FP60 update Federal Court of Appeals

[Morry Bund]

Geez...that's pretty vague.....sometime after but not before......hope you're not using that arguement in front of a judge.

Air Canada was supose to just blindly follow which other Canadian airlines leed in extending the agreed upon retirement age? Jazz??? Westjet??? Are you aware of the reason it was changed at these carriers and under what circumstanses???

I’ll leave it to the lawyers to make the arguments. I am simply restating the explanation of the facts and the law that was provided to our group.

Vague or not, the point is, it is up to the employer, prior to terminating the employment of someone, to ensure that that termination is in compliance with the law. The onus does not rest with the employee to show age 60 was not the normal age of retirement.

Therefore, Air Canada had to demonstrate to the tribunal that its pilots, the only pilots forced to retire at age 60 after 2005, were the majority of airline pilots in Canada. According to the federal court, if failed to do so when it failed to recognize the pilots from its main competitors as being in the pool of comparator pilots used to assess the normal age of retirement.

Air Canada is now trying to persuade the court of appeal that the finding of the federal court should not be upheld.

Remember though, its position before the tribunal was that pilots from WestJet, AirTransat and SkyService were not to be considered as comparator pilots to Air Canada pilots even though they flew similar aircraft to similar destinations, but that pilots from the smaller carriers such as those operating float planes in the arctic should be the pilots used for comparators. Go figure. Do you reckon that the court of appeal will buy that argument?

It is irrelevant to the appeal why the other carriers chose to move off age 60. Age discrimination was prohibited but termination at the normal age of retirement was permitted as an exception to the rule. All that matters for the purpose of this case is that Air Canada showed that its termination of the pilots met the exemption. If it didn’t, there was no legal justification for terminating their employment.

It’s almost like “buyer beware”. Before you commit yourself (or your company) to a course of action, you have a responsibility to ensure that the action about to be taken will be one that won’t come back to haunt you later. And it doesn't matter whether nobody held you accountable in the past. Every single termination of employment was possible only so long as the mandatory retirement exemption was applicable.

That means that an individual assessment should have been carried out for each pilot about to be terminated any time after the numbers started to change, and especially before pilots forced to retire at age 60 moved into the minority.

[Dockjock]

It's just so much cleaner to say here's the law, follow it. That's actually the entire basis of society, isn't it. A codified set of rules and expectations for personal and corporate behaviour? How can you consider things that are not part of the law, just because somebody complained about it. Imagine!

[Morry Bund]

How can you consider things that are not part of the law, just because somebody complained about it.

You are either miscomprehending the exemption provision or misstating it, or both, although I do give you credit for discussing the issue rationally rather than emotionally or dogmatically.

The conditional exemption to mandatory retirement was in the law for decades before the complaints were raised by these pilots. Contrary to your assumption, it was part of the law. Mandatory retirement was conditional, not absolute. If mandatory retirement wasn’t meant to be conditional upon the normal age of retirement, there would have been an absolute exemption in the statute instead of a conditional exemption.

Let me give you another example of a more obvious conditional legal provision. If you pass your flight test, your licence is validated. If you don’t, it isn’t.

Does Air Canada not take that condition seriously? Of course it does. So why, when it comes to ending pilots’ careers, putting fully competent, qualified, licensed pilots on the street, should they not take that conditional provision seriously?

Remember that Air Canada kept terminating the employment of pilots right up until December, 2012, when the repeal of the exemption came into effect, after six years of litigation before the tribunal and the courts. There was no issue with them about whether the exemption was part of the law. The only issue was whether the exemption was triggered. Their argument to this day that it was not triggered verges on the absurd, given the facts, I would suggest. That is why the federal court was having nothing to do with it, and overturned the tribunal’s decision on that point.

[Rockie]

There are 200ish pilots with pending complaints that that wouldn't be there had ACPA made the smart decision when the first one was filed. Each successive month after that more were added to the list. If the Federal government hadn't dragged themselves into the 21st century when they did there would be even more, so quite literally the government inadvertently saved us from further harming ourselves.

