Federal Court Judicial Review Hearing Completed

[Brick Head]

Understated,

Let me see if I am getting your position straight.

You agree that the mandatory retirement provisions have always been subject to section 1 of the Charter.

governments may limit Charter rights so long as those limits are ones that a free and democratic society would accept as reasonable.

In fact we seem to be in complete agreement that the above quote is exactly why mandatory retirement has been allowed for so long. It has been deemed a reasonable limit at least to now.

Here is where I lose you.

You go on to say that the ruling produced on the question asked.

is mandatory retirement a reasonable limit on the charter

A question based on section 1 of the charter. A question solely based on the balance between collective and individual rights (Oaks test) (section 1). A question answered by the Tribunal, who chose to deny 15(1)c from being saved by the charter, partly on the basis that alternatives can be used in its place, that are considered a reasonable limit in a free and democratic society (section 1). Yet you claim these alternatives can't be used because they are a section 10 violation, and that section 1 is irrelevant in defense of the reasonability of alternatives, even though the VK ruling, rational and outcome are based on it?

Hence you are arguing section 10 supersedes section 1?

You are effectively attempting to re write the basis for the Tribunals decision. You want to keep the answer, but ditch the logic behind the answer.

If the logic you are using were true, my 10 year old could launch a viable section 10 complaint and win, because he is not allowed into the bar.

Perhaps we should leave this type of discussion depth to real lawyers?

[Brick Head]

It must be nice to live in such a Pollyanna world, where one can take the most favourable view of every development and not have to deal with reality. Reality, for example, as in the Thwaites cases, where liability will flow for each pilot from their respective dates of termination. That flight has not arrived yet, even though it is about to land. So you don't need to worry about its cargo. You can deal with that once it arrives...

Understated,

You are getting as bad a Raymond with the liability stuff.

How do you know what date liability will flow from based on the Thwaites cases? The last decision found age 60 still normal.

So exactly when did 60 become non normal? What criteria are you using? What is normal today? Are we talking maximum age people can retire at, normal? Actual age of retirement, normal? Average? Mean? Which groups are you comparing us to? If it isn't 60? Is it really 65 today? Or is it 61? The burden of disobeying the law can not be expected to be imposed on us until we know what it is we are supposed to be adhering to. Once we know? Different story.

[Understated]

Perhaps we should leave this type of discussion depth to real lawyers?

I am relying on the explanation that has been provided to us by the legal representatives that are supporting the change. And by the way, there has been no shortage of clear, timely explanations provided to us by them of the legal issues.

Let me restate what I said earlier. You are mixing apples and oranges, and making a fundamental reasoning error in the process.

The Section 1 Charter test is not applied against a statutory provision (e.g. the human rights exemption). It is applied against the violation of the Charter by the statutory provision. The Section 1 test answers only one question--should the provision be upheld or struck down by reason of its violation of the Charter? Is it justified, or is it not justified? The Section 1 test has no role in the interpretation or application of the statutory provision, if it is not struck down, and has no further significance to the Tribunal that enforces the provision, if it is not struck down.

For example, in the first Federal Court decision, the court overturned the Tribunal's finding that the mandatory retirement exemption did not violate Section 15(1) of the Charter. It said it does violate the Charter prohibition against age discrimination, and then it referred the case back to the Tribunal to answer the Charter Section 1 question, "Is the violation of Section 15 of the Charter (by the statutory provision) reasonably justified ... etc. etc.?

The Section 1 question was not, "Is the mandatory retirement exemption reasonably justified ... etc. etc., but whether the violation of the Charter was justified.

Section 1 states, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The right that is protected by Section 1 is the right found in Section 15 of the Charter, not in Section 7 or 10 of the CHRA.

The Section 1 question cannot be asked until there is a found violation of the Charter. That has not occurred with respect to either Section 7 or Section 10 of the CHRA. Once the violation is found and the Section 1 question is asked, it is only asked in the context of the Charter (justified or not justified), not in the context of how the CHRA provision should be applied by the Tribunal in the normal course, if the Charter interpretation does not declare it unconstitutional.

Consequently, there is no legal avenue for the Tribunal or the Court to balance anything with respect to the application of Section 7 or Section 10 of the statute. They have to uphold those provisions, as they are enacted, with reference only to the wording contained in the sections, according to the intentinon of Parliament in enacting those provisions. Period. They cannot "read in" other meanings.

