View cases - Stewart McKelvey

Page: 122[474] Messrs. Vilven and Kelly say that since the commencement of the human rightsproceedings, they have sought an order directing Air Canada to cease applying the mandatoryretirement provisions of the pension plan and collective agreement to all Air Canada pilots.[475] It is evident from the affidavit sworn in support of the motion that the impetus for therespondents’ last-minute motion was a further decision of the Tribunal dealing with the issue of theremedies that were to be granted to Messrs. Vilven and Kelly. This decision was issued a couple of2011 FC 120 (CanLII)weeks before the commencement of the hearing of these applications.[476] In its most recent decision, the Tribunal refused to order Air Canada and ACPA to ceaseapplying the mandatory retirement provisions of the collective agreement and Air Canada pensionplan to all Air Canada pilots. In the Tribunal’s view, Messrs. Vilven and Kelly were seeking to havethe remedies granted by the Tribunal extend beyond their own individual complaints.[477] Citing the decision of the Supreme Court of Canada in Nova Scotia (Workers'Compensation Board) v. Martin, above, the Tribunal observed that it did not have the power tomake a general declaration of legislative invalidity. In the Tribunal’s view, the appropriate remedywas for it to rescind the termination of Messrs. Vilven and Kelly’s employment by ordering AirCanada to cease applying the mandatory retirement provisions of the pension plan to them. TheTribunal further ordered that the discriminatory practice be redressed by directing Air Canada toreinstate Messrs. Vilven and Kelly.