When does a mandatory retirement age cross the line into age discrimination?
A Canadian Federal Court recently reviewed claims of age discrimination in employment. The workers argued that their employer's mandatory retirement policy unfairly ended their careers despite their ability to continue working.
They challenged how similar positions were compared when determining what counted as a normal retirement age in their industry.
The case raised important questions about how employers justify mandatory retirement policies and what counts as age discrimination under human rights law.
Before December 2012, an airline's collective agreement required pilots to retire at age 60. The case focused on pilots who reached that age between January 2010 and December 2012.
At that time, the Canadian Human Rights Act allowed employers to defend mandatory retirement if it matched the normal retirement age for similar positions.
The Canadian Human Rights Tribunal first needed to decide how to measure what counted as normal - whether to use statistical analysis or take a broader approach. The Tribunal chose statistical analysis, following earlier court decisions that had established this method.
This case built on previous disputes where other pilots had challenged the same policy. Those earlier decisions helped establish the framework for how courts would evaluate retirement age requirements.
To determine the normal retirement age, the Tribunal developed specific criteria for comparing similar positions.
It would only include airlines that operated different sizes and types of aircraft, served both domestic and international routes, crossed multiple airspaces, and carried passengers.
Some pilots disagreed with these requirements, arguing they excluded many relevant comparisons. As noted in the decision: "[the pilots] want the Tribunal to apply their preferred criteria to determine the comparator airlines, including ones previously considered and rejected by the court."
The Tribunal gathered data from airlines meeting its criteria. The analysis revealed that the employer had more pilots than all other comparable airlines combined, effectively setting the industry standard for retirement age.
The Tribunal used a step-by-step approach to evaluate the evidence. It first established its methodology, then determined which criteria would identify similar positions, and finally analysed the data from qualifying airlines.
The court explained a key finding: "The normal age of retirement for the period was 60, since that was [the employer's] mandatory retirement age."
The pilots had multiple opportunities to present evidence and arguments throughout this process, though they ultimately chose not to dispute the airline data presented.
The court found the Tribunal's process was fair and proper. It noted: "[the pilots] agreed to a phased process, had opportunities to present evidence, did not dispute data received from airlines, agreed to cancel the hearing, and agreed that the complaints should be dismissed based on the airline data."
The decision emphasised that the pilots had full participation rights: "[the pilots] were provided a full opportunity to provide evidence, make representations, and address the issue of the composition of the comparator group."
In its conclusion, the court stated: "[the pilots] have not established they were denied full rights under subsection 50(1) of the [Canadian Human Rights Act] or the principles of procedural fairness."
