View cases - Stewart McKelvey

Page: 105descriptive, rather than limiting. However, no reasons were provided for this conclusion, and I mustrespectfully disagree with it.[404] Although I have found that the Tribunal erred in its interpretation of subsection 15(2) of theCHRA, as will be explained further on in these reasons, the determinative issue on the bona fideoccupational requirement issue is the Tribunal’s treatment of the evidence regarding cost-relatedoperational matters affecting the Air Canada’s ability to accommodate over-60 pilots in the post-November, 2006 period. Before going there, however, the Court must first consider the2011 FC 120 (CanLII)reasonableness of the Tribunal’s bona fide occupational requirement finding as it relates to the pre-November, 2006 period.F. Accommodation in the Pre-November 2006 Period[405] The next question, then, is whether the Tribunal’s finding that Air Canada had notestablished the existence of a bona fide occupational requirement defence for its discriminatoryconduct vis-à-vis Messrs. Vilven and Kelly during the period prior to the changes to the ICAOstandards in November of 2006 was reasonable.[406] The primary thrust of Air Canada’s argument as it related to the bona fide occupationalrequirement issue was that the Tribunal misunderstood and mischaracterized the evidence putforward by Captain Duke, and ignored important portions of that evidence.[407] Captain Duke’s evidence focused primarily on the operational and scheduling difficultiesthat Air Canada would encounter if mandatory retirement was abolished, in light of the post-2006