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Old 12th Jul 2011, 00:51   #1 (permalink)
 
Join Date: May 2010
Location: Canada
Age: 64
Posts: 252
Bonna Fide Occupational Requirement

Good Evening All:

Please find the ruling on the B.F.O.R. below.

I feel it is time for all to move on unless if you live in CYWG.


Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne

BETWEEN:
GEORGE VILVEN
Complainant

- and -

CANADIAN HUMAN RIGHTS COMMISSION
Commission

- and -

AIR CANADA
Respondent

- and -

AIR CANADA PILOTS ASSOCIATION
FLY PAST 60 COALITION
Interested Parties

AND BETWEEN:

ROBERT NEIL KELLY
Complainant

- and -

CANADIAN HUMAN RIGHTS COMMISSION
Commission

- and -

AIR CANADA
AIR CANADA PILOTS ASSOCIATION
Respondents

DECISION
MEMBER: Wallace G. Craig 2011 CHRT 10
2011/07/08


TABLE OF CONTENTS Page

I. INTRODUCTION ............................................................ ............................................................ ... 1
II. THE APPLICABLE LAW ............................................................ ...................................................... 2
III. THE EVIDENCE ............................................................ ............................................................ .. 4
IV. RE-DETERMINATION............................................... ............................................................ ........ 13
V. RULING ............................................................ ............................................................ .......... 16
VI. DECISION ............................................................ ............................................................ ....... 16

I. INTRODUCTION

[1] This is the third decision by the Canadian Human Rights Tribunal (the Tribunal) arising
out of an inquiry into complaints under the Canadian Human Rights Act (CHRA) by pilots
George Vilven and Robert Kelly that they had been subjected to a discriminatory practice
resulting from mandatory retirement at age 60, in accordance with provisions in a collective
agreement between Air Canada Pilots’ Association (ACPA) and Air Canada.

[2] At the date of his retirement on September 1, 2003, at age 60, Mr. Vilven was a
First Officer when flying an Airbus 340. Mr. Kelly retired on April 30, 2005, the day on which he
turned age 60. At the time of his retirement, Mr. Kelly was a Captain and Pilot-in-command when
flying an Airbus 340.

[3] The first decision of the Tribunal was rendered in August 2007, and dismissed the human
rights complaints. On judicial review, the first decision was quashed in part, and the matter was
remitted to the Tribunal for re-determination of a Charter issue and, if necessary, whether
mandatory retirement provisions constituted a bona fide occupational requirement within the
meaning of s. 15(1)(a) of the CHRA.

[4] The second decision of the Tribunal was rendered on August 28, 2009 (2009 CHRT 24).
A judicial review of this decision by the Federal Court resulted in a Judgment by
Justice Mactavish, dated February 3, 2011, ordering, among other things, that:
3. Air Canada’s application for judicial review is granted, in part, as it relates to the
Tribunal’s finding that Air Canada had not demonstrated that age was a bona fide
occupational requirement for its pilots.
4. The question of whether age was a bona fide occupational requirement for Air
Canada pilots after November of 2006 is remitted to the same panel of the
Tribunal, if available, for re-determination in accordance with these reasons, on
the basis of the existing record.
2

[5] As the same panel of the Tribunal was not available to proceed with the re-determination
as ordered, I have been asked to re-determine the question of whether age was a bona fide
occupational requirement for Air Canada pilots after November 2006, in accordance with the
reasons for judgement of Justice Mactavish, and on the basis of the existing record. In the course
of my re-determination, I have read and considered Justice Mactavish’s reasons for judgement
and I have examined and considered, in its entirety, the evidence of
Captain Steven Christopher Duke (Captain Duke), a witness called by Air Canada on the issue of
accommodation.

[6] With respect to the evidence of Captain Duke, Justice Mactavish commented in
paragraph 429 of her Reasons that:
As was noted earlier, Air Canada says that the Tribunal misunderstood and
mischaracterized the evidence put forward by Captain Duke in support of its undue
hardship argument. Air Canada also contends that the Tribunal ignored important
portions of Captain Duke’s evidence as to the operational and scheduling
difficulties that would result if Air Canada were required to accommodate pilots
over the age of 60. …;
And in paragraph 384:
I also agree with Air Canada that having regard to the systemic nature of
Messrs. Vilven and Kelly’s human rights complaints and the fact that the potential
invalidation of the mandatory retirement provisions in the Air Canada Pension
Plan and the Air Canada/ACPA collective agreement would affect other Air
Canada pilots, it was also appropriate for the Tribunal to examine the issue of
undue hardship on a going-forward basis, taking into account the subsequent
changes to the ICAO standards…