The process is finally approaching the end game, and when the final judgement comes down people will conveniently forget that this is the path ACPA and the pilots who supported them chose - not the complainants.

[Dockjock]

Sure it was conditional, but was it punitive. My kids often complain about my seemingly arbitrary rules. No candy before noon, no dessert before bed. BUT CONNOR GETS TO...ok then go live with CONNOR. Contrary to yours and others' extremely simplistic interpretation of what a democratic majority vote consists of, the majority of AC pilots were quite happy with the arrangement. I wouldn't call that tyranny, I'd call it "win some lose some." AC pilots have been compensated near the top of the industry for decades, and the tradeoff was early (-er) retirement than a few other companies, some of which have 10 aircraft, none bigger than 30 seats. Any normal (that word again?) person could see that the tradeoff was more than fair. The law changed, the contract and pension changed with it. Now, most pilots are OK with it as well. Again, "win some lose some." Like I said, the sooner your group is out of the picture never to return, the better. I'm embarrassed for you.

[Wacko]

The process is finally approaching the end game, and when the final judgement comes down people will conveniently forget that this is the path ACPA and the pilots who supported them chose - not the complainants.

Yep.. when I'm 62 making the same amount of money I should have been making at 57 due to a later start with the company because of some selfish old pilots I'll make sure to remember you. THANK YOU!

[Rockie]

Yep.. when I'm 62 making the same amount of money I should have been making at 57 due to a later start with the company because of some selfish old pilots I'll make sure to remember you. THANK YOU!

How far will you go blaming others for not achieving the career advancement you expect?

The government for the economy that stalled effecting airlines?
The bankers for the financial meltdown in 2008?
Osama Bin Laden?
Air Canada for increasing their load factor thus reducing the number of pilots needed?
Everybody flying on WestJet, Sunwing etc?
SkyRegional, Jazz, etc for taking your rightful job?
Air Canada again for getting 1 787 instead of 2 737's?
Air Canada again for not hiring you sooner?
The union for their inability to change the definition of discrimination in this country?
Every company you ever worked at for not giving you the experience you needed sooner?
Your parents for not supporting you enough?

At what stage do you accept some responsibility, like maybe for your own career choices? You already gained seniority and perhaps got your job to begin with while the union did your bidding by stalling the process as long as they did but now you want even more. By the way, you can thank society for ending arbitrary and discriminatory age based retirement adding an additional five years to your career. Something you will probably appreciate when you turn 60 if you can still remember how things used to be and how it changed. Something I doubt.

[Wacko]

How far will you go blaming others for not achieving the career advancement you expect?

YOU signed on the dotted line 25+? years ago knowing full well what the retirement age is. Now that it doesn't work FOR YOU, you ended up changing it to YOUR benefit.

You didn't only effect AC with this. You effected all the 703/704 and even 705 operators by reducing the movement in the industry.

The difference between Sept 11 and what you're doing is that YOU were responsible for this... I'm not comparing you to a terrorist but in effect you would be what equates to the terrorists in that scenario... you are the NEGATIVE for the whole industry for YOUR benefit.

Regardless, you will always think you're in the right... retire in 2 years and not give 2 sh!ts about everyone below you... so again.. THANK YOU for your contribution to the industry... me and every pilot from the rampies to the guys sitting in the pool at AC will remember your great contribution to the industry... on OUR backs.

I'm done... won't be replying to this post again..... it's just amazing how the sh!t rolls down the triangle and the arrogance of the ones on top.

[Rockie]

YOU signed on the dotted line 25+? years ago knowing full well what the retirement age is.

I signed on the dotted line much, much less than 25 years ago knowing what a whole bunch of things were including pay, duty times, benefits, scheduling rules etc. You did too but things change, and I'm going to go out on a limb and guess that many of those changes you agree with despite "signing on the dotted line". Save the hypocrisy.

Now that it doesn't work FOR YOU, you ended up changing it to YOUR benefit.

I didn't change it the government did although I wholeheartedly agree with the change. I didn't even do any work to make it change - I just knew from the start the change was inevitable and wanted my union to take action to mitigate the changes for people like you and me. Instead they chose to do the opposite. Talk to them about your problems.

