Thwaites et al. v. Air Canada and Air Canada Pilots Association

Thwaites et al. v. Air Canada and Air Canada Pilots Association

The Tribunal found a prima facie case of age discrimination but concluded respondents established the s.15(1)(c) defence: statistical evidence for 2005–2009 showed a majority of pilots in comparable Canadian airline positions retired by age 60, establishing age 60 as the normal industry retirement age; accordingly mandatory retirement at 60 did not constitute discrimination. The Tribunal further found ACPA failed Meiorin steps one and two and did not establish a BFOR; Air Canada failed to discharge the accommodation/undue hardship burden under s.15(1)(a)/s.15(2) because its undue-hardship case relied on assumptions and a narrow scheduling snapshot that did not prove an inability to...

Citation
2011 CHRT 11
Parties
Complainants: Thwaites et al.; Commission: Canadian Human Rights Commission; Respondent Employer: Air Canada; Respondent Union: Air Canada Pilots Association
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
10 August 2011
Procedural Posture
Canadian Human Rights Act Age Discrimination (mandatory Retirement) / Final Decision After Hearing and Evidence (tribunal Decision Dated August 10, 2011)
Outcome
Complaints dismissed. Mandatory retirement at age 60 for Air Canada pilots found not discriminatory under s.15(1)(c) CHRA.
Legal Topics
Age Discrimination, Mandatory Retirement, BFOR (bona Fide Occupational Requirement), Comparator Group Analysis, Normal Age of Retirement, Undue Hardship and Accommodation, ICAO Licensing/over Under Rule
Source Language
English
Human Rights Law Employment Law Administrative Law Aviation Regulatory Law Age Discrimination Mandatory Retirement BFOR (bona Fide Occupational Requirement) Comparator Group Analysis +3 more

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Parties

Thwaites et al.

Complainants

Canadian Human Rights Commission

Commission

Air Canada

Respondent Employer

Air Canada Pilots Association

Respondent Union

Procedural Posture

Canadian Human Rights Act Age Discrimination (mandatory Retirement) / Final Decision After Hearing and Evidence (tribunal Decision Dated August 10, 2011)

Legal Issues

  1. 1 Whether mandatory retirement at age 60 for Air Canada pilots constituted discrimination under the CHRA
  2. 2 Appropriate comparator group and determination of the normal age of retirement under s.15(1)(c) CHRA
  3. 3 Whether respondents satisfied BFOR defence under s.15(1)(a) and undue hardship under s.15(2) CHRA (Meiorin test)

Ratio Decidendi

The Tribunal found a prima facie case of age discrimination but concluded respondents established the s.15(1)(c) defence: statistical evidence for 2005–2009 showed a majority of pilots in comparable Canadian airline positions retired by age 60, establishing age 60 as the normal industry retirement age; accordingly mandatory retirement at 60 did not constitute discrimination. The Tribunal further found ACPA failed Meiorin steps one and two and did not establish a BFOR; Air Canada failed to discharge the accommodation/undue hardship burden under s.15(1)(a)/s.15(2) because its undue-hardship case relied on assumptions and a narrow scheduling snapshot that did not prove an inability to...

Court Disposition

Complaints dismissed. Mandatory retirement at age 60 for Air Canada pilots found not discriminatory under s.15(1)(c) CHRA.

Orders

  • All complaints dismissed; no remedial orders against Air Canada or Air Canada Pilots Association