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Canadian Human Rights Tribunal issues remedies decision in Air Canada pilots mandatory retirement case

Jurisdiction: - Canada/Federal
Sector: - Transportation

The Canadian Human Rights Tribunal ("CHRT") issued its decision on remedies in the Air Canada pilots mandatory retirement case on November 8, 2010 (Vilven v. Air Canada, 2010 CHRT 27).

In a landmark decision released on August 28, 2009, the CHRT had declared that the age 60 mandatory retirement provisions in Air Canada's pension plan and its collective agreement with the Air Canada Pilots Association ("ACPA") violated the equality provisions in section 15 of the Charter and could not be saved under Section 1 of the Charter.  See my post here.

That decision is now the subject of a judicial review application by the ACPA, which supported the mandatory retirement provisions. See my post here.

In the remedy decision concerning the two pilots,  Mr. Vilven and Mr. Kelly, the Tribunal ordered that Air Canada and the ACPA cease applying the offending provisions in the pension plan and collective agreement to the two pilots - not all pilots - and ordered that the two pilots be:

  • reinstated into their positions, subject to meeting the various licensing requirements and obtaining the necessary training;
  • credited with seniority they would have accrued had they not been retired in 2003 and 2005 respectively;
  • compensated for lost wages, but only from the time it issued its decision on August 28, 2009 until the date of reinstatement, not from the time the employees were retired. On this issue, the CHRT pointed to the Supreme Court of Canada's decision in Canada (Attorney General) v. Hyslop, 2007 SCC 10, for the principle that it may not be appropriate to grant a retroactive remedy where there has been a "substantial change in the law" as a result of judicial intervention; and
  • reinstated into the pension plan retroactive to when they were forced to retire.

The CHRT denied the pilots:

  • damages for "pain and suffering" on the basis that the pilots had been aware of the mandatory retirement age since they joined Air Canada, but had not taken any action to challenge it until after they were retired and had, in fact, benefitted from this practice over the years in terms of seniority, etc.. Each pilot has sought the maximum $20,000;
  • damages on the basis that Air Canada and the ACPA acted "wilfully and recklessly". On this point, the CHRT noted, among other things, that until it issued its decision in August 2009, Air Canada had been relying on the established legal authorities which had held that mandatory retirement policies did not offend the Charter. Each pilot has sought $20,000 against both Air Canada and the ACPA;
  • compensation for travel, accommodation and meal expenses incurred as a result of prosecuting their human rights claim; and
  • compensation for supplemental life insurance, retirement supplemental health plan and additional cost-health plan that they had the option of participating in until they were retired.