Air Can. Pilots Assoc. v. Kelly, (2011) 383 F.T.R. 198 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: February 03, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 383 F.T.R. 198 (FC);2011 FC 120

Air Can. Pilots Assoc. v. Kelly (2011), 383 F.T.R. 198 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. FE.022

Air Canada Pilots Association (applicant) v. Robert Neil Kelly, George Vilven, Canadian Human Rights Commission and Air Canada (respondents)

(T-1615-09)

Air Canada (applicant) v. Robert Neil Kelly, George Vilven, Canadian Human Rights Commission and Air Canada Pilots Association (respondents)

(T-1606-09; 2011 FC 120)

Indexed As: Air Canada Pilots Association v. Kelly et al.

Federal Court

Mactavish, J.

February 3, 2011.

Summary:

Two Air Canada pilots filed discrimination complaints under the Canadian Human Rights Act (CHRA) when they were each forced to retire at age 60, in accordance with the mandatory retirement provisions of a collective agreement. The Canadian Human Rights Tribunal (CHRT) dismissed the complaints finding that 60 was the "normal age of retirement" in the industry and, therefore, the mandatory retirement provisions were not discriminatory (CHRA, s. 15(1)(c)). The CHRT also found that s. 15(1)(c) did not violate s. 15(1) of the Charter. The two pilots and the Canadian Human Rights Commission applied for judicial review. All three applications challenged the Tribunal's finding that 60 was the normal age of retirement for positions similar to those occupied by the pilots at the time of their retirement from Air Canada. The pilots also challenged the constitutionality of s. 15(1)(c), while the Commission did not. The applications were heard together.

The Federal Court, in a decision reported 344 F.T.R. 104, found that while the CHRT made errors in relation to its "normal age of retirement" analysis, its conclusion that 60 was the normal age of retirement for pilots was reasonable. Consequently, the Commission's application for judicial review was dismissed. However, the court held that the CHRT erred in its analysis of the constitutionality of s. 15(1)(c) of the CHRA. The statutory provision violated s. 15(1) of the Charter (equality provision). Therefore, the court allowed the pilots' applications for judicial review, set aside the decision of the CHRT and remitted the matter to the Tribunal to consider whether s. 15(1)(c) could be saved by s. 1 of the Charter. In the event that the Tribunal determined that s. 15(1)(c) was not saved under s. 1 of the Charter, the court directed that it address the merits of the pilots' human rights complaints, including the issue of bona fide occupational requirements under s. 15(1)(a) of the CHRA.

The Canadian Human Rights Tribunal determined that s. 15(1)(c) was not a reasonable limit justifiable in a free and democratic society as contemplated by s. 1 of the Charter. The CHRT held that Air Canada and the Air Canada Pilots Association (ACPA), the bargaining agent for Air Canada pilots, failed to demonstrate that mandatory retirement at 60 constituted a bona fide occupational requirement for Air Canada pilots. Consequently, the pilots' human rights complaints were deemed to have been substantiated. Two judicial review applications were launched, one by Air Canada and the other by ACPA. Both applications raised an issue as to whether the CHRT erred in its s. 1 Charter analysis and the Air Canada application raised an issue respecting the bona fide occupational requirement. The applications were consolidated by court order.

The Federal Court found that the CHRT's decision on the Charter issue was correct (i.e., s. 15(1)(c) could not be saved by s. 1 of the Charter). As a result, ACPA's application, which only raised the Charter issue, was dismissed. The court concluded that the CHRT erred in its analysis of the bona fide occupational requirement issue as it related to the period after November of 2006 (i.e., when international standards affecting Air Canada changed). Consequently, Air Canada's application for judicial review respecting the Charter issue was dismissed; however, its application respecting the bona fide occupational requirement was granted in part. The question of whether Air Canada had established that age was a bona fide occupational requirement for its airline pilots after November of 2006 was remitted for redetermination.