II. THE APPLICABLE LAW

CANADIAN HUMAN RIGHTS ACT PROVISIONS
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race,
national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status,
family status, disability and conviction for which a pardon has been granted.
3
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.
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in
relation to any employment is established by an employer to be based on a bona fide
occupational requirement;
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona
fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be
considered to have a bona fide justification, it must be established that accommodation of
the needs of an individual or class of individuals affected would impose undue hardship
on the person who would have to accommodate those needs, considering health, safety
and cost.

[7] In her reasons for judgment, Justice Mactavish summarizes the legal principles governing
bona fide occupational requirements (at paras. 353-358):
The test to be applied for determining whether an employer has established a bona fide
occupational requirement is that articulated by the Supreme Court of Canada in Meiorin
[British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (1999)
3 S.C.R. 3]
That is an employer must establish on a balance of probabilities that:
(1) The employer adopted the standard for a purpose rationally connected to the
performance of the job;
(2) The employer adopted the particular standard in an honest and good faith belief that it
was necessary to the fulfillment of that legitimate work-related purpose; and
(3) The standard is reasonably necessary to the accomplishment of that legitimate workrelated
purpose. To show that the standard is reasonably necessary, it must be
demonstrated that it is impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship upon the employer.
The first and second steps of the Meiorin test require an assessment of the legitimacy of
the standard’s general purpose, and the employer’s intent in adopting it. This is to ensure
that, when viewed both objectively and subjectively, the standard does not have a
discriminatory foundation.
The third element of the Meiorin test involves the determination of whether the standard is
required to accomplish a legitimate purpose, and whether the employer can accommodate
the complainant without suffering undue hardship: McGill University Health Centre v.
4
Syndicate des employe-e-s de l’Hopital general de Montreal, 2000 (SCFP-FTQ) 2007
SCC 4, 1 S.C.R 161, at para.14.
As the Supreme Court of Canada observed in Hydro-Quebec v Syndicat des employe-e- s
de techniques professionnelles et de bureau d’Hydro-Quebec, section locale 2000 (SCFP
–FTQ), 2007 SCC 43, [2008] 2 S.C.R. 561, the use of the word “impossible” in
connection with the third element of the Meiorin test had led to a certain amount of
confusion. The Court clarified that what is required is “not proof that it is impossible to
integrate an employee who does not meet a standard, but proof of undue hardship, which
can take as many forms as there are circumstances”: at para.12.
As to the scope of the duty to accommodate, the Supreme Court stated that “The employer
does not have a duty to change working conditions in a fundamental way, but does have a
duty, if it can do so without undue hardship, to arrange the employee’s workplace or
duties to enable the employee to do his or her work”: Hydro Quebec, at para. 16.”

[8] Further, Justice Mactavish determined that subsection 15(2) of the CHRA should be
interpreted as limiting the factors to be taken into account in an accommodation analysis to health,
safety and cost. However she qualified her determination with the following observation:
That is not to say that matters such as employee morale and mobility, interference
with other employees’ rights, and disruption of a collective agreement could never
be relevant in a claim under the CHRA. My interpretation of the legislation simply
means that in order to be taken into account in an accommodation analysis, these
matters must be of a sufficient gravity as to have a demonstrable impact on the
operations of an employer in a way that relates to health, safety or cost.

III. THE EVIDENCE

[9] Of significance in my re-determination is the November 23, 2006 change to the rules of
the International Civil Aviation Organization (ICAO), a UN organization charged with fostering
civil aviation safety – Canada is a signatory – a change which makes it mandatory that Captains/
Pilots-in-Command between the ages of 60 and 65 may continue to fly internationally, but only if
one of the other pilots in a multi-pilot crew is under 60.

[10] The ICAO standards apply only to international flights. The vast majority of Air Canada
flights have an international aspect, 86% are either to an international destination or pass through
foreign (primarily American) airspace, en route to a Canadian destination. Between 20 and 25%
5
of the remaining 14% of Air Canada flights have an American airport as an alternate airport
where planes are to land if, for example, weather precludes landing at the regularly-scheduled
Canadian airport.

