CHRT Remedy Ruling?

[Understated]

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.

Where do you get those figures? I read the decision as awarding the difference between pension and salary. For Neil Kelly, that was over $10,000 per month, according to Air Canada's submissions at the Tribunal. Multiply that by 15 months, then again by 150 pilots with complaints, and both Air Canada and ACPA have a major liability, just as was forecast. Over $20 million. The last sentence of the decision is a beauty: "Air Canada is to pay fifty per cent and APCA is to pay fifty per cent of the net compensation and profit sharing/bouns and the interest payable."

Remember also, that the Thwaites decision is not Charter-based, so compensation won't be awarded only for the period after August, 2009. If the complainants are successful, it will mean much more than $20 million, as damages will flow from the complainants' respective dates of termination. Could be $40 million.


Now, about that "special assessment..."

[bluemic]

That's about $53,000/pilot.

Where did you get that from?

The figures came from "Raven" - as was shown in my post.

mic

[vic777]

The ruling does not apply to any other pilot at Air Canada.

If you look at the first page it says "BETWEEN: George Vilven .... etc. AND BETWEEN Robert Neil Kelly etc. ...." the next ruling will be for the One Hundred and Twenty or so other Pilots. So what should ACPA do? Probably huddling with Air Canada is not the answer.

[jazzbeat]

The way I see it is a Win-Win for everybody...

If they really wanted to come back for the love of flying they can

but

If it was only greed for a big cash payment they didn't get it...



they lived happily ever after

[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?"

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.



There is no liability flowing from this award to any other complainant. Period. There are no liabilities to the respondents for anyone else until there is a ruling in that individual complainants or groups favor. Then the liability will be from that date, to having their job back

As for the numbers being posted for V&K? I don't know if they are correct.

Vilven shall be compensated
at the salary rate of an A340 FO and Kelly at the salary rate of a B777 Captain until
April 30, 2010 and thereafter at the salary rate of a B777 FO.
7) The compensation for lost wages shall be net of the amounts of the pension paid to
the complainants from September 1, 2009 to the date of their reinstatement


I'm guessing here but those numbers may be sept 01- to the date the actuary used in April only.

As for the future, and liabilities, as to whether they even exist? Stays are part of the system for this very reason. Stop the process that the quasi judicial body started, while examining the issue at the appellate court level. Probably all the way to the supp court.

Remember we didn't ask the charter question.

That is what is next. It very much looks to me that the Tribunal has decided to let two individuals through the door on the charter issue. That's it for now. Instead of an avalanche while public policy is still truly up in the air on.

[Understated]

There is no liability flowing from this award to any other complainant. Period. There are no liabilities to the respondents for anyone else until there is a ruling in that individual complainants or groups favor. Then the liability will be from that date, to having their job back.

I sincerely hope that you are not one of my elected or appointed representatives on this issue. How long do you have to wait to see the writing on the wall--until the ink is wet on the cheque that ACPA will be required to write? How are long are we to allow this liability to accrue?

Correct, the Tribunal said that this decision applies to only these two pilots at this time? Do you have any reason to suspect that the same principles enunciated here will not apply to other pilots when their cases are decided? If so, I would like to know the basis for that reasoning.

And "liability will apply from that date"? Get real. Liability for the others will apply from their respective dates of termination of employment. The liability will not be restricted to the post-Charter decision time period, and not from the eventual dates of the Tribunal's decision with respect to them. Millions. Millions. For what purpose? To fight the inevitable?

[vic777]

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

Do you think the Tribunal will appreciate receiving another such complaint against Air Canada/ACPA?

[Brick Head]

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

Do you think the Tribunal will appreciate receiving another such complaint against Air Canada/ACPA?

Vic,

Do you think the Tribunal intends on hearing another one?

The Tribunal can not change the law, or set a new direction for public policy, without the help of the courts. That is where this is off to.

I expect an application for a stay at this juncture. Even if that is not done the Tribunal itself has the jurisdiction to put off hearing a complaint while appeals are pending. They did so with V&K part one. For good reason. It can be sent right back by the appellate courts as we saw.

