View cases - Stewart McKelvey

Page: 94[358] As to the scope of the duty to accommodate, the Supreme Court stated that “The employerdoes not have a duty to change working conditions in a fundamental way, but does have a duty, if itcan do so without undue hardship, to arrange the employee's workplace or duties to enable theemployee to do his or her work: Hydro-Québec, at para.16.B. The Tribunal’s Decision[359] Because Canada is a signatory to the Chicago Convention, Air Canada is governed by thestandards and recommended practices developed by ICAO.2011 FC 120 (CanLII)[360] Air Canada’s position before the Tribunal was that it could not accommodate pilots over theage of 60 without experiencing undue hardship in light of the constraints imposed on it by the ICAOstandards governing international flights. According to Air Canada, being able to fly lawfully overforeign countries is an integral part of the pilot job at Air Canada.[361] ACPA submitted that the abolition of the mandatory retirement provision in the Air Canadapension plan and the Air Canada/ACPA collective agreement would cause undue hardship to itsmembers as it would limit the number of positions available to pilots under 60 years of age andwould dilute their seniority. It would, moreover, interfere with the ability of younger pilots to planfor their retirement, which would in turn have a negative effect on pilot morale.[362] Prior to November of 2006, ICAO’s standards stipulated that Pilots-in-command over theage of 60 could not fly internationally. There was, however, no mandatory upper age limit for First