Judicial review of interlocutory decision in age discrimination complaint dismissed as premature

By Karunjit Singh

Law360 Canada (July 14, 2023, 2:00 PM EDT) -- The Federal Court of Appeal has dismissed an application for judicial review of an interlocutory decision concerning allegations of age discrimination brought by airline pilots forced to retire at age 60.

In Nedelec v. Rogers, 2023 FC 950, released on July 13, Justice Richard F. Southcott held that the application offended the prematurity principle that generally precludes seeking judicial review of interlocutory administrative decisions and “must be dismissed.”

“As such, the Court will not consider the other issues raised in this application,” the judge wrote.

The applicants, Gary Nedelec and 42 other retired airline pilots, had filed human rights complaints with the Canadian Human Rights Commission, alleging that the respondents, Air Canada and the Air Canada Pilots Association, International had discriminated against them by requiring them to retire at the age of 60.

The applicants were forced to retire when they turned 60, prior to the 2012 repeal of paragraph 15(1)(c) of the Canadian Human Rights Act, which provided that it was not a discriminatory practice to terminate an individual’s employment because that individual had reached the normal age of retirement for employees working in similar positions.

The complaint was referred to the Canadian Human Rights Tribunal which, in an interlocutory decision held that it would adopt the factors used in previous complaints that had considered whether mandatory retirement for pilots was a discriminatory practice under the Canadian Human Rights Act.

The tribunal identified that the determinative issue in the matter was whether Air Canada and the pilots association could rely on paragraph 15(1)(c) of the Act as a defence to what would otherwise be age discrimination.

The tribunal noted that it would need to determine what factors should be applied to identify airlines that employed pilots in positions similar to those held by the applicants as well as the normal age of retirement at comparator airlines between 2010 and 2012.

In Bailie v. Air Canada, [2017] C.H.R.D. No. 22, the tribunal had dismissed an age discrimination claim by pilots forced to retire at age 60 prior to Dec. 31, 2009, after conclusively determining that normal age of retirement prior to that date was 60.

The applicants in the case at bar included complainants who were originally part of the Bailie proceedings but were forced to retire between Jan. 1, 2010, and Feb. 28, 2012.

The applicants had submitted that the appropriate comparator pilot positions were those that were functionally equivalent, in a broad, general sense to Air Canada pilots, and that this test was self-evident.

The tribunal cited Vilven v. Air Canada (F.C.), [2010] 2 F.C.R. 189 in which the Federal Court described the factors that would determine a comparator group for Air Canada pilots in a similar complaint.

The Federal Court held in Vilven (FC) that Canadian pilots flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace formed the comparator group for the purposes of paragraph 15(1)(c) of the Act.

The tribunal noted that the Vilven (FC) factors were also subsequently applied in a decision which was upheld by the Federal Court of Appeal.

The tribunal concluded that it was appropriate for it to apply the Vilven FC factors to the applicants’ complaints, because these factors reflected an effort to identify the features of the pilots’ work that are relevant to determining which pilots worked in similar positions.

The applicants sought judicial review of the interlocutory decision.

The association submitted that the applications should be dismissed without considering the substantive issues surrounding the procedural fairness or reasonableness of the decision, because the application offended the prematurity principle which generally precludes seeking judicial review of interlocutory administrative decisions.

The applicants argued that the prematurity principle shouldn’t be applied because the tribunal had already dismissed their complaint before the application hearing.

They submitted that while the application might have been premature when first filed, it was no longer premature, as the administrative process before the tribunal had run its course.

Air Canada’s counsel submitted that the tribunal’s reasoning that resulted in the dismissal was “a very mechanical exercise” and explained that the issues raised in the case at bar could be that the last set of issues subject to judicial review.

Justice Southcott noted that it was possible that some of the considerations that typically animated the prematurity principle did not fully apply in the case at bar.

“If the reasoning and findings of the Tribunal, between the Decision and the Dismissal, are purely mechanical and raise no new issues for the Court’s consideration, then it is possible that the Court would have been no better equipped to consider the present issues and the overall administrative process and decision if the Applicant had waited until after the Dismissal to seek judicial review,” the judge wrote.

The court noted, however, that it was difficult to know whether it would be better equipped if was sitting in judicial review of the dismissal, as the record did not include the dismissal, adding that it could not be confident that the parties would not raise any additional issues or arguments if the dismissal were under review.

The judge cited Dugré v. Canada (Attorney General), [2021] F.C.J. No. 50 in which the Federal Court of Appeal held that an application for judicial review against an interlocutory administrative decision could be brought only in exceptional circumstances in which consequences of an interlocutory decision called into question the rule of law.

The judge held that the circumstances of the case at bar did not satisfy the criterion explained in the jurisprudence for an exception to the prematurity principle.

The court noted that practical realities of a particular matter, including the costs associated with the prospect of having to come back to court to raise the same issues, did not assist the applicant in avoiding the prematurity principle under case law.

“[T]reating such considerations as satisfying the exceptionality test would only encourage premature forays into courts and compromise the rigour of the principle of non-interference,” wrote the judge.

The judge held that a decision not to apply the prematurity principle to the case at bar, could encourage litigants to disregard the principle and challenge interlocutory decisions in circumstances where they anticipate that a subsequent final administrative decision may add little substantive content to the issues in dispute.

“[S]uch a result would make the application of the prematurity principle less certain and therefore represent an unwelcome development in the law,” wrote Justice Southcott.

The court held dismissed the application, finding that it offended the prematurity principle.

Counsel for the parties were not immediately available for comment.

Counsel for the applicants was Raymond Hall.

Counsel for Air Canada were Fred Headon and Cristina Toteda.

Counsel for the Air Line Pilots Association, International was Malini Vijaykumar of Nelligan O’Brien Payne LLP.

If you have any information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Karunjit Singh at karunjit.singh@lexisnexis.ca or 905-415-5859.