Excerpted from the "Fly Past 60" website:
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The Canadian Human Rights Tribunal issued a decision in August, 2007 that was overturned by the Federal Court by way of judicial review on April 9th of this year.
The court disagreed with the Tribunal on several grounds and quashed the portion of the decision related to the interpretation of Section 15(1) of the Charter of Rights and Freedoms. Specifically, the Court stated that Section 15(1)(c) of the Canadian Human Rights Act violates Section 15(1) of the Charter.
Consequently, the case was referred back to the Tribunal for completion on the two portions of the decision not addressed by the Tribunal in its original decision, namely, whether the violation by Section 15(1)(c) of the CHRA of Section 15(1) of the Charter is saved by Section 1 of the Charter ("reasonably demonstrated as prescribed by law in a free and democratic society"), and whether if it is saved, the collective agreement provision for mandatory retirement might be justified under the provisions of Section 15(1)(a) of the CHRA, namely, bona fide occupational requirement.
The Tribunal originally advised the parties that it would render its subsequent decision by mid-June, but it is now late August and we are still waiting for the decision.
Regardless of the outcome of the subsequent Vilven-Kelly decision of the Tribunal, the Tribunal will proceed with the hearing of all the subsequent Complainants. Originally the subsequent hearing was scheduled to commence July 20th, but by reason of the delay of the Tribunals second Vilven-Kelly decision, that hearing has now been set to commence on October 5th. The Tribunal has allocated two weeks for that hearing, commencing July 20th, 2009. There are currently 69 additional Air Canada pilot complainants, with over 120 complaints (against both Air Canada and the Air Canada Pilots Association).
Although it is highly unlikely that all of these cases can be completely heard in the two weeks alloted, the parties have agreed to bifurcate the proceedings into two parts: liability (and potentially, the remedy of reinstatement, if liability is found), and monetary damages.
It is expected that the hearing will center almost exclusively on legal argument. Most of the facts relevant to the evidence of the complainants will likely be submitted by way of an agreed statement of facts.
Neither Air Canada nor ACPA has yet to complete the procedural requirements for this hearing, as both are waiting for the rendering of the subsequent Tribunal decision in Vilven-Kelly, prior to submitting their "Statements of Particulars," that outline their proposed legal argument and the evidence that each intends to adduce, if any, in support of those arguments.