Bonna Fide Occupational Requirement
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Those who seriously believe that the Vilven-Kelly issue is closed or even that the latest CHRT decision on BFOR will withstand a challenge in judicial review owe it to themselves to take a look at the detailed legal analysis recently posted on the Fly Past 60 web site Update page: FlyPast60 Web Update Page -- Fly Past 60 Coalition Recent Events .
They have obviously gone to a huge effort to boil down a complex legal issue into simple terms, and they even include a flowchart that maps out the various portions of the proper legal test: http://www.flypast60.com/Documents/Flowchart.pdf
It's a pity that the Tribunal didn't go to the trouble of doing the same degree of legal analysis prior to rendering its decision.
They have obviously gone to a huge effort to boil down a complex legal issue into simple terms, and they even include a flowchart that maps out the various portions of the proper legal test: http://www.flypast60.com/Documents/Flowchart.pdf
It's a pity that the Tribunal didn't go to the trouble of doing the same degree of legal analysis prior to rendering its decision.
Thread Starter
It would appear that emotions are coming to the forefront again as opposed to analytical analysis.
After reading this and in discussion with friends in the legal system the argument is whither Air Canada can crew its flights economically with the over/under rule.
Captain Duke in his testimony said it cannot be done without undue financial hardship to the airline. As Captain Duke has the gravitas for this discussion, the judgement was rendered to show the airline would be in financial difficulties if the B.F.O.R. was not enforced.
As stated in other threads at other times the lawyer who will be in on the final ruling of this saga has not been conceived as of yet.
On another discussion point with friends in the legal community they find it curious for a lawyer to use public forums such as this to get his view across as opposed to the court room.
So rather than pontificating the same old "unfairness or human rights" enjoy what is left of the summer and let the process unfold as it will without your assistance.
After reading this and in discussion with friends in the legal system the argument is whither Air Canada can crew its flights economically with the over/under rule.
Captain Duke in his testimony said it cannot be done without undue financial hardship to the airline. As Captain Duke has the gravitas for this discussion, the judgement was rendered to show the airline would be in financial difficulties if the B.F.O.R. was not enforced.
As stated in other threads at other times the lawyer who will be in on the final ruling of this saga has not been conceived as of yet.
On another discussion point with friends in the legal community they find it curious for a lawyer to use public forums such as this to get his view across as opposed to the court room.
So rather than pontificating the same old "unfairness or human rights" enjoy what is left of the summer and let the process unfold as it will without your assistance.
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Captain Duke in his testimony said it cannot be done without undue financial hardship to the airline. As Captain Duke has the gravitas for this discussion, the judgement was rendered to show the airline would be in financial difficulties if the B.F.O.R. was not enforced.
So if I understand you correctly, you're saying Captain Duke has the expertise to say Air Canada lacks the necessary management skill to do what every other airline in North America and the rest of the world can do, and that we should believe him.
Do I have that right?
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Hello A330 Pilot:
You obviously didn't bother to attempt to absorb the information in the FP60 post. Gravitas, eh? At third base. You want to play the same game as your employer and your union? Start at third base. Why don't you read about getting by first base and second base, before you talk about the issues over at third base?
As I read the info, this issue is dead at first base. So all of Captain Duke's beautifully credible evidence is totally irrelevant to the issues before the Tribunal.
Go ahead. Prove me wrong. Show me how the union can get around the dropped link between job requirements and accommodation. In my view, the Tribunal decision sealed the fate of both the union and the employer, because it found as a fact that the purpose of mandatory retirement had absolutely nothing to do with the specific job requirements of being a pilot, and once the court applies the correct legal test to that finding, it is all over for both ACPA and Air Canada.
You obviously didn't bother to attempt to absorb the information in the FP60 post. Gravitas, eh? At third base. You want to play the same game as your employer and your union? Start at third base. Why don't you read about getting by first base and second base, before you talk about the issues over at third base?
As I read the info, this issue is dead at first base. So all of Captain Duke's beautifully credible evidence is totally irrelevant to the issues before the Tribunal.
Go ahead. Prove me wrong. Show me how the union can get around the dropped link between job requirements and accommodation. In my view, the Tribunal decision sealed the fate of both the union and the employer, because it found as a fact that the purpose of mandatory retirement had absolutely nothing to do with the specific job requirements of being a pilot, and once the court applies the correct legal test to that finding, it is all over for both ACPA and Air Canada.
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It’s crystal clear. The issue is about 2 pilots already accommodated, not extrapolation via some patchwork quilt of completely meaningless speculation about nothing in particular regarding the state of the hypothetical universe. There is simply no accommodation issue with these 2 pilots. The Tribunal analysis of BFOR is just simply dead wrong, and reading the Supreme Court analysis makes it even deader wrong. Given the clarity of the errors this would have to be about a half-hour deliberation for a Federal Court. In fact, with the Supreme Court as evidence, how would this even be expected to go past the Federal Court. It looks black and white from any direction. There is no BFOR argument anywhere in the USA or Canada, not including AC's little island of confusion and misinterpretation. There appears to have been very limited evidence in the VK Ruling/Decision and you likely can’t completely fault a Tribunal for getting it all wrong as you work with what’s on paper in front of you. But to any layman, reading all the related documentation leads anybody to see a very obvious complete misinterpretation of the law. The big question is does the ACPA membership pay half of VK’s wages again while they sit out awaiting another reinstatement? There’s the undue hardship for you. Saddling a pilot group with the tab for not being able to think like every other airline in both countries.
