CHRT Remedy Ruling?

[Understated]

The deadline for filing an Application For Judicial Review of the Tribunal's November 8th decision was this past Wednesday, December 8th.

A search of the Federal Court registry indicates that both George Vilven and Neil Kelly filed applications for judicial review of the decision, as did Air Canada:

http://cas-ncr-nter03.cas-satj.gc.ca/In ... ries_e.php

There is no record of an application being filed by ACPA, which means that ACPA has conceded the findings of the decision, and has no further legal recourse with regard to that decision.

One other proviso. I am advised that the Tribunal's damage award is still subject to being overturned by the Federal Court in the judicial review hearing that took place in November. If ACPA and Air Canada are ultimately successful in that proceeding, there will be no liability. However, if the Federal Court (or a higher court) does not overturn the Tribunal's decision on liability, the damages awarded payable by ACPA to Neil Kelly will stand.

The main upshot of the failure to seek judicial review is that ACPA has agreed to be 50% liable for damages awarded against pilots as a result of termination of employment that is found to violate the provisions of the Canadian Human Rights Act, as awarded by the Tribunal in November. Nor has it any recourse to the Tribunal’s decision to not discount the seniority of the two pilots during the period of their absence as a result of their wrongful termination of employment, or their reinstatement into positions that they would have been entitled to hold, had their termination of employment not been wrongfully terminated.

[accumulous]

The main upshot of the failure to seek judicial review is that ACPA has agreed to be 50% liable for damages awarded against pilots as a result of termination of employment that is found to violate the provisions of the Canadian Human Rights Act, as awarded by the Tribunal in November.

Well then, this liability issue is a noteworthy topic isn’t it, especially at Christmas.

In our IMAX Theatre, we right now have over 50,000 North American pilots in the audience, seasoned travellers already on their ‘Polar Express’ to freedom from forced retirement.

They’re all watching our last gasp ‘Bipolar Express’, thundering across the Technicolor stage on its way to oblivion, to the musical score of ‘Crazy Train’ by Ozzie Osborne and the Blizzard of Oz.

On board our manic-depressive ‘Bipolar Express’ any manic components are overshadowed by the depressive sight of 500 pilots in the caboose being dragged along against their will to the end of the line.

When the union decided to get this Steam Relic rolling, 458 pilots voted against it. Coupled with the pilots who had already filed, we get a roughly rounded number of 500 complaints.

Looking at our Equipment Bid just released yesterday, for the sake of example, 500 pilots equates over 125 percent of ALL the pilots in the Montreal and Winnipeg bases combined, or over three quarters of the ENTIRE population of the Vancouver base.

The vote was was prefaced with the proviso:

‘Do you support the MEC’s position to maintain the Age 60 retirement provisions?’

That's like getting a Customer satisfaction Survey in your e-mail from Hershey that says. "Do you support the Hershey factory in their assertion that Milk Duds are the best Duds in the world".

In other words, the ‘Bipolar Express’ went Chugga-Chugga-Chooo-Chooo and the Conductor hollered “All Aboard” before the vote was even taken.

If we assume that this runaway Liability Locomotive could result in a special assessment of dues being taken from the membership, then a question for the legal eagles arises:

500 pilots would obviously like to get off the damn train, thank you very much. It is obviously approaching the scene of the crash. We didn’t want on the train in the first place.

Is there any legal precedent for 500 pilots to be let off at the next whistle stop or do we all just have to bend over in our seats, and grab our ankles??

[Raymond Hall]

The main upshot of the failure to seek judicial review is ...

Air Canada's application for judicial review seeks only to alter the amount of damages awarded post-September 1, 2009, by reason of the fact that the Tribunal did not apply any discount for alleged failure of the complainants to mitigate the damages payable, such as by accepting alternative employment.

There is no other part of the decision that Air Canada seeks to have changed, so the Tribunal's decision with regard to seniority and bidding rights, as well as with respect to the equal apportionment of damages (Kelly only, as ACPA was not a Respondent in the Vilven proceeding) will stand, subject to the proviso that the entire remedy is subject to the judicial review of the August, 2009 Tribunal decision.

[hypoxic]

Are you saying that these people wanted to work but didn't seek employment? A bit contradictory!

[Raymond Hall]

Are you saying that these people wanted to work but didn't seek employment? A bit contradictory!

I should wish that it could be that simple.

[accumulous]

Are you saying that these people wanted to work but didn't seek employment? A bit contradictory!

They certainly did seek employment. At Air Canada. A fairly massive undertaking as you know. And that is where they are now. They also held various other positions for various periods of time. The Tribunal likely takes a large number of factors into consideration like the problems having to relocate away from family and the costs of getting a new position. Some cases are ordered reinstated to their former positions with all rights and benefits and no penalties for non-mitigation, while cases show others having damages reduced by 33 percent for not being able to mitigate. There are obviously a lot of factors that enter into a Tribunal's decision.