By confounding those two steps, you are leading yourself to believe that a “deferred compensation scheme” can play a role in the deliberation of either the court or the Tribunal in the application of Section 7 and Section 10. It can’t.

The Tribunal and the courts are bound to interpret legislation in accordance with the wording of the legislation itself. That wording is very, very specific. No age discrimination.

So my question remains. How does ACPA plan to overcome that limitation?

[cdnpilot77]

understated, Raymond, Vic777, and any other person fighting this battle from the flypast60 crowd, if your battles are lost, regardless of the basis in which they are lost, will you be going away quietly and accepting the judgements rendered? You all seem to be overly confident that you have this in the bag and furthermore, exactly how you want it. It seems that you are expecting current acpa members to roll over and take it and change there entire structure so that it meets your agenda if you "win", my question to you gentlemen is if you will do the same?

[vic777]

... Vic777, and any other person fighting this battle from the flypast60 crowd, if your battles are lost, regardless of the basis in which they are lost, will you be going away quietly and accepting the judgements rendered?

As of today, I have not as yet joined this battle, I comment only as an interested observer. If I choose to join the "flypast60 crowd" and the battle is lost, of course I would go away quietly, I am not an idiot, I know which way the wind is blowing.

[cdnpilot77]

Vic777, and any other person fighting this battle from the flypast60 crowd, if your battles are lost, regardless of the basis in which they are lost, will you be going away quietly and accepting the judgements rendered?

As of today, I have not as yet joined this battle, I comment only as an interested observer. If I choose to join the "flypast60" crowd and the battle is lost, of course I would go away quietly, I am not an idiot, I know which way the wind is blowing.

Fair enough, thank you for your honesty and sorry for the mixup pitting you in this battle, I too am just an interested observer with a vested interest in future aspirations. Still interested in hearing from the others that are very vocal on the issue

[yycflyguy]

... Vic777, and any other person fighting this battle from the flypast60 crowd, if your battles are lost, regardless of the basis in which they are lost, will you be going away quietly and accepting the judgements rendered?

As of today, I have not as yet joined this battle, I comment only as an interested observer. If I choose to join the "flypast60 crowd" and the battle is lost, of course I would go away quietly, I am not an idiot, I know which way the wind is blowing.

At the risk of inciting you, I noticed you said "as of today...". Can I take that to mean that if you were scheduled to retire within the next couple of months you would add your name to the list of ~150 litigants in search of an easy payout to the detriment of those left behind to pay the bill, meanwhile upholding your dignity while working with those very same colleagues for your last few flights?

I sure hope I read too much into that.

[Understated]

The last decision found age 60 still normal. So exactly when did 60 become non normal? What criteria are you using? What is normal today? Are we talking maximum age people can retire at, normal? Actual age of retirement, normal? Average? Mean? Which groups are you comparing us to? If it isn't 60? Is it really 65 today? Or is it 61? The burden of disobeying the law can not be expected to be imposed on us until we know what it is we are supposed to be adhering to. Once we know? Different story.

Sorry, can't agree. The question before the Tribunal in the Thwaites decision was not, "What is the normal age of retirement?" The question was, "Did Air Canada and ACPA meet their onus to demonstrate that age 60 was the normal age of retirement?"

If they did not meet that onus with respect to any or all of the complainants, then the Tribunal will find that a discriminatory practice took place on the occasion of their respective dates of termination. Damages will flow from their respective dates of termination, not from any other date. The normal age of retirement, if there is such an animal, will be irrelvant.

You really ought to know that, because you and your peers have a lot of coin riding on the decision. Yes, mitigation will be a factor. But even with mitigation, the potential liability bill is likely to be far greater than it was in the decision that was based on the Charter damages (Vilven-Kelly). If that answer sounds too much like one that Raymond would give you, too bad. There are about 150 others ready to give you the same answer.

[Brick Head]

Perhaps we should leave this type of discussion depth to real lawyers?

I am relying on the explanation that has been provided to me by the legal representatives that are supporting the change. And by the way, there has been no shortage of clear, timely explanations provided to us by them of the legal issues.

Well that clears it up a bit doesn't it. I knew you sounded a lot like someone I know. I was even beginning to wonder if you were him.

Do you really believe that with the end of mandatory retirement, also comes the end of collective bargaining?

