Disability Benefits For Pilots Over Age 60

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Raymond Hall
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Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Sat May 19, 2018 11:01 pm

In January the Canadian Human Rights Tribunal held a hearing in Vancouver on behalf of an Air Canada pilot who had filed a complaint that challenged the legality of the provisions of law that permit the employer and the union to totally deny disability benefit coverage to all Air Canada pilots who are entitled to retire with an unreduced pension—namely, every pilot who is over age 60 and who has accumulated a minimum 25 years of service with Air Canada; i.e. the mainline and its predecessors—the provisions do not encompass pilots recently hired on the Jazz flow-through, even though some of those pilots are over age 60, because years of service at the mainline is one of the criteria.

According to the Air Canada / ACPA Contract, pilots who meet the above age/service criteria and who become temporarily disabled, once they have exhausted their sick leave and vacation credits, are forced onto an unpaid leave of absence with no income and no employment benefits whatsoever. Because of the denial of any disability income, these temporarily disabled pilots are then forced to choose between having no income while they attempt to regain their medical and their career, and taking retirement, ending their career early, and taking their pension in order to meet their monthly financial obligations. Recent examples include a pilot who fell off a roof, a pilot who had heart trouble, and a pilot who had intestinal surgery, all of whom had a realistic expectation of returning to work for several years, absent the need to pay their bills while recuperating. Being able to get over the income gap would have enabled them to top up their best 60 months of income for pension determination and to continue contributing their professional skills to their employer.

The collective agreement provision permitting this outcome appears to be in accordance with the present law. The regulations enacted pursuant to the Canadian Human Rights Act allow this practice. The essence of the issue before the Tribunal in the January hearing, therefore, was whether those regulations are in violation of the Charter of Rights and Freedoms equality provisions that preclude discrimination on the basis of age (Section 15) and if so, whether the regulations are justified under Section 1 of the Charter (namely, "subject only to such reasonable limits prescribed by law that can be reasonably justified in a free and democratic society.")

The Tribunal, at the end of the hearing in January, reserved its decision. The actual hearing itself had been delayed for several months in anticipation of decision of a similar case before the Ontario Human Rights Tribunal involving a school teacher. That case dealt not with long-term disability, but with supplementary employment benefits that were denied to the individual once he turned 65, including life insurance, health insurance, dental benefits as well as spousal health insurance benefits. The legal issues in both cases are closely similar, although the specific subject matter of the issues in the two cases is slightly different and the applicable laws involve separate Canadian jurisdictions. Both involve a Charter challenge to the validity of the respective applicable regulations. The legal principles underlying the respective Charter challenges are identical.

On Friday, the Ontario Human Rights Tribunal released its decision regarding the Ontario teacher's challenge to the Ontario law, finding in favour of the complainant. The OHRT stated in its decision that the Ontario regulations did indeed violate the equality provisions of the Charter and that they were not justified under Section 1 of the Charter. In other words, the regulations exempting those benefits from the law prohibiting discrimination on the basis of age were of no force and effect, rendering the collective agreement provisions denying him supplementary health benefits contrary to law.

It should be noted that the Ontario HRT case dealt only with supplemental health benefits, not with income (long term disability), as in the Air Canada pilot complaint before the CHRT. Obviously the evidence regarding the two issues is necessarily different. However, as the OHRT decision clearly points out, case law from the Supreme Court of Canada dictates that the onus rests with the employer (and/or the government), once a regulation is found to be contrary to Section 15 of the Charter, to demonstrate that the regulation can be saved by Section 1 of the Charter. The Tribunal found that both the respondent School Board and the Attorney General of Ontario failed to satisfy that onus, as the evidence showed that some of the benefits could be provided by less drastic means than an absolute cut-off at a specific age.

It remains to be seen whether the Ontario decision will influence the CHRT decision for Air Canada pilots. The CHRT decision in the Vancouver case has not yet been released and the Tribunal could still seek submissions by counsel in respect of the import of the Ontario decision to the CHRT question, prior to making its final determination of the case before it.

