MEMORANDUM OF FACT AND LAW OF AIR CANADA (A )

Transcription

1 Court File nos: A , A , A FEDERAL COURT OF APPEAL BETWEEN: ROBERT ADAMSON ET AL. and AIR CANADA and AIR CANADA PILOTS ASSOCIATION Appellants and CANADIAN HUMAN RIGHTS COMMISSION and DONALD PAXTON Respondents MEMORANDUM OF FACT AND LAW OF AIR CANADA (A ) Maryse Tremblay Borden Ladner Gervais LLP 1000, de La Gauchetière West, Suite 900 Montreal, Quebec H3B 5H4 Solicitor for Air Canada

2 OVERVIEW 1. Adamson et al. (the Pilots ) challenged the rule in their collective agreement requiring them to retire at age 60 by filing complaints under the Canadian Human Rights Act (the Act ). 2. Air Canada already submitted its Memorandum of Fact and Law in respect of the two following issues raised by its appeal (A ) of the Federal Court judgment dated January 27, 2014, indexed as 2014 FC 83: (1) normal age of retirement of Air Canada pilots and (2) Air Canada s defense based on a bona fide occupational requirement. 3. In its judgment, the Federal Court also set aside the part of the decision of the Canadian Human Rights Tribunal (the Tribunal ) in Adamson v. Air Canada, 2011 CHRT 11 in which the Tribunal decided that the Air Canada Pilots Association ( ACPA ) had not established that mandatory retirement is a bona fide occupational requirement ( BFOR ) within the meaning of sections 15(1)(a) and 15(2) of the Act. 4. The Federal Court also directed that ACPA and Air Canada may lead evidence and argue that the mandatory retirement rule is not discriminatory. 5. The judgment of the Federal Court in that regard was appealed by the Pilots (A ). The present Memorandum of Fact and Law is presented in response to the appeal filed the Pilots. PART I FACTS 6. Air Canada refers this Honourable Court to its Memorandum of Fact and Law filed on June 16, 2014 for a description of the general background and facts relevant to this appeal, and adds the following. 2

3 The Tribunal s Decision on ACPA s BFOR Defense 7. The Tribunal concluded that ACPA could not rely on a bona fide occupational requirement under s. 15(1)(a) of the Act to defend the mandatory retirement rule for pilots over age The Tribunal first determined that the BFOR defense is available to trade unions, such as ACPA. Appeal Book, Volume I, Tab E, Tribunal Decision, paras However, the Tribunal concluded that ACPA had failed to satisfy the first two steps of the test set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 ( Meiorin ). Accordingly, ACPA was not permitted to rely on the BFOR defense provided by s. 15(1)(a) of the Act. Appeal Book, Volume I, Tab E, Tribunal Decision, para Despite such finding, the Tribunal proceeded to examine whether ACPA met step three of the Meiorin test and examined the evidence presented by ACPA in support of its position that the elimination of the mandatory retirement rule would result in undue hardship to a significant number of its members. 11. In doing so, the Tribunal considered whether the factors set out in s. 15(2) of the Act to assess whether accommodation would result in undue hardship, i.e. health, safety and costs, are exhaustive. Applying the doctrine of expression unius est exclusion alterius, the Tribunal held that the factors to be considered in the undue hardship analysis must be limited to those three elements of health, safety and cost that are listed in s. 15(2) of the Act. Appeal Book, Volume I, Tab E, Tribunal Decision, para

4 12. After having found that eliminating the mandatory retirement rule would have a disproportionate impact on the younger pilots, the Tribunal nevertheless concluded that ACPA had not demonstrated undue hardship. The Tribunal expressed its conclusion as follows: [401] The choice is difficult. But in my opinion, the impact of eliminating the age 60 retirement rule does not reach the threshold of undue hardship. I have concluded therefore that ACPA has not satisfied the third step of the Meiorin test. Appeal Book, Volume I, Tab E, Tribunal Decision, para. 401 The Reviewing Judge s Determination on ACPA s BFOR Defense 13. The reviewing judge determined that the Tribunal s decision in respect of ACPA s BFOR defense does not fall within the range of possible reasonable outcomes and granted ACPA s application for judicial review. 14. The reviewing judge returned the matter to the Tribunal and directed it to apply the four-step hybrid Meiorin test, as described at para. 220 and following of his reasons. 15. Although not challenged in judicial review by the Pilots, the reviewing judge first confirmed the Tribunal s conclusion that trade unions are entitled to advance a BFOR defense (paras ). 16. The reviewing judge also held that the Tribunal shall not limit the evidence on hardship to the factors of health, safety or costs that are set out in section 15(2) of the Act. Rather, the reviewing judge determined that the Tribunal shall consider evidence of disadvantage to the comparator pilots and the union caused by the elimination of the mandatory retirement rule. 17. In that regard, the reviewing judge relied on the Supreme Court of Canada rulings in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec, section locale, 2000 (SCFP-FTQ), 2008 SCC 43 ( Hydro-Québec ) and McGill University Health Centre (Montreal General 4

