CHRT Remedy Ruling?

[rudder]

Is there any ruling in sight? Seems like alot of time has passed since the final hearing.

[tailgunner]

Just my opinion, but...I think there will be a greater amount of time to pass before any of this is settled. There will be appeals, and requests for stays etc. all of which take a long time. IF the government gets involved and indeed does introduce legislation in regards to retirement age that will even take longer. Once a bill is proposed, it needs to pass, and then off to committee, then the caususes of the political party's have their go at it...then the if goes off to revision and a second 'reading' once more revisions are prodeuced a third and final reading takes place before it goes to the Senate.
Some interested parties are trying to convince others that this is a cut and dried, easy as she goes type of process. They propose that things should all be wrapped up by Aug 1 . the other side says no way..they will appeal right up to the SC of Canada. This will take 5- 8 years at best.
I am sure one side is more correct than the other.

[accumulous]

The V-K verdict was issued a year ago. V-K won that outright. It has been appealed for this November to the same Federal Court that issued the directions to the Tribunal for the verdict which was won. That, coupled with the Federal Government about to abolish mandatory retirement in the federal sector, to mirror what has already been done in the provincial sectors, means that the odds of overturning the verdict of last year is hovering somewhere around the nil mark. The V-K remedy hearing was ordered by the Tribunal regardless of the appeal and the remedy result will be issued any time now. The result is called a Tribunal Order. It will include the specifics of damages, seniority, and the Order for reinstatement which would apparently go ahead regardless of any appeals, as neither AC nor ACPA has objected to reinstatement. AC has apparently only asked for a 90 day window for positioning the reinstated pilots. The next 70 Complainants are awaiting their verdict which is also due right now, as the case was concluded last January, and results are normally issued within 4 months. It will most likely be followed by their remedy hearing without delay, as in the V-K case. Then the next 75 or so who have already filed, will have been referred to the Tribunal, etc, etc. At any rate the first returnees could be arriving shortly. Somebody with some more legal knowledge might be able to add more but that seems to be the gist of it at this point.

[Raymond Hall]

Accumulous: Your post is 99% accurate. One minor correction. The 90 day window was agreed upon with respect to the cease order becoming effective, not for reinstatement. If the Tribunal issues a cease order, the order, by agreement of the parties, would not become effective for 90 days from the date of the release of the decision, in order to allow Air Canada time to reprogram the PBS system (ICAO requirements of matching those over age 60 with at least one operating pilot under age 60) and to do whatever else is necessary to accommodate the retention of pilots beyond age 60 (unspecified, but contract language might fall within the ambit).

[Brick Head]

That, coupled with the Federal Government about to abolish mandatory retirement in the federal sector, to mirror what has already been done in the provincial sectors, ......

Accumulous,

Do you have a source for your comment about mirror the provinces?

Thanks

[accumulous]

Don't have the exact link, unfortunately - it came out last week from one of the Federal websites - will try to find it - it was actually introduced as a private member's bill last year but will now be ushered straight in by the Federal government, likely this Fall and then take a few months to become law - Federal retirement is currently 65 but that will be gone by the boards - as you know now in the provinces you work as long as you want to work and are qualified to work - age is not a factor as it is not a factor in all the airlines and flying organizations in North American except for Air Canada being the only outfit, except their stance has already been ruled an act of discrimination.

[Mechanic787]

Do you have a source for your comment about mirror the provinces?

Here is the link to Labour Canada's description:

http://www.hrsdc.gc.ca/eng/lp/spila/wlb ... ve02.shtml

However, even the federal government has not kept its description of the law up to date. For example, it says that BC allows mandatory retirement for persons over 65. Mandatory retirement for persons over age 65 been repealed for over 31 months now. See:
http://www.ag.gov.bc.ca/mandatory-retirement/

Excerpt:

Effective January 1, 2008 British Columbia eliminated mandatory retirement. Amendments to the provincial Human Rights Code extend protection against age discrimination to those 65 and over. Previously, the definition of age under the Code was 19-64 which allowed mandatory retirement to be imposed on employees 65 and over.

