasons. The Tribunal does so at paragraph
4 through to 182 of its decision. They agree on the basic interpretation and
operation of paragraph 15(1)(c) of the Act.
[35]
Paragraph 15(1)(c) operates as a defence
and amounts to a limited exception to discrimination based on age when there is
an industry practice regarding retirement age (see Vilven FCA at
paragraphs 51-52). For ease of reference, I reproduce here paragraph 15(1)(c):
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15(1) It is not a
discriminatory practice if
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15(1) Ne
constituent pas des actes discriminatoires:
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…
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[…]
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(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;
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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;
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[36]
In practice, paragraph 15(1)(c) requires
that the complainant establish a prima facie case of discrimination. Once done, the burden
shifts to the employer to justify the discrimination on the basis of that
provision, which mandates a comparison between the impugned standard and the
normal age of retirement for employees working in positions similar to the
complainant.
[37]
As a result, the tribunal is required to first
identify a comparator group consisting of those workers who hold similar
positions. Next, the tribunal must calculate the normal age of retirement for
the comparator group and compare it to the MRR. If the normal age of retirement
for this group is equal to or less than the MRR, the employer has established
the defence under paragraph 15(1)(c).
[38]
Here, the Tribunal found that Air Canada had met
its burden and dismissed the complaints.
2.2 The Judge’s approach to
the normal age of retirement issue
[39]
After reproducing paragraph 15(1)(c) of
the Act, the Judge began his discussion of the normal age of retirement by
stating that the interpretation of the Vilven FC test was the central
issue before the Tribunal. When correctly characterized, this test determined
whether Air Canada could rely on this provision (Reasons at paragraph 88). I do
not read Vilven FC as determining a test; from now on I shall refer to
the Vilven FC factors.
[40]
This said, the Judge then turned immediately to Vilven
FC in search of its true meaning (Reasons at paragraphs 89 and following).
[41]
In Vilven FC, the Federal Court
identified the correct comparator group at paragraphs 111, 112, 125 and 170 of
its reasons. Their relevant parts read as follows (emphasis added):
[111] The essence of what Air Canada
pilots do is to fly aircraft of varying sizes and types, transporting
passengers to both domestic and international destinations, through
Canadian and foreign airspace.
[112] … In light of the essential
features of Messrs. Vilven and Kelly’s positions, the appropriate comparator
group should have been pilots working for Canadian airlines who fly aircraft of
varying sizes and types, transporting passengers to both domestic and
international destinations, through Canadian and foreign airspace.
[125] To summarize my findings to this
point: the essence of what Air Canada pilots do can be described as “flying
aircraft of varying sizes and types, transporting passengers to both
domestic and international destinations, through Canadian and foreign
airspace”. There are many Canadian pilots working in similar positions,
including those working for other Canadian airlines. These pilots form the
comparator group for the purposes of paragraph 15(1)(c) of the Canadian
Human Rights Act.
[170] … I am of the view that the
Tribunal erred in its identification of the “positions similar” to those
occupied by Messrs. Vilven and Kelly. It is pilots working for Canadian
airlines flying aircraft of various sizes to domestic and international
destinations, through Canadian and foreign airspace, that form the proper
comparator group.
[42]
At the hearing of these appeals, as they had
done below, the parties expressed their respective views as to which paragraph
best summarizes the Federal Court’s finding in Vilven FC with respect to
the proper comparator group.
[43]
All of the parties accept that the activities of
other Canadian airline pilots must be examined on the basis of the factors
identified in Vilven FC. These factors are:
- Flying domestically
- Flying internationally
- Transporting passengers
- Flying varying sizes of aircraft
- Flying varying types of aircraft
[44]
The parties disagree sharply over which factors
are paramount and, most importantly, whether these factors are to be read conjunctively,
as decided by the Tribunal, or disjunctively, as found by the Judge.
More particularly, they ask whether the word “both”, which appears at
paragraphs 112 and 125 of Vilven FC to qualify the expression “to
domestic and international destinations”, was voluntarily or accidentally
dropped from paragraph 170 (I note that the word is also found at paragraph
111). For the Judge, the presence or absence of the word “both” is significant.
A conjunctive formulation will exclude airlines which do not exhibit all of the
factors taken from Vilven FC (Reasons at paragraph 93) while looking at
the same factors disjunctively allows for the inclusion of pilots of any
airline exhibiting any single factor from the above-mentioned list.
