Adamson et al. v. Air Canada et al., (2015) 474 N.R. 136 (FCA)

• Judge: Pelletier, Trudel and Boivin, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 20, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 N.R. 136 (FCA);2015 FCA 153

Adamson v. Air Can. (2015), 474 N.R. 136 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. JL.010

Robert Adamson et al. and Air Canada and Air Canada Pilots Association (appellants) v. Canadian Human Rights Commission and Donald Paxton (respondents)

(A-105-14; A-111-14; A-112-14; 2015 FCA 153; 2015 CAF 153)

Indexed As: Adamson et al. v. Air Canada et al.

Federal Court of Appeal

Pelletier, Trudel and Boivin, JJ.A.

June 26, 2015.

Summary:

The complainants, a group of retired Air Canada pilots and past members of the Air Canada Pilots Association (ACPA), who were forced to retire at age 60 pursuant to their collective agreement and pension plan, filed an age discrimination complaint under the Canadian Human Rights Act (CHRA).

The Canadian Human Rights Tribunal (CHRT), in a decision with neutral citation 2011 CHRT 11, made an initial finding of prima facie discrimination. The CHRT also rejected the Bona Fide Occupational Requirement (BFOR) defences of Air Canada and ACPA (CHRA, s. 15(1)(a)). Ultimately, however, the allegations of a discriminatory practice were not upheld because the Tribunal concluded that 60 was the "normal age of retirement" in the Canadian passenger airline industry, thereby denying liability pursuant to s. 15(1)(c) of the CHRA. All parties filed for judicial review. The pilots challenged the finding on normal age of retirement (Court file T-1428-11) while Air Canada and ACPA sought to set aside the CHRT's decision rejecting their BFOR defences (T- 1453-11 and T-1463-11 respectively). The Canadian Human Rights Commission (CHRC) also applied for judicial review (T-1456-11), seeking a determination of the constitutionality of s. 15(1)(c) of the CHRA; however, that application was discontinued when the CHRT agreed to consider the question.

The Canadian Human Tights Tribunal, in a decision with neutral citation 2012 CHRT 9, ruled that s. 15(1)(c) violated the guarantee of equality in s. 15(1) of the Charter. That decision reversed the previous outcome of the complaint, as Air Canada and ACPA no longer had a valid defence to the prima facie discrimination. Air Canada applied for judicial review of the CHRT's decision (T-971-12), as did ACPA (T-979-12). However, shortly afterward, in Air Canada Pilots Association v. Kelly (2012 FCA 209), the Federal Court of Appeal upheld the constitutionality of s. 15(1)(c). Leave to appeal was denied - see 452 N.R. 397.

The Federal Court held, in light of the Kelly decision, that the CHRT's decision in 2012 CHRT 9 was no longer valid, and Court files T-971-12 and T-979-12 were therefore dismissed. The court allowed the pilots' judicial review application and set aside the CHRT's decision on the normal age of retirement of pilots at age 60 (s. 15(1)(c)). The court dismissed Air Canada's application to set aside the CHRT's decision rejecting its BFOR defence (s. 15(1)(a)). The court allowed ACPA's application to set aside the CHRT's decision dismissing its BFOR defence and sent the matter back for redetermination by the same panel with directions on the law and on the methodology to be used by the CHRT. The parties each appealed. The pilots submitted that the court should not have granted ACPA's application for judicial review and should have instead upheld the Tribunal's conclusion that the ACPA could not rely on s. 15(1)(a) of the CHRA. They also claimed that the court should not have dealt with the issue of prima facie discrimination and, in any event, was bound by previous jurisprudence on that matter (appeal A-105-14, related to T-1463-11). Air Canada submitted that the court erred in allowing the pilots' application for judicial review on the normal age of retirement and also that the court ought to have accepted its BFOR defence under s. 15(1)(a) of the CHRA (appeal A-111-14, related to T-1428-11 and T-1453-11). The ACPA also submitted that the court should not have granted the pilots' application for judicial review on the normal age of retirement (appeal A-112-14, related to T-1428-11). The CHRC argued 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 CHRA prove "substantive discrimination".

The Federal Court of Appeal held that the judge below erred in substituting his own opinion for that of the CHRT on the normal age of retirement. Therefore, the court allowed the appeals of Air Canada and the ACPA on that issue. As a result of that conclusion, the court did not deal with the parties' submissions regarding s. 15(1)(a) of the CHRA (i.e., the BFOR defences). In the result, the court dismissed the pilots' appeal in file A-105-14 and allowed the appeals brought by Air Canada and the ACPA in files A-111-14 and A-112-14. The court also accepted the CHRC's invitation to comment on the part of the court's reasons and judgment that dealt with the issue of prima facie discrimination.

Aeronautics - Topic 4505

Pilots - General - Mandatory retirement - [See first Civil Rights - Topic 995 ].