[11] Captain Duke testified on behalf of Air Canada regarding its likely inability to
accommodate pilots over age 60 if the ICAO “one pilot over 60/one pilot under 60” requirement
(over/under rule) becomes applicable to scheduling the company’s pilots.

[12] In the time period relevant to this matter Captain Duke was employed by Air Canada in a
managerial position with Flight Operations. Among his qualifications, Captain Duke is
recognized as a Six Sigma Black Belt in management processes. He testified that Six Sigma is a
business improvement process which originated in the late 1980s at the Motorola and General
Electric corporations which has been adopted by Air Canada. The description of Captain Duke as
a “Black Belt” is in recognition of his expertise in this process.

[13] Captain Duke began his testimony by outlining several detrimental consequences,
including an unavoidable and inevitable increase in pilots and the cost of flight operations, that
would burden Air Canada if mandatory retirement of pilots on their reaching age 60 was
eliminated: a) inability to accommodate captains over age 65 on international and domestic
flights; b) a very limited capacity to accommodate captains or first officers who are over age 60;
c) loss of the capability of accurately predicting hiring and training needs in advance and the
effect that will have on Air Canada.

[14] Captain Duke testified that Air Canada’s pilots, approximately 3200 in December 2006,
are grouped according to the aircraft they fly:
1) largest aircraft, mostly on international routes, Airbus-345-500, A-340-300 and A-330
(generally referred to as A-340s);
2) Boeing 767, 777 on some international routes;
3) A-320’s and A-319’s;
6
4) Embraer 190 and 175.

[15] Captain Duke explained that the A-340 series and the Boeing 767 require three pilots in
the cockpit, one being a relief pilot.
So our 3200 pilots break down into 16…non-interchangeable groups, which are
then geographically divided into 42 unique positions. ‘Position’ is a collective
agreement term that is defined as a unique combination of equipment, status and
base. For example: the Boeing triple-7 captain in Toronto would be one position;
Montreal, the captain, there are only 35 of them. If we go further down the list, the
other extreme of the most populous position would be the A-320 Toronto captains
with 363 of them. So at any given time these groups are non-interchangeable. We
can’t move pilots back and forth – they are stuck with their assignments.
They can move a little bit between base, for example if we have a Montreal A-320
captain and they are flying out of Toronto, we can move them to Toronto to do that
flying, but we cannot have any A-320 captain fly a 767 or an A-320 first officer act
as an A-320 captain.

[16] In his evidence Captain Duke explained the choices available to a pilot with a hypothetical
seniority number of 1100: He or she could choose to be a middle of the pack A-320 captain flying
middle-of-the-pack schedules or get more money as a very junior 767 captain and suffer the
schedule of a junior captain. Captain Duke pointed out that with increasing seniority it is the pilot,
alone, who chooses whether to become a very senior A-320 captain or a junior 767 captain.

[17] Captain Duke described a typical career path for Air Canada pilots: starting off either as a
relief pilot or a narrow-body aircraft first officer, then moving to a wide-body first officer
position, a return to a narrow-body aircraft as a captain, and a final move back to a wide-body
captaincy, having spent five to seven years in each block, to end their careers at age 60.
Captain Duke noted that within each block pilots can switch between positions.
7

[18] Captain Duke testified about the correlation between the Marketing and Flight Operations
departments of Air Canada:
We are a marketing driven company and our Marketing Department produces a
lengthy list of the flights that they want Flight Operations to conduct in the coming
months. We have people called Pairing Analysts and there is one assigned per fleet
type. So there is one for the 340, one for the 767. What they do is, they take this
monstrous list of flights they wish us to conduct and they break that down into
smaller usable chunks that consist of a series of flights that will combine to cover a
one-day period or anywhere up to a four-day period.

[19] Captain Duke then described a typical pairing in the Toronto A-320 group: Flight 700
leaving Toronto at 6:30am, arriving New York just before 8am. Forty minutes later it becomes
Flight 705, New York to Toronto, arriving at 10:10am. The pilots then have two hours and
40 minutes before their next flight departs Toronto as Flight 177 for Edmonton, arriving at 3 pm
Mountain time. After spending the night in Edmonton the pilots depart the next day at 7am and fly
to Toronto:
That is a typical and an actual two-day pairing for the Toronto 320 pilots to fly.
The thing to note about this pairing is it is a mix of international and domestic
flying.

