In a newly-released split decision, the Federal Court of Appeal affirms the decision of the Federal Court [Gregg v Air Canada 2017 FC 506] which dismissed the pilots’ application for judicial review of the decision of the Ontario Human Rights Commission which refused to review the pilots’ complaints because the Commission found it was plain and obvious that the complaints could not succeed.
The Federal Court of Appeal had previously found that the provision of the Canadian Human Rights Act which enabled an employer to terminate an individual’s employment upon reaching the “normal age of retirement” was not discriminatory [Air Canada Pilots Association v. Kelly, 2012 FCA 209]. In a different case, the Federal Court found that the determination of the Canadian Human Rights Tribunal that age 60 was the “normal age of retirement” for domestic pilots from 2003 to 2005 was reasonable [Vilven v. Air Canada, 2009 FC 367].
In this case, the pilots argued that the situation in the Canadian airlines industry changed considerably since those decisions were issued and asserted that the normal age of retirement in the industry was now higher. The pilots relied on the fact that other similar complaints were permitted to proceed by the Tribunal for a determination on the merits while theirs was refused.
The Federal Court of Appeal ruled that in its screening function vis-à-vis the Human Rights Tribunal, the Human Rights Commission, had the power to dispense with those complaints it considered trivial, frivolous, vexatious or made in bad faith. In doing so, the Commission has to decide, on the evidentiary record put before it, whether it was “plain and obvious” that the complaint at issue could not succeed. The Court stated that while this threshold was low, it was not illusory. [Para. 7]
The Court found that the appellants were afforded full opportunity to present some credible evidence that the “normal age of retirement” in 2011 and 2012 was higher than 60 years of age as it was during the 2003-2005 period in order to convince the Commission to deal with their complaints. However, the appellants failed to do so beyond the assertion that “[p]ilot employment within the Canadian airline industry has been quite volatile since 2005.”
However, while the Commission refused to review the complaints of the affected pilots, there were other similar complaints by other Air Canada pilots which the Commission permitted to proceed through to the Tribunal for an adjudication on merits. The Commission’s decision was silent on why apparently similar cases were treated differently.
In a dissenting opinion, Mr. Justice Rennie found that this aspect of the Commission’s decision lacked the necessary transparency and justification, which rendered the Commission’s decision unreasonable. This inconsistency was pertinent to the consideration of reasonableness of the Commission’s decision.
It follows that where a decision maker departs from a previous decision, the departure must generally be accompanied by an explanation justifying the departure; the previous decision provides a “direct contextual comparison against which” the reasonableness of the new decision can be assessed. [Para. 16]
However, in the majority judgment of Mr. Justice Webb, concurred in by Mr. Justice Pelletier, disagreed that the lack of an explanation of why the appellants’ claims were dismissed while the complaints brought by another group of pilots were proceeding before the Tribunal rendered the Commission’s decision unreasonable. [Para. 21]
Andrei Korottchenko is a transportation lawyer at Isaacs & Co. in Toronto and is currently pursuing an LLM degree in Shipping Law at the University of Cape Town.