CUPE (AC) Supports Those Opposing Mandatory Retirement

[Raymond Hall]

Correct. The CIRB's entrance into the foray will not change remedy. However it may render parts of the Tribunals V&K ruling null and void if the CIRB rules the way you would like them to.

No part of the Tribunal’s ruling will be rendered null and void, because no part of the Tribunal’s remedy is under consideration by the CIRB. What is under consideration by the CIRB is whether the union can not only fail to represent a large proportion of its own members, but enter into litigation against those members in support of the employer's attempt to terminate their employment, and whether the union can make some of its members essentially second class employees, based on age discrimination. Don’t expect any surprise in the Board's answer to those questions. Not only is the law clear, but the union provided no defence whatsoever to the allegations of violation of the statutory requirements.

Regarding the 2009 Tribunal decision, I think one must be careful about what the Tribunal cited as the “position” of the expert witnesses, and what the Tribunal stated to be its own position. Just because it quoted Professor Carmichael’s view in its decision does not mean that it endorsed it. Even if it did endorse it in that decision, that does not necessarily mean that a different panel would arrive at the same reasoning or the same result. The Sinclair panel if now functus (i.e. has no power to change or review it position) re the 2009 decision.

Consistency. That rational is inconsistent with the V&K ruling, as it prevents alternatives from ever being employed that preserve the benefit system, as preservation requires a point at which people are required to pass the benefit.

As I read your statement, “a point at which people are required to pass the benefit,” you appear to be saying that it is permissible to select an arbitrary age to change the nature of the employment relationship. That is a problem. In fact, that is the problem. As I understand the law, once the mandatory retirement exemption is eliminated, that proposition has no basis in law whatsoever. It directly contravenes Section 10 of the Canadian Human Rights Act, which is governing, regardless of what the Tribunal says.

Regardless of what the Tribunal may have intended, and regardless of how you interpret the wording of its decision, the statute is governing. It simply is not possible for the union and the employer to pick an arbitrary age, be it age 60 or any other age, to change the nature of the employment relationship. Obviously, ACPA hasn’t yet incorporated that fundamental concept into its thinking.

The end result, that you call discriminatory, is the direct result of how steep our deferred compensation system is and not the result of discrimination.

From my perspective, there is a serious myopia problem here. Decisions that uphold or strike down law, based on compliance with the Charter, apply to all organizations, not just to ACPA. Consequently, when the court reviews the merits of the Tribunal’s decision in the context of the Air Canada-ACPA collective agreement, the specific nature of that collective agreement and the specific nature of that deferred benefit system are almost, if not wholly, irrelevant to the decision that the court must make. Charter law and human rights law apply to everyone in the federal jurisdiction. Don’t expect anything special from the court by reason of the fact that this union’s deferred compensation scheme is particularly steep. That is not relevant to the court’s decision.

Did the Tribunal make a mistake? They may have, and you are shining a spotlight all over the potential flaw.

That is my job. Let’s get this thing right. Let’s get this dispute behind us, and stop fracturing ourselves.

The author of the MOA, and submissions for remedy, was the Tribunal. All we did was copy and paste.

Wrong. Tribunals don’t write memoranda of agreement. Unions do. And unions are subject to the statutory duty to fairly represent all of their members, not just the majority of them. That statutory duty requires that unions not act in a manner that is arbitrary, discriminatory or in bad faith (Section 37 of the Canada Labour Code).

The CIRB (in 2004) clearly stated that in order to be in compliance with that statutory duty, unions must not base their actions on grounds that are discriminatory, including, as it expressly stated, discrimination on the basis of age. The union representatives, including yourself, who you state “cut and pasted” the terms and conditions of the MOA, should have re-read that statutory provision that case law before you had your Chair sign that document. Had you done so, we could have all saved ourselves a great deal of trouble and embarrassment.

[Brick Head]

As I read your statement, “a point at which people are required to pass the benefit,” you appear to be saying that it is permissible to select an arbitrary age to change the nature of the employment relationship. That is a problem. In fact, that is the problem.