The difference between Sept 11 and what you're doing is that YOU were responsible for this

Wrong again.

I'm done... won't be replying to this post again..... it's just amazing how the sh!t rolls down the triangle and the arrogance of the ones on top.

Wrong again, I'm down near the bottom like you. Outrage is so much more effective if it's based on fact Wacko...

[Fanblade]

Understated,

I'm on the road at the moment. Go back a couple of pages and look for an attachment called demo.xlsx. It is a simulation of the stagnation you describe and shows the variable outcomes versus when the delay takes place.

The whole point of this was to show that their are different views of financial harm. A narrow view whereby one compares the litigants to what they could have made if mandatory retirement was abolished when they were smack on 59. Any earlier the loss is less. Any later the loss is less.

Or a wider view whereby the litigants are compared to the entire group over the duration of adjustment time frame.

The view points paint very different pictures.

Looks like this thread is degenerating once again and I think I have had enough.

Merry Christmas everyone.

FB

[43S/172E]

Rockie et al

[teacher]

Are you seriously still talking about this?

The law changed, the new law was not followed. Just like taxes, if you challenge a tax dispute and lose you owe BACK TAXES plus penalties.

The law was challenged and lost. Open and shut.

[Rockie]

Rockie et al

That's actually pretty funny. We'll see if you still feel the same a little over a month from now.

[Ah_yeah]

And there in lies the fallacies with Fanblades theories IMO.

They are based on every pilot have a constant linear career when the reality is anything but. With over 3000 pilots having almost as many different reasons for bidding equipment types, which are then reviewed and changed nearly every 6 months, it is literally impossible to project anyones career earnings.



MTK

LOL, I'm willing to bet that that 777 Capt salary will be used as a benchmark for damages though.

Fanblade, your math is pretty easy to understand and let's face it, we don't know who Rockie really is. He claims to be a guy that is gonna get burned with the rest of us retched lot but who is he really ?
Human nature tells me that no one would post so frequently and vehemently in favor of the side that is trying to screw him over. That to me explains why he is trying to wear you down and muddy the facts. I wouldn't waste your time trying to educated him or any of the other prophets of doom here.

[Raymond Hall]

Fanblade, your math is pretty easy to understand and let's face it, we don't know who Rockie really is. He claims to be a guy that is gonna get burned with the rest of us retched lot but who is he really ? Human nature tells me that no one would post so frequently and vehemently in favor of the side that is trying to screw him over. That to me explains why he is trying to wear you down and muddy the facts. I wouldn't waste your time trying to educated him or any of the other prophets of doom here.

Not correct. You don't know who Rockie is, but I do. We met once, when I was still an active line pilot, and we have corresponded a few times since then. He is not a member of the Coalition, so he is not privy to the correspondence that goes out to our members, but he is who he says he, a fairly junior line pilot, with a mind of his own.

And for the record, nobody (in the Coalition) is trying to "screw you over." Those types of comments are unhelpful to the discussion thread, and reflect more about your own unwillingness or inability to comprehend the significance of the legal issues to be decided than they do about the points raised in discussion here.

[Rockie]

He claims to be a guy that is gonna get burned with the rest of us retched lot but who is he really ? Human nature tells me that no one would post so frequently and vehemently in favor of the side that is trying to screw him over.

Goes to show I guess you're not always right when it comes to human nature. You must have missed the other 843 times I've stated my reasons but I don't mind stating them again:

1. I believe it is a human rights violation to force someone from a job they are capable and competent at simply because they turned an arbitrary age.

2. I retain the ability to see beyond the Air Canada/ACPA bubble to the real world. As another poster is fond of saying I was able to add 2+2 and come up with the inevitable and imminent end of mandatory retirement regardless of what Air Canada and ACPA did to try and stop it. Seems I was right.

3. As a result of #2 above, it was beyond foolish to me to attempt to stop the change. More than that, it is a disgrace that ACPA would actually fight its own pilots to retain what the rest of Canada outside the aforementioned bubble clearly considers a violation of human rights. The fact that so many of our membership supported them (still) is equally disgraceful and a discredit to us all.