5 Hospital) v. Syndicat des employés de l Hôpital général de Montréal, 2007 SCC 4 ( McGill ). Specifically, he stressed that the various hardship factors should be applied with common sense and flexibility in the context of the factual situation presented in each case (as referenced in Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525 ( Chambly )). 18. The reviewing judge also directed the Tribunal to give consideration to the effect of pensions in the determination of any adverse differential effect caused by the elimination of mandatory retirement. The Reviewing Judge s Determination on Prima Facie Discrimination 19. The reviewing judge determined that mandatory retirement is not prima facie discriminatory. On that basis, he also returned the matter to the same panel with a direction allowing ACPA and Air Canada to lead evidence and argue that the mandatory retirement rule is not discriminatory. 20. The reviewing judge concluded that the Act should be interpreted such that no discrimination arises by maintaining a collective agreement provision of retirement for Air Canada pilots negotiated with the employer for an ameliorative purpose intended to ensure an agreed upon scheme to achieve benefits for all pilots at Air Canada and to distribute the fruits of the agreement fairly and equally amongst the union s members without exception. (para. 428) 21. On that basis, the reviewing judge supplemented his direction to permit ACPA and Air Canada to argue that the age 60 retirement rule is not discriminatory. PART II POINTS IN ISSUE 22. In this Memorandum of Fact and Law, Air Canada addresses the following questions: (1) What is the applicable standard of review? (2) Did the reviewing judge err in finding that the factors listed in s. 15(2) of the Act are not exhaustive in conducting the undue hardship analysis? 5

6 23. Air Canada will not address the issue of whether ACPA has established a BFOR defense pursuant to ss. 15(1)(a) and 15(2) in light of the expert evidence presented by ACPA. PART III SUBMISSIONS (1) Standard of Review 24. In an appeal of a judgment concerning a judicial review application, the role of the Federal Court of Appeal is to determine whether the application judge identified and applied the correct standard of review. In the event s/he has not, the Federal Court of Appeal s role is to assess the decision under review in light of the correct standard. Attorney General of Canada v. Johnstone et al FCA 110 ( Johnstone ), at para. 36 Keith v. Correctional Service of Canada, 2012 FCA 117 at para. 41 Yu v. Canada (Attorney General), 2011 FCA 42, at para. 19 Canada Revenue Agency v. Telfer, 2009 FCA 23, at para In the present case, the reviewing judge applied reasonableness to the overall Tribunal s decision in respect of ACPA s BFOR (paras. 80 and 334), but applied the correctness standard of review in respect of whether unions are entitled to advance a BFOR defense under s. 15(1)(a) and the scope of the hardship factors in section 15(2) of the Act (para. 79). 26. We agree with the Pilots that the appropriate standard of review in respect of whether ACPA has established a BFOR defense pursuant to ss. 15(1)(a) and 15(2) of the Act is reasonableness. 27. However, in respect of whether unions are entitled to advance a BFOR defense under s. 15(1)(a), this issue was not the subject of a judicial review and the reviewing judge s findings in that regard simply constitute his opinion formulated as part of its analysis of ACPA s BFOR defense. Accordingly, the conclusion of the Tribunal on that point should not be reviewed by this Honourable Court. 6

7 28. With respect to the scope of the hardship factors listed in section 15(2) of the Act, we submit that the standard of review to be applied is correctness for the same reasons as those set out in Johnstone, at paras This issue involves a legal question. The multiplicity of decisions makers, including the Tribunal, which are called to interpret similar human rights legislation, rebuts the presumption of reasonableness in respect of this question. This is not a question of proof, procedure or remedial authority for the Tribunal. Rather, it is an issue of central importance to the legal system which requires consistency between the various human rights statutes in force across the country, and which is beyond the Tribunal s expertise. It therefore should attract a standard of correctness. See also: Canadian National Railway Company v. Seeley et al., 2014 FCA 111, at para. 36. (2) The Reviewing Judge did not err in finding that the factors listed in s. 15(2) of the Act are not exhaustive 29. Even on the basis of the reasonableness standard, we submit that Justice Annis did not err in reversing the Tribunal s conclusion that the hardship factors listed in s. 15(2) of the Act are exhaustive. 30. Section 15(2) of the Act reads as follows: 15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. 15. (2) Les faits prévus à l alinéa (1)a) sont des exigences professionnelles justifiées ou un motif justifiable, au sens de l alinéa (1)g), s il est démontré que les mesures destinées à répondre aux besoins d une personne ou d une catégorie de personnes visées constituent, pour la personne qui doit les prendre, une contrainte excessive en matière de coûts, de santé et de sécurité. 7