[45]
The Judge was of the view that the Tribunal’s
conjunctive reading of the Vilven FC factors resulted in the elimination
of “Air Canada’s major competitors on a test meant to
compare airlines based on the similarity of their pilots’ functions and duties”
(Reasons at paragraph 99). As a result, airlines considered in Vilven FC,
namely the Canadian airlines Jazz, Air Transat, Skyservice, CanJet and WestJet,
were excluded by the Tribunal when it crafted its comparator group.
[46]
For the Judge, such an outcome was “patently unreasonable” and resulted from the
application of wrong principles. Thus, it justified setting aside the
Tribunal’s decision. The remainder of the Judge’s discussion would seem to be a
closer examination of the Tribunal’s reasons for the purpose of identifying how
the Tribunal erred in its application of Vilven FC. In this vein, the
Judge specifically identified seven errors, including once again the
elimination of Air Canada’s main competitors. They are as follows:
- the unreasonableness of the elimination
of Air Canada’s competitors;
- the failure to conduct a functional analysis of the functions
and duties of Air Canada pilots;
- the failure to conduct a contextual
analysis of the reasoning from Vilven FC;
- the failure to consider paragraph 173
of Vilven FC, where the word “both” is also omitted;
- the failure to properly assess paragraph
113 of Vilven FC, which dealt with the other five principal
airlines in Canada transporting passengers to domestic and international
destinations;
- the failure to discuss paragraph 171 of Vilven FC and
the concern expressed therein regarding Air Canada’s dominant position
within the Canadian airline industry; and finally
- the failure to interpret the word “both”
contextually.
[47]
The reasons in Vilven FC and the
elimination of Air Canada’s competitors as a result of the Tribunal’s approach
here were the key elements of the Judge’s analysis and his ultimate conclusion
that the Tribunal’s conclusion on the paragraph 15(1)(c) issue could not
stand. It is therefore useful to examine Vilven FC more closely.
2.3 The Vilven FC decision
and its applicability to the present complaints
[48]
There is no doubt that Vilven FC presents
factual similarities with the appeals at bar: Messrs. Vilven and Kelly were Air
Canada pilots and had both complained about the same MRR challenged by the
Adamson Group.
[49]
In Vilven FC, the Federal Court found
that the Tribunal had erred in its identification of the essential features of
Messrs. Vilven and Kelly’s positions. As a result, the Tribunal had also erred
in its choice of the comparator group for the purposes of calculating the
normal age of retirement under paragraph 15(1)(c) of the Act. In
particular, the Tribunal had focused on the status and prestige attached to a
pilot’s position at Air Canada and made this an essential feature of the
position. The Federal Court found this to be unreasonable. Rather, the Tribunal
had to look at “the actual functional requirements of
the positions” (Vilven FC at paragraph 107). It should have
concentrated on the “objective duties and functional
responsibilities” of a pilot’s position in Canada to assess whether a
position was similar to that occupied by Messrs. Vilven and Kelly (ibidem
at paragraph 109).
[50]
It is within that context that the Federal Court
turned its mind to the essential features of Messrs. Vilven and Kelly’s
positions and wrote paragraphs 111 and 112, summarizing its findings at
paragraph 125. I note that these paragraphs are found in the section of Vilven
FC entitled “The characterization of Messrs. Vilven and Kelly’s positions
and the choice of comparator group.” Paragraphs 170 and 173 come much later,
once the Federal Court has already characterized the position. The latter
paragraphs appear in the section dealing with the normal age of retirement for
Canadian airline pilots.
[51]
I also note that, in Vilven FC, the
Tribunal’s erroneous approach to the essential features of an Air Canada
pilot’s position was not determinative of the outcome of the case. Indeed,
reviewing the Tribunal’s finding on a reasonableness standard, the Federal Court
upheld the Tribunal’s conclusion that, for Canadian airline pilots, 60 was the
normal age of retirement. The Federal Court agreed with the empirical approach
taken by the Tribunal in determining the issue, i.e., a statistical
analysis of the total number count of relevant positions in the Canadian
airline industry. To this end, the Federal Court wrote at paragraphs 173 and
174:
[173] The statistical information before
the Tribunal with respect to airline pilots working for both Air Canada and
other Canadian airlines flying aircraft of various sizes to domestic and
international destinations, through Canadian and foreign airspace, reveals that
at the time that Messrs. Vilven and Kelly were forced to leave their positions
at Air Canada, several Canadian airlines allowed their pilots to fly until they
were 65, and one had no mandatory retirement policy whatsoever. Nevertheless,
56.13% of Canadian airline pilots retired by the time they reached the age of
age 60.