[20] Captain Duke explained that the pairing analyst’s goal is to link flights that have a
reasonable period of time between them, the above-mentioned two hours and 40 minutes being at
the upper end of waiting time for pilots, and noted that there are other guarantees in the collective
agreement that move the company to make the pilot’s time more productive when they are
working.

[21] Duke then described the process carried out by Flight Operations after the Marketing
Department stipulates its flight requirements. Once the General Manager of Crew Resources
receives the Marketing Department list of flights “she will spend anywhere from two weeks to a
month fine-tuning the number of positions that she needs to cover.” After that, the Crew Manning
Steering Committee (CMSC), a joint company-union committee, approves the plan as presented
or as amended, triggering a two-week period for pilots to update their Standing Preferential Bid in
8
light of the opportunities presented to them in the schedule of planned flights, and to engage in
bidding for positions. Based on Captain Duke’s evidence, I infer that seniority is absolutely
essential in enabling pilots to take the initiative in controlling their careers with Air Canada.

[22] Captain Duke described the working relationship between Flight Operations and the
Marketing Department from the perspective of the CMSC, which conducts its review twice each
year in accordance with the collective agreement:
The thing to notice is we put out a training plan that works 12 months ahead and
then six months later we do this again … we are working toward this plan but
never get there. We get halfway there and we start again. It is a very dynamic
environment (in which) our Marketing Department tries to be very sensitive to
what the consumers are accepting for our product and so they are changing their
plans constantly. That is one side of the equation; on the other side is Flight
Operations which takes a long time to respond to the changes. …Our way of
meeting their need (is) by amending our position list every six months …
allow(ing) us the security … of knowing what we are doing for the next six months
before the CMSC review starts again. It is a compromise between the two different
branches of the company.

[23] Captain Duke gave extensive evidence concerning anticipated scheduling difficulties and
costs that Air Canada would likely experience if mandatory retirement at age 60 was ended. He
testified that Air Canada would have to employ more pilots to ensure absolute compliance with
the over/under rule on all international and partially international flights.

[24] Duke testified that he had conducted computer experiments on the premise that
Air Canada no longer had the certainties of mandatory retirement of pilots at age 60. In one of the
experiments, Captain Duke tried to schedule flights for pilots over age 60 who would be subject to
the over/under rule, and concluded that as the number of pilots over age 60 increases, scheduling
becomes unworkable.
Chair: “Because …?”
Duke: “Because our software cannot solve the problem: there are not enough unrestricted
pilots to fly with the other unrestricted pilots.”
9

[25] Duke then presented a graph which he identified as Air Canada’s Vancouver A-340
captains, ranking them in order of seniority, which showed that 85% of the Vancouver captains
were age 55 or older. He reasoned that if mandatory retirement at age 60 was abolished, then in
the ensuing five years 85% of these captains would be in a potentially restricted age range,
i.e. beyond 60 but not yet 65, and thus subject to the over/under rule restricting them from
international flights unless the pilot flying with them was under 60.

[26] Captain Duke described a similar problem facing Vancouver-based A-340 first officers:
… For example the pilot that the far left dot represents who is 57 years old, if he
stays …five years to age 62 …(he) will be restricted from flying with the other
captains….
When the monthly schedule bid happens they can pretty much pick and choose
whatever they want. They are…senior, they get first choice at things. Well, now
not necessarily, because we run our captain schedule first and if all the flying you
want has other potentially restricted pilots in it, you can’t fly with those people. So
your seniority rights are being impacted by being potentially restricted from flying
with the captains on the flying that you are looking for.

[27] Air Canada’s Toronto-based A-340 pilots were similarly analyzed, 78% of them being age
55 or older. In five years they also would be in the potentially restricted range. Captain Duke
found that similar demographics applied to Vancouver and Toronto based pilots flying the
Boeing 767.

[28] Captain Duke continued his analysis, assuming that 10% of the captains and first officers
were restricted by the over/under rule. It is significant that the resulting simulated schedule
disregarded the seniority of many first officers and assigned them to reserve-pilot status. He
testified that as relief pilots they would not be able to relieve an ill first officer assigned to fly with
a captain aged over 60.
When we deal with a small base such as the Vancouver A-340 the number is shockingly
small. With 20% of the captains restricted and 11% of the first officers restricted …We
can’t generate a schedule.
10
Member Jensen: “Unless you hire an additional pilot.”
Duke: “That is our obvious response to that … to somehow introduce more pilots who are
not restricted ... Of course our current system is based on seniority, so this would go back
… to the CMSC review. …Lets say you open up two more spots …the CMSC review is
run … if those two new pilots are 62 years old, you haven’t helped yourself at all, because
we don’t have the right as it were to restrict pilots based on age from obtaining these
positions … We can’t guarantee through any method in our collective agreement that we
would have less than 11% first officers restricted.”

