The decision is expected to be released Monday morning and will be found at:

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1 Air Canada Pilots Mandatory Retirement decision to be released Monday, November 8 th at 9:30AM Eastern pilots aged 65, 67 to be reinstated MEDIA ADVISORY November 7, 2010 TORONTO, ON: On Monday, November 8 th at 9:30AM Eastern, the Canadian Human Rights Tribunal will release its long-overdue decision on the reinstatement of two Air Canada pilots, George Vilven, 67 and Neil Kelly, 65 whose employment was terminated in 2003 and 2005 respectively by reason of the mandatory retirement provisions of their collective agreement. The decision is expected to be released Monday morning and will be found at: A backgrounder follows this advisory. The case deals strictly with the issue of mandatory retirement in the federal jurisdiction namely, do employers in federally regulated industries have the right to terminate the employment of individuals on the basis of an arbitrary age? And does the Canadian Human Rights Act which purports to allow such age discrimination contravene the Canadian Charter of Rights and Freedoms? The Tribunal found in favour of the pilots in August, 2009 that their Charter rights were violated. It then held a hearing earlier this year to determine the remedy that should result from that violation of their rights. Monday s decision will provide that answer. The Tribunal will give its ruling on: 1. the reinstatement of the two pilots, including whether their seniority should be discounted for the period of their wrongful termination 2. the damages to be awarded to the pilots for wrongfully terminating their employment on the basis of age; and 3. a cease order forcing Air Canada to stop terminating its pilots employment at age 60. However, this decision does not conclude the issue of whether mandatory retirement is eliminated for everyone else in federally regulated industries. That will depend on the results of the appeal to the Federal Court [Please see Backgrounder]. Until then, it is possible that everyone else besides the two named pilots will have to engage in a similarly arduous legal process to establish their rights.

2 For this reason, the Fly-Past 60 Coalition and CARP have called for legislative change to remove Section 15[1][c] of the Canadian Human Rights Act. A Private Member s Bill, C-481, to make that amendment, sponsored by Liberal MP, Raymonde Folco, is currently before Parliament, and on November 15th will face a vote to determine whether the Bill receives second reading and proceeds to Committee. CARP is a national, non-partisan, non-profit organization committed to advocating for a New Vision of Aging for Canada, social change that will bring financial security, equitable access to health care and freedom from discrimination. CARP seeks to ensure that the marketplace serves the needs and expectations of our generation and provides value-added benefits, products and services to our members. Through our network of chapters across Canada, CARP is dedicated to building a sense of community and shared values among our members in support of CARP s mission. For further information, please contact: For the Fly Past 60 Coalition: Raymond D. Hall Legal counsel Phone: Fax: raymond@flypast60.com For CARP, A New Vision of Aging for Canada Pam Maher x. 235, Communications coordinator: p.maher@carp.ca Michael Nicin x. 230, Policy Development and Government Relations m.nicin@carp.ca for Susan Eng, Vice President Advocacy: s.eng@carp.ca or visit our website: 2.

3 Air Canada Pilots Mandatory Retirement decision to be released Monday, November 8 th at 9:30AM Eastern pilots aged 65, 67 to be reinstated BACKGROUNDER November 7, 2010 TORONTO, ON: On Monday, November 8th at 9:30AM Eastern, the Canadian Human Rights Tribunal will release its long-overdue decision on the reinstatement of two Air Canada pilots, George Vilven, 67 and Neil Kelly, 65 whose employment was terminated in 2003 and 2005 respectively by reason of the mandatory retirement provisions of their collective agreement. The case deals strictly with the issue of mandatory retirement in the federal jurisdiction namely, do employers have the right to terminate the employment of individuals on the basis of an arbitrary age? And does the Canadian Human Rights Act which purports to allow such age discrimination contravene the Canadian Charter of Rights and Freedoms? For federally regulated industries, mandatory retirement has been allowed under Section 15(1)(c)of the Canadian Human Rights Act [ Section 15(1)(c) ] if the individuals are forced to retire at what is referred to as the normal age of retirement for individuals doing similar work. Vilven and Kelly challenged Section 15(1)(c)as violating the equality provision of the Charter. The Tribunal found in their favour in August, 2009 [ Rights Decision ]. It then held a hearing earlier this year to determine the remedy that should result from that violation of their rights [ Remedy Decision ]. Monday s Remedy Decision will provide that answer. The Tribunal will give its ruling on: 1. the reinstatement of employment of the two pilots, including whether their seniority should be discounted for the period of their wrongful termination 2. how much damages should be awarded the pilots for having their employment wrongfully terminated on the basis of age, and 3. a cease and desist order forcing Air Canada to cease its practice of terminating pilots employment on the basis of age. The convoluted case has been hampered by extensive delays in legal proceedings, including a two-year delay resulting from an appeal of the original Tribunal decision to the Federal Court. The ultimate Federal Court finding that Section 15(1)(c)contravened the equality provisions of the Charter of Rights and Freedoms was not appealed. So, pursuant to that finding, the Tribunal was asked to rule on the remedies set out above. In a separate proceeding, the case was sent back to the Tribunal to determine if that violation was justified under Section 1 of the Charter which permits a contravention if it is a reasonable

