View cases - Stewart McKelvey

Page: 12VII.Standard of Review[45] Messrs. Vilven and Kelly, Air Canada and ACPA all agree that the Tribunal’s finding as towhether paragraph 15(1)(c) of the CHRA is saved by section 1 of the Charter is reviewable againstthe standard of correctness. The Commission takes no position on the Charter issue.[46] I agree that correctness is the appropriate standard with respect to this aspect of theTribunal’s decision. Charter questions must be decided consistently and correctly: see Dunsmuir v.New Brunswick, 2008 SCC 9, at paras. 58 and 163, [2008] S.C.J. No. 9 (QL); Nova Scotia2011 FC 120 (CanLII)(Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 32. Thatsaid, purely factual findings made by the Tribunal in the course of its constitutional analysis areentitled to deference: see, for example, Consolidated Fastfrate Inc. v. Western Canada Council ofTeamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at para. 26.[47] Messrs. Vilven and Kelly, the Commission and Air Canada also agree that the Tribunal’sfinding as to whether Air Canada had established a bona fide occupational requirement defence isreviewable on the reasonableness standard. ACPA takes no position on the bona fide occupationalrequirement issue.[48] I agree that reasonableness is the applicable standard of review with respect to this aspect ofthe Tribunal’s decision. The question of whether a bona fide occupational requirement defence hasbeen made out in a particular case is a question of mixed fact and law, requiring the Tribunal toapply its enabling legislation to the facts before it. Such a finding attracts judicial deference: Brownv. Canada (National Capital Commission), 2009 FCA 273, [2009] F.C.J. No. 1196, at para. 5.