Update

Thursday, December 15^th, 2011

Bill C-13 received Royal Assent today. The Bill repeals Paragraph 15(1)(c) of the Canadian Human Rights Act, the mandatory retirement exemption to the general prohibition against age discriimination that has been in the Act since it became law in 1978. The repeal of the provision will come into force one year from today, on December 15, 2012.

The repeal of this provision marks a watershed event for the Fly Past 60 Coalition. Although we had very little impact, if any, on the government's decision to see things "our way," there is little doubt of two facts. First, as Victor Hugo once said, "All the forces in the world are not so powerful as an idea whose time has come..." . Well, this idea's time came some time ago. But it came.

Second, it was our Charter challenge that brought this issue in the federal sector to the fore. We gave the government the impetus of the judiciary to say, "this is the right thing to do." And they did. After many, many attempts, they finally did.

So, now, we have effectively created two segments of Air Canada pilots, which is a new challenge for us. There are those who will turn age 60 after December 1, 2012, who will elect to leave their employment at a date and in the circumstances of their own choosing. And there are those who cannot benefit from this legislative change, who have been or will still be forced to leave their employment prior to December 1, 2012, and will have to persuade the Tribunal and the Courts that their termination of employment is contrary to law.

That fight is not over.

Finally, there is one more fight before us. In our view, this last fight is not nearly as significant as the prior fights, but it is significant, nevertheless. That is, Air Canada is still refusing to recognize the law. It is still asserting that the termination of pilots' employment at age 60 is a bona fide occupational requirement, by reason of the ICAO restirictions on the operation of flight by pilots-in-command who are over age 60. That fight continues, and we shall have more to say on it in due course.

Wednesday, December 14^th, 2011

Bill C-13 received Third Reading and passage in the Senate yesterday afternoon, December 13th. It now awaits Royal Assent, which should be given within days, but in any event prior to the Christmas break of the current Parliamentary session. That means that mandatory retirement in the federal sector will be abolished one hear hence, when the repeal comes into force. Air Canada pilots who will turn 60 on or after December 1st, 2012 will therefore no longer be force-retired, unless Air Canada somehow is able to persuade the Tribunal and the courts that mandatory retirement for its pilots at age 60 is a bona fide occupational requirement. Tough job, on that score, when no other major airline in the world has any problem meeting the ICAO restrictions for pilots-in-command who are over age 60.

Wednesday, December 14^th, 2011

Bill C-13 received Third Reading and passage in the Senate yesterday afternoon, December 13th. It now awaits Royal Assent, which should be given within days, but in any event prior to the Christmas break of the current Parliamentary session. That means that mandatory retirement in the federal sector will be abolished one hear hence, when the repeal comes into force. Air Canada pilots who will turn 60 on or after December 1st, 2012 will therefore no longer be force-retired, unless Air Canada somehow is able to persuade the Tribunal and the courts that mandatory retirement for its pilots at age 60 is a bona fide occupational requirement. Tough job, on that score, when no other major airline in the world has any problem meeting the ICAO restrictions for pilots-in-command who are over age 60.

Wednesday, December 14^th, 2011

Bill C-13 received Third Reading and passage in the Senate yesterday afternoon, December 13th. It now awaits Royal Assent, which should be given within days, but in any event prior to the Christmas break of the current Parliamentary session. That means that mandatory retirement in the federal sector will be abolished one hear hence, when the repeal comes into force. Air Canada pilots who will turn 60 on or after December 1st, 2012 will therefore no longer be force-retired, unless Air Canada somehow is able to persuade the Tribunal and the courts that mandatory retirement for its pilots at age 60 is a bona fide occupational requirement. Tough job, on that score, when no other major airline in the world has any problem meeting the ICAO restrictions for pilots-in-command who are over age 60.

Yesterday's development marks a bit of an ironic milestone for the Fly Past 60 Coalition. Although it was our Charter challenge to the mandatory retirement exemption that intitially brought this critical public policy issue to the forefront, those of us who initiated that challenge must now continue our epic battle before the Tribunal and the courts to achieve the same result that now will be bestowed upon those who turn 60 on or after December 1, 2012. That is because the legislation is not retroactive.

However, the tide is indeed starting to turn. The beginning of the new year will see other signficant developments in the same vein, including, perhaps, a change in the Canada Industrial Relations Board's view of the union's behaviour, post February, 2011, when the Federal Court dismissed ACPA's judicial review of the Tribunal's Charter decision finding the mandatory retirement provision of the collective agreement to be no force and effect.

Tuesday, December 13^th, 2011

Correction to last evening's post. Our sources were in error. The debate on the Bill was adjourned late last evening, and will resume this afternoon. The session starts at 2 PM ET, and the debate on the Bill is expected to resume at approximately 3:30. It should finish shortly thereafter, depending upon the number of speakers.

Monday, December 12^th, 2011

16.3 Kg. That is the weight of the box of documents that we received from counsel for Air Canada this morning, in support of its judicial review application before the Federal Court in respect of the BFOR issue. That is not a surprise, despite the weight.

Correction from ealier post: Tonight the debate in the Senate on Bill C-13 was adjourned. It will finish tomorrow. Royal Assent, which should be given Wednesday. The implication of the Royal Assent is that effective one year from Wednesday, December 14, 2011, the repeal of the mandatory retirement exemption to the general prohibition against discrimination on the basis of age in the Canadian Human Rights Act will come into effect in the federal jurisdiction, affecting the career choices of over 800,000 people nationwide.

The upshot of this for Air Canada and all for all other federally regulated employers is that effective December 13, 2012 they will no longer be able to terminate the employment of any person on the basis of an arbitrary age of the employer's and/or the union's choosing.

We take some small degree of satisfacton in respect of this change, not because we had anything to do with its genesis. We did not. But because we openly predicted the change.

The original Bill to abolish mandatory retirement in the federal sector was introduced in Parliament in 1992 (it died on the Order Paper when an election was called). Several additional legislative attempts were made over the course of the last 19 years to bring today's legislation into effect. They all suffered the same procedural fate. Great ideas, but they all suffered from issues of implementation.

That is all behind us today. Our limited satisfaction, and it is small, is that we went on record in 2006 telling anyone and everyone who would listen that what happened today was coming. We saw that. Others did not. We saw the implications. Others did not. Many are still in denial.

Air Canada, for example, by dropping that 35 pound box of documents on our doorstep today, is saying that it still cannot accept the will of Parliament. It is saying that it must attempt in whatever way possible to continue to exempt itself from reality, instead of accommodating the change and moving forward as its competitors have done.

It insists not on accommodating change, despite that fact that every other international airline in the world since 2006 has accepted and accommodated that change by adapting their operations, but on denying and fighting the change. So be it.

Change we will. 35 pounds of documents will not have have much impact on the winds of change, no matter how much this airline refuses to adapt to the realities of the 21st Century.

Friday, December 2^nd, 2011

The Canada Industrial Relations Board, over six months after our filing of an Application for Reconsideration of its original Vilven et al DFR complaint, today released its decision. The decision is posted here. Although the decision dismisses the Coalition Complainants complaints on rather technical grounds, the CIRB goes forward by indicating that the Board is indeed bound by the determination of the Federal Court in its decision 2011 FC 120. That decision held that ACPA's judicial review of the Tribunal decision finding that the mandatory retirement provision of the collective agreement was of no force and effect, by reason of the unconstitionality of the mandatory retirement exemption in the Canadian Human Rights Act, was dismissed. Because the decision today reflects a complaint that was filed prior to the release of the Federal Court decision, this complaint was dismissed. The Board left a strong implication that the second DFR Reconsideration decision, that will be released very, very shortly, would likely not arrive at the same outcome.

Because the second DFR Reconsideration decision concerns itself with a DFR complaint filed after the Federal Court's February decision, from the Board's statement today, it is reasonable to assume that the Board will conclude that the mandatory retirement provision of the collective agreement is invalid. Consequently, ACPA's actions must be determined in light of that determination.

Should that happen, there will be many, many implications, including, perhaps, a remedial order issued by the Board. The decision is expected very, very soon, so now we wait. But it would appear that we have indeed turned a corner.

Wednesday, September 14^th, 2011

Yesterday we were served with ACPA's judicial review application of the August 10th Thwaites decision. The application is very short. It seeks an order quashing the Tribunal's decision on the following alleged grounds: "The Board [sic] erred in law by failing to find that the mandatory retirement policy contained in the collective agreement between the Applicant and Air Canada was not based upon a bona fide occupational requirement."

