Peter B. Annis

Following a judgment allowing an application for judicial review of a Refugee Appeal Division decision, the Court certified three questions for appeal.

The questions addressed whether section 72(2)(a) of the IRPA requires an applicant to exhaust a rule 49(1) reopening application before seeking judicial review, whether a waiver of the collateral attack rule is warranted for unsuccessful reopening applications based on underlying policy considerations, and whether the threshold for prejudice caused by incompetent counsel is a reasonable probability or a serious possibility.

The applicants, a group of retired Air Canada pilots, sought judicial review of a Canadian Human Rights Tribunal decision regarding the methodology to determine the "normal age of retirement" under section 15(1)(c) of the Canadian Human Rights Act.

The Tribunal had decided to apply a strict statistical analysis, following previous Federal Court jurisprudence (Vilven).

The applicants argued for a different methodology and claimed the provision was obsolete.

The Federal Court found the Tribunal's reliance on stare decisis and the statistical methodology was reasonable, noting the applicants failed to present an alternative methodology or establish obsolescence.

The application for judicial review was dismissed.