Bonna Fide Occupational Requirement

[a330pilotcanada]

Good Evening All:

Please find the ruling on the B.F.O.R. below.

I feel it is time for all to move on unless if you live in CYWG.


Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne

BETWEEN:
GEORGE VILVEN
Complainant

- and -

CANADIAN HUMAN RIGHTS COMMISSION
Commission

- and -

AIR CANADA
Respondent

- and -

AIR CANADA PILOTS ASSOCIATION
FLY PAST 60 COALITION
Interested Parties

AND BETWEEN:

ROBERT NEIL KELLY
Complainant

- and -

CANADIAN HUMAN RIGHTS COMMISSION
Commission

- and -

AIR CANADA
AIR CANADA PILOTS ASSOCIATION
Respondents

DECISION
MEMBER: Wallace G. Craig 2011 CHRT 10
2011/07/08


TABLE OF CONTENTS Page

I. INTRODUCTION ............................................................ ............................................................ ... 1
II. THE APPLICABLE LAW ............................................................ ...................................................... 2
III. THE EVIDENCE ............................................................ ............................................................ .. 4
IV. RE-DETERMINATION............................................... ............................................................ ........ 13
V. RULING ............................................................ ............................................................ .......... 16
VI. DECISION ............................................................ ............................................................ ....... 16

I. INTRODUCTION

[1] This is the third decision by the Canadian Human Rights Tribunal (the Tribunal) arising
out of an inquiry into complaints under the Canadian Human Rights Act (CHRA) by pilots
George Vilven and Robert Kelly that they had been subjected to a discriminatory practice
resulting from mandatory retirement at age 60, in accordance with provisions in a collective
agreement between Air Canada Pilots’ Association (ACPA) and Air Canada.

[2] At the date of his retirement on September 1, 2003, at age 60, Mr. Vilven was a
First Officer when flying an Airbus 340. Mr. Kelly retired on April 30, 2005, the day on which he
turned age 60. At the time of his retirement, Mr. Kelly was a Captain and Pilot-in-command when
flying an Airbus 340.

[3] The first decision of the Tribunal was rendered in August 2007, and dismissed the human
rights complaints. On judicial review, the first decision was quashed in part, and the matter was
remitted to the Tribunal for re-determination of a Charter issue and, if necessary, whether
mandatory retirement provisions constituted a bona fide occupational requirement within the
meaning of s. 15(1)(a) of the CHRA.

[4] The second decision of the Tribunal was rendered on August 28, 2009 (2009 CHRT 24).
A judicial review of this decision by the Federal Court resulted in a Judgment by
Justice Mactavish, dated February 3, 2011, ordering, among other things, that:
3. Air Canada’s application for judicial review is granted, in part, as it relates to the
Tribunal’s finding that Air Canada had not demonstrated that age was a bona fide
occupational requirement for its pilots.
4. The question of whether age was a bona fide occupational requirement for Air
Canada pilots after November of 2006 is remitted to the same panel of the
Tribunal, if available, for re-determination in accordance with these reasons, on
the basis of the existing record.
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[5] As the same panel of the Tribunal was not available to proceed with the re-determination
as ordered, I have been asked to re-determine the question of whether age was a bona fide
occupational requirement for Air Canada pilots after November 2006, in accordance with the
reasons for judgement of Justice Mactavish, and on the basis of the existing record. In the course
of my re-determination, I have read and considered Justice Mactavish’s reasons for judgement
and I have examined and considered, in its entirety, the evidence of
Captain Steven Christopher Duke (Captain Duke), a witness called by Air Canada on the issue of
accommodation.

[6] With respect to the evidence of Captain Duke, Justice Mactavish commented in
paragraph 429 of her Reasons that:
As was noted earlier, Air Canada says that the Tribunal misunderstood and
mischaracterized the evidence put forward by Captain Duke in support of its undue
hardship argument. Air Canada also contends that the Tribunal ignored important
portions of Captain Duke’s evidence as to the operational and scheduling
difficulties that would result if Air Canada were required to accommodate pilots
over the age of 60. …;
And in paragraph 384:
I also agree with Air Canada that having regard to the systemic nature of
Messrs. Vilven and Kelly’s human rights complaints and the fact that the potential
invalidation of the mandatory retirement provisions in the Air Canada Pension
Plan and the Air Canada/ACPA collective agreement would affect other Air
Canada pilots, it was also appropriate for the Tribunal to examine the issue of
undue hardship on a going-forward basis, taking into account the subsequent
changes to the ICAO standards…