Because that is what your opinion amounts to.


By the way these other alternatives do not violate section 10. That is why the Tribunal pointed at them and said they are not unconstitutional. It is why they are taking place in other jurisdictions without the indignation expressed here.

Discrimination is not as black and white as you make it sound. The word intent needs to enter the vocabulary.

Nothing being done, or that will be done, will be age based discrimination. Doing something at a specific age is not in of itself discrimination. 6 month medicals at 40. Perfectly legal. Not age discrimination. Why? The intent is not harm. The intent is health and welfare. The intent is not ageism.

Is it religious discrimination to ask a Muslim woman to show her face when boarding an aircraft? No, because the intent of the request is health and welfare. The intent is not religious racism.

End loading a specific age even if people work beyond that age. Perfectly legal. Not age discrimination. Why? The intent is not ageism. The intent is bigger pensions benefit for all.

Are you planning on going to the CHRT with a section 10 complaint on the basis that ACPA's age based benefit system, born through the democratic process we all agreed to, is benefiting you too much? Those ACPA bastards have increased your pension to the envy of almost everyone in this country! Make them stop! Punish them! Remove my illegal benefit.....oops no not that.....remove the illegal benefit of everyone behind me! I've made more because of it but stop it. My retirement is handsomely higher as a result, but make them stop!!!!!!!!!!!!!!!!!!!!



Doing harm specifically because of age is on the other hand illegal. There is a difference. Yes I know you will jump up and down all day long saying no there isn't. But that is simply not factual.

Look around you

[Brick Head]

Sorry, can't agree. The question before the Tribunal in the Thwaites decision was not, "What is the normal age of retirement?" The question was, "Did Air Canada and ACPA meet their onus to demonstrate that age 60 was the normal age of retirement?"

That means only that the burden of proof is on the respondents. That is always the case in the upside down world of Human Rights Tribunals. To delineate that into the liability claims you are making?

[Understated]

By the way these other alternatives do not violate section 10. That is why the Tribunal pointed at them and said they are not unconstitutional. It is why they are taking place in other jurisdictions without the indignation expressed here.

Is there a reason why you won't answer my two questions?

[Brick Head]

Is there a reason why you won't answer my two questions?

I did. You just refuse to accept that my answers are actually answers. Just because you don't accept the answer doesn't mean it isn't one.

Question one. Not concerned about a section 10 challenge. You don't have a case.

Question two. No liability until you know, or should have known, your breaking the law. In all cases at the moment, nothing is clear what is expected of us. Until that changes. No liability.

[Raymond Hall]

It seems that you are expecting current acpa members to roll over and take it and change there entire structure so that it meets your agenda if you "win", my question to you gentlemen is if you will do the same?

Why do you ask? Are you wondering if I am planning to attend any more ACPA meetings?

Seriously, since 2006, I have been on record not as expecting anyone to "roll over and take it..." but rather as expecting ACPA members to understand the constraints under which their collective agreement operates and to work within those constraints, instead of first, attempting to fight the inevitable, severely hurting themselves and their solidarity in the process, and second, blaming those who tried to encourage the union to work within the constraints for the damage that occurs.

I don't believe that I have much success on either count.

A short answer to your question: if I am incorrect, I will accept the verdict with resignation and dignity. I have no intention of making this any more difficult for anyone that it has to be, especially after the final judgment is in, no matter which outcome.

[Mechanic787]

Question one. Not concerned about a section 10 challenge. You don't have a case.

I am not sure, giving the long recent dialogue, if you got a chance to look at the question that I posed yesterday.

How do you see that playing out in the context of your own specific collective agreement? What sort of changes would you expect to result, and would you expect other unions, including unions in other industries, to arrive at the same types of resolutions to the same problem there?

You have obviously done a great deal of research into this issue, and resolving the disparity between individual and collective rights will be a major concern for all employers and unions, should the mandatory retirement exemption be eliminated. Can you share any of your insights into what options might work or not work, given the legislative restrictions post-mandatory retirement exemption, especially for groups outside your company and industry?

[Understated]

Question two. No liability until you know, or should have known, your breaking the law. In all cases at the moment, nothing is clear what is expected of us. Until that changes. No liability.

Pardon me? Are you saying that you believe that in the event the Thwaites decision finds that the terminations of employment violated the Act, that liability will commence only as of the date of the Tribunal decision on liability?