Similarly, the Labour Canada page says that Ontario allows mandatory retirement for those over 65. That provision was repealed effective December, 2006.

[Brick Head]

it was actually introduced as a private member's bill last year but will now be ushered straight in by the Federal government, likely this Fall and then take a few months to become law

I am aware of the private members bill. Mechanic787 used the word "mirror" provincial legislation. It lead me to believe that actual wording of the proposed legislation was out. Besides even when it does come out we can expect changes as it proceeds through the house and senate.

[Mechanic787]

I have been watching this topic with quite a bit of interest because it could affect all of us in the industry, not just pilots.

The announcement earlier this week was really only a policy statement by the Minister of State for Seniors. Thus it is only an indication of an intention to move in a certain direction. The government tried this before, and failed, because the bill died on the order paper when an election was called. We could be a long way from seeing a change through legislation alone, of course.

The November court case could change things a lot quicker, as the court could simply strike down the mandatory retirement exemption. That would have the same effect as a legislative change, but much quicker. It could come as early as the end of the hearing in November, according to the advise I am getting from human resource people in the industries affected.

[Brick Head]

I have been watching this topic with quite a bit of interest because it could affect all of us in the industry, not just pilots.

It will affect every employee at every company who come under Federal Jurisdiction.

The November court case could change things a lot quicker, as the court could simply strike down the mandatory retirement exemption. That would have the same effect as a legislative change, but much quicker. It could come as early as the end of the hearing in November, according to the advise I am getting from human resource people in the industries affected.

It could. However without getting right back into this, a charter question was asked. As a result I am told the likelihood is that this will go to the Supp Court before it creates the effect of legislative change. I stress the word likelihood. Who knows where the appellate courts will take this.

My guess is the legislative route will be the quickest and IMO the most appropriate way to deal with the situation. Allowing the courts to set public policy in the matter is not in our best interest

[Mechanic787]

...a charter question was asked. As a result I am told the likelihood is that this will go to the Supp Court before it creates the effect of legislative change. I stress the word likelihood. Who knows where the appellate courts will take this.

Not according to one corporate lawyer that I know who is watching this closely for the impact in his company. According to him, once the court makes a ruling, that is the law from that point onward, unless and until it is overturned. Appeals to the Federal Court of Appeal take at least one year. To the SCC, longer, because it is necessary to go through the leave to appeal process. Obtaining a stay on a Charter decision, I am advised, is almost impossible!

In any event, the net effect on companies is immediate--if the court strikes down the exemption, they are forced to immediately abide by that decision, which is why they must not only be monitoring it, but must be prepared with policies and practices ready to implement that are in compliance with the law. The bigger the companies, the more complex, the more prepared they must be. Take a Telco, for example. Lots of trades and lots of professionals, with many different unions and many different pension arrangements. It isn't possible to adapt overnight, which is the precise reason why legislative changes to mandatory retirement are implemented six months to one year after enactment.

[Brick Head]

Not according to one corporate lawyer that I know who is watching this closely for the impact in his company. According to him, once the court makes a ruling, that is the law from that point onward, unless and until it is overturned. Appeals to the Federal Court of Appeal take at least one year. To the SCC, longer, because it is necessary to go through the leave to appeal process. Obtaining a stay on a Charter decision, I am advised, is almost impossible!

Same sex marriage? It started at the CHRT. Ended in the Supp Court and wasn't law until the sup court ruled on it. You might want to ask why.

The lawyer you know in the end may be correct. There seems to be as many opinions as there are lawyers. But anyone looking very close at the issue would see that the ruling is very specific to AC pilots for the moment. In fact just two. Yes it will be a TSN turning point when we look back a few years from now for federally regulated employees. However I'm pretty sure at the moment it will take a petition to the CHRT from other employee groups, at other companies, to make the same happen elsewhere. The reason? At this juncture mandatory retirement is still legal in Canada. The law has not changed. The CHRT just decided in our case they refuse to let it happen for specific reasons. ACPA and AC failed to show it was necessary infringement on the charter. The reasons behind not letting it happen may very well apply elsewhere (likely) but for the moment that is not a given. Especially if you work in a unionized environment where a company requires the unions consent to change a contract. A contract that may embrace mandatory retirement, which is still perfectly legal at the federal level.

