Federal Court of Appeal Decison re Mandatory Retirement

[Raymond Hall]

This morning the Federal Court of Appeal released its decision in respect of ACPA's appeal of the Federal Court's February, 2011 decision upholding the Tribunal's 2009 decision that Paragraph 15(1)(c) of the Canadian Human Rights Act (the "normal age of retirement" exemption) violates Section 15 of the Charter and is not saved by Section 1 of the Charter.

The Federal Court of Appeal allowed the appeal and instructed the Tribunal to dismiss the Complaints.

Although this decision is a temporary set-back to all of those who are currently before the Tribunal awaiting decisions on their similar complaints, the critical implication in today's decision, may I suggest, is not the fact that the appeal was allowed, but the reasons that the appeal was allowed.

The Federal Court of Appeal stated that it (as well as the Federal Court and the Tribunal) were bound by the 1990 decision of the Supreme Court of Canada with respect to Ontario university professors whose mandatory retirement was found to be permissible in law in that the corresponding provision of the Ontario Human Rights Code was in violation of Section 15 of the Charter, but was saved by Section 1 of the Charter.

The Federal Court of Appeal in its decision today was emphatic that although the SCC in 1990 openly contemplated that the entire mandatory retirement issue Charter issue may be re-visited at a later date, it is only the SCC that can revisit that issue, not the lower courts or the Tribunal. And that is indeed what we now expect to happen.

I have posted a copy of the decision on the Fly Past 60 web site:

http://www.flypast60.com/Documents/2012FCA209.pdf

[Fanblade]

Raymond,

What is the likelihood a leave to appeal will be granted? The legislation your charter challenge has been based upon has already been repealed. Implimintatation just a few short months away.

How would you now be able to frame your challenge as a "question of public importance?"

I am curious.

Leave to Appeal

Most appeals are heard by the Court only if leave is first given. Leave to appeal is given by the Court if, in the opinion of the panel, the case involves a question of public importance or if it raises an important issue of law (or a combination of law and fact) that warrants consideration by the Court. The Court grants leave to appeal based on its assessment of the public importance of the legal issues raised in a given case. The Court thus has control over its docket and is able to supervise the growth and development of Canadian jurisprudence.

[bearinmind]

That was a very long, very complicated process that ended the way it started. Millions of dollars and years spent to get people back to work, that realy should not have been spent.

To all thoes involved, no disrespect intended. The industry still needs your knowlege, professionalism and experience. There are other positions for you as you transition into retirement. The industry also needs a place that we all collectivly say that maybe we should retire from this profession, as age does have an effect and most of us should move on. Maybe not all of us fit that standard, but all of us should just comply. My time will come and it will suck, but I will take some time, and adjust to the reality and accept that one persons end is anothers beginning.

The rules are now clear. Be proud of your legacy.

[Raymond Hall]

What is the likelihood a leave to appeal will be granted? The legislation your charter challenge has been based upon has already been repealed. Implimintatation just a few short months away. How would you now be able to frame your challenge as a "question of public importance?"

Those are questions and issues that we shall address in due course. Obviously we must believe that the issue is one that the SCC would be willing to hear--otherwise we would not be continuing. Suffice it to say at the moment that the issue involves more than just the federal jurisdiction and the Canadian Human Rights Act provision itself.

[Raymond Hall]

That was a very long, very complicated process that ended the way it started.

You should know by now that any conclusion that all of this litigation has finally come to an end is obviously premature.

As Yogi Berra once said, "It ain't over 'till it's over."

There are several issues yet to be resolved in this dispute, and the Complaints are not based exclusively on the Charter provision, regardless of its final determination, either here or before the Supreme Court of Canada, if it goes there. Today's decision does not change the fact that the potential liability remains in the millions of dollars and is continuing to grow with each new Complaint filed and with each passing day.

[sepia]

CLASSIC raymundo right there. Even when losing, NEVER ever forget to play the fear card. Yes despite losing here again, you're going to all lose your houses and owe me millions.

[Norwegianwood]

you're going to all lose your houses and owe me millions.

Why and what for, inquiring minds are waiting..............

[bearinmind]

Its tough to be civil about this lawsuit, I understand that the people affected truely beleived they should fight for this, however the this next contract will have the retirement age of 65 written in it based on this lawsuit and we will never get it back. This small group of people have forced everyone after them to work 5 more years than they needed to. The only winner is the executive that will make millions in bonuses for saving the pension. Its over, you have done enough damage, just enjoy your retirement.

I hope I am wrong about this contract, but I dont think I am.

[Norwegianwood]

I hope I am wrong about this contract, but I dont think I am.

Not wrong about the contract, wrong about who you blame for the age move up to 65! Maybe if you took your head out of the sand for a few minutes and did some serious research you would find that the Federal Government of Canada are the ones that changed the law based on years of research and applied it not only to an elite group of pilots at AC who though themselves above all others (WJ, Jazz, Air Transat etc., who had already gone to 65 before the law comes to pass in Dec) but to every federally regulated employee in the country.
It's that simple.........
NW