No Clear Winner in FCA Mandatory Retirement Decision

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Raymond Hall
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No Clear Winner in FCA Mandatory Retirement Decision

#1 Post by Raymond Hall » Sat Jul 11, 2015 8:41 am

On Friday, June 26th, the Federal Court of Appeal (FCA) released its decision in the Adamson et al. v. Air Canada et al. appeals with respect to the age 60 mandatory retirement complaints that were judicially reviewed by the Federal Court in its decision 2014 FC 83. I have posted the decision at http://www.flypast60.com/Documents/2015FCA153.pdf .

Although the FCA overturned the Federal Court decision on grounds other than the substantive issues before the Tribunal, it did not provide any clear resolution of the issues underlying the complaints. Instead it said that the Federal Court judge improperly substituted his own opinion for the opinion of the Tribunal Chair, which is an error of law, and set aside the judgment, reinstating the decision of the Tribunal.

It also stated that the previous Federal Court review of the Vilven/Kelly decision mandating how the Tribunal should have determined the appropriate "comparator group" was not binding on the Tribunal in the Adamson hearing, given that each case must be determined on the basis of its own factual record. The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing.

One of the upshots of the FCA decision, as I see it, is that by setting aside the Federal Court decision and reinstating the Tribunal decision, the FCA rendered null the previous Federal Court decision finding that income expectations of younger pilots could form the basis of a bona fide occupational requirement defence to mandatory retirement--it is no longer law. By reinstating the Tribunal decision that found to the contrary, the Federal Court judge's musings on the subject remain just that, musings, not law.

It will remain to be seen how both Air Canada and ACPA respond to this decision, especially as it relates to the outstanding complaints before the Tribunal.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#2 Post by Johnny#5 » Sat Jul 11, 2015 10:38 am

finding that income expectations of younger pilots could form the basis of a bona fide occupational requirement defence to mandatory retirement--it is no longer law
Interesting for sure...
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#3 Post by The Raven » Mon Jul 13, 2015 4:53 pm

:D
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#4 Post by MackTheKnife » Thu Jul 16, 2015 11:49 am

The Raven wrote::D
I don't see anything funny about a broken legal system. None of the courts or tribunals to date have been able to make a decision based on legal fact and / or common sense. So far everyone has found a loophole to avoid landing the plane. This endless go-around is getting downright ridiculous.

I guess Canadians only have rights that are directly proportional to their resolve or the depth of ones pockets.

It's looking more and more like it won't be finalized until the SCC is forced to rule on it.

Sad.

MTK
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#5 Post by The Raven » Thu Jul 16, 2015 1:23 pm

My emoticon didn't say I thought it was funny. It indicates I am "very happy". Big difference.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#6 Post by MackTheKnife » Thu Jul 16, 2015 3:11 pm

The Raven wrote:My emoticon didn't say I thought it was funny. It indicates I am "very happy". Big difference.
Point Raven !
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#7 Post by The Raven » Thu Jul 16, 2015 4:55 pm

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#8 Post by Lt. Daniel Kaffee » Thu Jul 16, 2015 6:57 pm

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)
Bingo! Give this man a prize.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#9 Post by duranium » Fri Jul 17, 2015 9:43 am

The Raven wrote:The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)
But, on the other hand, reading the judgment, Air Canada pilots are now grouped in the same comparator group as bush pilots. This, folks, will come back to haunt these carbon tube drivers in the not to distant future. The law says bush pilots, your management will find a way to treat you as same, permanently.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#10 Post by yycflyguy » Fri Jul 17, 2015 11:02 am

duranium wrote:
The Raven wrote:The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)
But, on the other hand, reading the judgment, Air Canada pilots are now grouped in the same comparator group as bush pilots. This, folks, will come back to haunt these carbon tube drivers in the not to distant future. The law says bush pilots, your management will find a way to treat you as same, permanently.
Moot point. They already do.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#11 Post by Ah_yeah » Fri Jul 17, 2015 11:20 am

MackTheKnife wrote:
The Raven wrote::D
I don't see anything funny about a broken legal system. None of the courts or tribunals to date have been able to make a decision based on legal fact and / or common sense. So far everyone has found a loophole to avoid landing the plane. This endless go-around is getting downright ridiculous.