Aeronautics - Topic 4505

Pilots - General - Mandatory retirement - Two Air Canada pilots, forced to retire at age 60 under collective agreement provisions, filed discrimination complaints (Canadian Human Rights Act (CHRA)) - Numerous proceedings ensued, resulting in a court ruling that s. 15(1)(c) of the CHRA, which allowed an employer to terminate the employment of an individual if that person had reached the "normal age of retirement" for those working in similar positions, was contrary to s. 15(1) of the Charter (equality provision) - Subsequently, the Canadian Human Rights Tribunal (CHRT) determined that s. 15(1)(c) was not a reasonable limit justifiable in a free and democratic society (Charter, s. 1) - The CHRT also held that Air Canada and the Air Canada Pilots Association (ACPA) failed to demonstrate that mandatory retirement at 60 constituted a bona fide occupational requirement for Air Canada pilots - Air Canada and ACPA applied for judicial review - The Federal Court held that the CHRT's decision on the s. 1 Charter issue was correct; however, the CHRT erred in its analysis of the bona fide occupational requirement issue as it related to the period after November of 2006 - That matter was remitted for redetermination - See paragraphs 50 to 492.

Civil Rights - Topic 2

Interpretation of human rights legislation - The Federal Court stated that "... while the quasi-constitutional rights conferred by human rights legislation are to be broadly interpreted, this is not so with respect to the defences provided in the human rights statute in question. Defences to the exercise of those rights are to be interpreted narrowly" - See paragraph 400.

Civil Rights - Topic 2

Interpretation of human rights legislation - [See first Civil Rights - Topic 985 ].

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - Section 15(2) of the Canadian Human Rights Act provided that in order to prove a bona fide occupational requirement or justification, "it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost " - The Canadian Human Rights Tribunal (CHRT) interpreted s. 15(2) as allowing it to consider factors other than "health, safety and cost" in relation to accommodation - The Federal Court, on judicial review, held that the CHRT's interpretation, although entitled to deference, was unreasonable and that s. 15(2) should be interpreted as limiting the factors to be taken into account in an accommodation analysis to "health, safety and cost" - The factors were not entrenched - The principle of expressio unius est exclusio alterius and the approach that should be taken to interpreting human rights statutes suggested that the factors identified in s. 15(2) should not be read as an exhaustive list - This did not mean that matters such as employee morale and mobility, interference with other employees' rights and disruption of a collective agreement, could never be relevant; however, in order to be taken into account in an accommodation analysis, those matters had to be of a sufficient gravity as to have a demonstrable impact on employer operations in a way that related to health, safety or cost - See paragraphs 386 to 404.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - [See second Civil Rights - Topic 998 ].

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - The Federal Court reviewed the Supreme Court of Canada's mandatory retirement jurisprudence - See paragraphs 54 to 102.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - Section 15(1)(c) the Canadian Human Rights Act (CHRA) allowed an employer to terminate the employment of an individual if that person had reached the "normal age of retirement" for those working in similar positions - Following a court decision that s. 15(1)(c) was contrary to s. 15(1) of the Charter (equality provision), the Canadian Human Rights Tribunal (CHRT) held that s. 15(1)(c) could not be saved by s. 1 of the Charter - Interested parties applied for judicial review, arguing that the CHRT erred in law by failing to follow McKinney v. University of Guelph (SCC 1990) which was binding and dictated a finding that s. 15(1)(c) was saved by s. 1 - In McKinney, the court opined that s. 9(a) of the Ontario Human Rights Code, which limited the protection against age discrimination in employment to those between the ages of 18 and 65, violated s. 15(1) of the Charter; however, s. 9(a) was saved by s. 1 - The Federal Court cited four reasons why McKinney and its companion cases should not dictate the result of this case: (1) significant differences between the legislative provisions in issue; (2) clear indication in McKinney that the Supreme Court did not intend that decision to be the final word on the subject of mandatory retirement for all time; (3) the differences in the evidentiary records that were before the Supreme Court and the CHRT; and (4) the developments in public policy that had occurred since McKinney was decided - See paragraphs 59 to 185.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - Section 15(1)(c) of the Canadian Human Rights Act (CHRA) allowed an employer to terminate the employment of an individual if that person had reached the "normal age of retirement" for those working in similar positions - Following a Federal Court decision that s. 15(1)(c) was contrary to s. 15(1) of the Charter (equality provision), the Canadian Human Rights Tribunal (CHRT) held that s. 15(1)(c) could not be saved by s. 1 of the Charter - Interested parties applied for judicial review, arguing that the CHRT erred in law failing to follow McKinney v. University of Guelph (SCC 1990) which was binding on the CHRT and dictated a finding that s. 15(1)(c) was saved by s. 1 - The Federal Court held that there were exceptional circumstances in this case such that it was open to the CHRT to revisit the issue of mandatory retirement as it related to s. 15(1)(c) of the CHRA, in light of more recent evidence - The court noted that the Supreme Court clearly indicated in McKinney that it did not intend that its judgment on the s. 1 issue be the final word on the subject - The court left the issue open for revisitation in the future, when reliable evidence became available as to what actually happened when mandatory retirement was abolished - The court stated that where earlier Supreme Court decisions could and should be revisited, "such revisitations must necessarily commence at the trial court level" - See paragraphs 130 to 146.

