co-authored with Yosie Saint-Cyr LLB

A recent decision by the Federal Court of Appeal has upheld the mandatory retirement practice for Air Canada pilots. This decision overturns earlier findings by the Federal Court of Canada and the Canadian Human Rights Tribunal that contractual provisions forcing Air Canada pilots to retire at 60 violated the Canadian Charter of Rights and Freedom.

We wrote about it in previous blog posts here and here, and on HRinfodesk here and here (login required).

The Federal Court of Appeal found that the Supreme Court of Canada’s landmark 1990 decision McKinney v. University of Guelph—that mandatory retirement for university teachers did not violate the Charter—was a binding precedent that the Federal Court and tribunal ought to have followed.

The Supreme Court ruled in McKinney that although mandatory retirement is a breach of the constitutional protection against age-based discrimination, the provision was nonetheless constitutionally valid because it was saved by Section One of the Charter. In other words, mandatory retirement can be justified as an exception to the prohibition against age discrimination when it is a mutually advantageous arrangement between employers and employees that permits the workplace to be organized in a manner accommodating the needs of both parties.

The Federal Court of Appeal ruled that the McKinney analysis applied in the Air Canada pilots’ case.

Accordingly, the Federal Court of Appeal allowed Air Canada’s appeal, set aside the decision of the Federal Court and returned the matter to the Canadian Human Rights Tribunal with a direction to dismiss the complaints.

The lawyer for the pilots has filed for leave to appeal the decision to the Supreme Court, but is worried that the high court might consider the issue beyond debate because of the pending repeal of the relevant sections of the Canadian Human Rights Act that ban mandatory retirement effective December 15, 2012.

The decision, the lawyer said, “leaves my clients in the lurch” because the change in the law isn’t retroactive and won’t apply to anyone forced into retirement before the change comes into force. “It basically says all those people whose rights were violated are denied their Charter rights.”

Christina Catenacci and Yosie Saint-Cyr
First Reference Human Resources and Compliance Editors