View cases - Stewart McKelvey

Page: 101employee morale and mobility, interference with other employees' rights, and disruption of thecollective agreement as examples of factors that may be considered: Tribunal decision #2, at paras.79 and 80, citing McGill University Health Centre, at para. 15.[389] This was of particular significance as it related to the Tribunal’s analysis of the unduehardship arguments advanced by ACPA, which were largely based upon the impact on the rights ofother employees that would result from the accommodation of over-60 pilots. As mentioned earlier,ACPA has not challenged the Tribunal’s bona fide occupational requirement finding.2011 FC 120 (CanLII)[390] The undue hardship evidence adduced by Air Canada related primarily to operationalconsiderations that would affect the company’s costs. However, other forms of hardship were alsoidentified by the company, primarily the impact that accommodating pilots over 60 would have onthe seniority rights of other Air Canada employees. The question thus arises as to whether theTribunal was statutorily limited to considering the factors of health, safety and cost in assessingwhether a bona fide occupational requirement defence had been established.[391] I recognize that in determining that it could look at matters other than health, safety and cost,the Tribunal was interpreting its enabling statute and was dealing with the scope of the duty toaccommodate - a matter squarely within the Tribunal’s expertise. As a result, its interpretation ofsubsection 15(2) of the CHRA is entitled to deference: see Celgene Corp. v. Canada (AttorneyGeneral), 2011 SCC 1, at para. 34. Nevertheless, I am satisfied that the Tribunal’s interpretation ofthis provision was unreasonable.