Fed Ct Overturns Tribunal Dismissal of Age 60 Complaints

[Norwegianwood]

We are SO over it and I'm not sure why ACPA and AC aren't either.

Above the law they are!

[Old fella]

You would be less than honest with yourself (as one of the top contributors) if you didn’t think this topic is “stale dated”. Turn off the BBQ, put this item to one side – it’s done. Pilots can/are flying with your airline beyond 60yrs of age.

No it's not stale dated. It has been on the sidelines while the legal system grinds along at its glacial pace and people forgot about it mistakenly believing it was over. As Raymond's post above demonstrates it still is very much a current issue for the Air Canada pilots.

The end of mandatory retirement was never in question in my mind or that of many other people, including senior Air Canada management and ACPA representatives. Many people including Raymond have been trying to get the Air Canada pilots to be proactive about it and get something for it from the company rather than pursue the short-sighted and self-damaging path ACPA and the pilots chose. Those arguments fell on deaf ears and the consequences of that are not nearly over.

Whatever Rockie, whatever.... I note "Air Canada Pilots" the theme of course. Rest of us outside that bubble could care less, and you are no doubt right in thinking why are you bothering to comment. But I shall end on a positive note:

Did a very recent trip on your airline and as per the standard, the service provided was superb A+ in all aspects. It is my view that Air Canada domestic(cause majority of my travel) in the best in Canada.

By your leave!!!

[Rockie]

I'm glad you enjoy your experience at Air Canada Old fella, and I really do appreciate the fact you don't fall into the trap of automatically bashing the work we do.

[accumulous]

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

Canadian law is blind to the system Air Canada pilots have been working under. It doesn't matter, and never mattered, if Air Canada pilots don't think mandatory retirement is discriminatory...Canadian law does.

Why is that so hard for people to understand even now?

Rockie, you realize what I'd posted was copied and pasted from the Judges' ruling right? All I was/am really trying to get as this is not a black and white issue to the court, and they do see the details and understand how these pilots forced to retire benefited from the system they are now crying foul about. I'm really not trying to get into a pissing match here. However, I do think a few things need to be put into perspective.

This case has been going on for almost 9 years! The FP60 group wins an appeal and guys start talking about coming back!? I think some expectations need to be tempered. Do you think a judge is going to force 200 pilots out of work by dumping 200 retirees onto the top of the seniority list? Award them some huge monetary penalty?!? I don't want to say anything that's going to get me sued, but from what I've read on the FP60 website's updates over the years, I'd say quiet a large number of its authors predictions have failed to materialize as predicted. This appeal has only ensured that this case will drag on for another few years and cost all parties involved expensive legal fees.

I'd encourage everyone to read, or at least sift through, the ruling posted above and ask themselves if they think the Judge feels there has been some massive discrimination here and there is a need to punish ACPA and AC for the harm they've caused?

Since you've brought it up Rockie, here's some of what was said about discrimination in this case:

"[371] discrimination analysis should be applied. Firstly, it is illogical that a meritorious deviation be considered prima facie discrimination. As already pointed out, laws are intended to prevent injurious conduct. They should have no application to meritorious behaviour resulting from an ameliorative rule. An ameliorative retirement rule would fit the description of a meritorious deviation.

[372] Secondly, discrimination is a highly opprobrious, and therefore effective, label used to discourage a type of behaviour rejected by our society. It should not be cheapened by overuse where common sense suggests no discrimination has occurred. Like crying wolf too often, the term will lose its punch and legitimacy as an effective deterrent to discriminatory conduct.

[373] An example of cheapening rights talk I think is occurring in this case by telling the younger pilots that the older pilots suffered “discrimination” by the retirement rule. One scoffs at the suggestion that a rule which was intended to ensure that all pilots would be treated equally, and which when eliminated results in windfall benefits to the complainants at the expense of all of their colleagues, was based on a prima facie stereotype of prejudice against older pilots. Equally it is Professor Greschner provides a double-barrelled explanation for why a substantive hard to accept that the rule perpetuated a disadvantage to well-off senior pilots of the Baby Boomer generation because they were victims from among a disenfranchised and destitute group that suffers age discrimination in the 21st century."

The three paragraphs you quote contain a grand total of squat law. Zero.

