AVCANADA

Yes Rockie. You lose.

Perhaps I am a little thick, but can someone please explain for me how the Tribunal concluded that it would cause Air Canada undue hardship to continue the employment of Vilven, Kelly or any other First Officer, for that matter, based on the ICAO requirements, when ICAO places no restrictions whatsoever, age or otherwise, on First Officers? What did the Tribunal see that I apparently can't see?

The good thing about a decision that is so bad and one sided, is that it will be probably be thrown out in its entirety at appeal. Maybe the decision was a subliminal message that we should all hang up our wings before we turn 83.
The fat lady ain't finished singing by a long shot.
Just going to take a little longer and a whole lot more expensive to all parties.
Meanwhile the clock is still ticking as far as the damages are concerned. Thats what I would be worried about. Even if the damages are just limited to what Vilven and Kelly were awarded, with over 200 litigants now, at $120,000.00/annum equals roughly $24,000,000.00 / annum divided in half is only about $4000.00/ pilot/annum.
Tic toc.....Tic toc.....

What he conveniently omitted is that A320 crews are nowhere near retirement and the possibility of having 60+ Captain paired with a 60+ FO is practically non-existent. Air Canada would have to go out of their way to create a crew composition like that, and even then I doubt they could do it no matter how hard they tried.

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Your language toward Justice Craig is becoming offensive IMO.

There have been several retirements off the A320 in recent months with many more in the immediate future.

Guys,

Your language toward Justice Craig is becoming offensive IMO. You can disagree without slander? No?

His ruling is logical. You may not agree with it. But it is still logical. Well thought out and articulate.

Meiorin test



ICAO over under rule



ICAO over under rule impact on scheduling.


AC has two choices for accommodation that Justice Craig determined both amounted to hardship.

1) Hire more people. Add extra positions. Doesn't guarantee under 60 pilots will even get the position. Considered hardship

2) Negotiate with ACPA changes to the collective agreement that strip seniority rights. The bargaining capital that would take he considered to be hardship. We all know ACPA will demand that everyone still get paid what they could hold based on seniority rights, not where they are assigned due to scheduling. Considered hardship.

So the logic is there. It is whether you agree with it. Yes it is very pro business all of a sudden. Coughharpergov't. Mr. Hall has a good point. The ruling allows employers to contract out of human rights. With that said I think we have heard repeatedly that at some point human rights and labor law will collide.

It looks like it just did.

No other carrier in North America has an issue with any of it. You know that. We all know that. Mr. Sinclair knows that. The Federal Court will see that. How do we know that? Because after you're forced out the door by ACPA you can trot over to any of the other carriers and get a job. All that evidence was crystal clear in Thwaites. It will be crystal clear in Federal Court. Mr. Craig had virtually none of it and the process relies entirely on evidence. You cannot plug your own evidence into a blank page.

Another question that the ruling failed to consider, and Air Canada certainly never offered, is whether over 60 Captains and FO's would rather have their bidding rights curtailed somewhat to ensure no negative scheduling impact at all, or simply cashiered out the door at age 60? What do you think they would choose yycflyguy?

The Tribunal can not inject its self into the collective bargaining process to fix this issue for AC.

In the course of my re-determination, I have read and considered Justice Mactavish’s reasons for judgement and I have examined and considered, in its entirety, the evidence of Captain Steven Christopher Duke (Captain Duke), a witness called by Air Canada on the issue of accommodation

My read of this section of the ruling in the context of what was being addressed, is intended to emphasis he read AC's submission in its entirety as required by the instruction of the Federal court. To give full consideration to their submission. It does not imply he read nothing else. Unless you have something else to point at to substantiate this claim I would suggest you do a little more research until jumping to conclusions that are suspect at best.

And I suggest you go back and re-read all the other rulings on the issue by the CHRT. They all discuss in detail the balance of evidence they used to support their finding. In Mr. Craig's ruling there is no balance, there is no mention whatsoever of any evidence besides Air Canada's. Because there was none.

If Mr. Craig's ruling is as logical as you say it is don't you think he would have gone to some effort to explain the balanced rationale behind his decision? Doesn't that sound logical to you?

I get that. The difference here is opposition from the collective bargaining agent. In the opinion of Justice Craig forcing AC on its knees before ACPA, to beg for a scheduling solution, amounts to hardship. ACPA will make demands that will cost AC dollars. The Tribunal can not inject its self into the collective bargaining process to fix this issue for AC.

You can agree with it or not. He has a point.

accumulous,

Your over the top on your post. Just think about how the union will respond. I am not saying this is a justifiable reason for a BFOR. I am saying justice Craig has a point. That is it.

ACPA will demand that no financial harm happens to anyone as a result of any seniority rights changes required for accommodation. That will mean in some cases FO's being payed CA wage if demotion is required for scheduling. Individuals being payed for a higher rated aircraft that they can hold based on seniority, but can not sit on, due to scheduling restrictions.

Think of this from the bargaining units perspective. Who takes the demotion if it is required? Does that person also take the pay cut? Demanding that no one individual has to pay the price for accommodation seems like a reasonable stance. I does to me. I don't want to be singled out. I am sure you don't either.

Meaning from the companies perspective they will have to pony up the cash to pay some pilots more cash than contractually required to accommodate post 60 pilots. The company is calling this hardship.

The same hardship if fuel burns increased to avoid certain airspace. The same hardship if block hours increased, and as a result pilots required increased, to avoid certain airspace.

Essentially the company argues that due to their contract with ACPA and there inability to change it without negotiation, post 60 pilots will cost money than pre 60 pilots and that amounts to hardship. They claim post 60 pilots can not perform the same job, for the same cost, as an under 60 pilot.

I have no idea if this is a position that will stand the test of review. All I am saying is that there is a logical point in this. I see the point the company is making. I can see how Justice Craig came to the conclusion he did. I also see the point Mr. Hall is making.

The review courts will sort this out. A previously entered contract, entered into in good faith, will or won't be considered legitimate hardship.

I object to the insinuation on this board that this ruling is somehow idiotic. It is not. Some of the comments by a few posters is way over the top. Particularly the ageism comments. You may not agree with the logic or the opinion. It does not mean it can't be refuted with respect.

62 The employer’s third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. … It may be ideal from the employer’s perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship.

...

64 Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances.

65 Some of the important questions that may be asked in the course of the analysis include:

(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?

(b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

(c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?

67 If the prima facie discriminatory standard is not reasonably necessary for the employer to accomplish its legitimate purpose or, to put it another way, if individual differences may be accommodated without imposing undue hardship on the employer, then the standard is not a BFOR. The employer has failed to establish a defence to the charge of discrimination.