Tremblay: “What does that do to pilot morale if you ignore the seniority list in order to
overcome or minimize … some of these problems?
Duke: “Seniority is one of ACPA’s most dearly held concepts and we have repeatedly had
this mentioned to us at the negotiating table. Depending on how much we restricted it, it
would be anywhere from negative to very negative. If suggestions such as (to) directly
hire people to a position that is as senior as the Vancouver A-340 first officer, it could
bring the airline to a halt. We could have wildcats the likes we haven’t seen before. …we
wouldn’t even try to bring something like that forward.”

Tremblay: “Has Air Canada experienced wildcats or issues of that kind because of pilot
morale issues related to seniority before?
Duke: “During the merger, that didn’t go smoothly as far as the pilots were concerned
because we had a disagreement between the Canadian pilots and the Air Canada pilots as
to how the two seniority lists should be merged. We had various versions of sickouts
associated with various Labour Board rulings with that …we had a taste of the effect of
playing with seniority and how it affect the pilots’ morale.”

[29] Captain Duke testified that mandatory retirement of pilots at age 60 gives Air Canada
stability and predictability with respect to hiring and training needs, and that there is an
operational risk associated with changing retirement from age 60:
We plan on pilots retiring at age 60 and we have CMSC reviews based on that; and
we train (pilots) based on that … So if we push retirement from age 60 to a higher
limit or no limit we are going to be potentially stuck with unexpected retirements
because nothing in the collective agreement causes our pilots to give us notice of
when they are going to retire. It will detrimentally affect Air Canada’s operation
and result in increased costs.
11

[30] When asked by Member Jensen whether Air Canada could impose a retirement-notice
requirement on its pilots Captain Duke responded that Air Canada has no power to unilaterally
impose anything on pilots, that it would have to be negotiated with ACPA, and “that it would take
a lot of bargaining capital on the company’s behalf, starting from scratch, to negotiate something
like that.”

[31] Member Jensen also wanted clarification on Captain Duke’s evidence concerning the need
to have predictability in retirement:
Jensen: “Just so I’m clear, when you say it is one of our biggest issues, what you
mean there is (that) the predictability of retirement is one of the biggest problems
with not having a mandatory retirement date; is that right?”

[32] Duke agreed, and using the Vancouver A-340 group as an example said that Air Canada
has:
… six people worth of work in Vancouver that allow us to absorb external shocks
to our operation. Once we pass that number – all our assumptions working out on
sickness, on the amount of people in training, on the number of supervisors we
have, all the assumptions we have in staffing – six is the magic number that we can
use to absorb external shock such as early retirements. Any more than that and we
are cancelling flights. So to directly answer your question, the issue is planning the
number of staff we need; and at the senior positions we are currently the
beneficiaries of a regular retirement pattern in our planning, we know when they
are going to retire and they do retire pretty much on schedule. If we were to lose
that through the Tribunal ordering a change to mandatory retirement and us not
being able to successfully address that with ACPA, we would have to buy some
insurance somehow by having extra pilots in these positions.

[33] Captain Duke testified that given the restrictiveness of ICAO’s over/under rule, and absent
age-60 mandatory retirement, Air Canada’s Flight Operations would experience significant
increases in pilot costs and complications in scheduling.
12

[34] In dealing with the prospect of scheduling domestic flights for pilots over age 65,
Captain Duke testified that it was not feasible, in that 86% of these flights customarily fly over
parts of the United States:
So if we have to reroute domestic flights that otherwise would over fly the U.S. to
keep them solely within Canadian airspace, …that is going to …increase the time
en route, which increases the costs and additionally makes the next flight of the
day late, which we are deadly against.
In extreme cases, (for example) Vancouver to Toronto, with an A-320 which is
near the top of the range, if we have to put more fuel on board we may have to take
passengers off because the plane may be at its maximum weight limit.

[35] Captain Duke gave precise information concerning extra fuel costs, citing 62 Toronto to
Halifax flights, each one costing an additional $1,695 equating to $5.5 million per year.

