View cases - Stewart McKelvey

Page: 10[37] The Tribunal observed that the abolition of mandatory retirement in these provinces had notspelled the end of deferred compensation, pension and benefit schemes, and seniority arrangements:Tribunal decision #2, at paras. 29 and 34. The Tribunal also noted that the expert evidence before itcalled into question the concerns identified by the Supreme Court in McKinney as to the potentialnegative consequences that could flow from the abolition of mandatory retirement for matters suchas pension plans and deferred compensation schemes. Consequently, the Tribunal concluded thatparagraph 15(1)(c) of the CHRA could not be justified under any of the elements of the Oakes test.2011 FC 120 (CanLII)[38] It was thus necessary for the Tribunal to go on to consider whether Air Canada and ACPAhad demonstrated that mandatory retirement at 60 constituted a bona fide occupational requirementfor Air Canada pilots.[39] In answering this question, the Tribunal applied the test established by the Supreme Court inBritish Columbia (Public Service Employee Relations Commission) v. British ColumbiaGovernment and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3,[1999] S.C.J. No. 46 at para. 54.[40] According to the Tribunal, neither Messrs. Vilven and Kelly nor the Commission disputedthat the first two components of the Meiorin test had been satisfied: that is, that the mandatoryretirement provisions of the Air Canada pension plan and the Air Canada/ACPA collectiveagreement had been adopted for a purpose that was rationally connected to the performance of the