[174] Therefore, despite the errors
identified above, the Tribunal’s conclusion that 60 was the normal age of
retirement for employees in positions similar to those occupied by Messrs.
Vilven and Kelly prior to their forced retirements from Air Canada was one that
fell within the range of possible acceptable outcomes which are defensible in
light of the facts and the law.
[52]
I see three factors limiting Vilven FC’s
direct applicability to the matter before us.
[53]
First, as previously discussed in the standard
of review analysis, Vilven FC was a separate matter involving different
complainants and different evidence. Notwithstanding the clear similarities
between both sets of complainants, the proceedings are formally distinct. The
complaints considered in Vilven FC were effectively resolved by our
Court’s decision in Vilven FCA, which upheld the constitutionality of
paragraph 15(1)(c) of the Act. By contrast, the Tribunal here was
assessing the complaints in first instance. As a result, it was not
automatically constrained by the findings or conclusion in Vilven FC.
The Tribunal had to decide for itself how to deal with Vilven FC,
subject of course to the possibility of judicial review for reasonableness.
[54]
Second, Vilven FC was based on a
particular factual record. This is an important distinction. Vilven FC
involved an agreed statement of facts (see e.g. Vilven FC at paragraphs
113-114), which was the basis for Mactavish J.’s finding that 56 percent of
Canadian airline pilots retired by the age of 60 (Vilven FC at paragraph
173). Furthermore, this agreed statement of facts was in great part centered on
the retirement ages for international commercial airline pilots (see Schedule A
of the Agreed Statements of Facts, appeal book, volume 2, tab I-3 at pages
306-308, Exhibit C-2 before the Tribunal and Exhibit 3 to the affidavit of
Harlan Clark, Director, of Labour Relations for Air Canada). In the case at
bar, however, there was no agreed statement of facts and the parties introduced
extensive evidence at the hearing. The Tribunal was required to sift through
this evidence and decide how to use it in the normal age of retirement
analysis. This difference suggests that Vilven FC should be viewed as
intimately connected to its particular factual context.
[55]
I note as well that the comparator group
factors that Mactavish J. identified in Vilven FC, namely “fly[ing] aircraft of varying sizes and types, transporting
passengers to both domestic and international destination, through Canada and
foreign airspace,” do not match the information contained in Schedule A
attached to the Agreed Statement of Facts referred to above. For instance,
Mactavish J. did not have evidence on the types or sizes of aircraft Canadian
airlines flew or what destinations they served. While her analysis of the
normal age of retirement was based on the Agreed Statement of Facts, the
limited nature of this evidence meant that she could not put the comparator
group factors into practice. The divide between the stated factors and the
evidence in Vilven FC suggests to me that the decision was not intended
to be an authoritative treatment of the proper comparator group for Air Canada
pilots. Rather, the criteria were a way of highlighting the error in the
Tribunal’s analysis, which had focused on subjective factors such as the
prestige associated with working for a “major international carrier” (see Vilven FC at
paragraphs 107 and 165).
[56]
Third, Vilven FC represents a particular
application of the normal age of retirement defence and did not purport to be a
generalized interpretation of paragraph 15(1)(c) of the Act. In fact, Vilven
FC was addressing the first part of the normal age of retirement analysis (i.e.,
the proper comparator group) in the particular context of the two complaints.
The doctrine of stare decisis is not at play here.
[57]
Although both deal with the doctrine of stare
decisis, this finding is distinct from my earlier conclusion that the
Tribunal was not required to apply Vilven FC because it was not engaged
in a re-determination of these complaints. The practical result of these two
conclusions is the same. The Tribunal was not obliged to apply the Vilven FC
factors in the same manner as Mactavish J. suggested, but rather it had greater
leeway in deciding how to make use of these factors.
[58]
These considerations all point toward giving Vilven
FC a more limited role when reviewing the Tribunal’s decision. The factors
are not a formula that the Tribunal had to get right to survive a challenge on
judicial review. More importantly, they should not be divorced from the
particular factual context of the complaints and transformed into a
prescriptive standard.