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No EngineFireLeft, If AC chose to increase to 65 like some (not all) other airlines then they would have the management ability to do so. The point is there would be duress to do it, so currently they don't want it, hence comes the BFOR. Not all other airlines have increased to 65. Some are still at 55.
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No EngineFireLeft, If AC chose to increase to 65 like some (not all) other airlines then they would have the management ability to do so. The point is there would be duress to do it, so currently they don't want it, hence comes the BFOR. Not all other airlines have increased to 65. Some are still at 55.
You’ve missed the entire point. In the VK case, as it will be in the Thwaites case, Age Discrimination is already prima facie proven and upheld by the Federal Court of Canada. The onus is then on AC to show BFOR and under the Guidelines as set forth by the Supreme Court they can’t do that and that trumps any Collective Agreement. When the dust settles you’ll see it in black and white. You can’t legally contract out of it, only in your dreams.
You’ve missed the entire point. In the VK case, as it will be in the Thwaites case, Age Discrimination is already prima facie proven and upheld by the Federal Court of Canada. The onus is then on AC to show BFOR and under the Guidelines as set forth by the Supreme Court they can’t do that and that trumps any Collective Agreement. When the dust settles you’ll see it in black and white. You can’t legally contract out of it, only in your dreams.
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After carefully reviewing the recent Federal Court decisions and the Tribunal decisions as well as the Supreme Court of Canada mandated tests required on the BFOR defence, here is my take on the current situation.
The Tribunal in its 2009 VK decision said, no maximum age. It made no reference to age 65. The Federal Court, in 2011, upheld that portion of its decision although ACPA appealed that decision to the Federal Court of Appeal with respect to Kelly, not Vilven, because ACPA was not named as a Respondent by Vilven. Air Canada did not appeal the decision, so the Federal Court's decision is settled law with respect to Vilven.
The issue of BFOR was referred back to the Tribunal for reconsideration on the basis of the three SCC required steps. The Tribunal's decision of July 8th addresses only that question, but because a BFOR defence supersedes all prohibitions under the CHRA, including age, a BFOR defence could have the effect of killing the case before the Tribunal and the courts. In BFOR, because each complaint must be decided on a case by case basis to measure individual accommodation of each individual complainant pleading discrimination, a finding of BFOR in one case cannot be a precedent to other cases.
As I read the Supreme Court of Canada case law, all defences under the CHRA must be narrowly construed. From my reading of the Tribunal's recent decision, the Tribunal did not recognize that constraint. Strict construction would seem to imply that the BFOR defence cannot be applied in a broad general context, for example with regard to an airline's mandatory retirement policy. Rather, the defence must be evaluated strictly in the context of the specific individual complainants before it.
As the flowchart on the Fly Past 60 web site clearly shows, the Tribunal in its decision overlooked the fact that the purpose of mandatory retirement, to meet the Supreme Court of Canada test, must be a "work-related purpose rationally connected to the performance of the job." The Tribunal found that the purpose of the Air Canada – ACPA mandatory retirement provision was "melding the needs of the company with the collective rights and needs of its pilots."
Tthat purpose has no apparent connection to the actual occupational requirements of the job, the essential part of a BFOR defence. This oversight would appear to mean that as a result the BFOR test should have failed on not just one of the required steps, but on all three of them and that the Tribunal's conclusion that the employer substantiated its BFOR defence is in error.
Further, at the third step of the test the employer is required to demonstrate that it could accommodate each individual complainant to the point of undue hardship. There is no indication in the Tribunal decision either that the Tribunal evaluated that test requirement in the case before it, or that there was any evidence before the Tribunal on the record to demonstrate that the employer actually did attempt to accommodate the individual complainants. As I read the preceding Federal Court decision on the same issue, the employer failed to consider any accommodation of these two individuals. Rather than considering any alternatives it simply terminated their employment in accordance with its mandatory retirement policy.
The upshot of this oversight is that regardless of the witness evidence of the potential cost to the airline of abolishing mandatory retirement, the step three test fails, and consequently the BFOR test fails.
The Tribunal not only missed that test requirement, but it apparently decided a different question entirely. It did not apply the accommodation test in regard to the two individual complainants before it, but applied the step three test in regard to the employer's mandatory retirement policy in general. Wrong question, irrelevant answer.
The interesting issue that will soon present itself is how the impending Thwaites decision from the same Tribunal will compare to the Vilven-Kelly decision on BFOR. Will they be consistent, or will they be polar opposites? Regardless, what will be the import of these decisions for the Tribunal's assessment of the remaining cases before it?
As I see it, the Tribunal itself is in trouble. This is its third decision on this one case in five years, and this is the third time that it erred in its analysis and conclusions.
The Tribunal in its 2009 VK decision said, no maximum age. It made no reference to age 65. The Federal Court, in 2011, upheld that portion of its decision although ACPA appealed that decision to the Federal Court of Appeal with respect to Kelly, not Vilven, because ACPA was not named as a Respondent by Vilven. Air Canada did not appeal the decision, so the Federal Court's decision is settled law with respect to Vilven.
