Federal Court Judicial Review Hearing Completed

[Thirteentennorth]

Message deleted. Too confused!

[cdnpilot77]

Wow, didn't even have enough time to read all that (I did anyways) how the hell did you have the time to write all those responses? but it was very insightful from both perspectives.

Understated, you never answered my question though to which both Raymond and Vic777 responded.

Ps. Thanks for the good reading material!

[Understated]

Understated, you never answered my question though to which both Raymond and Vic777 responded! Ps. Thanks for the good reading material!

No problem. It's nice to see that people on different sides of an issue can actually have a meaningful discussion that deals with issues, not with personalities.

In answer to your question, I am hoping that the decision is made for me, by default. I honestly believe that we are coming to the end of the line in the dispute, and that things are going to crack wide open here within the next few months, if not sooner, so the choice is one that I might not have make.

Like others here, once I find that the die is cast, I believe that we shall all have to live with the results. My only hope is that when the die is cast, others will also live with the results, especially if we have some senior pilots coming back on top of us in the seniority list.

I must make one qualification to the above answer, however. My future perspective will depend to a great extent on what ACPA attempts to do, should mandatory retirement be prohibited. This is why I posed the questions re Section 7 and Section 10 of statute. I sincerely hope that ACPA does not attempt another stunt like the MOA of this past summer, to circumvent the law against age discrimination by attempting to create a separate set of wages and working conditions for over-age 60 pilots who either elect to remain employed or to return to employment after the Tribunal rules in their favour. That would be a guaranteed recipe for lots more litigation and lots more dissention in our ranks.

One other part of the equation that was not discussed here was the DFR complaint issue. The outcome of that hearing is one more factor that could moderate how we all live together in the future, with or without mandatory retirement.

[vic777]

My only hope is that when the die is cast, others will also live with the results, especially if we have some senior pilots coming back on top of us in the seniority list.

I sincerely hope that ACPA does not attempt another stunt like the MOA of this past summer, to circumvent the law against age discrimination by attempting to create a separate set of wages and working conditions for over-age 60 pilots who either elect to remain employed or to return to employment after the Tribunal rules in their favour

I'm not sure I understood all Brick Head's points, but I think, at some times, he was alluding to post decision strategies/possibilities. Hopefully, the decision will contain language which will make clear to all involved what their responsibilities are, and future expensive litigation and damages can be avoided.

[Understated]

I'm not sure I understood all Brick Head's points, but I think, at some times, he was alluding to post decision strategies/possibilities.

This is what I derived from his posts, followed with my view of his suggestions:

1. There is no liability until a Tribunal order says there is liability.

This approach totally fails to take a realistic approach to the problem. It’s like saying that you don’t have a problem because you haven’t run out of fuel, yet, even though your gauges are on EMPTY. It fails to acknowledge the potential impact of the Thwaites decision and, given that it will be based largely on an interpretation of facts (does Air Canada have more than 50% of the pilots in the comparator group, and thus is age 60 the ‘normal age of retirement’?), not on legal argument, overturning the Tribunal’s finding in favour of the complainants will be all but impossible. Courts cannot easily overturn decisions that are based on the Tribunal's interpretation of the evidence, as opposed to interpretations of the law.

2. Damages will flow from the date of the decision, not from the respective dates of termination, and the amount of the liability, if any, is uncertain.

This suggestion that damages will commence only after the date of the decision is, from what I have been advised, incorrect. The suggestion follows what the Tribunal decided in Vilven-Kelly, but fails to acknowledge that Vilven-Kelly was decided on the Charter issue, not on the merits of the statutory provision itself that will apply to everyone but Vilven-Kelly, and that liability for all of the remaining pilots will flow from their respective dates of termination. There are approximately 150 pilots waiting for a hearing, in order to arrive at a remedy award, including a damage award. Based on Air Canada’s evidence at the Vilven-Kelly hearing where their own witness said that Neil Kelly should be paid damages in the amount of the difference between his salary and his pension, or $10,000 per month, that makes a huge admitted potential liability, assuming that the complainants don’t get any more than what Vilven-Kelly got, a very tenuous assumption at best, given their damage award was limited by the Charter damages restriction, as viewed by the Tribunal.

3. If mandatory retirement is outlawed, the union can still negotiate changes to the collective agreement to ensure that pilots over age 60, in his words, don’t “consume more than their allotment” of the net career benefit that they are entitled to.

This is where things get really dangerous, for a number of reasons. First, the suggestion fails to accord sufficient significance to the fact that the repeal of the exemption by Parliament, or the striking down of the exemption by the court means that discrimination on the basis of age is no longer legally tolerated. That prohibition is patently clear within the provisions of the CHRA, but he suggests that the premise on which the then defunct exemption provision was based can still be used to essentially treat pilots who are over age 60 differently than other pilots are treated, within the context of the collective agreement, to their detriment and to the younger pilots’ benefit, as a result of this alleged “collective bargaining equity” principle related to the deferred compensation scheme.

Not only is there no basis in law for that assumption, but the fact that others have apparently implemented such practices in provincial jurisdictions and nobody has blown the whistle on them is no justification for attempting to overcome the express written prohibition from doing so that is found in Sections 7 and 10 of the CHRA. As I said above, that would be a recipe for much more legal conflict.

I would hope that after the cheques are finally written to cover the damages for what the union and the employer have already done, someone in either or both Air Canada or ACPA will rethink this alternative. It takes two to tango.

[Thirteentennorth]

Understated, may I be so bold as to introduce another possible wrinkle?

It is entirely within the realm of possibility that, if the Thwaites decision goes against mandatory Age 60 retirement, that the courts may order all 150 litigants reinstated. Now, it is my understanding [correct or incorrect] that, of the 150-odd litigants, only 20% or so are REALLY interested in returning to line flying. The rest are looking for a financial payout. My point is that the courts may order their reinstatement and any monetary damages may be contingent on them accepting reinstatement. IOW, ya want the $$, ya gotta come back and fly the line.

