View cases - Stewart McKelvey

Page: 106ICAO standards. Air Canada made only brief submissions to the Court with respect to theTribunal’s bona fide occupational requirement finding regarding the period before November of2006.i) The Accommodation of Mr. Vilven in the Pre-November 2006 Period[408] The burden is on the employer to produce concrete evidence to establish undue hardship:see Hutchinson v. British Columbia (Ministry of Health) (No. 4) (2004), 49 C.H.R.R. D/348, 2004BCHRT 58, at paras. 69 and 230, and Grismer, above, at para. 41.2011 FC 120 (CanLII)[409] The Tribunal found that Air Canada had not offered any evidence to show that allowing Mr.Vilven to continue flying as a First Officer after he turned 60 would have caused it any unduehardship in the pre-November 2006 period. Air Canada says that the Tribunal erred in this regard byonly considering the situation of Mr. Vilven in its undue hardship analysis.[410] By looking only at whether Mr. Vilven could have been accommodated, Air Canada saysthat the Tribunal asked itself the wrong question, given that what the complainants were seekingwas the invalidation of the mandatory retirement requirement for all Air Canada pilots. Air Canadasubmits that the Meiorin test required the Tribunal to determine whether it would have beenpossible for Air Canada to accommodate not just the individual complainant, but all employeessharing the characteristics of the complainant, without imposing undue hardship upon the employer.