[mbav8r]

http://www.filion.on.ca/uploads/File/pd ... ghters.pdf
The adjudicator concluded that there had not been a violation of the Code. The mandatory
retirement provision was reasonably necessary, and modifying it would cause undue hardship.
However, the adjudicator left open the possibility that an individual firefighter may request an
exception to the mandatory retirement provisions where medical evidence of an extremely low
risk of cardiac events is provided. In these circumstances, accommodation may be required.

Is an ECG enough, or should blood work be added to the cat1 medical after a certain age?

[Thirteentennorth]

http://www.filion.on.ca/uploads/File/pd ... ghters.pdf
The adjudicator concluded that there had not been a violation of the Code. The mandatory
retirement provision was reasonably necessary, and modifying it would cause undue hardship.
However, the adjudicator left open the possibility that an individual firefighter may request an
exception to the mandatory retirement provisions where medical evidence of an extremely low
risk of cardiac events is provided. In these circumstances, accommodation may be required.

Is an ECG enough, or should blood work be added to the cat1 medical after a certain age?

Can't do that Mbav8r, that could be construed as being discriminatory, by singling out certain categories of individuals.

[mbav8r]

They already do that, at age 40 you need medicals twice a year. So, I would think a medical standard that helped rule out a higher risk of cardiac arrest, would be a welcome addition to the already stringent standards that exist. I don't feel an ECG is sufficient to weed out high risk. It only checks for irregularities, doesn't look at other factors, like high cholesterol.

[vic777]

Is an ECG enough, or should blood work be added to the cat1 medical after a certain age?

Not after a certain age, at every age. As we have seen from the recent Air France crash at Toronto, and from incidents/ accidents since the dawn of the "jet age". Pilots under the age of Sixty are capable of the most horrendous and ridiculous errors. Since age is no determinate of abilities, Pilots licences should depend on medicals and simulator results. when a Pilot fails a medical or simulator he must be removed from the line until the "authorities" are satisfied that he can return. Obese out of shape Forty year old pilots may find themselves grounded, other fit Pilots may fly well into their Seventies. Licensing will be decided on abilities and fitness, not age. Pilots, be prepared, buy a treadmill.

[Thirteentennorth]

They already do that, at age 40 you need medicals twice a year. So, I would think a medical standard that helped rule out a higher risk of cardiac arrest, would be a welcome addition to the already stringent standards that exist. I don't feel an ECG is sufficient to weed out high risk. It only checks for irregularities, doesn't look at other factors, like high cholesterol.

Sorry mbav8r, I'll just take my tongue out of my cheek right now...

[Understated]

We were informed this morning, through our regular update from the Coalition executive, that ACPA has now declared the Memorandum of Agreement of last July (remember? separate agreement for over age-60 pilots? EMB F/O's?) null and void. Apparently, ACPA is getting its ducks in order for the CIRB DFR hearing.

[duranium]

We were informed this morning, through our regular update from the Coalition executive, that ACPA has now declared the Memorandum of Agreement of last July (remember? separate agreement for over age-60 pilots? EMB F/O's?) null and void. Apparently, ACPA is getting its ducks in order for the CIRB DFR hearing.

Strategic backpedlling.

[Rockie]

Could be nothing more than tidying up.

You know...fiddling while Rome burns.

[duranium]

rearranging the Titanic deck chairs perhaps ?

[Johnny Mapleleaf]

Strategic backpedlling.

There were only two remedies sought in the complaint. Declaring the MOA void was one of them. That takes care of 50% of the complaint, at least as far as the present is concerned. But that doesn't change the fact that it did exist and that it should never have existed in the first place.

[yycflyguy]

Strategic backpedlling.

There were only two remedies sought in the complaint. Declaring the MOA void was one of them. That takes care of 50% of the complaint, at least as far as the present is concerned. But that doesn't change the fact that it did exist and that it should never have existed in the first place.

I don't follow.

Flypast60 supporters have always asked to see a copy of the MOA and it wasn't available. Now that it has been proclaimed null and void you are saying that it should never have existed. Which is it?

Wasn't the phantom MOA part of the unions attempt to placate the litigants and perhaps mitigate the "damages" that are being claimed? ACPA has always claimed that YYZ EMJ FO positions were always available for V&K after last summers ruling but it was an unacceptable "demotion" for the plaintiffs, hence the delay in being re-instated at 777 positions.

Over the past 6 months 65 pilots have retired. The average years of service for those 65 is 34.49 years. Some were lucky enough to have 40 years of service with the company meaning they were hired at the age of 20. Even the "average" retiree would have been hired at 25 and had a full career with AC. They enjoyed the golden days of formula salary before CCAA and were probably senior enough that the merger had little or no effect on their position. Fast forward 30 years. The average age of new hires at AC is now around 35 (can't remember where I read that) meaning less than 25 years to make hay while the sun shines.

