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

[Understated]

So I ask again, was any Law changed with regards to the recent federal court decision?

And I say again, yes. The Tribunal is now bound by the Federal Court decision to find that Section 15(1)(c) of the CHRA is not available as a defence to any termination on the basis of age. In other words, there is no longer any need for any hearings before the Tribunal with respect to whether a discriminatory practice occurs in cases of mandatory retirement terminations. It does.

The only remaining questions are related to the remedies appropriate, and those questions involve reinstatement and damages.

This is a huge change in the law. Before the Federal Court decision, the Tribunal finding of a discriminatory practice was limited to Vilven and Kelly only. That is no longer the law.

[Understated]

I assume the IAM membership wishes to abolish mandatory retirement within their collective agreement.

You assume incorrectly. As I understand it, the IAM collective agreement provides for mandatory retirement. The IAM didn't want to take the cases to arbitration but was forced to do so by reason of its duty of fair representation under the provisions of the Canada Labour Code. It had no choice but to represent its member whose employment was terminated.

ACPA has the same duty of fair representation as does the IAM and every other union. The difference is that ACPA appears to believe that it can ignore that duty with impugnity. Those chickens will soon come home to roost.

[MackTheKnife]

ACPA has the same duty of fair representation as does the IAM and every other union. The difference is that ACPA appears to believe that it can ignore that duty with impugnity.


Those chickens will soon come home to roost.

[Mechanic787]

The Moncton, NB ground worker who was reinstated as a result of the arbitration was apparently originally told by his union that it couldn't file a grievance on his behalf because of the mandatory retirement provision in his collective agreement. Not long afterwards, the grievor's son, a lawyer, apparently intervened to remind the IAM of its duty of fair representation under the Canada Labour Code. Not very long thereafter, the IAM agreed to file the grievance. It even agreed to waive the Step Three hearing and proceed directly to expedited arbitration. Slam. Dunk.

The IAM's decision regarding complying with its duty of fair repesenation is consistent with CUPE's position, as determined by the three separate independent legal opinions that it solicited and received on the issue.

[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?

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

My understanding is that the previous grievances were put on hold by mutual agreement. What happens if a pilot now insists on proceding through the grievance process, instead of through the Tribunal process?

It's been almost 14 months since the Thwaites hearing ended and there still is no decision on liability, not to mention waiting another year for a reinstatement hearing and order. The IAM arbitrator took only one day to return the employees back to work. Why would anyone want to go the Tribunal route when they can get a grievance hearing and reinstatement order from an arbitrator within one month?

[Rockie]

The Moncton, NB ground worker who was reinstated as a result of the arbitration was apparently originally told by his union that it couldn't file a grievance on his behalf because of the mandatory retirement provision in his collective agreement. Not long afterwards, the grievor's son, a lawyer, apparently intervened to remind the IAM of its duty of fair representation under the Canada Labour Code. Not very long thereafter, the IAM agreed to file the grievance. It even agreed to waive the Step Three hearing and proceed directly to expedited arbitration. Slam. Dunk.

The IAM's decision regarding complying with its duty of fair repesenation is consistent with CUPE's position, as determined by the three separate independent legal opinions that it solicited and received on the issue.

Yes...well...that's all very good but you're forgetting one important difference. ACPA represents AIR CANADA PILOTS and doesn't even have to recognize the Canadian Labour Code much less adhere to it. We are above that.

Jeez, where have you been?

[Norwegianwood]

Why would anyone want to go the Tribunal route when they can get a grievance hearing and reinstatement order from an arbitrator within one month?

Why indeed, problem is you have to have your union, like the IAM, file your grievance for you. When acpa was approached by the 150+ they were given the "blow-off" and told if the contract changed they would file. Fat chance of that ever happening with the "elite inner group" running acpa...........................

[Brick Head]

And I say again, yes. The Tribunal is now bound by the Federal Court decision to find that Section 15(1)(c) of the CHRA is not available as a defence to any termination on the basis of age. In other words, there is no longer any need for any hearings before the Tribunal with respect to whether a discriminatory practice occurs in cases of mandatory retirement terminations. It does.

This is a huge change in the law. Before the Federal Court decision, the Tribunal finding of a discriminatory practice was limited to Vilven and Kelly only. That is no longer the law.

Understated,

Don't you think your statement is just a little misleading? For example if your opinion was actually based on fact wouldn't all mandatory retirement at the federal level already have ended? But it hasn't had it. Why is that?

