sepia wrote:Ah yes, why of course. Every case that doesn't go your way is flawed to it's very core. Every case that has gone your way is the very definition of Canadian legal perfection. Like I said earlier, maybe a bit less of the fear mongering would do you good. It just makes you guys out to be a bunch of hysterics, which may or may not be the case.
You, as a moderator of this Forum, should be one to set an example by focusing on the substance of the issues, rather than on the alleged emotional dispositions of the other contributors.
Here is something for you to seriously consider. Words from the Meiorin decision. After all, the CHRT, being an "expert tribunal" is required to decide questions of law that are very likely to wind up before the Supreme Court of Canada. Based upon the July decision, it looks like he got into the wrong airplane with the wrong flight plan, wouldn't you say? Do you honestly believe that the Tribunal member who decided the case even bothered to read the Meiorin decision, let alone that he understood it?
Students in my high school grade 12 law class would ask themselves the same question, based on the logic of the decision in the context of the SCC requirements set out in these paragraphs:
57 The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job.
58 The employer must demonstrate that there is a rational connection between the general purpose for which the impugned standard was introduced and the objective requirements of the job.
59 If there is no rational relationship between the general purpose of the standard and the tasks properly required of the employee, then there is of course no need to continue to assess the legitimacy of the particular standard itself. Without a legitimate general purpose underlying it, the standard cannot be a BFOR.
Now, here is how he justifies the BFOR:
[48] The third step in Meiorin requires a determination whether the standard was established to accomplish a legitimate purpose. Again, persuaded by Captains Duke’s evidence, I conclude on a balance of probabilities that the work standard of mandatory retirement in the collective bargaining agreement between Air Canada and ACPA was intended to accomplish the legitimate purpose of melding the company’s needs with the collective rights and needs of its pilots.
What on earth does “melding the company’s needs with the collective rights and needs of its pilots” have to do with “the tasks properly required of the employee”?
There is nothing hysterical about asking that question. I would be willing to bet that the Court is going to wind up asking Air Canada and ACPA the very same question, just before it summarily quashes this wingy decision.
At least Mr. Sinclair, for all his memory lapses, got this part right in his decision released the following month, coming to the polar opposite conclusion on the basis of carefully articulated reasons. Here is how he dealt with the issue:
[343] If the essence of what Air Canada pilots do is flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, it is difficult to see how the age of the pilot bears any relationship to the performance of the job.
[344] It is very telling that Transport Canada, the federal regulatory agency responsible for licencing commercial pilots, does not impose any maximum age restriction. In fact, in its submission to ICAO on the question of raising the maximum age of PICs for international flights, Canada’s position was that there should not be any age restriction. Canada has no objections to pilots who are 60 years of age or older holding a medically valid licence from flying within Canadian airspace.
[345] As to the second step of Meiorin, I do not question that the age 60 rule was adopted with an honest and good faith belief. But if it was not adopted for a purpose connected to the performance of the job, it cannot be necessary for the fulfillment of that work-related purpose.
