Federal Court Decision re V-K JR, February 3, 2011

[Lost in Saigon]

No, the bill would just be a "Catch-all" that would end all forced retirement.

Without the bill individuals could still apply to the CHRT, and V&K will still be working at Air Canada.

[Understated]

so... what does that mean?

You don't have to be a lawyer, but it helps to have a road map.

Mandatory retirement, in the federal jurisdiction, historically existed under the statute as an "exemption" to the general prohibition against age discrimination. There are two challenges to that "exemption." The first, through the Tribunal and the courts, is to have the exemption declared "of no force and effect" or "unconstitutional." That determination, when found, is effective upon the date of the Tribunal or the courts' deterimination, and applies to the cases before the court for terminations of employment that have already taken place.

All of the current complainants before the Tribunal meet or will meet this test, when their cases come forward for hearing, so all are potentially able to be reinstated.

The second challenge is to have the exemption repealed. That is what this Bill proposes. It will become law only after passage through Parliament and the Senate, on a date specified as "the date of coming into force." We are at least a year away from the repeal coming into force, so the earliest that it will take effect is in 2012, but it will potentially apply to all 800,000 employees in the federal jurisdiction, including all employees of Air Canada.

The Tribunal and court challenges are retrospective (they apply to the past cases, on a case-by-case basis). Repeal is prospective (it applies to all potential termination of employment after the date that the law comes into force).

[Mechanic787]

John Farrell, FETCO’s executive director, told a parliamentary committee hearing that banning mandatory retirement would “remove an important mechanism that has been available to federal employers to manage some older workers with dignity with regard to diminishing performance resulting from advancing age.” It will also affect the cost and functioning of pension plans, benefit programs and workers’ compensation insurance, Farrell said. Moreover, employers should be able to apply “reasonable mandatory retirement ages” in occupations where work is associated with a high risk to public safety, he argued.

John Farrell is a paid professional lobbyist. He makes his income by getting his clients what they want. What they want is to stop or delay the implementation of this legislation. What they want is to ensure that no-one, not even Parliament, interferes with their ability to run their organizations as they see fit, regardless of their human rights obligations.

He knows precisely what to do to accomplish his objectives. One of the chief mechanisms of any political operation is the smokescreen. He knew, prior to his testimony, that all of the suggestions that he was making were already covered off in the existing legislation. But the Members of the Committee didn't know that.

Extra assessment to measure competency of older workers? Already there in section 15(1)(a). Forced retirement with dignity to someone who can't meet the competency standards? Already there. No extra legislation required. No amendment required.

"It will also affect the cost of functioning pension plans?" Answer, YES. It will diminish the employer's costs. But he doesn't say so, despite the fact that he already knows the facts.

His purpose is to raise a flag to generate more study, more evaluation, more evidence, more delay. None of the Members of the Parliamentary Committee are experts in this field. They do not have the knowledge or experience to winnow the wheat from the chaff. As a consequence, they must defer. Mission accomplished.

The only issue of substance put forward was the suggestion that an exemption be given for employers who already have a bona fide pension plan. That is a huge concession that would not only undermine the entire thrust of the Bill, but that is seriously flawed on legal grounds, for many, many reasons.

That is the subject of another post.

[James Delgaty]

As goes with the rest of ya,

When you want to effect positive change or to help out in anyway with let me know.

I ask again what law has changed here in Canada? Are we allowed to determine our own retirement age? Or is it Government mandated? Do we follow standards from around the world or do we do our own? What age is safe to fly? Do we still have train to standard? I would like to think that most of the posters have many years in the industry. I for one would love to hear the ideas they have,

Cheers,

James


posting below was from someone else not very informed.

Not correct. The law changed yesterday. Before yesterday there was a finding by the Tribunal that the mandatory retirement exemption in the Canadian Human Rights Act was not available to Air Canada in respect of Vilven and Kelly only. Yesterday the Federal Court made the same finding, and that finding is binding upon the Tribunal with respect to all future pilot mandatory retirement cases before it.

