View cases - Stewart McKelvey

Page: 110[424] The evidence before the Tribunal was that Air Canada never considered whether it waspossible to accommodate its over-60 Captains, including Mr. Kelly.[425] We do not know whether flying as a First Officer would have been an acceptable alternativefor Mr. Kelly. He may well have been willing to start flying as a First Officer after he turned 60, ifthe alternative was that he would have lost his job. We do not know for sure, however, because Mr.Kelly was never given that option. Indeed, no accommodation proposal was ever forthcoming fromAir Canada.2011 FC 120 (CanLII)[426] Air Canada had an obligation to arrange its employees’ duties so as to enable them to dotheir work, if it could do so without undue hardship. Air Canada did not establish that allowing Mr.Kelly to have continued his pilot career with Air Canada, albeit in a different capacity, would havecaused undue hardship to the company in the period leading up to November of 2006.[427] Moreover, as was the case with Mr. Vilven, Air Canada has not pointed to concreteevidence to show that the answer would have been different, if the Tribunal had considered AirCanada’s ability to accommodate all over-60 Captains in the period prior to November of 2006.Consequently, the Tribunal’s finding of liability for the termination of Mr. Kelly’s employment in2005 was reasonable.[428] The next issue, then, is the reasonableness of the Tribunal’s findings with respect to theability of Air Canada to continue to accommodate over-60 pilots after the coming into force of thenew ICAO standards in November of 2006.