How many of the 150 litigants do you think are ready to return for training. How many have maintained their licences, apart from those who have taken other flying jobs, i.e.

The other wrinkle is, if mandatory retirement is overturned, why should it only be the 150 who can return. Why not all, including myself, who complied with what may now be an illegal order [Age 60 retirement]. Yeah, yeah, I know all about the 1 yr limit to make an action before the CHRT but that limitation is itself intrinsically discriminatory. The CHRT, in fighting Age discrimination, is itself acting in an arbitrary and discriminatory manner. And according to your own many statements, Thwaites is not about "Charter Rights" but is broader than that. On that basis, therefore, to arbitrarily limit reinstatement to Vilven and Kelly plus the other 150 FP60 litigants would, in itself, be discriminatory. Anyone who retired under the Mandatory Retirement provisions of the Collective Agreement could, theoretically, apply for reinstatement.

Pandora's Box is open...

[Understated]

How many of the 150 litigants do you think are ready to return for training. How many have maintained their licences, apart from those who have taken other flying jobs.

The other wrinkle is, if mandatory retirement is overturned, why should it only be the 150 who can return. Why not all, including myself, who complied with what may now be an illegal order [Age 60 retirement]. ... Anyone who retired under the Mandatory Retirement provisions of the Collective Agreement could, theoretically, apply for reinstatement.

I cannot speak for any of the other members of our group, especially about how many of those whose employment has been terminated may still be planning to return. From what I am led to believe, the group includes a significant number of pilots who are still employed, but who nevertheless support the removal of mandatory retirement. I do know that ACPA has openly stated that it does not represent pilots who disagree with mandatory retirement—I heard those words from one of the elected representatives, with my own ears.

Other than for the pilots who are listed in the Thwaites proceeding, most of us do not even know who else is in our group. That information has never been provided to us. So your question about how many may wish to return might better be posed to you know who.

I do know that the Thwaites decision that is pending is a liability decision only, not a remedy decision. If the Tribunal finds that their employment was wrongfully terminated, it cannot order anything, including reinstatement, without a further hearing. The approximately 80 others who are in the queue behind Thwaites are one further step back yet.

It will be up to the individuals who have the benefit of a liability decision behind them to tell the Tribunal what they individually seek by way of remedy. This is not a class-action lawsuit. It is a collection of individual complainants with individual fact situations, with only one common element—they were all terminated for the same reason. Once they put their individual remedy arguments forward, it will then be up to the Tribunal to evaluate each of them, just as it did for the two reinstated pilots, with input at the hearing from both Air Canada and ACPA.

Nothing precludes any of the parties from attempting to settle these claims at any stage, without litigation. Hopefully, we won’t have to go through a week of hearings for each individual to establish 150 different remedy awards.

Regarding your question, why only 150? The Tribunal and the courts are constrained by the statutory provisions. They must make their decisions based upon the legal structure and constraints of their enabling legislation, not by incorporating extraneous considerations into their decision-making. That would open them to an allegation of exceeding their jurisdiction. Proper exercise of their judicial or quasi-judicial authority is, by definition, not arbitrary or discriminatory.

The statutory limitations are those imposed by Parliament. Parliament, being a political body, is by its very nature, an arbitrary entity. Some laws that Parliament enacts may indeed be arbitrary. But that is why we have the Charter of Rights and Freedoms, as well as the courts, to ensure that the laws and the application of the laws are equitable in the result.

[Brick Head]

Understated,

Very good synopsis of the opposing views. The post on process also excellent.

I am going to comment on two things only in an attempt to add understanding of the view point and then let it go. At least for now.

3. If mandatory retirement is outlawed, the union can still negotiate changes to the collective agreement to ensure that pilots over age 60, in his words, don’t “consume more than their allotment” of the net career benefit that they are entitled to.

This is where things get really dangerous, for a number of reasons. First, the suggestion fails to accord sufficient significance to the fact that the repeal of the exemption by Parliament, or the striking down of the exemption by the court means that discrimination on the basis of age is no longer legally tolerated. That prohibition is patently clear within the provisions of the CHRA, but he suggests that the premise on which the then defunct exemption provision was based can still be used to essentially treat pilots who are over age 60 differently than other pilots are treated, within the context of the collective agreement, to their detriment and to the younger pilots’ benefit, as a result of this alleged “collective bargaining equity” principle related to the deferred compensation scheme.

Your use of the words detriment and benefit are a matter of perspective. Younger pilots would not benefit. Instead they would receive the benefit the collective bargaining agent allocated them through the democratic collective bargaining process. Younger pilots do not benefit but rather their situation is neutral. The pilots over 60 do not have a detrimental effect. Having already received the allotment allocated them through the democratic collective bargaining process, they would be able stay and make more. That is not a detriment but rather a gain.

Not only is there no basis in law for that assumption, but the fact that others have apparently implemented such practices in provincial jurisdictions and nobody has blown the whistle on them is no justification for attempting to overcome the express written prohibition from doing so that is found in Sections 7 and 10 of the CHRA. As I said above, that would be a recipe for much more legal conflict.

Sometimes it is a good idea to take a step back and reassess why we believe what we do. Did we come to a conclusion based on fact or assumption. In Physical law that is done by comparing a theoretical outcome, to the real world. For instance if I created a theoretic equation that showed the moon flying into space. Based on a real world comparison it would be discarded.

I know law is not physics. Physical law is constant and rather law evolves. But the concept of using real world comparison as a litmus test for our theories of how this will evolve is still useful. Or at least I think so. If your opinion doesn't match what is actually going on in the real world then it should be reason to question your opinion.

These are a few quotes from the VK ruling. Every word in the ruling has a reason. These quotes, combined with what is taking place at the Provincial level, should be enough in my opinion, to at least make one question why they believe what they do. Not saying this will change your opinion, but realize your opinion does not fit with what is going on around us, in the real world. Your opinion amounts to a drastic change not just to collective bargaining but also to the way the provinces have been dealing with the same issue.

