Madam Chair, good morning.
I'm here to speak on behalf of the Fly Past 60 Coalition at the request Mr. Hall, who is unable to attend today.
The Fly Past 60 Coalition is a group that was formed by a segment of Air Canada pilots who oppose mandatory retirement. We're a group of 200 Air Canada pilots, past and present, who have joined together to pursue our mandatory retirement complaints.
We've achieved reinstatement of my employment by Air Canada by reason of an order of a tribunal issued November 8, 2010.
I was also directly involved in our second hearing, known as the Thwaites hearing, before the tribunal. That hearing involved 70 additional Air Canada pilot complainants and was held in October 2009 through January 2010. That decision is still pending.
That hearing dealt almost exclusively with the interpretation of the words in paragraph 15(1)(c) of the Canadian Human Rights Act, namely, “normal age of retirement for employees working in positions similar to the position of that individual”. I would like to offer the committee some candid observations on the current application of that paragraph, as expressed by the tribunal and by the Federal Court, with a view to putting the paragraph in context.
Our analytical starting point with respect to the statutory paragraph is, appropriately, the 1977 Standing Committee on Justice and Legal Affairs, which deliberated the insertion of paragraph 14(c), now paragraph 15(1)(c), into the act. Two pages from the parliamentary transcript of 1977 are appended to this submission.
The issue raised in that committee was whether what is now paragraph 15(1)(c) essentially condoned systemic discrimination. The issue was raised by Member Fairweather to the then deputy minister of justice, Mr. Barry Strayer, page 6:21 of the transcript, second page, at the bottom.
His answer was that permitting termination on the basis of age would not be a discriminatory practice as long as everyone else in that kind of employment was terminated at the same age. I make particular reference to his words “everyone else”, for these words appear to have been the key factor in reducing any opposition to the enactment of that potentially problematic provision.
Unfortunately, that qualification, “everyone else”, appears to have been totally forgotten. It never came before either the tribunal or the courts in any subsequent proceeding where the paragraph came into question until we raised the issue in the Thwaites hearing. Instead, both the tribunal and the superior courts, in a number of cases, independently deemed that the provision was intended to be interpreted instead by a statistical count of individuals doing similar work. In other words, the normal age of retirement was determined by not everyone else, or 100%, but by a simple majority of employees doing similar work.
In the judicial review of my 2007 tribunal hearing, the Federal Court denied that a violation of that paragraph had occurred because it found that Air Canada's pilots constituted approximately 54% of the total Canadian airline pilot population.
The Federal Court did express significant concerns with the wording of the paragraph, however, including the following.
One, the wording “individuals doing similar work” is uncertain, and, as a result, few employees are able to know in advance of their termination of employment who is included and who is not included in the classification. As a result, there is little certainty as to the normal age of retirement prior to an employee having his or her employment terminated.
Two, it is almost impossible for employees to determine the numbers doing similar work because individuals do not have access whatsoever to employment statistics of competing organizations. In the Thwaites proceeding, we actually had to issue subpoenas to over 30 different Canadian airlines to obtain their pilot employment statistics.
Three, dominant employers, such as Air Canada, are effectively able to set the norm and thus unilaterally determine the normal age of retirement by fiat, thereby usurping the role of Parliament.
Four, the Federal Court had difficulty accepting the concept that discrimination on the basis of age should be tolerated provided that the discrimination is applied against the majority of the employees. This proposition clearly offends the intent of the Canadian Human Rights Act and was not, in the opinion of the Federal Court, consistent with contemporary Canadian values.
The court suggested in its 2009 decision that the solution to this lay in the application of the charter and in the decision rendered by the same judge last week. That provision was found to offend the charter.
Five, in that decision the court identified one additional problem with the statutory provision, namely, that although the normal age of retirement may be determined by a free and collective bargaining between a dominant employer and its union, that normal age of retirement would then become applicable to employees of other companies who did not negotiate their age of retirement, including those employees in non-unionized companies.
As well, it is one thing to be accorded rights under the Canadian Human Rights Act; it's entirely another thing to actually realize them.
Despite the good intentions of Parliament in 1977 in allowing a limited exemption to the general prohibition against age discrimination for mandatory retirement, the reality is that it's almost impossible for the average Canadian to realize those rights when they're breached by powerful, litigious employers and unions.
It took over five years from the date when my employment was terminated for me to follow the due legal process to have my employment reinstated, and indeed, that legal battle is not yet ended, with Air Canada continuing to appeal the decisions of the tribunal and the court. Justice delayed is indeed justice denied, and the uncertain and inappropriate wording and restrictions of paragraph 15(1)(c) of the Canadian Human Rights Act, in our view, should be repealed so as to prevent denying other Canadians the ability to be free from age discrimination in their employment.
I would be more than happy to entertain your questions regarding my submissions.
Many thanks.