CHRT Remedy Ruling?

[Understated]

One must wonder how they will try to spin the reinstatement and damages. So much for the entry-level Embraer placement. Also, multiply the damages times almost 150 pilots. Will the Tribunal hold ACPA jointly liable for the damages?

[HavaJava]

I have a feeling that the flypast60 group will still be grumpy on Monday

[Mechanic787]

I have a feeling that the flypast60 group will still be grumpy on Monday.

I see it as a “no lose” situation for that group, and as a “no win” situation for ACPA.

From what we know already, both pilots will be reinstated to full employment. The intention of a Human Rights Act remedy is to put the individuals back into the position that they would have been, had their rights not been contravened by the unlawful discriminatory practice.

Based on Tribunal precedence, including the recent CN cases, that should mean full seniority, payment for lost wages, as well as special compensation and expenses.

In addition, given that their termination of employment was based upon the provisions of the collective agreement, not on the factual characteristics of the individuals themselves, that should lead the Tribunal to issue the cease order requested by the CHRC. It simply makes no sense in jurisprudence that every single person coming up for termination of employment based upon a provision of a collective agreement that has been found to constitute a violation of the human rights statute should be similarly subjected to wrongful termination of employment and have to wait up to seven years as in the case of these individuals and to have to go through unnecessary legal proceedings to arrive at the same result as the Tribunal determined in this case, that the individuals should be reinstated. That is the essence of jurisprudence. A legal precedent is established to be followed, in order to avoid subsequent identical proceedings.

Even if these individuals receive no compensation whatsoever, even if they receive no special damages, which is extremely unlikely, they will still have won. Their reinstatement of employment will mark a turning point for mandatory retirement in the federal jurisdiction.

From the employer’s and the union’s point of view, however, there is virtually no upside to this pending decision, as I see it. There can be no victory whatsoever, and their only hope of maintaining their historical refusal to recognize the dramatic changes that are taking place in human rights law is through the judicial review and appeal process. That route is extremely problematic for them in the context of current legal and societal circumstances.

How will the employer and the union deal with the legal and organizational implications of this decision? When any reasonable multiplier is applied to any monetary damage award whatsoever to account for the number of individuals in the queue with outstanding complaints, the figures become problematic, both from a financial perspective and from a social perspective. How will Air Canada management justify to its shareholders that it has to pay millions of dollars of damages resulting from its failure to stop wrongfully terminating the employment of pilots after the Tribunal ruled against it in the summer of 2009? Heads may roll.

How will the union react if it is held jointly liable for any damages, especially if those damages, using any reasonable multiplier, are significant? A special assessment will likely be necessary, given the quantum. Statements to the effect that the union disagrees with the decision and that the decision will be appealed will likely fail to appease the majority, regardless of how the issue is stick-handled.

The only possible positive consequence for the employer or the union resulting from Monday’s decision, as I see it, is that it may finally force them to reconsider their entrenched attitudes towards mandatory retirement, and consider alternatives that avoid this type of divisive consequence.

[Brick Head]

Yes it is changing. The question is how.

The uniquely steep grade of the deferred compensation system, and the methods suggested by the Tribunal to preserve it, will make this an interesting read. For instance I don't see how it is possible to put individuals back to the position they would have been, had they not been terminated, without the Tribunal contradicting its own rational for not applying 15(1)c in this specific case.

As for compensation. Again, the uniquely steep grade of the deferred compensation system put a lot of money in these individuals pockets that they would otherwise not have had. If the system is to be deemed "illegal" now? How would one expect to gain from an illegal practice and then gain again by its termination?

Perhaps we should just wait till Monday?

[Mechanic787]

If the system is to be deemed "illegal" now? How would one expect to gain from an illegal practice and then gain again by its termination?

The issue is much larger than that of the Air Canada pilots, or even that of the deferred compensation system itself. The Tribunal must consider the consequences of this decision in the context of the bigger picture.

I have always thought that you were reading too much into that one paragraph of the Tribunal's decision.

[Brick Head]

I have always thought that you were reading too much into that one paragraph of the Tribunal's decision.

One paragraph? The ruling is littered with the idea and suggestion of alternatives employed elsewhere. The single paragraph I have been posting, was used because it summarized the perspective, and was done so in the Tribunals own words including their statement that the alternatives they looked at are not, in their opinion, discriminatory practices. If it isn't discriminatory they have no jurisdiction.

Do you have reason to believe that opinion has changed? Or do you have the opinion they didn't really mean what they said? Do you believe it was just lip service? All I can do is assume since they said it, they meant it. This isn't some made up ACPA thing. It has been going on around us at the provincial level for a while now.

