CHRT Remedy Ruling?

[yyz monkey]

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.

AC already allows the retirees from the ramp (and CSAs as well, IIRC) to phase in part-time after they retire. A lot of them are in the bag rooms, chucking baggage.

[Thirteentennorth]

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.

US, that's a very good post with which I am in almost full agreement, except for one point. The CHRT made it quite clear that this was not a precedent-setting case and thus, for the purpose of jurisprudence, it can not be used in future cases. Now, my old pal Raymondo can correct me but what this means, I think, is that Thwaites, et al can not expect to automatically receive the same settlement as V&K, and that each of their cases will have to be argued on their own merits.

It may be that it will end up the same, but stare decisis does not apply here. Or so the CHRT says.

Cheers.

[Mig29]

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.

AC already allows the retirees from the ramp (and CSAs as well, IIRC) to phase in part-time after they retire. A lot of them are in the bag rooms, chucking baggage.

Yes, AC does have that in place, again thanks to Unions who allowed it in the first place. Basically you have people who retire, get payed a (proportional) pension, but are allowed to come work "part-time" and get payed as well. No problem there, except they get to keep their great seniority and schedule!! WTF??!! So if you want to work, work then, if you want to retire - retire! And if you want to work less hours, apply for part-time, not this "phase in" crap!! I felt that first hand on my skin and many other employees as well and believe me people are pissed, because they've been on the bottom of seniority for the last decade! No one is retiring (in proper ways), and AC is not hiring much at all, because they have "temps" come in every summer/Christmas and work for half the pay. Another brilliant idea! And then they let them go....no benefits and no company service accruing. And the process has been going on for years now....some people are still on the 'temp' status for the last 5 years!! Is that right and fair? Is that how you should treat employees???
Maybe you don't care, because it's only rampies, sales people and F/As....but imagine they start doing that with pilots. You know, seasonal stuff just like Canjet.

How would you feel now?? Oh, but it won't happen at AC, right???

There.....I feel better now

[Brick Head]

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.

Whoa! Huge question mark there understated.

1) The tribunal limited the VK ruling to two people, in a specific case. They said it in the ruling and emphasized it in remedy. If it gets through a JR, and to the supp court, (questionable imo) it applies to two people in a specific case.

This is not a precedent and as such not admissible in another case.

You are correct, Thwaites is around the corner. And yes Thwaites may change the normal age of retirement for AC pilots. However until such time as we know that age? How it is to calculated. What is the comparator group. It is not possible to know if normal exceeds 60. 61, 62 ,63 ?

The last (failed) test said 60. The test before that said 60. If it does change. When did it do so? I didn't see the memo clarifying how we are to figure all this out. Why? Because it isn't out. Cause that is what the Thwaites ruling will do. Until then we would have had to be fortune tellers to know exactly what was expected of us.

Liability does not begin until one is breaking, or should have known they are breaking, the law. At this very moment no one is breaking the law. The V&K ruling can not change the law without the courts rubber stamp. Now, based on remedy, it even appears the Tribunal may not even want the rubber stamp.

Did the Tribunal just attempt to truncate the V&K direction, in favor of the more traditional approach to this issue?

IOW "normal age" Thwaites (68 +2)

[Understated]

Whoa! Huge question mark there understated. The tribunal limited the VK ruling to two people, in a specific case. They said it in the ruling and emphasized it in remedy. If it gets through a JR, and to the supp court, (questionable imo) it applies to two people in a specific case. This is not a precedent and as such not admissible in another case.

I have read and re-read your post, and have come to the conclusion that you have a fundamental misunderstanding of why these two Tribunal decisions cannot be relied upon as binding precedent. It is not because they are rulings strictly about only these two pilots. It is because of the limited jurisdiction of the Tribunal. It can only interpret law, not change it. When Tribunal decisions are reviewed by the Federal Court, the Court's decision is binding precedent because the Court does have the jurisdiction to change the law.

In the JR that will be heard on November 22nd, as I understand it, there are two legal questions that will be determined by the Federal Court.

The second issue is a minor one, the first issue is a major one. The second issue is the BFOR issue. Did the Tribunal err in not buying Air Canada’s argument that there was a bona fide occupational requirement that justified maintaining the mandatory retirement provision of the collective agreement? That, I believe, is a non-issue, for a whole series of reasons that we can deal with later, when we talk about the JR itself.

The first and only major issue in that proceeding is whether the Tribunal erred when it found that the breach of Section 15 of the Charter by Section 15.1.c. of the CHRA was not justified under Section 1 of the Charter. That is where almost all of the argument will lie, and that is the legal issue that is likely heading to the Supreme Court of Canada. This determination is also the determination that is keeping all the other CHRT Tribunal cases on hold.

