[36] Concerning one experiment he conducted, a worst case scenario, to determine the
consequence of accommodating pilots over age 65 by using them exclusively on domestic flights,
Captain Duke testified that “… it has the same problems that we saw on the Toronto/Halifax
issue … you end up with 1,700 hours of additional pairings needed to fly the exact same
schedule.” He explained that when the pairing analysts have to split the flying schedule into two
groups to accommodate ICAO restricted captains, it negates optimization, which is the
minimization of inherent costs by generating effective pairings. Captain Duke testified that
having two groups of pilots to cover the same schedule, one group restricted by the over/under
rule, creates a situation that requires employment of 42 more pilots, and that these additional
pilots would themselves need reserve coverage factored at 34%, bringing the increase in reserve
coverage to 56 pilots, each costing $11,500 per month, equating to $7.7million per year.
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IV. RE-DETERMINATION
[37] The parameters of this re-determination were stated by Justice Mactavish In
paragraphs 469, 470 and 471 of her reasons for judgement:
469 I have already found that the Tribunal’s finding with respect to the bona fide
occupational requirement issue as it related to the period before November of 2006
was reasonable. Consequently, any error on the part of the Tribunal with respect to
the first two elements of the Meiorin test is immaterial as it relates to that time
frame.
470 However, I have found that there were a number of errors in the Tribunal’s
bon fide occupational requirement analysis as it related to the post-November 2006
period, rendering this aspect of the Tribunal’s decision unreasonable.
471 As a result, the question of whether being under 60 was a bona fide
occupational requirement for Air Canada pilots after November of 2006 will be
remitted to the same panel of the Tribunal, with the direction that the issue must be
examined in light of all three elements of the Meiorin test.
[38] Accordingly, this re-determination is limited to the period after November 2006.
[39] There is nothing in the record of the previous proceedings to suggest that the Tribunal, or
the reviewing Judge, found that Captain Duke lacked credibility. Based on my review of his
evidence, I am satisfied that he was a credible witness. Further, I find that his evidence is
convincing and cogent.
[40] Captain Duke’s testimony has established, on a balance of probabilities, that elimination
of mandatory retirement of pilots at age 60, either through a final determination of this case or
through revision of the collective bargaining agreement, will carry with it a heavy burden to
achieve full compliance with ICAO’s over/under rules.
[41] It is more likely than not that the scheduling of pilots over age 60 will become markedly
less efficient and more costly as compared with the certainty that the company has experienced
with mandatory retirement requirements which have been in place since 1957. I accept
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Captain Duke’s succinct assessment of the over/under rule: “It is the conditionality of the
restriction that causes the problems.”
[42] Captain Duke’s description of the workings of Air Canada Flight Operations reveals a
practical and efficient balancing between the Marketing Department flight requirements and
Flight Operation’s ability to assign pilots to them. He testified that the elimination of the
mandatory retirement provision in the collective agreement, in combination with the restrictions
of the over/under rule, will require the employment of more pilots at greater cost to ensure that all
flights will be piloted in compliance with ICAO’s over/under rule.
[43] Based on Captain Duke’s testimony it is inconceivable that Air Canada and ACPA would,
together, willingly embrace the inflexibility and cost of matching “one pilot over age 60 with one
pilot under age 60” on the flight decks of Air Canada aircraft.
[44] I am mindful of the case of F.H. v McDougall, 2008 SCC 53, and the clarification by the
Supreme Court of Canada that with respect to the standard of proof in civil cases: nothing more,
nothing less than a balance of probabilities.
[45] Although Air Canada’s mandatory retirement of pilots at age 60 is prima facie
discriminatory, it is not a discriminatory practice if Air Canada establishes, on a balance of
probabilities, that the limitation is based on a bona fide occupational requirement. The test to be
applied is that articulated by the Supreme Court of Canada in the Meiorin case, a three step
process.
[46] Steps one and two require an assessment of the legitimacy of the (work) standard’s
general purpose and the employer’s intention in adopting it. The assessment must be both
objective and subjective to ensure that the standard does not have a discriminatory foundation.
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[47] It is clear from Duke’s evidence that for decades Air Canada has engaged in a legitimate
and meaningful bargaining process with the pilot’s union that has resulted in an enduring
collective agreement which enshrines seniority and provides for mandatory retirement at age 60
with a reasonable pension. In the result, Air Canada has been able to effectively balance the
introduction of new pilots to replace a predictable number of retiring pilots. Assessing this
situation both subjectively and objectively, I conclude on a balance of probabilities that the work
standard does not have a discriminatory foundation.
[48] The third step in Meiorin requires a determination whether the standard was established to
accomplish a legitimate purpose. Again, persuaded by Captains Duke’s evidence, I conclude on a
balance of probabilities that the work standard of mandatory retirement in the collective
bargaining agreement between Air Canada and ACPA was intended to accomplish the legitimate
purpose of melding the company’s needs with the collective rights and needs of its pilots.
[49] The third step also requires Air Canada to prove that it would suffer undue hardship in
accommodating the complainants. Given the restrictions of the ICAO over/under rule, I am
satisfied that the accommodation of the needs in the period after November 2006, by abolishing
mandatory retirement, would result in negative consequences to Air Canada: significantly
increased operational costs, inefficiency in the scheduling of pilots, and, to a lesser extent,
negative ramifications for the pilot’s pension plan, and the collective bargaining agreement,
particularly in maintaining an effective rule of seniority. I conclude on a balance of probabilities
that Air Canada would suffer undue hardship in accommodating the complainant’s needs.
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V. RULING
[50] With respect to the question whether being under age 60 was a bona fide occupational
requirement for Air Canada pilots after November 2006, I am satisfied on a balance of
probabilities that:
(1) Mandatory retirement of pilots at age 60 is based solely on a bona fide occupational
requirement, therefore it is not a discriminatory practice, and
(2) Accommodating the needs of the complainants after November 2006 would impose
undue hardship on Air Canada, considering health, safety and cost.
VI. DECISION
[51] The complainants George Vilven and Robert Kelly have not substantiated their allegation
of a decimator practice on the part of Air Canada during the period after November 2006.
Accordingly their complaints are dismissed.
Signed by
____________________________________
Wallace G. Craig
OTTAWA, Ontario
July 8, 2011
CANADIAN HUMAN RIGHTS TRIBUNAL
PARTIES OF RECORD
TRIBUNAL FILES: T1176/5806, T1177/5906 & T1079/6005
STYLE OF CAUSE: Robert Neil Kelly v. Air Canada and Air Canada
Pilots Association and
Geroge Viven v. Air Canada
DECISION OF THE TRIBUNAL DATED: July 8, 2011
APPEARANCES:
Raymond D. Hall
David Baker
For the Complainants
Daniel Poulin For the Canadian Human Rights Commission
Maryse Tremblay For the Respondent
Bruce Laughton, Q.C. For the Air Canada Pilots Association