I am saying that passing the benefit at a predictable point, is a fundamental building block upon which Deferred compensations systems rest. Without it, an age can not be end loaded for the purpose of pension benefit with any certainty that the deferred income will find its intended destination. I am saying your opinion on this eradicates deferred compensation systems and that is not consistent with the ruling. Nor is it consistent with what has been taking place in other jurisdictions that have ended mandatory retirement.

For example Ontario teachers are no longer forced to retire. That alone met the requirement to eliminate mandatory retirement in the jurisdiction. Preservation of the benefit system was accomplished by moving individuals to a different job description at at 65. It is not illegal. The trigger point is still an age. However, and this is key, the intention behind it is not. The intention is specifically larger pensions.

Just like the intention behind other age based restrictions in society. The drinking age for example. The underlying rational is not age based discrimination.

As I understand the law, once the mandatory retirement exemption is eliminated, that proposition has no basis in law whatsoever. It directly contravenes Section 10 of the Canadian Human Rights Act, which is governing, regardless of what the Tribunal says.

What has no basis in Law? 15(1)c or the purpose behind it? Again your opinion means that deferred compensation systems are now illegal which is not consistent with the V&K ruling or what is taking place in other jurisdictions. Nor consistent with what is best for retirees in general. Allocation of the collective pie is not a Human rights issue. It is a collective bargaining issue.

Your comments infer that you are in agreement with the Tribunals decision not to save 15(1)c, but wish to ignore the rational for which it was based. You seek to run with the final outcome and then have another body strike down the rational for which it was based.

Regardless of what the Tribunal may have intended, and regardless of how you interpret the wording of its decision, the statute is governing. It simply is not possible for the union and the employer to pick an arbitrary age, be it age 60 or any other age, to change the nature of the employment relationship. Obviously, ACPA hasn’t yet incorporated that fundamental concept into its thinking.

You state this even though the rational within the ruling is hinged on such ability. Even though it is taking place in the other jurisdictions that have ended mandatory retirement. Even though the Tribunal pointed to this practice in other jurisdictions and called it non discriminatory. And even though the ability of remedy, to be consistent with the ruling, relies on it.

[45] In the light of the above-noted considerations, can it be said that the goal of permitting
mandatory retirement to be negotiated in the workplace continues to be of pressing and
substantial importance? The alternatives to mandatory retirement, which are in use in other
jurisdictions, effectively preserve the benefits of the current system without infringing a
constitutionally protected right. How then can the goal of permitting freedom of contract in this area be sufficiently important to warrant overriding a constitutional right?

From my perspective, there is a serious myopia problem here. Decisions that uphold or strike down law, based on compliance with the Charter, apply to all organizations, not just to ACPA. Consequently, when the court reviews the merits of the Tribunal’s decision in the context of the Air Canada-ACPA collective agreement, the specific nature of that collective agreement and the specific nature of that deferred benefit system are almost, if not wholly, irrelevant to the decision that the court must make. Charter law and human rights law apply to everyone in the federal jurisdiction. Don’t expect anything special from the court by reason of the fact that this union’s deferred compensation scheme is particularly steep. That is not relevant to the court’s decision.

Absolutely. The specific nature of the ACPA CA, the specific nature of the deferred compensation system, and the alternative methods required to effectively preserve the system, as instructed by the Tribunal, is not relevant to the courts decision.

[Raymond Hall]

I am saying that passing the benefit at a predictable point, is a fundamental building block upon which Deferred compensations systems rest. Without it, an age cannot be end loaded for the purpose of pension benefit with any certainty that the deferred income will find its intended destination. I am saying your opinion on this eradicates deferred compensation systems and that is not consistent with the ruling. Nor is it consistent with what has been taking place in other jurisdictions that have ended mandatory retirement. For example Ontario teachers are no longer forced to retire. That alone met the requirement to eliminate mandatory retirement in the jurisdiction.

