Update

Thursday, September 24, 2015

Today the 69 Coalition Complainants in the Adamson et al. proceeding against Air Canada and ACPA filed with the Supreme Court of Canada an Application for Leave To Appeal the decision of the Federal Court of Appeal issued June 26, 2015, reinstating the Tribunal decision and dismissing their complaints. The argument provided by the Applicants in favour of the Court granting the appeal is posted on this web site: SCC Leave To Appeal, Memorandum of Arugment.

Air Canada and ACPA will have 30 days to respond to the application, in writing. At that point the materials will be put on the roster of the Court for a decision by the three panel judges of the Court who will decide whether leave is granted. In the event that application for leave is granted, the case will then be set down for a hearing at which the full merits of the issues before the Court will be argued.

As a result of the filing of this Application for Leave To Appeal, all of the other complaints in respect of pilot mandatory retirement that are currently before the CHRT will be held in abeyance, pending the outcome of this Leave applicaton.

Split BarSaturday, July 11th, 2015

On Friday, June 26th, the Federal Court of Appeal released its decision in respect of the Coalition, Air Canada and ACPA appeals of Federal Court decision 2014 FC 83, the judicial review of the 2011 Adamson (formerly referred to as "Thwaites") Tribunal decision: 2015 FCA 153.

In our view, there was no clear winner to the decison. Although the Court set aside the Federal Court decision and reinstated the Tribunal award, dismissing the 70 complaints, it did so on the basis of a finding that the second previous Federal Court decision identifying the characteristics of the "comparator group" was not binding on the Tribunal. Namely, it stated that the succeeding case has to be determined by the Tribunal on the basis of the evidentiary record before it, not on the prior findings in the Vilven/Kelly proceeding.

The upshot of that distinction, it would appear, means that a new hearing is required for the over 100 pilots whose mandatory retirement complaints were adjourned, pending the outcome of these appeals. New day, new airplane. New Tribunal member hearing the succeeding complaints. New decision. In other words, for the 100-plus pilots whose complaints are still to be heard, they are still in the same position as they would have been, had the complaint hearings proceeded in 2012. In response to the decision, we have contacted the Tribunal and formally asked that the cases now be set down for hearing.

In the decision, the FCA did not address the fundamental question before the Tribunal: namely, how does one determine the normal age of retirement for individuals engaged in similar work to Air Canada pilots, so as to arrive at a determination of whether age 60 was, as of the date of termination of employment of the respective complainants, was indeed the normal age of retirement. It simply found that the Federal Court judge erred by substituting his own opinion for the opinion of the Tribunal Chair, which is improper, and which was justification to set aside the judgment.

The FCA also chose not to address the judge's finding that wages, pensions career path expectations could form the basis of a bona fide occupational requirement defence to discrimination on the basis of age. Instead, it simply set aside the entire judgment and reinstated the Tribunal decision finding to the contrary. So as it stands now, those factors do not constitute the elements of a BFOR defence.

We are awaiting a response from Air Canada, ACPA and the CHRC with respect to our request to move the remaining complaints to a hearing. The Tribunal has asked the parties to respond within one week.

With respect to the Adamson complaints, the only option now for those individuals is to seek leave to appeal the decision from the Supreme Court of Canada. The deadline for filing the application is 90 days from the date of the release of the FCA decision, and as such no decision has yet been made in that regard.

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Thursday August 14th, 2014

The pleadings in the Federal Court of Appeal file are now complete. Replies filed by Air Canada, ACPA and the CHRC are as follows:

Air Canada Reply to Coalition Appeal of ACPA BFOR;

ACPA Reply to Coalition Appeal of ACPA BFOR; and

CHRC Reply to Coalition Appeal of ACPA BFOR.

The completion of the pleadings now permits us to apply to the Court of Appeal for a hearing date. It is expected that the hearing should be held in Ottawa, for three days, likely in November or December, with a decision to follow four to eight weeks after the completion of the hearing.

Split BarTuesday August 5th, 2014

The final stages of the Federal Court of Appeal proceedings are finally on the horizon. After the Federal Court released its Adamson et al. decision, in January, you will recall, we filed an appeal of the decision granting ACPA a BFOR defence to mandatory retirement, and both ACPA and Air Canada filed appeals with regarding to the Normal Age of Retirement portion of the decision. Air Canada also filed an appeal of the portion of the decision that denied its BFOR defence on the basis of the ICAO Over-Under Rule constraints.

