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Canadian Human Rights Tribunal to revisit Air Canada retirement age issue

TORONTO — The Canadian Human Rights Tribunal will be revisiting the issue of whether Air Canada was wrong to force some pilots to retire at age 60.

A decision publicly released on Friday says the tribunal will hold another hearing to determine whether the airline had the right to force 45 pilots to retire at an age it deemed to be the industry standard.

The decision says the case originally had 97 complainants, but 52 of them will not have their retirement age scrutinized by the tribunal.

The issue of retirement age for Air Canada pilots has come up both at the tribunal and in federal court numerous times in the past decade.

Two cases with different complainants, but similar arguments, were ruled upon by the tribunal, reviewed in federal court, then ultimately dismissed by the Federal Court of Appeal.

The tribunal says the 52 pilots whose retirement dates were covered by the previous cases will not be included in the new hearing, but says it will hear arguments from the remaining 45 whose retirement dates fall outside of the timeline covered by the other cases.

A lawyer representing the majority of the pilots expects the new tribunal hearing will get underway in early 2018.

Raymond Hall said he welcomed the latest development in the highly complex case.

"We've been at it for 12 years," he said Friday in an interview. "It's no small thing."

The new tribunal hearing will unfold against the complicated backdrop of both the two past cases as well as changes in federal law.

In 2011, as part of an omnibus bill, the then Conservative government passed a law forbidding federally regulated companies such as Air Canada to enforce a mandatory retirement age on its employees. The law went into effect in December 2012.

Prior to that legislation, the issue of retirement age at Air Canada had been hotly contested on at least two occasions at the tribunal.

The first case, named the Vilven/Kelly matter after its two plaintiffs, challenged Air Canada's imposition of a mandatory retirement age of 60 for pilots forced to stop working between 2003 and 2005.

Despite an initially favourable ruling from the tribunal, the case was challenged in federal court and ultimately quashed by the Court of Appeal.

The second case, dubbed Thwaites/Adamson, involved 70 plaintiffs who retired between 2005 and 2009.

That, too, received contradictory rulings from the tribunal and federal courts before ultimately being dismissed by the Court of Appeal.

In both cases, Hall sought leave to bring the cases before the Supreme Court of Canada, but that leave was denied.

The third and most recent group of complainants, referred to as Bailie et al, had retirement dates ranging from June 2004 to February 2012.

Air Canada and the Air Canada Pilots Association, which represents the thousands of people who man aircraft for the country's largest airline, had filed a motion to dismiss the Bailey complaint.

Their primary rationale, according to the decision, was the fact that the issues at hand had been rehashed before in the two previous cases.

Adjudicator David Thomas wrote in the decision that this held true for the 52 pilots who had retired before 2010, but that the 45 who retired after that date had not yet had a chance to air their grievances.

While describing the possibility as improbable, he conceded that there may have been changes in the industry during those years that would make the forced retirement discriminatory on the basis of age.

"While I am sympathetic to the respondents' arguments that it is 'highly improbable' that a meaningful change to the material facts affecting the normal age of retirement occurred during the short period after Dec. 31, 2009 until the last Bailie complainant reached the age of 60 in February of 2012, I have not been provided with satisfactory information that there were no changes in the industry," he wrote. "...it is not the role of the tribunal to speculate whether certain evidence may or may not exist. The tribunal has no investigatory powers and has no material evidence before it for the younger complainants. It is the right and the obligation of the parties to present that evidence to the tribunal in a quasi-judicial forum."

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