Note the breadth of the grounds. The Notice of Application does not provide any detail whatsoever as to why the "Board" apparently erred in its conclusion that the mandatory retirement policy is not based on a BFOR. The details will come in the Memorandum of Fact and Law that is filed two to three months after the Notice is served.

Some points to consider:

1. The Tribunal (not "the Board") did not find that mandatory retirement policy of the collective agreement is not based on a BFOR. The mandatory retirement policy in the collective agreement was not an issue that was before the Tribunal. What was before the Tribunal was 70 individual complaints alleging a discriminatory practice under the provisions of the Canadian Human Rights Act. The Tribunal can find either that the individual complaints are sustained or that they are not sustained. BFOR is a defence to a complaint. The Tribunal found that neither Air Canada nor ACPA met the onus to demonstrate that the complaints were not sustained by reason of a BFOR. This use of semantics, namely putting an incorrect question before the Tribunal, is problematic.

2. From our earlier updates you can review the BFOR flowchart that outlines the proper legal process used to evaluate a claimed BFOR defence. The Tribunal's decision finds that ACPA's BFOR argument failed not one, but all three of the sequential, mandatory Steps. The Tribunal (mistakenly) assumed that it need not evaluate Steps 1 and 2 in reviewing Air Canada's BFOR claim--that error by the same Tribunal member in the earlier Vilven-Kelly decision resulted in the Federal Court referring the issue back to the Tribunal for reconsideration on the basis of all three Steps. With regard to Step 3, the Tribunal found that much of the evidence that Air Canada adduced in support of its BFOR argument was based on assumptions that bore little resemblance to the factual situation before the Tribunal, including assumptions about the demographics of pilot retirements (impacting operations subject to the ICAO limitations) that were wholly inconsistent with the demographic distribution of pilots nearing retirement in the coming years. Hence the assumption that the airline would suffer undue hardship as a result of its alleged inability to manage its flight operations while meeting the ICAO restrictions was not accepted by the Tribunal.

3. There are two other necessary factors that Air Canada (and, to a lesser degree, ACPA) failed to substantiate in the Tribunal hearing. First, the purported tie between the ICAO restrictions and mandatory retirement. ICAO does not mandate termination of anyone's employment. Its restrictions deal soley with international operations of flights by pilots-in-command over age 60. So, why terminate a pilot's employment when alternatives are available? Indeed, there is no reason whatsoever why mandatory retirement is required, given the alternative of deploying pilots in capacities other than as pilots-in-command. There are no ICAO restrictions on First Officers or Relief Pilots, based on age. Second, Air Canada failed to produce any evidence whatsoever at the hearing to demonstrate its fulfillment of the mandatory Step 3 requirement of individual accommodation. How could it? There is nothing to accommodate, given the failure to meet the Step 1 requirement, that the purpose of mandatory retirement be a "work-related purpose rationally connected to the performance of the job?" If a pilot is fully qualified to perform the job, what is there to accommodate? Nothing. Therefore, no BFOR.

4. The entire BFOR issues put forward by both Air Canada and ACPA, in our view, beg the question of exactly what the Tribunal is required to decide. What possible relevance can speculation about events that may or may not transpire years or decades in the future have on whether these 70 pilots were wrongfully terminated in the years 2007 to 2010? In order to substantiate any defence under the provisions of the Canadian Human Rights Act, that defence must be supported by what the courts refer to as "concrete evidence." Speculation about potential harm years in the future is not concrete evidence. It is not even evidence. So how is the Tribunal then supposed to find that the termination of employment of these pilots in 2007 to 2010 was justified on the basis of a bona fide occupational requirement? ACPA's BFOR argument was even more specious. It was based on allowing the younger pilots realize the benfits of seniority by ridding the seniority list of the older pilots. That suggestion was expressly rejected by the Tribunal in its 2009 decision, and was mentioned by the Federal Court as being tantamount to placing a lower value on the dignity and worth of the older workers--a proposition entirely antithetical to the entire purpose of the human rights legislation.

5. The following pagraphs from the Tribunal's decision dismissing the BFOR defence argument pretty well sum up the hurdle that both Air Canada and ACPA will have to overcome to persuade the Federal Court that Tribunal erred in finding that the mandatory retirement policy is not based upon a BFOR:

[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.

[344] It is very telling that Transport Canada, the federal regulatory agency responsible for licencing commercial pilots, does not impose any maximum age restriction. In fact, in its submission to ICAO on the question of raising the maximum age of PICs for international flights, Canada’s position was that there should not be any age restriction. Canada has no objections to pilots who are 60 years of age or older holding a medically valid licence from flying within Canadian airspace

[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.

It is difficult to believe that this Judicial Review application was filed on the basis of any realistic assumption that it has any reasonable probability of being successful, in the circumstances.

Tuesday, September 13^th, 2011

The inevitable and inexorable march towards equality continues today with the final word on Age 60 in Europe being delivered by Europe's top court, the EU Court of Justice. That court is the final adjudicator of all European laws. Given the delays or refusal of some countries to accept, implement or enforce the age discrmination bans that were announced in the 2001 Employment Law Directive that were required to be implemented by all EU nations by December 1, 2006, the pilots' age 60 case was bound to arrive on the EU Court of Justice's docket. It did, and it was decided in favour of the complainants in a decision released today. This is a huge victory for the Lufthansa pilots and should serve as the final nail in the coffin for those whose still believe that airlines can remain exempt from the legal changes prohibiting age discrimination across the world.

The decision is reported on the EU Court of Justice web site (Case C-447/09 "Prigge and Others"). A PDF copy of the decision has been placed on our web site.

Friday, September 9^th, 2011

On Tuesday, September 6th, the Coalition Complainants filed an appication for judicial review of the August 10th Tribunal decision. The grounds of the appeal, save for the error of the Tribunal in dismissing the complaints absent a hearing on the constitutional issue, deal strictly with the merits of the Tribunal's decision finding that Air Canada had met its onus under the provisions of Section 15(1)(c) of the CHRA to demonstrate that age 60 was the normal age of retirement for pilots within the appropriate comparator group for Air Canada pilots.

On Thursday, September 8th, Air Canada similarly filed an application for judicial review of the same decision, alleging that the Tribunal had erred in its determination that Air Canada had not met its onus of demonstrating that the mandatory retirement policy of Air Canada that terminates the employment of pilots at age 60 was a bona fide occupational requirement.

The normal legislative procedure for judicial review requires a minimum of four months to the completion of court document filings, followed by a wait of several months for the assignment of a hearing date. These applications will likely be heard by the Court in December or January, with a decision arriving approximately three months later.

Wednesday, August 24^th, 2011

It should probably not come as a surprise to anyone that we will almost certainly be forced to file another application for judicial review in respect of the Tribunal's inability to correctly apply the law to the facts of the cases before it. The August 10th decision contains many errors, some obvious, some not so obvious.

The most obvious error is the outright dismissal of the complaints, given the prior direction of the Tribunal to the parties, on their own suggestion, that the hearing in respect of the constitutionality of the Paragraph 15(1)(c) of the the CHRA would be deferred until after the rendering of this decision on the merits of Paragraph 15(1)(c). Apparently, after taking almost 19 months to decide the issues that were presented in two weeks of hearings, the Chair of the Tribunal simply forgot his own prior direction regarding the deferral of the Charter issue and the continuation of the hearing, should he find that Paragraph 15(1)(c) was not substantiated on its merits. As a result, the hearing was obviously not completed, so there was no jurisdiction to dismiss the complaints at that point.

Late last week, in response to a request of the counsel for the Commission filed within an hour of the release of the decision on August 10th, the Tribunal issued a direction to the Commission to submit a motion regarding the continuance of the proceeding. It further directed all parties to make submissions in response to the Commission's motion by specified dates. Prior to the issuance of that direction, Air Canada had agreed to the Complainant's request that we write the Tribunal asking it for a continuance of the hearing, based on the obvious oversight of the Tribunal in dismissing the complaints. Obviously, several months will now transpire before the motion is resolved and a determination is made whether a hearing on the constitutionality of the statutory provision is even required, particularly given the prior determination of the Federal Court in the Vilven-Kelly proceeding that Paragraph 15(1)(c) of the CHRA is of no force and effect.

In the result, we may or may not wind up having to re-argue the entire constitutional question once again, and then wait months and months for another Tribunal decision. The Coaltion's position is simply that the Federal Court decision is binding upon the Tribunal, that the issue now before it has already been decided, that the complaints are therefore substantiated, and that we should move directly to a remedy hearing to consider reinstatement and damages payable to each of the 70 complainants in this proceeding.

