Fed Ct Overturns Tribunal Dismissal of Age 60 Complaints

[Raymond Hall]

The Federal Court today released its long-awaited decision regarding three judicial reviews of cases heard by the Canadian Human Rights Tribunal in 2007 and 2008 (the "Thwaites" decision).

There were three separate judicial reviews of the single 2011 decision under consideration. The first was filed by the "Coalition Complainants" alleging that the Tribunal had erred in its determination of which groups of pilots constituted what may be termed as the "comparator pilots" to Air Canada Pilots.

The second was filed by Air Canada, arguing that the Tribunal erred in dismissing its arguments regarding the alleged bona fide occupational requirement (BFOR) of terminating the employment of pilots over age 60.

The third was filed by ACPA, arguing that the adverse impact on the career earnings of junior pilots resulting from the end of mandatory retirement would result in the loss of substantial career income of those pilots, and thus formed the basis of an undue hardship argument necessary to justify maintaining the mandatory retirement provision, pursuant to the law on BFOR.

The Court overturned the Tribunal's decision on two of the three components: first, it said that the Tribunal's decision that pilots working for carriers that compete with Air Canada (esp. WestJet and Air Transat) did not perform work similar to Air Canada pilots was incorrect. Second, it said that the alleged harm to the career income potential of junior pilots was something that the Tribunal should have considered in its decision. Finally, it dismissed Air Canada's argument that it had demonstrated that employing pilots over age 60 would result in undue hardship as a result of scheduling difficulties.

The decision now goes back to the Tribunal for reconsideration, according to the reasons of the Court.

I will be posting the decision on the Fly Past 60 website shortly.

The major upshot of this decision, it should be noted, is that where many thought that the issues raised by the Fly Past Coalition had been dealt with, with finality, the result of this decision is that the complaints of the over 200 pilots who have ongoing claims before the Commission and the Tribunal are very real, with very substantial liability to both the union and the employer (big numbers....). More importantly, the potential outcome includes the reinstatement of employment of those of the over 200 who may wish to continue their professional work.

[ahramin]

So where does it go now? Back to the same tribunal that produced the earlier results?

[Rockie]

I commend you Raymond for your dedication against what have been ferocious odds and nonsensical opposition to obvious trends in societal norms.

Society morality and ethics change, and it embarrasses me greatly that our pilot group is among the very last to recognize that.

[Raymond Hall]

I commend you Raymond for your dedication against what have been ferocious odds and nonsensical opposition to obvious trends in societal norms.

Thank you, Rockie, but it isn't about me. Since 2006, I have simply stated my firm belief that what was going to transpire (and what has now transpired) with respect to mandatory retirement was not only inevitable but also entirely predictable. It is unfortunate, in my view, that many, instead of seriously considering the message, chose to simply discredit the messenger. So be it.

Nevertheless, that same message is now clearly stated by the Court. I have posted the decision on the Fly Past 60 web site:

http://www.FlyPast60.com/Documents/2014FC83.pdf

I have also posted a general update on the site, to provide some background to the decision as well as a personal preliminary analysis of the implications of the decision:

http://www.FlyPast60.com/Update.htm

[Raymond Hall]

So where does it go now? Back to the same tribunal that produced the earlier results?

Yes, according to the directions of the Court, not only to the same Tribunal but to the same member of the Tribunal.

Also, given the huge potential financial implications of the decision, I would be very surprised in one or more of the three major parts of the decision don't wind up before the Federal Court of Appeal.

[Masters Off]

I guess as an outsider to the subject, I've never quite understood this completely.

If I can pass my medical, sim ride and all applicable testing, stay within good standing with the company and do my job every day, how is it that on a given arbitrary day that my employment should be terminated. Who says 60 is the ripe age to stop being in control, (as opposed to RP, F/O, etc.)

Sounds great for AC, means you really can't get paid all that much if the end is near. Genius writing the contract with the ACPA, most likely saved thousands in pay, limiting how high up the chain guys could get over all those years.