Perhaps you should ask yourself this question. Why was the Tribunal reluctant to give a cease and desist order to AC and ACPA, wrt mandatory retirement, based on the V&K ruling?

[ACAV8R]

I sincerely hope that you are not one of my elected or appointed representatives on this issue.

I sincerely hope he is and that goes for the MAJORITY (75% i believe) of the ACPA membership does too.

[Brick Head]

Correct, the Tribunal said that this decision applies to only these two pilots at this time? Do you have any reason to suspect that the same principles enunciated here will not apply to other pilots when their cases are decided? If so, I would like to know the basis for that reasoning.

No I do not have any reason to believe the Tribunal would rule differently at this time. I have reason to believe however that the appellate courts, while weighing in on the issue, may undermine the Tribunal's logic for not applying 15(1)c.

Again the caught between a rock and a paper shredder discussion that by now I am sure you are well aware of.

And "liability will apply from that date"? Get real. Liability for the others will apply from their respective dates of termination of employment. The liability will not be restricted to the post-Charter decision time period, and not from the eventual dates of the Tribunal's decision with respect to them. Millions. Millions. For what purpose? To fight the inevitable?

Mandatory retirement is still perfectly legal at the Federal level. The Tribunal stated so in Remedy. The Tribunal made it very clear. No precedent. Their refusal to apply 15(1)c applies to these two people only. The Tribunal can not change the law without the courts help. At this very juncture the law has not changed. It might in the future. If it does liability will apply from that time forward if ignored.

The thought process the Tribunal used to determine liability.

[148] However, where the law changes through judicial intervention, it may be appropriate for a court to limit the retroactive effect of its judgement, that is, apply the principle of limited
immunity. Under this principle, “it is a general rule of public law that, absent conduct that is
clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional.” (Makin and Guimond v. Quebec, [1996] 3 S.C.R. 347, para.78).

[149] To justify a prospective remedy only, the Supreme Court required that the threshold
requirement of a “substantial change in the law” must be satisfied. Once this is met, other factors such as reasonable reliance, good faith, fairness to litigants and respecting parliament’s role must be considered.

[155] In terms of the other considerations, reasonable reliance, good faith and fairness to the
litigants, as the Supreme Court noted in Hyslop that, “an approach to constitutional interpretation that makes it possible to identify, in appropriate cases, a point in time when the law changed, makes it easier to ensure that persons and legislatures who relied on the former legal rule while it prevailed will be protected. In this way, a balance is struck between the legitimate interests of actors who make decisions based on a reasonable assessment of the state of the law at the relevant time on the one hand and the need to allow constitutional jurisprudence to evolve over time on the other”.

[156] Given the then state of the law, the respondents acted in good faith and reasonably in
applying the mandatory retirement policy to the complainants. As to considerations of fairness to the litigants, in my view, a fair balance is struck, on the one hand, by not imposing on the
respondents the burden of damages for a policy that was legal at the time, and, on the other hand, by awarding damages to the complainants from the time the policy was declared to be illegal.

[157] I conclude that Hyslop should apply in this case and that the complainants should not be
awarded any compensation for lost wages prior to August 28, 2009. This being the case, it is not necessary to decide the respondents’ alternative position that the compensation period should be limited to two years from the date of the complainants’ retirement.

[Mechanic787]

No I do not have any reason to believe the Tribunal would rule differently at this time. I have reason to believe however that the appellate courts, while weighing in on the issue, may undermine the Tribunal's logic for not applying 15(1)c.

I don't see anything in this ruling about preserving the deferred compensation system, in spite of the decision to reinstate. I am not trying to rub salt in your wound, but would be interested to know how you now see this decision in comparison to what you expected in that regard. What did you think that the Tribunal would do that it did not do with respect to the compensation scheme.

As I see the decision, it left every aspect of the collective agreement intact, save for the application of the mandatory retirement provision of the pension plan to these two pilots.

[Brick Head]

I don't see anything in this ruling about preserving the deferred compensation system, in spite of the decision to reinstate. I am not trying to rub salt in your wound, but would be interested to know how you now see this decision in comparison to what you expected in that regard. What did you think that the Tribunal would do that it did not do with respect to the compensation scheme.