The contract has changed, as well. The contractual provision that permits mandatory retirement has been found by the court to violate the law.

It will be very interesting to see Air Canada's reaction to this decision, given the implications of potentially continuing to terminate pilots' employment based upon a contractual provision that the Court has found to be in contravention of the CHRA. The argument that it used following the Tribunal decision of August, 2009 to continue terminating pilots' employment, the argument that the Tribunal decision was not binding on itself or on anyone else because the Tribunal only had jurisdiction to interpret law, not to make law, is not available to it with regard to yesterday's Federal Court decision. The Court made law yesterday, and that law is binding.

[Understated]

I ask again what law has changed here in Canada? Are we allowed to determine our own retirement age?

I say again, No. Not after this Federal Court decision.

Or is it Government mandated? Do we follow standards from around the world or do we do our own?

No arbitrary retirement age, period. The Air Canada – ACPA mandatory retirement provision contravenes the Canadian Human Rights Act, according to the Federal Court.

What age is safe to fly? Do we still have train to standard?

"Safe to fly?" Not in issue in this case. Competency is the exclusive domain of Transport Canada that removed the age restriction decades ago. "Train to standard?" Irrelevant to the issues at hand. Both of these questions are irrelevant to the issues before the Tribunal and the Court and to the issues raised in this thread. Have you even bothered to read any of the preceding material here? Have you received any briefing whatsoever from your Age 60 Committeee regarding what this case is all about?

posting below was from someone else not very informed.

Thanks for the "late night" post of thoughts emanating from your honed legal mind telling everyone that I am "not very informed." But if you will permit me, I will continue "being informed" by our own legal counsel, who seems to be doing just fine at the Tribunal and the Court, at least as far as results are concerned, in comparison to the Association's hired gun.

By the way, is the MEC still planning on taking this loss to the Supreme Court of Canada? Or have the "very informed" members of the Master Executive Council not bothered to keep you members of the Local Executive Councils "very informed" of their plans?

Have they kept you very informed of the fact that both Vilven and Kelly have now actually received payment of the six figure sums that they were awarded as damages from both Air Canada and ACPA?

Not very informed, indeed.

[Rockie]

Are we allowed to determine our own retirement age?

I say again, No. Not after this Federal Court decision.

This is one of the dishonest misinformation tactics that ACPA uses that I find almost as distasteful as the fact people actually believe it. They've convinced our otherwise intelligent pilots that their right to determine their own retirment age has been denied them when in fact the exact opposite is true.

The more proper answer to that question is:

Yes, you can still determine your own age of retirement even if you choose to retire beyond age 60. Our degree of self-determination has increased, not decreased.

[Norwegianwood]

[quote="James Delgaty"]

I ask again what law has changed here in Canada? Are we allowed to determine our own retirement age?

quote]

As AC pilots we are NOT allowed to determine our own retirement age as this whole question is still before the courts. ACPA and AC have taken the individuals rights out of their hands by mandating age 60 as the boot and bye age so the answer to your question is NO!
Until parliment changes the rules of play to cover all individuals we are saddled with the cumbersome and costly, long drawn out method of going to the CHRT, JR, SCC and any other method open to the individual to overcome AC and ACPA's draconian and SOLO way of treating their pilots!
It's sad that an association such as ACPA has taken the road to use it's membership dues to fight it's own members. (Oh wait, after 60 you are not a member, silly me!!!!!)

[vic777]

As AC pilots we are NOT allowed to determine our own retirement age

An AC Pilot can retire any time he/she wants. You can retire today if you want. You are illegally forced to retire once you reach age Sixty.

[Dockjock]

Nope you are not forced to retire, you are forced to start collecting your Air Canada pension, which you cannot do as an active employee. Your pilot license is still valid and you can work as long as you like.

(two can play with rhetorical flights of fancy)

[Thirteentennorth]

Nope you are not forced to retire, you are forced to start collecting your Air Canada pension, which you cannot do as an active employee. Your pilot license is still valid and you can work as long as you like.

