Vilven v. Air Canada et al., (2009) 344 F.T.R. 104 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: April 09, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 344 F.T.R. 104 (FC);2009 FC 367

Vilven v. Air Can. (2009), 344 F.T.R. 104 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AP.036

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

(T-1674-07)

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

(T-1678-07)

Canadian Human Rights Commission (applicant) v. George Vilven, Robert Neil Kelly, Air Canada Pilots Association and Fly Past 60 Coalition (respondents)

(T-1680-07; 2009 FC 367)

Indexed As: Vilven v. Air Canada et al.

Federal Court

Mactavish, J.

April 9, 2009.

Summary:

Two Air Canada pilots filed discrimination complaints under the Canadian Human Rights Act 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 dismissed the complaints finding that 60 was the "normal age of retirement" in the industry and, therefore, the mandatory retirement provisions were not discriminatory (Canadian Human Rights Act (CHRA), s. 15(1)(c)). The Tribunal also found that s. 15(1)(c) did not violate s. 15(1) of the Charter. The 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 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 was reasonable. Consequently, the Canadian Human Rights Commission's application for judicial review was dismissed. However, the court held that the Tribunal 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, as it denied the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. In so doing, s. 15(1)(c) had the effect of perpetuating the group disadvantage and prejudice faced by older workers by promoting the perception that such individuals were less worthy and less deserving of the protection of the law. Therefore, the court allowed the pilots' applications for judicial review, set aside the decision of the Canadian Human Rights Tribunal insofar as it related to the Charter issue, and remitted the matter to the Tribunal for further consideration in accordance with these reasons.

Aeronautics - Topic 4505

Pilots - General - Mandatory retirement - [See first and third Civil Rights - Topic 996 ].

Civil Rights - Topic 995

Discrimination - Employment - Age - Retirement - [See third Civil Rights - Topic 996 ].

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - Two Air Canada pilots filed discrimination complaints under the Canadian Human Rights Act 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 dismissed the complaints, finding that because 60 was the "normal age of retirement" in the industry, under s. 15(1)(c) of the Canadian Human Rights Act (CHRA) the mandatory retirement provisions were not considered discriminatory - The pilots applied for judicial review, arguing that the Tribunal erred in defining the "normal age of retirement" - The Federal Court found that the Tribunal made errors in relation to its "normal age of retirement" analysis - In choosing a comparator group, the Tribunal misidentified the essential features of the pilots' positions and erred by looking at retirement requirements for pilots in foreign countries - Further, the Tribunal erred in finding that there was a rule in the airline industry governing the age of retirement; however, the court held that proof of the existence of such a rule was not a prerequisite to the defence under s. 15(1)(c) - Despite the errors, the court held that the Tribunal's conclusion that 60 was the normal age of retirement for pilots in positions similar to those occupied by these pilots was reasonable - Given that conclusion, according to s. 15(1)(c), the mandatory retirement provisions did not amount to a discriminatory practice - See paragraphs 75 to 183.

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - The English version of s. 15(1)(c) of the Canadian Human Rights Act (CHRA) stated 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" - In contrast, the French version of s. 15(1)(c) provided that it was not a discriminatory practice if an individual's employment was terminated "en appliquant la règle de l'âge de la retraite en vigueur pour ce genre d'emploi" - An issue arose as to whether, in light of the differences between the English and French versions, there was a requirement that there be a binding rule in place mandating mandatory retirement at a given age before the defence under s. 15(1)(c) would be available to an employer - The Federal Court stated that in order to establish the defence contemplated by s. 15(1)(c), the shared meaning of the English and French versions of the provision required that the age of retirement in issue had to be normal, customary or standard within the relevant industry sector - The existence of a binding rule mandating retirement at a particular age was not required - See paragraphs 135 to 163.

Civil Rights - Topic 996

Discrimination - Employment - Age - Retirement - Exceptions - Section 15(1)(c) of the Canadian Human Rights Act provided that it was not a discriminatory practice if an individual's employment was terminated "because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual" (i.e., s. 15(1)(c) allowed employers to discriminate against their employees on the basis of age, as long as that discrimination was pervasive within a particular industry) - Two Air Canada pilots, who were forced to retire at age 60, the normal age of retirement in the industry, challenged the constitutionality of s. 15(1)(c) - The Canadian Human Rights Tribunal (the Tribunal) found that s. 15(1)(c) did not violate s. 15 of the Charter - The pilots applied for judicial review - The Federal Court held that the statutory provision violated s. 15(1) of the Charter, as it denied the equal protection and equal benefit of the law to workers over the normal age of retirement (i.e, the provision made a distinction based on an enumerated ground - age) - In so doing, s. 15(1)(c) had the effect of perpetuating the group disadvantage and prejudice faced by older workers by promoting the perception that such individuals were less worthy and less deserving of the protection of the law - The issue of whether s. 15(1)(c) could be saved by s. 1 of the Charter was remitted to the Tribunal - See paragraphs 184 to 341.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - 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 dismissed the complaints, finding that 60 was the "normal age of retirement" in the industry as contemplated by s. 15(1)(c) of the CHRA and, therefore, the mandatory retirement provisions were not discriminatory - The pilots applied for judicial review - An issue arose respecting the standard of review to be applied to the question of whether a binding rule was required for there to be a "normal age of retirement" for purposes of s. 15(1)(c) of the CHRA - The Federal Court held that the standard of review of the Tribunal's finding in this regard was entitled to deference (i.e., this question of law was reviewable on the standard of reasonableness) - See paragraphs 63 to 74.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See third Civil Rights - Topic 996 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See second Civil Rights - Topic 996 ].