As I see the decision, it left every aspect of the collective agreement intact, save for the application of the mandatory retirement provision of the pension plan to these two pilots.

Nope. Conspicuously missing.

Alternatives are declared non discriminatory by the tribunal and then they pull out an award inconsistent with the award by preventing alternatives. Think about it. If they are non discriminatory why would the tribunal even contemplate stopping them? Maybe they aren't non discriminatory after all?

There are issues with this award.

I did note however that they also went out of their way to make sure they clarified the award was not a precedent. It only applies to two people. To state that mandatory retirement is still legal. And most importantly they did not put out a cease and desist based on this ruling/charter issue.


Considering also that this ruling did very little, beyond what had already been agreed to by the parties.

It makes one wonder.

Did they just cut bait and run on this ruling?

What did I expect them to do? Honestly I expected them to contradict themselves. I just couldn't see them going for the alternatives that would be required in this case to "preserve".

So much for doing what the other jurisdictions have been doing.

[Mechanic787]

There are issues with this award . . .

I agree.

Lots of errors, as I see it. For example, did the Chairman even read his own cover page to the decision?

If he did, how could he award over $50,000 in damages to be payable by ACPA as its share of the damages awarded to George Vilven. ACPA was apparently not named as a respondent by George Vilven, but rather was an "interested party."

Since when do interested parties to proceedings get tagged with tens of thousands of dollars in damages? This would be the first time in Canadian history, to my understanding. That paragraph alone guarantees that the decision will be subjected to judicial review.

[vic777]

Since when do interested parties to proceedings get tagged with tens of thousands of dollars in damages?

I don't know, but probably since Air Canada said to ACPA, "Ya wanna split the damages?", and ACPA said, "Sure".

[Understated]

I don't know, but probably since Air Canada said to ACPA, "Ya wanna split the damages?", and ACPA said, "Sure".

One of the key elements of a good decision is the separation of the parties and the issues. This is not a good decision, procedurally.

ACPA never agreed in this proceeding to be named as a respondent, as it did in the other case (Thwaites).

The decision doesn't reflect that--it assumes otherwise. The Chairman consequently awarded damages against a party that was not liable for damages. That was a collosal mistake by someone who should obviously have known better.

If he erred (blundered?) on this most basic legal point, what other points in his determination were similarly improperly considered and decided?

[vic777]

ACPA never agreed in this proceeding to be named as a respondent, as it did in the other case (Thwaites).

from the introduction to the decision ...

I. Introduction
[1] On August 28, 2009, this Tribunal rendered its second decision finding that the respondents Air Canada and the Air Canada Pilots Association (“ACPA”) had engaged in a discriminatory practice against the complainants George Vilven (“Vilven”) and Robert Neil Kelly (“Kelly”) contrary to the Canadian Human Rights Act. The Tribunal held a subsequent hearing to determine the complainants’ remedy under s.53 of the CHRA.

I suppose ACPA can fight the decision and the assessed damages ... that would be consistent with their approach ... how cruel if they have a speck of a case!

If he erred (blundered?) on this most basic legal point, what other points in his determination were similarly improperly considered and decided?

Bottom line ... these two Pilots are reinstated and hundreds more will follow ... what is the smartest course of action for the UNION. "Ya, gotta know when to fold 'em".

[Thirteentennorth]

"and hundreds more will follow ...

Maybe! Maybe not. In the absence of a Cease-and-Desist order, or until the CA is amended, Age 60 Retirement stands. Fait accompli it ain't!

[jazzbeat]

what I think the over 60 crowd shoul read in this ruling is that Air Canada can probably afford intelligent lawyers that maybe know what they are doing...

I always felt you guys were thinking Ray was a god and everything he was saying was a ruling...

it's a game and I would bet AC also got the team to play it... If it was a real waste of money for them they would not be playing it...

[vic777]

it's a game and I would bet AC also got the team to play it... If it was a real waste of money for them they would not be playing it...

Box Score so far ........

