View cases - Stewart McKelvey

[114] The fact that other Canadian airlines transport passengers to international destinations isillustrated by the evidence relating to Mr. Kelly. According to the agreed statement of facts, Mr.Kelly continued flying after leaving Air Canada, working on contract as both a Captain and pilot-incommand,and as a first officer, with Skyservice Airlines. In these positions, Mr. Kelly flew Boeing757s and 767s on routes which included charter flights to international destinations. Counsel for AirCanada also acknowledged at the hearing before this Court that Jazz flew to destinations in theUnited States.[115] I am also satisfied that it was an error in principle for the Tribunal to look at retirementrequirements for pilots from other countries in assessing whether age 60 was the “normal age ofretirement” for the purposes of paragraph 15(1)(c) of the Canadian Human Rights Act.[116] In this regard, I note that consideration of foreign comparators was specifically rejected bythe Tribunal in Campbell v. Air Canada (1981), 2 C.H.R.R. D/602 (C.H.R.T.), an early caseinvolving Air Canada flight attendants and paragraph 14(c) [as am. by S.C. 1980-81-82-83, c. 143, s.7] of the Canadian Human Rights Act [S.C. 1976-77, c. 33], the predecessor to what is nowparagraph 15(1)(c) of the Act.2009 FC 367 (CanLII)[117] In rejecting Air Canada’s argument that one should look world-wide for comparable positionsfor the purposes of paragraph 14(c) of the Act, the Tribunal in Campbell observed that there is asocial context that is inherent in the statute. The Act prescribes a measure by which an exception towhat would otherwise be a discriminatory practice can be evaluated. Given that the Canadian HumanRights Act is a Canadian statute, the Tribunal was of the view that the measure should be a Canadianmeasure.[118] It is true that the Federal Court of Appeal had regard to the ICAO standards, as well as theretirement rules in force for airline pilots in the United States, in the Stevenson decision [Stevenson v.Canadian Human Rights Comm., [1984] 2 F.C. 691]. That case involved a challenge to the provisionsof then paragraph 14(c) of the Canadian Human Rights Act under the Canadian Bill of Rights,R.S.C., 1985, Appendix III. However, the Court only looked to the U.S. situation after first findingthat age 60 was the normal age of retirement invariably applied at Air Canada and at many otherCanadian airlines. As will be discussed further on in these reasons, this is no longer the case.[119] Citing the evidence of Professor Jean-François Gaudreault-Desbiens, Air Canada’s expertwitness in the field of comparative law, the airline says that the countries that are home to many ofthe foreign legacy carriers in the Tribunal’s comparator group have legal systems that offer humanrights protection to their citizens that are comparable to that afforded to Canadian pilots under theCanadian Human Rights Act. As a consequence, there was nothing inappropriate in the Tribunalhaving compared the situation of Air Canada pilots to those flying for foreign legacy carriers, inascertaining whether there is a normal age of retirement for such pilots.[120] While this may be true in relation to some of the countries in question, it does not appear tobe the case for all of them. For example, the available information for Royal Dutch Airlines (KLM)indicates that at the time of Messrs. Vilven and Kelly’s retirement from Air Canada, pilots flying forthat airline were obliged to retire from full-time employment at age 56. The source of this mandatoryretirement age is identified as the pilots’ collective agreement.[121] There is no indication in the survey information that was before the Tribunal that there was alegislative regime in place in Holland at the relevant time that would limit or prohibit mandatoryretirement for these pilots before they were 60.[122] Similarly, pilots flying for Finnair were required to retire at age 58, in accordance with theprovisions of the applicable collective agreement. Again, there is nothing in the evidence that wouldsuggest that pilots in Finland were protected by comparable domestic anti-age discriminationlegislation at the time that Messrs. Vilven and Kelly were compelled to retire from Air Canada.