Aside from the continuation of the hearing, there are several substantive issues within the decision that will likely require the filing of an application for judicial review. In particular, it is extremely difficult for us to understand how the Tribunal could possibly arrive at the conclusion that the majority of the major airlines in Canada, such as WestJet, Skyservice (2005) and Air Transat do not meet the Federal Court's criteria for being a comparator to Air Canada with respect to the pilot jobs being "positions similar" to the Air Canada pilot job, yet an airline such as Air Tindi does, especially when the Federal Court itself included those carriers in its own determination of comparators in its 2009 decision.

The signficance the Paragraph 15(1)(c) decision, either on its merits or on the basis of its constitutionality, lies in the determinaton of when damages actually become payable to the complainants--either as of the date of termination of employment, or as of the date that Paragraph 15(1)(c) of the CHRA was found by the Tribunal to be of no force and effect (August 28, 2009).

The one resoundingly positive aspect of the Thwaites decision is that the Tribunal finally got the BFOR question completely correct (or almost completely correct). Although we believe that the Tribunal erred in finding that ACPA had a right under the statute to plead and argue its own separate BFOR defence, the Tribunal's finding that both Air Canada and ACPA failed to meet all three steps of the Meiorin test is entirely consistent with the principles set out in the SCC decision. In particular, unlike the Tribunal's July decision on BFOR, the Thwaites BFOR finding is based upon a principled review of the essential comnponents of the BFOR defence, namely that the purpose of mandatory retirement fails to meet the requirement that it be a "work-related purpose rationally connected to the performance of the job." That is the postion that we have been arguing for years.

The finding is also consistent with the argument that we have put forward in our motions filed in respect of the upcoming Case #3 proceeding (the next 90 pilots referred to the Tribunal). Those motions seek to strike portions of ACPA's Statement of Particulars, namely all of its submission re BFOR, and seek to have Air Canada provide further and better particulars with respect to its BFOR argument. In its Statement of Particulars in Case #3, Air Canada simply states, "Steps 1 and 2 of Meiorin have been satisfied." Wrong. Please see our BFOR flowchart for a further explanation of the mandated BFOR requirements.

In seeking to have these issues clarified and/or determined prior to the commencement of a hearing, our purpose is to subsequently reduce the number of issues outstanding and the number of witnesses and the amount of evidence to be adduced at the hearing. In fact, if there is no longer any BFOR issue before the Tribunal and if the unconstitutionality of Paragraph 15(1)(c) of the CHRA forecloses any defence based upon the mandatory retirement exemption, then the complaints will essentially be substantiated without the need for any hearing at all. The only remaining questions outstanding will be related to remedy, including reinstatement and damages.

Any application for judicial review of the most recent Tribunal decision must be filed within 30 days of the rendering of the decision, namely by September 9th.

Meanwhile, the implications of the July Tribunal decision are becoming more and more apparent and pervasive. In a bizarre twist, both George Vilven and Neil Kelly were placed on a "leave of absence without pay" status by Air Canada, effective August 1st, as a result of the July decision, instead of having their employment terminated as a result of the nullification of the remedy decision. This action clearly contravenes the provisions of the collective agreement and leaves them in a sort of "limbo," with no salary and no pension! Because a pilot on a LOA is still employed by Air Canada, ACPA is the sole party able to represent his or her employment rights under the provisions of the collective agreement. However, when George Vilven last week asked ACPA to step in and help him get out of this no-income, "limbo" status, ACPA sent him a letter stating that his employment had been terminated, and that therefore it no longer represented him. Wrong. Air Canada confirmed later the same day, in writing, that he is still employed. Further demands to ACPA to resolve this problem have so far failed to produce any meaningful response, as of this date.

One further complication of the July decision is that all of the judicial review proceedings before the Federal Court in respect of the Tribunal's remedy decision of November, 2010 are now moot and must be cancelled. This means that almost all of the funds that all of the parties spent litigating the remedy issues in 2010, including all of the funds related to the remedy hearing itself and the extensive pleadings submitted in respect of the upcoming judicial review of the remedy decision (scheduled for October) have been effectively poured down the drain.

Should our judicial review of the Tribunal's July decision be successful, which we fully expect it to be, an entirely new remedy hearing before the Tribunal will be required. In other words, after eight years and over $1 million dollars worth of legal efforts, both George Vilven and Neil Kelly are back now almost to the point where they started, out of work with no immediate resolution in sight, but with a very high likelihood, given the flaws in the Tribunal's July decision, that they will climb back on the Flight Ops training treadmill and Federal Court litigation treadmill within months and that each of the parties will spend several hundreds of thousands more dollars on lawyers' fees.

One of the further consquences of the July decision is that the Tribunal's damage award is now null and void, with the result that the funds paid to both pilots must be refunded and their pensions must "unwound" again. Their accrued pensionable service is anything but certain, given that both actually worked for nine months subsequent to reinstatement. All of this "unwinding" and repayment will be reversed once again, should the JR be successful and should damages be re-awarded.

Despite all of this confusion and wasted effort, it is important to note two salient points. First, after much discussion among the complainants, the Coalition Executive and legal counsel, the resolve to carry this cause forward is stronger than ever. The fact remains that with the constitutional question decided in our favour and with the BFOR decision decided in our favour, what is left is the necessary legal proceeding to get the remaining complaints through the hearings to a remedy outcome.

The war of attrition waged by both the employer and by the union will undoubtedly extract a toll, particularly upon the motivation of some of those complainants who are nearing or past age 65 to return to employment, given the ICAO restrictions on Captains / pilots-in-command over age 65. But there is no appetite among any of the principal complainants or the Executive to expend any less effort than the effort that is now more than ever required to drive this cause to its proper conclusion as quickly as possible, with the ending of mandatory retirement for pilots at Air Canada, reinstatement of all of those existing Complainants who wish to return to work as a pilot with Air Canada, and damages payable for breach of the human right to be free from discrimination on the basis of age.

Second, the potential joint financial liability to both Air Canada and ACPA keeps mounting with every passing month and with every additional complaint referred from the Commission to the Tribunal. There are some signs that that issue is indeed garnering some recognition by those who will ultimately be responsible for signing the cheques, when the chickens finally come home to roost.

Friday, August 12^th, 2011

We will provide a full analysis of and comment upon the decision on the weekend. As we noted on the index page of this web site, prior to the commencement of the Thwaites hearing in November, 2009, all parties agreed to defer presentation of any evidence and argument on the Charter issue until after the decision was rendered on the merits of Paragraph 15(1)(c). In other words, even though the Tribunal found in Air Canada's favour on the Paragraph 15(1)(c) issue, the case has not yet been completed. The issue of the constitutionality of that Paragraph is yet to be argued.

On Wednesday, shortly after the release of the decision, we instructed our outside legal counsel to write all other counsel seeking consent to approach the Tribunal with a request to continue the hearing, notwithstanding the fact that the Tribunal allegedly dismissed the 70 complaints. We expect to hear back from all counsel not later than Tuesday, in respect of that request.

Tuesday, August 9^th, 2011

We have just been advised by the CHRT that the Thwaites decision will be released tomorrow, Wednesday, August 10^th, at 09:30 ET.

Wednesday, July 27^th, 2011

For over five years now the Tribunal has continually misinterpreted the law in respect of BFOR in almost every way imaginable. As pointed out in the July 11th update below, its most recent misinterpretation sets a new standard for not getting it right. In order to assist you in understanding the Meiorin BFOR test and its three component steps, we have designed an illustration of the steps and matched them with appropriate text excerpts from the actual paragraphs of the Supreme Court of Canada Meiorin decision. That illustration is viewable and downloadable here: Flowchart

Here are a few points to observe. There are three steps to the test. The steps must be done in sequence--if the requirements of any of the steps are not met, the test ends there. Period. It is sort of like a baseball game: if you are struck out at First Base, you don't go to Second Base or to Third Base. You are out. Similarly, you can't hit the ball and then go directly to Third Base (as much as the union and the employer would like to do) bypassing First and Second Base. The onus to demonstrate satisfaction of each Step of the test rests with the employer, not the Complainant.

Steps 2 and 3 are both dependent on Step 1. Step 1 sets the basis for the occupational requirement. It says that to verify that a "discriminatory standard" (in our case, mandatory retirement) is allowable, one must first ascertain the purpose of the discriminatory standard. That purpose must satisfy two requirements: it must be a "legitimate work-related purpose," and it must be "rationally connected to the performance of the job."

