Air Canada Age 60 Limit To End

[Raymond767]

On Thursday the Canadian Human Rights Tribunal concluded its remedy hearing into the age discrimination cases brought by two pilots in 2003 and 2005 respectively, First Officer George Vilven and Captain Neil Kelly.

Although the Tribunal Chair reserved his decision (he suggested that he will try to complete the decision by June 1st) the issue of reinstatement was dealt with completely, save for the issue of the seniority accrual of the two pilots during their absence due to termination of employment, contrary to the age discrimination provisions of the Canadian Human Rights Act. The Chair elected to resolve the seniority question prior to issuing the Order of reinstatement. However, neither Air Canada nor the Air Canada Pilots Association (ACPA) opposed the issuance of the Order of reinstatement.

Air Canada and ACPA both argued that the pilots' seniority should be discounted (i.e. not accrue) from the date of their wrongful termination until the date of their reinstatement. Both pilots argued that their reinstatement should be made with the seniority that they would have had, had their wrongful termination not occurred.

Air Canada did agree that once the pilots were ordered reinstated, they then could use their assigned seniority to bid a position assignment and that they would be provided a training course at the first available opportunity. Both pilots conceded that because of ICAO restrictions on pilots-in-command over age 65, they would be restricted to bidding positions as First Officers. Captain Kelly is now 65, and First Officer Vilven will be 67 in August, 2010.

The other issues in the hearing, all hotly contested, such as compensation for lost wages, mitigation of damages, reimbursement of expenses and damages for pain and suffering will be decided by the Tribunal in the coming decision.

The original decision on liability, rendered in August, 2009 by the Tribunal, has been set down for judicial review by the Federal Court in November, 2010. Notwithstanding, reinstatement will take place with the release of the Tribunal Order in the coming month. The Court challenge brings into question the application of the Canadian Charter of Rights and Freedoms with respect to the mandatory retirement exemption under the Canadian Human Rights Act. An endorsement of the Tribunal's decision that the exemption violates the Charter would then strike down mandatory retirement in all of the federal jurisdiction to which the law applies--namely industries of transportation, banking and telecommunication.

This Tribunal development marks a landmark change in the affairs of Air Canada's Flight Operations policy. Not since the mid-1980's, after Air Canada lost a Human Rights Tribunal decision banning age limitations on pilot hiring has there been such a monumental change imposed upon the airline by a human rights quasi-judicial body.