No Clear Winner in FCA Mandatory Retirement Decision

[Fanblade]

Tell me what the "it" is to which you are referring. "It" didn't exist--I asked you to suggest "it," to suggest some feasible alternative, and you answered with a meaningless generality. There was no "it."

I was referring to finding a monitary solution.

I, too, was referring to finding a monetary solution. And at the risk of repeating myself, let me say that there was no monetary solution. I asked you to suggest one, and you couldn't, because there is none. There is none because the problem is endemic to the highly skewed formula pay system.

You can't go down that rabbit hole without first acknowledging there is a monetary issue and then accept it needs addressing. The FP 60 crowd has refuses to acknowledge the magnitude of the issue to this very day. Even you used the word "temporary" earlier in this thread. That is completely ridiculous.

Anyone who was a roadblock to addressing the monetary issue was also a road block to an in house solution. Every single individual this applies to is partly to blame for the aftermath.

As Rockie said, the problem is discrimination. That was and is the issue before the Tribunal. That was and is the issue that is before the courts. Not the compensation system.

Im talking about before it went to court. This is not a single issue. Treating it like a single issue is what created the conflict in the first place. It all but garanteed the current outcome.

Even if there were a monetary solution, which there was not, I fail to see how that justifies my own union violating the law and how I bear any responsibility for their wrongdoing because I demand that they stop breaking the law.

The FP60 side doesn't bear responsibility for ACPA's wrongdoing. The FP 60 side does however bear responsibility for their contribution to the impasse that led to litigation.

A bun fight over money led to the impasse.

What did we all get because we couldn't play well with others? I might have a large financial liability on top of the above monetary issues, the company scored a pension win and you had to retire at 60.

To this very day ACPA has not been held accountable by the courts for any wrongdoing and may never be.

Your a leader in this dispute. Do I hold you accountable for your contribution to this impasse? Just like I do the ACPA side.

Absolutely I do.

[Rockie]

So, what exactly have you done to resolve the financial implications of this issue Fanblade? You must have some ideas.

[Fanblade]

Rockie,

Read what I posted above. You can't go down that rabbit hole without first acknowledging the monitary issue and it's magnitude. This forum is filled with posts demonstrating that particular hurdle, acknowledging the monitary issue, was never cleared by FP60 group.

That hurdle needed to be cleared a decade ago.

It's a little late now.

[Raymond Hall]

You can't go down that rabbit hole without first acknowledging the monitary issue and it's magnitude. ... That hurdle needed to be cleared a decade ago.

I did address the monetary issue: I stated that there was then and there is now no monetary solution to the problem, absent the Coalition members simply abandoning their legal right to be free from age discrimination.

I have repeatedly asked you to suggest any other alternative, and you dogmatically not only refuse to do so, but you also keep repeating, ad finitum, that we had some sort of obligation to find a way to overcome the money issue, which is based upon the extraordinarily skewed pilot compensation system, before we could pursue our legal action. B.S.

It was the union (and the employer) that allegedly violated my rights, and I have no responsibility to solve their problems prior to availing myself of the legal protection afforded to me by the human rights legislation to hold them accountable for doing so.

The problem is one of the union's creation; it was not one created by the Coalition members. Which brings me to another illogical component to your argument. Suggesting that we are partly responsible for the impasse is akin to blaming the victim for a crime. If the provisions of the Canadian Human Rights Act had not been violated by the union, there would be no impasse.

The existence of a monetary issue does not justify breaking the law. Monetary motivation on the part of the union members is no justification for a union violating the rights of a minority of its members, especially when that union is charged with the responsibility of defending those rights. The law is the law, as you said.

So, unless you can suggest how we might have dealt differently with this process at the outset, I see no point in continuing the discussion.

[mbav8r]

Raymond, I am not involved in this but have been following it for a long time, maybe even right from the outset. Some questions if you don't mind.
When you originally started the fight, for lack of a better term, was it illegal or in your opinion, illegal?
You mentioned that it had to be the normal age of retirement and at the time federally it was age 60, I believe. The reason I mention this is because it had been considered normal to retire at 60, therefore it was likely a matter of opinion that what was going on, at least at the time, was completely legal.
So, I get what Fanblade is saying, if at the outset it was recognized the change was going to negatively affect a group that had expectations and instead of forcing change, approaching with a little give and take might have changed the response.
Do you honestly believe that if the fp60 group had approached with some type of compromise or acknowledged a compromise would be needed, instead of forcing the issue on them, that wouldn't have changed the response?
An honest question, not trying to antagonize.