Once again the Tribunal doesn't agree with the position you assert.

VK Remedy

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

Show me in the Federal court review where this is refuted please. Where does the Federal court review jump from a review of the VK decision, based on the facts of the VK case (self limited to two people), to an all encompassing 15(1)c is no longer saved in all cases? You won't find it. Why? Because in VK part 2 the Tribunal self limited their decision to two people. The federal court merely reviewed a ruling of two people.

Moreover no change can be foist on us until one of three things transpire.

Federal court review of VK.

[482] I have concluded that the Tribunal did not err in finding that paragraph 15(1)c of the CHRA is not saved by section 1 of the charter. Consequently, the remedial powers conferred on the court by subsection 18.1(3) of the Federal Courts Act are not engaged. The proper remedy is for the Court to dismiss Air Canada and ACPA's application for judicial review insofar as they relate to the Charter issue.


1) The respondents accept the change and do not appeal to a higher court. Not going to happen in our case as long as the end game continues to be everyone works longer for the same pre/post retirement income.

2) A higher court rejects the request for appeal.

3) The sup court has the final say.

[Rockie]

Given the conclusions on the charter issue in the judicial review do you think it's reasonable to assume the CHRT will permit the use of 15(1)(c) in future cases? Personally I think they would be pretty stupid to given they were essentially told twice by the federal court not to.

Conclusion on the Charter Issue

[350] I found in Vilven #1 that paragraph 15(1)(c) of the CHRA violates subsection 15(1) of the
Charter, as it denies the equal protection and equal benefit of the law to workers over the normal
age of retirement for similar positions.

[351] For the reasons given in this case, I find that the Tribunal was correct in concluding that Air
Canada and ACPA had not satisfied the onus on them to demonstrate that paragraph 15(1)(c) of the
CHRA is saved under section 1 of the Charter. Air Canada and ACPA have not shown that the
broadly-worded exception to the otherwise discriminatory practice of mandatory retirement
contained in paragraph 15(1)(c) of the CHRA is a reasonable limit justifiable in a free and
democratic society.

[Understated]

Don't you think your statement is just a little misleading? For example if your opinion was actually based on fact wouldn't all mandatory retirement at the federal level already have ended? But it hasn't had it. Why is that?

I do not think my statement is misleading. Although the Court did not issue a general declaration of invalidity, on technical grounds, the Tribunal is still bound by the decision. In practice that means that if an employer terminates an individual, that person is forced through the litigation process to get a remedy. And that fact has not been lost on Air Canada. It terminated a dozen or so more pilots on March 1st.

My expectation is that you will see the Tribunal weigh in on this subject the next time that a mandatory retirement case comes before it, which won't be a long time in coming, apparently. There are mandatory retirement cases other than pilot cases that are still proceeding before the Tribunal, regardless of the logjam in our cases.

In fact, the Tribunal recently tipped its hand in that direction by asking all the parties in our proceeding to advise the Tribunal in writing whether it is now even necessary for Chairman Sinclair to finish writing the Section 15(1)(c) portion of the decision in Thwaites, given the recent Charter decision of the Federal Court holding that Section 15(1)(c) is not available as a defence.

[Brick Head]

I do not think my statement is misleading. Although the Court did not issue a general declaration of invalidity, on technical grounds, the Tribunal is still bound by the decision.

I think it is misleading.

That decision was that the Tribunal will decide on a case by case basis if 15(1)c is saved by the Charter. The Tribunal never held that 15(1)c is no longer an available defense for mandatory retirement period. They said exactly the opposite.

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

The federal court upheld the Tribunal ruling on the Charter issue. Meaning 15(1)c is still a legitimate defense for the use of mandatory retirement. That on a case by case basis the Tribunal has the authority to refuse to allow 15(1)c to be saved by the charter.

In fact, the Tribunal recently tipped its hand in that direction by asking all the parties in our proceeding to advise the Tribunal in writing whether it is now even necessary for Chairman Sinclair to finish writing the Section 15(1)(c) portion of the decision in Thwaites, given the recent Charter decision of the Federal Court holding that Section 15(1)(c) is not available as a defence.

Well judging by the differing views apparently it will be necessary. Section 15(1)c is still an available defense. The only place it is no longer an available defense, is for two people, post Aug 28, 2009.

[Understated]

Section 15(1)c is still an available defense. The only place it is no longer an available defense, is for two people, post Aug 28, 2009.