(two can play with rhetorical flights of fancy)

Bingo!

[ACAV8R]

Nope you are not forced to retire, you are forced to start collecting your Air Canada pension, which you cannot do as an active employee. Your pilot license is still valid and you can work as long as you like.

(two can play with rhetorical flights of fancy)

Bingo!

+1

[Mechanic787]

The IAMAW, representing Air Canada ramp workers and maintenance staff, filed a grievance in November, 2010, concerning the termination of employment of one of its employees in Moncton, New Brunswick. His employment was terminated solely for the reason that he had turned 65. The issue was rapidly placed before arbitrator Martin Teplitsky, who issued the following decision on December 22nd:

The grievor seeks a declaration that mandatory retirement at age 65 as established for this bargaining unit is unenforceable. This is an important issue which cannot be resolved summarily. Moreover, I understand that the IAM and Air Canada are involved before the Canadian Human Rights Tribunal in a proceeding in which this very issue is in play. I adjourn this matter until the completion of the matter aforesaid.

In the interim, the Union seeks an order permitting the grievor to return to work. In my opinion, the grievor has an arguable case; the balance of convenience favours the grievor, and damages cannot fully compensate the grievor. There are important values in working in addition to the money earned. Dignity and self-respect are only two.

Accordingly, without prejudice or precedent, I direct Air Canada to allow the grievor to return to work on his presenting a medical certificate as to fitness.

The same union filed a second grievance in January, 2011, regarding the termination of employment of one of its senior mechanics in Edmonton. That grievance was expedited and placed before the same arbitrator this past Friday (February 27th). A decision was rendered the same day ordering Air Canada to return the individual to work, pending the outcome of the Tribunal proceedings.

These determinations are obviously significant for at least three reasons. First, the union took the position of representing the employees against the employer in regard to their termination of employment, notwithstanding the provision of its own collective agreement that called for their termination at age 65.

Second, they are arbitral decisions that are not only based upon the Vilven-Kelly Tribunal and Federal Court decisions, but that are almost certainly to be followed by subsequent arbitrators when faced with the identical cases. In other words, regardless of whether Air Canada stops terminating the employment of its pilots as a result of the refusal of the Federal Court to issue a general declaration of invalidity of the mandatory retirement exemption under the Canadian Human Rights Act, labour arbitrators are now ordering the reinstatement of those workers whose employment is terminated by reason of the mandatory retirement exemption.

Third, the fact that Air Canada took the second, identical grievance from the same union to arbitration with the same arbitrator instead of simply allowing the grievance, notwithstanding the result of the first arbitration, is not only an indication that Air Canada is willing to force its employees and their unions to undergo the needless and expensive termination of employment and arbitration process, but that its real motivation is to continue to delay the ultimate adjustment to the current legal and societal reality that discrimination on the basis of age is no longer acceptable in its workplace.

The latter inference is consistent with the statements made on this forum some months ago that Air Canada has told its own employees that it will continue terminating their employment until it is ordered to do otherwise.

[Morry Bund]

Air Canada took the second, identical grievance from the same union to arbitration with the same arbitrator instead of simply allowing the grievance, notwithstanding the result of the first arbitration...

"Insanity is doing the same thing over and over again but expecting different results."

[vic777]

The same union filed a second grievance in January, 2011, regarding the termination of employment of one of its senior mechanics in Edmonton. That grievance was expedited and placed before the same arbitrator this past Friday (February 27th). A decision was rendered the same day ordering Air Canada to return the individual to work, pending the outcome of the Tribunal proceedings.

These determinations are obviously significant for at least three reasons. First, the union took the position of representing the employees against the employer in regard to their termination of employment, notwithstanding the provision of its own collective agreement that called for their termination at age 65.

So could a Pilot about to be forced retired next month say, go down this road? Could a Pilot about to be retired next month say, launch such a grievance? If ACPA would not represent this hypothetical Pilot, could ACPA be sued for damages? Could AC be ordered to keep such a Pilot on the seniority list pending the outcome of the Tribunal proceedings, for the same reasons?

