J.O.: I just read the whole ruling and, unlike you, I find it very difficult to understand how he could possibly have ruled the way that he did. Lots and lots of errors in the decision, as I see it. It seems to me that this guy doesn't have the foggiest notion about what a BFOR is, period. Using the logic that he used, all that anybody that doesn't want to meet the discrimination prohibitions in the human rights law would have to do is find a "legitimate purpose," call it a BFOR, then contract out of the human rights legislation.
He obviously got the SCC Meiorin test wrong: even though he quoted it in his decision, he obviously didn't understand that to qualify as a BFOR, the purpose of the mandatory retirement provision must be rationally connected to the performance of the job (Meiorin, Step 1). It must relate to the actual job requirements. That is why it is called an "occupational requirement" and that is why it is allowed to override the blanket prohibition against discrimination in the human rights statute--it is a very narrow exemption permitted only because the ability to peform the job has a higher priority than the prohibition against discrimination. "Melding the needs of Air Canada with the collective rights and needs of its pilots" can't possibly pass muster, because that is a collective bargaining requirement, not a job performance requirement, and the CHRA overrules collective agreement provisions that permit discrimination. Big mistake.
It seems to me that he also answered the wrong question. What was the Tribunal required to decide here? The complaints before it, or the mandatory retirement policy of the employer and the union in general? Obviously the former, not the latter. The Tribunal, as I see it, is not entitled to ponder philosophical questions in the abstract and to speculate about undue hardship issues that could only come several years from now, once the number of pilots over age 60 starts to increase to the point where scheduling to meet the ICAO requirements could possibly be an issue, then base its decision regarding the complaints before it on that speculation.
I see nothing in the decision that shows why the employment of either Vilven or Kelly was causing Air Canada undue hardship. So why should their complaints be dismissed? They met all of the occupational requirements, and thus needed no accommodation whatsoever. In fact, Kelly is an active, fully qualified working First Officer now.
My guess is that the Court will make short shrift of this decision.