One of the biggest mistakes by individuals that I see are expectations of time frame. The case in November for example probably won't have a ruling out until 2011. The last ruling from that court on this issue took......... over a year. I really do think that Legislation has a much better chance of being in place before a court ordered legislative change happens affecting all employees at the Federal level.

[Mechanic787]

The case in November for example probably won't have a ruling out until 2011. The last ruling from that court on this issue took......... over a year.

You could be correct about 2011, but you are not correct about the last decision of the court taking one year to be issued. The hearing (four days) took place in November, 2008, and the decision was rendered in March, 2009. Three months and a couple of weeks.

Also, I am led to believe that a statutory provision is either constitutional or it is not constitutional. If the court says that its previous decision (that was not appealed) finding that Section 15(1)(c) of the human rights statute violates the Charter and confirms the Tribunal decision that it is not saved by Section 1 of the Charter, that is the end of the issue, subject to appeal, for everyone. It cannot be unconstitutional for pilots but not for longshoremen or telecommunications employees. Case closed for everyone, subject to appeal.

Further, this is not just about pilots. That is why I am interested in this case. It is about everyone. Apparently there is a backlog of cases at the Tribunal from other industries, hinging on the outcome of this Charter ruling. Trucking, shipping, and other airline employees. For example, there was an Air Canada flight attendant case scheduled to be heard by the Tribunal in Montreal in June that was put over until September, ostensibly waiting for the Vilven-Kelly decision.

[Brick Head]

This is my understanding. There are very likely differing opinions. Likely in fact. Yes this is likely the TSN turning point. But I don't think this specific case is the touchdown that is a game changer for everyone.

The Tribunal was very specific that this was a ruling, in this specific case only. For 2 people under certain circumstances. They did not rule out the possibility that 15(1)(c) might be saved under Section 1 of the Charter for another group, with different circumstances.

From the conclusion.

[155] The Tribunal has concluded that the respondents have not met their onus under s. 1 of the Charter. Section 15(1)(c) of the CHRA is not a reasonable limit on the complainants’ rights under s.15(1) of the Charter. Therefore, we refuse to apply s. 15(1)(c) to the facts of this case.

Again. It is my understanding that this case will reinstate 2 people, and two people only. The next case may be very different. Legislative change will be much faster than the process embarked on so far.

If you have concerns about this specific subject you should talk to someone. There are time limits.

[Mechanic787]

The Tribunal was very specific that this was a ruling, in this specific case only.

Correct, re the Tribunal decision. The Tribunal does not have the jurisdiction to strike down a law that violates the Charter--it has only the jurisdiction to "interpret" the law in the case before it.

But the Federal Court does have that jurisdiction, and if the court agrees with the Tribunal that the mandatory retirement exemption in the CHRA, that it has already found to be in violation of Section 15(1) of the Charter, is not saved by Section 1 of the Charter, it will strike it down, rendering it of no force and effect for everyone.

This would have the same impact as repealing the legislation, but would occur much sooner.

[Brick Head]

The Tribunal was very specific that this was a ruling, in this specific case only.

Correct, re the Tribunal decision. The Tribunal does not have the jurisdiction to strike down a law that violates the Charter--it has only the jurisdiction to "interpret" the law in the case before it.

But the Federal Court does have that jurisdiction, and if the court agrees with the Tribunal that the mandatory retirement exemption in the CHRA, that it has already found to be in violation of Section 15(1) of the Charter, is not saved by Section 1 of the Charter, it will strike it down, rendering it of no force and effect for everyone.

This would have the same impact as repealing the legislation, but would occur much sooner.