The issue of BFOR was referred back to the Tribunal for reconsideration on the basis of the three SCC required steps. The Tribunal's decision of July 8th addresses only that question, but because a BFOR defence supersedes all prohibitions under the CHRA, including age, a BFOR defence could have the effect of killing the case before the Tribunal and the courts. In BFOR, because each complaint must be decided on a case by case basis to measure individual accommodation of each individual complainant pleading discrimination, a finding of BFOR in one case cannot be a precedent to other cases.
As I read the Supreme Court of Canada case law, all defences under the CHRA must be narrowly construed. From my reading of the Tribunal's recent decision, the Tribunal did not recognize that constraint. Strict construction would seem to imply that the BFOR defence cannot be applied in a broad general context, for example with regard to an airline's mandatory retirement policy. Rather, the defence must be evaluated strictly in the context of the specific individual complainants before it.
As the flowchart on the Fly Past 60 web site clearly shows, the Tribunal in its decision overlooked the fact that the purpose of mandatory retirement, to meet the Supreme Court of Canada test, must be a "work-related purpose rationally connected to the performance of the job." The Tribunal found that the purpose of the Air Canada – ACPA mandatory retirement provision was "melding the needs of the company with the collective rights and needs of its pilots."
Tthat purpose has no apparent connection to the actual occupational requirements of the job, the essential part of a BFOR defence. This oversight would appear to mean that as a result the BFOR test should have failed on not just one of the required steps, but on all three of them and that the Tribunal's conclusion that the employer substantiated its BFOR defence is in error.
Further, at the third step of the test the employer is required to demonstrate that it could accommodate each individual complainant to the point of undue hardship. There is no indication in the Tribunal decision either that the Tribunal evaluated that test requirement in the case before it, or that there was any evidence before the Tribunal on the record to demonstrate that the employer actually did attempt to accommodate the individual complainants. As I read the preceding Federal Court decision on the same issue, the employer failed to consider any accommodation of these two individuals. Rather than considering any alternatives it simply terminated their employment in accordance with its mandatory retirement policy.
The upshot of this oversight is that regardless of the witness evidence of the potential cost to the airline of abolishing mandatory retirement, the step three test fails, and consequently the BFOR test fails.
The Tribunal not only missed that test requirement, but it apparently decided a different question entirely. It did not apply the accommodation test in regard to the two individual complainants before it, but applied the step three test in regard to the employer's mandatory retirement policy in general. Wrong question, irrelevant answer.
The interesting issue that will soon present itself is how the impending Thwaites decision from the same Tribunal will compare to the Vilven-Kelly decision on BFOR. Will they be consistent, or will they be polar opposites? Regardless, what will be the import of these decisions for the Tribunal's assessment of the remaining cases before it?
As I see it, the Tribunal itself is in trouble. This is its third decision on this one case in five years, and this is the third time that it erred in its analysis and conclusions.
Last edited by Mechanic787; 29th Jul 2011 at 07:24.
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Mechanic787
Thank you for a well worded, thought out, no emotional POV on this BFOR issue.
There are many other mistakes on the actual legal issues of technical matters as well, ie, wrong lawyers for the defence, wrong dates, and many other errors.
Would like to see you on the AVCANADA.CA forum as well.
Thank you for a well worded, thought out, no emotional POV on this BFOR issue.
There are many other mistakes on the actual legal issues of technical matters as well, ie, wrong lawyers for the defence, wrong dates, and many other errors.
Would like to see you on the AVCANADA.CA forum as well.
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The Canadian labour relations community and the human rights community is likely to start expressing increasing concern about the questionable competency of the Canadian Human Rights Tribunal, given recent developments.
The Tribunal has come under public criticism recently for its failure to fulfill its mandate by failing to deal cases before it on a timely basis as well as for an apparent revolt of its own staff, alleging harassment by the new Tribunal Chair. (see: http://www.bcafn.ca/files/breaking-news-2011-03-01.php (text below)).
It is interesting to note that the Tribunal has yet to release its 2010 Annual Report, despite the fact that the books closed on 2010 seven months ago. Could the delay in issuing the report have anything to do with the Tribunal's embarrassment in its apparent inability to obtain a decision from the member who is deciding the Thwaites case some 18 months after the January, 2010 close of that hearing, given the Tribunal's own policy that its decisions be released within six months of the close of a hearing, if not sooner?
Its most recent decision, the Vilven-Kelly BFOR decision, can only add fuel to a fire that is burning robustly. Not only has the decision not yet been posted on the Tribunal web site over three weeks after the release of the decision to the parties, but the decision itself is a remarkable testament to the obvious difficulties that the Tribunal is having demonstrating that it is maintaining any adjudicative competence.
My point here is simply this. The July 8th decision clearly shows that the Tribunal, in considering the evidence and legal issues before it, obviously did not even bother to read the Supreme Court of Canada precedent case that sets out a mandated template for substantiating a BFOR defence. If I am in error on this, namely, the Tribunal did in fact read the Meiorin case before rendering this decision, the decision then indicates that the Tribunal failed to comprehend the most basic minimum legal principles set out in the SCC case, which, of course, is even more problematic.
What it did, instead, is simply quote the fundamental requirements of the SCC mandated test, the proceed to overlook the actual wording that it quoted and apply a completely different test, one that drops the required link between the employer's purpose in requiring mandatory retirement and the occupational basis of the defence—it overlooked the simple fact that a BFOR defence must compare the purpose of the discriminatory standard to the actual characteristics and tasks of the job that is required to be performed.