II. THE APPLICABLE LAW

CANADIAN HUMAN RIGHTS ACT PROVISIONS
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability and conviction for which a pardon has been granted.
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10. It is a discriminatory practice for an employer, employee organization or employer
organization
(a) to establish or pursue a policy or practice,
or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training,
apprenticeship, transfer or any other matter relating to employment or prospective
employment, that deprives or tends to deprive an individual or class of individuals of
any employment opportunities on a prohibited ground of discrimination.
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in
relation to any employment is established by an employer to be based on a bona fide
occupational requirement;
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona
fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be
considered to have a bona fide justification, it must be established that accommodation of
the needs of an individual or class of individuals affected would impose undue hardship
on the person who would have to accommodate those needs, considering health, safety
and cost.

[7] In her reasons for judgment, Justice Mactavish summarizes the legal principles governing
bona fide occupational requirements (at paras. 353-358):
The test to be applied for determining whether an employer has established a bona fide
occupational requirement is that articulated by the Supreme Court of Canada in Meiorin
[British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (1999)
3 S.C.R. 3]
That is an employer must establish on a balance of probabilities that:
(1) The employer adopted the standard for a purpose rationally connected to the
performance of the job;
(2) The employer adopted the particular standard in an honest and good faith belief that it
was necessary to the fulfillment of that legitimate work-related purpose; and
(3) The standard is reasonably necessary to the accomplishment of that legitimate workrelated
purpose. To show that the standard is reasonably necessary, it must be
demonstrated that it is impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship upon the employer.
The first and second steps of the Meiorin test require an assessment of the legitimacy of
the standard’s general purpose, and the employer’s intent in adopting it. This is to ensure
that, when viewed both objectively and subjectively, the standard does not have a
discriminatory foundation.
The third element of the Meiorin test involves the determination of whether the standard is
required to accomplish a legitimate purpose, and whether the employer can accommodate
the complainant without suffering undue hardship: McGill University Health Centre v.
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Syndicate des employe-e-s de l’Hopital general de Montreal, 2000 (SCFP-FTQ) 2007
SCC 4, 1 S.C.R 161, at para.14.
As the Supreme Court of Canada observed in Hydro-Quebec v Syndicat des employe-e- s
de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP
–FTQ), 2007 SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in
connection with the third element of the Meiorin test had led to a certain amount of
confusion. The Court clarified that what is required is “not proof that it is impossible to
integrate an employee who does not meet a standard, but proof of undue hardship, which
can take as many forms as there are circumstances”: at para.12.
As to the scope of the duty to accommodate, the Supreme Court stated that “The employer
does not have a duty to change working conditions in a fundamental way, but does have a
duty, if it can do so without undue hardship, to arrange the employee’s workplace or
duties to enable the employee to do his or her work”: Hydro Quebec, at para. 16.”

[8] Further, Justice Mactavish determined that subsection 15(2) of the CHRA should be
interpreted as limiting the factors to be taken into account in an accommodation analysis to health,
safety and cost. However she qualified her determination with the following observation:
That is not to say that matters such as employee morale and mobility, interference
with other employees’ rights, and disruption of a collective agreement could never
be relevant in a claim under the CHRA. My interpretation of the legislation simply
means that in order to be taken into account in an accommodation analysis, these
matters must be of a sufficient gravity as to have a demonstrable impact on the
operations of an employer in a way that relates to health, safety or cost.

III. THE EVIDENCE

[9] Of significance in my re-determination is the November 23, 2006 change to the rules of
the International Civil Aviation Organization (ICAO), a UN organization charged with fostering
civil aviation safety – Canada is a signatory – a change which makes it mandatory that Captains/
Pilots-in-Command between the ages of 60 and 65 may continue to fly internationally, but only if
one of the other pilots in a multi-pilot crew is under 60.

[10] The ICAO standards apply only to international flights. The vast majority of Air Canada
flights have an international aspect, 86% are either to an international destination or pass through
foreign (primarily American) airspace, en route to a Canadian destination. Between 20 and 25%
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of the remaining 14% of Air Canada flights have an American airport as an alternate airport
where planes are to land if, for example, weather precludes landing at the regularly-scheduled
Canadian airport.