In late June all three parties filed their principal arguments with the Federal Court of Appeal in their Memoranda of Fact and Law ("factum," singular, or ""facta," plural). The facta are the documents that provide the written basis for the oral argument in the eventual hearing. They outline both the facts and law supporting one's position. Once the Appellants' facta are filed, each party is entitled to file a Reply Factum. We filed our Reply factum to both the Air Canada and ACPA appeals today. The links to the documents are: Reply To Air Canada BFOR Appeal and Reply to Air Canada - ACPA Normal Age of Retirement Appeal.

The Reply facta from Air Canada, ACPA, and from the Canadian Human Rights Commission (that is supporting our position on all of the appeals) are due later this week and early next week.

Once those documents are filed, we must then apply for a hearing date. There is a possibility, depending on the availability of all of the legal counsel and the judges of the Court of Appeal, that the hearing could still be held later this year. The FCA usually renders its decisions between four to ten weeks after a hearing.

Can these appeals go on forever? No. The only Court above the FCA is the Supreme Court of Canada, and in order to have the SCC hear the case, one must apply for leave to appeal. Only one out of approximately every 30 cases are granted leave, given the fact that the SCC can hear only about 75 cases per year. In order to be granted leave, one must demonstrate that the case is one of significant legal value as well as being of national importance. Hence the probability of any party on this issue being granted leave is very low.

So the end is in finally sight, eight years after the beginning of this saga. If we are successful in all three appeals, as we expect to be, the issues will be remitted to the Tribunal for its decision on liability, and then, optimistically speaking, the commencement of hearings to deal with the issue of remedy--reinstatement, where possible and where appropriate, and damages.

We will post the Air Canada, ACPA and CHRC Reply submissions once they are filed with the Court, as it is at that point that they become public documents.

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Saturday, June 21st, 2014

The wheels of justice turn slowly. . . but they do turn! Although there has been very little news over the course of the past three months with respect to the files before the Commission, the Tribunal and the Courts, there has been much "behind the scenes" work occuring. Preparation for the hearing before the Federal Court of Appeal with respect to all four appeals filed by the parties of the decision of the Federal Court issued in January is nearing completion.

There are four appeals in progress, two by Air Canada, one by ACPA and one by the Coalition.

You will recall that the Federal Court decision overturned the Tribunal's decision on "normal age of retirement," refering the case to the Tribunal for reconsideration. The Court said that the Tribunal's determination of the proper comparator group was too restrictive because it would essentially eliminate all pilots working for Air Canada's major competitors, such as WestJet, Air Transat and (in 2005) SkyService from the comparator group. The Court remitted the case to the Tribunal to reconsider the decision using a more expansive determination of comparator group pilots. Both Air Canada and ACPA appealed that portion of the decision (two appeals).

You will recall also that the Tribunal rejected Air Canada's bona fide occupational requirement (BFOR) defence. The Court upheld that portion of the Tribunal decision saying that the Tribunal's decision that Air Canada had failed to show that it would suffer undue hardship by being required to meet the ICAO limitations on Captains over age 60 being required to be paired with at least one fully qualified pilot under age 60, was reasonable. Air Canada appealed that decision (the third appeal).

Finally, you will also recall that the Federal Court decision overturned the Tribunal's decision on the ACPA BFOR defence, finding instead that eliminating mandatory retirement would cause the younger members of the pilot union undue hardship by delaying or decreasing their career income earning potential. The Coalition appealed that decsision. The Appeal factum that we filed deals extensively with a number of, what we believe are, serious errors in the Court's decision.

The process before the Court of Appeal, where cases are heard by three judges instead of one, involves a number of procedural steps, given the number of appeals. First, we had to move to consolidate all four appeals in order to have them heard by the same judges at the same time. Second, we elected to ask the Court to have the Court allow us to file most of the voluminous documentation in electronic form only (a huge cost saving). Finally, we agreed to set down fixed dates for the filing by each party of their Appeal and Reply submissions.

