After carefully reviewing the recent Federal Court decisions and the Tribunal decisions as well as the Supreme Court of Canada mandated tests required on the BFOR defence, here is my take on the current situation.
The Tribunal in its 2009 VK decision said, no maximum age. It made no reference to age 65. The Federal Court, in 2011, upheld that portion of its decision although ACPA appealed that decision to the Federal Court of Appeal with respect to Kelly, not Vilven, because ACPA was not named as a Respondent by Vilven. Air Canada did not appeal the decision, so the Federal Court's decision is settled law with respect to Vilven.
The issue of BFOR was referred back to the Tribunal for reconsideration on the basis of the three SCC required steps. The Tribunal's decision of July 8th addresses only that question, but because a BFOR defence supersedes all prohibitions under the CHRA, including age, a BFOR defence could have the effect of killing the case before the Tribunal and the courts. In BFOR, because each complaint must be decided on a case by case basis to measure individual accommodation of each individual complainant pleading discrimination, a finding of BFOR in one case cannot be a precedent to other cases.
As I read the Supreme Court of Canada case law, all defences under the CHRA must be narrowly construed. From my reading of the Tribunal's recent decision, the Tribunal did not recognize that constraint. Strict construction would seem to imply that the BFOR defence cannot be applied in a broad general context, for example with regard to an airline's mandatory retirement policy. Rather, the defence must be evaluated strictly in the context of the specific individual complainants before it.
As the flowchart on the Fly Past 60 web site clearly shows, the Tribunal in its decision overlooked the fact that the purpose of mandatory retirement, to meet the Supreme Court of Canada test, must be a "work-related purpose rationally connected to the performance of the job." The Tribunal found that the purpose of the Air Canada – ACPA mandatory retirement provision was "melding the needs of the company with the collective rights and needs of its pilots."
Tthat purpose has no apparent connection to the actual occupational requirements of the job, the essential part of a BFOR defence. This oversight would appear to mean that as a result the BFOR test should have failed on not just one of the required steps, but on all three of them and that the Tribunal's conclusion that the employer substantiated its BFOR defence is in error.
Further, at the third step of the test the employer is required to demonstrate that it could accommodate each individual complainant to the point of undue hardship. There is no indication in the Tribunal decision either that the Tribunal evaluated that test requirement in the case before it, or that there was any evidence before the Tribunal on the record to demonstrate that the employer actually did attempt to accommodate the individual complainants. As I read the preceding Federal Court decision on the same issue, the employer failed to consider any accommodation of these two individuals. Rather than considering any alternatives it simply terminated their employment in accordance with its mandatory retirement policy.
The upshot of this oversight is that regardless of the witness evidence of the potential cost to the airline of abolishing mandatory retirement, the step three test fails, and consequently the BFOR test fails.
The Tribunal not only missed that test requirement, but it apparently decided a different question entirely. It did not apply the accommodation test in regard to the two individual complainants before it, but applied the step three test in regard to the employer's mandatory retirement policy in general. Wrong question, irrelevant answer.
The interesting issue that will soon present itself is how the impending Thwaites decision from the same Tribunal will compare to the Vilven-Kelly decision on BFOR. Will they be consistent, or will they be polar opposites? Regardless, what will be the import of these decisions for the Tribunal's assessment of the remaining cases before it?
As I see it, the Tribunal itself is in trouble. This is its third decision on this one case in five years, and this is the third time that it erred in its analysis and conclusions.
Last edited by Mechanic787; 29th Jul 2011 at 07:24.