[11] Captain Duke testified on behalf of Air Canada regarding its likely inability to
accommodate pilots over age 60 if the ICAO “one pilot over 60/one pilot under 60” requirement
(over/under rule) becomes applicable to scheduling the company’s pilots.

[12] In the time period relevant to this matter Captain Duke was employed by Air Canada in a
managerial position with Flight Operations. Among his qualifications, Captain Duke is
recognized as a Six Sigma Black Belt in management processes. He testified that Six Sigma is a
business improvement process which originated in the late 1980s at the Motorola and General
Electric corporations which has been adopted by Air Canada. The description of Captain Duke as
a “Black Belt” is in recognition of his expertise in this process.

[13] Captain Duke began his testimony by outlining several detrimental consequences,
including an unavoidable and inevitable increase in pilots and the cost of flight operations, that
would burden Air Canada if mandatory retirement of pilots on their reaching age 60 was
eliminated: a) inability to accommodate captains over age 65 on international and domestic
flights; b) a very limited capacity to accommodate captains or first officers who are over age 60;
c) loss of the capability of accurately predicting hiring and training needs in advance and the
effect that will have on Air Canada.

[14] Captain Duke testified that Air Canada’s pilots, approximately 3200 in December 2006,
are grouped according to the aircraft they fly:
1) largest aircraft, mostly on international routes, Airbus-345-500, A-340-300 and A-330
(generally referred to as A-340s);
2) Boeing 767, 777 on some international routes;
3) A-320’s and A-319’s;
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4) Embraer 190 and 175.

[15] Captain Duke explained that the A-340 series and the Boeing 767 require three pilots in
the cockpit, one being a relief pilot.
So our 3200 pilots break down into 16…non-interchangeable groups, which are
then geographically divided into 42 unique positions. ‘Position’ is a collective
agreement term that is defined as a unique combination of equipment, status and
base. For example: the Boeing triple-7 captain in Toronto would be one position;
Montreal, the captain, there are only 35 of them. If we go further down the list, the
other extreme of the most populous position would be the A-320 Toronto captains
with 363 of them. So at any given time these groups are non-interchangeable. We
can’t move pilots back and forth – they are stuck with their assignments.
They can move a little bit between base, for example if we have a Montreal A-320
captain and they are flying out of Toronto, we can move them to Toronto to do that
flying, but we cannot have any A-320 captain fly a 767 or an A-320 first officer act
as an A-320 captain.

[16] In his evidence Captain Duke explained the choices available to a pilot with a hypothetical
seniority number of 1100: He or she could choose to be a middle of the pack A-320 captain flying
middle-of-the-pack schedules or get more money as a very junior 767 captain and suffer the
schedule of a junior captain. Captain Duke pointed out that with increasing seniority it is the pilot,
alone, who chooses whether to become a very senior A-320 captain or a junior 767 captain.

[17] Captain Duke described a typical career path for Air Canada pilots: starting off either as a
relief pilot or a narrow-body aircraft first officer, then moving to a wide-body first officer
position, a return to a narrow-body aircraft as a captain, and a final move back to a wide-body
captaincy, having spent five to seven years in each block, to end their careers at age 60.
Captain Duke noted that within each block pilots can switch between positions.
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[18] Captain Duke testified about the correlation between the Marketing and Flight Operations
departments of Air Canada:
We are a marketing driven company and our Marketing Department produces a
lengthy list of the flights that they want Flight Operations to conduct in the coming
months. We have people called Pairing Analysts and there is one assigned per fleet
type. So there is one for the 340, one for the 767. What they do is, they take this
monstrous list of flights they wish us to conduct and they break that down into
smaller usable chunks that consist of a series of flights that will combine to cover a
one-day period or anywhere up to a four-day period.

[19] Captain Duke then described a typical pairing in the Toronto A-320 group: Flight 700
leaving Toronto at 6:30am, arriving New York just before 8am. Forty minutes later it becomes
Flight 705, New York to Toronto, arriving at 10:10am. The pilots then have two hours and
40 minutes before their next flight departs Toronto as Flight 177 for Edmonton, arriving at 3 pm
Mountain time. After spending the night in Edmonton the pilots depart the next day at 7am and fly
to Toronto:
That is a typical and an actual two-day pairing for the Toronto 320 pilots to fly.
The thing to note about this pairing is it is a mix of international and domestic
flying.

