Docket: T-2200-22
Citation: 2023 FC 950
Ottawa, Ontario, July 13, 2022
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN: |
Gary Nedelec, Alexander Samanek, Michael S. Sheppard, Douglas Goldie, Gary Bedbrook, Pierre Garneau, Jacques Couture, Larry James Laidman, Robert Bruce Macdonald, Gordon A.F. Lehman, Peter J.G. Stirling, David Malcom Macdonald, Robert William James, Camil Geoffroy, Brian Campbell, Trevor David Allison, Benoit Gauthier, Bruce Lyn Fanning, Marc Carpentier, Mark Irving Davis, Raymond Calvin Scott Jackson, John Bart Anderson, David Alexander Findlay, Warren Stanley Davey, Keith Wylie Hannan, Michael Edward Ronan, Gilles Desrochers, William Lance Frank Dann, John Andrew Clarke, Bradley James Ellis, Michael Ennis, Stanley Edward Johns, Thomas Frederick Noakes, William Charles Ronan, Barrett Ralph Thornton, David Allan Ramsay, Harold George Edward Thomas, Murray James Kidd and William Ayre
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Applicants
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and
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Eric William Rogers, Robert James McBride, John Charles Pinheiro, William Ronald Clark, Stephen Norman Collier, Canadian Human Rights Commission, air canada and Air lINE Pilots Association, international
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Respondents
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JUDGMENT AND REASONS
I. Overview
[1] This Judgment and Reasons address an application for judicial review of an interlocutory decision of the Canadian Human Rights Tribunal [Tribunal], in the context of a complaint by a group of former Air Canada pilots alleging age discrimination under the Canadian Human Rights Act, RSC 1985 c H-6 [Act].
[2] The legislative background to this matter includes paragraph 15(1)(c) of the Act, as it stood until its repeal in 2012, which provided that it was not a discriminatory practice if 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.
[3] The Applicants were employed by Air Canada and were forced to retire (at times prior to the repeal of paragraph 15(1)(c) of the Act) when they turned 60 years of age in accordance with the mandatory retirement provisions of the collective agreement then in force between their union and the airline. The Applicants filed human rights complaints with the Canadian Human Rights Commission [Commission], alleging that Air Canada and the Air Canada Pilots Association (which, as explained later in these Reasons, was the predecessor bargaining agent to the Air Line Pilots Association, International) [Association] discriminated against them by requiring them to retire at the age of 60. Their complaints were referred to the Tribunal.
[4] The Tribunal identified that the determinative issue in adjudicating these complaints was whether Air Canada and the Association could rely on paragraph 15(1)(c) of the Act as a defence to what would otherwise be age discrimination. In considering that issue, the Tribunal identified three determinations that it would be required to make:
what factors or test to apply to identify the airlines that employed pilots in positions similar to those held by the Applicants;
which airlines, pursuant to those factors, are comparators, as well as the number of pilots these airlines employed who occupied positions similar to those held by the Applicants; and
what the normal age of retirement was at those comparator airlines for 2010 to 2012.
[5] In an interlocutory decision dated September 23, 2022, which decision is the subject of this application for judicial review, the Tribunal made the first of these determinations [the Decision]. The Tribunal determined in the Decision that it would adopt the factors used in previous complaints that had considered whether mandatory retirement for pilots was a discriminatory practice under the Act.
[6] As explained in greater detail below, this application is dismissed, because the Applicants commenced their judicial review proceeding prematurely, before the Tribunal’s administrative process had run its course to a final decision by the Tribunal on the merits of the Applicants’ complaint.
II. Background to the Applicants’ Complaint
[7] The Applicants are a group of 43 retired pilots who were employed by Air Canada and were members of the Association. Until December 15, 2012, Air Canada had a mandatory retirement policy that required their pilots to retire at the age of 60. The Applicants claimed that Air Canada’s mandatory retirement provision, included in the collective agreement between Air Canada and the Association, violated the Act.
[8] Air Canada and the Association denied that the Applicants had been discriminated against, relying on paragraph 15(1)(c) of the Act. As noted above, until it was repealed on December 15, 2012, this provision represented a defence to age-based discrimination complaints, allowing employers to terminate employment based on age if it was the normal age of retirement for employees working in positions similar to the position of the complainant.
[9] The following history of litigation involving Air Canada’s mandatory retirement policy is relevant background to the present application.
A. Vilven/Kelly
[10] The first proceeding related to mandatory retirement for Air Canada pilots after reaching the age of 60 (referenced in the Decision as Vilven/Kelly) involved pilots who were forced to retire between 2003 and 2005. In dismissing the complaints, the Tribunal found that 60 was the “normal age of retirement”
for positions similar to those occupied by the complainants at the time of their retirement [Vilven CHRT]).