[Rockie]

V and K asked repeatedly for the MOU and neither the union or company would give it to them even though it specifically applied to them. The CIRB also asked for it and was similarly refused by the union and company. Finally the CIRB called them on it and said cough it up or explain in writing within a day or two why they are refusing to present evidence subject to a DFR complaint. They relented and coughed it up at that point. It begs the question why they were reluctant to produce it in the first place if they didn't think they did anything wrong.

The part that should concern you yycflyguy is that the union isolated and changed the working conditions for two Air Canada pilots without telling the membership, the two guys involved or putting it to any kind of vote. Unions aren't supposed to do that, yet they did. That's why there is a DFR in process right now.

The fact that they rescinded the MOU does not negate the fact they colluded with the company to change the working conditions of two people they are required to represent. That is so against labour law it's astounding that they would even think it. If they are permitted to get away with it this time, next time it may be you being unfairly treated.

[Understated]

Wasn't the phantom MOA part of the unions attempt to placate the litigants and perhaps mitigate the "damages" that are being claimed?

The MOA was never a phantom agreement; it was a signed agreement between the union and the employer that was apparently eventually produced to our legal counsel and to the CIRB. It was never made available to the pilots or ratified as required by the ACPA constitution.

Just because it wasn't made public does not mean that it did not exist. That agreement was never an attempt to placate anyone except the younger pilots. It was a disgusting attempt to create a third tier of pilots (after the 'position group') that had diminished wages, rights and working conditions in comparison to the remaining pilots in the bargaining unit, strictly on the basis of age discrimination. It was illegal from the get-go, and should never have been contemplated, let alone signed.

Could the fact that the CIRB is now formally dealing with the complaint regarding ACPA's actions have anything to do with ACPA now stating that the MOA is null and void?

ACPA has always claimed that YYZ EMJ FO positions were always available for V&K after last summers ruling but it was an unacceptable "demotion" for the plaintiffs, hence the delay in being re-instated at 777 positions.

It wasn’t a case of demotion. It was a case of refusing to recognize that the reason that they were being reinstated was because the law prohibits age discrimination. It was an attempt to get around the impact of the reinstatement order by making them subject to a second bout of age discrimination. We know the result of that.

[yycflyguy]

The part that should concern you yycflyguy is that the union isolated and changed the working conditions for two Air Canada pilots without telling the membership, the two guys involved or putting it to any kind of vote. Unions aren't supposed to do that, yet they did. That's why there is a DFR in process right now.

It seems to me that the company has changed the working conditions for the two names cannot be found on the latest equipment bid yet it is well known they have completed training and are presently flying (the bid was late as a result of dealing with flypast60, IMO).

The whole mess stinks.

[Rockie]

The whole mess stinks.

It sure does. This has been one big gong show from the beginning and shows no sign of improving.

[Raymond Hall]

It seems to me that the company has changed the working conditions for the two names cannot be found on the latest equipment bid yet it is well known they have completed training and are presently flying (the bid was late as a result of dealing with flypast60, IMO). The whole mess stinks.

They have not finished training, but they are well on the way. Neil Kelly passed his PPC last Saturday morning, and was scheduled for two LOFTs to bring him into line with the AQP program for the other pilots who have already completed that process. Line Indoc is the next phase, and he should finish by the end of the month.

George Vilven has not yet done his PPC, but it will be scheduled shortly. He has been training for almost 30 days straight, with only a couple of days off over the Christmas period, and is currently on a short break.

[Lost in Saigon]

Ray, Do you have any idea why their names did not appear on the 10-4 bid even though they do show on the monthly Eligibility List for December, January, and February?

[Raymond Hall]

Do you have any idea why their names did not appear on the 10-4 bid even though they do show on the monthly Eligibility List for December, January, and February?

No. Nobody has raised the issue with me before now, and it really isn't relevant to the issues that I am responsible for dealing with at the moment, which, by the way, are increasing, not decreasing. As you probably know, I have been almost totally excommunicated and alienated from the internal operations.

Your question is legitimate, and you might raise it with one of the ACPA reps, in order to get a proper answer.

[Dockjock]

How is Air Canada not in compliance with the law, today? And ACPA for that matter? Attempting to put aside the emotional aspects of this case, I summarize as follows (feel free to give your opinion, Mr.Hall)
-Complaint made to CHRT
-Non-judicial ruling issued
-In compliance with ruling, complainants reinstated
-Federal court judicial review of CHRT decision
-Awaiting results of judicial review

I fail to see where the respondents acted irresponsibly. There is a process, and it is being followed. I've seen it written a few times but my understanding is that we are not offside with the law, as of yet. When the law changes, we'll change. Simple (but not easy).