I have posted a copy of the OHRT decision on the Fly Past 60 web site at the following link: www.FlyPast60.com/Documents/Talos.pdf.

[Note: I have edited this post to add additional comments after originally posting it.]
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Re: Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Sun May 20, 2018 12:32 pm

I would like to add a clarification to the above post with respect to "jurisdiction."

In Canada there are 14 separate jurisdictions, namely the federal jurisdiction plus the jurisdiction of each of the ten Provinces and the three Territories. Jurisdiction is primarily determined by the Constitution, although there are some areas of the law with overlapping jurisdiction.

The federal jurisdiction technically has no physical boundaries. Federal law applies in all of the Provinces and Territories, but it is distinguished by the subject of the law. Federal jurisdiction encompasses most extra-provincial matters, including transportation (aviation, inter-provincial trucking, shipping and maritime law), immigration, banking, intellectual property, and criminal law, among others.

Provincial jurisdiction encompasses property and civil rights, family law, intra-provincial transportation (e.g. Highway Traffic and vehicle licensing), education, and health care etc.

Human rights laws fall under the particular jurisdiction of the subject matter. Human rights issues in aviation, banking, immigration etc. fall under federal jurisdiction. Human rights in education, property (e.g. housing and rentals), health care etc. fall under provincial jurisdiction.

Hence, the teacher case in Ontario was put before the provincial Ontario Human Rights Tribunal. Aviation cases go before the federal Canadian Human Rights Tribunal that holds hearings throughout the country from St. John's to Prince Rupert.

Decisions by one Tribunal are not binding on another Tribunal, although they are generally influential, and the various Tribunals generally attempt to achieve consistency in the results.
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Re: Disability Benefits For Pilots Over Age 60

Post by confusedalot » Sun May 20, 2018 10:12 pm

I have read the thread with great interest. I never was an air canada pilot. I understand the concern, but the realities of life tend to interfere at times, and tribunals frankly do not care about these realities.

Two examples;

One with a heart condition, at an early age, lost his job. Lost his air canada career. A person I know.

One with the most silly of things, cataracts. That would be me, at age 58. Can't get better than 20/40 min one of the eyes, so it is a disqualifier. Yes, yes, it will be corrected and I will eventually get a medical, but the fact of the matter is, I am shit out of luck. No insurance company would pay me anything. No matter who I worked for, I do not meet minimum medical requirements. Period. So no job.

I do not think that disability benefits cover these sort of situations, nor were they designed to. If they did, premiums would be through the roof.

As much as I would like to see a pilot who lost a leg in a car accident covered forever, for example, I cannot see how this, or, these sort of situations, being paid out by insurance companies.

Nobody will pay out anything more than the basic and very low loss of license insurance described in the two above examples.

60 or over, in the same boat. You can be covered, or you can not be covered.
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Re: Disability Benefits For Pilots Over Age 60

Post by pigboat » Mon May 21, 2018 3:59 am

Raymond,

Thanks for posting this. As you know , ACPA does not tell the members about the case OR their non supportive position they have taken in this case. They continue to think that silence is golden and they have their own agenda.

Regards
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Re: Disability Benefits For Pilots Over Age 60

Post by fish4life » Mon May 21, 2018 7:00 am

Better question, why is someone working past 60 anyway? Retire and enjoy life
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Re: Disability Benefits For Pilots Over Age 60

Post by Rockie » Mon May 21, 2018 8:27 am

fish4life wrote:
Mon May 21, 2018 7:00 am
Retire and enjoy life
Did you know it's possible to be employed and enjoy life at the same time?

It's about time this disability issue was addressed. If someone over 60 breaks a leg or some other temporary condition there's no reason they should be excluded from the same disability protections a co-worker under 60 has.
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Re: Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Mon May 21, 2018 8:45 am

fish4life wrote:
Mon May 21, 2018 7:00 am
Better question, why is someone working past 60 anyway? Retire and enjoy life
That suggestion may succeed before the union, but it likely doesn't have much chance of success before a Tribunal decides law, not politics.

