Air Canada pilots continue to fight mandatory retirement
Pilots may take battle to Supreme Court following Federal Court of Appeal ruling.
Tuesday August 7th 2012 - by Ken Pole
Air Canada’s long-standing policy of retiring pilots at age 60 has been upheld by the Federal Court of Appeal (FCA), but the internationally-monitored case is far from over because George Vilven and Robert Kelly, in what has become a cause célèbre, are seeking leave to appeal it to the Supreme Court of Canada.
The FCA ruling overturned Federal Court and CHRT rulings that the Canadian Charter of Rights & Freedoms was breached by the policy, even though it is spelled out in the airline’s collective agreement with the Air Canada Pilots Association (ACPA) and the pilots’ pension plan.
Vilven filed his complaint against Air Canada in 2004, a year after his ouster, as did Kelly, who filed his against the carrier, as well as ACPA, in 2006. Raymond Hall – a lawyer and former Air Canada pilot himself who pro bono represents Vilven and Kelly as well as 200 other retired Air Canada pilots who have contributed to a defence fund – acknowledged that the ruling threw “a big monkey wrench into things.”
The central issue in the latest appeal, which was brought by ACPA, is paragraph 15(1)(c) of the Canadian Human Rights Act which permits federally-regulated employers to retire anyone who reaches the “normal age” for retirement in their sector. The paragraph was repealed last December as part of the government’s omnibus budget bill, but the change is not effective until next December 15.
Moreover, although mandatory retirement for federal government employees was scrapped 26 years ago, 15(1)(c) still applies to some 800,000 federally-regulated employees in the private sector, including air carriers, financial institutions and telecommunications.
In his written ruling, FCA Justice Denis Pelletier, with the concurrence of Justice Johanne Gauthier (a third judge who heard the case last November and who died in June was not involved in the ruling) cited a 1990 Supreme Court of Canada decision that mandatory retirement for university teachers was not a Charter violation. Pelletier called it a binding precedent that the Federal Court and the CHRT “ought to have followed.”
Pelletier also considered mandatory retirement constitutional if a fixed retirement date “permits the negotiation of mutually beneficial arrangements which might not otherwise be possible.” That said, he added, “it may be that conditions have changed to the point where the Supreme Court is prepared to revisit this issue,” and if it was, “nothing in this decision would prevent it from doing so.”
Hall, who works on the file with noted Toronto-based human rights lawyer David Baker, told Canadian Skies that they expected to file an application in the first week of August to seek leave to appeal to the Supreme Court, but agreed that the mid-December repeal of paragraph 15(1)(c) might render the issue somewhat moot in the high court’s eyes.
Nevertheless, he is optimistic and excited about the possibility of the case being heard, which would not be until at least next year, even if the court grants leave to appeal. “There are several other jurisdictions that still impose mandatory retirement,” he said, explaining that at least one province still terminates people at 65 if there is a pension plan involved. “The Charter issue of whether or not mandatory retirement is in violation of public policy . . . is still a live issue.”
Hall, who like Vilven and Kelly had thousands of hours logged when terminated, said the latest ruling had left his two key clients “in the lurch” because the pending change in the law is not retroactive and “basically says all those people whose rights were violated are denied their Charter rights.”
A peripheral but galling issue for Hall is the fact that ACPA was the appellant in the latest case. “In most situations, the union represents their members against their employer,” he explained. “In this situation, the union has taken dues from people who object to mandatory retirement and used them to fund litigation supporting the employer’s termination of their own members.”
He also emphasized that the issue of mandatory retirement for pilots is distinct from that of other professionals because professional competency is not an issue in this dispute. Transport Canada removed the maximum age restriction on licensing in the mid-1980s; to leave it in place would have violated the Charter’s equality provisions. Hall said that “Air Canada is basically telling pilots who are perfectly competent and at the peak of their careers, ‘you’re too old to work for us – go work for someone else!’ ”
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The pilot retirement debate is global. International Civil Aviation Organization guidelines permit pilots in the 60-65 age bracket to continue flying as long as they share control with at least one other pilot who is younger than 60.
The United States increased its mandatory retirement age to 65 in December 2007, when President George Bush signed a bill into law. Supporters, including a then 59-year-old Southwest Airlines Captain, Paul Emens, said the change, which was not retroactive, simply reflected the reality that many modern 60-year-olds are not only physically fit but also a valuable cockpit resource due to their experience.
In September 2011, a European Court of Justice (ECJ) panel ruled that compulsory retirement of three Lufthansa pilots had infringed an “employment framework directive” issued by the European Union’s governing council.
Their retirement age had not been set by the German government, but by a collective agreement with Lufthansa. However, the ECJ pointed out that the retirement age set out in the pilots’ union contract did not correspond with German regulations or EU legislation, both of which permit pilots to fly up to 65 under certain conditions.
The seven-member ECJ panel also discounted safety as a legitimate objective for regulators when they enforced retirement, saying that safety was not a social policy objective. “If the objective of guaranteeing air traffic safety is included,” they explained, “it must be ascertained whether the limitation of the age of pilots to 60 is appropriate and necessary for the achievement of that objective.”
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Did you know?
The Air Line Pilots Association, International (ALPA) is the largest airline pilot union in the world and represents more than 53,000 pilots at 37 U.S. and Canadian airlines.