I hope that you are not counselling your members with that advice, and I hope that ACPA is not predicating its continued efforts to fight this battle on that erroneous assumption. The Thwaites decision was not argued using the Charter (that assumes that assuming the exemption clause was unavailable), it was argued assuming that the exemption clause was valid. Consequently, damages would flow from the respective dates of termination. Don't worry. Your assumption error is only between $20 million and $30 million, growing at $1.5 million per month, shared equally between Air Canada and ACPA.

Don't take my word for it. Just read any of the recent Tribunal decisions on damages, like the three CNR decisions that were released in early June. Full back-pay from on or about the date of termination, not from the date of the Tribunal decision.

How can you get four years down the road in this litigation and not have the foggiest idea about your legal exposure in damages, especially huge numbers like that? You take denial to a new height.

[Brick Head]

Question two. No liability until you know, or should have known, your breaking the law. In all cases at the moment, nothing is clear what is expected of us. Until that changes. No liability.

Pardon me? Are you saying that you believe that in the event the Thwaites decision finds that the terminations of employment violated the Act, that liability will commence only as of the date of the Tribunal decision on liability?

I hope that you are not counselling your members with that advice, and I hope that ACPA is not predicating its continued efforts to fight this battle on that erroneous assumption. The Thwaites decision was not argued using the Charter (that assumes that assuming the exemption clause was unavailable), it was argued assuming that the exemption clause was valid. Consequently, damages would flow from the respective dates of termination. Don't worry. Your assumption error is only between $20 million and $30 million, growing at $1.5 million per month, shared equally between Air Canada and ACPA.

Don't take my word for it. Just read any of the recent Tribunal decisions on damages, like the three CNR decisions that were released in early June. Full back-pay from on or about the date of termination, not from the date of the Tribunal decision.

How can you get four years down the road in this litigation and not have the foggiest idea about your legal exposure in damages, especially huge numbers like that? You take denial to a new height.

Overstated,

Those decisions were all based on family status. Three women, with very similar circumstances, all of which became parents, CN refused to accommodate their family status change and were terminated as a result. Essentially CN could have, but refused to accommodate their situations, according to the Tribunal's decision.

So let me get this straight. You think that situation, people being fired, their pay check being terminated, is the same as our case where mandatory retirement provides a 6 figure income and the practice is exempted from the law?

The difference is that in our case we have a legal exemption allowing mandatory retirement to take place. That law hasn't changed yet. Mandatory retirement is still perfectly legal, save two individuals.

How is it that you believe liability can accumulate when we are following the law?

Your logic confounds me.

I suppose if the city you live in changed a bylaw next week, and then tried to retroactively fine you back to 2005, you would have no problem with that either?

[Lost in Saigon]

I don't think the individual circumstances really matter.

The facts are that people were wrongfully terminated and will be re-instated with back pay.

[Understated]

The difference is that in our case we have a legal exemption allowing mandatory retirement to take place. That law hasn't changed yet. Mandatory retirement is still perfectly legal, save two individuals. How is it that you believe liability can accumulate when we are following the law? Your logic confounds me.

Well, your logic confounds me. You are deluding yourself.

First of all, you misstate the law. You overlook one critical point. Mandatory retirement, prior to the Charter, was legal, but with the qualification that it could take place only at the "normal age of retirement for individuals doing similar work."

Did you forget, or did you even know that that was the whole point of the Thwaites hearing? Normal age of retirement for individuals doing similar work. The onus is on the employer to establish that the terminations met that test. Was age 60 the normal age of retirement for individuals doing similar work?

To restate, the law on which the Thwaites case is based on the same law that was enacted in the 1970’s. No change. Nothing to do with the Charter and/or Charter damages. It has nothing to do with any change in law.

It is up to the employer to assess the normal age of retirement prior to terminating anyone, because if it terminates someone at other than the normal age of retirement, it is in violation of the statutory requirement, and is liable for damages for doing so. When someone challenges the termination, it is up to the employer to demonstrate that the termination, at the date of termination, met the test. If it fails to do so, then the Tribunal will find the employer (and in this case, the union as well) liable for lost wages as a result of the terminations, from the dates of termination, not from the date of the Tribunal's decision.

