Mandatory Retirement Repeal Passes 2nd Reading in Parliament

[Caballero]

Being a bit unfamiliar with some of this AC stuff, I still don't understand this particular discrimination concept.

Is this a request to fly past 60 to the age of 65, or to an indefinite age?

I understand that pilots in other airlines may go beyond the age of 60. Is there any mandatory retirement age for pilots at those companies? Do any rules change beyond a certain age, or is it that if you can hold a medical that you may fly without further restriction?

Does this possible change in law effect every job in our country (firefighters, police, judges, military etc.) with mandatory retirement ages as well?

If anyone could clearly shed light on these facts would be much appreciated...

Cheers

[vic777]

Is this a request to fly past 60 to the age of 65, or to an indefinite age?

It is to end discrimination based on age, your ability to work would be based on Simulator Rides etc. and Medicals, some Pilots would "go" at Forty-Five others would fly into their Seventies.

Does this possible change in law effect every job in our country

Every job would be affected.

[Rockie]

Do any rules change beyond a certain age, or is it that if you can hold a medical that you may fly without further restriction?

Within Canada there are no age related regulatory restrictions to flying. As far as Transport Canada is concerned as long as you pass your medical and proficiency checks you're good to go regardless of age.

Does this possible change in law effect every job in our country (firefighters, police, judges, military etc.) with mandatory retirement ages as well?

This is a change in federal law and applies to federally regulated industries only, which includes airlines. Provincially regulated industries are not effected by the change, but every province and territory in Canada has already banned mandatory retirement on discriminatory grounds. The federal government is the last one to do so and is merely playing catch up with the rest of the country. That's why there is absolutely no opposition to changing the law from any of the political parties. They all think it's long overdue.

[sepia]

Funny that the judge themselves are federally regulated, yet have a retirement age.

[Raymond Hall]

Funny that the judge themselves are federally regulated, yet have a retirement age.

Not surprising, because they are not licensed by any governing body that measures their professional competency on a recurrent basis, as we are by Transport Canada. Nevertheless, their legislated mandatory retirement (under a separate Act of Parliament, for federally appointed judges) is not immune to the same Charter challenge that I filed in 2006 with respect to the mandatory retirement exemption under the CHRA that is now before the Federal Court of Appeal (November 22nd) and that could wind up before the Supreme Court of Canada next year, regardless of who prevails.

Here is some support for the proposition that judges are not immune to challenging their mandatory retirement legislation: last year I was approached by an Ontario judge seeking legal advice as to whether he should file a Charter challenge to his impending mandatory retirement at age 75.

Another twist: As I have stated in these threads already, Justice La Forest, who authored the principal judgment in the McKinney case in 1990, which is still the leading SCC case on mandatory retirement, after his mandatory retirement was appointed the Chair of the Canadian Human Rights Review Panel in 2000. That Panel was charged with the responsibility of recommending changes to the CHRA to the federal Minister of Justice. His Panel unanimously recommended abolishing mandatory retirement in the federal sector. As you know, that process is finally under way. His change of opinion reminds me of the sign on Colson's wall in All The President's Men.

And one more twist: Ontario, that repealed mandatory retirement in December, 2006, recently passed Bill 181 that re-imposed mandatory retirement for all firefighters in the province. The Bill that became law on June 1st, 2011, mandates that all must retire by age 65, and those that don’t have a specific age of retirement in their collective agreement are deemed to have a provision that mandates retirement at age 60.

What is interesting about this, for anyone who has been following the path of legal arguments here, is that a statutory mandatory retirement age is separate from the BFOR requirement. BFOR is an absolute exemption to all discriminatory practices. So the mandatory retirement age under the new Ontario legislation is no different in application than the mandatory retirement age under the now-repealed provision of the Ontario Human Rights Code, and has little to do with professional qualifications and competency because that aspect falls under the BFOR exemption. Not only is it redundant, but it too is open to a Charter challenge.

[duranium]

Is it possible for the Pilots to "opt out" of ACPA and form another UNION, perhaps join ALPA, in order to avoid paying these penalties?