That is why it is called an "occupational requirement. It is a job requirement. It can only exist if it is based on the tasks required of the employee, not on the relationship between the employer and the union. Having a pilot licence is a job requirement, obviously. Being fit for work is a job requirement. Job requirements are normally set by the employer, and vary depending upon the nature of the job. A movie producer might require a young female actor to play a specific part. That is a job requirement. It would not be discriminatory to deny that role (or job) to a male senior citizen. The job requirement is task-based. Its purpose is to ensure that a person is qualified and available to actually do the job.

If the purpose of the discriminatory standard does not meet the Step 1 requirement, there is no BFOR. The test ends, and it is not necessary or permissible to proceed to Step 2 (Bona Fides) or to Step 3 (Necessity and Accommodation). Collective agreement-related purposes do not meet the criteria for "occupational requirements" because they are not "legitimate work-related purposes rationally connected to the performance of the job."

Step 2 involves assessing the employer's intention in implementing the discriminatory standard. This is called the bona fides component of the test. In order for the employer to meet the Step 2 requirements, it must show that it implemented the discriminatory standard in an honest and good faith belief that the discriminatory standard (mandatory retirement) was necessary to accomplish the "legitimate work-related purpose that is rationally connected to the performance of the job." In other words, it must show that it believed that the discriminatory standard was necessary and that it was not implemented for a discriminatory purpose. If the requirement of Step 2 is not met, the test ends.

Step 3 questions not the employer's honest and good faith belief that the discriminatory standard is necessary, but rather whether the discriminatory standard actually is necessary. That leads into the question of accommodation. Can the employer work around the necessity by changing the conditions of work? The employer is required to accommodate the individual up to the point of undue hardship. The Court is quite clear that some hardship is to be expected. It is undue hardship that ends the test in the employer's favour. There are two other qualfications in Step 3. Some human rights statutes restrict the factors that may be considered in measuring the undue hardship. In our case, the Canadian Human Rights Act, Section 15(2) limits the factors to health, safety and cost. There Court dealt with that issue in its February decision.

The final factor, one that is almost always missed, is that the accommodation must be considered on an individual complainant-by-complainant basis. The question is, "Can the employer accommodate this specific individual?" That will require a specific inquiry into the factual situation of each person who must be accommodated (in our case, the two specific individual Complainants, Vilven and Kelly). The inquiry cannot be directed solely at something as broad as an employer's policy, such as a blanket mandatory retirement policy. That requirement was not addressed in the Tribunal's decision.

Again, if the employer does not meet the requirements of all three of these Steps, its BFOR defence will fail, and the complaint will be resolved in favour of the Complainant.

Both the employer and the union would love to be able to avoid passing through Step 1 and Step 2, so that they can proceed directly to the issue of the cost of accommodation the potential difficulties. That is what happened at the original hearing. Steps 1 and 2 were not addressed and that is why the Federal Court referred the decision back to the Tribunal for reconsideration. That is where they put all their evidence--in the anticipated cost of accommodating not just the two complainants, but hundreds of other pilots whose complaints were not before the Tribunal, including First Officers who had no occupational restrictions to preclude them from remaining employed beyond age 60.

Now, with regard to the above explanation of the Meiorin Steps, you don't have to take our word for the assertions set out above. They are all laid out clearly in the very readable Supreme Court of Canada decision, posted on CANLII: BCGSEU v. BC (Gov't) [1999] 3 S.C.R. 3. Skip down to start reading at Paragraph [54]. Compare the text of the decision with the Flowchart to keep your mental map of the process.

Then go back to the Tribunal's recent decision, starting at Paragraph [37], and compare what the Supreme Court of Canada set out as the mandatory requirements to what the Tribunal actually did to assess Air Canada's compliance with the three Steps in respect of these two specific Complainants.

After walking through the process, you should likely expect that the Tribunal's decision will not be the end of the Vilven-Kelly issue, nor of the more that 150 other complaints currently in process before the CHRT.

Monday, July 11^th, 2011

On Friday, July 8th, the Canadian Human Rights Tribunal issued its decision in respect of the bona fide occupational requirement (BFOR) issues that were referred to it by the Federal Court in the Court's decison of February 3, 2011. The Tribunal decision upheld the argument of Air Canada that ending mandatory retirement for pilots at age 60 would cause Air Canada undue hardship.

The Coalition strongly disagrees with the decision on several factual and legal points. The key disagreement lies in the determination by the Tribunal that the purpose of mandatory retirement satisfies the Supreme Court of Canada's required steps of analysis for BFOR. The Tribunal states in its decision at Paragraph 48,

48. The third step in Meiorin requires a determination whether the standard was established to accomplish a legitimate purpose. Again, persuaded by Captains Duke’s evidence, I conclude on a balance of probabilities that the work standard of mandatory retirement in the collective bargaining agreement between Air Canada and ACPA was intended to accomplish the legitimate purpose of melding the company’s needs with the collective rights and needs of its pilots.

However, the Supreme Court of Canada did not state that the standard must accomplish "a legimate purpose." It stated that the standard must accomplish "a work-related legitimate purpose." In other words, the purpose of mandatory retirement must relate to the occupational requirements of the job, namely the tasks performed by the individual. That only makes sense--an occupational requirement must be tied to the performance of the job, otherwise it is not an occupational requirement. The BFOR exemption can be invoked only where the inability to actually perform the job is allowed to take priority over the prohibitions against discrimination under the Act. The Tribunal even quotes that Supreme Court of Canada's statement setting out this requirement in Paragraph 7 of its decision, before moving on to decide the fundamental question before it, overlooking that statement:

(1) The employer adopted the standard [mandatory retirement] for a purpose rationally connected to the performance of the job;
(2) The employer adopted the particular standard [mandatory retirement] in an honest and good faith belief that it [mandatory retirement] was necessary to the fulfillment of that legitimate work-related purpose [performance of the job]; and
(3) The standard [mandatory retirement] is reasonably necessary to the accomplishment of that legitimate work-related purpose [performance of the job].

Putting the decision in the context of the Complainants, it becomes even easier to see its flawed analysis. The International Civil Aviation Organization (ICAO) that sets the standards for operations of international flights places age restrictions only on pilots-in-command. It places no age restrictions on First Officers, such as George Vilven and Neil Kelly. None. There is no operational requirement that precludes First Officers George Vilven or Neil Kelly from continuing to be employed by Air Canada and from continuing to operate international flights as a First Officers.

But the Tribunal has just dismissed their complaints, saying that allowing them to continue employment would cause Air Canada undue hardship. How so? Their employment as First Officers requires Air Canada to do nothing to accommodate them because there is no occupational restriction on their work. How could the Tribunal possibly arrive at such a decision? On what basis? Certainly not on the evidence before the Tribunal. The evidence was abundantly clear that ICAO has no operational restrictions on First Officers.

The Tribunal obviously got its understanding of the legal requirements for the establishment of a bona fide occupational requirement wrong.

Because the BFOR exemption totally overrides all of the prohibited forms of discrimination under the Canadian Human Rights Act, following the flawed analysis of the Tribunal in this decision, all that an employer would have to do to totally exempt itself from the prohibitions against discrimination under the Act would be to establish "a legitimate purpose" (any legitimate purpose) that has no bearing on the job requirements themselves. The employer could then effectively contract out of the quasi-constitutional human rights legislation. That is obviously not the intent of Parliament, but that is essentially what the current decision says.

That error, we suggest, is only one of several legal and factual errors made by the Tribunal in arriving at this decision.

It should come as no surprise, then, that this case will go back to the Federal Court for a third judicial review, and that this eight-year saga will drag on even longer.

2011-07-08 CHRT Decision re BFOR

Thursday, April 7^th, 2011

Today we received a copy of arbitrator Teplitsky's March 28th award ending mandatory retirement for Air Canada's Customer Service Sales Agents, pending the final outcome of the CSSA's proceedings before the Tribunal, and/or the overturning of the Federal Court decision in Vilven-Kelly by the Federal Court of Appeal or the Supreme Court of Canada. This is a major shift in momentum, because it essentially reverses the status quo for all Sales Agents by prevening Air Canada from terminating their employment and forcing them to go through the litigation process before the Canadian Human Rights Commission and the Canadian Human Rights Tribunal (a two-year process, minimum) to get reinstatement of employment.

2011-03-28 Teplitsky Award

Tuesday, March 8^th, 2011

Bill C-481 passed Committee review and amendment today, and was referred by the Committee back to Parliament for Third Reading and passage into law. The Bill included two amendments. The first amendment allowed for an exemption of the Canadian Forces to the repeal of mandatory retirement. The second amendment allowed for a one year period from the enactment of the Bill until the coming into force of the Bill.

