VANCOUVER, B.C. (CN) – In the latest chapter in a 5-year legal battle, 68 pilots seek judicial review of a Canadian Human Rights Tribunal decision that found that mandatory retirement for pilots at 60, under Air Canada’s collective bargaining agreement, is neither discriminatory nor unconstitutional.
The pilots sued Air Canada, the Air Canada Pilots Association, and the Canadian Human Rights Commission, in Federal Court.
Canadian pilots are deeply divided on the issue, and the Pilots Association supports the age 60 limit.
The sensitive and contentious question highlights the difficulty of finding a balance between rights of aging pilots and concerns for public safety.
Supporters of mandatory retirement say that disastrous health problems such as heart attacks are more likely to occur in older pilots.
Opponents of mandatory retirement say older pilots’ experience makes them safer to fly with, and that health and abilities should be assessed individually.
The plaintiffs say that the Tribunal erred in law and fact, failed to observe principles of justice and procedural fairness, and exceeded its jurisdiction.
The saga began when Air Canada fired two pilots in 2003 and 2005, both times within days of their 60th birthdays. Air Canada cited the mandatory retirement provisions in the collective bargaining agreement.
The Canadian Human Rights Tribunal originally decided that the firings were legal because the Canadian Human Rights Act permitted firing workers who reach “the normal age of retirement for employees working in positions similar to the position of that individual.” It also cited the International Civil Aviation Organization (ICAO) maximum age for pilots, 60.
The case was appealed to Federal Court and twice sent back to the Tribunal.
The pilots argued that Section 15(1) of Canada’s Charter of Rights bars discrimination on the basis of age.
But earlier this year, the Tribunal again ruled against the pilots, finding that Air Canada gave sufficient evidence to show that employing the two pilots would cause it “undue hardship” due to the ICAO’s international rules, which would mandate extra staff, schedule complications, and more expenses.
U.S. pilots are watching the case with interest.
In the United States, federal rules require commercial airline pilots to retire by 65, an age that was raised from 60 after several legal struggles by U.S. pilots.
The FAA prescribed mandatory retirement at 60 for American pilots in 1960. But in 2006, the ICAO made 65 the oldest age a pilot may fly as a captain in multi-piloted crews, if another pilot is younger than 60.
To conform to treaty, the United States had to accept pilots of foreign planes that followed the new ICAO regulation. In 2007, President George W. Bush signed the Fair Treatment for Experienced Pilots Act, with age limits that matched the ICAO rule.
The 68 Canadian pilots are represented by Raymond Hall of Winnipeg.