Air Canada pilots can certainly hold a de-certification vote and go with any labour organization they want, but I doubt very much they can avoid the liability. And why would they want to? Whatever liability accrues as a result of decisions the Air Canada pilots made (and you can be sure ACPA will emphatically state they were only acting in accordance with the pilot's wishes) it would be the height of scumbaggery in my opinion to then skulk away from that responsibility like thieves in the night. Air Canada pilots are responsible for their bills whatever their representation.

Can new hires refuse to join ACPA and perhaps join ALPA?

They can refuse to join ACPA but it won't make any difference. ACPA is the sole certified bargaining agent representing ALL Air Canada pilots whether they are members or not. It's that sole legal right and privilege that necessitates the duty of fair representation legislation that ACPA is flagrantly ignoring. ACPA represents us whether we as an individual want them to or not, and in return they have to fairly represent every individual whether they want to or not.

It's the law.

IT'S THE LAW

You have summed up the "why" of all the goings on about these court cases with those 3 words.

Only a few problems, a majority ( ei: for the uninitiated, thats 50% plus one )AC pilots ARE above the law. Remember, they can write anything into their contract and that becomes the law of CANADA. Also, AC pilots walk on water, are faster than a speeding locomotive and are able to leap tall buildings in a single bound.
So, if those minutes problems can be ironed out, everybody will be on the same page, sort of

[What_the?]

IT'S THE LAW!!!!!!! Read all about it.
Anywhere In Canada:

It is illegal anywhere in Canada to pay for a 26 cent item in all pennies. The limit is 25 cents. If you are paying for your item in nickels, then its illegal to pay for it in nickels if its over $5. Its also illegal to pay for something over $10 dollars in all dimes.

No one in Canada is allowed by Canadian law to watch or listen to encrypted broadcast which is not licensed by the Canadian Government. This basically means that its illegal to use US satellite systems like "Direct TV".

It is illegal for a man to drink with a woman in an Edmonton beer parlor.

In Canada, It is illegal for a teen to walk down main street with their shoes untied.

It is unlawful to throw snowballs or set off firecrackers within the city, without the authorization of the mayor or City Council (Calgary)

Please mention how "IT'S THE LAW" a few more times... it almost makes me a little sad... just a little... oh, here comes a tear... oh wait... it's just from the onions in my taboulee salad.

Endulge in a giant weiner... shnitzel that is.

I encourage my fellow readers to post some more "LAWS" that are upheld in Canada.

Out.

(Edited to change colour of "IT'S THE LAW" to make more a lasting visual effect in the back of my head)

[Rockie]

What_the?

Appropriate handle.

I'm sure you can tell the difference between an obsolete law that's outlived its usefulness and one that isn't. In fact the exception permitting mandatory retirement based on "normal age" is one of those laws that belongs on your amusing list, and is in the process of being changed retrospective to the provinces and societal values. With regard to duty of fair representation, that law exists for a very, very good reason that I would be happy to explain to you in a PM if you like.

Is the point of your post to advocate ignoring all laws because some of them are obsolete?

[accumulous]

IT'S THE LAW!!!!!!! Read all about it.
Anywhere In Canada:

It is illegal anywhere in Canada to pay for a 26 cent item in all pennies. The limit is 25 cents. If you are paying for your item in nickels, then its illegal to pay for it in nickels if its over $5. Its also illegal to pay for something over $10 dollars in all dimes.

(Edited to change colour of "IT'S THE LAW" to make more a lasting visual effect in the back of my head)

The point is that you have to rely on Special Assessments in the form of payroll deduction at the source to fund all the court actions against the Association, in order to avoid the issue of legal tender altogether.

That’s the beauty of being an employee.

We can enlist the services of the Corporation at absolutely no charge, to pass our pay raises on to the lawyers, monthly, instead of frittering it away on completely senseless things like cars, houses, clothes, stereo equipment, and beer.

