Federal Court Decision re V-K JR, February 3, 2011

[Raymond Hall]

The decision is on the way to the parties this afternoon. I will post it to the Fly Past 60 web site, with a link here to it, once I have received a copy of it.

[Raymond Hall]

I have not yet received all of the pages of the decision on my fax machine just yet, but here is a brief synopsis of the decision:

The Court has dismissed Air Canada's and ACPA's judicial review application on the basis of the Charter Section 1 argument. In other words, the Tribunal decision finding that the mandatory retirement exemption provision of the Canadian Human Rights Act was of no force and effect was upheld.

The question of bona fide occupational requirement dealing with the post-November 2006 ICAO changes is to be remitted to the Tribunal for a new decision, based on the record (no new evidence or argument) and on the Court's reasons in today's decision.

[ram]

What does this decision actually change Ray?

Does this mean everybody gets to come back?...today, I mean...
Does this mean that Air Canada has to "cease and desist" with retiring pilots at 60?

What are the immediate effects of this decision?
Thanks,

[Raymond Hall]

I have posted the copy of the decision that I received by fax this afternoon on the Fly Past 60 web site:

http://www.flypast60.com/Documents/2011 ... -Court.pdf

We should get an electronic copy tomorrow that will include searchable type.

[Raymond Hall]

The Court has upheld the Tribunal's decision that the mandatory retirement provision of the Air Canada – ACPA collective agreement violates the provisions of the Canadian Human Rights Act. In particular, the Court was emphatic that the decision in 1990 by the Supreme Court of Canada was not binding upon it, and that the Charter issues had to be viewed in the context of current social standards.

Although for procedural reasons the Court declined to issue a general declaration that the mandatory retirement exemption was unconstitutional, it did not say that such a declaration would not issue in the future, in the event that an application were properly brought before it, giving full notice of the constitutional challenge to the various Attorneys General.

What is the significance of this decision? The most immediate signficance is that the decision is binding on the Tribunal and thus will be determinative of the remaining 150 or so cases pending before the Tribunal, regardless of the outcome of the Thwaites case. It is now the law, and the law will be in effect unless and until it is overturned on appeal to the Federal Court of Appeal or to the Supreme Court of Canada.

[mclovinit]

Doesn't look like the slam dunk Ray was looking for...

Oh well you better get the donations flowing on the Fly past 100 site.

Ding ding round 7....

Just mclovinit.

[TyrellCorp]

And remember folks that it's all about the law and NOT fairness. If one can manipulate the law for personal benefit then that's a great thing in this country.

[Morry Bund]

And remember folks that it's all about the law and NOT fairness. If one can manipulate the law for personal benefit then that's a great thing in this country.

Well, Goliath, from where I sit, it would appear that David is doing just fine. How much money has Air Canada and ACPA combined spent on legal fees trying to preserve the status quo ante, to no avail? And who is paying the bills for that? You and I? Yes. You and I.

Who are you? Churchill?

We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields, and in the streets, we shall fight in the halls. We shall never surrender.

To what end? Self-immolation?

[Understated]

OK. The ACPA Age 60 Committee Newsletter of a couple of weeks ago suggested that the Federal Court decision was not expected for several months yet. Surprise! We suggested that all three decisions and the legislative changes would present themselves within three weeks. Finger on the pulse. One down, three to go.

The Federal Court, Thwaites, the CIRB, and Parliament. Strike One was delivered today. Get ready for Strike Two and Strike Three. Strike Four is expected at the end of this month.

My contacts on the Hill (I can't afford ACPA's lobbyists, so I use a neat device called the "telephone") tell me that the Parliamentary Committee has already met to discuss the required changes to Bill C-481, and that the Bill should go back to Parliament for Third Reading within two to three weeks, well ahead of the Budget speech, expected in March. Should get through Parliament before the Budget vote and before any potential election call. How about that?

[Say Altitude]

It's going to take me a few read throughs to digest but a few things come up that I find interesting.

