No Clear Winner in FCA Mandatory Retirement Decision

[Raymond Hall]

On Friday, June 26th, the Federal Court of Appeal (FCA) released its decision in the Adamson et al. v. Air Canada et al. appeals with respect to the age 60 mandatory retirement complaints that were judicially reviewed by the Federal Court in its decision 2014 FC 83. I have posted the decision at http://www.flypast60.com/Documents/2015FCA153.pdf .

Although the FCA overturned the Federal Court decision on grounds other than the substantive issues before the Tribunal, it did not provide any clear resolution of the issues underlying the complaints. Instead it said that the Federal Court judge improperly substituted his own opinion for the opinion of the Tribunal Chair, which is an error of law, and set aside the judgment, reinstating the decision of the Tribunal.

It also stated that the previous Federal Court review of the Vilven/Kelly decision mandating how the Tribunal should have determined the appropriate "comparator group" was not binding on the Tribunal in the Adamson hearing, given that each case must be determined on the basis of its own factual record. The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing.

One of the upshots of the FCA decision, as I see it, is that by setting aside the Federal Court decision and reinstating the Tribunal decision, the FCA rendered null the previous Federal Court decision finding that income expectations of younger pilots could form the basis of a bona fide occupational requirement defence to mandatory retirement--it is no longer law. By reinstating the Tribunal decision that found to the contrary, the Federal Court judge's musings on the subject remain just that, musings, not law.

It will remain to be seen how both Air Canada and ACPA respond to this decision, especially as it relates to the outstanding complaints before the Tribunal.

[Johnny#5]

finding that income expectations of younger pilots could form the basis of a bona fide occupational requirement defence to mandatory retirement--it is no longer law

Interesting for sure...

[The Raven]

[MackTheKnife]

I don't see anything funny about a broken legal system. None of the courts or tribunals to date have been able to make a decision based on legal fact and / or common sense. So far everyone has found a loophole to avoid landing the plane. This endless go-around is getting downright ridiculous.

I guess Canadians only have rights that are directly proportional to their resolve or the depth of ones pockets.

It's looking more and more like it won't be finalized until the SCC is forced to rule on it.

Sad.

MTK

[The Raven]

My emoticon didn't say I thought it was funny. It indicates I am "very happy". Big difference.

[MackTheKnife]

My emoticon didn't say I thought it was funny. It indicates I am "very happy". Big difference.

Point Raven !

[The Raven]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

[Lt. Daniel Kaffee]

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

Bingo! Give this man a prize.

[duranium]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

But, on the other hand, reading the judgment, Air Canada pilots are now grouped in the same comparator group as bush pilots. This, folks, will come back to haunt these carbon tube drivers in the not to distant future. The law says bush pilots, your management will find a way to treat you as same, permanently.

[yycflyguy]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

But, on the other hand, reading the judgment, Air Canada pilots are now grouped in the same comparator group as bush pilots. This, folks, will come back to haunt these carbon tube drivers in the not to distant future. The law says bush pilots, your management will find a way to treat you as same, permanently.

Moot point. They already do.

[Ah_yeah]

I don't see anything funny about a broken legal system. None of the courts or tribunals to date have been able to make a decision based on legal fact and / or common sense. So far everyone has found a loophole to avoid landing the plane. This endless go-around is getting downright ridiculous.

I guess Canadians only have rights that are directly proportional to their resolve or the depth of ones pockets.

It's looking more and more like it won't be finalized until the SCC is forced to rule on it.

Sad.

MTK

Do you thing the SCC will hear this case assuming an appeal is sought?

[MackTheKnife]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.

[The Raven]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.

So, in other words, it's all about the money. You don't really care whether you fly again or not. You just want money!

Sad really.

[MackTheKnife]

[/quote]

Do you thing the SCC will hear this case assuming an appeal is sought?[/quote]

Whether or not that happens would only be pure speculation at this point. Only the SCC knows that answer. There is still a lot of water to go under the bridge before that point arrives.

It all hinges on what happens at the next hearing for the next, larger group of plaintiffs.

As you well know, Canada does not have a Justice system, it has a Legal system and until the fat lady sings anything is possible.

MTK

[MackTheKnife]

The point is that the ruling gives a bit more clarity and hope to the young pilots at Air Canada. They can plan their lives with a bit more certainty knowing that at least 70 pilots (who have already had a great career) will not be coming back and causing further stagnation in their career progression.

Yes, that makes me very happy indeed.

(Also, when a lawyer says there is "No Clear Winner" that usually means his side lost.)

You know as well as I do that none of the plaintiffs will ever see a cockpit again due mainly to the stalling procedures by ACPA. Most of the FP60 group are now either over 65 or approaching 65. ICAO took care of that for you.

The younger pilots can rest assured no one will take their spots.

All that's left now is a legal case before the courts.

From Rays post:

" The upshot of this, as I see it, is that the remaining outstanding complaints by over 100 pilots, post-2009, must be determined by a separate hearing. As a result, we have written the Tribunal, asking it to proceed with setting those complaints down for a hearing."

Where it goes after that depends on the outcome of the above.

So, in other words, it's all about the money. You don't really care whether you fly again or not. You just want money!

Sad really.

Twist the words any way you want if that makes you feel good but the reality is its kinda hard to fly when that door has been slammed shut as an option. None of us wanted to be here, but here we are anyway.

[Lt. Daniel Kaffee]

None of us wanted to be here, but here we are anyway.

that's easy then....tell the FP60 team to drop the proceedings and get on with enjoying your retirement instead of spending money and time in legal proceedings...the ball's in your court, don't "blame" others for being where you are.

[MackTheKnife]

None of us wanted to be here, but here we are anyway.

that's easy then....tell the FP60 team to drop the proceedings and get on with enjoying your retirement instead of spending money and time in legal proceedings...the ball's in your court, don't "blame" others for being where you are.

TFF !

Stick to whatever it is you do as you would never make it as a comedian.

[Mechanic787]

The Federal Court of Appeal, the second highest court in the land, could have brought all of these issues to a close, had it confronted the significant legal issues raised by these appeals and rendered an appropriate decision, based on law, regardless of which side would have won. The court obviously wasn’t willing to invest the necessary effort to do so.

Instead, it failed to provide any clarity to the law whatsoever. It ducked having to deal with the BFOR issue and it ducked having to deal with the normal age of retirement issue by simply stating that the Federal Court judge erred by substituting his own opinion for the opinion of the Tribunal, without seriously assessing the reasonableness of the Tribunal’s interpretation of the evidence before it.

By distinguishing the previous case law on the basis of the evidentiary records of the separate preceding hearings, the court essentially guaranteed more litigation, more expense, and more uncertainty of law.

Nice job.

[Lt. Daniel Kaffee]

Glad to see that you've got the jurisprudence all sorted out...you should ask Steve Harper to appoint you when the next opening at the FCA happens.

You guys kill me....decision doesn't go as the FP60 leadership promise and next thing you know, all the legal "experts" pick apart the decision.

I seem to recall that this case was a "slam dunk", and now we are in for at least another 2-3 years of litigation if the FP60 group wants to go to the SCC.

[7ECA]

I seem to recall that this case was a "slam dunk", and now we are in for at least another 2-3 years of litigation if the FP60 group wants to go to the SCC.

Well, you know what they say; "if you've got the money honey, I've got the time..."