So as of now, the portion with respect to the Appeal submissions is complete. The parties now have 60 days to file their Replies to other parties' submissions on Appeal. Once the Reply submissions are filed we can apply for a hearing date. The Canadian Human Rights Commission, supporting our position in each of the Appeals, will also file a Reply factum. The deadline for the Replies is in the second week of August.

We are optimistic that we might be able to obtain a hearing date in October or November, with a final decision of the Court of Appeal rendered about four to six weeks afterwards.

We have posted the Appeal submissions of all three parties on this site (each document is titled, "Memoradum of Fact and Law," otherwise referred to in legal parlance as a Factum (singular) or Facta (plural): Coalition Appeal Factum, ACPA Appeal Factum, and Air Canada Appeal Factum.

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Monday, March 17th, 2014

ICAO recently approved amendments to its Annex 1, Personnel Licensing, that have the effect of removing the restrictions on flights by pilots-in-command over age 60 that presently requires them to be paired with at least one fully-qualified First Officer under age 60, among other changes. The changes becomes effective November 13, 2014.

More surprisingly, however, in the same amendment, ICAO has changed the upper age limit of age 65 for First Officers from a "recommendation" to a "standard" which means effective the same date, no pilot who is over age 65, pilot-in-command or First Officer, will be able to operate any flights in international airspace. The proposal is given in the following document: ICAO-Annex1_UAL2014 and the confirmation of implementation is given on the following ICAO web site: ICAO CERG.

Split BarMonday, March 3rd, 2014

Two points to discuss today.

The first one deals with one of the grounds of our appeal of the Federal Court decision on the ACPA BFOR defence. The second one discusses a recent case from the Supreme Court of Canada that could have immense financial implications for the amount of damages payable to the Complainants, should their Complaints be upheld.

Point #1.

ACPA claimed that when mandatory retirement is eliminated there is a duty to "accomodate" pilots over age 60, and that that "duty to accommodate" must be viewed in the context of the effect that the "accommodation" would have on the seniority progression and income expectations of younger pilots allegedly adversely affected by having older pilots remain on the seniority list, blocking or slowing their promotion and career progression for an indefinite period of time.

We countered with the point that there is no "occupational requirement" that should distinguish the ability of the over-age 60 pilot from the under-age 60 pilot--both are equally qualified and competent to do the same job. We stated that absent mandatory retirement, there is no difference in the qualifications of an age 60 pilot compared to a younger pilot. Absent discrimination, there is no need for a defence to discrimination. The BFOR defence therefore cannot be invoked.

Although the Tribunal didn't comment on that argument, it upheld our BFOR defence argument on other grounds.

We made the same submission to the Federal Court. Surprisingly, the Federal Court not only disregarded that argument, misinterpreting or ignoring the same fundamental legal point that was not picked up by the Tribunal, but went further, overturning the Tribunal's decision on the second legal issue.

The fact remains, however, that a BFOR defence is a defence to discrimination. If you eliminate discrimination (mandatory retirement) you eliminate the ability to advance a defence to discrimination. Absent discrimination (post mandatory retirement), there is no discrimination to defend.

Simple: no discrimination, no defence to discrimination, no BFOR defence, no duty to accommodate, and no corresponding consideration of the effect on the seniority progression and income stream of younger pilots. The entire premise of ACPA's argument and the Federal Court decision is unfounded. Game, set, match.

Point #2. In December, 2013, the Supreme Court of Canada released its decision in the case, IBM v. Waterford 2013 SCC 70. A copy of the case is posted on this site. In that decision the issue was damages for wrongful termination of employment, and specifically whether payments made under a defined benefit pension plan should be deducted from any damage award payable. The Courts, at all three levels, said that pension benefits should not affect the damage award. The person wrongfully terminated should receive both the damage award and the benefits to which he or she is entited under the pension plan for the period covered by the damage award.

One need not speculate much about the potential financial implications of this decision, if it is applied by the Tribunal in the circumstances of the over 200 Complainants who were force-retired by the Air Canada — ACPA mandatory retirement provision of the collective agreement. The potential financial implications of the decsion are huge.

Time will tell.

