View cases - Stewart McKelvey

Page: 117[454] Captain Duke explained that seniority determines the quality of the schedule that a pilot canobtain. More senior pilots can work fewer days in a month (potentially as few as eight) and canavoid working on weekends. Examples of actual pilot schedules of varying qualities (reflectingvarying levels of seniority) were provided to the Tribunal.[455] It is true that a tribunal is not required to refer to every piece of evidence in the record, andwill be presumed to have considered all of the evidence that is before it: see, for example, Hassan v.2011 FC 120 (CanLII)Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946; 147 N.R. 317 (F.C.A.).That said, the more important the evidence that is not specifically mentioned and analyzed in thetribunal’s reasons, the more willing a court may be to infer that the tribunal made an erroneousfinding of fact without regard to the evidence: see Cepeda-Gutierrez v. Canada (Minister ofCitizenship and Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35, at paras.14-17.[456] Captain Duke’s evidence was central to Air Canada’s bona fide occupational requirementdefence. Moreover, this is not merely a situation where the Tribunal failed to specifically refer toevidence contrary to its findings. Rather, the Tribunal stated quite categorically that there was “noevidence” on these points, giving rise to the inescapable inference that important portions of CaptainDuke’s evidence were overlooked.[457] The Tribunal stated that “no explanation” had been provided for why it was that a schedulecould not be generated when the Vancouver experiment shifted to 20% of Captains and 11% ofFirst Officers being potentially restricted: Tribunal decision #2, at para.127. However, Captain