Federal Court of Appeal, on Mandatory Retirement

[Morry Bund]

Just got the most recent update from the FP60 crew.

Apparently the federal government has decided to become directly involved in the Air Canada mandatory retirement legal issue by showing up at the Federal Court of Appeal hearing on November 22nd, ACPA's appeal of the Charter decision of the Federal Court judicial review that disallowed the mandatory retirement exemption, to make submissions on the government's position on the issue.

Anybody have a read on what the government's position is likely to be, especially given the government's stated intention to repeal the statutory exemption in this session of Parliament?

[turbo-beaver]

Well, we already know this government's position on mandatory retirement, and if the Dept. of Justice wanted to remain neutral on the subject, they would not be submitting a brief on their position.
It will be an interesting read come November when their brief is submitted.
I suspect it will be one more nail in the coffin for ACPA.

[Sage]

Well, we already know this government's position on mandatory retirement, and if the Dept. of Justice wanted to remain neutral on the subject, they would not be submitting a brief on their position.
It will be an interesting read come November when their brief is submitted.
I suspect it will be one more nail in the coffin for ACPA.

You haven't heard about the recent rulings (yes plural) that ruled against the greedy FTYD crowd? Enjoy your retirement.

[Rockie]

Well, we already know this government's position on mandatory retirement, and if the Dept. of Justice wanted to remain neutral on the subject, they would not be submitting a brief on their position.
It will be an interesting read come November when their brief is submitted.
I suspect it will be one more nail in the coffin for ACPA.

The possible fly in the ointment is that this government is very pro big business, and Air Canada is a big business that wants to punt its pilots out the door at age 60. Strangely the pilot union wants to do the same thing which may make it easier for the government to side with the company on this. I wouldn't want to make any predictions.

[vic777]

Strangely the pilot union wants to do the same thing

As long as ACPA wants to do the same as AC they'll have no problem. ACPA will not stand with CUPE and fight for UNION rights. As the UNION leader says, "AC Pilots are overpaid".

[TheSuit]

Strangely the pilot union wants to do the same thing which may make it easier for the government to side with the company on this

Oh no, the union is actually doing something in the interest of junior members and the company! What a tragedy....

[Morry Bund]

It would be very easy to forget that the issue here is much bigger than the interests of one company or one union alone. The federal government is planning to appear before the Federal Court of Appeal to make a statement on the constitutionality of the very mandatory retirement exemption that it has already stated will be repealed in this session of Parliament. Should we not expect the two positions to be consistent? Why would it introduce a Bill in Parliament to repeal the exemption while at the same time arguing before the second highest court in the land that the exemption should be upheld?

According to the information we were provided yesterday, the Department of Justice will be submitting its brief to the Court and to the parties on November 8th. That should give us a pretty good indication of where the government stands on the exemption.

Regardless, its position for or against maintaining the exemption is likely to be very, very influential on the Court, I would expect.

[Mechanic787]

You haven't heard about the recent rulings (yes plural) that ruled against the greedy FTYD crowd? Enjoy your retirement.

With respect, sir, if I were in your situation, which I am not, I would be very reluctant to be quite so smug about those two decisions.

In case you have not heard, which you probably have not, both of those decisions are about to be up-ended. The first one, the July decision that found a BFOR, is in direct contravention of the Supreme Court of Canada edict on BFOR (Etobicoke, 1982) foreclosing the finding of a BFOR on the basis of a collective bargaining purpose. It would appear that the Tribunal member who decided the case did not even bother to inform himself of the binding legal precedent from the highest court in the land on the precise legal issue that he was deciding. The case is now before the Federal Court on judicial review.

Regarding the second decision, all four of the parties, including Air Canada and ACPA have already advised the Tribunal that the Tribunal was in error in dismissing the Complaints prior to hearing the constitutional issue. They have all agreed that the August Tribunal decision to dismiss the complaints must be amended, and that the case must now continue. That puts it squarely in the realm of res judicata, given the binding determination of the Federal Court on that very issue in the Vilven-Kelly proceeding.

[SilentMajority]

Mechanic787...

I would appreciate your insight into the significance of the federal Attorney General's department appearing at the Federal Court of Appeal hearing on November 22nd.

Do you see any possibility, given the stated direction of the current government, that the Federal Court of Appeal could overturn the Federal Court's earlier Charter decision?

I think we all agree that this hearing could be the final turning point in this saga.

[Mechanic787]

I would appreciate your insight into the significance of the federal Attorney General's department appearing at the Federal Court of Appeal hearing on November 22nd.

At the present time, it would appear that the only ones who know with any certainty what position the Department of Justice (a.k.a. the Attorney General) will present to the Federal Court of Appeal is the Department of Justice itself (and those who instruct it).

