View cases - Stewart McKelvey

Page: 99[380] The consequences of failing to comply with the over/under rule could potentially be severefor Air Canada, as contracting States may ground aircraft and deny entry into their airspace to anyaircraft flown by pilots who do not meet ICAO standards.D. Timing and the Duty to Accommodate[381] The first question for the Court to consider is when the issues of accommodation and unduehardship had to be assessed in relation to Messrs. Vilven and Kelly’s human rights complaints.2011 FC 120 (CanLII)[382] In some cases, it will not be appropriate to simply examine the situation as of the date of thetermination of an individual’s employment. For example, where an employee is dismissed becauseof health-related absenteeism, the employer’s claim of undue hardship must be assessed globally,taking the entire situation leading up to the termination into account: see Hydro-Québec, at para. 21.[383] In this case, Messrs. Vilven and Kelly had no need of any accommodation until such time asthey reached the age of 60, at which point, their employment was terminated in accordance with themandatory retirement provisions of the Air Canada pension plan and the Air Canada/ACPAcollective agreement. I agree with Air Canada that in these circumstances, the issue ofaccommodation must first be assessed as of the date of termination. In the case of Mr. Vilven, thiswas 2003. In Mr. Kelly’s case, it was 2005.[384] I also agree with Air Canada that having regard to the systemic nature of Messrs. Vilven andKelly’s human rights complaints and the fact that the potential invalidation of the mandatoryretirement provisions in the Air Canada Pension Plan and the Air Canada/ACPA collective