It adds up to nothing more than a lop-sided myopic insulting view of everything that constitutes Human Rights in modern society. In fact it is the very modernity of society that has resulted in the clear recognition of the values in the Human Rights Act.

Eight hundred thousand, almost a million, federally regulated jobs have had indefinite career extensions put in place by the Government of Canada. Most if not all of them have pension plans. The three paragraphs you quote are nothing more than misguided doggerel applied way out of context, and given the raft of laws that has led to the abolishment of age discrimination for almost a million federally regulated employees in this country, there isn't a snowball's chance in hell that any of those 3 paragraphs can possibly withstand any kind of legal test. You can't substitute somebody's misguided opinion for law. The law is not going to tolerate a little oasis of pilots in a sea of almost a million federal employees trying to clear out a seniority list so they can work an indefinite career at their chosen profession for as long as they want while the rest of the entire country goes in exactly the opposite direction. You're dreaming in technicolor.

ACPA has a long history of this, culminating in the total sacrifice of an entire collective agreement getting hammered into a round file because they chose, in final offer selection, to call upon an Arbitrator to cancel the careers of every single Captain in the airline. There wasn't one single senior pilot orchestrating that gong show. The contract went up in smoke at the hands of junior pilots. Examples of hard core discrimination against senior pilots are well documented outside the legal arena and there's no doubt it will all come home to roost as prime adjuncts to why the current Human Rights laws have been enacted for everybody in the country.

[Raymond Hall]

Jeeez.... here we go. Is this going to be another 20 page thread on the Air Canada fly past 60. What is in this topic that hasn't been trashed out in last years 20 pager.......

What is in this thread that hasn't been in previous threads is the fact that the Federal Court has given an express interpretation of the characteristics that define the comparator group for the purposes of the "normal age of retirement" issue, expressly rejecting the interpretation put forward to the Tribunal by Air Canada.


In addition the Court has weighed in on the bona fide occupational requirement (BFOR) defence. In its reasons for decision it has significantly expanded not only the nature of the defence itself, but also underlying principles on which the defence can be purportedly be based. Not since the Canadian Human Rights Act (CHRA) was enacted in 1978 has there been such a dramatic purported modification to the defence.

While I am not willing to discuss the merits of this and other parts of the decision in this public forum, I will comment one of the not-so-obvious consequences of the decision, should it remain governing at the end of the day. That is this:

Because a BFOR defence is an absolute defence against all discrimination proscribed by the CHRA, upholding the defence on the factual situation before this Tribunal could have the effect of entirely overcoming the repeal of the mandatory retirement exemption that Parliament enacted to be effective December 15, 2012.

As I suggested above, "It ain't over 'till its over."

[Lt. Daniel Kaffee]

//edited by Sulako to remove the offensive stuff. Which leaves nothing left. Next time's a ban.

[lot lizard]

Just a couple of honest questions;

!. Why would anyone want to stay on past 60 when you have a nice pension (now in surplus...) waiting for you when you walk out the door?
2. Why not spend the time and capital to negotiate an incentive for early retirement?
3. If the pilot group came up with a rotating or socialized seniority system, how many would really want to come back?
4. With the way the industry has changed in the last 15 years, why would you want to stay?
5. If you knew this day was coming, why not plan for it?

I retired at 50 and there is nothing better than enjoying life when your young. I do miss some things about airline flying but I had a great run and I'm very satisfied.
I looked at contract flying as something to do part time but realized I would rather fly for fun.
If you retire at 65, you life expectancy is going to be very short doing this job. Enjoy your life living.
How many times can you do the same trip to LHR, FRA or CDG, go to the same hotel, pub and restaurant? At least at EK, the cabin crew were very nice to look at

[accumulous]

Just a couple of honest questions;

!. Why would anyone want to stay on past 60 when you have a nice pension (now in surplus...) waiting for you when you walk out the door?
2. Why not spend the time and capital to negotiate an incentive for early retirement?
3. If the pilot group came up with a rotating or socialized seniority system, how many would really want to come back?
4. With the way the industry has changed in the last 15 years, why would you want to stay?
5. If you knew this day was coming, why not plan for it?