[Lost in Saigon]

So could a Pilot about to be forced retired next month say, go down this road? Could a Pilot about to be retired next month say, launch such a grievance? If ACPA would not represent this hypothetical Pilot, could ACPA be sued for damages? Could AC be ordered to keep such a Pilot on the seniority list pending the outcome of the Tribunal proceedings, for the same reasons?

Pilots retire every month. Some want to continue working past 60. ACPA has chosen not to represent these pilots and a DFR (Duty of Fair Representation) has been filed by a number of pilots. So yes, you could say ACPA is now being sued for not representing these pilots.

There are pilots listed in the DFR who are not even close to retiring.

[Understated]

So could a Pilot about to be forced retired next month say, go down this road? Could a Pilot about to be retired next month say, launch such a grievance?

Under the Air Canada – CALPA collective agreement (before November, 1995), any individual member could file a grievance. Under the present Air Canada – ACPA collective agreement, only the union can file a grievance. So, if a pilot requests ACPA to file a grievance on his behalf, the union must decide whether to do so or not. Unions are not required to file grievances or to take every grievance to arbitration. However, in deciding whether to proceed, the union is obligated under the Canada Labour Code to exercise its discretion properly. That means, not in a manner that is arbitrary, discriminatory or in bad faith.

There is a huge number of legal precedents on this subject in all of the jurisdictions, not just the federal jurisdiction. In fact, as you likely know, there is an outstanding complaint before the CIRB alleging that ACPA has breached its duty of fair representation of the pilots who disagree with mandatory retirement. We shall have to wait to see first, if any pilots do ask ACPA to file a grievance, and second, how ACPA treats that request.

If ACPA would not represent this hypothetical Pilot, could ACPA be sued for damages?

As I understand the law, union members cannot sue their unions. Recourse is found through a complaint filed with the CIRB, as above. The CIRB has jurisdiction to decide the issues, issue orders for compliance, and to award damages and/or fines.

Could AC be ordered to keep such a Pilot on the seniority list pending the outcome of the Tribunal proceedings, for the same reasons?

If an arbitrator follows the decision of Mr. Teplitsky in the IAMAW cases referenced above, one remedy is full reinstatement of employment, with all rights and privileges, as was done in those two cases.

[Understated]

Just out. No surprise, really. ACPA has decided to appeal this Federal Court decision on the Charter issue.

ACPA has always said that it would take this case to the Supreme Court of Canada, if necessary. It may well be necessary, given the strength of the decisions from the Tribunal and the Federal Court. With this appeal, ACPA will be only one step away from the SCC. The Federal Court of Appeal will finally get a chance to weigh in on the issue of mandatory retirement. Save for an earlier decision of the BC Court of Appeal (at the same level as the Federal Cour of Appeal) that agreed with overturning the 1990 Supreme Court of Canada decision upholding mandatory retirement, this Court is the highest level Court to deal with the issue since the string of cases out of the Supreme Court in 1990.

Dig deep. The lawyers are doing just fine.

[777longhaul]

Lets see......IAMAW goes to bat for 2 of its members, gets them reinstated in record time. They are AC employee's.

acpa, goes to bat, for going against ALL of its forced retired pilot, members, (and some of its not yet foreced retired pilots) and has dragged it out for years. Those pilots, are AC employee's also.

So, now we have AC accepting arbitrations, and putting force retired IAMAW members back to work, and they are not putting the force retired pilots back to work. A condition of the CHRC, step one procedure, is to file a grievance with acpa, prior to retirement. So some AC employee's are going back to work, under the arbitration, (IAMAW) and the pilots are not, even though, they have all filed grievances.

This will open a huge can of legals, and will make the lawyers, and the union dues, go up and up. FOR WHAT!

acpa is still leading the charge, at TOGA Thrust, right over the edge, driving up the union dues, damages etc. How much longer are the active acpa pilots, who pay hard earned dues, going to accept this elite group, running acpa??

