Commission should not have been criticized for not addressing argument that was not made

Canadian Human Rights Commission (“Commission”) dismissed applicants’ complaints against respondents AC and AC Association (“AC”) on ground that it was plain and obvious that they could not succeed. Applicants brought unsuccessful applications for judicial review pursuant to subsection 18.1(1) of Federal Courts Act of commission’s decisions. Federal Court judge found that commission’s decisions in applications fell within range of acceptable possible outcomes based on facts and law, while being justified by intelligible and transparent reasons. Federal Court judge found that applicants provided no probative evidence to demonstrate any significant change in airline industry during time period in question and therefore, their assertion that normal age of retirement had increased in intervening period was merely speculative. Federal Court judge found that commission’s decisions should be upheld. Applicants appealed. Appeal dismissed. Commission did not err in not addressing argument that applicants’ complaints should have proceeded before Canadian Human Rights Tribunal on basis that complaints brought by other group had proceeded. Applicant’s submissions were centered entirely on prior court decision, and contained no reference to other’s groups complaints that were before tribunal. Commission should not have been criticized for not addressing argument that was not made.

Gregg v. Air Canada Pilots Association (2019), 2019 CarswellNat 3820, 2019 FCA 218, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2017), 2017 CarswellNat 2250, 2017 CarswellNat 7066, 2017 FC 506, 2017 CF 506, Peter Annis J. (F.C.).

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