[59]
Given my conclusion that Vilven FC did
not establish a binding precedent, I believe that the Judge’s continual
reference to “the Vilven FC test” detracted from a holistic
consideration of the Tribunal’s decision on judicial review and led the Judge
to focus excessively on the reasons from Vilven FC.
[60]
If Vilven FC was not a controlling
precedent, this raises the question of what exactly its effect on the current
proceedings was. In my view, the decision should be seen as informing the context
in which the Tribunal’s decision was made. Review on a standard of
reasonableness is primarily a contextual inquiry: Catalyst Paper Corp. v.
North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at paragraph 18.
As stated previously, jurisprudence, including Vilven FC, restricts the
Tribunal’s range of options and constrains its analysis when determining the
normal age of retirement. It does not follow that the Tribunal was required to
apply the factors in the same manner as Mactavish J. intended. Accordingly, I
find that the Judge took a wrong path when narrowly examining the wording from Vilven
FC and comparing his preferred interpretation with that of the Tribunal.
[61]
A court conducting review on a standard of
reasonableness must take as its starting point the tribunal’s decision and
examine it in light of the law and the record before the decision-maker.
[62]
It is worth repeating that where the standard of
review is reasonableness, a reviewing court that finds the tribunal’s decision
unreasonable is not entitled to substitute its own decision for that of the tribunal.
It can identify factors which the tribunal may wish to consider but it cannot
impose its views on the tribunal. The matter must be returned to the tribunal
so that it may decide the matter for itself in light of the reviewing court’s
reasons. While these may provide a line of reasoning which the tribunal could
profitably consider, the ultimate decision rests with the tribunal. The scope
of its decision is limited only by the requirement of reasonableness.
[63]
Here, the Judge’s overall approach to Vilven
FC was similar to an exercise in statutory interpretation. In other words,
he seemingly concluded that Vilven FC needed to be correctly interpreted
in the abstract before it could be applied to the case at hand. As a matter of
fact, the Judge turned to Vilven FC before even discussing the Tribunal’s
decision. In my view, by treating the Vilven FC factors as a kind of
legislation, the Judge erroneously moved away from the only legislative
enactment that governed the issue and which would ultimately determine whether
Air Canada and the ACPA could rely on the BFOR defence: paragraph 15(1)(a)
of the Act. The provision barely figures in the Judge’s analysis and is
overshadowed by the Vilven FC decision. Said differently, Vilven FC
was not a comprehensive code that, when properly interpreted, would determine
the outcome of the complaints. In my respectful view, taking this approach led
the Judge away from the task of assessing the reasonableness of the Tribunal’s
decision on its own merits.
[64]
On that point, I note paragraphs 128 and 129 of
the Judge’s Reasons where he states:
[128] Recognizing the deference owed the
Tribunal, I nevertheless find that the Tribunal erred in principle in its
interpretation of the direction of the Court in Vilven as imposing a
rule consisting of a series of factors to be considered conjunctively, when the
decision interpreted in its context clearly directed the Tribunal to apply
those factors disjunctively.
[129] On the basis of the foregoing, I
adopt the reasons of Justice Mactavish in Vilven as properly determining
the attributes of Comparator Airlines in so far as the enumerated factors are
to be applied disjunctively. Otherwise, I would respectfully disagree with
her decision on the basis of my reasons described above, which in my view
require the enumerated factors identified in her decision to be applied
disjunctively in order to avoid the unreasonable outcome of Air Canada’s major
competitors being eliminated as Comparator Airlines.
[Emphasis added.]
[65]
It follows from these paragraphs that Vilven
FC can be read in more than one way.
[66]
Here, the Tribunal explained its rationale for
reading Vilven FC the way it did. The Tribunal was entitled, when
applying the Vilven FC factors, to opt for the conjunctive approach and
to rely on paragraphs 112 and 125 of Vilven FC. I discuss the Tribunal’s
decision in further detail below.
2.4 The Judge’s error in
relying on the elimination of Air Canada’s competitors as a reviewable error
[67]
Despite identifying several errors in the
reasoning of the Tribunal, the Judge clearly fastened onto the fact that the
Tribunal’s approach to Vilven FC resulted in the elimination of Air
Canada’s major competitors (Reasons at paragraphs 94, 98, 99, 101, 107, 114,
120, 129 and 130). The other errors are mostly subsumed under this finding. As
mentioned above, this is why the Judge found the Tribunal’s decision to be “patently unreasonable”.