[Understated]

To get a feel for the impending legislative changes in Bill C-13 that has been given second reading without amendment, it may be helpful to consider the scope of the Bill, including its breadth and depth. Start with its title, specified in Section 1:

1. This Act may be cited as the "Keeping Canada’s Economy and Jobs Growing Act;"

Here is the cite for the beginning of the Bill:
http://www.parl.gc.ca/HousePublications ... 34&File=38

Look at some of the other 21 sections of the Bill in addition to the ones dealing with employment (Section 12) where the Canadian Human Rights Act amendment is located: Income tax, fuel imports, education savings, employment insurance, financing municipal infrastructure, veteran affairs, Canada Elections Act, Motor Vehicle Safety Act, and Federal-Provincial Fiscal Arrangements Act, to name a few.

In other words, this legislation is comprehensive and at the core of the government’s current agenda. It will not be delayed in passage. The part on mandatory retirement is quite trivial in comparison to the changes in other parts of the Bill, especially the changes in the Income Tax Act. At most three weeks from now it will be law. On the date that it receives Royal Assent, the 365 day clock starts ticking down on Air Canada’s age 60 restriction.

So it is not going to be five years from now. It is going to be one year from now, if the courts don’t get there first.

[Rockie]

On the date that it receives Royal Assent, the 365 day clock starts ticking down on Air Canada’s age 60 restriction.So it is not going to be five years from now. It is going to be one year from now, if the courts don’t get there first.

As far as Air Canada pilots are concerned age 60 will remain because ACPA/Air Canada won the BFOR argument. I've rarely heard different from anybody I fly with, which is yet another indictment on the information vacuum from ACPA and willful blindness on the part of the pilots. Most also still believe that not only was age 60 negotiated (it wasn't) but that a majority vote by the pilots supercedes Canada's discrimination laws because agism isn't really discrimination. It's resulted in some spirited discussions when I explain that in the eyes of the law it is and what we think doesn't matter.

There are going to be lots of shocked people out there when this saga reaches its conclusion.

[vic777]

There are going to be lots of shocked people out there when this saga reaches its conclusion.

It's going to very entertaining to watch. Should relieve the boredom for a year or so.

[777longhaul]

PART 12
PARTIE 12


AMENDMENTS RELATING TO EMPLOYMENT
MODIFICATIONS RELATIVES À L’EMPLOI


R.S., c. H-6

Canadian Human Rights Act
Loi canadienne sur les droits de la personne L.R., ch. H-6



165. Subsection 9(2) of the Canadian Human Rights Act is repealed.
165. Le paragraphe 9(2) de la Loi canadienne sur les droits de la personne est abrogé.

166. Paragraph 15(1)(c) of the Act is repealed.
166. L’alinéa 15(1)c) de la même loi est abrogé.


R.S., c. L-2

Canada Labour Code
Code canadien du travail L.R., ch. L-2



R.S., c. 32 (2nd Supp.), s. 41 (Sch., item 1)

167. Paragraph 235(2)(b) of the Canada Labour Code is repealed.




To all those that still have not got it.

Thwaites ruling from CHRT Sinclair:

In respect of the second issue, the Tribunal made findings in respect of each
Respondent's BFOR defence. In respect of ACPA's BFOR defence, the Tribunal
stated at Paragraph [346]:

[346] For these reasons, I have concluded that ACPA has failed to satisfy steps
one and two of the Meiorin test. The result is that ACPA cannot rely on
the BFOR defence provided by s. 15(1 )(a) of the CHRA.

and at Paragraph [405]:

[405] The choice is difficult. But in my opinion, the impact of eliminating the age
60 retirement rule does not reach the threshold of "undue" hardship. I
have concluded therefore that ACPA has not satisfied the third step of the
Meiorin test.

11. In respect of Air Canada's BFOR defence, the Tribunal stated at Paragraph [429]:

[429] At the end of it all, my opinion is that Air Canada has not met the burden
of proving that it will suffer undue hardship with the elimination of the age
60 retirement rule. Accordingly, it cannot rely on the BFOR defence under
s. 15(1 )(a) of the CHRA.

end

AC and acpa have failed the BFOR test.