Split BarSaturday, March 1st, 2014

As we expected, this week both Air Canada and ACPA filed their respective Notices of Appeal of the Federal Court's decision in the judicial review of the Tribunal's 2011 decision in the Adamson et al. v. Air Canada et al case (that we have consistently referred to as the Thwaites case). The now three appeals of the single decision will undoubtedly be consolidated by the Court of Appeal, for a single hearing of all three appeals. Because appeals deal strictly with issues of law, as opposed to judicial reviews that deal with issue of mixed fact and law, the time frame for completion of the submissions and the scheduling of the hearings is far more compressed than it is for judicial review hearings.

We have posted copies of the Air Canada and ACPA Notices of Appeal on the site: Air Canada Notice of Appeal: A-111-14; ACPA Notice of Appeal: A-112-14, and we may provide comments later in respect of our perception of the merits of either or both of these appeals.

Split BarWednesday, February 20th, 2014

Today the Fly Past 60 Coalition filed with the Federal Court of Appeal its Notice of Appeal of the Federal Court decision issued January 27th granting ACPA’s judicial review of the Tribunal’s August, 2011 decision in the Thwaites hearing (legally identified as Adamson et al. v. Air Canada et al.) denying ACPA its requested BFOR defence.


In that hearing, ACPA had alleged that the potential adverse economic impact on the future earnings of younger pilots that would allegedly occur if the mandatory retirement provision of the collective agreement were removed would constitute accommodation beyond the point of undue hardship, and thus should stand as an “bona fide occupational requirement” (BFOR) defence against discrimination, so as to allow the employer to continue to terminate the employment of pilots on the basis of age, regardless of whether the statutory provision permitting mandatory retirement was or was not in effect.


As you know, Air Canada and ACPA voluntarily removed the mandatory provision from the collective agreement effective December 15, 2012, the date that the repeal of the statutory exemption to mandatory retirement came into effect.  Air Canada and APCA replaced the mandatory retirement provision with LOU 75, a provision that applied alternative conditions that allowed pilots to remain employed past age 60, but imposed conditions on the terms of that employment.


Even though the mandatory retirement provision of the collective agreement was removed in 2012, the Tribunal’s decision in the Thwaites hearing still had legal implications as a result of the potential impact on the remedies to the Thwaites litigants—if a BFOR was sustained, the terminations would be held to not infringe the statute, resulting in a denial of the complaints.


We have posted the Notice of Appeal on this web site: Notice of Appeal—you will see that it contains nine different substantive grounds of appeal, most of which are written using legal terminology that is oriented towards meeting judicial precedent. You should note one proviso: the grounds are allegations only, and have yet to be addressed in submissions of the employer or the union, or to be tested by the Court of Appeal.


We anticipate that our Notice of Appeal will not be the only Notice of Appeal filed in respect of the Federal Court decision given the potential liability that could result if the Tribunal ultimately sustains the complaints of the now approximately 200 pilots whose complaints are in the queue.  There is a 30 day limitation period for filing an appeal, and that period expires next Wednesday, February 26th—either or both Air Canada and/or ACPA could appeal the portions of the decision that went against them.


In any event, we expect that the entire process will unfold with a hearing by the Court of Appeal in late summer or early fall, with a final decision rendered within weeks afterwards.

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Monday, January 27th, 2014

Finally, eight months to the day since the Federal Court heard our judicial review application concerning the Tribunal's 2011 decision regarding the "Normal Age of Retirement," the Court released its decision: Federal Court decision 2014 FC 83

The Court overturned the Tribunal's dismissal of that portion of our complaints, stating emphatically that the Tribunal erred in a number of different ways in interpreting the previous decision of the Federal Court on how to determine which pilots in Canada should constitute the "comparator group" to Air Canada pilots.

Specifically, the Court rejected the Tribunal's finding that none of the pilots working for the 10 major airlines competing with Air Canada, including WestJet, Air Transat and (in 2005) SkyService, should not be considered as working in "positions similar" to the positions of Air Canada pilots. You may recall that the earlier Federal Court decision described Air Canada pilots' work as follows: "The essence of what Air Canada pilots do is to fly aircraft of verying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace."