As with all Charter jurisprudence, the answer to the question has almost nothing to do with the facts surrounding the individuals who bring the case. Specifically, it is not about only those two pilots. It is about whether the breach is justified. That is all. The Tribunal found that it was not.

If the Federal Court upholds the Tribunal’s determination, it will be striking down Section 15.1.c of the CHRA, which means that all mandatory retirement in the federal jurisdiction is history. Its over.

The reason that the Tribunal in the current case said that this case is not a precedent, as I understand the law, is that the Tribunal has only the jurisdiction to “interpret” the law, not modify it. Hence, the Tribunal decision is not binding on any other body, or even on itself.

Not so with the Federal Court. In the same way that the Federal Court overturned the previous Tribunal decision to find that Section 15.1.c violates Section 15 of the Charter (a decision that is binding on all other lower courts and tribunals), a determination that Section 15.1.c of the Act is not justified under Section 1 of the Charter will also be binding on all other lower courts and tribunals. Game. Set. Match.

[Mechanic787]

In the same way that the Federal Court overturned the previous Tribunal decision to find that Section 15.1.c violates Section 15 of the Charter (a decision that is binding on all other lower courts and tribunals), a determination that Section 15.1.c of the Act is not justified under Section 1 of the Charter will also be binding on all other lower courts and tribunals. Game. Set. Match.

I believe that your summary of the legal landscape is spot on. That is why I and the managers where I work are following this issue so closely. We are about two to three months at the most away from the Federal Court releasing its decision on the upcoming judicial review and changing the ballgame for everyone in the federal jurisdiction, I would say.

[Raymond Hall]

Air Canada Flight Operations contacted both George Vilven and Neil Kelly yesterday and asked them to report to training in Toronto next Monday, November 15th.

It advised them that they will be undergo update training on current flight ops procedures (the FOM), then commence immediate aircraft ground school. Their simulatior training will follow as soon as possible afterwards. It requested them to confirm that they both wished to be assigned to the Boeing 777 aircraft as First Officers, which they did. Neil Kelly is expected to be based in Toronto, and George Vilven is expected to be based in Vancouver, on completion of their line indoctrination training.

One of the consequences of being reinstated as active Air Canada pilots effective this past Monday is that they also regained their full status as active members of ACPA, with all rights available to them that are available to other members of the Association by reason of that membership. That includes, of course, the right pursuant to the provisions of the Canada Labour Code to be fairly represented by the Association in all matters related to their employment under the provisions of the collective agreement in force between ACPA and Air Canada.

[Inverted2]

777? Well at least there's bunks for nap time!

[fish4life]

not trolling or anything but if the remove the mandatory retirement age does that mean that due to ICAO requirements they will still have to downgrade to FO on their 65th birthday to continue flying? It seems this way but then in theory could someone not challenge ICAO (if they so desired) to say that it is discriminatory or will that not work since you will be challenging an international ruling with different countries with different human rights?

[vic777]

ICAO will probably change their requirement that Captains be below Sixty. This will happen in a few years when many Airlines petition them to do so. Maybe they'll raise it to Seventy and say you can be Captain until you're Seventy. It all depends on what the majority of Airlines/Countries want.

[Understated]

ICAO has no regulatory authority. It is part of the United Nations, and initiates a set of what are called, “standards and recommended practices,” or “SARPs,” which are then implemented by regulation in the jurisdiction of the various member states. Only Standards are enforceable by law. Recommended Practices are not.

The member states are not obligated to adhere to the maximum age requirement, for licensing or for operation of flights within its sovereign territory. For example, Canada has no maximum age restriction for pilot licensing and does not force others who operate in or through Canadian airspace to adhere to the maximum age restrictions either. Currently, ICAO the maximum age for pilots-in-command is 65. There is no maximum age for First Officers, Second Officers or Relief Pilots.

The United States, for example, does not recognize the licence of pilots-in-command who are over age 65. So even though there is no Canadian restriction for pilots-in-command over age 65, the pilot-in-command cannot operate any flight within USA airspace between two Canadian points (e.g. Toronto-Halifax, over the states of New York and Maine), even if that flight is a domestic flight. Similarly, the pilot-in-command who is over age 65 cannot avail himself or herself of USA alternates, because their licence to operate the aircraft to that alternate is not recognized by the host state.

In order to overcome this legal restriction, one would have to be either granted an exemption by the host state (not likely), or successfully pursue legal proceedings in each such jurisdiction to have the restriction ruled discriminatory and illegal (almost impossible). There’s the rub.