This event marks an extremely significant event, for not only was the Bill passed by the Committee and referred back to Parliament, it was passed in spite of an intense lobby, primarily by employers, to delay or kill the effect of the Bill upon any organization that provided its employees with a pension plan or pension scheme. The lobby failed on two counts, first to table the Bill pending further study of proposals by employer. Second, to defeat the passage of the amendments to the Bill and the referral of the Bill back to Parliament.

Referall of the Bill to Parliament at this point obviously does not guarantee passage into law. In addition to potential procedural delays prior to Third Reading, there is of course the prospect that the entire session of Parliament could be terminated with the call of an election. Be that as it may be, the referral to Parliament constitutes an immense step forward in the legislative process, and sets the stage for repeal of mandatory retirement in the federal jurisdiction, regardless of the continuance of this session of Parliament.

Saturday, February 19^th, 2011

The Parliamentary Committee reviewing Bill C-481 held a very short in-camera session on the morning of February 17th for the purpose of setting down a date for the remaining deliberation of Bill C-481. The Committee set the date of Thursday, March 8th. There apparently was no substantive discussion of the issues related to the Bill at Thursday's meeting.

Tuesday, February 15^th, 2011

The Parliamentary Committee reviewing Bill C-481 heard from several six witnesses today, including representatives from ACPA. The audio recording of the witness testimony is linked on hour HOME page. As it turns out, the sparse 30 minutes for debate and amendment to the Bill was wholly insufficient to deal with issues raised in the testimony, including the proposed amendments. The Committee will meet again this Thursday, at 10:30 Eastern, to deal with a motion to table the proceedings and to reconvene at a later date, when testimony is available from witnesses to deal with a possible amendment to exempt employees of organizations that have bona fide pension plans from the entire scope of the general prohibition against discrimination on the basis of age. The likely date for the continuance of evidence appears to be March 3rd.

Thursday, February 10^th, 2011

The Parliamentary Committee reviewing Bill C-481 heard from several witnesses today, including George Vilven, Neil Kelly and our expert witness, Professor Jonathan Kesselment. Other witnesses included personnel from the Canadian Human Rights Commission and a representative of employer organizations in the federal transportation and communications industries. All witnesses spoke in favour of the Bill, namely, repealing mandatory retirement in the federal jurisdiction. Links to the two MP3 recordings are located on the HOME page of this web site.

Thursday, February 3^rd, 2011

The Federal Court released its decision in the 2010 judicial review of the August, 2009 Tribunal Vilven-Kelly liability decision. The Court dismissed Air Canada's and ACPA's application for judicial review of the Tribunal's Charter decision, but upheld the judicial review of the Tribunal's BFOR decision, in part, remitting the decision back to the Tribunal for reconsideration on the record. It should be noted that the BFOR decision, once re-decided, will affect Mssrs. Vilven and Kelly only, wherease the Court's decision on the Charter issue is now binding upon the Tribunal for all other Air Canada pilot mandatory retirement cases. This decision should expedite the remaining hearings before the Tribunal, but is very, very likely to be appealed by either or both Air Canada and ACPA, to the Federal Court of Appeal. A link to the decision is on the HOME page of this web site.

Thursday, November 11^th, 2010

We have now turned the corner. George Vilven and Neil Kelly will be reporting to work at Air Canada next Wednesday, November 17th. Two days ago, on Tuesday, the morning after the release of the Tribunal's remedy decision, Air Canada Flight Operations personnel called both George and Neil to confirm that they are available to start work immediately, and to ask them which aircraft they each wish to be trained on, and which base they would like to select. Initially they were advised that they would sit in on a new-hire course starting next Monday in order to bring them up to date on the most recent operations procedures. Later in the week they were informed that instead of starting on Monday, they would start on Wednesday next, and that their procedures indoctrination training would last only three days.

Both elected to be trained as First Officers on the B777. Neil elected to be based in YYZ. George elected to be based in YVR. They will commence aircraft ground school immediately after the procedures training, and then be slotted into simulator training as soon as feasible. They are expected to complete their line indoctrination training in January or shortly thereafter, depending upon simulator availability and Homeland Security processing (for the U.S.-based simulator).

The Coaltion is disappointed that the Tribunal did not issue the cease order to prohibit Air Canada from continuing to terminate the employment of other pilots at age 60. However, given the impending other developments, that issue may soon become moot.

The first major development is the impending release of the Thwaites decision, which will likely occur within the next few weeks. Should the 70 complainants in that proceeding win their case on the merits of the actual exemption clause in the Canadian Human Rights Act (i.e. should the Tribunal find that age 60 is not the "normal age of retirement for individuals doing similar work") it is unlikely, in our view, that Air Canada will continue its practice of mandatory retirement of pilots.

Although the Tribunal decision explicitly stated that the decision applied to only those two pilots, the underlying principles of the decision stand to be followed by subsequent decisions. For one thing, Air Canada's evidence before the Tribunal was that Captain Kelly should be paid for lost salary from September 1, 2009 until his date of reinstatement (as a Captain, until he turned age 65, and then as a First Officer during subsequent months) inthe amount of $10,000 per month as the difference between his pension and the Captain's salary that he would have earned, had his employment not been wrongfully terminated. Of course, a lesser sum would apply for the period after he turned 65.

Obviously, $10,000 per month, when considered for virtually all of the other pilots before the Commission and the Tribunal (almost 150, and growing every month), leads to a potential liability of $1.5 million per month, assuming the Tribunal accepts the same Air Canada argument in the impending additional cases, should they be successful on liability, as were Vilven and Kelly. The number is staggering, but quite within the realm of a possible award, especially given that it was based on Air Canada's ownsubmission to the Tribunal. Of particular note is that the Tribunal ordered ACPA to pay 50% of the awarded lost compensation. However, no matter how one looks at the award, the implications are compelling for both Air Canada and ACPA, given the number of complainants in the queue with the almost identical salary profiles.

Should the Thwaites complainants be successful in the impending decision, liability for lost salary to be determined in the subsequent remedy hearing for each of those complainants will not be limited to post-September 1, 2009, because their damage award will not be based on Charter-limited factors, but rather will flow from the respective dates of those complainants' termination of employment, less any discount for mitigation or failure to mitigate. The numbers thus get very large, very quickly.

The combination of these two cases, then, if both are successful for us, will likely lead Air Canada and ACPA to finally reconsider their entrenched opposition to lifting the mandatory retirement provisions in the collective agreement and pension plan.

Aside from these two Tribunal decisions, the outcome of the judicial review that will be heard by the Federal Court commencing November 22nd, may very well end Air Canada's practice of arbitrarily terminating the employment of pilots, based on age. Should the judicial review decision, which is expected to be rendered in February or March, be unsuccessful for Air Canada and ACPA, the Court will then be striking down the mandatory retirement exemption clause within the Act. If that happens, its all over. Mandatory retirement will be eliminated in the entire federal jurisdiction.

Sunday, November 7^th, 2010: Reinstatement Victory!

The Canadian Human Rights Tribunal advised all parties on Friday that the Vilven-Kelly remedy decision will be released on Monday, November 8th, at 9:30 Eastern.

The following issues will be determined in this case:

1.            An order returning both pilots to work will be issued; the reinstatement was not opposed by either Air Canada or ACPA—the only question to be determined in that regard is whether their seniority should be discounted for the period of their forced  unemployment; regardless, even if a full discount is made, according to Air Canada’s argument, both will still be entitled to bid and hold the B777 F/O position; we are confident that no seniority discount will be permitted;

2.            Damages: first, will damages be awarded for the period from their respective dates of termination, or will they be awarded only subsequent to the August, 2009 Tribunal decision that was based on the Charter of Rights and Freedoms;  second, what discount to full salary will be imposed, if any, for failure to mitigate damages, and what term limit will be imposed, if any, as a cap to damages.  The law of damages is clear that damages do not flow forever—there is usually a limit to the period to which damages apply, notwithstanding the delay in the legal process resulting in the extension of the time period from termination of employment to reinstatement;

3.            Cease and desist order:  whether the Tribunal will order Air Canada to stop terminating the employment of other pilots, based on age, given the finding that the termination of these two pilots, based on the mandatory retirement provision of the collective agreement, was found to constitute a discriminatory practice, contrary to the Canadian Human Rights Act.  By agreement of the parties, the implementation of the cease order, if issued, will be delayed for 90 days to allow Air Canada sufficient time to reprogram its Preferential Bidding System computer program to cater to the ICAO needs re the over-under rule.  In other words, pilots who are now scheduled to have their employment terminated, based on age, prior to February 8, 2011, will still be terminated and be required to file a complaint under the Act in order to gain reinstatement.  We will deal with that issue subsequent to the release of the decision on Monday.