1. No outright cease and desist order,
2. Calls to come back for additional review, and
3. Making explicit comment that a SCC judgement doesn't have standing in this matter? I wonder how the members of the SCC will view having a lower court tell them that a decision of their peers doesn't have standing?

I'll need to read it again but those are my first impressions.

I don't think this is over quite yet - so Understated/Morry Bund and the rest of your gang of merry men, I wouldn't rush out to get your EMJ SOP's and First Officer Flows and start studying quite yet....

[Understated]

It's going to take me a few read throughs to digest but a few things come up that I find interesting. 1. No outright cease and desist order, 2. Calls to come back for additional review, and 3. Making explicit comment that a SCC judgement doesn't have standing in this matter? I wonder how the members of the SCC will view having a lower court tell them that a decision of their peers doesn't have standing? I'll need to read it again but those are my first impressions.

There was a statement in the most recent SCC decision dealing with mandatory retirement that that Court would welcome an opportunity to revisit the issue, but that in the case before it (Saskatchewan Potash) the Charter issue was not pleaded, so they could not consider it. It has been 21 years since the original decisions on this were rendered. Different court, different world.

Remember, the 1990 SCC McKinney decision was not a unanimous decision. There were dissents. As the Court points out in this decision, at least two SCC judges disagreed with the Section 1 interpretation in that judgment. Justice MacTavish quotes the SCC extensively in its more recent interpretations of the Charter. At one point she makes specific reference to the fact that the very judge on the SCC who wrote the McKinney decision in 1990, 10 years later, after his mandatory retirement from the Court, wrote a report for the Canadian Human Rights Review Panel openly recommending the abolition of mandatory retirement.

What you may want to consider now is that both Air Canada and ACPA are on the back side of a very well reasoned judgment stating that the exemption for mandatory retirement violates the Charter. Justice MacTavish likely has a pretty good idea that this decision is headed for the Supreme Court of Canada, so she did a thorough analysis of the issues in preparation for that. She wanted to get it right. Put that together with the fact that Parliament is currently in the process of repealing this very exemption provision, and you have a pretty good indication that overturning this decision will be an uphill battle.


True, the patient hasn't died, yet. But the diagnosis is in. Terminal illness. I don't want to interfere with your prayer for a miracle, but there comes a time when one must seriously ask oneself how long it is worth continuing along the northbound path when all the signs are pointing south.

[James Delgaty]

Hey could you post what law has changed?

and provide the exact change written by parliament.

Is it federal. provincial?

Cheers,

James

[MackTheKnife]

Hey could you post what law has changed?

and provide the exact change written by parliament.

Is it federal. provincial?

Cheers,

James

Deny, Deny, Deny, Deflect, Deflect, Deflect but the light in the tunnel keeps getting bigger every day.

It's easy to see why we are in this predicament in the first place when an ACPA executive makes a statement like the above !

[ram]

Deny, Deny, Deny, Deflect, Deflect, Deflect but the light in the tunnel keeps getting bigger every day.

It's easy to see why we are in this predicament in the first place when an ACPA executive makes a statement like the above !

Hey, At least he has the Ba//s to sign his name!..
Nothing has changed...Not the law, Not the contract!!!...nothing!

Spin this as a win all you want, but you know as well as I do that this is far from over!

Remember "it's not about what's fair...It's about the LAW"...(which hasn't changed),,,who said that again?

[Understated]

Hey could you post what law has changed? and provide the exact change written by parliament.
Is it federal. provincial?

The following outline of the legal proceedings is intended for the benefit of ACPA executives only, for as it is becoming painfully evident, everyone except the ACPA executives who are directing the union's spending of hundreds of thousands of dollars on this useless litigation has a clear understanding of the ongoing legal proceedings, of the impending legislative changes, and of their implications. If you are not an ACPA executive, please skip ahead to the next post, in order to not bore yourself with this repetition of the facts, ad nauseum. If you are an ACPA executive, pay close attention. You will be held accountable for any failure to understand the most basic elements of law on which you are currently basing your decisions to waste my money paying high power lawyers to fight an unwinnable fight.