First of all, there is no basis for the proposition that elimination of mandatory retirement eliminates the practicality of the deferred benefit system. You don’t need a mandatory cut-off date in order to maintain the system, so long as the majority of the workers still retire on or about the dates when they would otherwise have been required to terminate their employment. The difference is a matter of degree and easily follows within the science of statistics.

If you don’t believe me, follow the logic of one of the Supreme Court of Canada judges that I had the opportunity of attending a hearing with, when he was still in private practice. Ask yourself, if only one pilot was allowed to determine his own age of retirement, would the system go down? How about two pilots? Five? Tweny-five? One hundred? One thousand? All 3,000? Even if the vast majority still voluntarily retired at age 60? What if only 5% decide to stay for one year? Will the deferred compensation system still function? Of course it would.

Preservation of the benefit system was accomplished by moving individuals to a different job description at at 65. It is not illegal. The trigger point is still an age.

That is where you and I part company. Just because it hasn’t been challenged does not make it legal. And any agreement that mandatorily changes the job status of individuals, especially an agreement that contains the discriminatory provisions of the degree that are in the MOA, is flagrantly illegal. Just read Section 10 of the CHR Act.

Allocation of the collective pie is not a Human rights issue. It is a collective bargaining issue.

As soon as you use age discrimination as the determinant of the working conditions, it becomes a human rights issue. That is the whole purpose of the Act. To prevent discrimination.

Your comments infer that you are in agreement with the Tribunals decision not to save 15(1)c, but wish to ignore the rational for which it was based. You seek to run with the final outcome and then have another body strike down the rational for which it was based.

Not so. The rationale on which it is based is acceptable and legal. The means that you choose to apply it is not.

[Brick Head]

That is where you and I part company. Just because it hasn’t been challenged does not make it legal. And any agreement that mandatorily changes the job status of individuals, especially an agreement that contains the discriminatory provisions of the degree that are in the MOA, is flagrantly illegal. Just read Section 10 of the CHR Act.

Actually I think this is where we may share common ground. It speaks to the same concern I have over the ruling. These alternatives are legal, or they are not. If it is legal, ACPA can do it. If it isn't legal, then alternatives to mandatory retirement, that effectively preserve the benefit system do not exist. Since the Tribunal assumed they were legal, that alternatives do exist. Are you saying the tribunal got it wrong? After all the assumption that they are non discriminatory, is the basis for part of the Oak's test. What would have been the outcome if the Tribunal had rather assumed they were illegal?

You speak of discriminatory provisions to the degree that are in the MOA. Another point I agree with. However are they perversely discriminatory, or are such extreme measures what is required to effectively preserve a steep deferred compensation system? Or are both points correct, rendering this ruling unworkable in practicality? Based on the facts of the case can remedy ever be consistent with the ruling without trading discrimination for discrimination?

I don't pretend to know the answer. I know your opinion on it. I also know your opinion is not consistent with what is going on in other jurisdictions, or consistent with the Tribunals own comments on the non discriminatory nature of these alternatives. On the other hand, the degree to which the alternatives must go to preserve the benefit system make me wonder if the ruling will survive the JR.

[teacher]

So technically you would never have to retire. Work till you get diagnosed cancer or some other disease and go on disability till you die?

Set an age like 60 or 65 that if you ARE on disability you than switch to the pension. At Jazz it's 65 I believe.

[Thirteentennorth]

At AC the cut-off age for disability insurance benefits is 60. Set by the underwriter. Is that discriminatory? Can we expect a ruling against GWL?

[Raymond Hall]

These alternatives are legal, or they are not. If it is legal, ACPA can do it. If it isn't legal, then alternatives to mandatory retirement, that effectively preserve the benefit system do not exist. Since the Tribunal assumed they were legal, that alternatives do exist. Are you saying the tribunal got it wrong?

Maybe, maybe not. Remember, the Tribunal cited two examples of alternatives. The first one (Paragraph 35) is definitely acceptable: any form of incentive to those who wish to leave. The second one (Paragraph 36), changing the status of the employment relation, despite what view the Tribunal may take of it, still has to pass the Section 10 test. Minor changes may pass muster. Major changes obviously don't, especially major changes that use the same arbitrary age marker that was found to be discriminatory in the complaint (age 60).

