View cases - Stewart McKelvey

Page: 121[469] I have already found that the Tribunal’s finding with respect to the bona fide occupationalrequirement issue as it related to the period before November of 2006 was reasonable.Consequently, any error on the part of the Tribunal with respect to the first two elements of theMeiorin test is immaterial as it relates to that time frame.[470] However, I have found that there were a number of errors in the Tribunal’s bona fideoccupational requirement analysis as it related to the post-November 2006 period, rendering thisaspect of the Tribunal’s decision unreasonable.2011 FC 120 (CanLII)[471] As a result, the question of whether being under 60 was a bona fide occupationalrequirement for Air Canada pilots after November of 2006 will be remitted to the same panel of theTribunal, with the direction that the issue must be examined in light of all three elements of theMeiorin test.X. Remedy[472] There is a dispute between the parties as to the remedy that should be granted by the Court,in the event that I were to uphold the Tribunal’s decision in relation to the Charter question, as Ihave in fact done.[473] Shortly before the hearing of these applications for judicial review, Messrs. Vilven andKelly brought a motion for leave to amend their memorandum of fact and law. They sought toinclude a request for a declaration that paragraph 15(1)(c) of the CHRA is inconsistent with theCharter and is of no force and effect by operation of subsection 52(1) of the Constitution Act, 1982.