4. ACPA has a duty of fair representation which it's fair to say they failed miserably at. Every other union got it right.

5. From the beginning I thought we should have used the time to extract concessions from the company given the financial gains they would enjoy as a result of this change, and use what we could extract to mitigate the inequities resulting from the change. We refused to do that and of course got nothing instead. A big fat zero. No wait...that's wrong. We got 50% of whatever costs the tribunal sees fit to award the 200+ complainants. Way to go guys, give yourselves a round of applause....


I am what I say I am Ah_yeah. Believe it or not even junior people are capable of seeing the writing on the wall and making correct deductions if they really put their minds to it.

[dukepoint]

Geez...that's pretty vague.....sometime after but not before......hope you're not using that arguement in front of a judge.

Air Canada was supose to just blindly follow which other Canadian airlines leed in extending the agreed upon retirement age? Jazz??? Westjet??? Are you aware of the reason it was changed at these carriers and under what circumstanses???

I’ll leave it to the lawyers to make the arguments. I am simply restating the explanation of the facts and the law that was provided to our group.

Vague or not, the point is, it is up to the employer, prior to terminating the employment of someone, to ensure that that termination is in compliance with the law. The onus does not rest with the employee to show age 60 was not the normal age of retirement.

Therefore, Air Canada had to demonstrate to the tribunal that its pilots, the only pilots forced to retire at age 60 after 2005, were the majority of airline pilots in Canada. According to the federal court, if failed to do so when it failed to recognize the pilots from its main competitors as being in the pool of comparator pilots used to assess the normal age of retirement.

Air Canada is now trying to persuade the court of appeal that the finding of the federal court should not be upheld.

Remember though, its position before the tribunal was that pilots from WestJet, AirTransat and SkyService were not to be considered as comparator pilots to Air Canada pilots even though they flew similar aircraft to similar destinations, but that pilots from the smaller carriers such as those operating float planes in the arctic should be the pilots used for comparators. Go figure. Do you reckon that the court of appeal will buy that argument?

It is irrelevant to the appeal why the other carriers chose to move off age 60. Age discrimination was prohibited but termination at the normal age of retirement was permitted as an exception to the rule. All that matters for the purpose of this case is that Air Canada showed that its termination of the pilots met the exemption. If it didn’t, there was no legal justification for terminating their employment.

It’s almost like “buyer beware”. Before you commit yourself (or your company) to a course of action, you have a responsibility to ensure that the action about to be taken will be one that won’t come back to haunt you later. And it doesn't matter whether nobody held you accountable in the past. Every single termination of employment was possible only so long as the mandatory retirement exemption was applicable.

That means that an individual assessment should have been carried out for each pilot about to be terminated any time after the numbers started to change, and especially before pilots forced to retire at age 60 moved into the minority.

You were not "TERMINATED" .......that means fired. Are you using that term to add drama, and make it appear you've been violated somehow? You RETIRED at a mutually agreed upon point. They could have used 'years of service' ....instead, everyone who was hired at Air Canada agreed in a mutual way, that the retirement date was an attained age.....60.

Why 60? Because it is "generally" a good age to leave the profession....you gotta go at some point. Might as well be when you can still swing a golf club. You've had your time in the sun, just like every pilot before you, so make way for others waiting in line.

DP.

[Norwegianwood]

"You RETIRED at a mutually agreed upon point. They could have used 'years of service' ....instead, everyone who was hired at Air Canada agreed in a mutual way, that the retirement date was an attained age.....60."

Which brings me back to a question a asked on page 7 of this thread..........

If all pilots hired prior to Dec 2012 signed on knowing the "normal retirement" day was the first day of the month following their 60th birthday, why then are they (all of you) not retiring and the pilots hired after Dec 2012 then retire at age 65!

I only ask this because............

Fire away as this applies to all pilots hired prior to Dec 2012 does it NOT?

