View cases - Stewart McKelvey

Page: 109employer’s proposal to founder, the employee’s human rights complaint will be dismissed: Renaud,at para. 44.[420] While the pre-2006 ICAO standards restricted the capacity in which Mr. Kelly could havecontinued to fly for Air Canada once he turned 60, there was no licensing or operational restrictionthat would have prevented him from using his considerable seniority to bid into pilot positions otherthan that of Captain/pilot-in-command, such as a First Officer position.2011 FC 120 (CanLII)[421] Thus, as of the date of the termination of Mr. Kelly’s employment in 2005, there was nolegal impediment, other than the mandatory retirement provisions of the Air Canada pension planand the Air Canada/ACPA collective agreement, that would have precluded him from remainingemployed as a pilot with Air Canada.[422] Meiorin imposes both procedural and substantive obligations on employers when dealingwith discriminatory employment standards. One important question to be considered in determiningwhether these obligations have been satisfied is whether the employer has investigated alternativeapproaches that do not have a discriminatory effect. Another important question is whether there aredifferent ways to perform the job, while still accomplishing the employer's legitimate work-relatedpurpose: see Meiorin, at paras. 65-66.[423] That is, it will be incumbent on an employer to show that it had considered and reasonablyrejected all viable forms of accommodation: see Grismer, at para. 42.