Last edited by a330pilotcanada; 12th Jul 2011 at 12:27. Reason: I decided to put the entire ruling in so it could be read in context
a330pilotcanada is offline   Reply
Old 12th Jul 2011, 12:28   #2 (permalink)
 
Join Date: May 2010
Location: Canada
Age: 64
Posts: 252
[36] Concerning one experiment he conducted, a worst case scenario, to determine the
consequence of accommodating pilots over age 65 by using them exclusively on domestic flights,
Captain Duke testified that “… it has the same problems that we saw on the Toronto/Halifax
issue … you end up with 1,700 hours of additional pairings needed to fly the exact same
schedule.” He explained that when the pairing analysts have to split the flying schedule into two
groups to accommodate ICAO restricted captains, it negates optimization, which is the
minimization of inherent costs by generating effective pairings. Captain Duke testified that
having two groups of pilots to cover the same schedule, one group restricted by the over/under
rule, creates a situation that requires employment of 42 more pilots, and that these additional
pilots would themselves need reserve coverage factored at 34%, bringing the increase in reserve
coverage to 56 pilots, each costing $11,500 per month, equating to $7.7million per year.
13

IV. RE-DETERMINATION

[37] The parameters of this re-determination were stated by Justice Mactavish In
paragraphs 469, 470 and 471 of her reasons for judgement:
469 I have already found that the Tribunal’s finding with respect to the bona fide
occupational requirement issue as it related to the period before November of 2006
was reasonable. Consequently, any error on the part of the Tribunal with respect to
the first two elements of the Meiorin test is immaterial as it relates to that time
frame.
470 However, I have found that there were a number of errors in the Tribunal’s
bon fide occupational requirement analysis as it related to the post-November 2006
period, rendering this aspect of the Tribunal’s decision unreasonable.
471 As a result, the question of whether being under 60 was a bona fide
occupational requirement for Air Canada pilots after November of 2006 will be
remitted to the same panel of the Tribunal, with the direction that the issue must be
examined in light of all three elements of the Meiorin test.

[38] Accordingly, this re-determination is limited to the period after November 2006.

[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 age 60” on the flight decks of Air Canada aircraft.

[44] I am mindful of the case of F.H. v McDougall, 2008 SCC 53, and the clarification by the
Supreme Court of Canada that with respect to the standard of proof in civil cases: nothing more,
nothing less than a balance of probabilities.

[45] Although Air Canada’s mandatory retirement of pilots at age 60 is prima facie
discriminatory, it is not a discriminatory practice if Air Canada establishes, on a balance of
probabilities, that the limitation is based on a bona fide occupational requirement. The test to be
applied is that articulated by the Supreme Court of Canada in the Meiorin case, a three step
process.

[46] Steps one and two require an assessment of the legitimacy of the (work) standard’s
general purpose and the employer’s intention in adopting it. The assessment must be both
objective and subjective to ensure that the standard does not have a discriminatory foundation.
15

[47] It is clear from Duke’s evidence that for decades Air Canada has engaged in a legitimate
and meaningful bargaining process with the pilot’s union that has resulted in an enduring
collective agreement which enshrines seniority and provides for mandatory retirement at age 60
with a reasonable pension. In the result, Air Canada has been able to effectively balance the
introduction of new pilots to replace a predictable number of retiring pilots. Assessing this
situation both subjectively and objectively, I conclude on a balance of probabilities that the work
standard does not have a discriminatory foundation.

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

[49] The third step also requires Air Canada to prove that it would suffer undue hardship in
accommodating the complainants. Given the restrictions of the ICAO over/under rule, I am
satisfied that the accommodation of the needs in the period after November 2006, by abolishing
mandatory retirement, would result in negative consequences to Air Canada: significantly
increased operational costs, inefficiency in the scheduling of pilots, and, to a lesser extent,
negative ramifications for the pilot’s pension plan, and the collective bargaining agreement,
particularly in maintaining an effective rule of seniority. I conclude on a balance of probabilities
that Air Canada would suffer undue hardship in accommodating the complainant’s needs.
16

V. RULING

[50] With respect to the question whether being under age 60 was a bona fide occupational
requirement for Air Canada pilots after November 2006, I am satisfied on a balance of
probabilities that:
(1) Mandatory retirement of pilots at age 60 is based solely on a bona fide occupational
requirement, therefore it is not a discriminatory practice, and
(2) Accommodating the needs of the complainants after November 2006 would impose
undue hardship on Air Canada, considering health, safety and cost.
VI. DECISION

[51] The complainants George Vilven and Robert Kelly have not substantiated their allegation
of a decimator practice on the part of Air Canada during the period after November 2006.
Accordingly their complaints are dismissed.