The issue of mandatory retirement at age 60 was concluded with the repeal of the legal exemption to mandatory retirement in the Canadian Human Rights Act, over five years ago. This is not about, or should not be about, forced retirement at any age. That is now contrary to law, save for specific limited exemptions such as the bona fide occupational requirement. As Rockie states above, the issue is why the law permits total denial of disability insurance based on an arbitrary age. Instead it should be based upon actuarial evidence regarding the cost of providing insurance against the peril of temporary wage loss. Note that it is the cost of the insurance regarding temporary wage loss, not the cost of the wage loss that is in question.

In respect of the regulations in question here, the present regulation (enacted in 1980, prior to the coming into force of the Charter equality provisions in 1985 and prior to the repeal of the mandatory retirement exemption in 2012) permits an absolute denial of disability insurance at an arbitrary age to persons suffering from a temporary disability, without any requirement to show that there is an economic justification for the denial.

That is the core issue that was addressed in the Ontario decision; namely, does the law minimally impair the rights of the individual to be free from discrimination on the basis of age, per Section 1 of the Charter? That is a legal question.

Of course, there are organizational political questions that flow from this legal question and its corresponding fact situations, including the union's position with respect to representing the interests of a minority, versus a majority. That issue was also referred to in the Ontario decision, at Paragraph [258], where the Tribunal said, "The result in the instant case is consistent with the undisputed opinion of the labour relations experts that minority interests cannot be assured through a collective bargaining process that by design favours majority interests."
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Re: Disability Benefits For Pilots Over Age 60

Post by Fanblade » Mon May 21, 2018 8:48 am

pigboat wrote:
Mon May 21, 2018 3:59 am
Raymond,

Thanks for posting this. As you know , ACPA does not tell the members about the case OR their non supportive position they have taken in this case. They continue to think that silence is golden and they have their own agenda.

Regards
I believe the concern is that insuring pilots over 60 could get very expensive. The added cost will likely exert pressure to reduce the disability benefit for everyone. Any attempt to mitigate the cost increase by targeting a specific age demographic (which insurance normally does) will be challenged as age discrimination. So the risk is everyone takes a benefit decrease to mitigate the cost increase.

Does the 62 year old with a 6 figure pension available really need insurance? Should the 35 year old with a family to support have his benefit lowered so the 62 year old can have insurance?

But in today’s paradigm those issues have no relevance. This will be decided on the 62 year olds rights under the charter. The 35 year olds concerns will be listened too but will be rejected because he has no such rights under the charter.

End of story. The only thing anyone can do is drag thier feet in an attempt to delay the inevitable. Eventually they will win thier rights to insurance. And eventually during a crisis everyone will see a benefit decrease.
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Re: Disability Benefits For Pilots Over Age 60

Post by Rockie » Mon May 21, 2018 9:04 am

Fanblade wrote:
Mon May 21, 2018 8:48 am
I believe the concern is that insuring pilots over 60 could get very expensive. The added cost will likely exert pressure to reduce the disability benefit for everyone. Any attempt to mitigate the cost increase by targeting a specific age demographic (which insurance normally does) will be challenged as age discrimination. So the risk is everyone takes a benefit decrease to mitigate the cost increase.
I have term insurance that I'm paying a lot more for now than I used to because of my age. I have no problem with that as long as it's based on actual statistical data, not perceived risk. Paying more for insurance as age increases however is not the issue, the issue is being excluded altogether based on nothing more than an arbitrary age determined in the past in conjunction with a retirement policy that is now illegal.