A. The Factual and Social Context of the Present Legislation


[29] Dr. Jonathan Kessselman, a labour economist at Simon Fraser University in the graduate program of Public Policy, testified that the abolition of mandatory retirement has not spelled the end of deferred compensation systems and all of the benefits such systems bring to the labour market.

[30] Deferred compensation is the practice of paying workers less than their productivity in earlier years and more than their productivity in later years. In addition, most deferred compensation systems, like that of Air Canada, provide deferred benefits such as pensions and post-retirement benefits that rise with the worker’s tenure.

[31] Both employers and employees like the deferred compensation system. It permits wages to rise with age, promotes employee loyalty in the expectation of rich pension benefits and encourages employers to invest in worker training. In exchange for the deferred benefits, employees may agree to terminate their employment at a specific age.

[34] Professor Carmichael, a labour economist from Queen’s University, agreed that in jurisdictions where mandatory retirement has been abolished deferred compensation, seniority and other positive features of the current labour regime have continued. And there are alternatives to mandatory retirement that have the effect of preserving the benefits of the current system.

[35] One such alternative is to provide a lump sum payment to employees upon retirement at a certain age to induce them to retire. He pointed out that this approach was introduced in Quebec universities when mandatory retirement was abolished in that province.

[36] Another alternative is to permit workplace parties to renegotiate the terms and conditions of employment at an agreed upon age. He stated that this has been successfully done in some Ontario universities where professors who reach a certain age agree to stay on as professors emeritus.

[37] However, Professor Carmichael does not necessarily subscribe to these alternatives. The abolition of mandatory retirement would allow the current generation of older workers to keep all of the benefits of a deferred compensation system and avoid the responsibility that comes with those benefits – passing them on when their time to retire comes.

B. Are the Objectives of the Legislation Pressing and Substantial? Oakes test

[45] In the light of the above-noted considerations, can it be said that the goal of permitting mandatory retirement to be negotiated in the workplace continues to be of pressing and substantial importance? The alternatives to mandatory retirement, which are in use in other jurisdictions, effectively preserve the benefits of the current system without infringing a constitutionally protected right. How then can the goal of permitting freedom of contract in this area be sufficiently important to warrant overriding a constitutional right?

[46] The Respondents argued that deference should be shown in situations such as the present,when legislation is aimed at mediating between the competing claims of different groups. The government should be given “a margin of appreciation to form legitimate objectives based onsomewhat inconclusive social science evidence” (RJR-MacDonald, para. 104; Irwin Toy, p. 990).

[47] But the social science evidence regarding mandatory retirement is no longer as inconclusive as it was when McKinney was decided. The experts who testified in the present case agreed that the link between mandatory retirement and the benefits that were traditionally associated with it is not as strong as it was once thought to be. There is no dispute that in jurisdictions that have abolished mandatory retirement, deferred compensation systems, seniority and other such socially beneficial systems have survived.

[48] Moreover, it is now clear that the workforce is aging and many individuals need and want to work past the mandatory retirement age. In the light of this fact, it might be argued that preventing, rather than permitting age discrimination beyond the normal age of retirement has become a pressing and substantial need in society.

[49] Given that the benefits associated with mandatory retirement can be achieved without mandatory retirement, it is difficult to see how permitting it to be negotiated in the workplace is important enough to warrant the violation of equality rights that was identified by the Federal Court in the present case.

[50] Based on the above analysis, we have concluded that it can no longer be said that the goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights.

[Understated]

The pilots over 60 do not have a detrimental effect. Having already received the allotment allocated them through the democratic collective bargaining process, they would be able stay and make more. That is not a detriment but rather a gain.

There is a very serious risk of playing amateur lawyer here. Being very reluctant to do that, I ran your above post by our counsel, and here are the comments that I can offer as a result.

The passages that you quote are all contained within the Section 1 Charter analysis portion of the decision, where the Tribunal had to determine whether the violation of Section 15(1) of the Charter was reasonably justified. That analysis necessarily involves a balancing of interests (the Oakes test) to arrive at a decision in the context of the Charter. That analysis is applicable only to the Charter question, and is not entered into at all in the course of normal statutory interpretation.

The Thwaites case and (likely) all subsequent cases do not rely on the Charter. They are strictly statutory interpretation cases. So the Charter tests do not come into play. (If the cases are not successful on the merits of the statutory provision, the Charter argument is still available to be made—we just didn't extend the hearing to include it, because if we win on the merits of the provision itself, the Charter argument is moot.)

The Tribunal and the courts are required to interpret the statutory provisions, Sections 7 and 10, using established principles of statutory interpretation. The only question they ask is, "What did Parliament intend by enacting that provision?" To answer the question, they look first at the plain meaning of the words, then they look at the context of the legislation—namely the purpose of the Act. I have discussed the plain meaning of the words in previous posts. The purpose of the CHRA is expressly stated in Section 2:

"The purpose of this Act is to…give effect…to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have … without being hindered in or prevented from doing so by discriminatory practices based on … age…"

In other words, the CHRA is intended to prohibit discrimination. It is not intended to allow unions and employers to contract out of the legislation, to facilitate collective bargaining including the negotiation of deferred compensations schemes, or to allow the accomplishment of objectives that flagrantly violate the plain meaning of the wording of the statute—namely, other forms of discrimination of the basis of age.

Any attempt to preserve the age 60 distinction with respect to position assignment, working conditions and/or wages, notwithstanding the prohibition on mandatory retirement, would likely put the union and the employer into dangerous territory. The whole purpose of banning mandatory retirement is to eliminate discrimination on the basis of age, not to change the way that discrimination on the basis of age is effected.

Don’t take my word for it. I received legal advice on the issue, and you really owe it to yourself to do the same.

