Federal Court dismisses appeal of interlocutory decision involving pilot age-discrimination claim

The Federal Court has dismissed an application for judicial review brought by a group of airline pilots who were unsuccessful in a claim of age discrimination at the Canadian Human Rights Tribunal.

In Nedelec v. Rogers, 2023 FC 950, the applicants were a group of 43 retired Air Canada pilots whose complaint concerned the mandatory retirement provisions in their collective agreement, which required they retire at age 60. The Federal Court dismissed the application. The court found that the application had been commenced prematurely because it dealt with an interlocutory decision and not the final decision on the merits.

“This is a marked departure from the Tribunal's and the Court's prior manner of dealing with such pivotal issues,” says Raymond Hall, counsel for the pilots.

The decision “results in a potential re-hearing of almost the entire case, should the judicial review of the final decision be successful, based on what is later to be found to be an unreasonable decision in the prior interlocutory Ruling,” he says.

Hall is a sole practitioner in Richmond, BC. He is also a retired Air Canada pilot and former head of the Air Canada Pilots Association.

Section 15(1)(c) of the Canadian Human Rights Act provides a defence to age-based discrimination complaints. Under the provision, employers can terminate employees based on their age if it is the normal retirement age for workers in similar positions in the industry. Parliament repealed s. 15(1)(c) in 2012, but the applicants in Nedelec v. Rogers were forced to retire while the legislation was still in effect.

The first stage in determining whether the respondents could rely on s. 15(1)(c) involved deciding the factors or test to apply in identifying airlines which employ pilots in similar positions to the applicants. The Tribunal made an interlocutory decision on this issue in September 2022. It said it would adopt the factors used in previous human rights complaints that had dealt with whether mandatory retirement for airline pilots is a discriminatory practice under the Act. This interlocutory decision was the subject of the Federal Court appeal.

The first case the court examined was Vilven v Air Canada, 2009 FC 367, which involved pilots forced to retire between 2003 and 2005. The Tribunal had dismissed the complaints, finding 60 was the “normal age of retirement” for similarly situated airline pilots. In the judicial review application, the Federal Court found that conclusion reasonable.

The court also looked at Adamson v Canada (Canadian Human Rights Commission), 2015 FCA 153, which involved 70 pilots who were made to retire between 2005 and 2009. Finding 60 was the normal retirement age for Canadian airline pilots, the Tribunal dismissed the complaint. The applicants were successful in a judicial review application in which they challenged the normal-age finding, but the Federal Court of Appeal overturned that decision and restored the Tribunal’s.

Bailie et al v Air Canada and Air Canada Pilots Association, 2017 CHRT 22 dealt with 97 former pilots forced to retire between 2004 and 2012. The Tribunal dismissed the complaints of those of the pilots who were retired before December 2009 because the previous two rulings had determined that 60 was the normal retirement age during that time. The pilots retired after December 2009 are among the complainants in Nedelec v. Rogers.

The last case the court referenced was Gregg v Air Canada Pilots Association, 2019 FCA 218, which involved pilots forced to retire after 2009. The Tribunal dismissed the complaints, citing Vilven and Adamson, and the Federal Court of Appeal upheld the ruling.

In Vilven, the Federal Court set the parameters by which it would identify a group of pilots to serve as a comparison to determine a normal retirement age. The pilots must be “flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace.” The Tribunal adopted the Vilven factors.

The respondents in Nedelec were the Canadian Human Rights Commission; Air Canada and Airline Pilots Association International, the airline pilots’ bargaining agent; and five individuals. The respondents told the court to dismiss the application without considering the other issues raised by the pilots – procedural fairness and the decision’s reasonableness – because the application was counter to the prematurity principle.

The court referenced the summary of the principle in Dugré v Canada (Attorney General), 2021 FCA 8, which said that an application for judicial review could only be brought against an interlocutory administrative decision in exceptional circumstances, including where the application raises issues that call into question the rule of law. The respondents argued that Nedelec was not such a case.

Though the case before the Federal Court was on an interlocutory decision, the Tribunal released its final decision, dismissing the applicants’ complaint on its merits, a week before the hearing. With the ruling out, the applicants argued that the court should not apply the prematurity principle.

The court decided that the applicants’ circumstances did not rise to the level required for an exception in Dugré. The court dismissed the application, finding it offended the prematurity principle, and declined to consider the other issues raised on the application.

“Now that the final decision of the CHRT in this proceeding has been rendered, the complainants will be filing an application for judicial review of the final decision, based almost entirely on the allegedly unreasonable decision in the preliminary ruling,” says Hall.