It is interesting to note that when ICAO was contemplating moving the maximum age for pilots-in-command from 60 to 65, Canada objected. In writing, the Canadian government told ICAO that its position was that there should be no maximum age whatsoever.

[Understated]

f the[y] remove the mandatory retirement age does that mean that due to ICAO requirements they will still have to downgrade to FO on their 65th birthday to continue flying?

For all practical purposes, yes. Although they can still be Captains, they cannot be pilots-in-command of flights operating in airspace of any country other than Canada, including overflight.

Air Canada does use Captains occasionally as non-pilots-in-command (e.g. Check Pilots who act as First Officers when doing a line check on a Captain) and as Relief Pilots (when crew manning runs out of available RPs). But in order to bid a pilot position assignment, it likely would be expected that one would be able to operate all flights normally assigned to the pilot awarded that position.

[Clyde River]

re: Understated posts in your YYZ-YHZ domestic example, nor can the example PICs flight plan a US alternate. ie not able GEG, SEA for YVR for example, or FAR, GFK for YWG, etc.

[fish4life]

ok thanks

[accumulous]

For all practical purposes, yes. Although they can still be Captains, they cannot be pilots-in-command of flights operating in airspace of any country other than Canada, including overflight.

It has been so many years since WestJet and Jazz changed to past 60, following all the other carriers in the country, in the case of Jazz, something like 2002, maybe the same for WestJet - it seems like ancient history, but does anybody have recollection of the rulebook way back then - for example, before the USA changed their own landscape in 2007, for WestJet Capts and Jazz Capts, how did they handle the transborder stuff. Seem to recall they just built domestic blocks for the WestJet Capts over 60 and perhaps also the Jazz folks and if so how did they handle the alternate airport selections??

[Thirteentennorth]

For all practical purposes, yes. Although they can still be Captains, they cannot be pilots-in-command of flights operating in airspace of any country other than Canada, including overflight.

It has been so many years since WestJet and Jazz changed to past 60, following all the other carriers in the country, in the case of Jazz, something like 2002, maybe the same for WestJet - it seems like ancient history, but does anybody have recollection of the rulebook way back then - for example, before the USA changed their own landscape in 2007, for WestJet Capts and Jazz Capts, how did they handle the transborder stuff. Seem to recall they just built domestic blocks for the WestJet Capts over 60 and perhaps also the Jazz folks and if so how did they handle the alternate airport selections??

ACC, can't speak for WJ or Jazz but a good friend of mine was the #1 on the C3 seniority list and continued past age 60. Only caveat was that all flights had to be in Canadian airspace. So he ended up doing YVR turns exclusively.The way he explained it they always had to use a Canadian alternate. It became a real problem and was costing C3 extra $$. He finally got fed up with the hassles and retired, just before C3 went TU. Being p-i-c over age 60 was a logistical hassle.

[JayDee]

For all practical purposes, yes. Although they can still be Captains, they cannot be pilots-in-command of flights operating in airspace of any country other than Canada, including overflight.

It has been so many years since WestJet and Jazz changed to past 60, following all the other carriers in the country, in the case of Jazz, something like 2002, maybe the same for WestJet - it seems like ancient history, but does anybody have recollection of the rulebook way back then - for example, before the USA changed their own landscape in 2007, for WestJet Capts and Jazz Capts, how did they handle the transborder stuff. Seem to recall they just built domestic blocks for the WestJet Capts over 60 and perhaps also the Jazz folks and if so how did they handle the alternate airport selections??

Since the retirement age in the States is now 65, would these restrictions not be a thing of the past ?

[Thirteentennorth]

Air Canada Flight Operations contacted both George Vilven and Neil Kelly yesterday and asked them to report to training in Toronto next Monday, November 15th.

...One of the consequences of being reinstated as active Air Canada pilots effective this past Monday is that they also regained their full status as active members of ACPA, with all rights available to them that are available to other members of the Association by reason of that membership. That includes, of course, the right pursuant to the provisions of the Canada Labour Code to be fairly represented by the Association in all matters related to their employment under the provisions of the collective agreement in force between ACPA and Air Canada.

Ray, I note what you say about Vilven & Kelly's "rights" as members of the collective bargaining unit at Air Canada. What about their "duties" as members? There hasn't been a whole lot of discussion about "duties" in this whole discourse.

Cheers,

Iain.

[Raymond Hall]

What about their "duties" as members? There hasn't been a whole lot of discussion about "duties" in this whole discourse.

To which of those duties are you referring, Iain? And in what context?

[Thirteentennorth]

Mornin' Ray!