Even a lay person can understand the need for that link. Bona fide occupational requirement. Occupational requirement. Qualification and competency to perform the tasks required of the job. Simple. Obvious. But apparently not so simple and obvious to the expert Tribunal that is statutorily empowered with the exclusive jurisdiction to enforce the general prohibitions against discrimination enumerated in its enabling statute. Dangerous stuff, because getting this test wrong can have the impact of totally undermining the purpose and effectiveness of the entire Canadian Human Rights Act.
Embarrassing indeed, especially given the monkey wrench that this glitch in the adjudication process is likely to throw into the entire litany of litigation in this single case that has been going on now for eight years and that shows no sign of being resolved any time soon.
My legal beagle friends tell me that this decision, even though it will undoubtedly be overturned on appeal, will likely kill the scheduled hearing for the appeal of the Tribunal's November, 2010 remedy hearing this fall. Because the complaints were dismissed, the appeal of the remedy decision is now moot.
The decision could also have some adverse impact on the scheduling and adjudication of the other pilot mandatory retirement cases pending before the Tribunal.
=================
Chris Cobb, Ottawa Citizen, March 1 [2011]- The embattled Canadian Human Rights Tribunal was publicly rebuked Monday for a two-year delay in dealing with a case involving the welfare of First Nations children. In a pointed statement,
David Langtry, acting chief of the Canadian Human Rights Commission, said the tribunal's failure to deal with the two-year-old case was having a direct impact on the lives of vulnerable children.
In a parallel action, the Ottawa lawyer acting for First Nations communities filed a statement with the Federal Court asking it to force the tribunal to deal with the case. "It's not simply about money or financial damages," said lawyer Paul Champ, "it's about vulnerable children who are being denied the equal right to stay in their homes and communities. It's no exaggeration to say that more children are harmed every month that passes without this complaint being resolved." Champ says planned hearings at the tribunal were cancelled for no apparent reason.
Langtry agreed with Champ that the delays are harming children. "The hardship of children makes this an urgent matter," he said. At the heart of the case is the underfunding of child welfare agencies on reserves -a federal responsibility -compared with provincially funded child welfare agencies elsewhere in Canada. The complaint was brought to the commission by the Assembly of First Nations and First Nations Child and Family Caring Society of Canada against Indian and Northern Affairs Canada. Champ and other humanrights lawyers say internal strife at the tribunal is crippling its ability to do its work, which is to deal with cases referred by the commission.
According to the Public Service Alliance, five employees -roughly a quarter of the staff -have filed harassment-related complaints against tribunal chair Shirish Chotalia, the Calgary lawyer appointed in late 2009 by the Harper government. More than half of the staff have left for other public service jobs or been sidelined by stress since she took over.
Chotalia has refused to be interviewed about the problems and acting tribunal executive director Frederick Gloade did not return a call from the Citizen on Monday. The Privy Council Office has said it will investigate the tribunal's workplace problems but has yet to do so.
Langtry says the tribunal's decision on the First Nations case could be precedent-setting. "If it is determined that these services do not fall under the jurisdiction of the Canadian Human Rights Act," he said, "Canadians may no longer be able to file discrimination complaints in relation to services provided by the government."
The Tribunal has come under public criticism recently for its failure to fulfill its mandate by failing to deal cases before it on a timely basis as well as for an apparent revolt of its own staff, alleging harassment by the new Tribunal Chair. (see: http://www.bcafn.ca/files/breaking-news-2011-03-01.php (text below)).
It is interesting to note that the Tribunal has yet to release its 2010 Annual Report, despite the fact that the books closed on 2010 seven months ago. Could the delay in issuing the report have anything to do with the Tribunal's embarrassment in its apparent inability to obtain a decision from the member who is deciding the Thwaites case some 18 months after the January, 2010 close of that hearing, given the Tribunal's own policy that its decisions be released within six months of the close of a hearing, if not sooner?
Its most recent decision, the Vilven-Kelly BFOR decision, can only add fuel to a fire that is burning robustly. Not only has the decision not yet been posted on the Tribunal web site over three weeks after the release of the decision to the parties, but the decision itself is a remarkable testament to the obvious difficulties that the Tribunal is having demonstrating that it is maintaining any adjudicative competence.
My point here is simply this. The July 8th decision clearly shows that the Tribunal, in considering the evidence and legal issues before it, obviously did not even bother to read the Supreme Court of Canada precedent case that sets out a mandated template for substantiating a BFOR defence. If I am in error on this, namely, the Tribunal did in fact read the Meiorin case before rendering this decision, the decision then indicates that the Tribunal failed to comprehend the most basic minimum legal principles set out in the SCC case, which, of course, is even more problematic.
What it did, instead, is simply quote the fundamental requirements of the SCC mandated test, the proceed to overlook the actual wording that it quoted and apply a completely different test, one that drops the required link between the employer's purpose in requiring mandatory retirement and the occupational basis of the defence—it overlooked the simple fact that a BFOR defence must compare the purpose of the discriminatory standard to the actual characteristics and tasks of the job that is required to be performed.