[20] Captain Duke explained that the pairing analyst’s goal is to link flights that have a
reasonable period of time between them, the above-mentioned two hours and 40 minutes being at
the upper end of waiting time for pilots, and noted that there are other guarantees in the collective
agreement that move the company to make the pilot’s time more productive when they are
working.

[21] Duke then described the process carried out by Flight Operations after the Marketing
Department stipulates its flight requirements. Once the General Manager of Crew Resources
receives the Marketing Department list of flights “she will spend anywhere from two weeks to a
month fine-tuning the number of positions that she needs to cover.” After that, the Crew Manning
Steering Committee (CMSC), a joint company-union committee, approves the plan as presented
or as amended, triggering a two-week period for pilots to update their Standing Preferential Bid in
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light of the opportunities presented to them in the schedule of planned flights, and to engage in
bidding for positions. Based on Captain Duke’s evidence, I infer that seniority is absolutely
essential in enabling pilots to take the initiative in controlling their careers with Air Canada.

[22] Captain Duke described the working relationship between Flight Operations and the
Marketing Department from the perspective of the CMSC, which conducts its review twice each
year in accordance with the collective agreement:
The thing to notice is we put out a training plan that works 12 months ahead and
then six months later we do this again … we are working toward this plan but
never get there. We get halfway there and we start again. It is a very dynamic
environment (in which) our Marketing Department tries to be very sensitive to
what the consumers are accepting for our product and so they are changing their
plans constantly. That is one side of the equation; on the other side is Flight
Operations which takes a long time to respond to the changes. …Our way of
meeting their need (is) by amending our position list every six months …
allow(ing) us the security … of knowing what we are doing for the next six months
before the CMSC review starts again. It is a compromise between the two different
branches of the company.

[23] Captain Duke gave extensive evidence concerning anticipated scheduling difficulties and
costs that Air Canada would likely experience if mandatory retirement at age 60 was ended. He
testified that Air Canada would have to employ more pilots to ensure absolute compliance with
the over/under rule on all international and partially international flights.

[24] Duke testified that he had conducted computer experiments on the premise that
Air Canada no longer had the certainties of mandatory retirement of pilots at age 60. In one of the
experiments, Captain Duke tried to schedule flights for pilots over age 60 who would be subject to
the over/under rule, and concluded that as the number of pilots over age 60 increases, scheduling
becomes unworkable.
Chair: “Because …?”
Duke: “Because our software cannot solve the problem: there are not enough unrestricted
pilots to fly with the other unrestricted pilots.”
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[25] Duke then presented a graph which he identified as Air Canada’s Vancouver A-340
captains, ranking them in order of seniority, which showed that 85% of the Vancouver captains
were age 55 or older. He reasoned that if mandatory retirement at age 60 was abolished, then in
the ensuing five years 85% of these captains would be in a potentially restricted age range,
i.e. beyond 60 but not yet 65, and thus subject to the over/under rule restricting them from
international flights unless the pilot flying with them was under 60.

[26] Captain Duke described a similar problem facing Vancouver-based A-340 first officers:
… For example the pilot that the far left dot represents who is 57 years old, if he
stays …five years to age 62 …(he) will be restricted from flying with the other
captains….
When the monthly schedule bid happens they can pretty much pick and choose
whatever they want. They are…senior, they get first choice at things. Well, now
not necessarily, because we run our captain schedule first and if all the flying you
want has other potentially restricted pilots in it, you can’t fly with those people. So
your seniority rights are being impacted by being potentially restricted from flying
with the captains on the flying that you are looking for.

[27] Air Canada’s Toronto-based A-340 pilots were similarly analyzed, 78% of them being age
55 or older. In five years they also would be in the potentially restricted range. Captain Duke
found that similar demographics applied to Vancouver and Toronto based pilots flying the
Boeing 767.