We have a very serious concern that the Tribunal decision will not necessarily override all of the provisions of the Memorandum of Agreement (MOA) that was concluded by Air Canada and ACPA on July 22, 2010. That agreement, which was made subject to the provisions of the pending remedy decision, imposed severe restrictions on the benefits and working conditions of both pilots whose complaints will be addressed in this remedy decision. There is a serious risk, in our view, that where tomorrow's decision and order is silent, the union and the employer might still attempt to otherwise discriminate against these two individuals, in accordance with the MOA, notwithstanding the Tribunal's ruling that their rights under the Act were contravened by the unlawful termination of their employment. That issue has coincidently placed before the Canada Industrial Relations Board in a separate complaint, and may be the subject of other legal proceedings.

In any event, the remedy decision will mark a siginficant turning point for Air Canada and ACPA. George Vilven, who is now 67, will be reinstated as Air Canada's oldest employee by reason of the fact that all employees (other than pilots who have historically been forced to terminate their employment at age 60) are required to terminate their employment at age 65.

There are, to our knowledge, 122 other pilots in the queue at the CHRT, and another 20 to 30 with complaints at the CHRC level, who are similarly demanding reinstatement of employment. In addition, several other Air Canada employees from other unions have filed similar complaints with the CHRC concerning their forced retirement at age 65. The Tribunal, we are informed, has additional mandatory retirement cases pending from workers in other industries. The fate of their complaints will likely be decided once the Federal Court renders its decision on the judicial review of the Vilven-Kelly Tribunal decison of August, 2009. That case is scheduled to be heard by the Court in two weeks (four days of hearing commencing November 22nd) and the decision is expected to be rendered in February or March of 2011.

Of course, there is still one other decision pending by the Tribunal: the Thwaites decision. Even though the Vilven-Kelly hearing was held subsequent to the Thwaites hearing, that decision has not yet been released. It should follow shortly. The Thwaites case differs in law from the Vilven-Kelly case by the nature of the legal argument presented. Vilven-Kelly was decided on the basis of the exemption provision under the Canadian Human Rights Act being found to violate the equality provisions of the Canadian Charter of Rights and Freedoms. Accordingly, one of the major issues to be determined by the Tribunal in its decision tomorrow will be whether damages for infringement of the pilots' rights should be available for the period prior to the release of the August, 2009 Tribunal decision finding that the contravention Section 15 of the Charter was not justified under Section 1 of the Charter.

The Thwaites decision was argued on the merits of the exemption. The 70 complainants argued that Air Canada could not meet the test for "normal age of retirement" necessary to allow the mandatory retirement exemption to be invoked. Argument on the Charter was deferred to a later date, pending the outcome of the decision on the merits of the exemption provision. The major upshot of the Thwaites decision, should it be successful, is that damages should flow for all pilots (other than Vilven and Kelly) from the date of each pilot's respective termination of employment, not just from August, 2009. Mucho dinero. Millions of dollars in potential liability, and extremely difficult to successfully overturn on appeal, as the Tribunal has exclusive jurisdiction to interpret the facts of the case before it--the court can only review the reasonableness of the decision, not the substance of the decision itself.

In summary, November 8, 2010, with the reinstatement order forcing the re-employment of both George Vilven and Neil Kelly, will mark a major turning poing in the legal odyssey that began over seven years ago with the termination of employment of George Vilven. The Tribunal's decision, together with the decisions of the Tribunal and the Federal Court following in the next few months, will forever change the landscape of mandatory retirement in Canada.

Wednesday, October 6^th, 2010.

There are two significant developments to report.

1. CIRB Complaint: First, Early last week, after being "invited" to do so by the CIRB, ACPA produced to us and filed with the CIRB a copy of the MOA that it executed with Air Canada on July 22nd. As the document itself was delivered under privilege, we are not able to reproduce it here or disclose the details of it here in any great detail. We can say that there were no significant surprises in the agreement, which leads us to wonder why both ACPA and Air Canada had refused to provide a copy of the agreement to the only two pilots who were directly affected by it.

Following the disclosure of the MOA, we submitted our lengthy comments in respect of it to the Board, following which ACPA filed and served its reply. Its reply continued to fail to deny any of the allegations made in our complaint itself as well as the allegations contained in our subsequent review of MOA. In particular, ACPA, we suggested, attempted in its reply to diminish the significance of the MOA in three ways.

First, because it could not deny the obvious implications of the MOA, ACPA attempted to take the Board's focus off the agreement itself (distract the Board) by directing its attention to events that occurred subsequent to the execution of the agreement (i.e. issues that are totally irrelevant to the question that the Board must answer).

Second, it attempted to state that the MOA was not really the MOA, that it was not effective (in law), that it did not mean what it obviously stated, and that the document was therefore essentially of little or no signficance.

Third, it suggested to the Board that the issues before the Board were really matters that would be better dealt with by the Canadian Human Rights Tribunal, rather than by the Board. In other words, it was asking the Board to essentially close its eyes to the (not denied) contravention of the statutory breach of duty of fair representation, so as to effectively ignore, or worse, tacitly endorse the breach.

Our final response to that reply was filed on Sunday. Essentially, we blew away the smoke and removed the mirrors, to let the Board see clearly that ACPA's defence was no defence at all, leaving the Board in the position of having to determine whether the remedy sought to the breach was appropriate, and if so, whether that remedy should issue immediately, with written reasons to follow later, or be delayed to be issued at the same time as the written reasons. Of course, we suggested the former.

In other words, the submissions regarding the complaint are now complete, and the decision on the outcome rests with the Board. From the case law in Canada, it would appear that this is the first time that any Labour Board, provincial or federal, has had a case where the action of a union in support of mandatory retirement categorically place it in conflict with the prohibition against discrimination on the basis of age, and its necessarily coincident impact on the union's duty of fair representation of all members. We expect the decision to be a very good read indeed.

2. Recent CHRT Case Law: Last week the CHRT issued three new decisions all dealing with complaints alleging discrimination on the ground of "family status" by workers at Canadian National Railways:

http://chrt-tcdp.gc.ca/search/files/t1356_8608de.pdf ;

http://chrt-tcdp.gc.ca/search/files/t1355_8508de.pdf; and

http://chrt-tcdp.gc.ca/search/files/t1354_8408de.pdf .

These three cases, although not dealing with age discrimination, bode extremely well for all of our 150-plus complainants because the subsidiary issues decided within the complaints are all issues that are germane to our complaints—reinstatement of employment, accreditation of seniority, compensation for lost wages, mitigation, and special compensation.

In a nutshell, the Tribunal was extremely critical of the employer for allegedly not taking the complaints seriously and for failing to accord significance to the legislative prohibition against discrimination.  All three of the complainants were awarded reinstatement to their previous positions, damages for lost compensation (from 2007 onward), full seniority, expenses (but not legal costs), interest on the damages, and special compensation.  In the one case where no evidence was produced showing any attempt to mitigate the damages, the compensation for lost wages was discounted by only 30%.

Those remedies are consistent with our expectations in each of our complaints.  However, the most significant aspect of these awards is the amount of special compensation awarded—compensation claims that are pleaded in each of our complaints.  Special compensation comes under two separate statutory provisions, one for “pain and suffering,” and one for “wilful or flagrant disregard for human rights.”  The statute allows an award of up to $20,000 in each category. 

Sunday, September 26^th, 2010.

1. CIRB Complaint: On August 3rd, 67 Air Canada pilot (and former Air Canada pilot) members of the Fly Past 60 Coalition filed a 58-page complaint before the Canada Industrial Relations Board, pursuant to Section 37 of the Canada Labour Code. In the days following, an additional eight pilots added their names to the complaint, bringing the total number of complainants in the complaint to 75. The complaint alleges that ACPA has engaged in a breach of its duty of fair representation to the complainants, by reason of failing to fairly represent them (or represent them at all) in their grievance with Air Canada in respect of their termination of employment.

Of the 67 original complainants, 15 were still actively employed as pilots by Air Canada as of the date that the complaint was filed. Of the remaining complainants, there were two groups, those who had asked ACPA to file a grievance on their behalf, prior to their termination of employment, and those who had not so asked. All complainants in both groups had filed a complaint with the Canadian Human Rights Commission, alleging that their employment was terrminated in violation of the provisions of the Canadian Human Rights Act that prohibit discrimination on the basis of age.

