View cases - Stewart McKelvey

19C. Conclusion on Pain and Suffering[92] With respect to Vilven and Kelly claims for pain and suffering, in my opinion these claimsshould not be allowed. They both ask for the maximum of $20,000 without explaining why theyare entitled to the maximum. The Tribunal jurisprudence clearly indicates that the maximumaward is reserved for the most egregious discriminatory practice. The facts presented by thecomplainants do not meet this standard.[93] Rather the facts of this case militate against any award for pain and suffering. From thetime Vilven and Kelly joined Air Canada they were well aware of the mandatory retirement age of60. Yet they did nothing to challenge this as being discriminatory until after they were retiredfrom Air Canada at age 60.2010 CHRT 27 (CanLII)[94] On the contrary, they benefitted from this discriminatory practice by being able to moveup more quickly in terms of seniority, higher paid positions, preferred monthly schedules andvacation schedules. This was because the pilots ahead of and more senior to them were obliged toretire at age 60.[95] As this Tribunal noted in its earlier decision on liability, the complainants may be unhappyabout ending their rewarding pilots careers with Air Canada but that situation cannot be viewed inisolation. It must be seen in the context of a system that was designed to assign the responsibilitiesand benefits of being a pilot at Air Canada over different stages in their careers. All pilots atAir Canada understand that they will share these benefits and burdens equally at the appropriatestages in their careers.VII.Wilful and Reckless Damages[96] Vilven and Kelly also claim $20,000 against each respondent under 53(3) of the CHRA.They say that the respondents were fully aware that there were no negative consequences if the