[turbo-beaver]

where does 'good standing with the company' fit in?
they were trying to fire me for the last 20 years of my career there.......I think when I retired, I was the most highly suspended pilot in history.....now that all those managers are mostly gone, I cant wait to come back in my golden years without all those junkyard dogs nipping at my heels......but then again......I hear they are still having problems with the augment issues and might need a little help

[TheStig]

I guess as an outsider to the subject, I've never quite understood this completely.

Sounds great for AC, means you really can't get paid all that much if the end is near. Genius writing the contract with the ACPA, most likely saved thousands in pay, limiting how high up the chain guys could get over all those years.

Good ol' nonsensical ACPA bashing. Each position is paid at a given rate. Every Air Canada wide body Captain earns the 12th year pay rate for their type. It doesn't matter if they're 45 or 60 (etc). Somebody retires…somebody else moves up the ladder, somebody doesn't retire…the pilot below stays put.

[TheStig]

So where does it go now? Back to the same tribunal that produced the earlier results?

Yes, according to the directions of the Court, not only to the same Tribunal but to the same member of the Tribunal.

Also, given the huge potential financial implications of the decision, I would be very surprised in one or more of the three major parts of the decision don't wind up before the Federal Court of Appeal.

It seems only one side of this story is being told here so I thought I'd post a bit of the ruling here for everyone to read.

One aspect that does not appear to have been referred to in this discussion is that the collective agreement was set up specifically to favour older workers under a rigid seniority regime. As I understand the scheme, this was done by providing older pilots with highly generous economic benefits and better working conditions as they approached the end of their careers. This was made possible by the pilots receiving considerably less in the way of returns, while requiring more effort to achieve them, when younger. In other words, the generous benefits and working conditions made available to older pilots depended on the effort and hardship put in as younger workers.

Any claim therefore, for additional benefits by staying on after the agreed-upon retirement date would not have been “earned”. It would be similar to making contributions X to an RRSP to produce Y results over 35 years. But when the time comes to withdraw funds after 35 years, the pilot asks for Y, plus an additional amount on top of that.

Nor is it arguable that an exception should be made to the age of retirement for those pilots who entered Air Canada late and therefore may have greater needs because their pension income will not be equal to those other pilots whose careers are longer. They argue that they have not been employed long enough to have the same generous benefits as other pilots. They have no desire to take out more than they earned; just let them work longer to generate more pension income and be treated like other pilots who have the advantage of a longer career.

However, the consequences are the same whatever the reason to extend someone’s age of retirement: those that follow must work longer and subsidize the extended careers of those who work past 60. Newcomers cannot expect the rule of equal treatment to be modified to suit their circumstances when the rule was known and agreed to upon joining Air Canada and its violation has an adverse differential impact on other younger employees who jointed before they did.

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

[Gravol]

Forgive me for being a) facetious or b) sarcastic

Are there 80 year old drivers @ Westjet, Jazz, Lufthansa, Emirates, Cathay, and so on.

Do you think this decision can be looked at or judged outside of the usual "all about me" hard shell?

[Rockie]

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

Canadian law is blind to the system Air Canada pilots have been working under. It doesn't matter, and never mattered, if Air Canada pilots don't think mandatory retirement is discriminatory...Canadian law does.

Why is that so hard for people to understand even now?

[Old fella]

Jeeez.... here we go. Is this going to be another 20 page thread on the Air Canada fly past 60. What is in this topic that hasn't been trashed out in last years 20 pager.........

[Rockie]

Are you being forced to read this thread against your will Old Fella?

[TheStig]

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

Canadian law is blind to the system Air Canada pilots have been working under. It doesn't matter, and never mattered, if Air Canada pilots don't think mandatory retirement is discriminatory...Canadian law does.

Why is that so hard for people to understand even now?

Rockie, you realize what I'd posted was copied and pasted from the Judges' ruling right? All I was/am really trying to get as this is not a black and white issue to the court, and they do see the details and understand how these pilots forced to retire benefited from the system they are now crying foul about. I'm really not trying to get into a pissing match here. However, I do think a few things need to be put into perspective.