Whether the individual may or may not be eligible for a pension is irrelevant.
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Re: Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Mon May 21, 2018 9:10 am

Fanblade wrote:
Mon May 21, 2018 8:48 am

I believe the concern is that insuring pilots over 60 could get very expensive. The added cost will likely exert pressure to reduce the disability benefit for everyone. Any attempt to mitigate the cost increase by targeting a specific age demographic (which insurance normally does) will be challenged as age discrimination. So the risk is everyone takes a benefit decrease to mitigate the cost increase.
That is the underlying basis for the argument in favour of the denial. However, the Ontario Tribunal stated that the decision should be based upon fact, not speculation. In the Ontario case, neither the School Board nor the Attorney General provided any actuarial evidence to support its speculative claim supporting the cost argument in favour of denial. The Tribunal did not rule out the possibility that the benefit coverage could be accounted for by a costing mechanism that balanced the needs of the younger and older workers. What it based its decision on was the fact that there was no actuarial evidence provided to show that the absolute denial was justified. The employer failed to discharge its onus. In fact, with regard to health benefits, the evidence was to the contrary in that case--the cost of the benefits was not prohibitive.

That may not be the case with income insurance (for long-term disability) in the Vancouver case, as opposed to health benefit insurance in question in the Ontario case. But the point is that the decision to deny benefits must minimally impair the rights of the individuals, and that minimal impairment must be justified on the basis of evidence, actuarial evidence, not speculation. And not the decision of the majority to superimpose its will over legal rights of the minority.

There is no certainty, given the difference in the subject matter of the two cases (benefit insurance versus wage loss insurance) that the Vancouver case decision will be decided in favour of the complainant. But the issue is one that likely will not go away any time soon.
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Re: Disability Benefits For Pilots Over Age 60

Post by '97 Tercel » Mon May 21, 2018 11:25 am

Recent examples include a pilot who fell off a roof..
Unless you're a professional, you hire someone to go on your roof.

Denied........
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Re: Disability Benefits For Pilots Over Age 60

Post by Rockie » Mon May 21, 2018 12:34 pm

'97 Tercel wrote:
Mon May 21, 2018 11:25 am
Recent examples include a pilot who fell off a roof..
Unless you're a professional, you hire someone to go on your roof.

Denied........
Well, let's hope normal life doesn't befall you in any detrimental way and you get thrown off and under the bus.
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Re: Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Mon May 21, 2018 12:50 pm

'97 Tercel wrote:
Mon May 21, 2018 11:25 am
Unless you're a professional, you hire someone to go on your roof.
The issue is not about the cause of the disability—it is about the fact of the disability. Who is not subject to getting hit by a drunk driver or suffering from a significant medical complication, or from any other number of relatively random perils that insurance is designed to compensate?

In the circumstances of the instant collective agreement, one goes from having full coverage one day to having zero coverage the next day. There is no sliding scale and no transition period.

Show me any one pilot, regardless of age, who can go from earning six figures, not necessarily even top dollars, to having their income reduced to zero dollars for a single month, let alone a whole year!
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Re: Disability Benefits For Pilots Over Age 60

Post by Old fella » Mon May 21, 2018 12:56 pm

Rockie wrote:
Mon May 21, 2018 8:27 am
fish4life wrote:
Mon May 21, 2018 7:00 am
Retire and enjoy life
Did you know it's possible to be employed and enjoy life at the same time?

It's about time this disability issue was addressed. If someone over 60 breaks a leg or some other temporary condition there's no reason they should be excluded from the same disability protections a co-worker under 60 has.
Question. If a pilot at AC regardless of age looses his/her medical due serious illness or injury and is unable to hold a license would Air Canada try to find employment within say in the training department ground school teaching and doing simulator training and currency check rides in the sim. Pardon my airline ignorance but isn’t there technical operations sections as well and is there options for pilots as well. Just asking that is all.
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Re: Disability Benefits For Pilots Over Age 60

Post by altiplano » Mon May 21, 2018 2:19 pm

I know a 777 Captain who was roofing on the side for $250/day or something like that...

I told him he's crazy, he makes more than that in an hour, but he likes it because it's cash under the table that his ex-wife can't get...