The normal age of retirement is the last issue, and it has gone to JR. As will each and every case from all parties.

[29chev]

The normal age of retirement is the last issue, and it has gone to JR. As will each and every case from all parties.

Ah but if 60 was the old normal what is the new normal????

just wondering?
29Chev

[vic777]

Ah but if 60 was the old normal what is the new normal????

Competency could be based on ability. There could be Simulator checks etc. and Medicals. Some Pilots would fly well into their Seventies, others might "wash out" in their Forties. Your employment would be based on your health and competency, what could be wrong with that? Time to buy a treadmill.

[29chev]

Not really what I asked but I see what you are trying to say.

Correct me if i'm wrong but I thought the BFOR argument failed

[429] At the end of it all, my opinion is that Air Canada has not met the burden
of proving that it will suffer undue hardship with the elimination of the age
60 retirement rule. Accordingly, it cannot rely on the BFOR defence under
s. 15(1 )(a) of the CHRA.

because AC AND ACPA were arguing that 60 was the normal and anything over 60 would cause harm and as it says above that argument failed what I'm asking is would that argument have failed if they(AC or ACPA) had argued 65

I think if the original BFOR argument had used the correct comparator groups (AT, Jazz, WJ) we would have had a ruling that 65 was the new normal and as such the new question is , would there have been undue hardship by eliminating retirement at 65 or working past 65 and then I think the answer is yes there is a undue hardship to extending past 65 with regards to cost to AC re: the ICAO 65 rule.

Am I missing or misinterpreting something?

29chev

[Understated]

Am I missing or misinterpreting something?

Not necessarily. But you are getting two separate issues mixed up. Normal age of retirement is the first test. BFOR is the second. If you don't get past the first, you don't get to the second.

Under the CHRA, the onus is on the employer to show that, in this case, age 60 is the normal age of retirement. If it doesn't do that, it doesn't meet its onus. There is no follow-up to determine what age, if any, is indeed the normal age. There may not be a "normal" age, if different airlines retire their pilots at different ages. This has absolutely nothing to do with the BFOR argument.

BFOR is based on an occupational requirement. Air Canada argued that keeping pilots employed after age 60 would cause it undue hardship, by reason of the ICAO restrictions on pilots-in-command over age 60 (invoking the Over-Under Rule) and pilots-in-command over age 65 (not allowed in international operations). The restriction in both cases applies only to pilots-in-command, not "pilots" per se. The Tribunal, in the Thwaites case, found that Air Canada failed to meet its onus to demonstrate that keeping pilots over age 60 employed would cause it undue hardship.

[29chev]

OK so I'm a little mixed up but my question stands would the decision have been different had AC been saying 65 instead of 60

The Tribunal, in the Thwaites case, found that Air Canada failed to meet its onus to demonstrate that keeping pilots over age 60 employed would cause it undue hardship.

would there be undue hardship keeping pilots past 65?
29chev

[Understated]

...would there be undue hardship keeping pilots past 65?

If they insisted on remaining as Captains (pilots-in-command), probably. They could not operate any flights that transit U.S. airspace, because the U.S. adheres to the ICAO restrictions and does not recognize the licences of pilots-in-command over age 65.

But if they did like Neil Kelly did, namely waive the right to fly as a Captain and bid to fly as an F/O after age 65, there is no restriction whatsoever, so there could be no undue hardhip suffered by the airline in keeping him working. Simple.

So why was his employment terminated, you ask? The Federal Court will be asking the same question when the July Tribunal decision comes before it on judicial review of its BFOR decision resulting in his the dismissal of his complaint and his second termination of employment. The Tribunal got it wrong because it used the wrong test to assess the BFOR case before it.

[29chev]

Ok I follow you so far....