Let's hope that this doesn't turn into another two pages of semantics with me trying to make sense of your scewball interpretations of the Tribunal's previous decisions. The Tribunal decisions are not in issue here. The Federal Court decision is. Justice MacTavish stated that Air Canada had failed to meet the onus of showing that the violation of Section 15(1) of the Charter by Section 15(1)(c) of the CHRA was justified under Section 1 of the Charter. Section 15(1)(c), according to the Court, is not available as defence to Air Canada's violation of Sections 7 and 10 of the Act (discrimination on the basis of age). That decision is binding on the Tribunal. Period.

Forget about what the Tribunal previously said, because whatever it said is no longer relevant to the Section 15(1)(c) issue. The Court has spoken. Why else would the Tribunal have written ACPA's legal counsel to ask if it was even necessary for the Section 15(1)(c) portion of the Thwaites decision to be written?

[Brick Head]

The Tribunal is now bound by the Court's determination that in the circumstances of Air Canada collective agreements at least, Section 15(1)(c) is no longer available as a defence.

Why else would the Tribunal have written ACPA's legal counsel to ask if it was even necessary for the Section 15(1)(c) portion of the Thwaites decision to be written?

No 15(1)c is to this day a legitimate defense for everyone excluding 2 people. The Tribunal is bound by the courts determination that they must come to the same conclusion, should the same set of facts present themselves. On a case by case basis they can not come to a different conclusion with the same facts. The conclusion being not saved by the Charter. At that determination, and only then, does 15(1)c no longer become applicable. Until that determination is made 15(1)c is a perfectly legitimate defense. One we are entitled to under law.

Do other pilot claimants have the same set of facts? No. Similar yes. Similar enough that we agree it is a given the Tribunal will be bound to the same conclusion? That is why he asked.

Do you think we want to concede this?

I see you amended your post while I was replying. No worries this screwball doesn't have the time for an extended exchange.

Your grasping at straws again. Reading something that is not there. The Tribunal was clear. Not precedent setting. Applies to two people. Not a group complaint, but rather two people with the same facts. Does not stop the Tribunal from ruling differently with a different set of facts.

Other than some clarification on the Oak's test the Federal court rubber stamped the above. The review they undertook was of a decision for two individuals under a specific set of facts. That is it. from now on? Same facts? Same conclusion. Different facts? The Tribunal is free to make a determination as they see fit.

[Understated]

The Tribunal is bound by the courts determination that they must come to the same conclusion, should the same set of facts present themselves. On a case by case basis they can not come to a different conclusion with the same facts. The conclusion being not saved by the Charter. At that determination, and only then, does 15(1)c no longer become applicable. Until that determination is made 15(1)c is a perfectly legitimate defense. One we are entitled to under law. Do other pilot claimants have the same set of facts? No. Similar yes. Similar enough that we agree it is a given the Tribunal will be bound to the same conclusion? That is why he asked.

You might want to have a serious discussion with your legal counsel to get your Charter interpretation correct. I am advised that in Charter decisions, the facts of the specific individuals are irrelevant. It is the class of individuals that the court looks at to decide the constitutionality of the provision, not the individuals themselves. That is where the Tribunal screwed up the first time--looking at the facts of the individuals when it should have been looking at the "class" of individuals. The fact situations of the individuals are irrelevant to the question that the Court determines. That is partly why the Court reversed the first Tribunal decision on the equality provisions, Section 15(1) of the Charter. Remember?

Here, we have a collective agreement provision that purports to rely upon Section 15(1)(c). That is even one more step removed from the individuals before the Court. The collective agreement provision applies not to one or two, but to all, and the determination of whether the mandatory retirement exemption is compliant with the Charter, even if it were dependent on this specific collective agreement provision, which it is not, would look at all of the individuals covered by the collective agreement, not just those two. So your analysis is doubly incorrect.

Hence, the facts are unchanged. That Court's decision is binding upon the Tribunal, and can't be varied by the Tribunal just because two different faces are before the Tribunal, or even because a different collective agreement (CUPE, CAW, IAMAW) is put before the Tribunal.

Sorry, despite the fact that you don't like the decision, you are stuck with it. The only avenue available to alter the Federal Court decision is the Federal Court of Appeal. If ACPA is true to form, it will file an appeal of the Federal Court decision on the very last day possible. Namely, this coming Monday.

[Mechanic787]

Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54

[28] First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, “the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”. The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1). Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects. In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative enactment. Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state.

------
Now, does anybody still doubt that the Federal Court decision re Section 15(1)(c) is binding on the Tribunal?

