Upholding Mandatory Retirement Federal Court of Appeal

[43S/172E]

Taken from PPRuNE

Good Evening All:

Before "some" people trip a circut breaker on this thread, please note that Air Canada Pilots may work past 60 in December of this year.

The article below which was taken from the Ottawa Citizen web site which outlines those pilots who complained they were discriminated on the basis of age because of a contractural arrangement between the pilots of Air Canada and Air Canada with regards to a age which was set for what was considered by all as a normal age for retirement.

By Don Butler, The Ottawa Citizen July 30, 2012


A little-noticed decision, posted last week to the Federal Court of Appeals website, overturned earlier findings by the Federal Court of Canada and the Canadian Human Rights Tribunal that contractual provisions forcing Air Canada pilots to retire at 60 violated the Charter of Rights.

A little-noticed decision, posted last week to the Federal Court of Appeal’s website, overturned earlier findings by the Federal Court of Canada and the Canadian Human Rights Tribunal that contractual provisions forcing Air Canada pilots to retire at 60 violated the Charter of Rights.


A recent decision by the Federal Court of Appeal upholding mandatory retirement for Air Canada pilots “walks us back a couple of decades in terms of social thinking,” says CARP, Canada’s largest seniors’ organization.

But while the July 17 court of appeal decision is a major setback for the retired pilots and others in federally regulated industries facing forced retirement, it won’t affect most Canadians, experts say.

The little-noticed decision, posted last week to the court of appeal’s website, overturned earlier findings by the Federal Court of Canada and the Canadian Human Rights Tribunal that contractual provisions forcing Air Canada pilots to retire at 60 violated the Charter of Rights.

The court of appeal concluded that a landmark 1990 Supreme Court of Canada decision that mandatory retirement for university teachers does not violate the Charter of Rights was a binding precedent that the Federal Court and tribunal ought to have followed.

The appeal court referred the case — brought by retired Air Canada pilots George Vilven and Robert Kelly — back to the human rights tribunal, with a direction to dismiss the complaints.

The 1990 decision, the court said, found that mandatory retirement is constitutionally permissible if a fixed retirement date “permits the negotiation of mutually beneficial arrangements which might not otherwise be possible.

“That said, it may be that conditions have changed to the point where the Supreme Court is prepared to revisit this issue,” the court said. “If it is, then obviously, nothing in this decision would prevent it from doing so.”

At issue is a section of the Canadian Human Rights Act that allows federally regulated employers to terminate employees who have reached “the normal age of retirement” for workers in similar positions. The section was repealed last December as part of the federal government’s omnibus budget bill, but the change doesn’t take effect until this Dec. 15.

All provinces and territories had earlier repealed similar provisions in their own human rights codes. For federal public servants, mandatory retirement was eliminated in 1986, but the federal act’s provision still applies to 12,000 employers with more than 800,000 employees.

Susan Eng, CARP’s vice-president for advocacy, said appeal court’s decision sends a message about how society values older workers. “This walks us back a couple of decades in terms of social thinking,” she said.

“When the courts take a giant step backwards, we worry that the government might actually take this as a cue to walk it back as well,” she said, though she added: “I’ve got to think it’s not worth their while to do that.”

Kevin Banks, director of Queen’s University’s Centre for Law and the Contemporary Workplace, pointed out that circumstances have changed a lot since the Supreme Court’s 1990 decision.

“The longer-term trend is for labour and skills shortages rather than an oversupply,” Banks said. That has prompted discussion of the need to keep older workers productive and attached to the workforce. “That’s very different from the talk in 1990.”

But he implications of the appeal court’s decision are limited, Banks said, because it only applies to federally regulated employees forced to retire prior to Dec. 15, 2012.

Within that group, those likely to be most troubled by the decision are highly skilled people who want to stay in their jobs, or people who haven’t accumulated sufficient retirement savings and want to continue working for financial reasons, he said.

Lawyer Raymond Hall, who represents Vilven, Kelly and about 200 other retired Air Canada pilots, admitted that the appeal court’s decision “does throw a big monkey wrench into things.”

Hall said he has filed for leave to appeal the decision to the Supreme Court, but is worried that the high court might consider the issue moot because of the pending repeal of the relevant sections of the human rights act.

The decision, he said, “leaves my clients in the lurch” because the change in the law isn’t retroactive and won’t apply to anyone forced into retirement before the change comes into force. “It basically says all those people whose rights were violated are denied their Charter rights.”

