Negotiated age of retirement conforms to Charter
Nov. 23, 2010, Ottawa - The Federal Court heard yesterday that successive Supreme Court of Canada decisions have confirmed that a negotiated age of retirement, such as the one in the Air Canada pilots' contract and pension plan, is consistent with the Canadian Charter of Rights and Freedoms.
"We are asking the Federal Court to reaffirm that the law and previous Supreme Court decisions recognize our members' democratic right to determine their age of retirement through collective bargaining," said Air Canada Pilots Association (ACPA) President Captain Paul Strachan.
The Federal Court is conducting the hearings this week as part of its judicial review of a Canadian Human Rights Tribunal (CHRT) decision which recently resulted in the reinstatement of two retired Air Canada pilots.
Counsel for ACPA will argue that the Tribunal erred at law by ignoring Supreme Court decisions which found it acceptable for employers and employees to negotiate a normal age of retirement. In McKinney v. University of Guelph in 1990 and reaffirmed in Dickason v. University of Alberta in 1992, the Supreme Court found that the normal age of retirement could be determined through collective bargaining.
ACPA asked the Federal Court to review the 2009 CHRT decision, which asserted that Section 15(1) (c) of the Canadian Human Rights Act (CHRA) cannot be justified under the Charter. That section of the human rights law states that a practice is not discriminatory if an individual's employment is terminated because he or she has reached the normal age of retirement for employees working in similar positions. The Tribunal refused to apply this section of the CHRA in considering a complaint about ACPA's collective agreement and pension plan, which contain the negotiated provision that Air Canada pilots retire and take their pension at age 60.
The Federal Court's decision could potentially impact the wages and benefits of thousands of federally-regulated employees working under collective agreements containing a fixed age of retirement.