Even a lay person can understand the need for that link. Bona fide occupational requirement. Occupational requirement. Qualification and competency to perform the tasks required of the job. Simple. Obvious. But apparently not so simple and obvious to the expert Tribunal that is statutorily empowered with the exclusive jurisdiction to enforce the general prohibitions against discrimination enumerated in its enabling statute. Dangerous stuff, because getting this test wrong can have the impact of totally undermining the purpose and effectiveness of the entire Canadian Human Rights Act.
Embarrassing indeed, especially given the monkey wrench that this glitch in the adjudication process is likely to throw into the entire litany of litigation in this single case that has been going on now for eight years and that shows no sign of being resolved any time soon.
My legal beagle friends tell me that this decision, even though it will undoubtedly be overturned on appeal, will likely kill the scheduled hearing for the appeal of the Tribunal's November, 2010 remedy hearing this fall. Because the complaints were dismissed, the appeal of the remedy decision is now moot.
The decision could also have some adverse impact on the scheduling and adjudication of the other pilot mandatory retirement cases pending before the Tribunal.
=================
Chris Cobb, Ottawa Citizen, March 1 [2011]- The embattled Canadian Human Rights Tribunal was publicly rebuked Monday for a two-year delay in dealing with a case involving the welfare of First Nations children. In a pointed statement,
David Langtry, acting chief of the Canadian Human Rights Commission, said the tribunal's failure to deal with the two-year-old case was having a direct impact on the lives of vulnerable children.
In a parallel action, the Ottawa lawyer acting for First Nations communities filed a statement with the Federal Court asking it to force the tribunal to deal with the case. "It's not simply about money or financial damages," said lawyer Paul Champ, "it's about vulnerable children who are being denied the equal right to stay in their homes and communities. It's no exaggeration to say that more children are harmed every month that passes without this complaint being resolved." Champ says planned hearings at the tribunal were cancelled for no apparent reason.
Langtry agreed with Champ that the delays are harming children. "The hardship of children makes this an urgent matter," he said. At the heart of the case is the underfunding of child welfare agencies on reserves -a federal responsibility -compared with provincially funded child welfare agencies elsewhere in Canada. The complaint was brought to the commission by the Assembly of First Nations and First Nations Child and Family Caring Society of Canada against Indian and Northern Affairs Canada. Champ and other humanrights lawyers say internal strife at the tribunal is crippling its ability to do its work, which is to deal with cases referred by the commission.
According to the Public Service Alliance, five employees -roughly a quarter of the staff -have filed harassment-related complaints against tribunal chair Shirish Chotalia, the Calgary lawyer appointed in late 2009 by the Harper government. More than half of the staff have left for other public service jobs or been sidelined by stress since she took over.
Chotalia has refused to be interviewed about the problems and acting tribunal executive director Frederick Gloade did not return a call from the Citizen on Monday. The Privy Council Office has said it will investigate the tribunal's workplace problems but has yet to do so.
Langtry says the tribunal's decision on the First Nations case could be precedent-setting. "If it is determined that these services do not fall under the jurisdiction of the Canadian Human Rights Act," he said, "Canadians may no longer be able to file discrimination complaints in relation to services provided by the government."
Last edited by Mechanic787; 30th Jul 2011 at 20:27.
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Perhaps the Tribunal should have had a look at the Commission's own web site to learn what a BFOR is, before deciding that it doesn't have to have anything to do with the ability to perform the job:
http://www.chrc-ccdp.ca/preventing_discrimination/page4-eng.aspx
Bona Fide Occupational Requirement
13. What is a bona fide occupational requirement?
14. What is the process for determining if a rule or a standard is a BFOR?
13. What is a bona fide occupational requirement?
A bona fide occupational requirement (or BFOR, for short) is a standard or rule that is integral to carrying out the functions of a specific position. For a standard to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard would create an undue hardship.
For example, an airline pilot must have very good eyesight. This standard is integral to carrying out the duties of a pilot’s job.
When a standard is a BFOR, an employer is not expected to change it to accommodate an employee. However, to be as inclusive as possible, an employer should still explore whether some form of accommodation is possible anyhow.
14. What is the process for determining if a rule or standard is a BFOR?
The Supreme Court of Canada established a three-step process to determine if a specific accommodation is a BFOR because it creates an undue hardship4. The three-step process encourages the development of standards that are free from discriminatory barriers and that accommodate the potential contributions of all employees.
a) Step one: Establish a rational connection
Was the rule adopted for a purpose rationally connected to the performance of the job?
In the first step, the employer identifies the general purpose of the standard and determines whether it is rationally connected to the performance of the job. For example, in the case of the airline pilot, good eyesight is rationally connected to flying aircraft in all weather conditions.
However, if there is no rational relationship, the employer is expected to accommodate and the rule cannot be a BFOR. For example, the employer believes that good customer service requires that all its employees stand when greeting customers. While the rule of standing to greet customers may have been adopted in good faith and with no intention to discriminate, it has a discriminatory impact on those who use wheelchairs. Is the standard reasonably necessary? No. One might legitimately argue that good customer service does not solely rely on standing to greet customers.
b) Step two: Establish good faith
Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose?
This step looks at the subjective element of the standard. The employer considers whether the standard was adopted with no intention of discriminating against an employee or group of employees.
The following considerations are helpful in determining whether the rule or standard was adopted in good faith:
Why was the standard developed?
When and by whom was the standard developed?