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - [See Aeronautics - Topic 4505 ].

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - [See Aeronautics - Topic 4505 ].

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - The Federal Court reviewed the legal principles governing bona fide occupational requirements (Canadian Human Rights Act, s. 15(1)(a)) - See paragraphs 353 to 358.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - Two Air Canada pilots, who were forced to retire at age 60 under collective agreement provisions in 2003 and 2005, filed discrimination complaints (Canadian Human Rights Act (CHRA)) - Prior to November of 2006, International Civil Aviation Organization (ICAO) standards, which governed Air Canada standards, stipulated the pilots-in-command over the age of 60 could not fly internationally - The ICAO standards were amended on November 23, 2006, to allow Pilots-in-command under the age of 65 to fly internationally, as long as one of the pilots in a multi-pilot crew was under 60 (known as the "over/under rule") - The Canadian Human Rights Tribunal (CHRT), considering, inter alia, the impact of the ICAO standards, found that it had not been demonstrated that mandatory retirement at 60 constituted a bona fide occupational requirement for Air Canada pilots (i.e., a bona fide occupational requirement defence under s. 15(1)(a) of the Canadian Human Rights Act was not established) - Air Canada applied for judicial review - The Federal Court, reviewing the matter on the standard of reasonableness, held that the CHRT's finding that Air Canada had not established that being under the age of 60 was a bona fide occupational requirement for its airline pilots at the time the pilots' employment was terminated in 2003 and 2005 respectively was reasonable - However, the CHRT erred in its analysis of the bona fide occupational requirement issue as it related to the period after November of 2006 and that aspect of the CHRT's decision would be set aside because it was unreasonable, but remitted to the CHRT for reconsideration - See paragraphs 352 to 471.

Civil Rights - Topic 5658.1

Equality and protection of the law - Mandatory retirement - [See Aeronautics - Topic 4505 and second Civil Rights - Topic 995 ].

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - The Federal Court stated that "The constitutional remedies available to administrative tribunals (including the Canadian Human Rights Tribunal) are limited. Tribunals do not have the power to grant general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter will not be binding on future decision-makers ... " - See paragraph 479.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - Section 15(1)(c) the Canadian Human Rights Act (CHRA) allowed an employer to terminate the employment of an individual if that person had reached the "normal age of retirement" for those working in similar positions - The Federal Court, in prior proceedings, found s. 15(1)(c) to contrary to s. 15(1) of the Charter (equality provision) and remitted the matter of whether the provision was justified by s. 1 of the Charter to the Canadian Human Rights Tribunal (CHRT) - The CHRT found that s. 15(1)(c) was not a reasonable limit justifiable in a free and democratic society as contemplated by s. 1 of the Charter - Interested parties applied for judicial review - The Federal Court held that the standard of review was correctness and the CHRT'S decision on the Charter issue was correct - It had not been shown that the broadly-worded exception to the otherwise discriminatory practice of mandatory retirement contained in s. 15(1)(c) of the CHRA was a reasonable limit justifiable in a free and democratic society - See paragraphs 50 to 351 .