4 limit[s] prescribed by law as can be demonstrably justified in a free and democratic society. The Tribunal ruled that Section 15(1)(c)was not saved by this provision and Air Canada has appealed to the Federal Court. That appeal will be argued in a four-day hearing commencing November 22 nd and the Federal Court is expected to issue its decision in February or March, In the meantime, the proceedings on the Remedy phase have continued. The Tribunal s Remedy Decision on Monday will establish the individual remedies available to the two named complainants as well as potentially constraining Air Canada from continuing to retire its pilots as they are scheduled to do. The practical outcome of the Tribunal s decision on Monday would be: 1. reinstatement of Neil Kelly and George Vilven 2. a determination of an amount of damages for lost salary and special damages, which would not be paid until the Federal Court appeal has concluded 3. for pilots scheduled to be retired at age 60 in the upcoming months, Air Canada would be given 90 days to make the necessary changes Besides leaving the two named complainants in limbo, the judicial process has been closely watched by over 120 other Air Canada pilots in the queue at the Canadian Human Rights Tribunal who are awaiting hearings regarding their mandatory retirement. In addition, several other groups, airline and non-airline, apparently have similar age-discrimination complaints in process before the Canadian Human Rights Commission and/or the Tribunal, including truckers and longshoremen. Air Canada has taken the position that all judicial rulings to date apply only to the named complainants prompting the expectation that every pilot seeking to resist mandatory retirement will have to go through the long and costly court process which has taken seven years to date. For this reason, the Fly-Past 60 Coalition and CARP have called for legislative change to remove Section 15(1)(c)of the Canadian Human Rights Act. A Private Member s Bill, C-481, to make that amendment, sponsored by Liberal MP, Raymonde Folco, is currently before Parliament, and on November 15 th will face a vote to determine whether the Bill receives second reading and proceeds to Committee. The corresponding provision in provincial Human Rights legislation has been eliminated across the country. The Vilven-Kelly decision is unique, in that it was decided on the basis of the equality provision of the Canadian Charter of Rights and Freedoms, being the first challenge heard on the mandatory retirement exemption to the general prohibition against age discrimination found in 4.

5 the Canadian Human Rights Act. That Act applies to thousands of federal jurisdiction employees, including those in the transportation industry (air, rail and shipping), the financial industries (banking and investment) and the telecommunications industries (including broadcast media and telephone). It is also unique in that it deals strictly with the contractual aspects of mandatory retirement, not the competency aspects. Transport Canada, the federal government department that issues pilot licences and renewals, removed the maximum age requirements from pilot licensing decades ago, stating that in its view, the age restrictions offended the Charter prohibition against discrimination on the basis of age. Instead of selecting any specific arbitrary maximum age, licensing is based on recurrent demonstration of both professional and medical competency, usually at intervals of not greater than six months for both. Other professions, such as firefighters and police officers, for example, may still be subject to arbitrary maximum age restrictions under a separate provision of the Canadian Human Rights Act and the various provincial human rights legislation dealing with bona fide occupational requirements. In August 2009, the Tribunal found that Section 1 of the Charter does not protect Section 15(1)(c)- the mandatory retirement exemption which has been found to contravene the Charter. Some quotes from that August 2009 Rights Decision: The Tribunal noted the sea change in the public attitude toward mandatory retirement [para 21] and that mandatory retirement is nonetheless, an affront to the right to equality [para 39] and found that the infringement of equality rights through mandatory retirement could no longer be justified. [At para. 50], the Tribunal concludes: Based on the above analysis, we have concluded that it can no longer be said that the goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights. [At para 70] In the Tribunal s view, the negative effects of the infringement of depriving individuals of the protection of the Act outweigh the positive benefits associated with s. 15(1)(c). As a final observation, perhaps one of the most disturbing aspects of this provision was the one first noted by the Court in Vilven: it allows employers to discriminate against their employees on the basis of age so long as that discrimination is pervasive in the industry. If the Federal Court, after the judicial review hearing this November, upholds the Tribunal s August 2009 Rights Decision, it will strike down that exemption, ending mandatory retirement for those thousands of other employees in the federal jurisdiction, including employees at Air Canada. Unless of course, Air Canada successfully appeals the decision. Whatever the Federal Court s decision, the case is likely to be headed to the Supreme Court of Canada. 5.