I retired at 50 and there is nothing better than enjoying life when your young. I do miss some things about airline flying but I had a great run and I'm very satisfied.
I looked at contract flying as something to do part time but realized I would rather fly for fun.
If you retire at 65, you life expectancy is going to be very short doing this job. Enjoy your life living.
How many times can you do the same trip to LHR, FRA or CDG, go to the same hotel, pub and restaurant? At least at EK, the cabin crew were very nice to look at

First of all could you please holler at Mr. Cruise up above you there and tell him to stop stereotyping people over 60. Everybody's getting sick and tired of the age discrimination. Tell him to loosen his tie or something,

There are as many reasons for wanting to work as their are individual people. A good place for you to find the answer to you great questions would be to canvas the 100 or so AC pilots who are not going to retire at 60 this year. Another good source sample would be to canvas the American Airlines pilots who at last report have 7 times as many pilots over 60 as there are under 40. You'll find hundreds of individual reasons.

[Joe Blow Schmo]

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

Canadian law is blind to the system Air Canada pilots have been working under. It doesn't matter, and never mattered, if Air Canada pilots don't think mandatory retirement is discriminatory...Canadian law does.

Why is that so hard for people to understand even now?

Not quite. Canadian law is subject to judicial review and it is the responsibility of the judiciary, amongst other things, to ensure that the law is applied fairly and justly. This judge seems to be musing that perhaps a mandatory retirement age of 60 is fair and just in this case. None of us (and I'm not an AC pilot so I'm unaffected - although I do have an opinion) can say definitively what the law is until this is ruled on by the Supreme Court. Undoubtedly that is where this will end up eventually.

[Lt. Daniel Kaffee]

Is Ray Hall now moderating the forum? Sorry to be a downer on the all the high-fives going on.

Geez, getting banned from here would be like a badge of honour !

Here's to hoping that the Tribunal review, the subsequent Judicial Review, and the the appeal to the Federal Court of Appeal, and possible SCC appeal take several more years!

[Old fella]

Mods et al. If I may suggest, why not migrate this thread to a private forum with login/password access maybe under a sub folder Air Canada and let the keen contributors who have a profound interest – blast away. This is a very good forum with thought out topics present by/responded to by interesting/knowledgeable individuals. Just my viewpoint, to that end this thread adds nothing to the overall theme on the aviation industry with the constant debating ad nauseum.

[accumulous]

In a sense, therefore, it is difficult to assimilate how a regime already favouring older workers would be described as discriminatory because at age 60 it cut off the continuation of that generous situation. Termination at that age was intrinsic to the functioning of the collective agreement which based payment out at older ages on effort put in at younger ages.

Canadian law is blind to the system Air Canada pilots have been working under. It doesn't matter, and never mattered, if Air Canada pilots don't think mandatory retirement is discriminatory...Canadian law does.

Why is that so hard for people to understand even now?

Not quite. Canadian law is subject to judicial review and it is the responsibility of the judiciary, amongst other things, to ensure that the law is applied fairly and justly. This judge seems to be musing that perhaps a mandatory retirement age of 60 is fair and just in this case. None of us (and I'm not an AC pilot so I'm unaffected - although I do have an opinion) can say definitively what the law is until this is ruled on by the Supreme Court. Undoubtedly that is where this will end up eventually.

You make a good point. If you thought the Age 60 Committee was brilliant, followed by the Jonestown executive massacre over the AC contract, followed right up by Final Offer Selection, and if you thought that was, er, final, well the thrills just keep on a-comin.

By now the entire airline community in North America knows that if you lock us in a room with a paint roller, you can come back in ten minutes and yep, we will have painted ourselves into a corner. Never mind that nobody else on the planet does things like us. Never mind that Parliament abolished Mandatory Retirement because it was outright age discrimination, done and dusted.

What ACPA wants to do now is visit the Federal concept of discrimination, and get it overturned.

Then the next part gets really interesting because the senior pilots over 60 can all pack up and go home and the next thousand or so guys approaching age 60, and it's a big demographic, can all stop buying shoe shine. The junior guys can all slide up the list briefly and out the door at 60 under the watchful eye of the new hires, with nobody in the entire organization maxing the pension, because when the Federal Government abolished limits on the discrimination on ACs age of hiring back in the 1980's it upset the entire pension scheme versus age. The pension scheme in and of itself has been discriminatory on the basis of age for the past 30 years.

ACPA is now going to take the union dues of all 3000 pilots, hand it over to a lawyer in a manila envelope, and instruct the guy to put an end to their careers. It will only take a couple of junior guys and a lawyer to change the locks on the building. And when they get near the top, the next new hires of the day will be there to ensure the locks are changed again.