[11] On judicial review, this Court found that, while the Tribunal made errors in relation to its “normal age of retirement”
analysis, its conclusion that 60 was the normal age of retirement for pilots in positions similar to those occupied by the complainants/applicants was reasonable. In arriving at this conclusion, the Court identified factors to be employed in determining the appropriate comparator group (see Vilven v Air Canada, 2009 FC 367 [Vilven FC]).
B. Thwaites/Adamson
[12] The next proceeding (referenced in the Decision as Thwaites/Adamson) involved a group of 70 pilots who were forced to retire between 2005 and 2009. As in Vilven/Kelly, the Tribunal dismissed the complaints by concluding that age 60 was the normal age of retirement for pilots in Canada (see Thwaites et al v Air Canada, 2011 CHRT 11 [Adamson CHRT]). In reaching this decision, the Tribunal applied the factors outlined in Vilven FC to determine the appropriate comparator group.
[13] On judicial review, the complainants/applicants successfully challenged the Tribunal’s finding on the normal age of retirement (see Adamson v Air Canada, 2014 FC 83 [Adamson FC]). However, the Federal Court of Appeal overturned Adamson FC and restored the Tribunal’s decision (see Adamson v Canada (Canadian Human Rights Commission), 2015 FCA 153 [Adamson FCA] at para 106).
C. Bailie
[14] The third proceeding (referenced in the Decision as Bailie) originally involved 97 complainants who were forced to retire between 2004 and February 2012. The Tribunal dismissed the claims of those who retired prior to December 31, 2009 on the basis that Vilven FC and Adamson FCA had conclusively determined that the normal age of retirement prior to that date was 60 (see Bailie et al v Air Canada and Air Canada Pilots Association, 2017 CHRT 22 [Bailie CHRT] at paras 22 and 87).
[15] The Applicants in the present matter include those complainants who were originally part of the Bailie proceedings but were forced to retire between January 1, 2010 and February 28, 2012. The Tribunal in Bailie declined to dismiss their complaints, because there was no factual or evidentiary record before the Tribunal regarding the normal age of retirement from 2010 to 2012 (Bailie CHRT at para 91).
D. Gregg
[16] Finally, the proceeding referenced in the Decision as Gregg involved another group of pilots who were forced to retire post-2009. The Tribunal dismissed those complaints because it was plain and obvious that the complainants could not succeed in light of the outcomes of Vilven FC and Adamson FCA and the fact that the complainants presented no evidence that the composition of Canadian airline pilots had changed post-2009. This finding was ultimately upheld by the Federal Court of Appeal (see Gregg v Air Canada Pilots Association, 2019 FCA 218).
III. Procedural History of this Application
[17] The complaints at issue in the present application were filed with the Commission prior to 2012 and were referred to the Tribunal, which adjourned the complaints pending the disposition of the various Federal Court and Federal Court of Appeal proceedings in Vilven/Kelly and Thwaites/Adamson (see Bailie et al v Air Canada and Air Canada Pilots Association, 2012 CHRT 6).
[18] After these complaints were re-activated following the decision in Adamson FCA, the parties consented to the Tribunal deciding, as a preliminary issue, what methodology it should use to determine the normal age of retirement for Air Canada pilots who reached the age of 60 between January 1, 2010 and February 28, 2012. The Tribunal decided to use a statistical methodology, which decision was upheld by this Court on judicial review (see Nedelec v Rogers, 2021 FC 191).
[19] The parties then held a case management conference with the Tribunal, in which they discussed the procedure for progression of this application. While Air Canada and the Association wanted the test for identifying comparator airlines to be addressed first, the Applicants preferred a single hearing to address all remaining issues and also wished to have viva voce evidence presented. As a result of this disagreement, the CHRT asked for formal submissions from the parties on the appropriate procedure. By Direction dated February 17, 2022, the Tribunal, while noting that it was not clear why evidence would be required to determine the applicable test, asked the parties to provide submissions in response to the following statement:
What test should the Tribunal apply in determining which airlines are to be included in the comparator group for the relevant period? What is the legal basis for your position, whether it is a new test or adopting or modifying the Vilven-Thwaites test? If you are arguing that the Tribunal needs to hear evidence to decide on the applicable test, explain why it is required for the Tribunal to decide on the applicable test. You do not need to submit the evidence now. You do need to provide a summary of the intended evidence, proposed timelines for providing the evidence, and what the form of the evidence would be (affidavit evidence, transcripts, oral testimony). The Tribunal will request the evidence if it agrees it is necessary to decide the applicable legal test.