Yes it would. But that is not what the tribunal said, or was asked when the federal court returned the issue back to them, which is the point. The Tribunal found the mandatory exemption in the CHRA a violation of the Charter in this specific instance. It was not broad based. If the Federal court agrees with the Tribunal, they will be agreeing to that specific instance only.

The ruling is a brick being removed from the foundation if you will. Collapse is imminent. But the hour when it falls????

[Mechanic787]

The Tribunal found the mandatory exemption in the CHRA a violation of the Charter in this specific instance. It was not broad based. If the Federal court agrees with the Tribunal, they will be agreeing to that specific instance only.

That is not what the wording of the judgment says.

I am no-one to say how the Court will issue its next order, but the HR people I talk with aren't reading it in such a restricted manner. The Court has a duty to clarify the law for all affected, not just for the specific litigants. Otherwise, every single case would have to be litigated and appealed in order to achieve the appropriate result.

From the Court:

2009 FC 367
[341] In the event that the Tribunal determines that paragraph 15(1)(c) of the Act is not saved under section 1 of the Charter, the Tribunal will then have to address the merits of Messrs. Vilven and Kelly’s human rights complaints, including Air Canada’s contention that requiring that all of its pilots be younger than 60 amounts to a bona fide occupational requirement within the meaning of section 15 of the Canadian Human Rights Act.

THIS COURT ORDERS AND ADJUDGES that:
1. Paragraph 15(1)(c) of the Canadian Human Rights Act violates subsection 15(1) of the Canadian Charter of Rights and Freedoms;


The Court doesn't say, "Paragraph 15(1)(c) of the Canadian Human Rights Act violates subsection 15(1) of the Canadian Charter of Rights and Freedoms in the circumstances of this case" or "in this specific instance only".


One would expect similar wording in the next judgment. Either Paragraph 15(1)(c) is saved by Section 1, or it is not.

[Brick Head]

The Tribunal found the mandatory exemption in the CHRA a violation of the Charter in this specific instance. It was not broad based. If the Federal court agrees with the Tribunal, they will be agreeing to that specific instance only.

That is not what the wording of the judgment says.

You are correct. I was paraphrasing. The actual wording is this.

[155] The Tribunal has concluded that the respondents have not met their onus under s. 1 of the Charter. Section 15(1)(c) of the CHRA is not a reasonable limit on the complainants’ rights under s.15(1) of the Charter. Therefore, we refuse to apply s. 15(1)(c) to the facts of this case.

Look. We are basically saying the same thing. The only bone of contention we have is whether this ruling, assuming it stands, applies to basically everyone post federal review. The legal over here says no.

I will stop now. My read on you maybe in error. That time may be of importance to you? If it is, waiting for this process, assuming it will be quick, is likely a mistake. At best it is poor risk management. If I read you wrong? My apologies and it really doesn't matter then.

Cheers.

[Mechanic787]

My read on you maybe in error.

No problem. I am certainly no-one to be able to accurately predict what any Tribunal or court is going to do. I think that it just goes to show that there are at least as many opinions as there are participants in the discussion, and that the only sure way to know how this will unfold is to wait until it unfolds. And I do believe that your are correct in suggesting that this whole dispute is a long way from final resolution.

[accumulous]

"And I do believe that your are correct in suggesting that this whole dispute is a long way from final resolution."

...which is really what the argument seems to focus on time and time again (lousy pun) and that is how long can we delay this thing anyway? Wending, winding, appealing, etc., etc., etc., hope upon hope that as many people as possible get removed from the seniority list before the inevitable hammer (gavel) comes down, moving as many others as possible up the cookie sheet (don't even know what that means but it sounds good) to be first in line to get a crack at the most years of pensionable service possible. It's that kind of a game. So much of it seems focused on delay that it is blatantly outright obvious to even the most casual observer and certainly to the HRC that its got discrimination written all over it. V-K are almost assuredly coming back and compared to the overall scale of things, toute suite. The next 70 complainants dealt specifically with 15(1)(c) and apparently if the rumor mill has any credence, it was shown that AC is in the vast minority when it comes to terminating pilots at 60, so that would seem to render the 15(1)(c) thing entirely moot although we'll see what the papers say when they hit they table. I'd guess the delay tactic ballgame is over with, no tie, no extra innings.