I guess Canadians only have rights that are directly proportional to their resolve or the depth of ones pockets.

It's looking more and more like it won't be finalized until the SCC is forced to rule on it.

Sad.

MTK
Do you thing the SCC will hear this case assuming an appeal is sought?
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#12 Post by MackTheKnife » Fri Jul 17, 2015 1:17 pm

The Raven wrote:The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#13 Post by The Raven » Fri Jul 17, 2015 1:26 pm

MackTheKnife wrote:
The Raven wrote:The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.
So, in other words, it's all about the money. You don't really care whether you fly again or not. You just want money!

Sad really.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#14 Post by MackTheKnife » Fri Jul 17, 2015 1:34 pm

[/quote]

Do you thing the SCC will hear this case assuming an appeal is sought?[/quote]

Whether or not that happens would only be pure speculation at this point. Only the SCC knows that answer. There is still a lot of water to go under the bridge before that point arrives.

It all hinges on what happens at the next hearing for the next, larger group of plaintiffs.

As you well know, Canada does not have a Justice system, it has a Legal system and until the fat lady sings anything is possible.

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Re: No Clear Winner in FCA Mandatory Retirement Decision

#15 Post by MackTheKnife » Fri Jul 17, 2015 1:41 pm

The Raven wrote:
MackTheKnife wrote:
The Raven wrote:The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.
So, in other words, it's all about the money. You don't really care whether you fly again or not. You just want money!

Sad really.
Twist the words any way you want if that makes you feel good but the reality is its kinda hard to fly when that door has been slammed shut as an option. None of us wanted to be here, but here we are anyway.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#16 Post by Lt. Daniel Kaffee » Fri Jul 17, 2015 5:21 pm

MackTheKnife wrote:None of us wanted to be here, but here we are anyway.
that's easy then....tell the FP60 team to drop the proceedings and get on with enjoying your retirement instead of spending money and time in legal proceedings...the ball's in your court, don't "blame" others for being where you are.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#17 Post by MackTheKnife » Fri Jul 17, 2015 8:56 pm

Lt. Daniel Kaffee wrote:
MackTheKnife wrote:None of us wanted to be here, but here we are anyway.
that's easy then....tell the FP60 team to drop the proceedings and get on with enjoying your retirement instead of spending money and time in legal proceedings...the ball's in your court, don't "blame" others for being where you are.
TFF ! :lol: :lol:

Stick to whatever it is you do as you would never make it as a comedian.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#18 Post by Mechanic787 » Fri Jul 17, 2015 11:47 pm

The Federal Court of Appeal, the second highest court in the land, could have brought all of these issues to a close, had it confronted the significant legal issues raised by these appeals and rendered an appropriate decision, based on law, regardless of which side would have won. The court obviously wasn’t willing to invest the necessary effort to do so.

Instead, it failed to provide any clarity to the law whatsoever. It ducked having to deal with the BFOR issue and it ducked having to deal with the normal age of retirement issue by simply stating that the Federal Court judge erred by substituting his own opinion for the opinion of the Tribunal, without seriously assessing the reasonableness of the Tribunal’s interpretation of the evidence before it.

By distinguishing the previous case law on the basis of the evidentiary records of the separate preceding hearings, the court essentially guaranteed more litigation, more expense, and more uncertainty of law.

Nice job.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#19 Post by Lt. Daniel Kaffee » Sat Jul 18, 2015 9:10 am

Glad to see that you've got the jurisprudence all sorted out...you should ask Steve Harper to appoint you when the next opening at the FCA happens.

You guys kill me....decision doesn't go as the FP60 leadership promise and next thing you know, all the legal "experts" pick apart the decision.

I seem to recall that this case was a "slam dunk", and now we are in for at least another 2-3 years of litigation if the FP60 group wants to go to the SCC.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#20 Post by 7ECA » Sat Jul 18, 2015 10:06 am

Lt. Daniel Kaffee wrote:I seem to recall that this case was a "slam dunk", and now we are in for at least another 2-3 years of litigation if the FP60 group wants to go to the SCC.
Well, you know what they say; "if you've got the money honey, I've got the time..."
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#21 Post by 43S/172E » Thu Jul 23, 2015 5:27 pm

It was interesting Ray's July11th posting and the absence of the usual suspects who have given us their view on how they have been persecuted.

