View cases - Stewart McKelvey

[86] Indeed, as the Supreme Court of Canada has observed, limits on rights conferred by humanrights legislation must be justified by those seeking to impose them: see Potash Corporation, atparagraph 83, per Chief Justice McLachlin.(iii) The characterization of Messrs. Vilven and Kelly’s positions and the choice of comparatorgroup[87] In order to determine whether there existed a “normal age of retirement” within the meaning ofparagraph 15(1)(c) of the Act at the time that Messrs. Vilven and Kelly were compelled to retire fromAir Canada, the Tribunal had to identify which positions were similar to those that they occupied.This required the Tribunal to first identify the essential features of the complainants’ own positions.[88] In this latter regard, the Tribunal was of the view that no differentiation should be madebetween captains’ positions and those of first officers. While noting that captains have ultimatecontrol over the aircraft, in the Tribunal’s view, the positions were otherwise very similar.[89] Based upon the evidence of Messrs. Vilven and Kelly, the Tribunal found that the prestige andstatus that came with working for a major international airline was an essential feature of thepositions that they held. The Tribunal [at paragraph 53] also identified flying “on regularly scheduledinternational flights on wide-bodied aircraft, to many international destinations, with a majorinternational airline” as essential features of their positions. The Tribunal defined a “majorinternational airline” as one that “is often the dominant carrier in the country, employing a significantnumber of pilots and where regularly scheduled international flights make up a significant portion ofits operations.”2009 FC 367 (CanLII)[90] With this understanding of the essential features of Messrs. Vilven and Kelly’s positions, theTribunal [at paragraph 55] then went on to identify the appropriate comparator group of “positionssimilar” as “pilots who fly with regularly scheduled, international flights with … major internationalairlines.”[91] The applicants say that the Tribunal’s characterization of the essential features of thecomplainants’ positions was unreasonable for several reasons.[92] Firstly, Messrs. Vilven and Kelly say that focusing on their own personal circumstances asindividuals flying on international routes, rather than on their positions as members of theirbargaining unit, would lead to perverse consequences. Contrary to the principle that all members of abargaining unit should be treated equally, the result of the Tribunal’s characterization of thecomplainants’ positions would lead to some, but not all, of the members of Messrs. Vilven andKelly’s bargaining unit being subject to mandatory retirement.[93] Messrs. Vilven and Kelly also submit that the comparator group chosen by the Tribunal wasunduly narrow, as it includes only positions that were identical to their pilot positions at Air Canada,and did not include positions that were “similar” to their own positions. Moreover, the comparatorgroup chosen by the Tribunal does not reflect the norm for Air Canada pilots, most of whom areengaged in flying narrow-bodied aircraft on domestic and transborder routes.[94] According to Messrs. Vilven and Kelly, the Tribunal’s choice of comparator group could leadto Air Canada pilots adjusting their positions and “shopping their comparator group” in the monthsimmediately preceding their retirement. That is, rather than seeking more highly paid flights on largeraircraft flying international routes, as would ordinarily be the case, pilots nearing 60 could use theirseniority to bid on smaller aircraft flying domestic and transborder routes, so as to avoid thecomparator group identified by the Tribunal.[95] All of the applicants say that the Tribunal’s choice of such a narrow comparator group wasalso unreasonable as it includes only pilots working for airlines outside Canada, while ignoring the