[20] The Applicants submitted that the appropriate comparator pilot positions were those that were “functionally equivalent, in a broad, general sense (consistent with the SCC jurisprudence dealing with human rights adjudication)”
to Air Canada pilots, and that this test was self-evident. They also submitted that it was necessary for the Tribunal to hear evidence to decide upon the appropriate test. Although the Applicants did not explain what the specific evidence would be, they asserted that “[e]vidence to be adduced would include a representative sample of viva voce testimony from members of characteristic groups”
or, in the event of agreement between the parties, evidence from prior hearings by way of affidavit. They also claimed that, until Air Canada and the Association closed their case, it was virtually impossible for the complainants to state with any degree of certainty what amount of evidence would be required to rebut the claimed defences.
[21] Air Canada and the Association submitted that the appropriate test to be applied was “Canadian carriers employing pilots who fly aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace”
. They argued that this was the appropriate test for a number of reasons, including that this test was consistent with Vilven FC and Adamson FCA.
[22] Following receipt of these submissions, the Tribunal made the Decision that is the subject of this application for judicial review.
IV. Decision under Review
[23] The Tribunal decided to adopt what it considered to be the factors from previous complaints that determined whether mandatory retirement for pilots was discriminatory under the Act. It concluded that this approach was fair and favoured a consistent and expeditious hearing of the complaints.
[24] In reaching this conclusion, the Tribunal canvassed the prior litigation concerning the mandatory retirement age policy for Air Canada pilots, as summarized earlier in these Reasons. In particular, the Tribunal noted that the Federal Court in Vilven FC set out factors for determining the relevant comparator group [the Vilven FC Factors]. In the paragraphs of Vilven FC referenced in the Decision, the Court stated as follows:
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. The error in the identification of the essential features of Messrs. Vilven and Kelly’s positions then led the Tribunal to err in its identification of the appropriate comparator group. 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.
[25] The Tribunal noted that the Vilven FC Factors were applied in Adamson CHRT, a decision which was upheld by the Federal Court of Appeal (see Adamson FCA). The Tribunal observed that, while Adamson FCA found that the Tribunal was not required to blindly follow the Vilven FC Factors, the Federal Court of Appeal also found that Vilven FC limited the range of reasonable options open to the Tribunal when crafting the comparator group under paragraph 15(1)(c). The Tribunal also observed that Adamson FCA (at paras 66 and 78) found that the Tribunal was entitled, when applying the Vilven FC Factors, to opt to apply them conjunctively.
[26] The Tribunal concluded from the jurisprudence that the Vilven FC Factors had been applied to the complaints of all Air Canada pilots who had retired from 2003 to 2009. The Tribunal reasoned that the Applicants had failed to justify why it should depart from prior jurisprudence and that such a departure for these complaints would lead to the absurd and unfair result that a pilot who turned 60 after December 31, 2009 would be subject to different criteria than other complainants who were part of the same proceeding (i.e., the complainants from the Bailie proceeding whose claims were dismissed in Bailie CHRT).
[27] While the Tribunal accepted the Applicant’s submission that the Vilven FC Factors did not establish a comprehensive code, the Tribunal noted that the Federal Court of Appeal found that applying those factors was reasonable.
[28] The Tribunal also concluded that it was appropriate for it to apply the Vilven FC Factors to the Applicants’ complaints, because these factors reflected an effort to identify the features of the pilots’ work that are relevant to determining which pilots worked in similar positions. The Tribunal observed that paragraph 15(1)(c) of the Act refers to those in similar positions, not those with similar qualifications or those with the same type of license. In the Tribunal’s view, the Vilven FC Factors focused on objective criteria that differentiate the positions of the comparator group and the complainants from others who may hold a pilot license or be able to fly the same type or size of plane.
[29] Finally, the Tribunal noted that, while it was free to depart from a longstanding practice, it must justify such a departure (see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 129 and 131). The Tribunal determined that the complainants had not presented compelling reasons why departure from its prior practice was warranted.
[30] After determining that it would be appropriate in the circumstances to apply the Vilven FC Factors, the Tribunal next found that an airline would have to meet all of the criteria in the Vilven FC Factors to be considered an appropriate comparator group. This was the approach that Adamson FCA had found reasonable.
[31] Finally, the Tribunal set out a process by which it would receive from the parties the evidence required for it to apply the Vilven FC Factors, in making the second and third determinations (as identified earlier in these Reasons) necessary to decide whether Air Canada and the Association could rely on paragraph 15(1)(c) of the Act.