The interpretation of that statement, urged upon the Tribunal by Air Canada's legal counsel and ultimately accepted by the Tribunal, was that to meet the "comparator" definition, the only pilots to be considered as comparators were pilots who flew both domestic and international flights, both small and large sizes of aircraft, and more than one type of aircraft. The irony in the decision is that at the hearing, counsel for Air Canada and the Chair of the Tribunal both remarked that such an interpretation was absurd, for the simple reason that construing the requirements "conjunctively" would necessarily reduce the pool of pilots accepted as comparitors to only those working for tiny airlines such as Air Tindi and Air Labrador. Nevertheless, that was the outcome of the Tribunal's decision.

The Court thus sent the case back to the Tribunal to re-decide the question of normal age of retirement based on the functional aspects of the various pilot jobs--namely, what to pilots from other airlines actually do that would properly lead the Tribunal to conclude that their work is not similar to the work of Air Canada pilots. Although the Court did not make a finding that almost all other airline pilots in Canada do work similar to the work of Air Canada pilots, we must remember that the juridiction to make that finding lies not with the Court but with the Tribunal. Hence, the case is referred to the Tribunal for a redetermination, based on the interpretation provided by the Court. It will remain to be seen if Air Canada can successfully overcome the obvious implications of this decision, namely that almost all, if not all airline pilots in Canada work in positions substantially similar to the positions of Air Canada pilots.

The Canadian Human Rights Act exemption to the prohibition on mandatory retirement, prior to the provision being repealed effective December 15, 2012, applied if and only if, in this circumstance, age 60 was found to be the "normal age of retirement" for "employees working in positions similar" to the positions of Air Canada pilots. Given that Air Canada pilots were the only ones forced to retire at age 60, and given that Air Canada pilots account for less than one-third of all airline pilots working in Canada, it is now highly unlikely that the Tribunal will be able to find that Air Canada pilot employment terminations fell within the statutory exemption.

The importance of the Court's decision should not be underestimated. Remember that when the Tribunal reinstated both George Vilven and Neil Kelly, the damages awarded each pilot for the loss of only slightly over one year of salary were in the order of approximately $100,000 per pilot. Given that there are over 200 pilots in the Coalition that still have outstanding complaints before the Commission and the Tribunal, the potential liability in damages is more than substantial. That liability, if found, is joint and several liability shared equally by both Air Canada and the pilot union.

Is the referral of this case back to the Tribunal now a "slam dunk?" No. In addition to referring the "normal age of retirement" issue back to the Tribunal, the Court dealt with two other issues. First, Air Canada had argued at the Tribunal hearing that age 60 retirement constituted a bona fide occupational requirement (BFOR), and thus exempted the application of the restrictions on age discrimination. The Tribunal rejected Air Canada's arguments. The Federal Court yesterday similarly rejected Air Canada's arguments that the Tribunal had erred on that point of law.

However, ACPA judicially reviewed the same BFOR point on different grounds. It argued that accommodation of those over age 60 who would either be reinstated in employment or who would decline to retire at age 60, if the exemption was no longer applicable, must be offset by the economic harm that would allegedly be caused by delaying or restricting the younger pilots' career progression.

The Court accepted ACPA's argument and set out a specific protocol for the Tribunal to assess the implications of this argument. We will undoubtedly have much more to say about this portion of the Court's decision once a full analysis of the factual and legal circumstances surrounding the Court's determination has been completed.

In summary, this Court decision in our favour on the inapplicability of the mandatory retirement exemption is a huge step forward. Should the Tribunal ultimately decide the Complaints in our favour, the next phase would be remedy hearings for each of the over 200 pilot complainants, to determine the quantum of damages and whether, as in the circumstances of Vilven and Kelly, reinstatement of employment is justified.

As Yogi Berra once said, "It ain't over 'till its over." The Coalition Complainants case before the CHRC, the Tribunal and the courts is anything but over.

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Wednesday, October 3rd, 2012

On Monday we filed our application for Leave To Appeal the August decision of the Federal Court of Appeal regarding the Charter question, with the Supreme Court of Canada. A copy of the core document of that application, the Factum, is now posted.

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Thursday, August 16th, 2012

The amendment to the Air Canada – ACPA collective agreement that took effect with the issuance of arbitrator Stanley’s award on July 30th contains a number of problematic restrictions for pilots intending to remain employed as Air Canada pilots subsequent to the coming into force of the repeal of the mandatory retirement exemption of the Canadian Human Rights Act on December 15th, 2012. The restrictive conditions are largely contained in the new LOU 75.