It also raises questions about access to justice, Hall said, noting that Vilven and Kelly have already spent $1.25 million in legal fees “only to have the thing thrown out and be back at square one.”

dbutler@ottawacitizen.com

Read more: Air Canada pilots suffer setback in mandatory retirement case

[Raymond Hall]

By Don Butler, The Ottawa Citizen July 30, 2012
...
Hall said he has filed for leave to appeal the decision to the Supreme Court, but is worried that the high court might consider the issue moot because of the pending repeal of the relevant sections of the human rights act.

A couple of corrections, as is always the case with stories that are second hand. First, the application for leave to appeal to the SCC has not yet been filed. We expect to file it next week.

Second, I am not "worried" about the potential for the SCC to find the case moot. There is a difference between being "worried," and expressing concern for and addressing all of the relevant parameters that may be taken into consideration by the Court in its decision with respect to granting leave. We are confident that the Court will indeed hear this case, for a number of reasons. The issue is not moot.

[43S/172E]

Ray:

Can you expand on this:

The court of appeal concluded that a landmark 1990 Supreme Court of Canada decision that mandatory retirement for university teachers does not violate the Charter of Rights was a binding precedent that the Federal Court and tribunal ought to have followed.

The appeal court referred the case — brought by retired Air Canada pilots George Vilven and Robert Kelly — back to the human rights tribunal, with a direction to dismiss the complaints.

The 1990 decision, the court said, found that mandatory retirement is constitutionally permissible if a fixed retirement date “permits the negotiation of mutually beneficial arrangements which might not otherwise be possible.

[Raymond Hall]

Ray: Can you expand on this: The court of appeal concluded that a landmark 1990 Supreme Court of Canada decision that mandatory retirement for university teachers does not violate the Charter of Rights was a binding precedent that the Federal Court and tribunal ought to have followed.

Perhaps, but not without getting into serious and detailed legal argument, which I would prefer not to do here. Here is a link to the McKinney case:

http://www.canlii.org/en/ca/scc/doc/199 ... nlii60.pdf

230 pages. The key aspect is that the FCA said it was binding, despite the fact that it was decided 22 years ago, only five years after the Charter equality provisions came into effect, and that in order to get the decision changed, you have to go back to the Supreme Court of Canada to accomplish that task. Obviously, easier said than done, even if you have the legal and financial resources to pursue that goal.

[pelmet]

Wasn't there two retired guys who got trained again on the 777. What is their status?

[ScudRunner]

Have to agree with the courts decision on this one, they agreed with AC that they would retire at age 60 well then live up to your end of the agreement. If a federal law mandated such a forced retirement then I fully support the age discrimination argument and the law struck. I know pilots that are 70 and sharper and in better physical health than people half their age. If a pilot can hold a medical they should be permitted to fly.

[MackTheKnife]

Have to agree with the courts decision on this one, they agreed with AC that they would retire at age 60 well then live up to your end of the agreement. If a federal law mandated such a forced retirement then I fully support the age discrimination argument and the law struck. I know pilots that are 70 and sharper and in better physical health than people half their age. If a pilot can hold a medical they should be permitted to fly.

http://www.theglobeandmail.com/globe-in ... le4489503/


"According to the survey, almost half of today’s 50-59 year olds surveyed have less than $100,000 saved for retirement and many planned to use employment income in retirement to make up for lack of savings.

“The retirement landscape is shifting as baby boomers reach traditional retirement age with a smaller nest egg than they expected to have,” said Christina Kramer, executive vice-president, retail distribution and channel strategy at CIBC.“Many Canadians are now planning to draw on multiple sources of income including employment to fund their retirement, and that makes getting advice about how to manage your income, savings, and investments even more important.”

[bluemic]

....they agreed with AC that they would retire at age 60 well then live up to your end of the agreement.....

.:

Many of us agreed to lots of things when we signed on. Things like Canada-South America flights without augments; ungodly multi-legged midnight pairings that would make a freight-dog whinge; a maximum age for new hires; overseas schedules that are illegal now; male-only flight decks; career-ending sim sessions; duty days that wouldn’t be contemplated today; archaic - and restrictive - medical standards; CRM? - not even on the horizon; crew fruit baskets, a frightening probation period and yegads! - even smoking in the cockpit! The list goes on, but I’m pretty sure you can grasp what I'm saying.

In simpler words: The terms and conditions that one agrees to at the beginning are rarely the ones that one exits with.

Change happens.

mic

[Rockie]

Change is a dirty word at Air Canada. Regarding this issue ACPA and the Air Canada pilots remind me of the cartoon of the massive eagle in a high speed dive about to sink its talons into a mouse giving it the finger. Noble in their own mind maybe, but better to get out of the way and use the eagle's momentum to your own advantage.

I have a permanent callous on my forehead from years of trying to get our group to do that very thing. Instead we naturally got the talon right through the heart.

Discouraging.