[68]
In my view, the Judge’s focus on Air Canada’s main competitors was
misplaced. There was no evidence presented to the Tribunal with regard to the
identity of Air Canada’s major domestic competitors. This is not surprising, as
the parties were focused on bringing evidence relating to the Vilven FC
factors; the notion of competitors is not one of the factors identified in that
decision. To the contrary, in Vilven FC, Mactavish J. disapproved of the
Tribunal’s approach when the latter concluded that only pilots working for
major international airlines should be included in the comparator group (Vilven
FC at paragraphs 90 and 109).
[69]
Rather, the listed factors were identified based
on the actual requirements of a pilot’s position, not on any of the commercial
attributes of airlines.
[70]
In their memorandum of fact and law at paragraph
85, the complainants assert that the Judge was entitled to use his “own common sense and common knowledge” when
discussing Air Canada’s major competitors. I disagree. The threshold for
judicial notice is uncompromising. As stated in R. v. Spence, 2005 SCC
71, [2005] 3 S.C.R. 458 at paragraph 53, quoting R. v. Find, 2001 SCC
32, [2001] 1 S.C.R. 863 at paragraph 48:
… a court may properly take judicial notice
of facts that are either: (1) so notorious or generally accepted as not to be
the subject of debate among reasonable persons; or (2) capable of immediate and
accurate demonstration by resort to readily accessible sources of indisputable
accuracy.
[71]
Although stated in the criminal context, this
rule applies as well to civil matters (see e.g. Quebec (Attorney General) v.
A, 2013 SCC 5, [2013] 1 S.C.R. 61 at paragraph 237).
[72]
One cannot say with certainty which airlines
were Air Canada’s major or closest competitors between 2005 and 2009. For one
thing, this would require identifying the relevant elements or features for
assessing whether two airlines are commercial competitors. These could be
similar to the Vilven FC factors or entirely different.
[73]
Moreover, the parties were not given the
opportunity to lead evidence as to the appropriateness or relevancy of taking
judicial notice of the finding, which, for all intents and purposes, disposed
of the paragraph 15(1)(c) issue.
[74]
In the end, I conclude that the threshold for
judicial review was not met. The Judge could not set aside the Tribunal’s decision
on the normal age of retirement issue primarily on the basis of a consideration
not supported by the evidence.
[75]
The question then arises as to whether the Judge
had other legitimate grounds to reverse the Tribunal on the issue of the normal
age of retirement. This question takes me to the Tribunal’s decision.
3. The Tribunal’s decision
– Did the Tribunal otherwise err in concluding that the complaints should be
dismissed on the basis of paragraph 15(1)(c)?
[76]
Contrary to the Judge’s finding, the Vilven
FC factors were not the main issue in front of the Tribunal. Rather, the
validity of the paragraph 15(1)(c) defence raised by both Air Canada and
the ACPA was at issue. To decide that particular point, the Tribunal had to
determine the normal age of retirement for pilots working for Canadian
airlines, including Air Canada, in similar positions to that of the
complainants for each of the years 2005 to 2009. At paragraph 25 of its
decision, the Tribunal outlined its task:
What the Tribunal must do in this case is what
the Court did in [Vilven FC], which is to ask and answer the question,
what is the essence of what Air Canada pilots do?
[77]
The Tribunal was willing to follow Vilven FC
because the evidence showed that the appropriate comparator group fell to be
determined in accordance with the factors identified at paragraphs 112 and 125
of Vilven FC (Tribunal’s decision at paragraph 25).
[78]
I have already determined that the Tribunal was
entitled to its preferred reading of Vilven FC, so long as this reading
was reasonable. In this case, it heard the parties’ submissions on the “both”
argument, opted for a conjunctive reading of the Vilven FC factors, and
provided an explanation. It was not unreasonable for the Tribunal to adopt
paragraphs 111, 112 and 125 of Vilven FC as a guideline for its analysis
of the evidence on the normal age of retirement. At paragraph 125 of Vilven
FC, Justice Mactavish concludes the section of her reasons dealing with the
choice of comparator group by expressly stating that Canadian pilots who, amongst
other things, fly aircrafts to both domestic and international destinations “form the comparator group for the purposes of paragraph
15(1)(c) of the Act” (emphasis added). On this basis, it
cannot be said that the Tribunal acted unreasonably or proceeded on wrong
principles when applying the Vilven FC factors to the facts in a
conjunctive manner.