[Cat Driver]

Now, does anybody still doubt that the Federal Court decision re Section 15(1)(c) is binding on the Tribunal?

Therefore one must ask why Air Canada and ACPA are staying their course?

[vic777]

Therefore one must ask why Air Canada and ACPA staying their course?

It gets more interesting if we break it down ....

Why is Air Canada staying it's course?
.... and
Why is ACPA staying it's course?

[Cat Driver]

It gets more interesting if we break it down ....

Why is Air Canada staying it's course?
.... and
Why is ACPA staying it's course

I get mixed emotions watching this play out.

I don't know if I am fascinated or depressed.

[777longhaul]

Therefore one must ask why Air Canada and ACPA staying their course?

It gets more interesting if we break it down ....

Why is Air Canada staying it's course?
.... and
Why is ACPA staying it's course?

=========================================================================================

ONE probable answer:

AC is playing acpa like a cheap fiddle, as they always do, and as they always have, and very well, I might add.

It is contract time, and AC is in talks with ALL its UNIONS, at the same time. They are playing the game, and winning. They need to string acpa along, and use it as their flag show, to the other unions, to get them to negoiate a better, DOWNER deal, just like they always have, especially with the seniority bs, the 777/787 pay issue, pension issue, indexing issue for the pension, paygroup, 5% reduction on the narrow bodies, the starting salaries for new hires, and an endless host of other issues. The best one yet, however, was getting acpa, to sign off on the liability issues, at 50%. The acpa elite, sold what was left of the farm, to AC at a cost to ALL PILOTS at AC.

The IAMAW have gone to grievance, and 2 of their memebers are back at work! What does acpa, have to say about that I wonder? ALL 150 plus acpa member pilots, have had their grievances denied by acpa. Wonder how Mr. Teplisky, the arbitrator, is going to look at that bundle of grievances when it lands on his desk, in the very near future?

AC is going to break acpa, mentally, and financially, which, was their long term goal all along. JOB ONE

[Norwegianwood]

[quote="777longhaulthe 777/787 pay issue, penion issue, indexing issue for the pension, paygroup, 5% reduction on the narrow bodies, the starting salaries for new hires, and an endless host of other issues. The best one yet, however, was getting acpa, to sign off on the liabilty issues, at 50%. The acpa elite, sold what was left of the farm, to AC at a cost to ALL PILOTS at AC.[/quote]



A Legacy indeed, one to be really proud of for future generations of pilots at AC............................ NOT!!!!!!!!!!!!!!!!!!

[Raymond Hall]

ALL 150 plus acpa member pilots, have had their grievances denied by acpa.

I would like to provide some clarification regarding the grievance issue. First, not all of the over 150 pilots who have filed complaints with the CHRC have requested of ACPA that it file grievances on their behalf. In fact, only a small proportion of them have.

In 2006 when ACPA was using its original law firm to handle the Vilven complaint before the Tribunal, it argued that all these complaints should be dealt with through the grievance / arbitration process, rather than through the CHRC / CHRT process.

There is some interesting law on the subject, having to do with the concurrent jurisdiction of both the CHRT and the labour arbitrator to resolve the issues. When ACPA changed legal counsel on these issues in mid-2006, it also agreed to allow the issues to be dealt with by the CHRC / CHRT process. It accepted the grievance requests, but by actual or tacit agreement with the complainants of the day, it "parked" the grievance requests, pending the outcome of the CHRT process.

In 2006, practically nobody expected that it would take well over five years (or longer) to resolve this issue. So those pilots who at that time or later asked ACPA to file grievances on their behalf have all had those grievances "parked" or 'held in abeyance." Specifically, ACPA, to my knowledge, has not yet "denied" any of the pilots the grievance process. It simply hasn't yet decided whether to proceed with the grievanes, pending the Tribunal process.

This past week has seen some new developments. ACPA has received requests for grievances from two different categories of pilots, neither of which has filed complaints with the CHRC—first, pilots who will acquire age 60 within the next few months, and second, pilots who have had their employment terminated within the last few months. Those two groups of pilots, as I understand it, are asking ACPA to deal with their pending or actual termination of employment through the grievance / arbitration process only, on a immediate basis, especially in the case of those individuals who are pending termination, so as to avert their termination of employment.

They are exercising their right to employ the collective agreement grievance process only, as the preferred means of resolving this dispute. As a result, ACPA is going to have to make a decision immediately: allow these grievances to proceed in a timely manner, or not allow the grievances to proceed in a timely manner.