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second Civil Rights - Topic 995 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - Two Air Canada pilots, forced to retire at age 60 under collective agreement provisions, filed discrimination complaints (Canadian Human Rights Act (CHRA)) - The Federal Court ruled that s. 15(1)(c) of the CHRA, which sanctioned mandatory retirement in certain circumstances, was contrary to s. 15(1) of the Charter (equality provision) - Subsequently, the Canadian Human Rights Tribunal (CHRT) determined that s. 15(1)(c) could not be saved by s. 1 of the Charter, but observed that it lacked power to make a general declaration of legislative invalidity - Interested parties (the applicants) applied for judicial review - The pilots (i.e., the respondents on judicial review) sought a declaration of invalidity respecting s. 15(1)(c) (Constitution Act, s. 52(1)) - The Federal Court held that the CHRT was correct in its s. 1 Charter analysis - Consequently, the remedial powers of the court by s. 18.1(3) of the Federal Courts Act were not engaged and the proper remedy was to dismiss the applicants' Charter applications - There was no jurisprudence cited where declaratory relief, whether constitutional or otherwise, was granted to a respondent on a judicial review - Even if such a remedy was available for a responding party, the court stated that it was not appropriate to grant declaratory relief here because the pilots' request amounted to a collateral attack on the CHRT's remedial decision, which was not before the court, and the Attorney's General were not given proper notice of the pilots' request - See paragraphs 472 to 489.

Courts - Topic 17

Stare decisis - Authority of judicial decisions - General principles - Scope of stare decisis - [See third Civil Rights - Topic 995 ].

Courts - Topic 17.1

Stare decisis - Authority of judicial decisions - "Special circumstances" exception to stare decisis (incl. when precedent can be revisited) - [See third Civil Rights - Topic 995 ].

Courts - Topic 124.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Decisions binding on boards or tribunals - [See third Civil Rights - Topic 995 ].

Statutes - Topic 504

Interpretation - Quasi-constitutional statutes - [See first Civil Rights - Topic 2 ].

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See first Civil Rights - Topic 985 ].

Cases Noticed:

Vilven v. Air Canada et al., [2010] 2 F.C.R. 189; 344 F.T.R. 104 (F.C.), refd to. [para. 2].

Vilven v. Air Canada et al., 2009 CHRT 24, refd to. [para. 31].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 32].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, dist. [para. 34].

Harrison v. University of British Columbia; Connell v. University of British Columbia, [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 34].

Meiorin - see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union.

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. 39].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 46].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 46].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 150: 470 W.A.C. 150; 2009 SCC 53, refd to. [para. 46].

National Capital Commission v. Brown et al. (2009), 394 N.R. 348; 2009 FCA 273, refd to. [para. 48].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 49].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 52].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 55].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 59].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 86].

Potash Corp. of Saskatchewan Inc. v. Human Rights Commission (N.B.) - see Potash Corp. of Saskatchewan Inc. v. Scott et al.

Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 96].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 131].

Bedford et al. v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 4264; 2010 ONSC 4264, refd to. [para. 132].

Wakeford v. Canada (Attorney General), [2001] O.T.C. 84; 81 C.R.R.(2d) 342 (Sup. Ct.), affd. (2001), 156 O.A.C. 385 (C.A.), leave to appeal refused (2002), 300 N.R. 197; 169 O.A.C. 196 (S.C.C.), refd to. [para. 133].

Leeson et al. v. University of Regina et al. (2007), 301 Sask.R. 316; 2007 SKQB 252, refd to. [para. 139].

Association of Justices of the Peace of Ontario et al. v. Ontario (Attorney General), [2008] O.T.C. Uned. B04; 92 O.R.(3d) 16 (Sup. Ct.), refd to. [para. 152].

Grismer v. British Columbia Council of Human Rights et al. - see Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.).

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 154].

Greater Vancouver Regional District Employees' Union v. Greater Vancouver (Regional District) (2001), 158 B.C.A.C. 231; 258 W.A.C. 231; 206 D.L.R.(4th) 220; 2001 BCCA 435, refd to. [para. 159].

CKY-TV v. Communications, Energy and Paperworkers' Union of Canada, Local 816, [2008] C.L.A.D. No. 92, refd to. [para. 168].

