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

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

The Tribunal will apply the Vilven Federal Court factors conjunctively to identify comparator airlines for pilots; an airline must meet all factors (varying aircraft sizes and types, domestic and international destinations, crossing domestic and foreign airspace, and transporting passengers). The Tribunal set a two-step evidentiary process and specific timelines for production of a comparator list and further case management to determine remaining issues including normal retirement age.

Citation
2022 CHRT 30
Parties
Complainants: Gary Nedelec et al; Complainant (self Represented): Eric William Rogers; Complainant (self Represented): Robert James McBride; Complainant (self Represented): John Charles Pinheiro; Complainant (self Represented): Patricia Clark (on behalf of the estate of William Clark); Complainant (self Represented): Stephen Norman Collier; Commission: Canadian Human Rights Commission; Respondent: Air Canada; Respondent: Air Canada Pilots Association
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
23 September 2022
Procedural Posture
Human Rights Complaint Under the Canadian Human Rights Act / Interlocutory Ruling on Comparator Group Test and Procedural Directions
Outcome
Interlocutory ruling applying Vilven FC factors conjunctively; directions issued for evidence production and case management to determine comparator group and potential calculation of normal retirement age.
Legal Topics
Age Discrimination, Mandatory Retirement, Comparator Group Selection, Bona Fide Occupational Requirement, Section 15(1)(c) Canadian Human Rights Act
Source Language
English
Human Rights Law Employment Law Administrative Law Age Discrimination Mandatory Retirement Comparator Group Selection Bona Fide Occupational Requirement Section 15(1)(c) Canadian Human Rights Act

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Parties

Gary Nedelec et al

Complainants

Eric William Rogers

Complainant (self Represented)

Robert James McBride

Complainant (self Represented)

John Charles Pinheiro

Complainant (self Represented)

Patricia Clark (on behalf of the estate of William Clark)

Complainant (self Represented)

Stephen Norman Collier

Complainant (self Represented)

Canadian Human Rights Commission

Commission

Air Canada

Respondent

Air Canada Pilots Association

Respondent

Procedural Posture

Human Rights Complaint Under the Canadian Human Rights Act / Interlocutory Ruling on Comparator Group Test and Procedural Directions

Legal Issues

  1. 1 Whether the Tribunal should apply the Vilven Federal Court factors to identify comparator airlines.
  2. 2 Whether an airline must satisfy all Vilven FC factors to qualify as a comparator.
  3. 3 What evidence and procedure are required to determine which airlines are comparators and the normal age of retirement.

Ratio Decidendi

The Tribunal will apply the Vilven Federal Court factors conjunctively to identify comparator airlines for pilots; an airline must meet all factors (varying aircraft sizes and types, domestic and international destinations, crossing domestic and foreign airspace, and transporting passengers). The Tribunal set a two-step evidentiary process and specific timelines for production of a comparator list and further case management to determine remaining issues including normal retirement age.

Court Disposition

Interlocutory ruling applying Vilven FC factors conjunctively; directions issued for evidence production and case management to determine comparator group and potential calculation of normal retirement age.

Orders

  • Tribunal will apply factors from Vilven: airlines must operate aircraft of varying sizes and types, transport passengers to domestic and international destinations, and cross domestic and foreign airspace.
  • Within 30 calendar days respondents must provide a summary table of Canadian airlines proposed for inclusion based on CCAR historical registry Jan 1, 2010 to Feb 28, 2012 and identify airlines lacking differing sizes/types; any challenge to CCAR must be supported by evidence and submissions.