1. The Canadian Human Rights Act (CHRA) contains a general prohibition against age discrimination in employment. It also contains an exemption provision that permits mandatory retirement under extremely limited circumstances.

2. The limited circumstances permit mandatory retirement to occur provided that it occurs at "the normal age of retirement for individuals doing similar work." What is the normal age of retirement for airline pilots doing similar work was the subject of a huge hearing before the CHRT in 2009 and 2010 (Thwaites). The decision on that hearing is due to be released very soon. In a nutshell, if Age 60 is found by the Tribunal to not be the "normal age of retirement" for airline pilots in Canada, Air Canada's and ACPA's collective agreement provision mandating mandatory retirement at age 60 will be found to contravene the statutory prohibition against age discrimination in employment. It will be illegal.

3. All statutory provisions in Canada are subject to compliance with the Charter of Rights and Freedoms. If any provision violates the Charter, it will not be upheld. This is the case with the mandatory retirement exemption in the CHRA.

4. In 2006, George Vilven and the Fly Past 60 Coalition filed a Charter challenge to the mandatory retirement exemption in the CHRA. That Challenge was upheld by the CHRT in August, 2009. The Tribunal stated that the termination of George Vilven and Neil Kelly in 2003 and 2005 violated the provisions of the CHRA because the exemption clause in the CHRA permitting mandatory retirement was of no force and effect, by reason of its violation of the Charter. Yesterday, the Federal Court upheld the Tribunal's August, 2009 decision. That decision makes the prohibition of mandatory retirement binding upon the Tribunal for all subsequent complaints of Air Canada pilots before the Tribunal.

5. After the Tribunal issued its August, 2009 decision finding that the mandatory retirement exemption in the CHRA violated the provisions of the Charter, one of the Members of Parliament introduced a Private Member's Bill to repeal the mandatory retirement exemption in the CHRA. In other words, Parliament is now considering legislation that will do exactly what the Court did—abolish the effect of the mandatory retirement exemption.

6. That Bill unanimously passed Second Reading in the House of Commons on December 6, 2010, and was referred to the Parliamentary Committee on Human Resources for amendment and review. Both the Minister of Labour and the Parliamentary Secretary spoke in favour of the Bill, with minor qualifications, during Second Reading. The Bill is now scheduled to be amended in Committee and brought back into the House for Third Reading and passage before the end of February. From there it will go to the Senate for similar treatment, and finally, enactment. That should come within the next four weeks, assuming the process flows as smoothly in the Senate as it has done so far in the House of Commons.

7. One of the amendments being considered is a delay (likely six months) from the date of enactment of the legislation to the date of coming into force of the legislation. This will mean that the legislative repeal of mandatory retirement will not take effect until at least September.

8. Regardless of the fact that the legislation repealing mandatory retirement in the federal jurisdiction will not take effect until September, at the earliest, the Federal Court decision finding that the existing mandatory retirement exemption provision is in violation of the Charter still stands. As a result, anyone whose employment is terminated between now and the coming into force of the repeal of the exemption will likely be able to avail themselves of the equivalent judicial determination as did Vilven and Kelly.

Now, please, do us a favour. Circulate the above explanation among the rest of your ACPA executives and Committee members, so that they too can avail themselves of an understanding these issues that apparently is not otherwise available to them, in the deliberation of financing these legal proceedings.

[Understated]

Nothing has changed...Not the law, Not the contract!!!...nothing!

Not correct. The law changed yesterday. Before yesterday there was a finding by the Tribunal that the mandatory retirement exemption in the Canadian Human Rights Act was not available to Air Canada in respect of Vilven and Kelly only. Yesterday the Federal Court made the same finding, and that finding is binding upon the Tribunal with respect to all future pilot mandatory retirement cases before it.

The contract has changed, as well. The contractual provision that permits mandatory retirement has been found by the court to violate the law.

