Federal Court Judicial Review Hearing Completed

[Raymond Hall]

The Federal Court judicial review of the August, 2009 Vilven-Kelly Tribunal decision completed shortly after noon today, in Ottawa, after 2 1/2 days of hearing. The judge reserved her decision, of course, but promised to do her best to get the decision written and released as soon as possible.

The last JR decision on the same subject matter, different points of law, completed in November, 2008, and the decision was released in March, 2009. We expect this decision to be rendered in January or early February. There are two reasons for the shorter time frame, in our expectation. First, the judge hearing the case is the same judge that heard the previous Vilven-Kelly case, and as a result is already totally conversant with the factual situation. Second, there are fewer legal points in issue in this hearing.

What will be decided? Both Air Canada and ACPA sought an order quashing the Tribunal's previous decision. If that order is issued, the Tribunal's finding that the exemption clause under the Canadian Human Rights Act that permits mandatory retirement violates the Charter of Rights and Freedoms could be struck down. If that occurs, the complainants will have lost their complaint before the Tribunal, and their current employment could be terminated.

The complainants are seeking two remedies. First, an order that the application for judicial review be quashed (i.e. uphold the Tribunal's findings). Second, a declaration that the exemption clause under the Canadian Human Rights Act that permits mandatory retirement be declared unconstitutional. If the court grants that declaration, not only will the two pilots remain employed, but the ability of (almost) any employer in the federal jurisdiction to terminate any employee on the basis of a fixed age will be made illegal. There will still be two types of exceptions, one for workers whose job contains a bona fide occupational requirement (e.g. firefighters), and another for government employees whose employment is governed by separate federal statutes, such as the federal civil service, judges, and the military.

This will mean that Air Canada will no longer be able impose mandatory retirement on any of its employees based on a fixed age of retirement, including pilots at age 60, and all other employees at age 65, effective the date of the release of the decision, or at after some short date later, at the discretion of the judge.

[cdnpilot77]

The complainants are seeking two remedies. First, an order that the application for judicial review be quashed (i.e. uphold the Tribunal's findings). Second, a declaration that the exemption clause under the Canadian Human Rights Act that permits mandatory retirement be declared unconstitutional. If the court grants that declaration, not only will the two pilots remain employed, but the ability of (almost) any employer in the federal jurisdiction to terminate any employee on the basis of a fixed age will be made illegal.

Well, let's just hope that doesn't happen and us lower timers can move ahead in this industry rather than the selfish pricks at the top of the scale continuing to get richer. Hey Ray, I am curious as to why you didn't start this fight when you were 25-30 years old?

[Raymond Hall]

Hey Ray, I am curious as to why you didn't start this fight when you were 25-30 years old?

Age discrimination was not something that anyone could do anything about, until well after I turned 30. The Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms were enacted in 1978 and 1982, respectively, with the "equality provisions" of the Charter, the provisions that are responsible for the reinstatement of both George Vilven and Neil Kelly, not coming into effect into 1985.

That legislation, by the way, preceded the insertion into the Air Canada--ACPA collective agreement of the age 60 mandatory retirement provision, which, incidentally, was done without putting the issue to a vote or even giving pilots of the day notice that it was being inserted.

The point being, everyone here today knew or ought to have known that the age 60 limitation under the collective agreement was made subordinate to the legislation that their own members of Parliament had enacted to supersede our collective bargaining rights with respect to age limits.

[aviator2010]

I know this will probibly be an unpopular opinion here but from an economic stanpoint. I don't want to be the generation that has to pay for the baby boomers to retire at age 60. If you could fly till you die and not be a burden on CCP and old age security that would work wonderfully for me.

[Brick Head]

The complainants are seeking two remedies. First, an order that the application for judicial review be quashed (i.e. uphold the Tribunal's findings). Second, a declaration that the exemption clause under the Canadian Human Rights Act that permits mandatory retirement be declared unconstitutional.