I haven't seen him in a while though... I wonder?
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Re: Disability Benefits For Pilots Over Age 60

Post by Rockie » Mon May 21, 2018 2:20 pm

Old fella wrote:
Mon May 21, 2018 12:56 pm
Question. If a pilot at AC regardless of age looses his/her medical due serious illness or injury and is unable to hold a license would Air Canada try to find employment within say in the training department ground school teaching and doing simulator training and currency check rides in the sim. Pardon my airline ignorance but isn’t there technical operations sections as well and is there options for pilots as well. Just asking that is all.
Yes, that can happen. But the person has to be medically and mentally capable of doing another job, they have to be able to do the job from a competency standpoint, and there has to be a corporate need for someone in that position that the company is prepared to hire that person for. That and a whole host of other considerations too numerous to list make it far from a reliably viable alternative.
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Re: Disability Benefits For Pilots Over Age 60

Post by Victory » Mon May 21, 2018 3:26 pm

Raymond Hall wrote:
Mon May 21, 2018 12:50 pm
Show me any one pilot, regardless of age, who can go from earning six figures, not necessarily even top dollars, to having their income reduced to zero dollars for a single month, let alone a whole year!
Really? I thought a ~6 month safety fund was pretty standard for people in first world countries. Why would anyone earning six figures not have enough of a nest egg to live for a single month?
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Re: Disability Benefits For Pilots Over Age 60

Post by Old fella » Mon May 21, 2018 4:17 pm

Rockie wrote:
Mon May 21, 2018 8:27 am
fish4life wrote:
Mon May 21, 2018 7:00 am
Retire and enjoy life
Did you know it's possible to be employed and enjoy life at the same time?

It's about time this disability issue was addressed. If someone over 60 breaks a leg or some other temporary condition there's no reason they should be excluded from the same disability protections a co-worker under 60 has.
I find this hard to understand with your company(AC) that an over 60 yr pilot cannot avail him/her self of disability protection should unforeseen circumstances place them in such a situation unless in my ignorance of things AC I am missing the obvious.
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Re: Disability Benefits For Pilots Over Age 60

Post by Raymond Hall » Mon May 21, 2018 5:04 pm

Old fella wrote:
Mon May 21, 2018 4:17 pm
I find this hard to understand with your company(AC) that an over 60 yr pilot cannot avail him/her self of disability protection should unforeseen circumstances place them in such a situation ...
Here is a partial explanation.

Prior to the elimination of mandatory retirement, this was not an issue, even though the language in the collective agreement has not changed. Because every pilot was forced to retire at age 60, no-one had to deal with a loss of disability insurance after age 60. When the mandatory retirement exemption in the Canadian Human Rights Act was repealed, effective December 15, 2012, pilots were able to continue working beyond age 60. Air Canada pilots now can be employed until they turn 65. Although there is no law in Canada that precludes them being employed beyond age 65, they cannot operate flights into or through USA airspace because the FAA does not recognize the licence of Part 121 pilots who are age 65 and older. The majority of Air Canada flights operate into or through USA airspace, or they carry USA alternates. No-one has challenged the forced retirement of pilots at age 65 because it is unlikely that a challenge would be successful, given the nature of Air Canada's operations re USA airspace. Employer's can't be forced to continue employing workers that can't meet the job requirements. That exemption is referred to as a bona fide occupational requirement (BFOR).

Here is the nub. The federal regulations regarding disability benefits were promulgated in 1980 when it was contemplated, for the most part, that all workers would retire at the normal age of retirement. For almost everyone in the country, that was age 65. For Air Canada pilots it was age 60. Those regulations have not been updated since 1980, despite the repeal of the federal mandatory retirement exemption in 2012, and the Ontario exemption years earlier. There is nothing stopping employers and unions providing disability insurance coverage to persons who are entitled to an unreduced pension and who choose to stay employed beyond that point, but the unchanged regulations now permit them to avoid doing so. Employers and unions are thus put in the position of having to "negotiate" a change to their respective collective agreements and disability plans, absent a change in the law, if they want to provide those benefits. And whenever there are negotiations, there are those who benefit and those who lose. Insurance comes at a cost. Politics and priorities result in different trade-offs and outcomes regarding those costs, no matter how insignificant. If no agreement is reached, the status quo remains.