The CIRB did a preliminary review of the complaint, found that it met the prima facie case of a breach of the statutory provision, and then gave both Air Canada and ACPA an opportunity to respond to rebut the presumption in the prima facie case. ACPA filed its response with the Board on September 10th. Air Canada file its response with the Board on September 17th. The complainants filed their responses to ACPA and Air Canada respectively on September 19th and 24th.

Despite several requests made of both Air Canada and ACPA by counsel for the complainants, neither produced or filed the Memorandum of Agreement that was the basis for the entire second portion of the complaint. A formal demand for production and filing of the document was made by the complainants, pursuant to the CIRB Rules of Procedure, on September 19th.

On September 24th, the Board, in reviewing the complaint and the failure of both Air Canada and ACPA to produce and file the document, wrote a letter to counsel for ACPA requesting that it voluntarily produce and file the document not later than Friday, October 1st. It further stated in its letter to ACPA, "if the respondent [ACPA] refuses to voluntarily provide the requested document, the Board has ordered that the respondent shall have until noon on October 1st to file any written submissions it wishes the Board to consider in determining whether to issue an order pursuant to section 21(5) of the Regulations and/or the terms under which such order should be issued." It then stated that the complainants will have seven days from the date of any written submissions on this issue, filed by the respondent, in which to reply.

In other words, the CIRB is taking the allegations of breach of duty of representation very seriously, and insisting that the parties comply with a very restrictive timetable to complete all production and filing of documents, so that the Board may then proceed to deliberate the complaint. The Board did not indicate in its letter if it would hold a hearing into the complaint, or if it would simply make its determination of the complaint based upon documents filed, however it did state earlier that the parties are not assured that a hearing will be convened, and they therefore should, in their responses, ensure that full submissions are made in respect of the facts and the legal issues. Save for the production of the MOA, and save for the complainants being given a reasonable opportunity to make submission in reply to the production of the MOA, the entire submission in respect of the complaint are now complete.

2. CHRC Referrals to the CHRT: Over the course of the year, the Commission has continued to process the Air Canada pilot complaints regarding mandatory retirement, referring almost all of those before it to the Tribunal. A couple of cases are awaiting referral, pending resolution of some administrative issues. To our knowledge, the Commission is in receipt of approximately 20 complaints, most of them very recent. All of the others have been referred to the Tribunal for adjudication. At the present time, to our knowledge, there are a total of 124 complaints before the Tribunal, including V-K, the 70 Thwaites complainants, and the recent referrals. Of the 124, 122 are members of the Coalition.

3. Delayed Tribunal Decisions: Tribunal Practice Note No. 1, issued October 22, 2007, contains the following words:

"Subsection 48.9(1) of the Canadian Human Rights Act stipulates that proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. ...

"In the recent case of Nova Scotia Construction Safety Association v. Nova Scotia Human Rights Commission, 2006 NSCA 63, the Court made the following observations in regard to the adjudication of human rights complaints in that province:

'Absent some extraordinary excuse such as serious illness or accident, or extended hospitalization, or other unforeseen calamity, the time for rendering judgment in the human rights field should be the same as what is expected in the judicial sphere, that is within six months of the hearing, if not sooner than that.

'Recognizing the well known principle that a key objective of human rights legislation is to be remedial, the process for inquiring into and exposing acts of discrimination must be expeditious in order to be effective. Otherwise, the salutary benefit of public scrutiny, enlightenment and appropriate redress in the face of proved violations, is lost. An efficient and timely disposition of complaints is in the interest of both complainants and those whose behaviour is impugned. It is also in the public interest.'

"Moreover, the Tribunal intends to adhere firmly to the Parliament’s directive in subsection 48.9(1), and to release decisions as often as possible within a four month time frame, in keeping with its stated commitment to Parliamentarians and Canadians as a whole."

Where does that leave our complainants? In has now been over seven years since the employment of George Vilven was terminated. In the hearing in April, his reinstatement of employment was not opposed by either Air Canada or ACPA. The only issue was the seniority that he would be entitled to, on his return. The Chair stated, during the last day of the hearing, that he would do his best to ensure that his decision was rendered by June 1st. It has now been five months since the hearing closed, with no decision yet rendered. The Thwaites hearing finished in mid-January. The decision in that case has yet to be rendered, more than eight month later. That delay is particularly troublesome, given that the hearing into the complaints was delayed for almost two years pending the rendering of the V-K decision, and the decision that will be rendered deals only with one portion of the liability part of the complaint. Absent resolution by negotiation, an extremely extensive remedy hearing will be required, adducing evidence of the alleged damages of each of the 70 complainants. Given that the remedy decision on V-K, only two pilots, has not yet been rendered over one full year after the liability decision was rendered, we could be a long way from reinstatement of these pilots, many of whom are now approaching the age where return to employment in the capacity of pilot-in-command is all but impossible.

Of course, the delays cause prejudice only to the complainants. ACPA and Air Canada suffer no such prejudice, save for potential monetary damages. The wheels of justice move slowly, obviously, but we are now beyond the point where justice delayed is justice denied.

Hopefully, these issues will be resolved very, very soon.

Saturday, July 24^th, 2010.

Yesterday, a representative from Air Canada Flight Operations management contacted George Vilven by telephone (and apparently also unsuccessfully attempted to contact Neil Kelly by telephone) to advise both pilots that Air Canada was planning to immediately reinstate their employment, with conditions.  The conditions apparently were derived by an arbitrary tentative Memorandum of Agreement (MOA) struck earlier this week between Air Canada and ACPA, and were made without any input whatsoever from the complainants or their legal counsel, and without yet having the benefit of the CHRT decision that has yet to be rendered in their case.

Simultaneously, the ACPA Chair issued a newsletter to active ACPA members yesterday in which he similarly described the proposed MOA, stating that is was negotiated with Air Canada by the ACPA Age 60 Legal Support Committee and that it had been unanimously approved by ACPA’s Master Executive Council.
Under the terms of the “agreement,” both pilots are to be reinstated to employment while remaining “on pension” and receiving a wage “top-up” to bring their net wage to a maximum of the amount that they would earn as Boeing 777 First Officers.  The purported agreement would apply only to these two individuals, and would completely fail to recognize a sizeable portion of the rights available to all other pilots at Air Canada that are protected under the terms of the collective agreement.  Specifically, both pilots would not be allowed to exercise their seniority rights to bid on the Pilot Position Assignment List, but rather would be “assigned” and trained in the position of “Embraer First Officer,” based in Toronto. Further, it would appear that the "agreement" essentially allows both pilots to continue employment while taking their pension, which thus would have the effect of maintaining the pension pay-outs at their pre-termination values, without allowing for further contributions to their years of service amounts or final average earnings amounts subsequent to reinstatement.

Without going into a great deal of detail with regard to other aspects of the alleged MOA, including a whole slew of ostensibly discriminatory restrictions on their rights under the collective agreement, we will simply say here that this proposed agreement, as it is put forward, appears to be a flagrant violation of Section 10 of the Canadian Human Rights Act, which states:

“10. It is a discriminatory practice for an employer, employee organization or employer organization

(a) to establish or pursue a policy or practice, or

(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,

that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.” [i.e. age]

Further, the fact that an arbitrary agreement has been struck with the employer that not only confirms the return to employment of these two complainants, but that now creates a separate (we suggest, "lower") class of employee, based on age, the employer is further implicated in the quagmire of this entire age discrimination dispute.

Given the fact that we only became aware of this development late Friday afternoon, we are not prepared at this time to say much more about it.

Meanwhile, we note that ACPA has found it necessary to close its internal discussion ACPA Forum for an indefinite period of time (perhaps permanently), for reasons that have not yet been fully disclosed to its members. With the loss of the Forum as a venue for internal discussion, ACPA members have no internal mechanism for exchange of information and ideas, save for private e-mail and face-to-face interaction at work.

Wednesday, July 14^th, 2010.

Yesterday, the federal Minister of State for Seniors, Ms. Diane Ablonczy, announced that the federal government will introduce legislative changes to many areas affecting seniors, including changes to pension plans and the abolition of mandatory retirement in almost all of the federal jurisdiction. Although she did not suggest exactly which groups would remain subject to mandatory retirement, there are generally two types of exemptions to the general prohibition against age discrimination: first, the exemption under Section 15(1)(c) of the Canadian Human Rights Act (that we have successfully challenged before the Tribunal) and second, exemptions provided for in separate statutes applicable to such groups as the judges and the military. It would appear that the government plans to repeal the CHRA exemption.