Any prediction as to what that position will be is strictly speculation until that position is put before the Court in the form of a brief, if even then. The Department could decide to remain neutral, given the limited application of the Court's decision in view of the pending legislation to repeal the exemption provision. As a result of repeal, the existing provision will have only retrospective effect, not prospective effect, once the repeal comes into force, so the only ones affected by it are those whose employment was or will be terminated prior to its coming into force.

Having said that, here is how I read the tea leaves. In addition to the unlikely event that the government would take a duplicitous position before Parliament and before the Courts (arguing before the Court that the provision should be upheld, while at the same time introducing legislation to repeal the provision) we should remember that despite being advised that the mandatory retirement exemption provision of the Human Rights Act was in question before the Federal Court in the previous two hearings, the Department of Justice elected to not appear at either. It was therefore obviously willing to risk the striking down of the provision at either or both of those hearings.

In the Court's reasons in the most recent case, the Court specifically cited as one of the two procedural reasons for not issuing a general declaration of invalidity of the provision the fact that the Attorney General was not re-served notice that a motion had been brought seeking the general declaration of invalidity. Without the Attorney General appearing before the Court, the Court was reluctant to issue an order that would affect over 800,000 employees in the federal sector, in addition to those affected at Air Canada.

Although the AG's positon is as yet undeclared, at the risk of speculating, here is what I expect will happen, based on my understanding of how politicians and bureaucrats think and function.

My guess is that the Department of Justice will not take a position on the subject of the litigation, but rather will simply appear to advise the Court of the government's current stated policy and plans to repeal the provision, thus allowing the Court come to its own opinion on the legislation, based on the merits of the Charter case. The fact that the Department lawyers appear at the hearing will legitimize the Court taking a free hand at making the final determination of the issue, regardless of which direction the Court decides to go.

[Morry Bund]

From what we are seeing, then, there is no way that this development can be good for ACPA's appeal of the Federal Court's decision denying the JR on Section 1.

There is no way that the government can now come to the Federal Court of Appeal and argue that the violation of the Charter provision by the mandatory retirement exemption should be saved by Section 1, when first, the government twice before chose not to defend the provision before the Federal Court and second, the government is now in the process of repealing the legislative provision. What would be the basis of its argument to defend it?

Just showing up and saying that the provision will soon be repealed seems to me to a good enough sign to the court that the provision cannot meet the Section 1 test, namely "reasonably justified...etc. etc.". They need say nothing more. Ta Ta.

[LeadingEdge]

http://www.canada.com/saskatoonstarphoe ... c28513954e

http://www.gnb.ca/cnb/news/hrc/2008e1074hr.htm

http://www.hrcomplianceinsider.com/news ... or-does-it

[Understated]

It would be easy to glean the incorrect impression from any of the above articles related to the 2008 SCC case (Saskatchewan Potash) to which the articles are referring.

Best to read the actual case, that you will find here:

http://www.canlii.org/en/ca/scc/doc/200 ... 8scc45.pdf

What is interesting to note is that Madame Justice Abella, in a narrow majority (4:3), decided the case on the basis of non-Charter principles, because the Charter issue was not before it in that case, despite the wishes of the Chief Justice, suggesting that the Charter principles should apply to the interpretation, nevertheless. In other words, the question before the court was whether "bona fide" related to the pension plan, or to the substance of the legislation. Because the Charter was not pleaded in the case, the majority chose to proceed on the basis of a strict statutory interpretation framework, deciding that a bona fide pension plan is just that, a plan that is not "a sham." Hence, the issue of whether mandatory retirement exemptions that permit mandatory retirement where there is a pension plan violate the Charter is yet to be decided.

That question is a very interesting one, given the suggestion of ACPA that the amendment that goes before Parliament to repeal the mandatory retirement exemption should still permit an exemption for employers that have a bona fide pension plan, such as Air Canada.

In the V-K before the Federal Court of Appeal, the Charter issue is pleaded. So both the Federal Court of Appeal and the Supreme Court of Canada (if the FCA decision is appealed, regardless of the outcome) will be able to look at all of the aspects of the issue of mandatory retirement, including the validity of the provision in the contex of the Charter.

Depite the potash miner's frustration with the outcome, the reality is that he did not plead the case fully at the outset, and if the Charter issue is not pleaded at the outset, it cannot be introduced during the appeal process, so he has no-one to blame but himself (and his lawyers) for limiting his own arguments. That single fact distinguishes the Vilven case--the Charter issue was pleaded at the Tribunal level, in the summer of 2006, thanks to the foresight our our own Complainants at the time.

[Rockie]

Strangely the pilot union wants to do the same thing which may make it easier for the government to side with the company on this

Oh no, the union is actually doing something in the interest of junior members and the company! What a tragedy....

Well that's a relief. You don't know how reassuring it is being on the opposite side of this issue from you.