CKY-TV v. Communications, Energy and Paperworkers Union of Canada, Local 816 (2009), 246 Man.R.(2d) 100; 2009 MBQB 252, refd to. [para. 171].

Bell v. Canadian Human Rights Commission - see Cooper v. Canadian Human Rights Commission.

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 174].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 187].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 187].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 187].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 189].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 189].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 191].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 191].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia (2007), 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 205].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 209].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 211].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 220].

R. v. Advance Cutting and Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1; 2001 SCC 70, refd to. [para. 220].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, [2004] 3 S.C.R. 381; 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 234].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 291].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 342].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 356].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section local 2000 (SCFP-FTQ) v. Hydro-Québec, [2008] 2 S.C.R. 561; 377 N.R. 136; 2008 SCC 43, refd to. [para. 357].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245, refd to. [para. 372].

Celgene Corp. v. Canada (Attorney General) (2011), 410 N.R. 127; 2011 SCC 1, refd to. [para. 391].

Brossard (Town) v. Commission des droits de la personne du Québec and Laurin, [1988] 2 S.C.R. 279; 88 N.R. 321; 18 Q.A.C. 164, refd to. [para. 400].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 401].

Syndicat des employées et employés Professionels - les et de bureau, section locale 434 v. Gagnon, [2005] J.Q. no. 9368, disagreed with [para. 403].

Hutchinson v. British Columbia (Minister of Health) (No. 4) (2004), 49 C.H.R.R. D/348; 2004 BCHRT 58, refd to. [para. 408].

Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.), refd to. [para. 455].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 455].

League for Human Rights of B'nai Brith Canada v. Odynsky - see League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al.

League for Human Rights of B'nai Brith Canada v. Canada (Attorney General) et al. (2010), 409 N.R. 298; 2010 FCA 307, refd to. [para. 463].

Moktari v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 341; 249 N.R. 385 (F.C.A.), refd to. [para. 480].

Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 480].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 3]; sect. 15(1) [para. 2].

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 15(1)(c) [para. 106].

Human Rights Act (Can.) - see Canadian Human Rights Act.

Authors and Works Noticed:

American Urban Institute, Mandatory Retirement Study: Final Report (1981), generally [para. 305].

Canadian Human Rights Act Review Panel, Report on Promoting Equality: A New Vision (2000), pp. 119 [para. 149]; 120 [para. 151]; 121 [paras. 150, 151].

Jamal, Mahmud, and Taylor, Matthew, The Charter of Rights in Litigation: Direction from the Supreme Court of Canada (1990) (Looseleaf), p. 6-78, s. 6:12 [para. 300].

Kesselman, Jonathan R., Mandatory Retirement and Older Workers: Encouraging Longer Working Lives (2004), 200 C.D. Howe Institute Commentary 1, p. 18 [para. 266].

Pesando, James E., and Gunderson, Morley, The Case for Allowing Mandatory Retirement (1988), 14 Can. Public Policy 32, pp. 32 to 39 [para. 305].

Sullivan, Ruth, Sullivan on the Constructionof Statutes (5th Ed. 2008), p. 244 [paras. 395, 396].

Zinn, Russel W., The Law of Human Rights in Canada: Practice and Procedure (1996) (Looseleaf), s. 14:60:2 [para. 393].

Counsel:

Bruce Laughton, for the applicant (Air Canada Pilots Association);

Raymond D. Hall and David Baker, for the respondents (Robert Neil Kelly and George Vilven);

Daniel Poulin, for the respondent (Canadian Human Rights Commission);

Gavin MacKenzie and Christianna Scott, for the respondent (Air Canada).

Solicitors of Record:

Laughton & Company, Vancouver, British Columbia, for the applicant (Air Canada Pilots Association);

Bakerlaw, Toronto, Ontario, for the respondents (Robert Neil Kelly and George Vilven);

Canadian Human Rights Commission, Ottawa, Ontario, for the respondent (Canadian Human Rights Commission);

Heenan Blaikie, LLP, Montreal, Quebec, for the respondents (Air Canada).

This matter was heard on November 22-24, 2010, at Ottawa, Ontario, by Mactavish, J., of the Federal Court, who delivered the following reasons for judgment on February 3, 2011.