The Tribunal's decision did not give the union licence to get through the back door what it could not get through the front door by so altering the terms and conditions of employment as to infringe the provisions of Section 10. Anything that purports to do so is reviewable error, because the Tribunal cannot usurp the jurisdiction of Parliament.

A MOA that purports to deny the members of a bargaining unit substantive rights in comparison to the rights of other members of the unit crosses the line, in my view, from legality to illegality. You have taken a general concept and applied terms and conditions to that concept that go well beyond what was viewed as acceptable by the Tribunal, as I see it. Now, you attempt to frame that extrapolation in terms that essentially ask the wrong question.

Its not about preserving the deferred benefit system, to you, but rather, about preserving the deferred benefit system your way.

[Raymond Hall]

Set an age like 60 or 65 that if you ARE on disability you then switch to the pension. At Jazz it's 65 I believe.

These are subsidiary issues that will have to be worked out, once the Tribunal issues its order to Air Canada to cease and desist from terminating the employment of pilots at age 60.

They are serious issues, but not germane at the moment. Please stand by for new ATIS message.

[Raymond Hall]

At AC the cut-off age for disability insurance benefits is 60. Set by the underwriter. Is that discriminatory? Can we expect a ruling against GWL?

The answer to the first question is complex, involving Regulations that have not been amended for over 25 years.

Re the second question, the parties are the union and the employer, not third parties.

[Brick Head]

These alternatives are legal, or they are not. If it is legal, ACPA can do it. If it isn't legal, then alternatives to mandatory retirement, that effectively preserve the benefit system do not exist. Since the Tribunal assumed they were legal, that alternatives do exist. Are you saying the tribunal got it wrong?

Maybe, maybe not. Remember, the Tribunal cited two examples of alternatives. The first one (Paragraph 35) is definitely acceptable: any form of incentive to those who wish to leave. The second one (Paragraph 36), changing the status of the employment relation, despite what view the Tribunal may take of it, still has to pass the Section 10 test. Minor changes may pass muster. Major changes obviously don't, especially major changes that use the same arbitrary age marker that was found to be discriminatory in the complaint (age 60).

Raymond,

It is not just paragraph 35 and 36. Paragraph 45 solidifies the Tribunals opinion on the matter.

I'm not sure the word obviously is the correct word. But you are hitting exactly at my point.

Remedy may never be able to match the ruling. The changes required to meet the rational for not saving 15(1)c are, as you put it major. Those major changes are either going to be legal (questionable) or the ruling is flawed.


G2G

Thanks for the dialogue.

[accumulous]

Given these recent events, with the flagrant breach of Section 10, etc., a lot of lawyers at the CIRB and certainly elsewhere must into this with eyes wide open. The CHRC must be immensely aware of this situation. Not being anything close to a lawyer it still doesn't take any rocket science to imagine that if laws and statutes are breached, it is obviously dealt with. That is to say, the laws are there or they aren't. Section 10 appears to be there. It appears to have been violated?

This all begs the big question. What happened? Will the membership get to see the actual contents of this MOA, and if so at what point? The obvious question is that not only was there an attempt made to blacklist some parties onto a second string bench, but it would have to affect the future of every single pilot on the list or was it only meant to affect 2 pilots? One group has taken it upon itself to shuffle the deck in terms of the contract as it applies to every single pilot at Air Canada or just 2 pilots? and so far there does not appear to be any showing of the document itself? Is that correct? Or is it actually posted somewhere?

[Raymond Hall]

One group has taken it upon itself to shuffle the deck in terms of the contract as it applies to every single pilot at Air Canada or just 2 pilots? and so far there does not appear to be any showing of the document itself? Is that correct? Or is it actually posted somewhere?

To my knowledge, ACPA has not made the document available to its members.