[Brick Head]

Understated,

Legal advice? You don't think the MOA was done with legal advice? You don't think the Ontario Teachers Association, one of the most powerful groups, and largest unions in the country didn't have legal advice?

I got a chuckle out of this comment directed right at the Teachers.

the fact that others have apparently implemented such practices in provincial jurisdictions and nobody has blown the whistle on them is no justification for attempting to overcome the express written prohibition from doing so that is found in Sections 7 and 10 of the CHRA

Who's going to make the phone call to let them know? Can I listen?

The CHRA is intended to prohibit discrimination. It is not intended to allow unions and employers to contract out of the legislation, or to permit the accomplishment of objectives that flagrantly violate the plain meaning of the wording of the statute—namely, other forms of discrimination of the basis of age.

Although the statement is correct, Raymond is making a fatal supposition that what we are talking about in this instance, is discrimination. Different work rules past a certain point, in the context of our situation, is not age based discrimination. It is for the purpose of equity and is therefor not a violation of section 7 or 10

A section 7 or 10 complaint because everyone is being treated equal????? Making sure the collective pie is distributed as intended, and as was democratically agreed upon by the parties, is a valid section 7 or 10 complaint???

Real world.

What did the Tribunal say about alternatives? They said the examples they listed, (one of which is exactly regurgitated in the MOA) do not infringe on a constitutionally protected right. It is only Raymond's opinion that the intent of the alternatives are a violation of section 7 or 10. His opinion is in conflict with the Tribunal itself on the issue, and in conflict with what is transpiring in other jurisdictions.

If the alternatives are not unconstitutional how can there be a viable section 7 or 10 complaint? It is discrimination, or it is not. One or the other. If it is not? It is outside the jurisdiction of the Tribunal and we are free to pursue it. Full stop.

We must remember that one lawyers opinion does not constitute fact. His whole reasoning hangs on a supposition. He assumes alternatives must be unconstitutional and a violation of the charter, without any understanding (or refusing to consider) the underlying fundamental reason for the alternative. He does so even when faced with statements from the Tribunal that says his assumption is wrong.

Just because the statement about the constitutionality of alternatives took place in a portion of the VK ruling that is devoted to balancing competing interests, does not reduce the validity of the statement. It was said. Since it was said it is reasonable to believe they meant it. Or put in the reverse. It is illogical to think they said it, without meaning it. To dismiss its relevance because of location smacks of denial.

The alternatives to mandatory retirement, which are in use in other jurisdictions, effectively preserve the benefits of the current system without infringing a constitutionally protected right.

Ask yourself. If the alternatives do not infringe on a constitutionally protected right, how could a section 7 or 10 complaint be successful? It is one of the other. It can't be constitutional and a violation of the charter at the same time.

[Understated]

If the alternatives do not infringe on a constitutionally protected right, how could a section 7 or 10 complaint be successful? It is one of the other. It can't be constitutional and a violation of the charter at the same time.

You are still mixing apples and oranges. How could a Section 7 or 10 complaint be successful? Simple. By the Tribunal finding that the provisions of the statute have been contravened. The alternative of discriminating on the basis of age does infringe on a constitutionally protected right, namely the right to be free from age discrimination. But the Constitution is not the issue here. The statute is.

I find it hard to believe that you could even think that any Tribunal or any court would find that what you put in that MOA, based upon what we know of it, does not violate both Section 7 and Section 10 of the CHRA, regardless what others are doing. In any event, it would appear that we are headed for a showdown on that point.

[Brick Head]

How could a Section 7 or 10 complaint be successful? Simple. By the Tribunal finding that the provisions of the statute have been contravened. The alternative of discriminating on the basis of age does infringe on a constitutionally protected right, namely the right to be free from age discrimination. But the Constitution is not the issue here. The statute is.

I pulled this out from a page earlier.

Consequently, there is no legal avenue for the Tribunal or the Court to balance anything with respect to the application of Section 7 or Section 10 of the statute. They have to uphold those provisions, as they are enacted, with reference only to the wording contained in the sections, according to the intentinon of Parliament in enacting those provisions. Period. They cannot "read in" other meanings.

By confounding those two steps, you are leading yourself to believe that a “deferred compensation scheme” can play a role in the deliberation of either the court or the Tribunal in the application of Section 7 and Section 10. It can’t.

The Tribunal and the courts are bound to interpret legislation in accordance with the wording of the legislation itself. That wording is very, very specific. No age discrimination.

I let this pass last time while focusing on something else.

Are you under the impression that ACPA can not defend, in a section 10 challenge, the rational for the use of alternatives? That the alternatives must be viewed only on face value by the court? The court will find irrelevant any argument by ACPA and AC that the intent is equality, simply because the court is limited to view the action in isolation and can not consider the broader question of why the action is being committed?

I'm not talking about reading in new meanings as you put it. Do you believe the court can not look at why an action is taking place in a section 10 complaint, to make a determination if the complaint is really about a legitimate discrimination or if the action is really about something completely different?

It is not a discriminatory act to force a Muslim woman to show her face before boarding an aircraft? On face value it is discrimination on the basis of religion. The underlying reason is welfare. Are you suggesting a section 7 or 10 challenge can end this because the court has no ability to look at why the action is taking place?

It is not a discriminatory act to make a pilot do 6 month medicals? On face value it is age discrimination. The underlying reason is welfare. Are you suggesting a section 7 or 10 challenge can end this practice because the court has no ability to look at why the action is taking place?

In any event, it would appear that we are headed for a showdown on that point.

Absolutely. This issue is the epicenter.

[Understated]

Are you under the impression that ACPA can not defend, in a section 10 challenge, the rational for the use of alternatives? That the alternatives must be viewed only on face value by the court? The court will find irrelevant any argument by ACPA and AC that the intent is equality, simply because the court is limited to view the action in isolation and can not consider the broader question of why the action is being committed?