[Rockie]

You can't go down that rabbit hole without first acknowledging the monitary issue and it's magnitude.

I don't know what rabbit hole you're talking about. The end of mandatory retirement was a freight train bearing down on Air Canada pilots whether the FP60 group existed or not, and the law doesn't care how we get paid. It was up to us to recognize the end was coming and prepare and we failed spectacularly. Our idea of preparing was a futile fight serving no other purpose than getting as many people off the top of the list as possible before the axe fell.

That was a conscious decision by ACPA and the pilots. They were utterly uninterested in pursuing any other course of action. They do not want to change our compensation scheme and they did not want to benefit along with the company in the money that was saved as a result of the change. Something Raymond and the FP60 group recommended and lobbied for until they were blue in the face - but they were talking to a brick wall. All we and the union wanted was to get as many people off the list as possible and we were deaf dumb and blind to anything else.

If you have any suggestions as to how we can address the financial rabbit hole now we're all ears. You keep saying the FP60 group should have dealt with it, so what should they have done and what can we do now?

[Raymond Hall]

When you originally started the fight, for lack of a better term, was it illegal or in your opinion, illegal?

A fair question, and not antagonistic.

When the Bill enacting the Canadian Human Rights Act was in House of Commons hearings to finalize the language, the question of whether exempting mandatory retirement was condoning “systemic discrimination” was put to Deputy Minister of Justice Strayer (the drafter of the legislation) by one of the Members of Parliament.

Here is the exchange from the Standing Committee on Justice and Legal Affairs, March 10, 1977

Mr. Fairweather: …

The other point that has been raised is the age matter and I notice the Minister refers to this in his statement. Age is prohibited ground of discrimination, and Clause 7 states that employment cannot be denied on the ground of age, but Clause 14 refers to the normal age of retirement. I would like to raise the question as to whether the bill condones systematic discrimination in the form of compulsory retirement. You see, this is the problem. I guess the Minister partially missed that point in his paper. These are some notes I had. But I would like a comment.

Mr. Strayer: What Clause 14(c) means is that as long as the individual is obliged to retire at the same age as everyone else in his kind of employment, then it would not be treated as a discriminatory act to require him to retire.

[emphasis added]

In other words, the legislation was enacted on the basis of “everyone” being required to retire at the same age.

In later litigation, the CHRT accepted evidence that the “normal” age of retirement was determined by whether or not, not “everyone,” but the majority of employees in the same employment category, were required to retire at the given age.

That then played out to a statistical calculation, not an “opinion” as to what the normal age of retirement was. If Air Canada pilots, the only airline pilots in Canada still required to retire at age 60, accounted for more than 50% of the airline pilots in Canada, then age 60 was accepted by the Tribunal and the court as the normal age of retirement.

The numbers had been changing for years, and by 2006, Air Canada did not employ the majority of airline pilots in Canada. Hence the challenge before the Tribunal.

Do you honestly believe that if the fp60 group had approached with some type of compromise or acknowledged a compromise would be needed, instead of forcing the issue on them, that wouldn't have changed the response?

The issue didn’t arise as a group issue, initially. It was George Vilven only. As I mentioned above, when he approached ACPA, he was initially told by one of the senior executives that the union would take up his cause. That was until it got back to the MEC and to the membership.

So it wasn’t the FP60 Coalition, initially. Our group was formed after the Vilven case was already before the Tribunal.

The last few pages of this thread have been focused on whether the monetary issue could have been addressed. That wasn’t the issue before the Tribunal. The issue before the Tribunal was the validity of the termination of employment, given the conditional nature of the mandatory retirement exemption.

Neither GV nor I had any right or authority to negotiate away anyone else’s human rights. That is a statutorily and constitutionally protected right.