[Understated]

Prediction: the CIRB will decide to conduct a full hearing into the DFR complaint (read: delay of several months), and the Tribunal will issue both of its two outstanding decisions in November, with a cease and desist order to stop Air Canada from terminating the employment of pilots over age 60, to become effective March 1st.

[Say Altitude]

My prediction of your prediction - if that happens, they won't allow anyone already retired/off the property to return to mitigate damages to those junior.

[accumulous]

My prediction of your prediction - if that happens, they won't allow anyone already retired/off the property to return to mitigate damages to those junior.

With respect, way more than that has already transpired? V-K were already offered reinstatement a couple of months ago. AC has agreed to reinstatement. AC is the employer. AC did not oppose reinstatement at the remedy hearings in Ottawa. Somebody else might have more accurate information but the street says that the imminent Tribunal Remedy Order will be for reinstatement of V-K and will order the terms for reinstatement, however, even as V-K had accepted reinstatement a Memorandum of Agreement contrary to Section 10 of the Human Rights Act was written by somebody and presented as the terms of reinstatement for V-K absent the actual forthcoming Tribunal Remedy Order, causing a temporary halt in the reinstatement. That will apparently be rectified by the Tribunal Order? 70 subsequent cases are virtually identical. In addition approximately 50+ more are in the process of being referred to the Tribunal. The Complainants are not suing ACPA. ACPA agreed at AC's request to be jointly liable for damages, otherwise the case would have been between the Complainants and the employer. Others might have somewhat more accurate info at this point but it seems this is the saga so far? Are we having fun yet? The rest of North America is already there, Canada eons ago, but we're going to flog that dead horse 'one mo' time' with the big ol' stick and see what happens.

[Dockjock]

Ahh, the "everybody else is doing it" gambit. Time worn, but classic nonetheless.

[accumulous]

Ahh, the "everybody else is doing it" gambit. Time worn, but classic nonetheless.

You're right about that - it's irrelevant except as it applies to 15.1(c) which is another whole story. Best left to the legal experts on that one.

[Raymond Hall]

The Complainants are not suing ACPA. ACPA agreed at AC's request to be jointly liable for damages, otherwise the case would have been between the Complainants and the employer.

It may be difficult for the lay person to do, but nevertheless it is important to try to keep in the mind some of the technicalities of the legal proceedings, because the technical differences have signficantly different implications. The complaints before the Commission and the Tribunals should not be referred to as "lawsuits." Nobody is suing anybody else here. That terminology applies to civil proceedings, with plaintiffs and defendants. Here we have complainants and respondents. An individual files a complaint with the Commission. If the Commission finds the complaint merits adjudication (not necessarily that it will succeed) it will refer the complaint to the Tribunal. When the Tribunal receives the complaint it may schedule a hearing. If the complaint is upheld by the Tribunal, the Tribunal may then award damages. This whole process is a complaint-remedy process, not a lawsuit.

To my knowledge, ACPA did not agree to accepting any liability in any of its proceedings before the Tribunal. It did not object to being named as a respondent in the proceedings against Air Canada, where it was not already so named. The issue of its liability for damages, if any, as opposed be being named as a respondent, is separate. Air Canada suggested to the Tribunal that APCA should be held jointly liable for damages in any award made against it, for the simple reason that ACPA is a party to the (allegedly) offending provision of the collective agreement. That was a representation only, and that representation has not yet been tested. Because ACPA is now a named respondent in proceedings where damages are likely, ACPA, in my view, has a considerable potential liability for damages. That is my opinion only.

The first real test of that issue will come with the Vilven-Kelly award. I expect the Tribunal to award substantial damages to the two complainants. It could very well be that Air Canada and ACPA will then spend some effort arguing whether ACPA should share the payment of those damages, and if so, in what proportion. The resolution of that conflict may very well occur subsequent to the Tribunal's decision. Tribunals, courts and arbitrators frequently use the terminology that the Tribunal is to "remain seized" of some portion of the matters, for the purpose of resolving those types of disputes where they occur subsequent to the release of a decision.

