View cases - Stewart McKelvey

Page: 111G. Accommodation in the Post-November 2006 Period[429] As was noted earlier, Air Canada says that the Tribunal misunderstood and mischaracterizedthe evidence put forward by Captain Duke in support of its undue hardship argument. Air Canadaalso contends that the Tribunal ignored important portions of Captain Duke’s evidence as to theoperational and scheduling difficulties that would result if Air Canada were required toaccommodate pilots over the age of 60. According to counsel for Air Canada, it is “whollyunsatisfactory that such an important issue be resolved on the basis of reasons that are flawed,2011 FC 120 (CanLII)unreasonable and inadequate”.[430] As will be explained further on in these reasons, Messrs. Vilven and Kelly also take theposition that the Tribunal erred in its assessment of the bona fide occupational requirement issue,although they say that it ultimately got to the right result, albeit for the wrong reasons.i) The Tribunal’s Treatment of Captain Duke’s Evidence[431] The Tribunal recognized that Air Canada’s ability to accommodate pilots over the age of 60was “more problematic” under the post-November 2006 ICAO standards: Tribunal decision #2, atpara. 95.[432] Captain Duke’s evidence focused on the impact that the elimination of mandatory retirementwould have in relation to several different aspects of Air Canada’s operations. One of the issues thathe addressed was the uncertainty that could result with respect to the hiring and training of pilots ifmandatory retirement were abolished at Air Canada. Captain Duke explained that it takes the