[28] Captain Duke continued his analysis, assuming that 10% of the captains and first officers
were restricted by the over/under rule. It is significant that the resulting simulated schedule
disregarded the seniority of many first officers and assigned them to reserve-pilot status. He
testified that as relief pilots they would not be able to relieve an ill first officer assigned to fly with
a captain aged over 60.
When we deal with a small base such as the Vancouver A-340 the number is shockingly
small. With 20% of the captains restricted and 11% of the first officers restricted …We
can’t generate a schedule.
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Member Jensen: “Unless you hire an additional pilot.”
Duke: “That is our obvious response to that … to somehow introduce more pilots who are
not restricted ... Of course our current system is based on seniority, so this would go back
… to the CMSC review. …Lets say you open up two more spots …the CMSC review is
run … if those two new pilots are 62 years old, you haven’t helped yourself at all, because
we don’t have the right as it were to restrict pilots based on age from obtaining these
positions … We can’t guarantee through any method in our collective agreement that we
would have less than 11% first officers restricted.”
…
Tremblay: “What does that do to pilot morale if you ignore the seniority list in order to
overcome or minimize … some of these problems?
Duke: “Seniority is one of ACPA’s most dearly held concepts and we have repeatedly had
this mentioned to us at the negotiating table. Depending on how much we restricted it, it
would be anywhere from negative to very negative. If suggestions such as (to) directly
hire people to a position that is as senior as the Vancouver A-340 first officer, it could
bring the airline to a halt. We could have wildcats the likes we haven’t seen before. …we
wouldn’t even try to bring something like that forward.”
…
Tremblay: “Has Air Canada experienced wildcats or issues of that kind because of pilot
morale issues related to seniority before?
Duke: “During the merger, that didn’t go smoothly as far as the pilots were concerned
because we had a disagreement between the Canadian pilots and the Air Canada pilots as
to how the two seniority lists should be merged. We had various versions of sickouts
associated with various Labour Board rulings with that …we had a taste of the effect of
playing with seniority and how it affect the pilots’ morale.”

[29] Captain Duke testified that mandatory retirement of pilots at age 60 gives Air Canada
stability and predictability with respect to hiring and training needs, and that there is an
operational risk associated with changing retirement from age 60:
We plan on pilots retiring at age 60 and we have CMSC reviews based on that; and
we train (pilots) based on that … So if we push retirement from age 60 to a higher
limit or no limit we are going to be potentially stuck with unexpected retirements
because nothing in the collective agreement causes our pilots to give us notice of
when they are going to retire. It will detrimentally affect Air Canada’s operation
and result in increased costs.
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[30] When asked by Member Jensen whether Air Canada could impose a retirement-notice
requirement on its pilots Captain Duke responded that Air Canada has no power to unilaterally
impose anything on pilots, that it would have to be negotiated with ACPA, and “that it would take
a lot of bargaining capital on the company’s behalf, starting from scratch, to negotiate something
like that.”

[31] Member Jensen also wanted clarification on Captain Duke’s evidence concerning the need
to have predictability in retirement:
Jensen: “Just so I’m clear, when you say it is one of our biggest issues, what you
mean there is (that) the predictability of retirement is one of the biggest problems
with not having a mandatory retirement date; is that right?”

[32] Duke agreed, and using the Vancouver A-340 group as an example said that Air Canada
has:
… six people worth of work in Vancouver that allow us to absorb external shocks
to our operation. Once we pass that number – all our assumptions working out on
sickness, on the amount of people in training, on the number of supervisors we
have, all the assumptions we have in staffing – six is the magic number that we can
use to absorb external shock such as early retirements. Any more than that and we
are cancelling flights. So to directly answer your question, the issue is planning the
number of staff we need; and at the senior positions we are currently the
beneficiaries of a regular retirement pattern in our planning, we know when they
are going to retire and they do retire pretty much on schedule. If we were to lose
that through the Tribunal ordering a change to mandatory retirement and us not
being able to successfully address that with ACPA, we would have to buy some
insurance somehow by having extra pilots in these positions.

[33] Captain Duke testified that given the restrictiveness of ICAO’s over/under rule, and absent
age-60 mandatory retirement, Air Canada’s Flight Operations would experience significant
increases in pilot costs and complications in scheduling.
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[34] In dealing with the prospect of scheduling domestic flights for pilots over age 65,
Captain Duke testified that it was not feasible, in that 86% of these flights customarily fly over
parts of the United States:
So if we have to reroute domestic flights that otherwise would over fly the U.S. to
keep them solely within Canadian airspace, …that is going to …increase the time
en route, which increases the costs and additionally makes the next flight of the
day late, which we are deadly against.
In extreme cases, (for example) Vancouver to Toronto, with an A-320 which is
near the top of the range, if we have to put more fuel on board we may have to take
passengers off because the plane may be at its maximum weight limit.

[35] Captain Duke gave precise information concerning extra fuel costs, citing 62 Toronto to
Halifax flights, each one costing an additional $1,695 equating to $5.5 million per year.