The Tribunal is simply making a finding of fact for each individual, as of the date of termination of employment, based on the 1970's provision in the statute, and it is up to the employer to establish that the termination is in factual compliance with the exemption, failing which it is liable, from the date of termination. It is a finding of fact, not a restatement of the law. Did you not know that?

That is why the Thwaites case will likely be the end of the road for Air Canada, as far as age 60 is concerned. Because a finding of fact by the Tribunal is almost completely bullet-proof. Appeals of those findings are almost invariably unsuccessful because the Federal Court not only does not have the jurisdiction to interfere with findings of fact (Tribunals are allowed to make mistakes, so long as they do not exceed their jurisdiction), it is the Tribunal that sees the witnesses, hears the evidence and evaluates the witness credibility. Courts cannot simply read the transcript, conclude that the Tribunal erred, then substitute their own opinion for that of the Tribunal that heard the testimony. They must accept the Tribunal's findings of fact, unless there is no basis whatsoever for the Tribunal making the factual determination that it made.

Do you honestly believe that if the Tribunal finds that the employer fails to establish, in respect of the terminations of each of these individuals, that the terminations of employment of each were at the "normal age of retirement," that that creates new law, as opposed to a finding of fact? Better get some professional advice, sir. Your emperor has no clothes, and your liability is huge and growing.

One last thing. Please tell me that you are not one of the individuals directing this project at ACPA. Please tell me that what you are putting forward here does not represent the state of knowledge of the Age 60 Committee and/or the MEC. If it does...

[Brick Head]

Question one. Not concerned about a section 10 challenge. You don't have a case.

I am not sure, giving the long recent dialogue, if you got a chance to look at the question that I posed yesterday.

How do you see that playing out in the context of your own specific collective agreement? What sort of changes would you expect to result, and would you expect other unions, including unions in other industries, to arrive at the same types of resolutions to the same problem there?

Sorry Mechanic787 for not responding. I would like to say it wasn't deliberate but in fact it was.

You are asking a question that is way above my pay grade or qualification to answer as it is specific. I have no idea where the balance will end up post mandatory retirement at the Federal level and quite frankly I doubt anyone really does.

All I can tell you is that at the provincial level, which is a few years ahead of us, the issue of rights within the collective unit has been left to the bargaining agents themselves to resolve. That has lead to varying solutions. It would seem the courts are content with the direction of respecting the legal right of the bargaining unit to distribute as they see fit, while intervening only when necessary. And again the solutions the bargaining agents have employed, have varied from doing nothing .Allowing people to decide for themselves. Usually flatter pay systems, no pension ect. To employing other methods that directly emulate what mandatory retirement was doing before the law change. Specifically forcing people to pass the benefit on at a specific point. Then continue to work, if they so choose, under different rules. Usually bigger unionized places, with deferred compensation systems and pensions. For example Ontario teachers.

However I caution you. The Provincial level may be the trail blazer in this regard but it too is in its infancy.

It is not just the competing rights of employees that is being tackled at the Provincial level but also those of employers. They too have a host of issues they are having to deal with as they adapt to a post mandatory retirement environment. An example would be the law requiring employers to hold a job for someone who is sick. Is it reasonable for instance to be forced to hold a job for someone who is 87 and now sick?

All I have been trying to say is that we are watching this evolve. That the notion that collective rights have been punted with the end of mandatory retirement is rubbish. We will find balance somewhere and at the moment it appears that task will be left to the bargaining agents.

[Brick Head]

Did you forget, or did you even know that that was the whole point of the Thwaites hearing? Normal age of retirement for individuals doing similar work. The onus is on the employer to establish that the terminations met that test. Was age 60 the normal age of retirement for individuals doing similar work?

Yes

It is up to the employer to assess the normal age of retirement prior to terminating anyone, because if it terminates someone at other than the normal age of retirement, it is in violation of the statutory requirement, and is liable for damages for doing so. When someone challenges the termination, it is up to the employer to demonstrate that the termination, at the date of termination, met the test.

Yes

If it fails to do so, then the Tribunal will find the employer (and in this case, the union as well) liable for lost wages as a result of the terminations, from the dates of termination, not from the date of the Tribunal's decision.

No. Your jumping to conclusions here. Please point to the criteria we are supposed to use to determine what the normal age of retirement for air Canada pilots is. Where is it? What does it say? I believe, and can prove, based on the criteria I think is appropriate, that age 60 is still normal. If the Tribunal interjects with new guidance, and that belief proves false, we will comply with it.