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - Air Canada pilots, who were forced to retire at age 60, complained of age discrimination (Canadian Human Rights Act (CHRA)) - The Canadian Human Rights Tribunal (CHRT) held that this was not a discriminatory practice because 60 was the "normal age of retirement" in the Canadian passenger airline industry (CHRA, s. 15(1)(c)) - In identifying a comparator group, the CHRT interpreted the factors in Vilven v. Air Canada et al. (FC) in a conjunctive sense - The pilots applied for judicial review - The Federal Court held that the standard of review applicable to the CHRT's identification of the appropriate comparator group was reasonableness, but allowed the application because the CHRT did not properly apply the Vilven test as the CHRT's approach resulted in the elimination of Air Canada's major competitors - The matter was remitted for redetermination - Air Canada and the pilots' association appealed - The Federal Court of Appeal held that the Federal Court judge chose the proper standard of review (i.e., reasonableness), but did not apply it correctly in substituting his own opinion for that of the CHRT - The judge's approach in relying on Vilven as a comprehensive code (test) for determining the outcome of the complaints took him away from the task of assessing the reasonableness of the CHRT decision on its own merits - The CHRT was entitled to interpret Vilven as it did - The judge's focus on Air Canada's main competitors was misplaced - See paragraphs 27 to 84.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - Air Canada pilots, who were forced to retire at age 60 under their collective agreement, complained of age discrimination (Canadian Human Rights Act (CHRA)) - The Canadian Human Rights Tribunal (CHRT) held that Air Canada's mandatory retirement policy constituted prima facie discrimination under the CHRA, but was not a discriminatory practice because 60 was the "normal age of retirement" in the Canadian passenger airline industry (CHRA, s. 15(1)(c)) - The pilots applied for judicial review on the normal age of retirement issue - The Federal Court allowed the application and set aside the CHRT's decision on the normal age of retirement - The judge, on his own motion, also considered the issue of prima facie discrimination and directed the CHRT to reconsider that issue, hinting that a mandatory retirement policy should not be automatically treated as prima facie discrimination - On appeal, the Federal Court of Appeal commented that the judge erred in law and breached the parties' rights to procedural fairness by failing to follow the proper procedures when exercising his discretion to consider the prima facie discrimination - Further the judge erred on the merits of the issue by implying that an individual should be required to show "substantive discrimination" as part of proving a discriminatory practice under the CHRA - There was binding case law (McKinney (SCC)) that effectively rendered mandatory retirement prima facie discrimination - See paragraphs 85 to 101.

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - [See first Civil Rights - Topic 995 ].

Courts - Topic 560

Judges - Powers - Authority to act ex mero motu (on his own motion) - The Federal Court of Appeal stated that "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 ... 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 paragraph 89.

Courts - Topic 560

Judges - Powers - Authority to act ex mero motu (on his own motion) - [See second Civil Rights - Topic 995 ].

Cases Noticed:

Air Canada Pilots Association v. Kelly et al., [2013] 1 F.C.R. 308; 434 N.R. 165; 2012 FCA 209, refd to. [para. 62].

Vilven v. Air Canada et al., [2010] 2 F.C.R. 189; 344 F.T.R. 104; 2009 FC 367 (F.C.), dist. [para. 20].

Vilven v. Air Canada, 2007 CHRT 36, refd to. [para. 20].

Bailie et al. v. Air Canada et al., 2012 CHRT 6, refd to. [para. 21].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 27].

ServiceMaster Co. v. 385229 Ontario Ltd. (2015), 472 N.R. 120; 2015 FCA 114, refd to. [para. 27].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 28].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 30].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 65].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 30].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Commissioner of Competition v. Superior Propane Inc. et al. (2003), 300 N.R. 104; 223 D.L.R.(4th) 55; 2003 FCA 53, refd to. [para. 31].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 60].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 70].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 70].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 71].

Quebec (Attorney General) v. A. - see A. v. B.

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 86].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 89].

Labatt Brewing Co. et al. v. NHL Enterprises Canada, L.P. et al. (2011), 282 O.A.C. 151; 106 O.R.(3d) 677; 2011 ONCA 511, refd to. [para. 89].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 132 D.L.R.(3d) 14; 40 N.R. 159, refd to. [para. 95].

Pfizer Canada Inc. et al. v. Apotex Inc. et al. (2014), 465 N.R. 306; 2014 FCA 250, refd to. [para. 97].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 99].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 102].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 15(1)(c) [para. 35].

Chicago Convention on International Civil Aviation - see International Civil Aviation Organization.

International Civil Aviation Organization, Chicago Convention on International Civil Aviation (10th Ed. 2006), art. 2.1.10 [para. 23].

Counsel:

David Baker, for the appellants, Robert Adamson et al.;

Maryse Tremblay, for the appellant, Air Canada;

Bruce Laughton, for the appellant, Air Canada Pilots Association;

Daniel Poulin and Erin Collins, for the respondent, Canadian Human Rights Commission.

Solicitors of Record:

Baker Law, Toronto, Ontario, for the appellants, Robert Adamson et al.;

Borden Ladner Gervais LLP, Montreal, Quebec, for the appellant, Air Canada;

Laughton & Company, Vancouver, British Columbia, for the appellant, Air Canada Pilots Association;

Canadian Human Rights Commission, Ottawa, Ontario, for the respondent, Canadian Human Rights Commission.

This appeal was heard in Ottawa, Ontario, on January 20, 2015, before Pelletier, Trudel and Boivin, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Trudel, J.A., on June 26, 2015.