The Stanley Arbitration Award and LOU 75: Elimination of Mandatory Retirement are both posted on this web site.  LOU 75 purports to restrict Position Assignment List bidding and award options for pilots over age 60, and thus could seriously affect working conditions and earning potential for anyone planning not to retire at age 60.  What is the legal issue?

The Canadian Human Rights Act, Section 10 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.


In other words, the restrictions in LOU 75 are in direct contravention of Section 10 of the CHRA.  So, how does the employer expect to overcome that limitation?  Paragraph 15(1)(a) of the CHRA allows an exception to any otherwise “discriminatory practice” in cases where the practice can be justified as a bona fide occupational requirement (BFOR).

 
As we know from our previous litigation on this issue, there are strict limits to the availability of a BFOR defence. May we suggest that at a minimum, in order for Air Canada to meet the requirements of that defence, it must be able to demonstrate that the restriction meets all three Steps of the SCC Meiorin decison, including the requirement to accommodate each individual pilot so restricted to the point of undue hardship.


Not only must the employer attempt to accommodate each pilot, on an individual basis, in the disputed position, but in order to justify the imposition of the proposed restriction, the employer must demonstrate that accommodating the individual pilot would cause it undue hardship. That is an onerous requirement indeed.


In our view, blanket restrictions restricting pilots over age 60 from bidding as wide body First Officers or from bidding as narrow-body Captains go well beyond any reasonable restriction on the rights of individuals to be free from age discrimination, even with the existing ICAO limitations.  Remember, the ICAO restrictions apply only to pilots-in-command, not to First Officers, and they are net of the entire crew complement, including augment First Officers.  If the pilot-in-command is not over age 60, there is no requirement that any of the other crew members be under age 60.


LOU 75 therefore is seriously problematic.  This type of restriction was considered by the Supreme Court of Canada in a prior case: Brossard. The SCC alternatively referred to the excessive nature of the similarly overly broad restriction in that case as, “killing a fly with a sledge hammer” and being “disproportionately stringent.” The SCC therefore disallowed the similar provision as not qualifying as a BFOR.


What is likely to happen with this contractual provision, then?  In our view, a legal action (not before the Tribunal  but before the Federal Court) seeking a Declaration that that the provision is of no force and effect and/or seeking injunctive relief to prevent Air Canada from relying upon the provision in its upcoming CMSC bidding and training processes, is almost certain to result, and soon.

In our view, the present ICAO restrictions can result in the appropriate restrictions on pilot bidding rights. For example, restrictions on pilots over age 65 bidding to operate flights as pilots-in-command would result in the airline not being able to operate flights with those pilots in international airspace where the ICAO restrictions are not waived. In our earlier hearings before the Tribunal and the Federal Court, the pilots waived any claim to bid and be paid as Captains, once over the age of 65, so as to not place the airline in the position of having to attempt to accommodate restrictions that would likely cause the employer undue hardship.

It should be noted that there has never been any evidence presented to any of the Tribunal or Court hearings that any other airline in the world has any difficulty working within the ICAO age restriction constraints, without any restrictions of the degree currently manifested in this collective agreement. In fact, the evidence presented to the Tribunal in the Thwaites hearing by representatives of all the other major airlines in Canada was that the ICAO restrictions were not a problem for them.

In our June BFOR hearing before the Federal Court, we sought to have these issues finally decided by the Court. Unfortunately, with the Federal Court of Appeal directing the Tribunal to dismiss the underlying Vilven-Kelly complaints, that BFOR decision has not yet been (it may not be rendered any time soon). We may have to wait until the upcoming Federal Court Thwaites BFOR hearing deals with the same issue once again, or until one or more of the pilots adversely affected by these new bidding restrictions files an action with the Federal Court to address this issue head on.

In the meantime, age discrimination continues to be an issue, notwithstanding the impending repeal of repeal of the mandatory retirement exemption in the CHRA.