Signed by
____________________________________
Wallace G. Craig
OTTAWA, Ontario
July 8, 2011
CANADIAN HUMAN RIGHTS TRIBUNAL
PARTIES OF RECORD
TRIBUNAL FILES: T1176/5806, T1177/5906 & T1079/6005
STYLE OF CAUSE: Robert Neil Kelly v. Air Canada and Air Canada
Pilots Association and
Geroge Viven v. Air Canada
DECISION OF THE TRIBUNAL DATED: July 8, 2011
APPEARANCES:
Raymond D. Hall
David Baker
For the Complainants
Daniel Poulin For the Canadian Human Rights Commission
Maryse Tremblay For the Respondent
Bruce Laughton, Q.C. For the Air Canada Pilots Association
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Old 12th Jul 2011, 16:04   #3 (permalink)
 
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I think Wallace G. Craig made serious errors with this ruling. It appears he has absolutely no concept of how the ICAO over/under rule works, or even why it was implemented.

Every other airline in the world can work with the over/under rule. Why can't Air Canada?

For example: Even if the judge honestly believed that it would be some kind of extreme hardship for AC to have Captains over age 60, why couldn't AC allow First Officers to continue to work past age 60?

There would be ZERO scheduling problems and it would would then allow Air Canada to respect the Canadian Human Rights Act regarding age discrimination.

For this reason alone this ruling will be overturned.

Last edited by Lost in Saigon; 13th Jul 2011 at 12:34.
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Old 12th Jul 2011, 17:33   #4 (permalink)
 
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Lost in Saigon, you state that the judge rendering this has lost touch with reality, in part due to his age, yet you want mandatory retirment thrown out, you really need to make up your mind which side of the fence you are on! For myself I dont really care about the whole thing, have never made so much money and had so much fun as Im having flying a very modest little aircraft in retirment.
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Old 12th Jul 2011, 17:58   #5 (permalink)
 
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Quote:
Originally Posted by clunckdriver View Post
Lost in Saigon, you state that the judge rendering this has lost touch with reality, in part due to his age, yet you want mandatory retirement thrown out, you really need to make up your mind which side of the fence you are on!
Human rights means to me unlimited retirement age providing you can prove you are able to do the job.

For pilots, it means a medical and a check ride.

For judges it should be re-election based on your past record as a judge. (as in the USA)

In Canada it seems you are appointed for life. You can practice long after you have become incompetent. (at least that appears to be the case here)

Last edited by Lost in Saigon; 12th Jul 2011 at 23:56.
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Old 12th Jul 2011, 22:00   #6 (permalink)
 
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Wallace ruled on the basis of the laws he is required to apply. I read the entire ruling, and based on what I read, it's pretty hard to argue that he ruled incorrectly (if you put emotions and personal bias aside).
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Old 12th Jul 2011, 23:01   #7 (permalink)
 
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Good Afternoon Lost in Saigon:

Maybe it is time for you to go back to the roof top bar at the Rex Hotel in Saigon and have another cold beer.

Please get in touch with your "learned friend" in CYWG and see if calling a senior Jurist an idiot as you did is slander and defamation of character as I would consider that you are on very thin ice here.

Or if the ruling came out against this ruling I am sure your view of this senior Jurist would be complimentary and that you are happy he is part of the legal intelligentsia of our country.

As J.O. stated very succinctly just reread the ruling on an "intellectual" basis as opposed to an "emotional" one as you will see his logic in his ruling.

Also take comfort in this that this will be going through the courts for review and will most likely end up for review by the nine senior Jurists in Canada providing if they want to discuss it.

As an aside as one that has lived in the United States the elections of Judges can be a tricky affair as not only politics but money enter into the equation. So take an "independent" judiciary over an elected one any day.

Again I will caution you on calling a Jurist incompetent as you have exposed yourself here and I would strongly suggest you either delete your post or modify it for your personal protection.

