Kelly v. Air Canada and Air Canada Pilots Association and Vilven v. Air Canada

Kelly v. Air Canada and Air Canada Pilots Association and Vilven v. Air Canada

The Tribunal concluded it lacked jurisdiction to grant a universal cease and desist eliminating mandatory retirement for all Air Canada pilots; it ordered respondents to cease applying s.5.1 of the pension plan only with respect to the two complainants, reinstated both conditional on valid licence/medical/instrument rating, ordered enrolment in training and placement according to seniority (Vilven seniority 751; Kelly seniority 5), required continuation of pension accrual upon reinstatement with unwinding of pension payments as necessary, awarded compensation for lost wages only from September 1, 2009 (date after Tribunal's liability decision) to reinstatement applying the specified...

Citation
2010 CHRT 27
Parties
Complainant: George Vilven; Complainant: Robert Neil Kelly; Commission: Canadian Human Rights Commission; Respondent: Air Canada; Respondent: Air Canada Pilots Association; Interested Party: Fly Past 60 Coalition
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
8 November 2010
Procedural Posture
Canadian Human Rights Act Remedy Hearing / Remedy Decision (final)
Outcome
Remedy partially granted: individualized cease order, conditional reinstatement, pension accrual and training, compensation for lost wages limited to period from September 1, 2009 to reinstatement, denial of pain and suffering and wilful/reckless damages, seniority restored as determined, respondents jointly liable...
Legal Topics
Age Discrimination, Mandatory Retirement, Reinstatement, Compensation for Lost Wages, Seniority, Pension Benefits, Retroactivity, Remedies, Wilful and Reckless Damages, Mitigation
Source Language
English
Human Rights Employment Constitutional Law Labour Law Pensions Age Discrimination Mandatory Retirement Reinstatement +7 more

Case Brief

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Parties

George Vilven

Complainant

Robert Neil Kelly

Complainant

Canadian Human Rights Commission

Commission

Air Canada

Respondent

Air Canada Pilots Association

Respondent

Fly Past 60 Coalition

Interested Party

Procedural Posture

Canadian Human Rights Act Remedy Hearing / Remedy Decision (final)

Legal Issues

  1. 1 Whether Tribunal may issue a general cease and desist eliminating mandatory retirement for all pilots
  2. 2 Whether complainants should be reinstated and on what conditions
  3. 3 Whether pension accrual must continue and previous pension transactions unwound

Ratio Decidendi

The Tribunal concluded it lacked jurisdiction to grant a universal cease and desist eliminating mandatory retirement for all Air Canada pilots; it ordered respondents to cease applying s.5.1 of the pension plan only with respect to the two complainants, reinstated both conditional on valid licence/medical/instrument rating, ordered enrolment in training and placement according to seniority (Vilven seniority 751; Kelly seniority 5), required continuation of pension accrual upon reinstatement with unwinding of pension payments as necessary, awarded compensation for lost wages only from September 1, 2009 (date after Tribunal's liability decision) to reinstatement applying the specified...

Court Disposition

Remedy partially granted: individualized cease order, conditional reinstatement, pension accrual and training, compensation for lost wages limited to period from September 1, 2009 to reinstatement, denial of pain and suffering and wilful/reckless damages, seniority restored as determined, respondents jointly liable...

Orders

  • Respondents to cease applying s.5.1 of the Air Canada Pilots Pension Plan and corresponding collective agreement provisions with respect to the complainants
  • Complainants reinstated to employment as pilots with Air Canada effective date of decision subject to valid pilot licence, valid Transport Canada medical certificate and current instrument flight rating