This case has been going on for almost 9 years! The FP60 group wins an appeal and guys start talking about coming back!? I think some expectations need to be tempered. Do you think a judge is going to force 200 pilots out of work by dumping 200 retirees onto the top of the seniority list? Award them some huge monetary penalty?!? I don't want to say anything that's going to get me sued, but from what I've read on the FP60 website's updates over the years, I'd say quiet a large number of its authors predictions have failed to materialize as predicted. This appeal has only ensured that this case will drag on for another few years and cost all parties involved expensive legal fees.

I'd encourage everyone to read, or at least sift through, the ruling posted above and ask themselves if they think the Judge feels there has been some massive discrimination here and there is a need to punish ACPA and AC for the harm they've caused?

Since you've brought it up Rockie, here's some of what was said about discrimination in this case:

"[371] discrimination analysis should be applied. Firstly, it is illogical that a meritorious deviation be considered prima facie discrimination. As already pointed out, laws are intended to prevent injurious conduct. They should have no application to meritorious behaviour resulting from an ameliorative rule. An ameliorative retirement rule would fit the description of a meritorious deviation.

[372] Secondly, discrimination is a highly opprobrious, and therefore effective, label used to discourage a type of behaviour rejected by our society. It should not be cheapened by overuse where common sense suggests no discrimination has occurred. Like crying wolf too often, the term will lose its punch and legitimacy as an effective deterrent to discriminatory conduct.

[373] An example of cheapening rights talk I think is occurring in this case by telling the younger pilots that the older pilots suffered “discrimination” by the retirement rule. One scoffs at the suggestion that a rule which was intended to ensure that all pilots would be treated equally, and which when eliminated results in windfall benefits to the complainants at the expense of all of their colleagues, was based on a prima facie stereotype of prejudice against older pilots. Equally it is Professor Greschner provides a double-barrelled explanation for why a substantive hard to accept that the rule perpetuated a disadvantage to well-off senior pilots of the Baby Boomer generation because they were victims from among a disenfranchised and destitute group that suffers age discrimination in the 21st century."

[Rockie]

This case has been going on for almost 9 years! The FP60 group wins an appeal and guys start talking about coming back!? I think some expectations need to be tempered.

Reinstatement is a common remedy in discrimination cases and has in fact been the clearly stated goal of every pilot on that list from the very beginning. This isn't something they just decided to do.

The end of mandatory retirement has also been inevitable from the very beginning. If you don't believe me just ask some of the senior ACPA representatives around at the time and senior Air Canada management. I think facts have borne that statement out as well. It has been ACPA's strategy from the very beginning to draw this process out as long as possible to get as many pilots off the top of the list as possible until the day the law changes. If it's taken nine years it's because ACPA deliberately forced the process out over that time instead of proactively dealing with it when it first came up.

Every month ACPA drew this out they were fully aware there were more pilots added to the list seeking reinstatement. So if the number 200 scares you we should at least be honest about who made it that big.

[ZBBYLW]

What I would really like to see happen if these guys get to come back is in 2016 we look at the whole way we are getting paid and change it. How about flatten the entire pay scale out. With guys coming back in from above to ride the surf earning 275k a year working 8 days a month (summers off) while others work double that and get paid anywhere from half to less than a quarter it's time for a change. It worked with mandatory retirement and DB pension plans. Now with fly 'til you die and DC pension plans we need to fix this for everyone's sake the sooner the better.

Also by 2016 Rouge will have another few years of experiment with a socialized bidding system for monthly rosters and vacation. Maybe we should go down that road too. Test the waters anyhow, give people a few years to bid out of current positions so someone who has stayed senior can find another seat somewhere else and then open it up to everyone.

I am not someone who is against seniority. In fact I came to AC recently and knew all about it. It's one thing if people stay past 60, but now to return after some years and take what other people have earned is not right.