NW

[Morry Bund]

You were not "TERMINATED" .......that means fired. Are you using that term to add drama, and make it appear you've been violated somehow? You RETIRED at a mutually agreed upon point. They could have used 'years of service' ....instead, everyone who was hired at Air Canada agreed in a mutual way, that the retirement date was an attained age.....60. Why 60? Because it is "generally" a good age to leave the profession....you gotta go at some point. Might as well be when you can still swing a golf club. You've had your time in the sun, just like every pilot before you, so make way for others waiting in line.

The issue here in not one of semantics, it is one of law. The pilots forced out at age 60 had their employment terminated. Fact. Here is another fact. They had absolutely nothing to do with the contractual provision that purported to consecrate that termination of employment, including the opportunity to vote on putting the provision in the agreement in the first place.

I don’t know how long you have been employed here, but I can assure you that no line pilots were ever consulted by the negotiating team or anyone else, or given a chance to vote on the establishment of the age 60 retirement provision in the contract. It was simply written in to the pension plan, not the contract, without telling anyone.

We don’t get a copy of the pension plan, so not only were we not given the opportunity to vote on it, we were never consulted about it or even advised that it had been done. Apparently, the age of termination was originally age 45, then later was made age 60 as a matter of employer policy, not law. It was put into the pension plan in the early 1980's, after many or all of the current litigants before the court of appeal were hired. So give up that crap about it being a condition of hire.

The closest the union ever came to dealing with the issue was the vote taken in 2006, which is partially why the union is currently facing the problems now before it. Union votes are meaningless, if the option voted on is illegal.

According to the legal advice that I have received, contracts that violate law are of no force and effect. Void. Unenforceable. A contract to discriminate on the basis of age in employment, contrary to the human rights act, is no more legal than is a contract to rob a bank.

You, like so many others, apparently fail to appreciate what the court has already had to say about the mandatory retirement exemption in the statute as it relates to the facts of this dispute. In January the federal court found in favour of the coalition pilots on this point. If the court of appeal does not interfere with the federal court’s decision on this point, it is over, at least as far as exemption is concerned, leaving only the bfor issue to be resolved. As was suggested above, Air Canada pilots, the only ones forced out at age 60, are in the minority in this industry, so it is difficult to expect the court of appeal to see things differently than did the federal court.

You might truly believe that age 60 is a “generally” good age to leave the profession. It may or may not be, depending on the individual. But that has absolutely nothing to do with what the court will be deciding in January.

No arbitrary age of termination of employment can overcome the fact that discrimination on the basis of age is illegal, just as is discrimination on the basis gender, religion or race. Are you opposed to employing female pilots? Catholic pilots? Jews? Muslims? Pilots of Chinese or East Indian descent? Gay pilots?

Until the same statute that forbids discrimination on the basis of age stopped Air Canada from doing so, Air Canada refused to hire any pilots over age 30. And it took a slew of pilots many years of litigation, culminating in a federal court of appeal decision to finally end that practice, even though the statute prohibited the practice as of the date that it was enacted.

That same statute stopped Air Canada from refusing to hire female pilots. Fortunately for our female pilot colleagues, they never had to take Air Canada to court over the issue. Before the human rights act, women had no legal recourse to Air Canada's refusal to hire them, even if they met all of the other qualifications, because one qualification was that applicants had to be male.

Perhaps you will begin to understand what is really at stake here when it finally hits you where it really counts, in the pocket book; namely when the union eventually gives you the bad news about the price that the members must ultimately pay for the short-sighted course of action that they chose to take. Ironically, it could have been avoided, had the union taken a more realistic, progressive stance. The history of this litigation shows that we did everything we could to try to persuade the union to avoid that consequence.

Rockie was able to discern this several years ago, even though he was a new-hire pilot at the time. Others (perhaps yourself included) don’t get it now and will likely never get it, even after the dust has all settled and the bills are all paid. You will still blame us for your own mistake.

[TrailerParkBoy]

I say "Fly 'til you die"! Make medicals more strict...unlike the joke they are now! In the end, the company will save millions from not having to pay out pensions!


Freedom 55!