Words and Phrases

Règle - The Federal Court discussed the meaning of this word as used in the French version of s. 15(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 - See paragraphs 151 to 162.

Cases Noticed:

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 33].

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. 54].

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. 54].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 55].

Gosselin v. Québec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 55].

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. 62].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 67].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 67].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 68].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 76].

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. 78].

Insurance Corp. of British Columbia v. Heerspink and Director, Human Rights Code, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 79].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 79].

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) - see Action Travail Des Femmes v. Canadian National Railway Co. et al.

Potash Corp. of Saskatchewan Inc. v. Scott et al. (2008), 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 80].

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

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al. (2000), 253 N.R. 107; 2000 SCC 27, refd to. [para. 81].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 81].

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. 83].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc. (2003), 311 N.R. 313; 2003 SCC 68, refd to. [para. 85].

Campbell v. Air Canada (1981), 2 C.H.R.R. D/602, refd to. [para. 116].

Stevenson v. Canadian Human Rights Commission et al. (1983), 49 N.R. 161 (F.C.A.), refd to. [para. 118].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 146].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 147].

McAllister v. Maritime Employers Association et al. (1999), 172 F.T.R. 161 (T.D.), refd to. [para. 155].

Canadian National Railway Co. v. Prior (1983), 4 C.H.R.R. D/268, refd to. [para. 155].

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

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 190].

R. v. Kapp (J.M.) et al. (2008), 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 190].

Stoffman et al. v. Vancouver General Hospital et al., [1990] 3 S.C.R. 483; 118 N.R. 241, refd to. [para. 195].

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. 195].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 221].

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

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (2009), 384 N.R. 203; 2009 SCC 9, refd to. [para. 240].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 255].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 256].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 280].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 292].

Evans v. Teamsters Union Local No. 31 (2008), 374 N.R. 1; 253 B.C.A.C. 1; 425 W.A.C. 1; 2008 SCC 20, refd to. [para. 295].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (2004), 326 N.R. 25; 242 Nfld. & P.E.I.R. 113; 719 A.P.R. 113; 2004 SCC 66, refd to. [para. 295].

Workers' Compensation Board (N.S.) v. Martin et al. (2003), 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 295].

Lavoie et al. v. Canada et al. (2002), 284 N.R. 1; 2002 SCC 23, refd to. [para. 295].

Dunmore et al. v. Ontario (Attorney General) et al. (2001), 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 295].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 295].

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 295].

Machtinger v. HOJ Industries Ltd. - see Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd.

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 295].

Wilson v. Medical Services Commission (B.C.) (1988), 53 D.L.R.(4th) 171 (B.C.C.A.), refd to. [para. 295].

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. 295].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 316].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 328].

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. 330].

Greater Vancouver Regional District Employees' Union v. Greater Vancouver (Regional District) (2001), 158 B.C.A.C. 231; 258 W.A.C. 231; 2001 BCCA 435, refd to. [para. 332].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 185].

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 9(2) [para. 141]; sect. 15(1)(c) [para. 45].

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

Authors and Works Noticed:

Beaudoin, Gérald A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 959 [para. 324]; 969 [para. 193].

Black, William, and Smith, Lynn, The Equality Rights, in Beaudoin, Gérald A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 959 [para. 324]; 969 [para. 193].

Côté, Pierre André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 323, 324, 349 [para. 148].

Fyfe, R. James, Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada (2007), 70 Sask. L. Rev. 1, generally [para. 228].

Greschner, Donna, Does Law Advance the Cause of Equality? (2001), 27 Queen's L.J. 299, generally [para. 228].

Smith, Lynn, Development of Charter Equality Rights: The Contribution of the Right Honourable Antonio Lamer (2008), p. 5 [para. 229].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 1 [para. 146]; 100 [paras. 148, 149]; 101 [para. 149].

Counsel:

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

Daniel Poulin and Sulini Sarugaser, for the respondent, Canadian Human Rights Commission;

Maryse Tremblay and Jennifer Black, for the respondent, Air Canada;

Bruce Laughton, for the respondent, Air Canada Pilots Association.

Solicitors of Record:

Bakerlaw, Toronto, Ontario, for the applicants, George Vilven and Robert Neil Kelly;

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

Heenan Blaikie LLP, Montreal, Quebec, for the respondent, Air Canada;

Laughton & Co., Vancouver, British Columbia, for the respondent, Air Canada Pilots Association.

This application was heard at Ottawa, Ontario, on November 24-27, 2008, by Mactavish, J., of the Federal Court, who delivered the following reasons for judgment on April 9, 2009.