8 31. In our submissions, the factors listed in s. 15(2) are not exhaustive. That section does not specify that these factors are the only ones to be considered in the undue hardship analysis. Also, when interpreted having regard to the case law developed by the Supreme Court of Canada, this list must not be viewed as being exhaustive. 32. The Supreme Court of Canada has consistently held that the categories of undue hardship are not closed and that hardship factors are to be applied with common sense and flexibility. In Hydro-Québec, supra, the Supreme Court stated: 12 What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances. This is clear from the additional comments on undue hardship in Meiorin (at para. 63): ( ) (underline added) 33. Relying on Chambly, supra, the Supreme Court also held that the hardship factors should not be strictly constrained in McGill, supra: 15 The factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility ( ). For example, the cost of the possible accommodation method, employee morale and mobility, the interchangeability of facilities, and the prospect of interference with other employees rights or of disruption of the collective agreement may be taken into consideration. Since the right to accommodation is not absolute, consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate. (underline added) 34. In Meiorin, the Court reiterated: 63 ( ) The various factors are not entrenched, except to the extent that they are expressly included or excluded by statute. In all cases, as Cory J. noted in Chambly, supra, at p. 546, such considerations should be applied with common sense and flexibility in the context of the factual situation presented in each case. (underline added) 8

9 35. These findings are entirely consistent with the earlier comments made by Justice Wilson (writing for the majority) in Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp : I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the Board of Inquiry in the case at bar -- financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case. (underline added) 36. Section 15(2) of the Act does not expressly exclude factors other than health, safety and costs in determining what constitutes undue hardship. 37. In reaching the conclusion that the undue hardship analysis must be limited to these three factors, the Tribunal relied on the expression unius est exclusion alterius principle. In the Tribunal s view, because Parliament expressly included these three factors in the determination of undue hardship, the conclusion had to be that the hardship factors are limited to these three considerations. 38. In our submissions, the Tribunal ignored that this interpretation doctrine should be used with the utmost caution. The author Pierre-André Côté, in his text The Interpretation of Legislation in Canada 1, highlights that this doctrine has often been declared as an unreliable tool, that it has been frequently rejected and that it should be used with the utmost caution. Citing Turgeon v. Dominion Bank 2 and Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations 1 Fourth Edition, Carswell, pages [1930] S.C.R. 67, at pp

10 Board 3 of the Supreme Court of Canada, author Côté states that this principle is far from being an invariable rule. 4 He cited the following from an English case quoted in Alliance des Professeurs Catholiques de Montréal, at page 154: It is not enough that the express and the tacit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist. ( ) 39. The danger of using this interpretation doctrine was highlighted by Justice Annis. At para. 202 of his reasons, he relied on the reference in the textbook of Sullivan on the Construction of Statutes which indicates that the strength and legitimacy of the implication [of the doctrine] depends upon the expectation of express references. Given that the determination of hardship is entirely circumstantial, as recognized by the Supreme Court of Canada, Justice Annis concluded that the hardship categories cannot be closed. On that basis, the reviewing judge concluded that this principle should not be applied on the basis that the expectation of naming all of the hardship factors in a statutory provision should be very low. 40. This conclusion is perfectly aligned with how the Ontario tribunals have interpreted the equivalent provision that is found in the Ontario Human Rights Code, R.S.O. 1990, c. H.19 since Sections 17(2) and 24(2) of that legislation provide as follows: 17(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 24(2) No tribunal or court shall find that a qualification under clause (1)(b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 3 [1952] 2 S.C.R. 140, at p See also Sullivan on the Construction of Statutes, LexisNexis Canada Inc., 2008, page

