Vilven v. Air Canada

Vilven v. Air Canada

Section 15(1)(c) of the CHRA cannot be justified under s.1 of the Charter on the existing record because the objective of permitting negotiated mandatory retirement is no longer sufficiently pressing and substantial and s.15(1)(c) is not minimally impairing or proportionate; moreover Air Canada and ACPA failed to establish that the mandatory retirement at age 60 in the collective agreement is a BFOR because accommodation without undue hardship was not proven. Consequently the complaints are substantiated and respondents discriminated on the basis of age; remedy proceedings are remitted for further evidence.

Citation
2009 CHRT 24
Parties
Complainant: George Vilven; Complainant: Robert Neil Kelly; Commission: Canadian Human Rights Commission; Respondent: Air Canada; Respondent/union: Air Canada Pilots Association; Interested Party: Fly Past 60 Coalition
Court
Canadian Human Rights Tribunal
Jurisdiction
Canada
Judgment Date
28 August 2009
Procedural Posture
Human Rights Complaint (mandatory Retirement) / Tribunal Decision on Liability; Remedy Reserved and Remitted for Further Submissions
Outcome
Complaints substantiated; s.15(1)(c) not applied to the facts; mandatory retirement at age 60 in the collective agreement not a BFOR; remedy to be determined following further evidence and submissions; Tribunal remains seized
Legal Topics
Mandatory Retirement, Age Discrimination, Bona Fide Occupational Requirement (bfor), Section 15(1)(c) CHRA, Section 1 Charter Justification, Undue Hardship, Collective Agreement Interpretation, Remedy
Source Language
English
Human Rights Law Constitutional Law Employment Law Labour Law Administrative Law Aviation Law Mandatory Retirement Age Discrimination +6 more

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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/union

Fly Past 60 Coalition

Interested Party

Procedural Posture

Human Rights Complaint (mandatory Retirement) / Tribunal Decision on Liability; Remedy Reserved and Remitted for Further Submissions

Legal Issues

  1. 1 Whether s.15(1)(c) of the CHRA is a reasonable limit under s.1 of the Charter
  2. 2 Whether the mandatory retirement provision at age 60 constitutes a BFOR under ss.15(1)(a) and 15(2) of the CHRA
  3. 3 Whether elimination of mandatory retirement would cause undue hardship to Air Canada or ACPA

Ratio Decidendi

Section 15(1)(c) of the CHRA cannot be justified under s.1 of the Charter on the existing record because the objective of permitting negotiated mandatory retirement is no longer sufficiently pressing and substantial and s.15(1)(c) is not minimally impairing or proportionate; moreover Air Canada and ACPA failed to establish that the mandatory retirement at age 60 in the collective agreement is a BFOR because accommodation without undue hardship was not proven. Consequently the complaints are substantiated and respondents discriminated on the basis of age; remedy proceedings are remitted for further evidence.

Court Disposition

Complaints substantiated; s.15(1)(c) not applied to the facts; mandatory retirement at age 60 in the collective agreement not a BFOR; remedy to be determined following further evidence and submissions; Tribunal remains seized

Orders

  • Refuse to apply s.15(1)(c) of the CHRA to these complaints
  • Declare that Air Canada and ACPA discriminated against George Vilven and Robert Neil Kelly on the basis of age by enforcing mandatory retirement at age 60