So it wasn’t a case of me or anyone else agreeing on age 61, age 62 or any other age of compromise. It was an issue of whether the termination of employment fell within the legal scope of the exemption. And if it didn’t, the termination was illegal. Even if GV had accepted a compromise, the next 1, 2, 10 or 100 pilots may not have. So the issue had to proceed through dispute resolution through the Tribunal. There was nothing to negotiate, and there was no compromise that could possibly have avoided the litigation.

[Fanblade]

Suggesting that we are partly responsible for the impasse is akin to blaming the victim for a crime. If the provisions of the Canadian Human Rights Act had not been violated by the union, there would be no impasse.

Your convieniently wrapping yourself in the human rights act over an issue on money? I never stated you were part of the impasse because you pushed for your rights.

I said you were part of the impasse because you didn't or wouldn't deal with the monetary issues. This forum is filled with the FP60 group, including you, refusing to acknowledge, minimize or deny those monetary issue even exist.

You would have done that for one singular reason.

Trying to position yourself for the money grab.

Your actions speak far far louder than words.

As far as solutions to the monetary issues. Besides being about 10 years too late? It's obvious from posts on this forum that there were ideas. They just weren't exceptable to the FP60 crowd.

Any idea that sought to minimize the monetary issue was declared an act of discrimination in and of itself.

No one was ever going to find a compromise solution with your coalition. This issue was just a ripple when Vilven challenged retirement. Your the leader that took it from a ripple to a title wave. You could have sought compromise. You didn't. Your coalition wanted to stay and you wanted every red cent that would have gained you.

Your no different than the ACPA side. The issue was discrimination. The conflict was money

[Rockie]

For the 12th time Fanblade, what is you think they should have done besides forfeit their rights? How would forfeiting their rights have solved anything, and at what point would you deem it financially acceptable to begin asserting them again?

[Fanblade]

For the 12th time Fanblade, what is you think they should have done besides forfeit their rights?

I'm not suggesting they forfeit their rights. I'm saying they shouldn't have tried to parlay their rights issue into a money grab. That was a choice they made. A choice that helped steer what happened next.

[Understated]

It's obvious from posts on this forum that there were ideas. They just weren't exceptable [sic] to the FP60 crowd. Your [sic] no different than the ACPA side.

Here's an idea that would be acceptable to "the FP60 crowd". How about if you use a spell checker before you hit the send button?

Tell me, which airline, if any hired you, or are you still in Grade school? Surely not Air Canada.

Did you fill out the application form yourself, or did your older sibling handle that for you? How did you get through the literacy test?

Illiterate, illogical, as well is stunningly obstinate. Have you been able to even understand any of the replies to your posts, almost all of which are coherent, logical, and articulate?

[Fanblade]

Car accident. I'm in a hospital bed on my phone. Shhhhhh don't tell anyone my cellular is on. I can't wear my glasses at the moment because of the bandage. No worries though I'm fine.

I think my persistence is directly related to my boredom.

I will put the phone down.

[Fanblade]

Oh yeah. Pain meds too. Prob a poor choice to be on here. Night

[mbav8r]

Thanks Raymond, didn't realize how far back that went, also quite interesting how the demographic shift caused the ratio difference to effectively challenge it.
Do you know when it was Jazz changed retirement to 65, is that when the ratio shifted?

[Understated]

Car accident. I'm in a hospital bed on my phone.

Sounds like you could use a good lawyer. I hear that there are a couple around who aren't in it for the 'monitary' issue.

[Raymond Hall]

Do you know when it was Jazz changed retirement to 65, is that when the ratio shifted?

To answer your question, I have refreshed my memory by re-reading portions of the 2007-2008 Adamson Tribunal transcript.

I had subpoenaed the head of Transport Canada to the Adamson hearing. He testified that Transport Canada removed the airline pilot licence any age restriction in 1985 with the coming into force of the equality provisions of the Charter of Rights and Freedoms that prohibited discrimination on the basis of age. The ICAO restrictions still applied to international airspace, however, including USA airspace. So Jazz pilots over age 60 could fly domestically, but not through USA airspace.