The Tribunal is simply making a finding of fact for each individual, as of the date of termination of employment, based on the 1970's provision in the statute, and it is up to the employer to establish that the termination is in factual compliance with the exemption, failing which it is liable, from the date of termination. It is a finding of fact, not a restatement of the law. Did you not know that?

Yes the Tribunal might find as fact that age 60 is no longer normal. However in doing so they will need to declare criteria for determining it, for which there is no possible way for us to have known on the date of retirement for these individuals.

The law does not require individuals to be physic. We are following the law to the best of our understanding of it.

[156] Given the then state of the law, the respondents acted in good faith and reasonably in applying the mandatory retirement policy to the complainants. As to considerations of fairness to the litigants, in my view, a fair balance is struck, on the one hand, by not imposing on the respondents the burden of damages for a policy that was legal at the time, and, on the other hand, by awarding damages to the complainants from the time the policy was declared to be illegal.

[Understated]

If it fails to do so, then the Tribunal will find the employer (and in this case, the union as well) liable for lost wages as a result of the terminations, from the dates of termination, not from the date of the Tribunal's decision.

No. Your jumping to conclusions here. Please point to the criteria we are supposed to use to determine what the normal age of retirement for air Canada pilots is. Where is it? What does it say? I believe, and can prove, based on the criteria I think is appropriate, that age 60 is still normal. If the Tribunal interjects with new guidance, and that belief proves false, we will comply with it.

It is too late for that. The evidence that was needed to prove what you suggest, had to be submitted at the Thwaites hearing. The hearing closed in January, 2010. ACPA submitted no evidence at all with respect to the question of “normal age of retirement” at the hearing. Where were you when you had the chance to make your case? The Tribunal will render its decision based on the evidence and argument placed before it at the hearing. And it won’t be offering any guidance as to how you should make your case the next time you appear defending the terminations. It will simply say that the employer met the onus, or it did not. End of decision.

Yes the Tribunal might find as fact that age 60 is no longer normal. However in doing so they will need to declare criteria for determining it, for which there is no possible way for us to have known on the date of retirement for these individuals.

From what I can see, you have a misapprehension of the statutory role of the Tribunal. It adjudicates complaints, it does not dictate policy or make declarations as to what is “normal.”

It is adjudicating the set of complaints in the Thwaites hearing. 70 of them. It answers a question, “Did the employer meet its onus, yes or no.” It doesn’t have the jurisdiction to say, “ a different age, age ‘so and so’ is normal,” because that question is not part of its mandate. The reason it answers its “yes/no” question is to determine if the employer has committed a discriminatory practice in respect of the complaints before it, not to tell the employer or the union how to manage their business re termination of other employees. Those employees are not before the Tribunal. Contrary to what you say, it doesn’t “need to declare criteria for determining it.” It simply says yes/no on whether the employer established its onus with respect to the complaints before it. Period. Case closed (as far as liability is concerned).

The law does not require individuals to be physic. We are following the law to the best of our understanding of it..

You can’t understand it if you don’t understand the statute or the role of the Tribunal. Consequently, you are asking yourself the wrong question. We are dealing with a factual situation for each complaint, answered by a “yes/no” answer in each case, not by a psychic examination of what should be. Did the termination of employment meet the statutory requirement or did it not? There is nothing psychic about that test. It is a question of fact. A negative answer leads to a finding of a discriminatory practice, which means damages, not as of the date of the decision, but as of the date of termination of each individual.

So, let me pose my question again, with a slightly different variant.

Question #2: In light of the very real possibility of damages being ordered from the date of termination of all pilots whose complaints are before the Tribunal, in addition to the others still waiting for their day in court, if either or both Air Canada or ACPA is / are ultimately required to pay damages to the 150 or so pilots who are currently waiting for their day in court, namely, about $20 million or so if we use the V-K numbers, do you think either ACPA or Air Canada, but especially Air Canada, would be eager to keep heading down the same path of terminating pilots’ employment and appealing their lost decisions?

[Brick Head]

It is too late for that. The evidence that was needed to prove what you suggest, had to be submitted at the Thwaites hearing. The hearing closed in January, 2010. ACPA submitted no evidence at all with respect to the question of “normal age of retirement” at the hearing. Where were you when you had the chance to make your case?