V. Issues and Standard of Review
[32] Based on the parties’ submissions, this application for judicial review raises the following issues:
Is the application premature?
If not premature, did the Tribunal violate the Applicants’ procedural fairness rights by making the Decision without the benefit of viva voce evidence?
If not premature and not procedurally unfair, is the Decision unreasonable?
[33] As suggested by this articulation of the issues, the standard of reasonableness applies to the last issue (see Vavilov at para 25). The second issue deals with procedural fairness. Such issues are subject to judicial scrutiny to ensure that a fair and just process was followed, an exercise best reflected in the correctness standard even though, strictly speaking, no standard of review is being applied (see Canadian Pacific Railway Company v Canada (Transport Agency), 2021 FCA 69 at paras 46-47).
[34] No standard of review applies to the first issue.
VI. Analysis
A. Is the application premature?
[35] The Association takes the position that the Court should dismiss this application, without considering the substantive issues surrounding the procedural fairness or reasonableness of the Decision, because the application offends the so-called prematurity principle. This is the administrative law principle that generally precludes seeking judicial review of interlocutory administrative decisions.
[36] Canada (Border Services Agency) v C.B. Powell Limited, 2010 FCA 61 [C.B. Powell], is often cited as authority for the prematurity principle. In its recent decision in Dugré v Canada (Attorney General), 2021 FCA 8 [Dugré], the Federal Court of Appeal relied on C.B. Powell and summarized this principle as follows (at paras 35 to 37):
35. As it is clear from the above passage, an application for judicial review against an interlocutory administrative decision can be brought only in “exceptional circumstances.” Such circumstances are very rare and require that the consequences of an interlocutory decision be so “immediate and radical” that they call into question the rule of law (Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467 [Wilson], at paras. 31-33, set aside on a different point, 2016 SCC 29, [2016] 1 S.C.R. 770; Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139, 473 N.R. 283, at paras. 56-60 [Budlakoti]).
36. This Court has analogized these circumstances to those that can justify the issuance of a writ of prohibition; absent of such circumstances, the application must be subject to summary dismissal (Wilson, at para. 33; Forner v. Professional Institute of the Public Service of Canada, 2016 FCA 35, at paras. 14-15). No exception is made: even constitutional questions or questions qualified as “jurisdictional” cannot attract interlocutory relief (C.B. Powell, at paras. 39-46; Black v. Canada (Attorney General), 2013 FCA 201, 448 N.R. 196, at paras. 18-19).
37. In short, the non-availability of interlocutory relief is next to absolute. A less stringent criterion would only encourage premature forays into courts and a resurgence of the ills identified in C.B. Powell. Hence, certain recent attempts by the Federal Court to restate the settled test by refining criteria for exceptions are ill-advised and should not be viewed as authoritative (see Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217, at paras. 20-21 and subsequent Federal Court cases). Although well-intentioned, these attempted restatements only serve to muddy the waters and compromise the rigour of the principle of non-interference.
[37] The Association submits that this application does not raise issues that call into question the rule of law or that otherwise fall within the limited exceptions to the jurisprudential admonition against seeking judicial review of interlocutory administrative decisions.
[38] The Applicants argue that the prematurity principle should not be applied in the case at hand, because the Tribunal has recently released its final decision, dismissing the Applicants’ complaint on its merits [the Dismissal]. At the hearing of this application on July 4, 2023, the Applicants’ counsel advised the Court that the Tribunal had issued the Dismissal a week before, on June 27, 2023. The record before the Court does not include the Dismissal. However, counsel for the Applicants and the Association agreed at the hearing that it was appropriate, for purposes of the Court’s consideration of the prematurity issue, that the Court be informed that the final decision had been issued and that its outcome was a dismissal of the complaint. With the benefit of this development, the Applicants submit that, while this application might have been premature when first filed, it is no longer premature, as the administrative process before the Tribunal has now run its course.
[39] Air Canada takes no position on the prematurity issue. However, Air Canada’s counsel submitted at the hearing that the Tribunal’s reasoning, in making the second and third determinations (referenced earlier in these Reasons) that resulted in the Dismissal, was a very mechanical exercise. As such, Air Canada’s counsel explained that it could be that the last set of issues between the parties, which could be subject to judicial review, are those raised in the present application. The Association’s counsel did not dispute this characterization of the Dismissal. However, the Association argues that the Court should not disregard the prematurity principle simply because the final decision in a particular administrative proceeding happens to develop in a manner that does not present substantive analysis or issues beyond those addressed in the interlocutory decision.