[Raymond Hall]

Interesting development out of PEI: the exact same positions for which the Supreme Court of Canada in 1990 found mandatory retirement to be sustainable were found to be non-sustainable now. The Human Rights Panel specifically rejected the rationale of the 1990 SCC decision, citing changes in cultural values and changing demographics. Three university professors, Nilsson, Wills and Fell:

http://www.gov.pe.ca/photos/sites/human ... 4jun10.pdf

http://www.gov.pe.ca/photos/original/hrc_nilsson_et.pdf

http://www.gov.pe.ca/photos/original/hrc_upeiR.pdf

Order:

1. Cease and desist;
2. Full reinstatement of all complainants;
3. Full payment for loss of income to all complainants, including income tax gross-up;
4. Reinstatement of all complainants to the pension plan;
5. General damages for all complainants, in addition to lost wages; and
6. Costs plus pre-judgment interest

[Say Altitude]

Last I checked the Supreme Court is exactly that. Supreme.

So they can espouse as much as they want - until the SCC rules on this, it's just opinion.

[teacher]

I still don't get the huge fight over this other than the lack of upgrades if people stay longer. Is that really the only reason? Will pilots at AC be forced to work longer or will they still be able to get a full pension at 60?

[Lost in Saigon]

They will still be able to retire at 60 but they are upset because it will take a little longer to reach the highest paying positions. Your pension income is based on your best 5 years, but it is also based on your years of service. Many fear that they might be forced to work past 60 to make what they would have before this all started.

Most don't seem to understand that a few extra years service will make a big difference to their pension income for the rest of their lives. I'll bet many of those complaining the loudest have never calculated their estimated pension income and don't realize the pension was designed for 35 years of service like the old timers will get. Most new hires in the the last 15-20 years will only get about 25 years of service. (or less)

[jazzbeat]

Lost in Saigon

zzzzzzzzzzzzz boring zzzzzzzzzzzzzzz

even if you are writting your same old point of view on 24 different forums, it won't change that the majority of AC pilots see it as a great thing to be able to enjoy time with their family from 60 and up .... just wait if you have nothing new to add, you are not going to make anybody cry

Jazz might have the same problem soon with people wanting to stay forever....

[accumulous]

1. Cease and desist;
2. Full reinstatement of all complainants;
3. Full payment for loss of income to all complainants, including income tax gross-up;
4. Reinstatement of all complainants to the pension plan;
5. General damages for all complainants, in addition to lost wages; and
6. Costs plus pre-judgment interest

As all of this rapidly approaches the end game, the PEI University remedy Order as above seems to be virtually identical in profile to the results coming out regularly from the Tribunal in Ottawa.

Does anybody know if these Orders can be appealed? It would seem that an Order is an Order. Although a remote example, O.J Simpson is behind bars but still allowed to appeal up to a point. In other words, the penalties are carried out for the deeds regardless of the appeals process. Does Canadian law work the same way?

The Cease and Desist that accompanied this particular PEI remedy Order - can that be appealed or does it have the force of law and carry on as per the Order while it is being appealed or what? Anybody have the protocol on those steps? It would seem to be in the similar process as the V-K process whereby they have already been offered reinstatement even though a JR is forthcoming and the remedy Order is yet to be issued.

[Raymond Hall]

Last I checked the Supreme Court is exactly that. Supreme. So they can espouse as much as they want - until the SCC rules on this, it's just opinion.

You might be in for a bit of a surprise. The decisions are law unless and until overturned. The V-K Tribunal decision of last August is law. That is why V-K will be reinstated. The union can appeal it all the way to the Supreme Court, but unless and until it is overturned, it is law. Same for the others pending. Unless the Tribunal deviates from the previous decision, the pilots will be reinstated, and will get damages.

It can also try to get a stay of implementation. The parties seeking the stay have an uphill battle persuading the Court to permit a stay, for a number of legal reasons, including the need to justify the damage that will be done by not granting a stay. In the PEI case, the University applied for a stay of the order. The stay hearing was set down for September 29th, but for reasons not disclosed, that hearing before the PEI Supreme Court was adjourned.