View cases - Stewart McKelvey

Page: 31[120] Indeed, in this case, the Tribunal determined that the appropriate comparator group for thepurposes of the paragraph 15(1)(c) analysis was “pilots who fly with regularly scheduled,international flights with […] major international airlines”: see Tribunal decision #1 at para. 55.[121] On judicial review, I concluded that the Tribunal had erred in principle in coming to thisconclusion, with the result that its choice of comparator was unreasonable. I found that the propercomparator should be “pilots working for Canadian airlines who fly aircraft of varying sizes andtypes, transporting passengers to both domestic and international destinations, through Canadian2011 FC 120 (CanLII)and foreign airspace”: Vilven #1, at para. 112.[122] Even if the individual was able to properly identify the appropriate comparator group, and toidentify which positions were similar to his or her own job, the employee would then have toassemble the necessary information as to the number of individuals occupying similar positionswith other employers. The individual would also have to be able to find out what the retirementpolicies were governing these other employees. This would be necessary to determine whetherthere was a “normal age of retirement” for these types of positions, and what that age was.[123] Numerical information as to the number of individuals employed in specific positions isoften highly sensitive proprietary information that may not be readily accessible to employees ofother companies. Indeed, there was evidence before the Tribunal in this case as to the difficultiesthat Messrs. Vilven and Kelly encountered in trying to gather this type of information from AirCanada’s competitors. By the time the case came before the Tribunal, the record in this regard wasstill not complete.