What process was used to develop the standard?
If the standard is not thought to be reasonably necessary or motivated by discriminatory considerations, then the standard must be changed, as it cannot be a BFOR.
c) Step three: Establish reasonable necessity
Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?
In this step the employer examines whether the standard is reasonably necessary. The employer must carefully consider all reasonable options for accommodation, short of undue hardship. If the employer, after exploring all options for accommodation, finds that it cannot accommodate, then the rule can be considered a BFOR.
On the other hand, if the employer finds that it can accommodate the employee, then the employer must change the rule or standard to incorporate the accommodation.
Here are some questions to ask in considering whether the standard is reasonably necessary.
Were alternatives to the standard or rule considered?
If so, why weren’t they adopted?
Must all employees meet a single standard, or could different standards be adopted?
Does the standard treat some more harshly than others?
If so, was the standard designed to minimize this differential treatment?
What steps were taken to find accommodations?
Is there evidence of undue hardship if accommodations were provided?
4 British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999 35 C.H.R.R. D/257 (S.C.C.) also known by the name of Meiorin
http://www.chrc-ccdp.ca/preventing_discrimination/page4-eng.aspx
Bona Fide Occupational Requirement
13. What is a bona fide occupational requirement?
14. What is the process for determining if a rule or a standard is a BFOR?
13. What is a bona fide occupational requirement?
A bona fide occupational requirement (or BFOR, for short) is a standard or rule that is integral to carrying out the functions of a specific position. For a standard to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard would create an undue hardship.
For example, an airline pilot must have very good eyesight. This standard is integral to carrying out the duties of a pilot’s job.
When a standard is a BFOR, an employer is not expected to change it to accommodate an employee. However, to be as inclusive as possible, an employer should still explore whether some form of accommodation is possible anyhow.
14. What is the process for determining if a rule or standard is a BFOR?
The Supreme Court of Canada established a three-step process to determine if a specific accommodation is a BFOR because it creates an undue hardship4. The three-step process encourages the development of standards that are free from discriminatory barriers and that accommodate the potential contributions of all employees.
a) Step one: Establish a rational connection
Was the rule adopted for a purpose rationally connected to the performance of the job?
In the first step, the employer identifies the general purpose of the standard and determines whether it is rationally connected to the performance of the job. For example, in the case of the airline pilot, good eyesight is rationally connected to flying aircraft in all weather conditions.
However, if there is no rational relationship, the employer is expected to accommodate and the rule cannot be a BFOR. For example, the employer believes that good customer service requires that all its employees stand when greeting customers. While the rule of standing to greet customers may have been adopted in good faith and with no intention to discriminate, it has a discriminatory impact on those who use wheelchairs. Is the standard reasonably necessary? No. One might legitimately argue that good customer service does not solely rely on standing to greet customers.
b) Step two: Establish good faith
Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose?
This step looks at the subjective element of the standard. The employer considers whether the standard was adopted with no intention of discriminating against an employee or group of employees.
The following considerations are helpful in determining whether the rule or standard was adopted in good faith:
Why was the standard developed?
When and by whom was the standard developed?
What process was used to develop the standard?
If the standard is not thought to be reasonably necessary or motivated by discriminatory considerations, then the standard must be changed, as it cannot be a BFOR.
c) Step three: Establish reasonable necessity
Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?
In this step the employer examines whether the standard is reasonably necessary. The employer must carefully consider all reasonable options for accommodation, short of undue hardship. If the employer, after exploring all options for accommodation, finds that it cannot accommodate, then the rule can be considered a BFOR.
On the other hand, if the employer finds that it can accommodate the employee, then the employer must change the rule or standard to incorporate the accommodation.
Here are some questions to ask in considering whether the standard is reasonably necessary.
Were alternatives to the standard or rule considered?
If so, why weren’t they adopted?
Must all employees meet a single standard, or could different standards be adopted?
Does the standard treat some more harshly than others?
If so, was the standard designed to minimize this differential treatment?
What steps were taken to find accommodations?
Is there evidence of undue hardship if accommodations were provided?
4 British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999 35 C.H.R.R. D/257 (S.C.C.) also known by the name of Meiorin
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I see Mechanic 787 is cheerleading along with the FP60 group about this crazy CHRT decision....yep, if the CHRT just accepted the FP60 point of view and RH's arguments, then this would all be done and we could go on to arguing about something else....
As someone here noted, the fact the the lawyer for the FP60 crowd spends his time posting and subsequently getting booted off bulletin boards is rather distasteful and speaks to the fact that this is as much a "public opinion" issue as it is a legal issue.
I find it extremely amusing to listen to all the "legal"analysts here, talking in circles, reiterating what the FP60 propaganda machine is publishing.
If you're all so legally competent, get a law degree and fight this injustice.
As someone here noted, the fact the the lawyer for the FP60 crowd spends his time posting and subsequently getting booted off bulletin boards is rather distasteful and speaks to the fact that this is as much a "public opinion" issue as it is a legal issue.
I find it extremely amusing to listen to all the "legal"analysts here, talking in circles, reiterating what the FP60 propaganda machine is publishing.
If you're all so legally competent, get a law degree and fight this injustice.
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Anyone know, if....any of the other employee's that were reinstated, have been terminated also?
Is it just V/K, that are being targeted, (just pilots) or are the other AC employee's getting the boot for the second time?