[Brick Head]

The next 70 complainants dealt specifically with 15(1)(c) and apparently if the rumor mill has any credence, it was shown that AC is in the vast minority when it comes to terminating pilots at 60, so that would seem to render the 15(1)(c) thing entirely moot although we'll see what the papers say when they hit they table.

believe 1/2 of what you read and nothing what hear.

Both sides love the smoke and mirrors.

Depends how you divide it.

Percentage of pilots in Canada retiring at 60? Then the statement above is incorrect. Most pilots in Canada retire at 60.

Percentage of groups ( not individuals) retiring at 60? Then you are correct. Ac is about the only group that retires at 60.

Of course then you get into the argument of can a dominant group basically set normal when no one else uses that particular age? If they can, can they not set any age by virtue of them alone choosing that age? Is that the intent? Or is normal historical? Is normal what a particular group has been doing for decades? Is normal an average?

Blah blah blah..................There is no shortage of arguments if one were to be inclined to fight on and on and on and on and on and on.

Which ACPA will do until there is assurance that collective bargaining rights are not trampled in the process. Just calling a spade a spade guys. That is the issue. One that will be fought, unless clear legislation is introduced, well beyond the time that the first pilots stay beyond 60.

Legislation is long over due. Without it this will continue to spiral into basic anarchy as groups fight to protect what they believe is theirs, or try to abscond with what they can get away with, in the absence of clear rules. Human nature.

[accumulous]

"Both sides love the smoke and mirrors.
Depends how you divide it.
Percentage of pilots in Canada retiring at 60? Then the statement above is incorrect. Most pilots in Canada retire at 60."

The latest evidence at the latest hearings showed the clear majority of BOTH individual pilots AND groups have the option to retire past 60. So that argument is apparently done with, unless there's something else??

[Max111]

The evidence presented at the Tribunal by way of subpoena, not hearsay, was that all big and small airlines in Canada allow their pilots to fly to 65 and some beyond
One of the amazing things that happened at the latest Tribunal was that all the airlines that Air Canada subpoenaed allow their pilots to fly to 65 and some beyond.........Westjet allows their pilots to fly past 65 and they also allow work sharing.....Can you imagine that. And these airlines {AC chosen few} testified that the one under /one other rule [ICAO Standards] had no impact on their operations. This will not be good enough for Brick Head...that's a given but ................!

One of the interesting pieces of the puzzle was that at the start of this complaint { approx. 2005 } the MEC wanted to be impartial and they would fund both sides of the argument. Emails were exchanged with this commitment but then a change of direction was made. If you supported the option of continuing to fly past 60....you could not be a member of the "Age 60 Committee". but i guess that is being unbiased !

[Brick Head]

You guys are barking at the wrong dog walking by.

I get it. I always have. Most have. I dare say I agree........sssshhhhh

This issue is not about staying past 60, but rather finding an equitable way to make it happen.

Everything else is back ground noise. Every argument. Every strategy. Every last little bit of spin emanating from either side. All positioning for a perceived opening, to take what one can get.

So lets cut to the chase.

When you decide to talk about the real issue let me know. If you don't? Absent legislation to clarify the issue at the federal level, this will be in court for decades. By that I mean every perceived injustice at the outcome going forward by either side. Why? No clear legislative direction.

In the mean time I will support everything we need to do to make sure this inevitability, as important as it is, is dealt with in an equitable fashion for everyone involved. My position has not changed.

My hope is that legislation clarifies the issue in a timely manor before self centered objectives implode what is best for the greater good.

[Mechanic787]

I will support everything we need to do to make sure this inevitability, as important as it is, is dealt with in an equitable fashion for everyone involved. My position has not changed.

OK. Against my better judgment, I'll bite. According to "your position", what is "equitable"? Your position has not changed from "what", "when", "where"?