Raymond,

You omitted possibility number three. Judicial review quashed and not granting a declaration that mandatory retirement is unconstitutional. That the Federal Court accepts exactly what the Tribunal said. This ruling applies to two people based on the facts of this specific case.

[Brick Head]

The point being, everyone here today knew or ought to have known that the age 60 limitation under the collective agreement was made subordinate to the legislation that their own members of Parliament had enacted to supersede our collective bargaining rights with respect to age limits.

Raymond,

You know full well that has not been the position of the supreme court. In fact, we don't know if that opinion has even changed do we?

McKinney v. University of Guelph [1990] 3 SCR 229 at paragraph 426:

The current state of affairs in the country, absent a ruling from this court that mandatory retirement is constitutionally impermissible, is the following. The federal government and several provinces have legislated against it. Others have declined to do so. These decisions have been made by means of the customary democratic process and no doubt this process will continue unless arrested by a decision of this Court. Furthermore, employers and employees through the collective bargaining process can determine for themselves whether there should be a mandatory retirement age and what it should be. They have done so in the past, and the position taken by organized labour on this issue indicates that they wish this process to continue. A ruling that mandatory retirement is constitutionally invalid would impose on the whole country a regime not forged through the democratic process but by the heavy hand of the law. Ironically, the Charter would be used to restrict the freedom of many in order to promote the interests of the few. While some limitation on the rights of others is inherent in recognizing the rights and freedoms of individuals the nature and extent of the limitation, in this case, would be quite unwarranted. I would therefore dispose of the appeal as proposed by La Forest J.


At last heard? The Supreme court completely contradicts your position. According to them Parliament has legislated against mandatory retirement being constitutionally impermissible.

[cdnpilot77]

the provisions that are responsible for the reinstatement of both George Vilven and Neil Kelly, not coming into effect into 1985

So maybe I am just ignorant on this issue, but why then did you not pick up this fight when these provisions came in in 1985 when presumably the now affected people were in their 30's or 40's and ascending through the ranks at Air Canada with minimal resistance and the entire pilot community felt the movements of big red and were able to advance as well?

[TyrellCorp]

why then did you not pick up this fight when these provisions came in in 1985 when presumably the now affected people were in their 30's or 40's and ascending through the ranks at Air Canada with minimal resistance and the entire pilot community felt the movements of big red and were able to advance as well?

Oh because that would have most certainly hurt his advancement no?

[Raymond Hall]

why then did you not pick up this fight when these provisions came in in 1985 when presumably the now affected people were in their 30's or 40's and ascending through the ranks at Air Canada with minimal resistance and the entire pilot community felt the movements of big red and were able to advance as well?

To use your terminology, I "picked up this fight" when it became clear to me that the "normal age of retirement" exemption under the statute could no longer be used to sustain the age 60 mandatory retirement provision of the collective agreement. 2005, after most, if not all Canadian airlines, except Air Canada, had moved off age 60. The writing was on the wall, and I began to openly advocate ACPA getting in front of the issue to adapt to the reality that the change was inevitable, and that the earlier we moved toward the change, while at the same time taking steps to mitigate the adverse affects on the junior pilots, the better off we would be.

Response: tolerance, at first, gave way to slander, then to ostracizing me, then to open contempt or disgust. Most still don't believe that what I predicted in 2005 and 2006 would happen, has actually happened or is about to happen. Yet I haven't been very far off, except for two errors. First, I underestimated the effort and hundreds of thousands of dollars of expense that ACPA and Air Canada would put into defending an indefensible position, while at the same time opening themselves up to monstrous potential liability. Second, I underestimated the amount of time that it would take for the predicted effects to take place.

[Brick Head]

Response: tolerance, at first, gave way to slander, then to ostracizing me, then to open contempt or disgust.

And why is that do you think? I assure you it is not your desire to amend the laws surrounding mandatory retirement that have caused this. It has nothing to do with ageism. No one would care how long individuals wanted to work so long as that desire did not hurt others.

It has everything to do with how your version of how this should be implemented, and the harm it will inflict on others that has directed this animosity at you.

The Sup court explained best why you are getting the reaction you are. I'll leave it to them.

