View cases - Stewart McKelvey

Page: 98[376] The Tribunal also found that ACPA had failed to establish that the level of disruption andthe inevitable prospect of interference with other employees' rights that would result from theremoval of the mandatory retirement provision in the collective agreement constituted an unduehardship. ACPA has not challenged the Tribunal’s bona fide occupational requirement finding in itsapplication for judicial review.C. The Significance of the ICAO Standards[377] To properly understand Air Canada’s position on the bona fide occupational requirement2011 FC 120 (CanLII)issue, and in order to put Captain Duke’s evidence into context, it is first necessary to consider thesignificance of the changes to the ICAO standards that occurred after the termination of Messrs.Vilven and Kelly’s employment.[378] It will be recalled that as of November, 2006, ICAO’s “over/under rule” permitted Pilots-incommandbetween the ages of 60 and 65 to continue to fly internationally, but only if one of theother pilots in a multi-pilot crew is under 60.[379] The ICAO standards only apply to international flights. However, the vast majority of AirCanada flights have an international aspect to them. In fact, 86% of Air Canada flights are either toan international destination, or pass through foreign (primarily American) airspace, en route to aCanadian destination. Between 20 and 25% of the remaining 14% of Air Canada flights have anAmerican airport as an alternate airport where planes are to land if, for example, weather precludeslanding at the regularly-scheduled Canadian airport.