11 41. In a summary of the accommodation principles, the Divisional Court of the Ontario Superior Court of Justice recently reaffirmed in County of Brant v. OPSEU, 2013 ONSC 1955, that in the absence of a comprehensive definition of undue hardship, non-exclusive factors have been used to assess undue hardship: [65] Turning more specifically to the notion of accommodation in circumstances of an employee s injury in the workplace, these overarching principles have emerged: ( ) (12) The factors which influence the undue hardship determination in a given case are not entrenched or exhaustive as relevant considerations must be applied with common sense and flexibility : McGill, at para. 15. In the absence of a comprehensive definition of undue hardship, nonexclusive factors have emerged over time to be weighed in the balance against a disabled employee s right to be free of workplace discrimination, including the following: (a) financial cost including outside sources of funding (b) disruption of a collective agreement (c) problems of morale of other employees (d) interchangeability of workforce and facilities (e) health and safety concerns. See Central Alberta Dairy Pool, at para. 62; Code, s. 17(2). (underline added) 42. Similarly, in Gentek Building Products Ltd. And U.S.W.A., Loc (2003) 119 L.A.C. (4 th ) 193, Arbitrator Sudykowski held that the consideration of costs can include the disruption of a collective agreement and morale problems as well as pure financial costs. The arbitrator added: A collective agreement cannot be used to justify discrimination that is prohibited by the Code, but surely it is appropriate to consider an accommodation s impact on the rights of other employees under the collective agreement to ensure that they do not suffer a form of adverse effect discrimination as a result of the accommodation. (page 207) 43. In Dominion Colour Corp, (1999) 83 L.A.C. (4 th ) 330, Arbitrator Ellis also concluded that in light of the jurisprudence that has developed respecting the broad range of relevant factors to be considered, the list of factors set out in s. 11

12 24(2) of the Ontario Human Rights Code, supra, is to be read as only a list of particular examples (pages ). 44. The Ontario Human Rights Tribunal also found that collective agreement provisions and potential impact on other employees are relevant considerations in assessing undue hardship: Munroe v. Padulo Integrated Inc., 2011 HRTO 1410, paras and Espey v. Corporation of City of London, 2009 HRTO 271, para The same result was reached in the Yukon territories which has also enacted an express provision in its human rights legislation on accommodation: McConnell v. Yukon (Public Service Commission), [1998] Y.H.R.B.A.D. No. 1, paras and Finally, the Quebec Superior Court also found that the factors listed in s. 15(2) of the Act are only descriptive and not exhaustive: Syndicat des employées et employés professionnels-les et de bureau section locale 434 c. Gagnon, 2005 CanLII 25032, at para In our submissions, Justice Annis conclusion that the factors listed in s. 15(2) are not limitative is also supported by the general principle that in interpreting human rights legislation, courts should strive for interpretations that harmonize with the interpretation given to similar human rights legislation. As indicated in N.B. (Human Rights Commission) v. Potash, 2008 SCC 45, at para. 68: Different jurisdictions may phrase the protections and their limitations in different ways. Nevertheless, they should be interpreted consistently unless the legislature s intent is clearly otherwise. 48. This unified approach to justification by hardship is also reflected in Meiorin in reference to many provisions that are similar to s. 15(2) of the Act: 52 Furthermore, some provinces have revised their human rights statutes so that courts are now required to adopt a unified approach: see s. 24(2) 5 See also Brown v. National Capital Commission, 2006 CHRT 26, at paras (quashed, but without comments on this point: 2008 FC 733). 12

13 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19; s. 12 of the Manitoba Human Rights Code, S.M , c. 45, and, in a more limited sense, s. 7 of the Yukon Human Rights Act, S.Y. 1987, c. 3. Most recently, the Canadian Human Rights Act, R.S.C., 1985, c. H-6, was amended (S.C. 1998, c. 9, s. 10) so that s. 15(2) of the Act now expressly provides that an otherwise discriminatory practice will only constitute a BFOR if the employer establishes that the needs of the individual or class of individuals cannot be accommodated without imposing undue hardship. (underline added) 49. Aligned with the above, and as expressed in the submissions by the Honourable Anne McLellan, M.P., P.C. Minister of Justice and Attorney General of Canada to the Senate Committee on Legal and Constitutional Affairs in reviewing Bill S-5 6, it cannot be said that the purpose of enacting s. 15(2) was to limit the hardship assessment to only three factors: In my view, health, safety and cost as factors for assessing undue hardship address the key issues in applying the duty to accommodate ( ) A similar duty to accommodate has existed in the Ontario legislation since This has not created unreasonable burdens on employers and service providers. (underline added) 50. The three factors listed in s. 15(2) may be key issues, but they are not the only ones that may be reviewed in assessing undue hardship, as apparent from the approach developed by the Supreme Court. As recognized by Justice Annis, the assessment of hardship is entirely circumstantial and therefore, should not be limited to these three considerations. 51. The Ontario model that is referenced by Honourable McLellan in her remarks above has not been limited to considerations of health, safety and costs. On the contrary, the Ontario equivalent provision to s. 15(2) of the Act has been interpreted as including considerations other than costs, health and safety. Therefore, contrary to the Pilots assertion, by referring to the key issues being addressed in applying the duty to accommodate, there is no indication that the Minister of Justice intended to expressly exclude other factors. As referenced in 6 Bill S-5 introduced s. 15(2) into the Act in