A ruling that mandatory retirement is constitutionally invalid would impose on the whole country a regime not forged through the democratic process but by the heavy hand of the law. Ironically, the Charter would be used to restrict the freedom of many in order to promote the interests of the few. While some limitation on the rights of others is inherent in recognizing the rights and freedoms of individuals the nature and extent of the limitation, in this case, would be quite unwarranted.

[flytdeck]

It occurs to me that Raymond undertook this challenge long before personal attacks were directed at him. Not a valid statement that Raymond is proceeding for "revenge" in fact, it appears that making such a statement is being very vindictive.

The number of people contesting the age 60 maximum has increased dramatically over the years. Is this an anomaly with the current crop of senior pilots, or a trend that is likely to be repeated as pilots approach retirement?

Rather than expending energy vilifying Raymond, perhaps the energy would be better directed at finding solutions to mitigate a change in the maximum age in the event that the challenge is successful. Not any easy task, but not impossible. Solutions must be acceptable to a court or the entire process will drag on.

Would there be some information available as to our personal exposure in the event that the litigants are successful in being awarded damages? Would like an estimate from ACPA in the event I should be putting some savings away as insurance. Has there been any discussion on how damages would be paid? Will this be an equal amount divided among the membership, or a percentage based on wages? It would appear that the senior pilots may be risking the most if the latter method is chosen and it would be in the memberships' best interest to have the payments as large as possible complete paying the damages in the shortest order. This is a contentious topic but we should all be concerned as to our exposure.

There has been some comments to "continue the fight at any cost". The question then arises, cost to who? We would be in a better position if we know the long and short-term risks. Is this a costly delaying tactic for an untenable position, or will be be able to eliminate any challenge to age 60?

There is no point in attacking Raymond for following through on his beliefs. He has more integrity (and patience) than most. It is the ISSUES that are contentious and what should be addressed. Personal attacks are just a self-indulgent waste of bandwidth.

[cdnpilot77]

.To use your terminology, I "picked up this fight" when it became clear to me that the "normal age of retirement" exemption under the statute could no longer be used to sustain the age 60 mandatory retirement provision of the collective agreement. 2005, after most, if not all Canadian airlines, except Air Canada, had moved off age 60.

Was this close to your 60th birthday by chance? It all just seems way too coincidental. I admire your determination and sticking to your beliefs but they seem very self involved. You can't say your work has been to help me, the young low timer because in no way does this help me advance my career.

[Inverted2]

Well I will put in my 2 cents and I while I do agree that the 60 thing had to catch up to the rest of the industry where it's 65. But where to you draw the line? I dont think the general public would want to get into an airline flown by someone over 70. You can argue as long as they maintain a medical and PPC, they are ok but eventually age catches up with us all. Why not make it 65? I just hope it doesn't take an accident or a few single pilot landings to prove my point. Sure you can do a lot of things past 65 but flying a jet with 300 people through the air at 500mph might not be the most ideal thing.

[Raymond Hall]

It has nothing to do with ageism. No one would care how long individuals wanted to work so long as that desire did not hurt others. It has everything to do with how your version of how this should be implemented, and the harm it will inflict on others that has directed this animosity at you.

For what it’s worth, sir, it has everything to do with ageism, and Air Canada pilots' concept of themselves as a group that is "special" in law, immune to the reality of the Canadian legal system, and under some dubious misapprehension that the invalidation or abolition of the mandatory retirement exemption in the statute opens up some type of negotiation process for alternatives that lead to equivalent forms of discrimination under a different name.

Let me say, first of all, something about the separation of the persons from the issues. I did not start this thread in order that we might continue the previous attacks against the messengers rather than dealing with the message. It was that line of discussion that got the threads killed here a few months ago.

In case anybody hasn’t noticed, none of the attacks has had any impact whatsoever on the reality of our collective situation, save to take our focus off the real issue, namely that the status quo ante is history, and that everyone needs to get their mind around where we are going, and away from where we have been.

I have done my best to be forthright and honest about my considered views of the law and the facts. And I have stuck around to take the pot shots of those who, if you will excuse my somewhat paternalistic wording, “just don’t seem to get it.”

Look at the current situation. Air Canada had to have its insurer reprogram its computers this week in order to accommodate the first employees over age 65. There is a quarter of a million dollar liability sitting in the In Basket of Air Canada and ACPA as payment of the Tribunal damage award to the two pilots reinstated, with almost 150 more pilots in the queue, waiting for their day in court.

The Tribunal is about to release the Thwaites liability decision, which if it is in favour of the complainants, will essentially end the age 60 rule for pilots, simply because it is almost impossible to overturn on judicial review a finding of fact by a Tribunal, namely, Air Canada does not have a majority of the airline pilots in the country, so age 60 is no longer the normal age of retirement, and the exemption under the Canadian Human Rights Act that permits mandatory retirement is no longer valid.

The Federal Court just completed a hearing that could very well end in a declaration that the exemption clause is unconstitutional, which would mean mandatory retirement for the tens of thousands of employees in the federal sector, including all Air Canada employees, is no longer permissible.

And Parliament is on the verge of passing an amendment to repeal the exemption clause in any event.

Now, this is not Las Vegas. But if ACPA expects that the status quo can be maintained, that means that none of the three events above will occur anytime soon, or that if either the first of second do occur, the decisions can be overturned on appeal. Fat chance.

So, this is what I was saying in 2005. And 2006. And 2007 etc. etc. etc.

Now, let me say a few words about the statement quoted above, “It has everything to do with how your version of how this should be implemented, and the harm it will inflict on others that has directed this animosity at you.”

If the mandatory retirement exemption clause is found to be not satisfied (Thwaites) or unconstitutional (Federal Court) or is repealed (Parliament), does anybody seriously believe that we are going to put the reinstated pilots back on the Position Assignment List as Embraer First Officers with pay comprised of a blend of wages and pension benefits? If so, swallow hard, boys. Reality will be a bitter pill.

The “harm that it will inflict on others” can be nothing other than the harm that I warned about in 2005, 2006, 2007 etc. etc. etc. Why? Because it is not I that inflicted the harm. It is ACPA, that refused to realize that the law is the law is the law. I did not do this. Parliament made the laws and almost everyone ignored them, with an almost irreverent sense of entitlement—laws are made for others, not us. It is a collective bargaining right. Right?

So how would you have had me do things differently, then, assuming that some form of change is inescapable? Should I have gone to Parliament and pleaded with them to change the statute, because Air Canada pilots are a special class unto themselves? Should I have gone to ACPA meetings and attempted to pass motions to foster change internally (dream on) while someone else marched this through the legal hearings?

Should I have done nothing, while workers from other unions and other companies marched this through the legal process (as they are indeed doing) at the Tribunal and in the courts to arrive at the same result?

Or should I have joined ACPA’s team of deniers of reality, and helped them with my legal skills delay, but not fend off, millions of dollars in damage payments to their own members who correctly point out that the mandatory retirement provision of the collective agreement violates the law?

[Raymond Hall]

McKinney v. University of Guelph [1990] 3 SCR 229... The Supreme court completely contradicts your position. According to them Parliament has legislated against mandatory retirement being constitutionally impermissible.

The Supreme Court has frequently referred to the Charter of Rights and Freedoms as a "living" document. In McKinney, the Court made specific reference to the need to have the interpretations of the constitution evolve over time, so that real data on the real world might guide the Court in its analysis of the contextual matters regarding this living document.

The equality provisions of the Charter came into effect in 1985. Twenty-five years ago. The McKinney decision was released only five years into that twenty-five year period. A lot has changed since 1990. Not only that, but the decision was by no means unanimous, and the law on which it was based was not the Canadian Human Rights Act, but rather the Ontario statute.

So don't be too surprised, if our case goes to the Supreme Court, that the judges might view the issue of mandatory retirement differently today, than did the previous judges twenty years ago, when the Charter was fairly new, and when the Canadian mosaic had significantly different texture.

[yyz monkey]

So don't be too surprised, if our case goes to the Supreme Court, that the judges might view the issue of mandatory retirement differently today, than did the previous judges twenty years ago, when the Charter was fairly new, and when the Canadian mosaic had significantly different texture.

The same SCJs who are subject to mandatory retirement themselves?

[Lost in Saigon]

The same SCJs who are subject to mandatory retirement themselves?

Yes, the very same SCJ's who retire at age 75. I doubt they will have much trouble ruling that airline pilots should not be forced to retire at age 60.

[bcflyer]

The same SCJs who are subject to mandatory retirement themselves?

Yes, the very same SCJ's who retire at age 75. I doubt they will have much trouble ruling that airline pilots should not be forced to retire at age 60.

Ahhh but here's the rub.. The flypast60 crowd are saying that mandatory retirement at ANY age is discrimination. Not just 60. Could be difficult for a SCJ to rule that mandatory retirement is illegal when they are subject to the exact same thing....

[Raymond Hall]

The same SCJs who are subject to mandatory retirement themselves?

Yes, those who are now following in the footsteps of former Supreme Court of Canada Justice Corey, for example, who, after participating in the 5:2 majority side of the McKinney decision (5 men on the majority side, 2 women on the dissent side, both of whom issued very strong dissents) upholding in 1990 the mandatory retirement of university professors, and who himself was then mandatorily retired at age 75 in October, 2000, accepted the job as the Chancellor of York University for a four year term in 2004, at age 79, and who remarried at age 82. Too old to be a university professor at age 65, but not too old to be the Chancellor of the university from age 79 to age 83.

Or those who follow in the footsteps of Justice La Forest, the principal author of the McKinney decision who after retiring was appointed Chair of the Canadian Human Rights Act Review Panel that published a report in June, 2000, that made the following recommendation under his signature:

132. We recommend that there be no blanket defences for mandatory retirement.

Or those who follow in the footsteps of another distinguished Supreme Court of Canada judge, Chief Justice Antonio Lamer, who is quoted in a December 20, 2003 Toronto Star article (following quotes of then Prime Minister Martin denouncing the practice of mandatory retirement):

“And just last month former Supreme Court chief justice Antonio Lamer, himself a highly active senior citizen, said that the mandatory retirement ruling was an anachronistic decision that should probably be reconsidered by the court.”

Yes, those same SCJs.

[backon3]

Ray et al, I feel sad for you. You should be enjoying life. Instead this occupies your time. Sad... really sad.

[Brick Head]

So don't be too surprised, if our case goes to the Supreme Court, that the judges might view the issue of mandatory retirement differently today, than did the previous judges twenty years ago, when the Charter was fairly new, and when the Canadian mosaic had significantly different texture.

Surprised? Of course not. Working to an older age than present, or working to when individuals choose to retire is on its way.

The irony here is not that you are using the charter in an attempt to change the laws regarding mandatory retirement at the federal level. The irony is that you are attempting to use the charter to take from one age group, and give to another age group, on the basis that to not do so, is ageism.

The issue of mandatory retirement and the issue of a unions right to collectively bargain are completely separate issues despite your rhetoric to the contrary. You do not have a human right to take that which does not belong to you, just because you fit a specific age group. Making sure the collective pie is distributed as intended has nothing to do with ageism. ACPA fighting to make sure a unions right to collectively bargain who gets what when, versus individuals deciding for themselves what portion of the collective pie they will take, is not ageism.

At the end of the day the charter is about equality. Not about using it as a means to over ride the intended distribution of the collective bargaining process.

This is exactly why the Provinces that have abolished mandatory retirement have gone the direction they have with alternatives. You are becoming the poster boy for why mandatory retirement has been viewed for so many years as a necessary infringement on the charter. Without it, unions can not control distribution because people won't fulfill their duty to their peers if not forced to. They feel entitled to take what they want, at the expense of others.

Again. The Tribunal did not say a unions ability to collectively bargain, and to distribute the collective pie as they see fit, is now out the window. Quite the contrary in fact. They said use a method other than mandatory retirement.

And sir. That is what we intend to do.

[Raymond Hall]

The Tribunal did not say a unions ability to collectively bargain, and to distribute the collective pie as they see fit, is now out the window. Quite the contrary in fact. They said use a method other than mandatory retirement. And sir. That is what we intend to do.

Am I to read from this that you are of the view that a revised MOA is the preferred option to deal with the issue? Are you still intent on creating a third tier of pilots? First-tier forumla pay pilots, then second-tier Position Group pilots, then third-tier, second-class, position assignment-restricted reinstated pilots?

Should I add your name back onto my list of pilots that "just don't get it"?

[Lost in Saigon]

Should I add your name back onto my list of pilots that "just don't get it"?

It's really not his fault. He (and many others) have been brainwashed by ACPA into believing that they can force the over 60 pilots into accepting some kind of diminished pay and working conditions that will hopefully dissuade them from coming back, or staying after 60.

[Raymond Hall]

You do not have a human right to take that which does not belong to you, just because you fit a specific age group.

You have blended a remarkable sense of entitlement with a sense of ageism, all in one line, while completely missing the message: it was Parliament that wrote the script.

We are only one group of the many, many groups of messengers, nothing more. If it wasn't we who brought this issue to the fore, it would have been others who are directly behind us, including the flight attendants, the sales agents, the baggage handlers, the longshoremen or some other group.

Neither the Canadian Human Rights Act, nor the Canadian Charter of Rights and Freedoms was drafted or enacted with the interests of Air Canada pilots and their own particularly skewed deferred compensation system in mind. It is not about me. It is not about Air Canada pilots. It is not even about deferred compensaton schemes. It is about understanding the impact of the federal law that governs all federal jurisdiction employees, unionized and non-unionized, and then working within its contraints, not denying them.

[Understated]

ACPA fighting to make sure a unions right to collectively bargain who gets what when, versus individuals deciding for themselves what portion of the collective pie they will take, is not ageism.

No? Sure sounds like it to me, especially as soon as you put the number "60" into the mix.The law says no discrimination on the basis of age. But you are saying that anyone over age 60 is not only taking from the collective pie, but is taking an unfair share of the collective pie. If that is not ageism, what would you call it? Would you rather express it in a different discriminatory term, for example, related to women, or negroes, or muslims, and suggesting that they are taking more than they deserve? What would be the difference, if they exercise their legal rights to acquire what you believe belongs to you? They, based on their inherent characteristic, are depriving you, based on your inherent characteristic, of what you feel is your own share of the collective pie. How can you say that anyone who has a specific endemic characteristic should be denied the equal rights under the collective agreement?

And did they decide to deprive you of your collective bargaining rights for the purpose of taking what is "yours"? Or did they simply assert the rights, out of their own volition, that they were given by Parliament?

The problem, it would appear to me, stems not from those who would attempt to exercise their legal rights to be free from discrimination, but from those who cannot recognize that these individuals have those rights. That means, YOU, sir.

One other point. You seem to be entirely focused on collective bargaining rights. I see nothing in the statute that mentions anything about collective bargaining. The federal jurisdiction affected by the mandatory retirement exemption comprises about 7% of the total labour force. Only about half of that, at best, is unionized. But you speak as though the statutory provision were made for your union's purposes only, conveniently ignoring others who come under the provisions in the statute who are largely non-unionized, including 100% of the employees in the finance industry and the majority of workers in the media and telcommunications industry.

It may come as a surprise to you, but the entire Canadian Armed Forces are also affected by that provision of the statute. What collective bargaining rights do you think that they have? What deferred compensation system do they have? What do you think that a court order declaring the section unconstitutional will do to their rights? Do they have a skewed deferred compensation system, as well?

Do you really think, therefore, that a Tribunal, a court or Parliament, is going to spend a lot of time deliberating your special interests, when it comes time to render a decision that will affect all of these other bodies? If so, you have a bigger problem than we expected.