This would be the IAM, CUPE, and the CAW members.
Is it just V/K, that are being targeted, (just pilots) or are the other AC employee's getting the boot for the second time?
This would be the IAM, CUPE, and the CAW members.
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Originally Posted by 767-300ER
I see Mechanic 787 is cheerleading along with the FP60 group about this crazy CHRT decision....yep, if the CHRT just accepted the FP60 point of view and RH's arguments, then this would all be done and we could go on to arguing about something else....
Unlike most here, my interest is in the larger picture: the labour relations and human rights context of this dispute. These Tribunal and court decisions have broad social policy implications that go well beyond the parochial interests of the protagonists. In case you did not discern the underlying thrust of my posts above, let me spell it out for you.
My posts were not focused on the pilot dispute. They were focused on the notion that the Canadian public is currently not being well served CHRT's apparrent inability to display the foggiest grasp of the human rights law and principles that it is constitutionally designated to adjudicate. That is a problem for all of us, including you, by reason of the ultimate cost that will have to be paid for everyone to go through the appeal process to correct the most basic of errors. Maybe your union has lots of money to waste responding to these failings. I know that most others don't.
Last edited by Mechanic787; 1st Aug 2011 at 11:02.
Thread Starter
Good Morning 767-300ER:
What you will find with this subject it will attract a certain cadre that are highly strident in their writings. Of interest are some new posters who write in the certain style of an individual who will remain nameless who is banned from writings/postings on PPRuNe.
My friends in the I.T. world say it is possible for one who is banned from a web site can use another domain/url (?) to get by the gate keeper to continue their postings by using a different name.
I did find it humorous that one poster criticized a "retired" senior jurist who wrote the B.F.O.R. ruling for age yet he wants "contractually agreed" sorry I should use mandatory retirement repealed. Other postings have been critical of a Captain Duke who was testifying about the financial difficulty of accommodating the ruling in with a business model in his testimony.
[39] There is nothing in the record of the previous proceedings to suggest that the Tribunal, or the reviewing Judge, found that Captain Duke lacked credibility. Based on my review of his evidence, I am satisfied that he was a credible witness. Further, I find that his evidence is convincing and cogent.
[40] Captain Duke’s testimony has established, on a balance of probabilities, that elimination of mandatory retirement of pilots at age 60, either through a final determination of this case or through revision of the collective bargaining agreement, will carry with it a heavy burden to achieve full compliance with ICAO’s over/under rules.
[41] It is more likely than not that the scheduling of pilots over age 60 will become markedly less efficient and more costly as compared with the certainty that the company has experienced with mandatory retirement requirements which have been in place since 1957. I accept 14 Captain Duke’s succinct assessment of the over/under rule: “It is the conditionality of the restriction that causes the problems.”
[42] Captain Duke’s description of the workings of Air Canada Flight Operations reveals a practical and efficient balancing between the Marketing Department flight requirements and Flight Operation’s ability to assign pilots to them. He testified that the elimination of the mandatory retirement provision in the collective agreement, in combination with the restrictions of the over/under rule, will require the employment of more pilots at greater cost to ensure that all flights will be piloted in compliance with ICAO’s over/under rule.
[43] Based on Captain Duke’s testimony it is inconceivable that Air Canada and ACPA would, together, willingly embrace the inflexibility and cost of matching “one pilot over age 60 with one pilot under
Now the Meiorin test, if one reviews it you will find it is based on "discrimination of sex." If I have the dates right it goes back to 1999 where a female firefighter in the B.C. forest service was terminated because she was 45 seconds over a physical fitness test which was made for men. I find it ironic how a sex discrimination case is now being used for age discrimination. Guess that makes me a dinosaur…….
It seems the protagonists on the other web site "AvCanada" have taken it over here to continue their fight as people have lost interest by the below copied posting.
"I love reading posts by Rockie, Duranium, Lost in Saigon, Accumulous, Norwegianwood, Vic777....
You guys must love sitting around a circle and getting each other all excited about the legal intricacies of this debacle.
Let's do a little recall of the legal victories that have been touted around this issue....
V & K reinstated...well, they were for a short time....
damages for V & K, again, I hope they pocketed the interest on the award, 'cause I think they're going to be paying it back
Cease and desist order for mandatory retirement....nope
precedent for following cases...nope
pain and suffering damages...nope
wilful and reckless damages...nope
Wow, not a lot there..."
In closing I may use a quote taken from a posting from AvCanada by the greatest Englishman ever, Sir Winston Spencer Churchill to those rightly opposed to fly past 60.
“In war, resolution; in defeat, defiance; in victory, magnanimity
What you will find with this subject it will attract a certain cadre that are highly strident in their writings. Of interest are some new posters who write in the certain style of an individual who will remain nameless who is banned from writings/postings on PPRuNe.
My friends in the I.T. world say it is possible for one who is banned from a web site can use another domain/url (?) to get by the gate keeper to continue their postings by using a different name.
I did find it humorous that one poster criticized a "retired" senior jurist who wrote the B.F.O.R. ruling for age yet he wants "contractually agreed" sorry I should use mandatory retirement repealed. Other postings have been critical of a Captain Duke who was testifying about the financial difficulty of accommodating the ruling in with a business model in his testimony.