I am going to have to defer to the lawyers on that question. From a plain reading of the statutory provision, which is where I am coming from, you don't have a hope of success, given the facts and the court precedent eliminating your mandatory retirement defence.

On a follow-up issue on the same subject, how does this plan of yours jibe with the current status of Vilven and Kelly? The Tribunal ordered them reinstated to specific positions. Are you still maintaining that the MOA is governing their work relationship? Have you insisted to Air Canada that they be put back where the MOA said they belong? Did Air Canada violate your agreement by putting them back on the payroll at full salary and as B777 F/Os?

If your view of the Section 10 law is correct in the ultimate determination of this issue, why should they be allowed to be paid differently and hold better positions than the others following that you intend to similarly discriminate against?

[vic777]

If an Airline had 3,000 pilots and remained stagnant for ten years, i.e no increase or decrease in Pilots required, and 150 of these Pilots reached age 60 every year. After 10 years the Airline would still have 3,000 Pilots but 1,500 of them would be over age Sixty. I wonder what kind of contract these Pilots would vote for the over 60 group, who would comprise fifty percent of the workforce?

[Johnny Mapleleaf]

There is lots more that doesn't make any sense in Brick Head's reasoning. For one thing, it assumes that 100% of the pilots who reach age 60 are entitled to a full pension. To get the max pension, as I understand it, they would have had to have been hired at age 24, and they would have had to been on the top equipment for the last five years. Doesn't Air Canada have pilots who retire off the A320 and the EMJ? Isn't the average age of hire now around 35?

Also, how can a direct violation of the statute be justified by an academic theory of some university professor who likely has no knowledge whatsoever of how the pay is meted out at Air Canada?

What judge is going to override the express wording of Parliament to water down the impact of human rights legislation that has been referred to by the Supreme Court of Canada as quasi-constitutional law? If this exception is made, what other exceptions should be made, until we get to the point of wondering why Parliament bothered to pass the anti-discrimination law in the first place.

In Ontario, the average age of retirement of teachers, prior to the ban on mandatory retirement, was age 56. Only 2% remained employed after age 60. The percentage near age 65 was likely lower than 1%. The pension plan was apparently so rich that if the teachers elected to continue working rather than retire, they would have to take a severe pay cut to remain working at their normal wage once they were eligible for a pension, let alone at any discounted wage. And that, incidentally, is not a bad, legal alternative to mandatory retirement. ACPA, are you listening?

http://www.etfo.ca/SiteCollectionDocume ... _Brief.pdf

With that few in the upper age bracket, who was left to protest the infringement of their rights that would occur with the union changing their working conditions after age 65, and why would the union bother negotiating that in the first place? What difference would it make if even 100% of 1% stayed on past the previous age of mandatory retirement?

[Brick Head]

There is lots more that doesn't make any sense in Brick Head's reasoning. For one thing, it assumes that 100% of the pilots who reach age 60 are entitled to a full pension.

What? Where in the heck did you get that from?

No one is entitled to a full pension. We are entitled to the compensation, including retirement compensation, that the collective bargaining process allots us. No more. No less.

No one is "entitled" to a full pension.

Also, how can a direct violation of the statute be justified by an academic theory of some university professor who likely has no knowledge whatsoever of how the pay is meted out at Air Canada?

Academic theory?

They are called expert witnesses. Both sides had them. The quotes from them, within the VK ruling, are the quotes the Tribunal itself believed were appropriate under this heading.

A. The Factual and Social Context of the Present Legislation

What you call theory, the Tribunal calls factual.

What judge is going to override the express wording of Parliament to water down the impact of human rights legislation that has been referred to by the Supreme Court of Canada as quasi-constitutional law? If this exception is made, what other exceptions should be made, until we get to the point of wondering why Parliament bothered to pass the anti-discrimination law in the first place.

No judge is going to over ride anything. The bargaining agent has the right to distribution. If that right is challenged on the basis of discrimination, the judge will apply the text of the statute to the alleged discrimination, in the full context of the collective bargaining process.

In Ontario, the average age of retirement of teachers, prior to the ban on mandatory retirement, was age 56. Only 2% remained employed after age 60. The percentage near age 65 was likely lower than 1%. The pension plan was apparently so rich that if the teachers elected to continue working rather than retire, they would have to take a severe pay cut to remain working at their normal wage once they were eligible for a pension, let alone at any discounted wage. And that, incidentally, is not a bad, legal alternative to mandatory retirement. ACPA, are you listening?

That was written in 2004 before Mandatory Retirement was expunged in the Province. Today the Ontario Teachers collect their pension at 65 whether, they work, or not, past that age. Your comments on how exceptional their total compensation can be after retirement is correct as well, however it is not from just pension benefit. Their total compensation is pension benefit plus fill in (separate work rules. Covering for sick/mat leave. Essentially what new entrants in the profession do). And yes it is lucrative. The key is they have to retire to be able to double dip. There was a stink in the paper not to long ago about just how good in fact. Yes they have a good gig.

I agree that would be a not bad, legal, alternative to mandatory retirement. Retire, collect your pension, and double dip under separate rules. Like the idea.

Just a minute, isn't that what the MOA proposed?

What difference would it make if even 100% of 1% stayed on past the previous age of mandatory retirement?

What difference? At this juncture you still don't know what a deferred compensation system is?

[vic777]

I agree that would be a not bad, legal, alternative to mandatory retirement. Retire, collect your pension, and double dip under separate rules. Like the idea.

Just a minute, isn't that what the MOA proposed?

I'm glad you included the at the end of this statement, else I'd accuse you of trying a con, certainly for the MOA you must read the lines, and between the lines. Bottom line, would you trust AC? Would you trust the ACPA leaders? What would you base this trust on, past negotiations? See my post above, when do you think 25% of AC Pilots will be over Sixty years old? Let's assume 500 over Sixty in three years for a start.