[40] Having considered the Applicants’ position, I recognize that it is possible that some of the considerations that typically animate the prematurity principle do not fully apply in the present circumstances. As explained by the Federal Court of Appeal in Herbert v Canada (Attorney General), 2022 FCA 11 [Herbert], this principle allows reviewing courts to have the benefit of all of the administrative tribunal’s findings, suffused with the tribunal’s expertise, policy judgments and valuable regulatory experience (at paras 9 and 19). If the reasoning and findings of the Tribunal, between the Decision and the Dismissal, are purely mechanical and raise no new issues for the Court’s consideration, then it is possible that the Court would have been no better equipped to consider the present issues and the overall administrative process and decision if the Applicant had waited until after the Dismissal to seek judicial review.
[41] Of course, it is difficult to know if the Court would be better equipped if it was sitting in judicial review of the Dismissal, as the record does not include the Dismissal, and the Court cannot be confident that the parties would not raise any additional issues or arguments if the Dismissal were under review. However, even assuming that the Court would be no better equipped if it was the Dismissal under review, I find compelling the Association’s argument that such considerations do not represent exceptional circumstances of the sort that warrant departure from the principles underlying the general prohibition against seeking judicial review of interlocutory administrative decisions.
[42] As explained in Herbert at paragraphs 12 to 13, these principles were reiterated with vigour in Dugré, which held that the non-availability of interlocutory relief in administrative matters was next to absolute (at para 37). The Federal Court of Appeal underscored the fact that the very rare circumstances that would allow a party to bypass the administrative process required that the consequences of an interlocutory decision be so immediate and radical that they call into question the rule of law (see Dugré at para 35). The Court warned that a less stringent criterion would only encourage premature forays into the courts and a resurgence of the ills identified in C.B. Powell (see Dugré at para 37).
[43] The present circumstances do not satisfy the criterion explained in this jurisprudence for an exception to the prematurity principle. Rather, the Applicants argue that, as the issues surrounding the procedural fairness and reasonableness of the Decision have been fully briefed and argued before the Court, it would not be in the best interests of the parties or the efficient administration of justice to dismiss this application and require the Applicants to pursue their arguments through a new application for judicial review of the Dismissal. However, as the Association submits, this is precisely the sort of argument that was rejected in Herbert, which held that the practical realities of that particular matter, including the costs associated with the prospect of having to come back to court to raise the same issues, did not assist the applicant in avoiding the prematurity principle (at paras 15-16). Rather, treating such considerations as satisfying the exceptionality test would only encourage premature forays into courts and compromise the rigour of the principle of non-interference (see Herbert at para 16, citing Dugré at para 37).
[44] Absent the sort of exceptional circumstances contemplated by the jurisprudence, litigants should respect the prematurity principle. If the Court were to fail to apply the principle in the case at hand, this could encourage litigants to disregard the principle and challenge interlocutory decisions in circumstances where they anticipate that a subsequent final administrative decision may add little substantive content to the issues in dispute. As the Association submits, such a result would make the application of the prematurity principle less certain and therefore represent an unwelcome development in the law.
VII. Conclusion
[45] In conclusion, I find that this application offends the prematurity principle and must be dismissed. As such, the Court will not consider the other issues raised in this application.
[46] As a purely administrative matter, the Association’s counsel explained at the hearing that, pursuant to an Order of the Canada Industrial Relations Board dated June 15, 2023 (Order No.: 11826-U), the Air Line Pilots Association, International has been declared the successor bargaining agent of the Air Canada Pilots Association, which the Applicants named as a Respondent in this application. Counsel for the Association therefore requests that the Court’s Judgment replace the Air Canada Pilots Association with the Air Line Pilots Association, International as a Respondent in the style of cause in this application. Neither of the other parties opposes this change. My Judgment will so provide.
VIII. Costs
[47] At the hearing, the parties committed to consult in an effort to agree on a lump sum amount of costs, to be awarded to whichever party was successful in this application. The Association’s counsel subsequently advised by letter dated July 10, 2023, that the parties had reached agreement on a lump sum figure of $1000.00. While this figure is less than would typically be awarded as costs in an application for judicial review, I am conscious of the Applicants’ submission at the hearing that the human rights context in which this application is brought can militate in favour of a modest costs award.
[48] I am therefore comfortable adopting the parties’ joint position and, consistent with counsel’s July 10, 2023 letter, my Judgment will award lump sum costs fixed in the amount of $1000.00 to each of the Respondents, Air Canada and the Association.
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