[39] There is nothing in the record of the previous proceedings to suggest that the Tribunal, or the reviewing Judge, found that Captain Duke lacked credibility. Based on my review of his evidence, I am satisfied that he was a credible witness. Further, I find that his evidence is convincing and cogent.
[40] Captain Duke’s testimony has established, on a balance of probabilities, that elimination of mandatory retirement of pilots at age 60, either through a final determination of this case or through revision of the collective bargaining agreement, will carry with it a heavy burden to achieve full compliance with ICAO’s over/under rules.
[41] It is more likely than not that the scheduling of pilots over age 60 will become markedly less efficient and more costly as compared with the certainty that the company has experienced with mandatory retirement requirements which have been in place since 1957. I accept 14 Captain Duke’s succinct assessment of the over/under rule: “It is the conditionality of the restriction that causes the problems.”
[42] Captain Duke’s description of the workings of Air Canada Flight Operations reveals a practical and efficient balancing between the Marketing Department flight requirements and Flight Operation’s ability to assign pilots to them. He testified that the elimination of the mandatory retirement provision in the collective agreement, in combination with the restrictions of the over/under rule, will require the employment of more pilots at greater cost to ensure that all flights will be piloted in compliance with ICAO’s over/under rule.
[43] Based on Captain Duke’s testimony it is inconceivable that Air Canada and ACPA would, together, willingly embrace the inflexibility and cost of matching “one pilot over age 60 with one pilot under
Now the Meiorin test, if one reviews it you will find it is based on "discrimination of sex." If I have the dates right it goes back to 1999 where a female firefighter in the B.C. forest service was terminated because she was 45 seconds over a physical fitness test which was made for men. I find it ironic how a sex discrimination case is now being used for age discrimination. Guess that makes me a dinosaur…….
It seems the protagonists on the other web site "AvCanada" have taken it over here to continue their fight as people have lost interest by the below copied posting.
"I love reading posts by Rockie, Duranium, Lost in Saigon, Accumulous, Norwegianwood, Vic777....
You guys must love sitting around a circle and getting each other all excited about the legal intricacies of this debacle.
Let's do a little recall of the legal victories that have been touted around this issue....
V & K reinstated...well, they were for a short time....
damages for V & K, again, I hope they pocketed the interest on the award, 'cause I think they're going to be paying it back
Cease and desist order for mandatory retirement....nope
precedent for following cases...nope
pain and suffering damages...nope
wilful and reckless damages...nope
Wow, not a lot there..."
In closing I may use a quote taken from a posting from AvCanada by the greatest Englishman ever, Sir Winston Spencer Churchill to those rightly opposed to fly past 60.
“In war, resolution; in defeat, defiance; in victory, magnanimity
Last edited by a330pilotcanada; 2nd Aug 2011 at 14:15. Reason: clarity
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1) How is it that other airlines manage to fly with Captains over the age of 60, yet Air Canada says it will be unable to?
2) If there is no age barrier for First Officers, why can't Air Canada allow their pilots to fly as First Officers after age 60? Just as Neil Kelly did..... How did allowing Neil Kelly to operate after age 60 impact the operations of Air Canada?
What is you explanation on these two points? Why is it Air Canada is the only airline that can't have pilots over the age of 60 when the Federal Regulations of the country they operate in allows it, and other airlines are able to do so?
2) If there is no age barrier for First Officers, why can't Air Canada allow their pilots to fly as First Officers after age 60? Just as Neil Kelly did..... How did allowing Neil Kelly to operate after age 60 impact the operations of Air Canada?
What is you explanation on these two points? Why is it Air Canada is the only airline that can't have pilots over the age of 60 when the Federal Regulations of the country they operate in allows it, and other airlines are able to do so?
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Why is it Air Canada is the only airline that can't have pilots over the age of 60 when the Federal Regulations of the country they operate in allows it, and other airlines are able to do so?
Air Canada is either the most incompetent airline in the developed world or they are lying. I used to think they were lying, but now I'm not so sure.
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Originally Posted by a330pilotcanada
[39] There is nothing in the record of the previous proceedings to suggest that the Tribunal, or the reviewing Judge, found that Captain Duke lacked credibility. Based on my review of his evidence, I am satisfied that he was a credible witness. Further, I find that his evidence is convincing and cogent.
When challenged as to if he did other "experiments" with more realistic numbers, such as 50% or 20% of 10% instead of 100%, he said he didn't. He said that he didn't know what the real percentage would be, so he just assumed it would be 100%! Consequently, all of the "experiments" that he did, from which he derived the cost assumptions used by the Tribunal to justify the undue hardship decision, were based on assumptions that had absolutely zero probability of ever occuring.
He even stated that he was certain that 100% would not stay past age 65. In other words, he admitted that his "evidence" was was not based on reality.
It would have been helpful if the Tribunal had considered that fact in its deliberation of the value of the entire testimony, but there is no reference in the decision to that admission or to any other statements made in Captain Duke's cross-examination.
Did the Tribunal even read the cross-examination testimony before accepting all of the speculations as fact? It would seem that fairness would demand some kind of recognition and balancing of the conficting testimony not only of this witness's testimony, but of the testimony of other witnesses that refuted many of his assertions. Nada.
I suppose that there is credibility, and then there is credibility.
Last edited by OverUnder; 2nd Aug 2011 at 19:36.