[Brick Head]

If an Airline had 3,000 pilots and remained stagnant for ten years, i.e no increase or decrease in Pilots required, and 150 of these Pilots reached age 60 every year. After 10 years the Airline would still have 3,000 Pilots but 1,500 of them would be over age Sixty. I wonder what kind of contract these Pilots would vote for the over 60 group, who would comprise fifty percent of the workforce?

Vic777,

That is an excellent point. The democratic process would likely evolve the CA into something other than 60 sometime in the future regardless of what happens now. The point I am making is the collective decides not individuals. That isn't necessarily a bad thing either. A transition could be seen as equitable.

But you touched a much bigger social issue. Go read the link Jonnymapleleaf posted as it talks about the slippery slope this causes, and has caused in the US, who threw out mandatory retirement long ago. The most vulnerable being the senior poor ( an example of competing rights within society). The fact that people work longer, gets used as justification to move retirement benefit back further and further. The document was written in 2004 and the concerns the Teachers put forward then, are proving to be very real today. Since that time we have seen one hit to CCP here in Canada, and another rumored. Two years ago changing the way CCP at 60 was calculated, to encourage working later. Now rumors of moving CPP benefit to 67. The US just moved to 67. So when people work to 67 will that be justification to push it back further?

Are we enabling a work till you die society with our actions?

What about the right to retire in dignity?

[Brick Head]

I agree that would be a not bad, legal, alternative to mandatory retirement. Retire, collect your pension, and double dip under separate rules. Like the idea.

Just a minute, isn't that what the MOA proposed?

I'm glad you included the at the end of this statement, else I'd accuse you of trying a con, certainly for the MOA you must read the lines, and between the lines. Bottom line, would you trust AC?

Your right I embellished. The MOA didn't offer a true double dip. It was a wage minus pension. A true double dip would be wage plus pension.

Guilty as charged.

[JayDee]

What about the right to retire in dignity?

Finally after your 300 or so posts on this subject, you have touched on something rarely discussed.

Retiring with dignity.

After XX years working for this airline I was unceremoniously met at the door by a supervisor I didn't know, handed a picture of the airplane I last flew and suddenly it was all over. I loved my job. I did not want to retire but had no choice in the matter. The only thing I can honestly say I don't miss are the chicken dance simulator checks.

Forcing people out the door - literally kicking them to the street against their FREE will in the way ACPA & AC do, simply because they have reached an arbitrary age is hardly retiring with dignity but rather insulting and a slap in the face just for good measure.

It's 2011 shortly. Not the 1950's when this type of thinking was rampant. It's high time this issued was settled to reflect societal values & the economic realities of this century.

[Johnny Mapleleaf]

What you call theory, the Tribunal calls factual.

What the Tribunal calls "factual" when simply refering to an observation of a witness, rather than deciding a question before it, is what I would call irrelevant, and has no value in predicting how another Tribunal might truly consider the question when the issue is properly argued before it, or in predicting how a court would view the express violation of the statutory provisions.

Retire, collect your pension, and double dip under separate rules. Like the idea. Just a minute, isn't that what the MOA proposed? ?

Three errors. First, no retirement, because mandatory retirement is illegal. Forcing people to retire will no longer be an option, in case you didn't get it, so there is no ability to collect the pension.

Second, with no mandatory retirement at age 60, pilots will be able to continue to accrue pension contributions and years of service. Pay will come completely from the pay tables, according the proper position that the person can hold according to his seniority. No blended pay composition.

Third, no double dipping because they are not retired. They are active employees with the same rights as every other member of the bargaining unit.

You still haven’t answered my question about how you plan to discriminate against the pilots after Vilven-Kelly, and how that fits in with where Vilven-Kelly are right now. What is the current status of that MOA, and what changes do you plan to take into consideration the fact that others will soon be joining Vilven and Kelly back at work?

[Understated]

The key is they have to retire to be able to double dip.

So, please clarify the situation for me. Are you saying that they are not required to retire at age 65, and if they don't retire, they are not subjected to different pay and working conditions? In other words, the methodology that you are suggesting is appropriate under the MOA is not imposed by the colletive agreement, but is voluntary? Nobody is forced to subject themselves to substandard pay, working conditions and employee benefits (MOA), if they elect to not retire at age 65, but if they do not elect to retire they cannot benefit from the double dipping?

They are not being forced to change their working conditions at that age because of the alleged “expiry” of their supposed “entitlement,” as is the case with the MOA that was put into place here, but they are being encouraged to do so with a huge carrot. Those that elect not to take the carrot can continue to remain within the constraints of the existing collective agreement, accruing their pension, exercising their bidding rights etc. with no change in status?

If so, that is a horse of a different colour. Making the option of double-dipping available to anyone who wants to stay past the former age of mandatory retirement is completely different, legally, from forcing people into that option on the basis of some alleged "collective good" or "expired entitlement," and your argument that that system is a model for overriding the express prohibition against age discrimination under the CHRA in favour of a Memorandum of Agreement that provides the double-dipping alternative, in our case, is toast.

Encouraging them to retire and to then double-dip is not a violation of the statute. Forcing them to do so is a violation. The fundamental difference in what you are proposing here is not a forced retirement but a change in status (position assignment, pay, working conditions, removal of pension accrual etc.) of individuals while they are still employed, based on a prohibited ground of discrimination. That is about as clear a violation of the statutory provisions as you can get.

Why don't you post a link to the collective agreement so that we can actually look at the provisions of this supposed arrangement, rather than simply talking about it in the abstract?

[Brick Head]

Why don't you post a link to the collective agreement so that we can actually look at the provisions of this supposed arrangement, rather than simply talking about it in the abstract?

Understated I am not trying to misrepresent anything here. It is a statement of fact, within the VK ruling, that some groups of educators in Ontario have employed separate work rules past a certain age.