Complainants 1 Air Canada/ACPA 0

[Understated]

In the absence of a Cease-and-Desist order, or until the CA is amended, Age 60 Retirement stands. Fait accompli it ain't!

It is not a fait accompli, but the impact of yesterday's decision is certainly not insigificant. Look at the situation that exists. The Tribunal has reinstated these two with full seniority and full back-pay to a specific date. Is there anything different about any of the other complainants in the queue that would lead to a different outcome? No. Nothing whatsoever, because the finding of the discriminatory practice was related to the collective agreement and the statute, not the individuals. The damages were similarly related to the statute, not the individuals.

Will the evidence on the damages for other pilots be any different? Air Canada put the evidence into the hearing. It was its testimony that Kelly should be paid the difference between his salary and his pension from August, 2009, or $10,000 per month, and that argument was accepted by the Tribunal.

So does that mean that the same argument should not apply to every other one of those waiting for their due process, simply because the numbers create a potential liability of ($10,000 X 150 = ) $1.5 million per month, 50% payable by Air Canada, 50% payable by ACPA, based on yesterday's decision? It will apply.

What the Tribunal said is that each pilot had to go through the process, not that each pilot wasn’t entitled to the same damages on the same principles. So, just because the damages have not yet been awarded does not mean that they are not accruing, especially given that it was Air Canada’s argument that they should accrue.

The liability is a bit like an iceberg. Just because only a small percentage of it is visible doesn't mean that you can assume that it doesn’t exist, or recklessly continue on your path.

So, $750,000 a month for each of Air Canada and ACPA. Don’t think that Air Canada management doesn’t have its mind focused on that number, regardless of their qualified legal counsel. How many more months will they allow this to accrue? And frankly, it concerns deeply me that I have received no information about this potential financial disaster from the MEC. The last paragraph of the decision is very, very scary.

My guess, less than a month. Within that time, they will have the Thwaites decision, and they will have a feeling about how the Federal Court is viewing their legal arguments in the JR. If either or both of those proceedings head south, Air Canada will jettison ACPA immediately, and take matters into its own hands, cutting the accruing liability to near zero growth.

[Understated]

it's a game and I would bet AC also got the team to play it... If it was a real waste of money for them they would not be playing it...

I have been watching this process for a couple of years now, and still wind up scratching my head. Why is Air Canada still playing the same game?

- The evidence at the hearing re the training costs was stunning: $40K per, times 10 courses, for everyone who is forced to retire one year earlier than he or she would like to.

- Payments made out of the pension plan, rather than into it.

- The risk of losing the JR and having the Court strike down mandatory retirement for all of its employees, not just pilots.

- The accruing liability in damages as referenced elsewhere here.

- Millions of dollars in legal fees and witness fees;

- Thousands of hours of manager's hours lost attending hearings;

- To fight the inevitable? For what purpose?

If someone can see the logic, please share it with me.

[BLZD1]

AC is playing the game because they do not want 75 year old FAs and ground handlers. Backing the pilots is the easy way because they have to have medicals, sim checks and be good at their jobs.

[ACAV8R]

Air Canada is dead set against this because they don't want 77+ year old baggage handlers, CSAs, Flight Attendants etc etc. Ramp wise I think efficiency would be thrown out the window. I'm not slagging anyone just saying a 35 year old can throw more bags per hour then an 80 year old.

It's NOT just about pilots here.

[ACAV8R]

haha BLZD1 you beat me too it!

[Understated]

Air Canada is dead set against this because they don't want 77+ year old baggage handlers, CSAs, Flight Attendants etc etc.

On the surface that makes sense, but not when one looks deeper. If that was their objective, they would have settled with the pilots and not filed for the JR. They could have avoided the above outcome for several years longer--at least until one of the other union's took the Tribunal's decision to the Federal Court.

Ironically, their own actions, in filing the JR, will likely result in precisely what they are trying to avoid, by reason of the fact that within a few months now, when the JR decision is released, the mandatory retirement exemption in the CHRA will be struck down, ending mandatory retirement not only for all Air Canada employees, but for every employee in the federal jurisdiction.