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Wednesday, July 18th, 2012

Today the Federal Court of Appeal released its decision on ACPA's appeal of the Federal Court's decision regarding the constitutionality of the mandatory retirement exemption in the Canadian Human Rights Act. A copy of the decision is posted here: FCA Charter Decision. The Court allowed the appeal, finding that the Supreme Court of Canada case in 1990 upholding mandatory retirement under Section 1 of the Charter for Ontario university professors was binding on the Courts and Tribunal in respect of mandatory retirement of Air Canada pilots.

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Wednesday, July 4th, 2012

Last week, on June 26th and 27th the Federal Court in Ottawa heard our application for judicial review of the July, 2011 Tribunal decision upholding the bona fide occupational requirement (BFOR) defence and dismissing the Vilven-Kelly Complaints. A thorough review of the issues and arguments placed before the Court last week is provided in a separate PDF document: BFOR Judicial Review Update. If the Federal Court quashes the decision under review, the issue will be referred back to the Tribunal for yet another decision, this time with explicit directions of the Court as to the nature of its determination. In any event, if the decision is quashed, that will "undo" the dismissal of the Complaints and likely lead to the second reinstatement of employment of both George Vilven and Neil Kelly.

The Tribunal has now set down four weeks of hearings for the remedy portion of the Thwaites complaints. The hearings will commence in October and continue in November and December. These hearings are subject to the successful outcome of the Charter decision that currently pending from the Federal Court of Appeal. That decision is in response to ACPA's appeal of the Federal Court decision upholding the the Tribunal's finding that the mandatory retirement exemption provision in the Canadian Human Rights Act is in violation of the Charter. The FCA hearing was last November, and the decision is expected to be released very shortly.

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Wednesday, April 18th, 2012

The CHRT released its ruling on the issue of whether ther Federal Court decision finding that Paragraph 15(1)(a) of the CHRA is in violation of the Charter is binding on the Tribunal in respect of the Thwaites complaints. The Tribunal's ruling, provided on this site: 2012 CHRT 9. reverses its previous decision dismissing the complaints, upholds the complaints, and sets the matter on course for a remedy hearing to decide the question of damages and/or reinstatement for each of the 70 Complainants in the proceeding. More to follow on this Ruling, very shortly.

Split BarSunday, February 26th, 2012

The last two months have been extremely intense ones for the Coalition and its legal counsel, as we were required to complete all of the submissions to the Federal Court on seven separate judicial reviews, three arising from the July, 2011 Tribunal decision, and four arising from the August, 2011 Tribunal decision. A graphic illustration of the various proceedings under judicial review by the court in respect of those two Tribunal decisions is provided in a flowchart provided on this site: Road Map #1. In due course, we will post the pleadings of each of the parties in respect of those judicial review proceedings on this site.

On February 20th, the Tribunal finally addressed the motion brought by counsel for the CHRC in September, correcting the error of the Tribunal in its decision of August, 2011, in dismissing the Thwaites complaints. The Tribunal member deciding the case apparently "forgot" that he had issued a directive to the parties prior to the commencement of the Thwaites hearing in October, 2009, that the constitutional issue (i.e. the issue of whether Paragraph 15(1)(c) of the Canadian Human Rights Act was in violation of the provisions of the Charter of Rights and Freedoms) would be dealt with subsequent to the Tribunal's decision being rendered on the merits of the defence under Paragraph 15(1)(c) of the Act, if required. On February 20th, the Tribunal granted the Commission's motion, and then began dealing with the only remaining liability issue in the case, how to proceed with the deterimination of the Charter issue, by holding a hearing and receiving evidence and argument, or by simply deciding the issue based upon the precedent of the Federal Court decision on the same issue in the Vilven-Kelly proceeding.

Road Map #1 describes the landscape in respect of the judicial reviews prior to the Tribunal Conference Call February 20th. Once the Tribunal finally granted the CHRC's motion to "undismiss" the Thwaites complaints (during that Conference Call) and put the complaints before it once again for determination of the Charter issue, the CHRC withdrew its application for judicial review that sought to overturn the dismissal of the complaints. The remaining three Thwaites judicial reviews then were put "on hold," pending the final determination of the Tribunal's decision on the liability portion of the complaints. That decision will be issued after the Tribunal completes its deterimination of the Charter issue.

