Part 6:
concluded that the hearing into the complaints should go forward on October 5
th
.
The evidence and legal submissions shall be directed to s. 15(1 )(c)
, 15(1 )(a) and
15(2) of the Canadian Human Rights Act.
The question of the constitutionality of s. 15(1 )(c) will not be considered by the
Tribunal at this time
. After the conclusion of the evidence on s. 15(1 )(c),
s. 15(1 )(a) and s
. 15(2) of the CHRA, the parties, if so advised, may make
submissions as to whether the Tribunal should hear evidence and argument on
the constitutional question, and if so, the Tribunal will set dates for the hearing of
this question.
8. The constitutional issue was then deferred pending the outcome of the hearing into
Paragraph 15(1 )(c) of the
Act on its merits. The subsequent Tribunal hearing
concerned itself only with the other two outstanding issues, the "normal age of
retirement" defence or exception, and the bona fide occupational requirement
("BFOR") defence.
9. In its decision of August 1 0, 2011 in respect of the first issue, the Tribunal
concluded at Paragraph [182]:
[182] Given this conclusion, the mandatory retirement imposed on the
Complainants at age 60 pursuant to the collective agreement between the
Respondents by virtue of s. 15(1 )(c) of the
CHRA does not constitute a
discriminatory practice ....
10. In respect of the second issue, the Tribunal made findings in respect of each
Respondent's
BFOR defence. In respect of ACPA's BFOR defence, the Tribunal
stated at Paragraph [346]:
[346] For these reasons
, I have concluded that ACPA has failed to satisfy steps
one and two of the Meiorin test. The result is that ACPA cannot rely on
the BFOR defence provided by s. 15(1 )(a) of the CHRA.
and at Paragraph [405]:
[405] The choice is difficult. But in my opinion
, the impact of eliminating the age
60 retirement rule does not reach the threshold of "undue" hardship. I
have concluded therefore that ACPA has not satisfied the third step of the
Meiorin
test.
11. In respect of Air Canada
's BFOR defence, the Tribunal stated at Paragraph [429]:
- 3 -