[accumulous]

What I would really like to see happen if these guys get to come back is in 2016 we look at the whole way we are getting paid and change it. How about flatten the entire pay scale out. With guys coming back in from above to ride the surf earning 275k a year working 8 days a month (summers off) while others work double that and get paid anywhere from half to less than a quarter it's time for a change. It worked with mandatory retirement and DB pension plans. Now with fly 'til you die and DC pension plans we need to fix this for everyone's sake the sooner the better.

Also by 2016 Rouge will have another few years of experiment with a socialized bidding system for monthly rosters and vacation. Maybe we should go down that road too. Test the waters anyhow, give people a few years to bid out of current positions so someone who has stayed senior can find another seat somewhere else and then open it up to everyone.

I am not someone who is against seniority. In fact I came to AC recently and knew all about it. It's one thing if people stay past 60, but now to return after some years and take what other people have earned is not right.

You'll likely find that most of your concerns will be well met and explained for you in considerable detail in the remedy phase for these 200 pilots and their subsequent accommodation. Air Canada has a long history of discrimination that dates way back to the 1980's. Many aspiring pilots proved that Air Canada's discrimination prevented pilots from being hired at any age as the cut-off was around 26. Discrimination was found way back then, age discrimination at the bottom end was terminated, allowing older and older pilots to be hired. That was about 30 years ago. Many attempts have been made in the intervening 3 decades to level the playing field for Air Canada pilots regardless of age, not just because of overt age discrimination, but for other reasons including the fact that nobody can meet the requirements of years of service in the pension plan because of the act of discrimination that was rectified 30 years ago. ACPA has stonewalled the position at every turn in the face of every other airline in the country having grown up about it over 10 years ago. As far as your thoughts on discrimination go you'll need to consult Parliament about that, because the actual law is diametrically opposed to your concept of it and that's the way it will remain. Age discrimination in this particular case is very well documented and there's no doubt it'll all be coming forward as this case proceeds.

If you are really that adamant about it then what you need to do is proceed to court and prove that there was no age discrimination at Air Canada. That way, after you win it, the court can return you to your forced retirement at the arbitrary age of 60.

[Old fella]

Are you being forced to read this thread against your will Old Fella?

I am a gawker on this thread, strictly for entertainment value, Rockie. You would be less than honest with yourself (as one of the top contributors) if you didn’t think this topic is “stale dated”. Turn off the BBQ, put this item to one side – it’s done. Pilots can/are flying with your airline beyond 60yrs of age.

The subject “best before” date is long passed.

[Rockie]

You would be less than honest with yourself (as one of the top contributors) if you didn’t think this topic is “stale dated”. Turn off the BBQ, put this item to one side – it’s done. Pilots can/are flying with your airline beyond 60yrs of age.

No it's not stale dated. It has been on the sidelines while the legal system grinds along at its glacial pace and people forgot about it mistakenly believing it was over. As Raymond's post above demonstrates it still is very much a current issue for the Air Canada pilots.

The end of mandatory retirement was never in question in my mind or that of many other people, including senior Air Canada management and ACPA representatives. Many people including Raymond have been trying to get the Air Canada pilots to be proactive about it and get something for it from the company rather than pursue the short-sighted and self-damaging path ACPA and the pilots chose. Those arguments fell on deaf ears and the consequences of that are not nearly over.

[teacher]

And here I thought it was over already!

I remember the conversation well at the ALPA meeting I attended. A pilot ask what ALPA was going to do to prevent pilots over 65 from staying. The ALPA lawyer said "NOTHING!! You can't fight the law, the law has changed and we must change with it. ALPA will not waste time or money trying to violate the basic human rights of another pilot to work and fight a battle in court that cannot be won." Pilot wants to fly past 65 than fine, right seat you go as that is the law and have a nice life.

For my part I agree, sucks to have you career stagnate a little but in the grand scheme of things the law is the law. We are SO over it and I'm not sure why ACPA and AC aren't either.