All your comment does is clearly articulate that you are ignoring the full picture for which I have been attempting to add to the discussion.

The ruling embraces alternatives as a means, other than mandatory retirement, to preserve the benefit system. For Remedy to reflect the rational of the ruling it must as well.

I fully expect it will. The question is going to be to what extent.

The ability to "preserve" in the absence of mandatory retirement, or a watered down version of what mandatory retirements purpose was?

I don't know the answer.

Monday is only 2 days away now. We will soon know.

[wyndham]

This might be a stupid question, I try to follow whats going on but still dont fully have my head around everything. I understand the decision, but if the pilots/union have a contract with a/c that says retirement is at age 60, the pilots voted on that didn't they? So how can it be considered discrimination if its what the majority of the pilot group voted?

[Brick Head]

This might be a stupid question, I try to follow whats going on but still dont fully have my head around everything. I understand the decision, but if the pilots/union have a contract with a/c that says retirement is at age 60, the pilots voted on that didn't they? So how can it be considered discrimination if its what the majority of the pilot group voted?

A contract is invalid if it commits a discriminatory practice.

There is no doubt the Tribunal will put the two individuals back to work. No question at this point as that has already been decided. Pending appeal of course.

The question is how.

Why don't we all just wait till Monday?

[Mechanic787]

There is no doubt the Tribunal will put the two individuals back to work. No question at this point as that has already been decided. Pending appeal of course. The question is how.

Regardless of whatever "litter" there may be in the previous decision, I don’t see the Tribunal as having the jurisdiction to start redrafting the provisions of the Air Canada—ACPA collective agreement. As I understand the law, the Tribunal can determine the seniority issue, it can determine the damages issue, and it can determine the cease order issue. Beyond that, it is restricted to reasons, not methodology. It has no jurisdiction to say that the union and/or the employer may or must amend the provisions of the collective agreement in any specific manner whatsoever, save as to stop violating the Act, and especially not in any way that violates the express wording of Section 10 of the Act.

In other words, the complainants will receive reinstatement with full rights under the collective agreement that is available to every other member of the bargaining unit, regardless of the deferred compensation system in place in that collective agreement.

[JayDee]

This might be a stupid question........So how can it be considered discrimination if its what the majority of the pilot group voted?

Mr Wyndham,

I assume your an AC pilot otherwise why would you be asking.

After 7 years of litigation, countless millions spent on lawyers and literally thousands upon thousands upon thousands of forum postings, you still don't understand the basic fundamentals of all this ?

The fact that you are still in the dark screams out incompetent representation by the union.

[Johnny#5]

settle down.

[the original tony]

Wyndham, this is all discriminatory because money is involved.
By definition a seniority system, placing senior people only on senior
Equipment is discriminatory. Alas this is the only one that affects the gold diggers
Adversely, thus it's discriminatory.
I do feel bad for them, really..... Being pushed out of their god given seat.
Must be horrible to retire on 4x the salary of a new hire.
Anyway, discrimation is only valid when money is involved.
Best of luck to all not qualified to get a discount at Zellers.....

Tony

[wyndham]

This might be a stupid question........So how can it be considered discrimination if its what the majority of the pilot group voted?

Mr Wyndham,

I assume your an AC pilot otherwise why would you be asking.

After 7 years of litigation, countless millions spent on lawyers and literally thousands upon thousands upon thousands of forum postings, you still don't understand the basic fundamentals of all this ?

The fact that you are still in the dark screams out incompetent representation by the union.

So you need to be an AC pilot to ask questions about this haha? No I dont work there...was just curious thats all

[Raymond Hall]

http://www.flypast60.com/Documents/2010 ... -Kelly.pdf

[vic777]

Congratulations, George, Neil and Ray.
Ray, this is what you told us, many years ago, that would happen, you were right. End of story.

[the original tony]

Congrats!!! Really great for you guys. wait.....
OJ got away with it too, still didn't make it right.
You gotta love money, cause it still has F all to do with flying.
Time to go exercise my rights to free speech, more to follow......

Tony

[Mig29]

Will this news be affecting the hiring for some 50 or so guys this winter ??

[ram]

It is interesting that the court did not grant the "cease and desist order"...when it comes to the mandatory retirement age in the AC collective agreement?

Or so it seems...at first glance anyway

[The Raven]

I have read the entire ruling a couple of times now.