The Ontario Teachers Pension plan has nearly 300,000 retired and active members. Those members come from 72 school boards. Those school boards have separate contracts for elementary and secondary school teachers. Then there are those represented by the teachers federation through separate contracts. Those that work at colleges and universities. And those that work for the government. All separate collective agreements.

I have no idea which of these contracts the Tribunal was referencing when they made the statement of fact that they exist. I haven't questioned the validity of the statement. Only accepted that it was true. I would assume your council, or council for the commission, would have done something about it, if someone tried to enter evidence that he believed to be false. I must therefor surmise your council knows it is true.

[36] Another alternative is to permit workplace parties to renegotiate the terms and conditions of employment at an agreed upon age. He stated that this has been successfully done in some Ontario universities where professors who reach a certain age agree to stay on as professors emeritus.

I am sure if you choose to take on the exhaustive study of the collective agreements you will find a miss mash. Everything from doing nothing, to those contracts as reference by the Tribunal, that have separate work rules past a specific age.

Why are you challenging me on this fact? I don't care what you believe, nor should you care what I believe. What matters is what the court says. They say it is going on and I believe them. They said it does not infringe on a constitutionally protected right and I believe that too.

Your having a lot of trouble with paragraph 36 aren't you?

http://www.ohrc.on.ca/en/resources/fact ... retirement

This does not mean that employers cannot have retirement programs based on a certain age. Rather, it means that such programs cannot be mandatory, except for judges, masters, and justices of the peace under the Courts of Justice Act, for whom there is a specific exemption under the Code.

age-based distinctions under the Workplace Safety and Insurance Act are shielded from scrutiny under the Code.

[Raymond Hall]

I have no idea which of these contracts the Tribunal was referencing when they made the statement of fact that they exist. I haven't questioned the validity of the statement. Only accepted that it was true. I would assume your council, or council for the commission, would have done something about it, if someone tried to enter evidence that he believed to be false. I must therefor surmise your council knows it is true.

[36] Another alternative is to permit workplace parties to renegotiate the terms and conditions of employment at an agreed upon age. He stated that this has been successfully done in some Ontario universities where professors who reach a certain age agree to stay on as professors emeritus.

Why are you challenging me on this fact? I don't care what you believe, nor should you care what I believe. What matters is what the court says. They say it is going on and I believe them. They said it does not infringe on a constitutionally protected right and I believe that too.

Your having a lot of trouble with paragraph 36 aren't you?

http://www.ohrc.on.ca/en/resources/fact ... retirement

Be careful about what you believe.

I don't know about whether Understated or anybody else is having trouble with Paragraph 36, but I certainly am not. The Tribunal, in Paragraph 36, was referring to the testimony of Professor Carmichael. Professor Carmichael said that the practice of renegotiating contracts of professors when they reached age 65 did in fact take place.

What the Tribunal did not quote him as saying, which he used to qualify the statement that the Tribunal did quote, was that that practice ended with the abolition of mandatory retirement in Ontario in December, 2006! It was an alternative to mandatory retirement that existed only before mandatory retirement was prohibited! The Tribunal did not say, as you suggest, that renegotiation of the employment contract at age 60 or 65 does not infringe on a constitutionally protected right.

Now, whether the Tribunal understood that or didn’t understand that is irrelevant. The Tribunal's statement that renegotiation of contracts at age 65 was an alternative used (prior to the repeal of mandatory retirment) is no authority for attempting to impose that type of arrangement after the repeal of mandatory retirement in direct contravention of Sections 7 and 10 of the CHRA.

As Understated stated in his understated way, your argument is toast! He is correct. Here is the appropriate excerpt from the official transcript of his testimony, January 24th, 2007, Pages 1490-1492:

1490
StenoTran
1 come back to that as well.
2 DR. CARMICHAEL: Okay.
3 MS TREMBLAY: We have talked with
4 Dr. Kesselman about the link, the potential link
5 between deferred compensation and mandatory retirement.
6 Can you tell us whether there is a
7 link and if there is a link how does that play out?
8 DR. CARMICHAEL: Okay.
9 I think I said at the very beginning
10 there is this puzzle as to why is there mandatory
11 retirement if there isn't deferred compensation. If
12 workers aren't getting paid more than they are worth at
13 the end of their career it is awfully hard to
14 understand why the firm would want them to go home,
15 because if they are getting paid less than they are
16 worth then the firm would want to keep them.
17 There are lots of reasons now why
18 people think you would like to have deferred
19 compensation. Workers like it, firms like it. I have
20 gone through a few of the arguments in my report.
21 I would say the original argument
22 that Ed Lazear presented is no longer sort of seen as
23 probably the most important one, but there are so many
24 other good things that happened when compensation is
25 deferred. The most interesting one to me was that you
1491
StenoTran
1 can actually survey people and ask them and you can
2 offer them a wage profile that increases over time, one
3 that is flat over time or one that decreases over time,
4 and you can explain to them very clearly that if you
5 have a wage profile that pays you more money when you
6 first join the firm and then you get a wage cut for the
7 rest of your life, if you like, you can explain to them
8 that you can take that extra money and put it in the
9 bank and you will actually end up richer at the end of
10 your career than you would if you have a wage profile
11 that rises, and people will still choose overwhelmingly
12 'I would like to have a wage profile that rises."
13 So it is something that is just very
14 much what people like. People like to get a raise
15 every year, you like to feel that things are getting
16 better as you move through your life. So there are
17 lots of reasons why wages rise over time.
18 The link between this and mandatory
19 retirement is not actually as strong as perhaps you
20 might think, because there are lots of other ways to do
21 things at the end of your career.
22 Ed Lazear got this right when he
23 first wrote his paper, he said mandatory retirement is
24 consistent with the fact that people are getting paid
25 more at the end of their career than they are worth,
1492
StenoTran
1 but there are other things we can do. What he actually
2 suggested as being the best thing to do is simply to
3 renegotiate the wage at age 65.
4 So the idea is that you enter this
5 long-term relationship with your firm. You in a sense
6 lend money to your firm when you are young because you
7 are working for less than you are worth, and the firm
8 in a sense pays you back for that as you get older
9 because you are getting paid more than you are worth,
10 and there is a time when those payments have to end.
11 It's like if you have a loan, you have taken out a loan
12 and you have paid it off and so now the payments have
13 to end.
14 But that doesn't mean the job has to
15 end, it just means that the benefits that you are
16 getting through seniority or these extra wages should
17 end. So he argued that what you really ought to do is
18 just renegotiate the wage at that point in time.
19 I will say that this is what
20 happens at universities, or what used to happen at
21 universities, in Ontario at my university, until
22 mandatory -- until basically a few months ago when
23 this was ended.