It will be very interesting to see Air Canada's reaction to this decision, given the implications of potentially continuing to terminate pilots' employment based upon a contractual provision that the Court has found to be in contravention of the CHRA. The argument that it used following the Tribunal decision of August, 2009 to continue terminating pilots' employment, the argument that the Tribunal decision was not binding on itself or on anyone else because the Tribunal only had jurisdiction to interpret law, not to make law, is not available to it with regard to yesterday's Federal Court decision. The Court made law yesterday, and that law is binding.

[ram]

If the law has changed and the contract is "In violation of the Law" as you state...than why no "Cease & desist" ?

[Understated]

If the law has changed and the contract is "In violation of the Law" as you state...than why no "Cease & desist" ?

My guess is that it is implied by the decision – it wasn't necessary. Cease and desist, that is. I will have to confirm that assumption with our legal counsel.

Regarding the general declaration of unconstitutionality of the exemption provision that would affect everyone other than Air Canada pilots, the judge is quite clear in her decision. She wasn't prepared to issue such a declaration without completely clear advance notice of the issue being given to the Attorneys General regarding the implication of such a declaration, to give them the opportunity to appear and make representations at the hearing. She did not say she would not issue such a declaration in the future, if proper notice is given.

[Rockie]

If the law has changed and the contract is "In violation of the Law" as you state...than why no "Cease & desist" ?

When a court makes a ruling is it really necessary to specifically tell people to obey the law? As adults shouldn't we be able to figure that out on our own?

And remember folks that it's all about the law and NOT fairness.

Considering this is a human rights issue I would say it is very much about fairness as well as law. You might not think so but apparently the rest of Canada does. Get used to it.

[MackTheKnife]

Nothing has changed...Not the law, Not the contract!!!...nothing!

Spin this as a win all you want, but you know as well as I do that this is far from over!"[/quote

Remember "it's not about what's fair...It's about the LAW"...(which hasn't changed),,,who said that again?

Deny, Deny Deny

Hey, At least he has the Ba//s to sign his name!..

I guess the same could be said about you.

And will I ever sign my name. Short and sweet. NO, I'm not that stupid.

MTK

[Brick Head]

The Court made law yesterday, and that law is binding.

No only if review is dismissed on the Charter issue. If not? Not until some courts says this is the end of the road for the issue. Probably the Sup court.

[482] I have concluded that the Tribunal did not err in finding that paragraph 15(1)c of the CHRA is not saved by section 1 of the charter. Consequently, the remedial powers conferred on the court by subsection 18.1(3) of the Federal Courts Act are not engaged. The proper remedy is for the Court to dismiss Air Canada and ACPA's application for judicial review insofar as they relate to the Charter issue.


Wow did she ever pound the Tribunal again.

Nice to see Capt Duke's testimony given the credibility it deserves. I particularly like that she included the position put forth by V&K that any BFOR could be solved by making all post 60 pilots FO's.

I also liked the way she dealt with the Oak's test. Particularly the section on pressing and substantial reinforcing that the Tribunal was correct. Alternatives to mandatory retirement can effectively preserve the benefit system.

[morefun]

Raymond, with this latest court ruling, doesn't it make the other 150 cases in the wings a slam dunk? Which begs the question why doesn't ACPA wake up and get on with life after 60?

[Rockie]

They might be doing that if recent remarks by union reps are indicative of a long overdue shift in thinking. The problem for the union will be reversing their stance to the membership, whose support for fighting it has been carefully manipulated (I mean nurtured) over the past six years. This result was inevitable from the beginning for anybody who thought about it, so how does the union explain away their gross miscalculation? How do they explain away the pending consequences of their actions?

No doubt they will say they were only doing what the members wanted, and to a certain extent that's true. But that ignores the fact the members were only doing what the union wanted.

Train wreck.

Edit: Just read ACPA's newsletter. Even after this latest defeat they still do not accept that they cannot bargain away individual human rights.

[Brick Head]

Edit: Just read ACPA's newsletter. Even after this latest defeat they still do not accept that they cannot bargain away individual human rights.

Crikey!

