View cases - Stewart McKelvey

[340] Because of its conclusion in relation to the subsection 15(1) issue, the Tribunal did not turnits mind to whether paragraph 15(1)(c) of the Canadian Human Rights Act could be justified undersection 1 of the Charter. Accordingly, the subsection 15(1) aspect of the Tribunal’s decision is setaside, and the matter is remitted to the Tribunal to determine on the basis of the existing recordwhether paragraph 15(1)(c) of the Act can be demonstrably justified as a reasonable limit in a freeand democratic society.[341] In the event that the Tribunal determines that paragraph 15(1)(c) of the Act is not saved undersection 1 of the Charter, the Tribunal will then have to address the merits of Messrs. Vilven andKelly’s human rights complaints, including Air Canada’s contention that requiring that all of its pilotsbe younger than 60 amounts to a bona fide occupational requirement within the meaning of section15 of the Canadian Human Rights Act.X. Costs[342] I see no reason why costs should not follow the events insofar as Messrs. Vilven and Kellyare concerned. Given that they were represented by the same counsel, and that their applications wereheard together, they are entitled to a single set of costs on the ordinary scale, payable jointly andseverally by the respondents. Having regard to the complexity of the issues involved, Messrs. Vilvenand Kelly are entitled to the costs of second counsel.2009 FC 367 (CanLII)[343] The Commission was unsuccessful in relation to the issues raised in its application forjudicial review with respect to paragraph 15(1)(c) of the Canadian Human Rights Act, and was notinvolved in the Charter issue on which Messrs. Vilven and Kelly’s application ultimately succeeded.Having regard to all of the circumstances, including the public interest mandate of the CanadianHuman Rights Commission, I make no order of costs with respect to the Commission.THIS COURT ORDERS AND ADJUDGES that:JUDGMENT1. Paragraph 15(1)(c) of the Canadian Human Rights Act violates subsection 15(1) of the CanadianCharter of Rights and Freedoms;2. The applications for judicial review of Messrs. Vilven and Kelly are allowed. Their human rightscomplaints are remitted to the same panel of the Tribunal, if available, for the determination of theremaining outstanding issues in accordance with these reasons, on the basis of the existing record;3. Messrs. Vilven and Kelly are entitled to a single set of costs with respect to their applications forjudicial review, including the costs of second counsel, to be calculated at the middle of Column III ofthe table to Tariff B of the Federal Courts Rules [SOR/98-106, r. 1 (as am. by SOR/2004-283, s. 2)];and4. The application for judicial review of the Canadian Human Rights Commission is dismissed,without costs.APPENDIXRelevant provisions of the Canadian Human Rights Act2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters comingwithin the legislative authority of Parliament, to the principle that all individuals should have an opportunityequal with other individuals to make for themselves the lives that they are able and wish to have and to havetheir needs accommodated, consistent with their duties and obligations as members of society, without beinghindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin,