thwaites decision

[massey308]

i have heard it is out?
does anyone have the link.

[Raymond Hall]

It has not been released yet, and there has been no indication from the Tribunal as to when it will be released.

[Norwegianwood]

It has not been released yet, and there has been no indication from the Tribunal as to when it will be released.

IF ever, maybe Sinclair has writers cramp...........

[SilentMajority]

Apparently in February, after the release of the Federal Court decision, member Sinclair wrote to the parties involved and asked to be released from issuing the Thwaites Decision. The reason being.... the Federal Court had spoken and that his decision was no longer necessary. That was 6 months ago.

This would mark the 2nd time that member Sinclair has asked to be removed from this file. The first ( November 2010?) involved a potential conflict of interest due to his son taking a position with Air Canada's legal firm.

Why is he avoiding this decision.....19 months and counting?

[Raymond Hall]

Apparently in February, after the release of the Federal Court decision, member Sinclair wrote to the parties involved and asked to be released from issuing the Thwaites Decision. The reason being.... the Federal Court had spoken and that his decision was no longer necessary. That was 6 months ago. This would mark the 2nd time that member Sinclair has asked to be removed from this file. The first ( November 2010?) involved a potential conflict of interest due to his son taking a position with Air Canada's legal firm.

Wrong, and wrong. Please do us all a favour--check your sources before publishing statements that are completely in error.

[SilentMajority]

It actually came from a very good source....which part is incorrect?

[Raymond Hall]

....which part is incorrect?

Every part is incorrect. The closest the assertion comes beign close to accurate is the 19 months part. It has actually been just over 18 months since the hearing closed.

Members of Tribunals do not ask to be removed from files after hearings close. They have the sole jurisdiction to render the decision on the completed hearing. In this case, the hearing involved legal issues that were not at all mooted out by the Federal Court decision. In any event, even if they were, the Tribunal would have to render its decision on them.

As I explained in another thread in this Forum, the issue of the potential conflict of interest with Mr. Sinclair's son was properly raised before all of the parties to the proceeding by Mr. Sinclair in the form of a question in advance of his son joining the law firm that represented Air Canada in this proceeding. He alerted everyone to the forthcoming potential conflict and sought direction of the parties on their preferred course of action, given the impending development. All of the parties, including the complainants made written submissions confirming that he should continue on the file and render his decision.

Even if your "source" is credible, his information is not. One of the principles of administrative law is that either everyone is informed of issues related to live proceedings before the courts and the tribunals, or no-one is. Nobody can "talk to the judge" or otherwise obtain any privileged or confidential information, as you suggest. If the Tribunal did not release the information, it does not exist, and your source is misinformed. The courts and the tribunals are fiercely protective of their independence and of their reputation, and this sort of breach would tend to bring the administration of justice into disrepute.

[SilentMajority]

So Raymond, Chair Sinclair did not approach the parties ( perhaps through the Tribunal) post the Federal Court Decision in February and indicate that he felt his decision on Thwaites was no longer necessary.

If this is not correct ....then I stand corrected.

[Raymond Hall]

So Raymond, Chair Sinclair did not approach the parties ( perhaps through the Tribunal) post the Federal Court Decision in February and indicate that he felt his decision on Thwaites was no longer necessary.

He did not. We have not heard from him since his original letter conveyed to us by the Tribunal in late October of last year, in which he asked the parties for directions.

In any event, it would be totally inappropriate for him to do so. The Tribunal has its own jurisdiction, and as I said above, there are critical questions that must be answered in the context of the Thwaites hearing, regardless of any Federal Court decision. The two main issues dealt with there were "normal age of retirement" and BFOR. The normal age of retirement issue was dealt with differently than in the VK hearing as a result of the Federal Court setting out the proper parameters for the choice of the comparator group, a completely different set of parameters to the normal age of retirement comparator group used in the VK hearing. The answer to that question, still much needed, will be provided in the decision when it is eventually rendered.

BFOR is an issue that must be assessed on the basis of the evidence in each specific case, due to the need to assess the employer's ability to accommodate individuals, and due to the existence of different facts in each case. For example, one issue that distinguished the Thwaites evidence was the introduction into evidence of the ICAO clarification on the Over-Under Rule with respect to augmented crews.

Another issue was the application the assessment of Air Canada's scheduling models in consideration of the augmention factor. Completely different evidence from Vilven-Kelly.

Aside from that fact, the Tribunal, within its own jurisdiction, is required to complete the hearings that it commences. It would be inappropriate to do otherwise.

[Raymond Hall]

We have just been advised by the CHRT that the Thwaites decision will be released tomorrow morning, August 10th, at 9:30 ET.

[massey308]

do we have a link yet?

[Norwegianwood]

do we have a link yet?

Case dismissed! On to yet another JR...........

[The Raven]

Everyone hates a gloater, but....."Ha Ha Ha"

[TyrellCorp]

It seems reason prevails.

[Lost in Saigon]

Read the entire decision. You won't be gloating anymore.


[343] If the essence of what Air Canada pilots do is flying aircraft of varying sizes and types,
transporting passengers to both domestic and international destinations, it is difficult to see how
the age of the pilot bears any relationship to the performance of the job.

[345] As to the second step of Meiorin, I do not question that the age 60 rule was adopted with
an honest and good faith belief. But if it was not adopted for a purpose connected to the
performance of the job, it cannot be necessary for the fulfillment of that work-related purpose.

[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.

[400] It is true that terminating the age 60 retirement rule would have a disproportionate impact
on the younger pilots. There is also no question that the Complainants during their careers at Air
Canada accepted and took the benefits of the very rule that they now seek to overturn. But
acquiescence to the rule should not disentitle the Complainants from asserting their rights under
the CHRA to be free from discrimination. The clean hands principle is not a mitigating factor at
least for the issue of liability.

[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.

[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

[The Raven]

Lost in Saigon,

The reason I am gloating is because I was talking to one of the Complainants a few months ago. I won't say who he is but he is known to fly a 'turbo-beaver'. He admitted to me that he didn't really want to come back to Air Canada. He said he had a good long career at Air Canada and was happy to move on to other ventures. He was hoping that Air Canada would pay off all the Complainants and he wanted to be in line for a hand-out if they did.

Pretty greedy, in my opinion.

[Rockie]

One of the primary motivators of those fighting this change is their personal dislike of the people challenging mandatory retirement. Understandable in some cases, but far reaching policy like this cannot be decided on something as insignificant and petty as that now can it?

This ruling is curious. On the one hand it entirely rejects the BFOR argument of Air Canada's slamming that door in their face, but it upholds the "normal age of retirement" argument. This despite the fact the courts have rejected it, and the government is in the process of removing the exemption altogether from the act.

Given past court treatment of the exemption and the government's intentions wrt the act, I don't see much for ACPA to be happy about knowing this will obviously go to a JR. The spin they put on it will be interesting.

[massey308]

the spin on this is simple.......the ruling was contridictary on purpose. he was inviting an appeal as he clearly wasnt comfortable making a precedent setting ruling with his name attatched to it. make it vague, one that you can drive a truck through and someone else, preferbly a group or people can rule on it.

[SilentMajority]

the spin on this is simple.......the ruling was contridictary on purpose. he was inviting an appeal as he clearly wasnt comfortable making a precedent setting ruling with his name attatched to it. make it vague, one that you can drive a truck through and someone else, preferbly a group or people can rule on it.

Massey308....you have hit the proverbial nail...... squarely on the head. This is his best solution to his own dilemma....whatever that dilemma might be.

[Mechanic787]

Two things in this decision stand out for me.

First, the BFOR decision is almost spot on. Almost. I believe that the Tribunal got it right by finding that ACPA failed all three of the Meiorin steps. Not sure about the statutory interpretation aspect. Re Air Canada's BFOR argument, it got it all correct. Speculation is not evidence. Air Canada's evidence re the BFOR issue was almost entirely based on assumptions that bore little relation to reality, and the Tribunal was able to nail that weakness cold. The last two sentences in Paragraph [427] sum it up nicely: "Maybe in the future this could be the situation. But that is speculation."

BFOR, as an issue, is now dead. So much for the previous BFOR decision. This one is well-reasoned and completely within the parameters of the SCC requirements. The previous one was unreasoned and completely outside of the SCC requirements. Two Tribunal decisions within one month on the same issue between essentially the same parties. One got it totally wrong, and the other got it almost totally correct. Does the Tribunal's left hand know what the Tribunal's right hand is doing?

Second and more problematic in this decision is the choice of which carriers are included in the comparator group.

How is it that the Tribunal in this decision could arrive at a determination, interpreting the Court's words in the 2009 decision, that airlines that the Court specifically included in the comparator group in that decision, namely WestJet, Air Transat, and Skyservice, are not included in the comparator group in this decision because they don't meet the Court's unchanged criteria, but that a carrier like Air Tindi (with fewer than 75 pilots) is in the comparator group because it does meet the Court's criteria? There is likely more to this than meets the eye. The Tribunal must have had some reason for deciding the issue in such a way as to flagrantly disregard, or worse, override the previous decision of the Court.

My understanding of the human rights jurisprudence is that rights are to be construed broadly and that defences and exceptions are to be construed narrowly, with any doubt resolving in favour of the complainants, not the other way around.

[Johnny Mapleleaf]

http://www.ottawacitizen.com/business/T ... story.html

[Bede]

From Ottawa Citizen:

"The Charter issue wasn’t argued at the tribunal hearing, said Raymond Hall, the lawyer for most of the pilots, because it would have been moot had his clients had won their case on its merits. Now that the tribunal has ruled against them, Hall said, it’s obliged to hear arguments on the Charter issue."

Is this true? They didn't make charter submissions because it would have been moot had the tribunal ruled in their favour on non-charter issues? Sorry, but doesn't the court, or in this case tribunal, decide whether to address charter issues depending on the success of non-charter submissions.

Usually you start with very broad submissions and narrow the arguments as the case works through the appeal process, not the other way around.

It is difficult to argue that a tribunal erred when an issue was not even submitted.

[MackTheKnife]

From Ottawa Citizen:

"The Charter issue wasn’t argued at the tribunal hearing, said Raymond Hall, the lawyer for most of the pilots, because it would have been moot had his clients had won their case on its merits. Now that the tribunal has ruled against them, Hall said, it’s obliged to hear arguments on the Charter issue."

Is this true? They didn't make charter submissions because it would have been moot had the tribunal ruled in their favour on non-charter issues? Sorry, but doesn't the court, or in this case tribunal, decide whether to address charter issues depending on the success of non-charter submissions.

Usually you start with very broad submissions and narrow the arguments as the case works through the appeal process, not the other way around.

It is difficult to argue that a tribunal erred when an issue was not even submitted.

There was prior agreement of all the parties to defer the argument of the constitutional issue until after the rendering of the Paragraph 15(1)(c) decision which Sinclair seemed to forget about or discard for whatever reason.

For somone of Sinclair's standing to make such a glaring mistake, one can only assume (a) he made a mistake or (2) he wanted it to be controversial.

Decisions are normally rendered in 3 months. This one took over 20. IMO there is a lot more (politically) going on here than meets the eye.

[Raymond Hall]

Usually you start with very broad submissions and narrow the arguments as the case works through the appeal process, not the other way around. It is difficult to argue that a tribunal erred when an issue was not even submitted.

Here are the facts. No matter how you cut it, legal proceedings are expensive. In the Vilven-Kelly hearing, we spent days hearing expert witness testimony and ultimately arguing the Charter issues. Calculate the costs of expert witness fees, counsel fees, and the cost to the Tribunal of holding days of hearings on an issue that could be moot, and things come into a better perspective.

Prior to the hearing, therefore, all counsel and the Tribunal agreed to defer the argument on the Charter issue until after the decision was rendered on the merits of Paragraph 15(1)(c) itself, so as to not waste resources that might not be required. If the Complainants were successful on the merits, the Charter argument evidence and argument would not have been required. So the agreement was to not spend the resources arguing the issue unless and until it was necessary to do so. Namely, after yesterday’s decision was rendered.

That agreement was made in September, 2009, prior to the commencement of the hearing on October 5, 2009. Almost two years ago. The hearing concluded on January 21, 2010, and the Chair, almost 19 months later when he rendered his decision, must have simply forgotten the procedural steps that the parties and the Tribunal agreed to prior to the commencement of the hearing. As a result, in the last paragraph of his decision, he states that the complaints are dismissed. But the hearing was not yet complete, so he could not dismiss the complaints, at least not yet. A simple error that is easily corrected.

We all make mistakes. The question now is, what are the implications of the decision and where do we go from here. We have written to all counsel seeking consent to ask the Tribunal to simply continue the hearing, in the circumstances of this mistaken conclusion. One way or another, by agreement or otherwise, I would expect, the hearing will continue. Those are the bumps and grinds of litigation, and so the saga continues.

[Bede]

OK, that makes sense. Thanks for the clarification. So was this decision just to be an interim one, and a declaration made that a hearing of the charter issue would me heard?