Finally is this the final nail of the coffin and it is now buried forever? I hope so as this has been a very divisive subject but one of personal amusement for myself.

From a personal perspective this whole case should have been resolved at the union level with the merits of the case being put forward to the membership to decide after being made aware of the changes brought forward through Charter Rights in respect to case law.

The ironic thing is the most vocal of the FP 60 when they were in their late forties is that they supported mandatory retirement so they could advance up the ladder. The level of hypocrisy is astounding in this regard. A story I will remember is a very young YYZ B-727 Captain calling up the late Captain Ross Stevenson (who I might add was one of the first to challenge "contractually" agreed retirement age) late at night to berate Captain Stevenson about holding up his advancement to more senior equipment. Fast forward a few years later same person is complaining most bitterly that he has to leave the B-777 because he is retiring by the same provisions of the contract that was in place. :rolleyes:

The Charter of Rights and Freedoms has been a two edged sword and all should respect it. In the 70's the cockpit was mostly WASP and male. The amount of anti immigrant, Jurassic misogynistic thinking, and homophobic bias was repellent. Take a look at today's cockpit nobody cares who you are or your background!

The legal issue regarding the retirement age has now been established and for those who want to work past 60 can do so. Why would be another question as long range flying even if you work 9 days a month takes a toll on your body.

For those in the system below 60 make the best of it but please remember in the scale of importance it is your health then your family that is important everything else is minutiae.

As far as the Supreme Court of Canada I think they only hear cases based on national merit and sadly this misses it….

Oh forgot to add retirement is grand! :D
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#22 Post by Understated » Thu Jul 23, 2015 11:08 pm

In my humble opinion, those who think this issue is six feet under haven't read the recent court decision very closely. I have to agree with M787 above, that instead of bringing the issue to a close the court simply ducked the key issues, leaving them in limbo for further hearings and more litigation.

Saying that the tribunal was not bound by the prior decision because each case has to be based on its own evidence virtually guarantees that we are in for another hearing, another decision, and more appeals.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#23 Post by Bede » Sat Aug 01, 2015 3:18 am

Those who claim that the FCA "ducked" the issues or "punted" seem to misunderstand the purpose of an appellate court. Generally, an appellate court's role is not to retry the issue: it is to determine whether the lower court (or tribunal) made an error in law or a "palpable and overriding" error of fact. In this case however, the court's role was even more limited. It was to determine if the tribunal's reasons were "reasonable" even if the Federal Court disagreed with the tribunal (it did), it had no legal right to override the tribunal since the tribunal acted reasonably. This is all the FCA said: that the tribunal acted reasonably and therefore its decision should stand.

I'm losing track of this litigation, but has the FP60 group ever won anything? Perhaps it's time to stop trowing good money after bad and enjoy retirement.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#24 Post by 43S/172E » Sat Aug 01, 2015 5:30 am

Bede a very good posting and thank you for your thoughts on this.

If we can use this as a yard stick the 300 million dollar Air Ontario law suit was filed in 1997 against the Air Canada Pilots. By most indications it is dead after an 18 year process through the courts. With that assumption we can use 2011 as a common date and age of 60 this "could" be decided by 2029 and then the "average" age of those involved would be 78.

At some time one has to quit what they are doing all for a myriad of reasons but one should always plan for doing something else as a fall back position. If you have not done this you put yourself in a very stressful position analogous to planning YYT on a contact clearance!

I would assume the reason why those who want to continue with this have had their karma consumed by their dogma.
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Re: No Clear Winner in FCA Mandatory Retirement Decision

#25 Post by Raymond Hall » Thu Oct 01, 2015 10:05 pm

In accordance with the prescient statement of Yogi Berra, "It ain't over 'till its over..." this issue is far from over.

Leave to Appeal to the Supreme Court of Canada of the Federal Court of Appeal Adamson decision was filed last week.
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