[79]
Much was said at the hearing of these appeals
about the Tribunal’s decision to eliminate the five Canadian airlines mentioned
in Vilven FC at paragraph 113. The complainants refer to it as the
Tribunal’s “glaring error”. Had it included these five Canadian airlines in the
comparator group, the Tribunal would have concluded in favour of the Adamson
Group. In the complainants’ view, the exclusion of these airlines is a
reviewable error requiring our intervention (complainants’ memorandum of fact
and law at paragraphs 82-83). I disagree for two reasons.
[80]
First, the exclusion of the five Canadian
airlines was not done arbitrarily. It resulted from the application of the Vilven
FC factors, read conjunctively, to the evidence accepted by the Tribunal.
[81]
Second, I agree with the Tribunal that there is
nothing in Vilven FC to suggest that Mactavish J. accepted that the
airlines satisfied all of the factors set out in paragraphs 111, 112 and 125,
given that the hearing proceeded on the basis of an Agreed Statement of Facts.
As well, as mentioned above, Schedule A of the Agreed Statement of Facts did
not provide information concerning all of the Vilven FC factors.
Arguably, Mactavish J. was making the calculation to show that even if all
Canadian airlines were included in the comparator group, the complaints would
still have to be dismissed.
[82]
In the present matter, the Tribunal heard
extensive evidence on the choice of comparator groups. In the end, it accepted
Captain Duke’s evidence, a witness for Air Canada, to determine the comparator
group for the years 2005 to 2008 (Tribunal’s decision at paragraph 173). For
the year 2009, it accepted the evidence of two witnesses, Captain Paul
Prentice, a witness for the complainants, and Harlan Clark, a witness for Air
Canada.
[83]
There was evidence on record supporting the
Tribunal’s findings and conclusions. I find no reason to intervene.
[84]
This should be the end of the matter, as I
indicated at the outset that I propose to dismiss the appeals on the paragraph
15(1)(c) issue. But, at the explicit request of the Commission, I will deal
with paragraph 3(a) of the Judgment. I also want to say a few words about
paragraph 3(d) of the Judgment.
4.
Commentary on the Judge’s Reasons and Judgment
4.1 Prima facie discrimination and paragraph 3(a) of the Judgment
[85]
The Tribunal found that the mandatory retirement
provision under the collective agreement constituted prima facie
discrimination under the Act, as the complainants’ employment with Air Canada
was terminated solely because they turned 60 years old (Tribunal’s decision at
paragraph 3). None of the parties challenged this finding in their applications
for judicial review. In addition, neither the parties nor the Judge raised the
issue of prima facie discrimination at the hearing at the Federal Court.
[86]
Nevertheless, the Judge directed the Tribunal to
reconsider the question and decide whether the mandatory retirement provision
amounted to prima facie discrimination. Only after the Tribunal found
that there was prima facie discrimination would it turn to the issue of
hardship. The Judge acknowledged that the parties had not raised this issue but
justified his intervention on the basis that it is an error in principle to “decide a matter on an incorrect characterization of a
fundamental issue” (Reasons at paragraph 345). In a lengthy discussion
of this issue, the Judge hinted that a mandatory retirement policy should not
be automatically treated as prima facie discrimination. Instead, the
practice should be evaluated in context to determine if it causes “substantive discrimination” (Reasons at paragraphs
377-378). In addition, the Judge questioned whether the reasoning from the
Supreme Court’s decision in McKinney v. University of Guelph, [1990] 3
S.C.R. 229, 76 D.L.R. (4th) 545 [McKinney] still applied or whether it
had been overtaken by subsequent jurisprudence (Reasons at paragraphs 19-21).
[87]
The parties agree that the Judge should not have
considered the issue of prima facie discrimination. They request that
paragraph 3(a) of the Judgment, which refers to this issue, be set aside.
[88]
I agree with the parties that the Judge erred by
considering a new issue that had not been raised by the parties without giving
them an opportunity to provide submissions. In addition, I find that the Judge
erred in law on the merits of the issue by suggesting that complainants have
the burden of showing “substantive discrimination” under the Act. The Judge
failed to follow binding jurisprudence on this question.
