Part 7:
[429] At the end of
it all, my opinion is that Air Canada has not met the burden
of proving that it will suffer undue hardship with the elimination of the age
60 retirement rule. Accordingly, it cannot rely on the BFOR defence under
s. 15(1 )(a) of the CHRA.
12.
In its conclusion, the Tribunal dismissed the complaints by reason of its finding in
respect of the Paragraph 15(1 )(c) issue. At Paragraph [430] it stated:
[430] I have concluded that the Respondents can rely on s.
15(1 )(c) of the
CHRA
so that the mandatory retirement policy at age 60 does not amount
to a discriminatory practice. Accordingly, the complaints are dismissed.
13.
The Applicants make application for:
A. an order quashing Tribunal decision 2011 CHRT 11 , dated
August 10, 2011 , in part; namely, quashing:
1. the dismissal of the complaints; and
2. the Tribunal's finding in respect of Paragraph 15(1 )(c) of the Act,
namely the finding "that the Respondents can rely on s. 15(1 )(c)
of the Canadian Human Rights Act so that the mandatory
retirement policy at age 60 does not amount to a discriminatory
practice;"
B. an order awarding costs to the Applicants
; and
C. such further and other relief as this Honourable Court considers
just.
14.
The grounds for the application are as follows. The Tribunal erred in law and fact
and failed to observe principles of natural justice and procedural fairness and
exceeded its jurisdiction:
A. in failing to consider the entire legislative and jurisprudential context of
the Act and of Paragraph 15(1 )(c) of the Act in the application of
Paragraph 15(1 )(c) to the facts of the complaints of the Applicants;
B. in failing to narrowly construe the defence or exception to a
discriminatory practice provided by Paragraph 15(1 )(c) of Act,
C. in electing to use a statistically-based (50% plus one) method of
determining the
"normal age of retirement," in the circumstances where
the number of pilots employed by the dominant carrier in the market,
the Respondent Air Canada
, has the effect of so skewing the statistical
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