Federal Appeal

Constitutional Law


Mandatory retirement permissible at ages younger than 65

Pilots forced to retire at age 60 due to mandatory retirement provisions in collective agreement. Both filed complaints with Canadian Human Rights Commission and commission referred complaints to tribunal. Airline and union relied on exception to prohibition against age-based discrimination found at s. 15(1)(c) of Canadian Human Rights Act (CHRA). Pilots challenged constitutionality of provision. Tribunal dismissed constitutional challenge. Federal Court found that s. 15(1)(c) violated s. 15 of Canadian Charter of Rights and Freedoms and returned matter to tribunal for decision as to whether provision could be justified under s. 1. Tribunal found that s. 15(1)(c) not saved by s. 1. On judicial review, Federal Court agreed but declined to grant declaration of invalidity on basis that, absent finding of error on part of tribunal, court’s remedial jurisdiction limited. Supreme Court of Canada held in McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, 24 A.C.W.S. (3d) 479 (S.C.C.), that provision of Human Rights Code (Ont.), which permitted mandatory retirement beginning at age 65, breached constitutional protection against age-based discrimination but saved by s. 1. Tribunal and Federal Court considered but did not apply McKinney. Union’s appeal of finding that s. 15(1)(c) of CHRA not saved by s. 1 allowed and pilots’ cross-appeal from refusal to grant declaration of invalidity dismissed. Main question whether difference in manner of determining age at which mandatory retirement becomes permissible was possible point of distinction. Impugned provisions in McKinney denied protection of Code to workers over age of 65. Impugned provision in current case provided limited exception for individuals reaching normal age of retirement for employees working in similar positions. Under CHRA, mandatory retirement permissible at ages younger than 65. McKinney decision reflected sensitivity to permissive nature of Code and to choices made by labour market participants in relation to retirement, often through collective bargaining. Supreme Court noted legislature did not legislate within vacuum and deferred to choices of employers and employees with respect to organization of workplace. McKinney did not decide that mandatory retirement provisions saved by s. 1 because 65 normal age of retirement. It did decide that mandatory retirement, as exception to prohibition against age discrimination, could be justified when mutually advantageous arrangement which permits workplace to be organized in manner that accommodates needs of both employers and employees. Nothing in McKinney to suggest analysis not applying to provisions permitting mandatory retirement prior to age 65 nor does trigger by which age of mandatory retirement fixed change analysis. Same mechanisms at play in workplaces whether mandatory retirement occurs at 65 or younger. Tribunal and Federal Court bound by McKinney. Matter returned to tribunal with direction that complaints dismissed on ground s. 15(1)(c) of CHRA constitutionally valid.

Vilven v. Air Canada (July 17, 2012, F.C.A., Pelletier, Layden-Stevenson and Gauthier JJ.A., File No. A-107-11) 218 A.C.W.S. (3d) 542 (33 pp.).

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