View cases - Stewart McKelvey

Page: 108ii)The Accommodation of Mr. Kelly in the Pre-November 2006 Period[415] The Tribunal found that although Mr. Kelly could not have continued to fly as aCaptain/Pilot-in-command after he turned 60 in 2005, there was no reason why he could not havecontinued to fly internationally for Air Canada as a First Officer. The Tribunal noted that AirCanada did not consider or offer such accommodation to Mr. Kelly, nor did ACPA make any effortsto seek such an accommodation for Mr. Kelly as it was required to do.[416] As was the case with Mr. Vilven, Air Canada says that the Tribunal erred by only looking at2011 FC 120 (CanLII)whether Mr. Kelly could have been accommodated, rather than considering whether all over-60Captains could have been accommodated by Air Canada.[417] Where accommodation is required, the obligation is not on the employee to originate asolution. It is the employer who will be in the best position to determine how the complainant canbe accommodated without undue interference in the operation of the employer’s business: seeRenaud, above, at para. 44.[418] As the Supreme Court observed in the Hydro-Québec case, an employer has the duty toarrange the employee’s workplace or duties so as to enable the employee to do his or her work, if itcan do so without undue hardship: at para. 16.[419] Where an employer has initiated an accommodation proposal that is reasonable and whichwould, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate theimplementation of the proposal. If the employee fails to take reasonable steps causing the