It was on the basis of the failure of Parliament (in the case of the federal jurisdiction) and the Legislature (in the case of the Ontario jurisdiction) to update the regulations following the repeal of the mandatory retirement exemptions in the respective statutes that individuals and unions wanting to get the disability insurance provisions changed have been forced to challenge the regulations under the provisions of the Charter of Rights and Freedoms in order to get them changed.

In short, until either the regulations change (or are struck down as being unconstitutional), or changes are negotiated to the individual collective agreements, age discrimination with respect to disability insurance benefits will continue. The present discrimination is not a result of a conscious decision to discriminate. Rather, it is a result of a failure to amend the regulations and/or the respective collective agreements to prevent the resulting discrimination, once the legislative goal posts were moved.
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Re: Disability Benefits For Pilots Over Age 60

Post by confusedalot » Mon May 21, 2018 5:07 pm

Rockie wrote:
Mon May 21, 2018 2:20 pm
Old fella wrote:
Mon May 21, 2018 12:56 pm
Question. If a pilot at AC regardless of age looses his/her medical due serious illness or injury and is unable to hold a license would Air Canada try to find employment within say in the training department ground school teaching and doing simulator training and currency check rides in the sim. Pardon my airline ignorance but isn’t there technical operations sections as well and is there options for pilots as well. Just asking that is all.
Yes, that can happen. But the person has to be medically and mentally capable of doing another job, they have to be able to do the job from a competency standpoint, and there has to be a corporate need for someone in that position that the company is prepared to hire that person for. That and a whole host of other considerations too numerous to list make it far from a reliably viable alternative.
So the answer, after smoke and mirrors, is that it is possible, but nowhere near probable. No medical, shit out of luck. It's a hard world out there, those who are lucky have safety nets, I would say that 95% of the general population don't.
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Re: Disability Benefits For Pilots Over Age 60

Post by yycflyguy » Tue May 22, 2018 10:28 am

HERE WE GO AGAIN! :roll:
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Re: Disability Benefits For Pilots Over Age 60

Post by Noo » Tue May 22, 2018 11:02 am

If they wanted to work past 60 why wouldn't they make sure the contract provides disability benefits for that age range? Especially when they didn't have the financial means to make ends meet if they had a health problem. 60-65 would be the most likely time that you are going to experience health issues in your career. If you don't have the money to look after yourself then retire at 60 and take your pension. This just seems crazy to me.

I shudder to think what disability benefits for 60-65 are going to cost the other pilots at Air Canada during the next contract negotiation.
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Re: Disability Benefits For Pilots Over Age 60

Post by Old fella » Tue May 22, 2018 12:48 pm

So let me understand this as somebody outside looking in, an AC pilot beyond 60 yrs of age cannot get any type of disability financial compensation should he/she be unable to perform their duties in the cockpit. The only redress available is to go on immediate pension which 60 yrs of age and above is unreduced in order to receive income. If so well that is blatant discrimination because pilots can do their jobs until 65 yrs as their best before date expires then.
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Re: Disability Benefits For Pilots Over Age 60

Post by altiplano » Tue May 22, 2018 12:56 pm

No, it's if they HAVE and are eligible for an unreduced pension, they are ineligible for disability.

ie.25+ pensionable years at AC and 60+ years old.

If you aren't eligible for an unreduced pension, and are over 60, you ARE eligible for disability.
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Re: Disability Benefits For Pilots Over Age 60

Post by altiplano » Tue May 22, 2018 1:03 pm

25-40 years in a well paid job, and a pension waiting that pays above the average Canadian salary.

Hardly discrimination... you can't be backstopped for every eventuality in this world... That's just the way it goes... fill your bank account while you can, and know you have full disability until you need your full pension... it's a pretty decent deal.
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