A modification to update the pre-February 20th Road Map is given in Road Map #1A. The revised map illustrates the current structure of the cases before the Tribunal and the Federal Court. This structure should be viewed in conjuction with Road Map #2 that describes the Charter litigation before the courts. Specifically, the decision of the Federal Court of Appeal on the constitutionality of Paragraph 15(1)(c) of the Canadian Human Rights Act (the mandatory retirement exemption) is expected to be delivered within the next few weeks. The decision of the Federal Court of Appeal ("FCA") will be binding on both the Federal Court and on the Tribunal in respect of the the mandatory retirement exemption, regardless of whether the FCA upholds the Federal Court decisision of February, 2011, or whether it overrules the Federal Court decision.

Although the Federal Court of Appeal decision is expected to be released within the next several weeks, it may not be released for some time. Accordingly, in order to bring the Thwaites complaints to finality, the Complainants insisted that the Tribunal continue hearing the case based upon the existing law, namely the Federal Court decision that found the mandatory retirement exemption to be in contravention of the Charter. It is the position of the Coalition that not only is the filing of an appeal or even the hearing of an appeal of the Federal Court decision not a valid reason to have the Tribunal interrupt its adjudication of the complaints before it, but that the Federal Court decision itself is binding upon the Tribunal. Strong case law, on a number of grounds, supports the position that the Tribunal does not have the jurisdiction to re-hear cases that are intended to re-litigate issues that have already been determined by the Federal Court. Not only is the Court's decision on the Charter issue binding upon the Tribunal, but the legal doctrines of res judicata and abuse of process foreclose the Tribunal from hearing any case that would re-try the very issue that was decided by the Court.

Of course, neither Air Canada nor ACPA agrees with those propositions. As a result, the Tribunal has given the parties a limited period of time to make written submissions on the law on those points, following which it will make its determination of whether it can or may hear evidence and argument on the Charter issue in the Thwaites case, given the prior determination of the Federal Court on the Charter issue in the Vilven-Kelly case. All submissions of the parties are to be completed by April 2nd, following which the Tribunal agreed to render its decision by April 12th. As we stated above, this whole exercise will become academic, should the Federal Court of Appeal release its decision prior to April 12th.

There was one other development in the Thwaites case resulting from the Tribunal Conference Call on February 20th. Because of the lead time necessary for the scheduling of any hearings, we asked the Tribunal to assign dates for the potential remedy hearing of the Thwaites complaints. Although the liability decision in the case has not yet been finally rendered and although the decision will not be rendered before April 12th at the earliest, we insisted that the Tribunal set aside several weeks for the eventuality of conducting the remedy hearing, should the Tribunal, for whatever reason, find that the complaints are sustained. Although counsel could not agree on hearing dates during the summer, there was agreement that the initial hearing would commence on June 18th, and extend into the following week, June 25th. Further dates are to be agreed upon by the parties themselves.

Having established the procedure for the continuation of the Thwaites case, there is now no impediment to the Federal Court hearing the judicial reviews of the Vilven-Kelly case that resulted from the Tribunal's decision of August, 2010, dismissing their complaints and resulting in their second termination of employment.

The third case to go before the Tribunal now includes all Air Canada pilot complainants referred by the Commission to the Tribunal since the beginning of the Thwaites hearing in 2009. Those Complainants, as of this week, now total 89 in number. The ase is formally referred to as Bailie et al. v. Air Canada et al. In late November, the Tribunal assigned two weeks to be used to commence the hearing, March 26th to March 30th, and April 30th to May 4th. In December, ACPA filed a motion with the Tribunal seeking to indefinitely adjourn the Bailie hearing, pending determination of some or all of the prior legal issues before the courts. The parties made submissions on that motion (of course, we opposed any further delay) and the Tribunal member assigned to the case has yet to decide the motion. That decision should be rendered by this coming Tuesday, as there is currently scheduled a two-day Case Management Conference in Ottawa, to commence next Thursday, March 1st. The purpose of that meeting is to finalize the identification of the issues before the Tribunal, the number of witnesses intended to be called by each party, and the number of days of hearing expected in total.

Split BarThursday, December 15th, 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 14th, 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 14th, 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 14th, 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.

Split BarTuesday, December 13th, 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.

Split BarMonday, December 12th, 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.

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