[89]
There is no doubt that a judge has the
discretion to raise a new issue at the hearing, provided that the judge gives
notice to the parties as well as an opportunity to respond. The Supreme Court,
in R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 at paragraph 41, held
that a court may raise an issue of its own initiative when “failing to do so would risk an injustice”. To ensure
that the court maintains its impartiality and treats the parties fairly, the
court must provide notice of the new issue as early as practicable and ensure
that the parties can properly address it (ibidem at paragraphs 53-59).
While the Supreme Court made these comments in the context of a court raising a
new issue on an appeal, I believe they are equally applicable when a court
brings up a new issue on an application, such as an application for judicial
review (see e.g. Labatt Brewing Company Limited v. NHL Enterprises Canada,
L.P., 2011 ONCA 511, 106 O.R. (3d) 677 at paragraphs 4-5).
[90]
In this case, the Judge considered the issue of prima
facie discrimination of his own motion, as it was not mentioned in the
notices of application and not argued at the hearing. He did not provide notice
to the parties and did not grant them the opportunity to provide submissions on
this topic. Even if the Judge believed that this issue had to be raised to
avoid an injustice, he nevertheless had to follow the proper procedures when
exercising his discretion. He failed to do so. These omissions constitute an
error of law and resulted in a breach of the parties’ right to procedural
fairness.
[91]
The complainants and the Commission further
submit that the Judge erred on the merits of this issue by implying that an
individual should be required to show “substantive discrimination” as part of proving
a discriminatory practice under the Act. The two parties argue that the Judge
incorrectly imported principles and jurisprudence relevant to section 15 of the
Charter and ignored the effect of both McKinney and this Court’s
decision in Kelly FCA. Air Canada and the ACPA made no submissions on
this point.
[92]
I agree with the arguments of the complainants
and the Commission. The effect of the decisions in McKinney and Kelly
FCA is to render mandatory retirement prima facie discriminatory
under the Act. It was not open to the Judge to ignore these precedents and
suggest that a complainant had to show that the impugned practice resulted in
“substantive discrimination”.
[93]
McKinney concerned
the legality of mandatory retirement policies at universities. The appellants
in that case challenged the policies on two grounds: 1) they were contrary to
section 15 of the Charter and 2) subsection 9(a) of the Ontario Human Rights
Code, S.O. 1981, c. 53, which restricted the protection from age
discrimination to individuals under the age of 65, violated section 15 of the
Charter. The appellants argued that neither of these breaches was justified
under section 1.
[94]
The Supreme Court diverged on these questions,
issuing five sets of reasons. Despite this disagreement, the judges took it as
a given that a mandatory retirement policy was inherently discriminatory, both
from the point of view of the section 15 of the Charter and the Human Rights
Code. Justice La Forest, writing for the majority, found that it was
difficult to argue that mandatory retirement was not “discriminatory
within the meaning of subsection 15(1) of the Charter since the distinction is
based on the enumerated personal characteristic of age” (McKinney
at 278). Later in his reasons, Justice La Forest turned to subsection 9(a) of
the Code and assessed whether it violated section 15 of the Charter “by reason of the fact that it confines the Code’s
prohibition against discrimination in employment on grounds of age to persons
between the ages of 18 and 65” (ibidem at 289). His approach
implies that, in the absence of the limitation under subsection 9(a) of the
Code, there would be no question that mandatory retirement violated the
statutory protection against age discrimination. In other words, a mandatory
retirement practice is presumed to be discriminatory.
[95]
Similarly, in its earlier decision in Ontario
Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, 132 D.L.R. (3d)
14 at 208, the Supreme Court unanimously held that a policy of mandatory
retirement at the age of 60 was in itself sufficient to find prima facie
discrimination under the Ontario Human Rights Code, R.S.O. 1970,
c. 318.
[96]
In my view, these two cases establish the
principle that a practice of mandatory retirement constitutes prima facie
discrimination, which in turn is sufficient to make out a discriminatory
practice under section 10 of the Act. The next question to consider is whether
the Judge erred in failing to apply this principle in the case at bar.