[JazzJetDriver]

...and to add to it all, it's off to our long awaited court date we go this month.

[vic777]

How much longer are the active acpa pilots, who pay hard earned dues, going to accept this elite group, running acpa??

What can we do about it? Are new hires joining ACPA? Will new hires have to pay a huge assessment? How is all this affecting negotiations? Will we get hosed again? On let's say a Five Year deal?

[Understated]

Transparency. That's what I like most about ACPA. Transparency.

In the morning it announces that it is appealing its loss of an unwinnable case to the Federal Court of Appeal, continuing to support the termination of employment of its own members on the basis of age discrimination, and increasing the total amount of damages that it will be required to pay the wrongfully terminated pilots from our membership dues.

In the afternoon, it announces that it is increasing our membership dues in order to raise the funds necessary to pay for this collosal waste.

[Johnny Mapleleaf]

Hey, Brick Head. What does ACPA have to say about these IAM arbitrations? Has ACPA received any similar requests for grievances and reinstatements?

[Norwegianwood]

Hey, Brick Head. What does ACPA have to say about these IAM arbitrations? Has ACPA received any similar requests for grievances and reinstatements?

YES! about 150+ but all have been turned down and steered to the CHRT as acpa thinks it knows best, 'nuf said......

[James Delgaty]

It seems that you both are more interested in misleading everyone versus helping,

Quote from one of Rays and the next from Understated postings,


"The Court has upheld the Tribunal's decision that the mandatory retirement provision of the Air Canada – ACPA collective agreement violates the provisions of the Canadian Human Rights Act. In particular, the Court was emphatic that the decision in 1990 by the Supreme Court of Canada was not binding upon it, and that the Charter issues had to be viewed in the context of current social standards.

Although for procedural reasons the Court declined to issue a general declaration that the mandatory retirement exemption was unconstitutional, it did not say that such a declaration would not issue in the future, in the event that an application were properly brought before it, giving full notice of the constitutional challenge to the various Attorneys General.

What is the significance of this decision? The most immediate signficance is that the decision is binding on the Tribunal and thus will be determinative of the remaining 150 or so cases pending before the Tribunal, regardless of the outcome of the Thwaites case. It is now the law, and the law will be in effect unless and until it is overturned on appeal to the Federal Court of Appeal or to the Supreme Court of Canada"



Another posting from Understated,

"OK. The ACPA Age 60 Committee Newsletter of a couple of weeks ago suggested that the Federal Court decision was not expected for several months yet. Surprise! We suggested that all three decisions and the legislative changes would present themselves within three weeks. Finger on the pulse. One down, three to go.

The Federal Court, Thwaites, the CIRB, and Parliament. Strike One was delivered today. Get ready for Strike Two and Strike Three. Strike Four is expected at the end of this month.

My contacts on the Hill (I can't afford ACPA's lobbyists, so I use a neat device called the "telephone") tell me that the Parliamentary Committee has already met to discuss the required changes to Bill C-481, and that the Bill should go back to Parliament for Third Reading within two to three weeks, well ahead of the Budget speech, expected in March. Should get through Parliament before the Budget vote and before any potential election call. How about that?"


So I ask again, was any Law changed with regards to the recent federal court decision? And understated why would you not want to post your real name?

Cheers,

James

[Brick Head]

Hey, Brick Head. What does ACPA have to say about these IAM arbitrations?

I would assume that ACPA would say good for the IAM. The unions job is to protect the membership, and its wishes. I assume the IAM membership wishes to abolish mandatory retirement within their collective agreement. Their pay structure is also very flat, making the corresponding damage to the compensation system minimal, allowing the IAM the luxury of not needing to protect its members from the adverse affects of the change.

Our steep deferred compensation system, and protecting its intended distribution, is what makes our situation uniquely difficult. Most other groups are free from this burden and therefore may choose a different path that suits them. That is up to them. Just like our path is up to us.