[Sage]

//personal attack removed by Sulako. That's a strike. Smarten up.

[777longhaul]

Raymond

Thanks for the posting clearing up some of the mystery surronding this long drawn out process.

What would a "normal" time frame be, for a pilot to file a grievance, and then expect the union to do something absolute about it? I dont have an acpa contract, so I don't know what if any, the time line is to "make" the union act or deny a request for a grievance proceeding etc.

The IAMAW union, has done this issue, in several months. Why is acpa allowed to do what they are doing to all the pilots, dragging it out over years, while, other employee's at AC, are being sent back to work?

acpa's response to some of us, "acpa has added your name to the list of pilots that have requested to file a grievnace on this matter."

That is acpa's total reaction to members in good standing, to file a grievance, on this issue.

[Raymond Hall]

The IAMAW union, has done this issue, in several months. Why is acpa allowed to do what they are doing to all the pilots, dragging it out over years, while, other employee's at AC, are being sent back to work? acpa's response to some of us, "acpa has added your name to the list of pilots that have requested to file a grievnace on this matter." That is acpa's total reaction to members in good standing, to file a grievance, on this issue.

ACPA should not be criticized for putting the earlier grievances on hold. That arrangement was essentially done with the concurrence of the grievors, in deference to their preference to move the issues through the CHRC process instead of the grievance / arbitration process. The rights were not extinguished, they were simply deferred. You can't have two "judges" in two separate proceedings deciding the same dispute.

The issue is different now, with the new grievances. First, the requests come from individuals who have not filed CHRC complaints, and second, the individuals are exercising their rights under the collective agreement to request that their dispute be dealt with through the collective agreement grievance process (Canada Labour Code / arbitrator) rather than through the external process (Human Rights Act / CHRC).

Timelines for processing of grievances are not fixed. They generally depend on the urgency of the issue.

[accumulous]

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.

Uh, no, it’s quite obviously up to the Feds.

Therefore one must ask why Air Canada and ACPA staying their course?

Because the next step would be to skip ahead to ACT 5 and have to face the Membership.

Act 2 Complete:
The Runaway Train versus the Federal Court. Train wreck.

Welcome to Act 3.
The Federal Court of Appeal.

ALL ABOARD THE HINDENBURG

There will be a short IMAX theatre intermission while the Dirigible is inflated and any survivors of the Runaway Train Wreck from ACT 2 shinny up the ropes and strap themselves in under 7 million cubic feet of ‘legal’ Hydrogen.

Solid Unions like the IAMAW for the Machinists and CUPE for the Flight Attendants are the F-18 drivers in this theatre, making quick decisive moves based on an abundance of high intelligence.

Those Unions recognize the patent insanity in having an entire Membership chip in to pay half the wages of all the force retired pilots who are in the same IMAX audience awaiting reinstatement.

Our collective Helmet Fire ignited when we handed our Senior Pilot Termination Portfolio to the Feds, on a plate, as soon as the whistle blew. We haven’t seen the puck since we scored on our own net at the face-off. In case you’re behind on your legal hockey game, the rink was moved to downtown Ottawa. We’re shooting blanks now. We asked for a Federal Vasectomy, and we got it.

And we are collaterally terminating the overwhelming majority of a Membership that cannot continue in the pension stream at 60 because the Feds similarly terminated hiring age restrictions at AC, 30 years ago, as being Discriminatory, also spelled ‘illegal’. But that’s okay, we just told the entire Nation in Parliament, via live feed, that we’re overpaid anyway.

CUPE and the IAM can decipher at a glance which way the wind is blowing while our Litigious Blimp will just spin around the docking mast until it slips loose heading off at a tangent to the closest source of lightning. The shortest route between Disasters is a straight line. Steady as she goes.

But before weighing anchor could somebody please provide some due diligence on the liability issue?

1. Are the clear majority, the 1701 pilots who never voted for, or were completely against this voyage, liable?
2. As suggested elsewhere, are the New Hires liable?
3. Are the 200 and rapidly rising Complainants liable after they return to work??
4. Please provide the reasons and the page numbers to back it up.

In the meantime, pilots will still file with the CHRC, and will be processed for reinstatement, now approaching 200 and counting, while our Hindenburg lurches off over the landscape in exactly the wrong direction. Same gross navigational error, different mode of transportation.

Then stand by for Act 4, now in production, the Lusitania sails to the Supreme Court.