[97]
I find that the Judge did so err, given that McKinney
remains a binding precedent. There can be no doubt that courts are bound to
follow and apply authoritative precedents (see e.g. Apotex Inc. v. Pfizer
Canada Inc., 2014 FCA 250, [2014] F.C.J. No. 1090 at paragraph 114). In Kelly
FCA, this Court held that McKinney was still good law as it pertains
to the constitutionality of mandatory retirement schemes (Kelly FCA at
paragraph 80). While the decision in Kelly FCA primarily dealt with
whether the Supreme Court’s section 1 analysis from McKinney applied to
paragraph 15(1)(c) of the Act, the principle of stare decisis
equally applies to other aspects of the Supreme Court’s analysis. Specifically,
any part of the reasoning that was necessary for the Court to reach its result
has the force of binding authority. As discussed above, the implicit finding
that mandatory retirement is a discriminatory practice was an essential part of
the Supreme Court’s analysis in McKinney. As a result, this legal
characterization was a binding authority that the Judge had to follow.
[98]
The Judge justified his direction to the
Tribunal on multiple grounds, including his view that past jurisprudence on
mandatory retirement had been decided without a full evidentiary record and
that broader public policy concerns needed to be taken into account (Reasons at
paragraphs 347-350). Here, these are not compelling reasons for revisiting
settled case law and not following a higher court’s decision.
[99]
In coming to this conclusion, I am mindful of
the Supreme Court’s decision in Canada (Attorney General) v. Bedford,
2013 SCC 72, [2013] 3 S.C.R. 1101 at paragraphs 42-46, where it stated that a
lower court can revisit binding precedent only if there have been significant
changes in the evidence or the circumstances that fundamentally alter “the parameters of the debate.”
[100] Having carefully considered the record, I find that this threshold
is not met. The Judge was obliged to apply the principles from McKinney
and uphold the Tribunal’s finding that the mandatory retirement practice
constituted prima facie discrimination under the Act.
[101] Accordingly, assuming that I would have proposed to uphold the Judgment,
and also assuming that the Judge had properly raised the issue of prima
facie discrimination, I would have granted the Commission’s request to strike
paragraph 3(a) from the Judgment as it is wrong in law.
4.2
Modification of the Meiorin test to apply
to Unions: paragraph 3(d) of the Judgment
[102] While examining issues related to section 15(2) of the Act - the
BFOR defences -, the Judge turned to the Supreme Court of Canada’s judgment in British
Columbia (Public Service Employee Relations Commission) v. British Columbia
Government and Service, [1999] 3 S.C.R. 3, [1999] S.C.J. No.
46 [Meiorin]. In Meiorin, the Supreme Court established a
three-part test for determining if a prima facie discriminatory practice
constitutes a valid BFOR defence (at paragraph 54):
… An employer may justify the impugned
standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard
for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the
particular standard in an honest and good faith belief that it was necessary to
the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably
necessary to the accomplishment of that legitimate work-related purpose. To
show that the standard is reasonably necessary, it must be demonstrated that it
is impossible to accommodate individual employees sharing the characteristics
of the claimant without imposing undue hardship upon the employer.
[103] Here, the Judge was of the view that a proceeding where a union
raises a BFOR defence constitutes “a novel situation” requiring the
modification of the Meiorin test. To this end, he established a “hybrid
BFOR test” which resulted in a four-part test where the Tribunal would, on
re-determination, ask itself whether the “union adopted
the particular standard in an honest and good faith belief that it was in the
collective best interests of its membership” (Reasons at paragraph 220,
emphasis by Annis J.).
[104] Because of my ultimate conclusion, I need not analyse the Judge’s
reasoning on that question and decide whether Meiorin needed to be
modified to fit the factual matrix of this case and the parties thereto. I
would therefore limit myself to saying that these reasons shall not be taken as
an endorsement of the Judge’s approach on this question and of paragraph 3(d)
of his Judgment.
V.
Proposed Disposition
[105] Consequently, I propose to dispose of these appeals as follows:
[106] I would allow the appeals brought by Air Canada and the Air Canada
Pilots Association (files A-111-14 and A-112-14), set aside the judgment of the
Federal Court and restore the Tribunal’s decision.
[107] As a result, I would dismiss the appeal brought by Robert Adamson et
al. (file A‑105‑14).
[108] Considering the circumstances of these appeals, I would order that
the parties assume their own costs throughout.
[109] A copy of the reasons shall be placed in each of the individual
files.
“Johanne Trudel”
“I agree
J. D. Denis
Pelletier J.A.”
“I agree
Richard Boivin
J.A.”
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