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

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

On the existing record and on a balance of probabilities the Tribunal found that mandatory retirement at age 60 constituted a bona fide occupational requirement for Air Canada pilots for the period after November 2006 because ICAO’s over/under rule would, if mandatory retirement were abolished, cause undue hardship to Air Canada in the form of significant scheduling inefficiencies, the need to employ many additional pilots, substantial increased operational costs, and disruptive impacts on the seniority regime and collective agreement; therefore accommodation was not feasible without undue hardship.

Citation
2011 CHRT 10
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 July 2011
Procedural Posture
Canadian Human Rights Act Complaint (age Discrimination) / Re Determination on Remittal Following Federal Court Judicial Review (assessment Limited to Post November 2006 Period)
Outcome
Complaints dismissed for the period after November 2006; mandatory retirement at age 60 upheld as a bona fide occupational requirement for Air Canada pilots for that period
Legal Topics
Mandatory Retirement, Bona Fide Occupational Requirement (bfor), Accommodation and Undue Hardship, Age Discrimination, Seniority and Collective Agreements, ICAO Operational Rules
Source Language
English
Human Rights Employment Law Labour Law Aviation Regulation Administrative Law Mandatory Retirement Bona Fide Occupational Requirement (bfor) Accommodation and Undue Hardship +3 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 Complaint (age Discrimination) / Re Determination on Remittal Following Federal Court Judicial Review (assessment Limited to Post November 2006 Period)

Legal Issues

  1. 1 Whether mandatory retirement at age 60 was a bona fide occupational requirement for Air Canada pilots after November 2006
  2. 2 Whether accommodating pilots over age 60 would impose undue hardship on Air Canada considering health, safety and cost
  3. 3 The effect of ICAO’s November 23, 2006 over/under rule on operational scheduling and costs

Ratio Decidendi

On the existing record and on a balance of probabilities the Tribunal found that mandatory retirement at age 60 constituted a bona fide occupational requirement for Air Canada pilots for the period after November 2006 because ICAO’s over/under rule would, if mandatory retirement were abolished, cause undue hardship to Air Canada in the form of significant scheduling inefficiencies, the need to employ many additional pilots, substantial increased operational costs, and disruptive impacts on the seniority regime and collective agreement; therefore accommodation was not feasible without undue hardship.

Court Disposition

Complaints dismissed for the period after November 2006; mandatory retirement at age 60 upheld as a bona fide occupational requirement for Air Canada pilots for that period

Orders

  • The complaints of George Vilven and Robert Neil Kelly are dismissed for the period after November 2006
  • Mandatory retirement at age 60 is found to be a bona fide occupational requirement for Air Canada pilots for the period after November 2006