Understated,

Your sounding a lot like someone I know again.

In our closing arguments alone. Of the 51 paragraphs, 17 deal with the subject matter of what criteria should be used to determine normal. I just counted. The lack of evidence you speak of is irrelevant. Based on the criteria proposed, it is not required to make the argument for normal being 60. The only way 60 isn't normal is under a different set of criteria. A set of criteria I am not familiar with. Your assertion that we didn't deal with the subject of "normal" is disingenuous.

The Tribunal will render its decision based on the evidence and argument placed before it at the hearing. And it won’t be offering any guidance as to how you should make your case the next time you appear defending the terminations. It will simply say that the employer met the onus, or it did not. End of decision.

Oh really? They won't explain the rational as to why the respondent didn't meet the onus? Your expecting a one word award?

From what I can see, you have a misapprehension of the statutory role of the Tribunal. It adjudicates complaints, it does not dictate policy or make declarations as to what is “normal.”

It is adjudicating the set of complaints in the Thwaites hearing. 70 of them. It answers a question, “Did the employer meet its onus, yes or no.” It doesn’t have the jurisdiction to say, “ a different age, age ‘so and so’ is normal,” because that question is not part of its mandate. The reason it answers its “yes/no” question is to determine if the employer has committed a discriminatory practice in respect of the complaints before it, not to tell the employer or the union how to manage their business re termination of other employees. Those employees are not before the Tribunal. Contrary to what you say, it doesn’t “need to declare criteria for determining it.” It simply says yes/no on whether the employer established its onus with respect to the complaints before it. Period. Case closed (as far as liability is concerned).

Same comment. It sounds like you expect that the Tribunal will not explain the rational for their yes or no answer. Think about it.

We have no guidance on the criteria that defines normal. We did, but then it got dumped by the Federal court. It is forth coming. When it does we will comply with it.

By the way aren't you the same group that said the VK liability was in the millions? How did that work out? Even the minuscule percentage they did get was attained only because Sinclair decided not to apply mitigation, which in and of itself is very odd. His rational was that if he did apply mitigation, the complainants would likely be entitled to almost nothing.

How did you go from millions to almost nothing? I mean we haven't even factored in the employment offer that was repeatedly made that the Tribunal didn't know anything about it.

So, let me pose the question again, with a slightly different variant.

Question #2: In light of the very real possibility of damages being ordered from the date of termination of all pilots whose complaints are before the Tribunal, in addition to the others still waiting for their day in court, if either or both Air Canada or ACPA is / are ultimately required to pay damages to the 150 or so pilots who are currently waiting for their day in court, namely, about $20 million or so if we use the V-K numbers, do you think either ACPA or Air Canada, but especially Air Canada, would be eager to keep heading down the same path of terminating pilots’ employment and appealing their lost decisions?

Another question................?

It is reasonable to expect that the second AC, or for that matter ACPA, believe liability of the magnitude you are speaking of, is actually a possibility, mandatory retirement will stop. Case in point look how fast VK were reinstated after remedy. How fast the MOA was developed to mitigate liability.

[Understated]

Based on the criteria proposed, it is not required to make the argument for normal being 60.

Huh? My mentors are obviously different from your mentors.

We have no guidance on the criteria that defines normal. We did, but then it got dumped by the Federal court. It is forth coming. When it does we will comply with it..

Are you saying that if the Thwaites liability decision goes in favour of the complainants, that that will be the end of it? ACPA will agree that mandatory retirement has ended?

[Brick Head]

[

Are you saying that if the Thwaites liability decision goes in favour of the complainants, that that will be the end of it? ACPA will agree that mandatory retirement has ended?

We have to follow the law. To not follow the law would get us spanked bad. Are we nearing a place were we may have to capitulate? It depends on what your version of capitulate means. Capitulate to individual rights trumping collective bargaining rights? I very much doubt it. Capitulate on terminating people at 60? Ultimately the MEC decides when, or if, capitulation happens. They will make that decision based on fact, not what ifs, at each step along the way. Today I don't see it. Tomorrow?

[Understated]

Ultimately the MEC decides when, or if, capitulation happens. They will make that decision based on fact, not what ifs, at each step along the way. Today I don't see it. Tomorrow?

Thanks. Good discussion. I believe that everyone now has a much clearer picture of exactly what is happening.