The transcript of testimony of the Jazz manager at the Tribunal hearing in 2007 shows that Jazz changed its restriction long before 2006, and they allowed their over-age 60 pilots to fly domestically only. Difficult to schedule, but they accommodated it.

It is not certain when the numbers actually tipped the scale. In my view, probably around 2000. But by 2006, Air Canada was the only airline in Canada still terminating the employment of pilots at age 60.

One anecdote is interesting. It was because GV, when dead-heading, sat next to a Jazz pilot over age 60, in 2003 (or perhaps earlier) that he became aware of the fact that other airlines allowed pilots over age 60 to continue working. That was the genus of his complaint with the CHRC. Because of Air Canada's then CCAA proceedings, the complaint did not get accepted until some time later.

[Raymond Hall]

Your convieniently wrapping yourself in the human rights act over an issue on money? ... I said you were part of the impasse because you didn't or wouldn't deal with the monetary issues. This forum is filled with the FP60 group, including you, refusing to acknowledge, minimize or deny those monetary issue even exist. You would have done that for one singular reason. Trying to position yourself for the money grab.

I asked you earlier to not insult me by accusing me of greed. First you acknowledged that my actions have been without benefit to myself and apologized to me for implying otherwise, but now, only a few posts later, you proceed to insult me by expressly accusing me of engaging in a money grab.

I don't know how many times each of us have told you that there was no monetary solution, that there were logistical and other constraints to choosing any path other than the one taken, and that if you believe there was something we could have done to resolve the monetary issue, you should let us in on the secret so that we can all put an end to this saga. You continue to answer with platitudes and insults without addressing the questions posed to you.

We have your point. Now, please, allow this discussion to continue to focus on the remaining issues before us.

[Rockie]

For the 12th time Fanblade, what is you think they should have done besides forfeit their rights?

I'm not suggesting they forfeit their rights. I'm saying they shouldn't have tried to parlay their rights issue into a money grab. That was a choice they made. A choice that helped steer what happened next.

What is this "money grab" you keep referring to? Air Canada was discriminating against its pilots and the union shamefully refused to help make them stop, in fact the union undertook a legal fight to maintain age discrimination against their own members. Unbelievable. As a result the only avenue ACPA left open to the pilots discriminated against was to file a complaint with the CHRT, and they have no control over what remedy - if any - the CHRT assigns. They are not suing for money.

To my knowledge the first human rights challenge to age 60 at Air Canada occurred as early as 1981 by Ross Stevenson (could have been one earlier that I'm not aware of). From at least that day forward mandatory retirement's days were numbered as in succession every jurisdiction in the country did away with the normal age of retirement provision culminating with the Federal Government in 2012. By my rudimentary math skills that's 31 years the union had to prepare our compensation scheme to accommodate for that inevitable day. 31 years.

These are the facts. Learn them before you level baseless insults and accusations at people who went to bat for your rights.

[tailgunner]

Ok, I'll bite
What about agreeing to have ones seniority number revert to the bottom of the list at 60+1 day. The applicants get to continue their beloved career, while not impeding those immediately behind them on the list?
Human rights would be respected and career progression upheld for those behind.
Acceptable or not?
Cheers.

[Raymond Hall]

Ok, I'll bite
What about agreeing to have ones seniority number revert to the bottom of the list at 60+1 day. The applicants get to continue their beloved career, while not impeding those immediately behind them on the list?
Human rights would be respected and career progression upheld for those behind.
Acceptable or not?

You call it po-ta-toe, I call it po-tah-to, you call it to-ma-toe, I call it to-mah-to. Or, as Gertrude Stein so eloquently stated, "A rose is a rose is a rose."

Contrary to the above assertion, human rights would not be respected. Age discrimination is age discrimination, period.

There seems to be a fundamental perception error among many here. The issue not just the pilot income system. The issue is the applicability of the federal law prohibiting discrimination. It is not about coming to some sort of negotiated settlement to make the issue go away. The issue is about bringing the collective agreement into line with the law. Thinking about it in any narrower terms leads only to litigation and wasted expense.

All of the other Air Canada unions understood the issue clearly, and ended mandatory retirement at age 65 for their members immediately after we won the Federal Court Charter decision. No litigation, not judicial review.