As far as I can tell it only applies to the 2 complainants (Vilven and Kelly). Even though Ray asked for a cease and desist order be applied to all pilots employed by Air Canada the Tribunal turned him down and only applied it to these gentlemen.

Also, Ray was asking for millions of dollars in compensation for these gentlemen but they only got a small portion of that ($45,000 for Vilven and $62,000 for Kelly). They received no pain and suffering damages or any wilful and reckless damages.

In a nutshell these two gentlemen (Vilven and Kelly) can return to Air Canada as B777 first officers. We already knew that would happen. As a matter of fact Air Canada and ACPA had agreed to it. Vilven and Kelly get a token amount of compensation compared to the damages they were asking. The ruling does not apply to any other pilot at Air Canada.

[Say Altitude]

Congratulations, George, Neil and Ray.
Ray, this is what you told us, many years ago, that would happen, you were right. End of story.

Far from over. Judicial review at the end of this month and maybe SCC beyond that.

You'll notice that cease and desist was not issued. And check out the damages - a very small sum. I wonder if the remaining complainants will bother going forward when they figure out that any possible damages will be out weighed by fees for counsel.

[ram]

Without a clear "cease and desist" order to the age 60 mandatory retirement age in the collective agreement, I don't imagine anything is going to change for now...at least until the decision is reviewed by a higher court...

[The Raven]

Congratulations, George, Neil and Ray.
Ray, this is what you told us, many years ago, that would happen, you were right. End of story.

It appears at first glance that Ray won very little of what he boasted he would win on the FlyPast60 website. This was a small financial victory for Vilven and Kelly ($45,000 and $62,000 respectively). However I would assume much of that will be eaten up by legal costs.

Vilven and Kelly are allowed to fly the B777 at Air Canada (first officer position only). This assumes they can pass the course (I won't comment on the likelihood of that). Air Canada and ACPA had already agreed to that.

The ruling does not apply to any other pilot who may want to continue flying past age 60 at Air Canada. As mentioned by other posters, this saga still has a long way to play out.

[Brick Head]

It would appear the Tribunal has decided to make it very clear the V&K ruling is not president setting. No wonder. Huge questions as to if it would actually "work" based on the logic employed.

[12] Further, and as this Tribunal pointed out in its previous decision, its finding that s.15(1)(c)
offends the Charter is not a legal precedent and is applicable only to the facts of this case. In these circumstances, s.15(1)(c) remains operative and may be relied upon by other respondents as a defence to any other outstanding or future complaints regarding the mandatory policy in question. To grant the order requested would be to deprive them of the defence afforded by this section.

[bluemic]

It appears at first glance that Ray won very little of what he boasted he would win on the FlyPast60 website. This was a small financial victory for Vilven and Kelly ($45,000 and $62,000 respectively). However I would assume much of that will be eaten up by legal costs.

That's about $53,000/pilot. Methinks there are some 200 or so already in the lineup - and more each month. So far, that's TEN MILLION - not exactly "small finances" - and it begs the question: "How will ACPA pay their half?"

Vilven and Kelly are allowed to fly the B777 at Air Canada (first officer position only). This assumes they can pass the course (I won't comment on the likelihood of that).

ICAO is the major reason they must fly as effohs. Your comments about "the likelihood of [passing the course]" are at best improper; you should delete them.

The ruling does not apply to any other pilot who may want to continue flying past age 60 at Air Canada. As mentioned by other posters, this saga still has a long way to play out.

Unfortunately, you might be right. Ka-ching. Ka-ching.

Time for the union to put a stop to this madness. Time to fold 'em. Time to find other windmills to tilt at.

mic

[Brick Head]

That's about $53,000/pilot. Methinks there are some 200 or so already in the lineup - and more each month. So far, that's TEN MILLION - not exactly "small finances" - and it begs the question: "How will ACPA pay their half?"

Where did you get that from? Compensation was from the ruling (Aug 2009)to the date of reinstatement for two individuals only.

Any future liability, for other complainants, would be from the date of the ruling that applied to them, and the date they were reinstated. Liability is not building for other complainants based on this ruling.

No precedent. Just applies to two people. The Tribunal was very clear on this.

Considering that a stay request may soon be employed? It may be a very long time before further liability is even an issue.

A. Conclusion on Cease and Desist Order
[11] In my opinion, the Commission cannot rely on the ATF decision. The present case does
involve a systemic complaint. ATF involved a complaint by a public interest group on behalf of a large number of alleged victims of a discriminatory practice. This is a case of two separate individual complainants with the same complaint. It is not a group complaint. What the
complainants are asking is to have their remedy extend beyond their individual complaints.