View cases - Stewart McKelvey

31actors who make decisions based on a reasonable assessment of the state of the law at the relevanttime on the one hand and the need to allow constitutional jurisprudence to evolve over time on theother”.[156] Given the then state of the law, the respondents acted in good faith and reasonably inapplying the mandatory retirement policy to the complainants. As to considerations of fairness tothe litigants, in my view, a fair balance is struck, on the one hand, by not imposing on therespondents the burden of damages for a policy that was legal at the time, and, on the other hand,by awarding damages to the complainants from the time the policy was declared to be illegal.2010 CHRT 27 (CanLII)[157] I conclude that Hyslop should apply in this case and that the complainants should not beawarded any compensation for lost wages prior to August 28, 2009. This being the case, it is notnecessary to decide the respondents’ alternative position that the compensation period should belimited to two years from the date of the complainants’ retirement.D. Conclusion on Seniority[158] It is well established in human rights jurisprudence that the purpose of awarding a remedyis to make whole the victim of the discrimination in the appropriate circumstances. This suggeststhat Vilven and Kelly should be credited with the seniority that they would have accrued had theynot been retired, unless there is some reason for discounting their seniority.[159] According to their calculations as detailed earlier in this decision, Vilven’s senioritynumber on reinstatement in 2010 would be 751 and Kelly’s seniority would be 5. Therespondents, relying on the “carveout”, concluded that the complainants should return withseniority number 1222 for Vilven and 176 for Kelly.[160] In coming to this conclusion, the respondents use this logic. First they say that in the pilotworld, the collective agreement is structured on seniority and this drives compensation. As pilotsprogress in seniority they have the ability to bid on the higher equipment which pays the highersalary.