The Canadian Human Rights Tribunal issued a decision in August, 2007 that was overturned by the Federal Court by way of judicial review on April 9th of this year. The 30-day period for appealing the court's ruling has now expired, and none of the parties filed an appeal of the decision. Consequently, the case will now go back to the Tribunal for a new decision, based upon the instructions and reasons of the Court as specified in its decision.
The court disagreed with the Tribunal on several grounds and quashed the portion of the decision related to the interpretation of Section 15(1) of the Charter of Rights and Freedoms. Specifically, the Court stated that Section 15(1)(c) of the Canadian Human Rights Act violates Section 15(1) of the Charter.
Consequently, the case was referred back to the Tribunal for completion on the two portions of the decision not addressed by the Tribunal in its original decision, namely, whether the violation by Section 15(1)(c) of the CHRA of Section 15(1) of the Charter is saved by Section 1 of the Charter ("reasonably demonstrated as prescribed by law in a free and democratic society"), and whether if it is saved, the collective agreement provision for mandatory retirement might be justified under the provisions of Section 15(1)(a) of the CHRA, namely, bona fide occupational requirement.
The Tribunal has advised the parties that it expects to render its subsequent decision around mid-June.
Regardless of the outcome of the subsequent Vilven-Kelly decision of the Tribunal, the Tribunal has now set down hearing dates for all the complainants subsequent to Vilven-Kelly that have been referred to the Tribunal. The Tribunal has allocated two weeks for that hearing, commencing July 20th, 2009. There are currently 69 additional Air Canada pilot complainants, with over 120 complaints (against both Air Canada and the Air Canada Pilots Association).
Although it is highly unlikely that all of these cases can be completely heard in the two weeks alloted, the parties have agreed to bifurcate the proceedings into two parts: liability (and potentially, the remedy of reinstatement, if liability is found), and monetary damages.
It is expected that the hearing will center almost exclusively on legal argument. Most of the facts relevant to the evidence of the complainants will likely be submitted by way of an agreed statement of facts.
Neither Air Canada nor ACPA has yet to complete the procedural requirements for this hearing, as both are waiting for the rendering of the subsequent Tribunal decision in Vilven-Kelly, prior to submitting their "Statements of Particulars," that outline their proposed legal argument and the evidence that each intends to adduce, if any, in support of those arguments.
Welcome to our site. The Fly Past 60 Coalition is a group of over 100 pilots and former pilots of Air Canada who believe that the mandatory retirement of Air Canada pilots on their attainment of the age of 60 violates the provisions of the Canadian Human Rights Act prohibition against discrimination on the basis of age.
Further, we view the exemption under the Act that allows for mandatory retirement, provided that the individual's employment is terminated at "the normal age of retirement for individuals doing similar work," is contrary to the provisions of the Canadian Charter of Rights and Freedoms, and therefore of no force and effect. In sum, either of both of these violations lead to the conclusion that the imposition of mandatory retirement of the pilots at age 60 is contrary to law. To remedy that violation, we have filed proceedings before the Canadian Human Rights Commission, and those proceedings have progressed to the Canadian Human Rights Tribunal for adjudication.
