View cases - Stewart McKelvey

Page: 11job, and that the provisions had been adopted in the honest and good faith belief that they werenecessary to the fulfillment of a legitimate work-related purpose.[41] The “real issue” for the Tribunal was whether Messrs. Vilven and Kelly could beaccommodated without causing undue hardship to Air Canada and/or ACPA: Tribunal decision #2,at paras. 82-83.[42] After examining the evidence adduced by the applicants in this regard, the Tribunal found2011 FC 120 (CanLII)that neither Air Canada nor ACPA had established that the retirement of Air Canada pilots at age 60constituted a bona fide occupational requirement. Consequently, Messrs. Vilven and Kelly’s humanrights complaints were deemed to have been substantiated, and the Tribunal retained jurisdiction todeal with the issue of remedy.VI.Issues[43] There are two issues on these applications for judicial review. The first is whether theTribunal erred in finding that paragraph 15(1)(c) of the CHRA is not a reasonable limit justifiable ina free and democratic society within the meaning of section 1 of the Charter.[44] The second issue is whether the Tribunal erred in determining that Air Canada had notestablished that the mandatory retirement age provisions of the Air Canada Pension Plan and the AirCanada/ACPA collective agreement constituted a bona fide occupational requirement.