14 Alliance des Professeurs Catholiques de Montréal, supra, in the absence of an express exclusion, there is nothing to indicate that the other factors cannot reasonably be intended to co-exist with the factors listed in s. 15(2). 52. On the basis of the approach developed by the Supreme Court of Canada, Justice Annis found that the hardship factors are not meant to be strictly constrained and he based his reasoning on the accommodation principle that the hardship factors must be applied with common sense and flexibility. Recognizing that the right to accommodation is not absolute 7, this principle applies with force in the context of a union establishing a BFOR defense. 53. For all the above reasons, we submit that the reviewing judge s interpretation of section 15(2) is correct. Justice Annis did not err in setting aside the Tribunal s conclusion in respect of the hardship factors that are listed in s. 15(2), even if the standard of reasonableness were to be applied. (3) The Reviewing Judge s Conclusion that mandatory is not prima facie discriminatory 54. At para. 3(a) of the judgment, the reviewing judge directed that ACPA and Air Canada may lead evidence and argue that the age 60 retirement rule in the collective agreement is not discriminatory. His reasoning to support this conclusion is found at paras. 335 to 431 of the reasons. 55. Air Canada agrees with the Pilots that this issue was not raised by the parties before the Federal Court. Accordingly, we accept that para. 3(a) of the judgment be set aside. 7 McGill, supra, para

15 PART IV ORDERS SOUGHT 56. We respectfully ask that this Honourable Court: 1) dismiss the Pilots appeal (Court file no. A ) with costs; and 2) make such further orders as may be appropriate. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Date: August 12, 2014 Maryse Tremblay Borden Ladner Gervais LLP Counsel for Air Canada 15

16 PART V LIST OF AUTHORITIES Appendix A LEGISLATION 1 Canadian Human Rights Act, R.S.C., 1985, c. H-6, sections 7, 10 and 15 2 Ontario Human Rights Code, R.S.O. 1990, c. H.19, sections 17 and 24. Appendix B CASE LAW AND DOCTRINE (1) CASE LAW 3 Alliance des Professeurs Catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 S.C.R Attorney General of Canada v. Johnstone et al., 2014 FCA British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 6 Brown v. National Capital Commission, 2006 CHRT 26 (quashed, but without comments on point relied upon: 2008 FC 733) 7 Canada Revenue Agency v. Telfer, 2009 FCA 23 8 Canadian National Railway Company v. Seeley et al., 2014 FCA Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R County of Brant v. OPSEU, 2013 ONSC Dominion Colour Corp, (1999) 83 L.A.C. (4 th ) 330 (Ellis) 13 Espey v. Corporation of City of London, 2009 HRTO Gentek Building Products Ltd. And U.S.W.A., Loc (2003) 119 L.A.C. (4 th ) 193 (Sudykowski) 15 Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d Hydro-Québec, section locale, 2000 (SCFP-FTQ), 2008 SCC Keith v. Correctional Service of Canada, 2012 FCA

17 17 McConnell v. Yukon (Public Service Commission), [1998] Y.H.R.B.A.D. No McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l Hôpital general de Montréal, 2007 SCC 4 19 Munroe v. Padulo Integrated Inc., 2011 HRTO N.B. (Human Rights Commission) v. Potash, 2008 SCC Syndicat des employées et employés professionnels-les et de bureau section locale 434 c. Gagnon, 2005 CanLII Turgeon v. Dominion Bank, [1930] S.C.R Yu v. Canada (Attorney General), 2011 FCA 42 (2) DOCTRINE 24 P.A. Côté, The Interpretation of Legislation in Canada, Fourth Edition, Carswell, pages R. Sullivan, Sullivan on the Construction of Statutes, Fifth Edition, LexisNexis, pages