The MEC needs to just lean forward slowly and carefully right now and grasping their King by the head, just lay it down on its side because they just paid a Federal Court Judge to wax their own careers.

Checkmate.

[Norwegianwood]

Well said!

[TrailerParkBoy]

Here's a simple fix for this mess:

It seems everything, especially at Air Canada, seems to clasp on to the term "Grandfather Clause". So just ask yourself this; when you were hired, what was the retirement age understood when you accepted your new career? If it was 60, then the grandfather clause takes effect! Problem solved!

Now if the government says in 2010, there is no mandatory retirement age, then if you were hired with that being the policy, then good for you. You can now fly til you die!

[accumulous]

Here's a simple fix for this mess:

It seems everything, especially at Air Canada, seems to clasp on to the term "Grandfather Clause". So just ask yourself this; when you were hired, what was the retirement age understood when you accepted your new career? If it was 60, then the grandfather clause takes effect! Problem solved!

Now if the government says in 2010, there is no mandatory retirement age, then if you were hired with that being the policy, then good for you. You can now fly til you die!

Excellent thinking.

Grandfather goes, grandson stays, although the wording looks prima facie discriminatory so you'd have to dream up a different set of relatives.

That should effectively wipe out roughly 1 billion, 350 million dollars ($1,350,000,000) in collective career earnings potential that Parliament handed each and every one of us when they abolished age discrimination. That would easily top all the previous contractual losses via ACPA combined, by a thundering huge margin. Nicely done.

[TrailerParkBoy]

Here's a simple fix for this mess:

It seems everything, especially at Air Canada, seems to clasp on to the term "Grandfather Clause". So just ask yourself this; when you were hired, what was the retirement age understood when you accepted your new career? If it was 60, then the grandfather clause takes effect! Problem solved!

Now if the government says in 2010, there is no mandatory retirement age, then if you were hired with that being the policy, then good for you. You can now fly til you die!

Excellent thinking.

Grandfather goes, grandson stays, although the wording looks prima facie discriminatory so you'd have to dream up a different set of relatives.

That should effectively wipe out roughly 1 billion, 350 million dollars ($1,350,000,000) in collective career earnings potential that Parliament handed each and every one of us when they abolished age discrimination. That would easily top all the previous contractual losses via ACPA combined, by a thundering huge margin. Nicely done.

Perfect...but then we would have to abolish the 16 yr age limit for someone to get their PPL since that sound discriminatory also! I've seen a 12 yr old fly just as good as anyone else!

[Rockie]

Perfect...but then we would have to abolish the 16 yr age limit for someone to get their PPL since that sound discriminatory also! I've seen a 12 yr old fly just as good as anyone else!

Minimum age limits have nothing to do with hand flying ability and everything to do with maturity and judgement.

But you knew that right?

[planeless]

Perfect...but then we would have to abolish the 16 yr age limit for someone to get their PPL since that sound discriminatory also! I've seen a 12 yr old fly just as good as anyone else!

Minimum age limits have nothing to do with hand flying ability and everything to do with maturity and judgement.

But you knew that right?

Saying someone is to young to do a job is the same discrimination as saying someone is too old to do a job.

[TrailerParkBoy]

Perfect...but then we would have to abolish the 16 yr age limit for someone to get their PPL since that sound discriminatory also! I've seen a 12 yr old fly just as good as anyone else!

Minimum age limits have nothing to do with hand flying ability and everything to do with maturity and judgement.

But you knew that right?

So labelling young people as immature and unable to make good judgment isn't discriminatory? Do you not know any mature kids? Not all are morons like Bieber!

Retirement age has nothing to do with hand flying and everything to do about "retiring" otherwise known as "maturing".

But I would suspect you know that since you are old enough to make good judgment!

But seriously, do people not yearn for Freedom 55 anymore?

[Rockie]

A lack of maturity and judgement isn't a label, it's a fact in human beings until they get older. Society doesn't consider minimum age limits for activities that require maturity and judgement that very young people lack discriminatory. Unlike forcing capable people to leave their job just because they reach an arbitrarily chosen age.

Like Air Canada pilots this is something you must eventually learn.

Freedom 55? Come on, you need to pay more attention.