View cases - Stewart McKelvey

32[161] Thus the respondents argue, if seniority is equated with compensation, then Hyslop shouldapply. To allow the complainants to accrue seniority prior to August 28, 2009 would be contraryto the principle that the respondents are entitled to rely on the law as it was prior to the Tribunal’sdecision.[162] But as the evidence shows, seniority also determines benefits other than justcompensation. For example pilot position (equipment, status and base), monthly schedules,vacation schedules, working conditions, layoffs are all tied to seniority.[163] Seniority gives pilots lifestyle choices. Some may forego compensation for a preferredbase or a better monthly or vacation schedule. Hyslop did not consider the question of seniorityand retroactive remedies. If seniority cannot be tied exclusively to compensation, then Hyslopshould not apply.2010 CHRT 27 (CanLII)[164] Further, in limiting retroactive relief, Hyslop requires that fairness to the litigants beconsidered. In my opinion, the balance in terms of fairness, favors the complainants. Thecomplainants are two in number. There is no evidence that their reinstatement at the senioritynumbers they claim would have any negative effect on Air Canada’s operations. As for ACPA,awarding this seniority to Vilven and Kelly does not result in them jumping ahead. They merelymaintain their seniority position as if not retired. Some ACPA members may be displeased, but asthis Tribunal noted in its earlier decision, it would only delay the younger pilots’ seniorityprogression.[165] For these reasons, I have concluded that Vilven and Kelly should be reinstated withseniority number 751 for Vilven and seniority number 5 for Kelly.E. Previous Financial Advantage Due to Mandatory Retirement[166] The respondents ask that any compensation awarded to Vilven or Kelly be discounted toreflect the fact that their careers progressed and were accelerated in an employment environmentwhere mandatory retirement applied. Previous and current Air Canada pilots such as Vilven and