It is called collective bargaining. Individual rights are surrendered for collective rights. Yes that statement is limited to not breaking the law. So if the law changes to disallow mandatory retirement? It must stop. However the rational for its use in the first place, Parliaments intended objective with 15(1)c, does not automatically become expunged. In fact Madame Justice called the rational objective behind 15(1)c still pressing and substantial. So too is the ability to continue working pressing and substantial. (Did I just hear we have competing rights that are pressing and substantial? Who would have thought) What she said was there was no longer a rational connection between 15(1)c and its stated objective. Just like the Tribunal. And just like the Tribunal she points to the use of alternatives to fulfill the objective by means other than Mandatory Retirement.

Balance. Both the objective behind 15(1)c and the ability to continue working are pressing and substantial. Balance of competing rights that are both important.

The conclusion your side drew early on, that once Mandatory Retirement is expunged, so to is the objective behind it? Wrong. You critique ACPA for infringing on your rights. At what point do you intend to address the rights of your peers? At what point are you going to move off the position that your individual rights entitle you to redistribute the collective wealth against the will of the collective bargaining process?

Read from about paragraph 195 on through her analysis of the Oak's test.

The objective of 15(1)c is alive and well. Albeit it looks like we are heading down the path of fulfilling the objective Parliament decided was pressing and substantial, by means other than mandatory retirement. AKA alternatives.

[201] I have previously found that the objective of 15(1)c was to permit the negotiation of mandatory retirement arrangements between employers and employees, particularly through the collective bargaining process, so as to allow for the preservation of socially desirable employment regimes which include matters such as pensions, job security, wages and benefits. Such an objective continues to be a pressing and substantial one in society.


This ruling is hardly a defeat. The BFOR argument was sent back to the Tribunal and the Charter issue has been contained to just the act of mandatory retirement to preserve the benefit system. Preserving the benefit system is still pressing and substantial.


Any comments from your side about the possible implications of the BFOR issue being sent back to the Tribunal and the pending Thwaits case?

[Understated]

Any comments from your side about the possible implications of the BFOR issue being sent back to the Tribunal and the pending Thwaits case?

Little more than an unfortunate inconvenience. First of all, one has to realize that the BFOR issue that is before the Court and the Tribunal in this dispute is evidence-based, and this dispute does not centre around the underlying legal principles relating to the BFOR. The legal principles here are not in dispute. It was the evidence and the Tribunal's dealing with it that came into question.

Because the issue is evidence-based, it is limited to V-K only. Captain Duke's model was not evidence. Rather, it was only speculation, based on absurd assumptions that bore little or no relevance to the operational realities of the crewing issue before the Tribunal. There was very little evidence presented to the Tribunal on BFOR. The submissions were almost entirely speculation. The Chair saw that very clearly, which is likely why he paid so little time discussing it in his decision.

Also, the V-K hearing was completed in January of 2007, before ICAO came out with its clarification on augmented crews, in February. The impact of augmented crews on the Over-Under requirement, significantly minimizing the operational impact of the matching requirement, was dealt with at length in the subsequent Thwaites hearing. At that hearing, Air Canada's BFOR argument and evidence got trashed, not only because Captain Duke's ridiculous model was based on assumptions that 100% of pilots would stay not just beyond age 60 but beyond age 65, but also on the faults of the PBS programming that he used to come up with the suggested operational restrictions referred to in the recent decision. That model was shown to contain a major flaw--it failed to account at all for the effect of augmented crews, so all of his projections were therefore meaningless.

Don't expect the BFOR issue to upset the direction of changes towards no mandatory retirement. Air Canada's BFOR argument is entirely based on the suggestion that it would suffer undue hardship by its alleged inability to meet the Over-Under requirements, and that it cannot accomodate the requirements at all. One obvious question needs to be answered. Why can't Air Canada meet those requirements when every other airline in the world has been meeting those requirements for over four years now, without one single known complaint?

The essence of the February 3rd decision is the Charter issue determination. ACPA's argument that the SCC alleged precedent should be blindly followed got trashed, big time. It's over.