But don't you still run into a problem when someone works past 65 because of the ICAO over under rule?
as in up to a 65 limit no problem but if Capts become F/O's at 66 doesn't the undue hardship re appear
based on sked problems due to 2 in the cockpit over 60?
?????
29chev

Didn't actually ask about Neil Kelly or his termination

[Rockie]

But don't you still run into a problem when someone works past 65 because of the ICAO over under rule?as in up to a 65 limit no problem but if Capts become F/O's at 66 doesn't the undue hardship re appearbased on sked problems due to 2 in the cockpit over 60??????

Captains range in age from their 20's up to 60. Even if every single B777 Captain was over 60 that still constitutes a small minority of total Captains at Air Canada. While there might eventually be an issue on the B777 there is nothing to prevent over 60 FO's from being accommodated on a smaller aircraft with a younger set of Captains.

Captains over 65 may be another issue. The loud popping sound you will eventually hear is their heads exiting their asses when they try for a BFOR of age 65, but that will only apply to Captains. There is no issue at all for FO's.

The only problem is that ACPA and Air Canada don't want to accommodate pilots over 60.

[vic777]

... Air Canada don't want to accommodate pilots over 60.

Why doesn't AC want to accommodate Pilots over 60? The Tribunal did not accept their reasoning ... what is the TRUE story?

[Understated]

But don't you still run into a problem when someone works past 65 because of the ICAO over under rule? as in up to a 65 limit no problem but if Capts become F/O's at 66 doesn't the undue hardship re appear
based on sked problems due to 2 in the cockpit over 60?

Not necessarily. The B777 has a large number of augmented flights, so that diminishes the probability substantially. ICAO requirements are that at least one fully-qualified pilot must be under age 60 if the PIC is over 60. Although RPs are not "fully-qualified" it wouldn't take much to make them so, like a couple of hours of take-offs and landings in the sim each six or eight months.

Also, remember that ICAO implemented the Over-Under rule with a review at the end of five years (which is up on November 26th). Given the lack of safety-related issues with PICs over 60 in the past five years, it is conceivable that ICAO could abandon that restriction altogether within the next two years.

[tailgunner]

Rockie..
How do you propose that the company accomodate older pilots on smaller aircraft? Any change to their status has been deemed by the FP60 crowd as discrimination. A few have proposed bottom of the list for those who stay, but that was also deemed discrimination. Are you now proposing that pilots be forced onto smaller equipment? I guess i just don 't follow your rationale.

[Rockie]

Rockie..
How do you propose that the company accomodate older pilots on smaller aircraft? Any change to their status has been deemed by the FP60 crowd as discrimination. A few have proposed bottom of the list for those who stay, but that was also deemed discrimination. Are you now proposing that pilots be forced onto smaller equipment? I guess i just don 't follow your rationale.

The BFOR exemption must be applied on an individual basis, and must be done to the minimum extent necessary to satisfy the occupational requirement. How is a blanket BOTL applying the exemption individually, and how is it the minimum necessary to satisfy BFOR? Even you must admit that BOTL is a measure designed to dissuade pilots from staying beyond age 60 and punish those that do. It has nothing to do with BFOR.

There will shortly be no retirement age at Air Canada unless the company successfully applies to the CHRT for a BFOR exception. Currently they and ACPA are still trying to maintain age 60 by (unsuccessfully) attempting to con the CHRT into believing that pilots beyond that age cannot be accommodated. The CHRT is rightfully calling bullshit and ACPA/Air Canada are just making themselves look stupid trying it.

If the day comes where Air Canada can successfully argue that Captains are unemployable over age 65, and that FO's need to be restricted to an airplane that has sufficient Captains under age 60 then the CHRT will permit that. But in accordance with the "minimum necessary" principle under that scenario Captains (65+) will have to become FO's, and FO's (60+) will be limited to an airplane that has sufficient under 60 Captains. All of this done limiting each individuals rights to the minimum extent possible.

This is the only legal way to limit an individual's rights. BOTL is not it, nor is arbitrarily assigning them to a more junior airplane simply because you're pissed off at them. The sooner ACPA and Air Canada learn this the better off everyone will be.