Later, he admitted that his theory doesn't even apply in our case. When challenged, he refers to the ACPA 2006 Vote of its members regarding mandatory retirement, and says he would change his mind about this theory as it applies to us:

1574
StenoTran
1 of course.
2 It is true is the fact that it has
3 been legislative change as opposed to particular
4 laws being ruled unconstitutional, but at the same
5 time, of course, legislatures take all kinds of things
6 into account.
7 MR. PAGOWSKI: Thank you.
8 Those are my questions.
9 THE CHAIRPERSON: Mr. Hall...?
10 EXAMINATION
11 MR. HALL: Good afternoon,
12 Professor Carmichael.
13 DR. CARMICHAEL: Good afternoon.
14 MR. HALL: I am missing the link that
15 you suggest exists between mandatory retirement and the
16 benefits received by older workers.
17 In your paper on page 5 of 15, in the
18 second paragraph you state:
19 "Mandatory retirement is the
20 quid pro quo for these benefits
21 enjoyed by older workers in
22 firms with a deferred
23 compensation scheme."
24 DR. CARMICHAEL: Right.
25 MR. HALL: I can't see the link on
1575
StenoTran
1 the facts of the case before us of how mandatory
2 retirement has anything to do with the benefits that
3 the older workers are getting.
4 DR. CARMICHAEL: I actually made that
5 point myself when I was discussing the vote that was
6 taken, that in fact in that vote that was taken there
7 was no explicit link whatsoever that -- and this is
8 something that I have learned in a sense since I wrote
9 this paper I have to say, at least my opinion has
10 changed a little bit.

[Understated]

My God! What a miserable realization.

Here we have someone from ACPA telling us that even if mandatory retirement is dead, it can still maintain the equivalent effect because it has this rock solid principle called the “deferred compensation scheme” that will guarantee that the Tribunal and the courts will ignore the plain ordinary wording of the human rights law that would otherwise prohibit them from what they are doing.

Truth is, he says, it is all part of a big trade-off. Pilots who don’t know when its their time to leave can be rerouted to entry-level positions with compromised pay and working conditions, because the Tribunal will buy into this concept of preventing them from getting more than what they were entitled to get under the previous system.

The rock solid economic principle that the Tribunal will accept, it turns out, is nothing more than an economic theory published in a paper by an obscure 1980’s economist named Ed Lazear. But Lazear was not their witness before the Tribunal. No. Their witness was another economist who read Lazear’s paper! Economist #2 picked up the deferred compensation system torch and went onto the lecture circuit and witness stands, saying, “This is what the economist Ed Lazear says... Blah. Blah. Age 65 workers are overpaid. Blah. Blah. Renegotiate their contracts when they hit the age of mandatory retirement.”

The Tribunal listened to this second economist and made reference to his observation of Lazear’s theory in its decision. In particular, it cited the example of one alternative means of dealing with mandatory retirement, namely renegotiating the employment contract as of the date of mandatory retirement. But the Tribunal neglected to state that the witness actually told them that the example itself had been rendered void by the recent repeal of mandatory retirement.

Now it really doesn’t matter whether the Tribunal, in referring to the example in its decision, remembered that he was only talking about the period pre-repeal of mandatory retirement. It simply stated that the economist mentioned that renegotiation of the contract on the date of mandatory retirement was one means of accomplishing the same objective as mandatory retirement. The Tribunal made no statement that this method could be used to overcome the age discrimination prohibitions, post-repeal.

ACPA picked up on the Tribunal’s comment regarding the renegotiation of the contract, wrongly assuming that it applied to the period post-repeal of the mandatory retirement legislation. Then, without bothering to verify the source of the comment, the factual basis supporting it, or the context of the example (pre-mandatory retirement, not post-mandatory retirement) it proceeded to use that example to argue that the Tribunal endorsed the renegotiation of the contract as of the date of mandatory retirement as a legal means of dealing with what it saw as the adverse consequences of repealing mandatory retirement. Wrong!

It assumed that the Tribunal and the courts would accept the renegotiation of the contract as of the former age of mandatory retirement as justification to ignore the express wording of Parliament in the statute prohibiting discrimination on the basis of age. Wrong!

And it didn’t stop there. It then moved its deferred compensation argument into the workplace via a Memorandum of Agreement that, on its face, flagrantly violates the statute's prohibitions against discrimination on the basis of age. And now it is apparently stating that this principle is going to be used as a basis for adjustment of the wages, working conditions and benefits of other pilots who subsequently gain reinstatement, once they have their inevitable day in court.

No problem, it says. The Tribunal and the courts will know that the case is not really about human rights—it is about collective bargaining, deferred compensation, and preventing these villains from getting more than their fair share. The Tribunal and the courts will "interpret" the legislation to incorporate this deferred compensation principle into the outcome, denying what Parliament expressly intended to ensure, a prohibition of age discrimination.

When the Tribunal and the courts eventually challenge their assumption that the statute should be interpreted their way, they can say, No worry. The Ontario teachers do it, so you can let us do it, too. Can’t find the evidence of that—there are too many teachers’ contracts to look at to find out where they do it, but we are sure they do it, so just take our word for it.

Oh, yes. They are also telling us that they got legal advice telling them that they could do this.