Airline said there was no flying left for pilots over 65. An arbitrator disagreed
An airline's attempt to ground pilots the moment they turn 65 has hit a wall, with an arbitrator ruling the carrier failed to prove there was no other work these veteran flyers could do.
In an August 21, 2026, decision, sole arbitrator Mark Hart found that WestJet breached its collective agreement with the Air Line Pilots Association (ALPA) and failed to accommodate pilots over 65 under the Canadian Human Rights Act. The dispute centred on WestJet's Age Restricted Flying Policy, introduced in May 2025, under which the airline said no flying work remained for pilots once they turned 65. Hart disagreed, ordering WestJet to build a formal accommodation plan rather than awarding damages.
A policy that grounded a decades-old practice
WestJet had let pilots over 65 keep flying domestic-only routes within Canadian airspace since the airline's 1996 founding, long before international rules caught up. After the International Civil Aviation Organization raised its global age limit to 65 in 2006, WestJet formalized the practice in a 2014 policy, letting pilots defer retirement and keep flying domestically at full rank, seniority and pay.
That changed on May 28, 2025, when WestJet's new Age Restricted Flying Policy began an accommodation review at age 64. The airline concluded no flying was available for pilots who could no longer meet international age limits, triggering its out-of-role process and, for those who declined other positions, a review of whether their employment could continue.
ALPA grieved weeks later, alleging the change was age discrimination under the Human Rights Act and a unilateral break from decades of past practice made without consulting the union. WestJet denied any breach, maintaining that the ability to fly internationally is a bona fide occupational requirement for pilots at a carrier operating far beyond Canadian borders.
Why age limits don't stop at the border
The case turned on a regulatory gap. Canadian aviation rules have never capped the age for pilots flying entirely within Canadian airspace, and Transport Canada has long opposed mandatory retirement ages for domestic operations. It is the ICAO's international framework, capping commercial pilots at 65, that creates the wall WestJet's over-65 pilots hit once a route crosses into foreign airspace.
Hart accepted that requiring pilots to fly transborder and international routes is generally a legitimate occupational requirement for a carrier like WestJet. But that finding does not end the analysis, since the requirement remains subject to the duty to accommodate. Where flying internationally is not possible, the law requires an employer to consider bundling other duties into a viable role.
From there, Hart found WestJet did have available domestic flying that qualified pilots over 65 could perform without breaching international rules, rejecting the airline's claim that no such work existed. The evidence showed "there is flying that is compliant with the ICAO limitations," he found, and some pilots could be accommodated short of undue hardship.
Drawing the line at undue hardship
Hart limited how far that accommodation duty extends. He distinguished routes that naturally stay within Canadian airspace from "suboptimal" routes requiring dispatchers to reroute around the United States solely to keep an over-65 pilot compliant. Keeping WestJet on the hook for those routes, he found, would create real safety and workload risks, including rougher weather exposure and added strain on dispatchers and controllers.
Hart therefore limited the accommodation duty to naturally compliant domestic routes, directing WestJet to use December, its lowest-volume month, as the baseline for how much work is reliably available. Using a busier average, he reasoned, would leave the airline paying pilots for work that does not consistently exist.
WestJet must now prepare a formal accommodation plan covering staffing and how the flying is distributed among eligible pilots, subject to Hart's approval. The policy, built on the same ICAO provision underlying WestJet's 2014 predecessor, had contemplated a determination "as to whether an ongoing employment relationship remains viable" for pilots who declined alternate roles, language the ruling has now put on hold.