Of course, such an event will make any further legal actions before the Tribunal and the courts moot, save for those actions related to mandatory retirement that take place before the legislation comes into effect. Normally, governments that introduce bans on mandatory retirement make the legislation effective a given number of months after the legislation is proclaimed, in order to allow employers and employees to adjust. With the legislation, there is usually no retroactivity. However, pursuant to the provisions of the CHRA, anyone who files a complaint before the Commission within one year after their involuntary retirement is entitled to have their case proceed through due legal process.

The proposed legislative change marks a significant turning point for our efforts, for the simple reason that we have been telling both Air Canada and ACPA since mid-2006 that they must adapt to the impending changes. So far, the response from both parties has been litigious. Let us hope that now that, regardless of the outcome of the ongoing legal proceedings, both Air Canada and ACPA can finally deal with accommodating the change rather than with making lawyers wealthy fighting the inevitable. In addition to the need to accommodate the change, in our view, ACPA has a huge problem to face dealing with the fractures within its own membership over the age-based discrimination, and in particular, with minimizing the harmful attitude of the majority towards the minority who have strategically been on the correct side of the public policy issue since the beginning of the dispute. That is a workplace issue that will need addressing in a conscious and pro-active manner by both the union and the employer.

Meanwhile, we continue to wait for the release on both Tribunal decisions. Tribunal Rules of Procedure call for decisions to be released not later than four months following the completion of a hearing. Neverthless, the Thwaites et al decision has not yet been rendered, notwithstanding the fact that the hearing completed almost six months ago (the end of January). Further, despite the Tribunal Chair's suggestion that he would try to have the Vilven-Kelly remedy decision rendered by the beginning of June, it still has not been released. It is not possible to know the actual reason for the delay, save to assume the obvious: namely, both decisions involve complex areas of new law and followed hotly contested evidence and legal argument in their respective hearings.

In the meantime, the number of similar complaints before the CHRC continues to increase. There are now at least 140 Air Canada pilots who have filed complaints with the CHRC in respect of their age-based forced retirement. In addition we are aware of similar complaints by Air Canada flight attendants, sales staff and baggage workers (all in respect of age-65 forced retirement). In addition, we are advised that the Commission has received several complaints from employees of other industries, including the trucking industry and the maritime transportation industry. A hearing before the Tribunal that was scheduled in June (AC Flight Attendant) was delayed until September, ostensibly pending the release of our decisions.

Friday, May 14^th, 2010.

While we wait for the release of the two Tribunal decisions, the Thwaites et al. decision re liability and the Vilven-Kelly remedy decision, we see that ACPA has broken its previous reticence by finally and gradually informing pilots, via its general base Council meetings, that both George Vilven and Neil Kelly will be reinstated to full employment as a result of the forthcoming Tribunal decision. Their release of this information by way of verbal statements at the sparsely-attended Council meetings instead of via a general e-mail update to all members continues to keep the vast majority of its members in the dark with respect to the impact of the litigation on its sacred collective agreement and ageist-protective behaviour.

More disturbing, however, is the disclosure of various alternatives that ACPA is apparently considering with respect to the application of the forthcoming Tribunal orders that will not only reinstate these two pilots, but that will likely end Air Canada's practice of involuntarily terminating the employment of its pilots, based on age. The general thrust of the alternatives being considered is a continued effort on the part of ACPA to achieve through alternative means, discrimination based upon age that substitutes potential punitive measures against over-age 60 pilots for the measures that have been ruled illegal by the Tribunal. These measures apparently include, among other things, changing the provisions of the supplementary pension plan to make the option to remain employed beyond age 60 extremely unattractive. We are taking these developments under advisement, and will deal with them, should they arise, in due course. Let us simply say that the suggested alternatives would not only require the concurrence of Air Canada to implement the changes, but would obviously be open to legal challenge, given the status of age discrimination under the Canadian Human Rights Act.

In our view, these developments combined with other recent actions by the Association imply a continued fracturing of pilot solidarity that will obviously be problematic not only for the pilots who successfully challenge the discriminatory practice engaged in by the Association and the employer and who choose to return to work, but also for the entire pilot body that requires cohension to be successful in the next round of collective bargaining with the employer.

Friday, April 30^th, 2010.

At the hearing yesterday, the Tribunal Chair elected to reserve his decision, so the agreed upon Order of Reinstatement for George Vilven and Neil Kelly will now issue as soon as the decision is released, hopefully within four weeks.  Chair Sinclair hinted that he would attempt to have the decision rendered by June 1st.

The Chair expressed his desire that the reinstatement be effected as soon as possible and he did attempt to get Air Canada to agree to that position yesterday, however, there is one minor complication. Air Canada is arguing that both pilots’ seniority numbers should be discounted for the term of their absence. Of course, that is completely unacceptable to us, but the Chair was not interested in having the pilots reinstated without them having certainty as to what their seniority would be, so he elected to delay reinstatement that would otherwise have been ordered yesterday, pending his deliberation of the arguments on the seniority issue.

Air Canada in its written submissions to the hearing originally insisted on the proposition that the re-employment of both pilots would be conditional upon their successful completion of training. Of course, that would mean that their rights as pilots would then be diminished in comparison to other pilots’ rights under the collective agreement (by reason of the Train To Standard provision in Article 14), thus continuing the discriminatory practice.  So, after we vehemently objected to such a proposal, they eventually abandoned it, and conceded that the pilots once re-employed will be provided all of the rights under the collective agreement that similar pilots are provided.

Because seniority was the only outstanding issue about reinstatement, and because that will be decided on the release of the Tribunal’s decision, George Vilven and Neil Kelly will be going back to work soon and, as Air Canada stated to the Tribunal yesterday, they will be allowed to bid their position assignment (they will both hold the B777 F/O position, Toronto base) and be placed into training on the first available course after the Order of reinstatement is issued.

Victory! The mountain has been surmounted—age 60 at Air Canada is all but gone.

The remaining issues before the Tribunal in this case, such as the amount of the damages payable for lost wages awarded and the issuance of cease and desist order will be dealt with in the final Order.

Full update to follow, on the weekend. 

Wednesday, April 21^st, 2010.

The Federal Court today advised us that the hearing of the judicial review of the Vilven-Kelly Tribunal decision of August 28, 2009 will take place for four days in Ottawa, commencing Monday, November 22, 2010, at 09:30. This is precisely two years to the day after our previous successful judicial review before the same court in Ottawa. The decision in the previous decision was rendered three months after the hearing, in March, 2009.

Monday, April 19^th, 2010.

Today we received Air Canada's written outline of argument to the Tribunal. That argument will be presented next Wednesday and Thursday. There are essentially two major components to it. The most significant is that Air Canada has now confirmed in writing to the Tribunal that it will not oppose the reinstatement of employment of both George Vilven and Neil Kelly "at the next available training course for the equipment they will be assigned to fly," subject only to a few restrictions, such as holding a Class I medical, being able to renew their instrument rating, and meeting Transport Canada and Air Canada training standards. There is one additional constraint related to ICAO--namely, because both will be over age 65 by the time their training is complete, they have agreed to limit their position assignment bid to that of First Officer.

This written commitment to reinstatement (essentially, immediately) is a huge, huge victory for us! The saga has taken George almost seven years; for Neil it will be five years, as of the final date of the hearing next week.

Given the existing attitude of the younger pilots at Air Canada, we do not expect this news to be well received. So be it. For almost four years now we have been openly and candidly suggesting to the ACPA members that fighting the law of Parliament is a totally futile exercise, causing immense harm. Resources should have been used instead to get ahead of the problem, work with the law, and take steps consistent with the law to minimize the obvious short-term adverse impact of this change on the junior pilots. Response: slander, denial, excommunication.

The second aspect of Air Canada's written argument is more problematic, primarily for the preposterous suggestions contained within the document. In short, Air Canada is denying that either Complainant should be compensated in any form whatsoever for anything at all, be it damages, lost wages or expenses related to prosecuting their complaint. The biggest surprise of all is that Air Canada suggests that because both pilots allegedly benefitted throughout their careers by the existing mandatory retirement sytem, any damage award received should be discounted by the sum of $330,000 for George Vilven, and $450,000 for Neil Kelly. In other words, after violating their rights and forcing them through six years of expensive litigation to simply regain their employment, Air Canada is suggesting to the Tribunal that the Complainants, after receiving no damages whatsoever, will still be financially ahead by a sum well in excess of $250,000. Go figure.

We encourage you to attend the hearing next week. Wednesday and Thursday, April 28th and 29th. Federal Court offices, 180 Queen Street West, Toronto, 9:30 AM.