I guess that I was primarily referring to the "duty" of members of the bargaining unit to respect and adhere to the provisions of the Collective Agreement. I am not a lawyer, but if mandatory retirement at Age 60 is still in effect in the CA, for now, as would appear to be the case from the fact that a cease-and-desist order was not part of the remedy ruling, does this not place George and Neil in a conflicted position? I don't know the definitive answer, that's why I respectfully posed the question, and would appreciate your opinion. It seems to me that the "right" of members of a collective bargaining unit to enjoy the benefits of union membership, and a collective agreement in the workplace, also presupposes a duty on the part of those members to adhere the provisions of that collective agreement. Note that I am speaking philosophically and generally, and not referring to anyone in particular. I may be quite wrong in this and, if so, would appreciate being corrected. My knowledge of Canadian Labour Law is not vast, and is based on my service to the members in CALPA and latterly ACPA.

On another forum, I raised the whole issue of rights vs. duties, and mentioned that under the English Common Law, there are no rights without corresponding duties. I don't know if that is the case with the Canadian Charter of Rights and Freedoms but, if not, it should be, IMO.

Hope all is well with you. How's the election campaign going?

Cheers,

Iain.

[Raymond Hall]

I guess that I was primarily referring to the "duty" of members of the bargaining unit to respect and adhere to the provisions of the Collective Agreement. I am not a lawyer, but if mandatory retirement at Age 60 is still in effect in the CA, for now, as would appear to be the case from the fact that a cease-and-desist order was not part of the remedy ruling, does this not place George and Neil in a conflicted position?

Here is a very short answer. I may be able to provide a longer answer after the Federal Court hearing has finished next week.

The Tribunal ruled (last August) that that Vilven and Kelly's rights under the CHRA were violated by reason of their termination of employment in accordance with the provisions of the collective agreement. In the more recent decision, it ordered the employer and the union to cease applying the provision against both Vilven and Kelly. So, no, they are not in any conflict position re the collective agreement. They are back at work and active members of the Association as a result.

There is a duty of fair respresentation requirement that is statutorily imposed upon the union, and the union is obliged to fairly represent them in respect of all of their rights under the collective agreement. There was a complaint filed filed with the CIRB alleging that the union failed to do that. That complaint has now been set down for a four-day hearing, commencing May 24, 2011. The fact that the complaint hearing will not be held for several months does not absolve the union of its continuing duty to fairly represent them in all matters related to the collective agreement.

[Thirteentennorth]

OK Ray, thanks. I'll look forward to reading the "long answer" once the Federal Court has handed down it's ruling.
IE.

[Glen Quagmire]

So the union has to protect these individuals under the current collective agreement in which V and K are in, for lack of a better word, violation. The current collective agreement stipulates retirement at 60 and has no articles pertaining to pilots over 60. Nothing regarding GDIP or pairing regs for over 65 etc. etc. How is the union supposed to ensure these individuals are protected under the current collective agreement, an agreement that flying past 60 has essentially shredded?

To me it looks like trying to have it both ways, perhaps just like benefiting from age 60 retirement until reaching age 60.

[Understated]

So the union has to protect these individuals under the current collective agreement in which V and K are in, for lack of a better word, violation. The current collective agreement stipulates retirement at 60 and has no articles pertaining to pilots over 60.

These developments are not by choice. A good answer might be, "Stand by for new ATIS message..."

There is likely to be a considerable confusion in the next few months as these legal proceedings evolve, especially if the entire mandatory retirement provision of the collective agreement is found to violate the law, as many believe it will. The collective agreement will have to undergo a number of changes as a result, and that will occur. Hopefully, the changes will not create a great deal of controversy.

The reinstatement of those two pilots was required as a result of a legally binding Tribunal order that overrides the provisions of the collective agreement that prohibit the employment of pilots over age 60. Their reinstatement is no violation of the contract. Those are the only two who have completed both the liablity and the remedy hearings before the Tribunal. There are reported to be another 150 in the queue.

The point was made above that they are now active members of the union, paying dues to ACPA. As a result of the fact that the union represents them in all aspects of the collective agreement, the union must abide by its legally imposed duty of fair representation. Exactly what that means is the subject of a dispute that is currently before the CIRB.

[JayDee]

ACPA Theme Song


http://www.youtube.com/watch?v=e3zSV19AksQ


Oh Monday morning, Monday morning couldn't guarantee
That Monday evening you would still be here with me.

Monday Monday, can't trust that day,
Monday Monday, sometimes it just turns out that way
Oh Monday morning, you gave me no warning of what was to be
Oh Monday Monday, how could you leave and not take me.

Rumour has it ACPA's next losing lawsuit will be to change the day of the week from Monday to OMGNOTAGAINDAY

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