Last edited by a330pilotcanada; 12th Jul 2011 at 23:02. Reason: readibility
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Old 25th Jul 2011, 00:43   #8 (permalink)
 
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J.O.: I just read the whole ruling and, unlike you, I find it very difficult to understand how he could possibly have ruled the way that he did. Lots and lots of errors in the decision, as I see it. It seems to me that this guy doesn't have the foggiest notion about what a BFOR is, period. Using the logic that he used, all that anybody that doesn't want to meet the discrimination prohibitions in the human rights law would have to do is find a "legitimate purpose," call it a BFOR, then contract out of the human rights legislation.

He obviously got the SCC Meiorin test wrong: even though he quoted it in his decision, he obviously didn't understand that to qualify as a BFOR, the purpose of the mandatory retirement provision must be rationally connected to the performance of the job (Meiorin, Step 1). It must relate to the actual job requirements. That is why it is called an "occupational requirement" and that is why it is allowed to override the blanket prohibition against discrimination in the human rights statute--it is a very narrow exemption permitted only because the ability to peform the job has a higher priority than the prohibition against discrimination. "Melding the needs of Air Canada with the collective rights and needs of its pilots" can't possibly pass muster, because that is a collective bargaining requirement, not a job performance requirement, and the CHRA overrules collective agreement provisions that permit discrimination. Big mistake.

It seems to me that he also answered the wrong question. What was the Tribunal required to decide here? The complaints before it, or the mandatory retirement policy of the employer and the union in general? Obviously the former, not the latter. The Tribunal, as I see it, is not entitled to ponder philosophical questions in the abstract and to speculate about undue hardship issues that could only come several years from now, once the number of pilots over age 60 starts to increase to the point where scheduling to meet the ICAO requirements could possibly be an issue, then base its decision regarding the complaints before it on that speculation.

I see nothing in the decision that shows why the employment of either Vilven or Kelly was causing Air Canada undue hardship. So why should their complaints be dismissed? They met all of the occupational requirements, and thus needed no accommodation whatsoever. In fact, Kelly is an active, fully qualified working First Officer now.

My guess is that the Court will make short shrift of this decision.
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Old 25th Jul 2011, 11:47   #9 (permalink)
 
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Regardless of legalities (and I'm not about to sit here and question a judge, just as I don't want him sitting in his first class seat questioning my judgements as a pilot), a business has to be profitable in order to be solvent. the expert testimony comes from an ac capt who is six sigma black belt, correct? not that I'm a big advocate of all that bull$*^t, but the guy makes some pretty good arguments.
Where are the fly past 60 guys refuting arguments? Their poor little hurt feelings? Only had 25+ yrs to prepare for this day? There is no sympathy anywhere for these guys, not even from their own company colleagues. And apparently not from the judiciary either.
Go ahead losers, take it to the supreme court. Spend even more of your pensions on a losing cause.
Try to leave with some dignity intact.
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Old 26th Jul 2011, 02:07   #10 (permalink)
 
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Quote:
a business has to be profitable in order to be solvent
If you're using that as a BFOR criteria then every CEO and senior executive for the last 30 years should have lost their job.

Quote:
Where are the fly past 60 guys refuting arguments?
Precisely, there aren't any. That's yet another reason why the ruling will be thrown out. Mr. Craig totally forgot to get the other side of the story.
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Old 26th Jul 2011, 10:22   #11 (permalink)
 
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GMC1500:

I really have no idea why you need to slander anyone who is simply expressing an opinion. Why not answer the issue instead?

I was simply pointing out that it seems really odd to me that the Tribunal, when dealing with two complaints regarding termination of employment that happened years ago can base its decision on whether or not that past termination of employment should be upheld on the basis of speculation as to what may happen years in the future. It just doesn't make any sense that events that have not yet transpired can be used to decide those issues. What if the ICAO over-under rule is repealed after ICAO does its planned five year review this fall? Why should their employment have been terminated based on the assumption that compliance with a rule that no longer exists would cause the airline problems?
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Old 26th Jul 2011, 10:23   #12 (permalink)
 
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I don't belive there have ever been age limits on ceo's. And if a ceo has a heart attack at his desk, he isn't potentially putting 300+ lives in jeopardy.
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Old 26th Jul 2011, 14:36   #13 (permalink)
 
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Quote:
I don't belive there have ever been age limits on ceo's. And if a ceo has a heart attack at his desk, he isn't potentially putting 300+ lives in jeopardy.
It was a joke GMC1500.
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Old 26th Jul 2011, 15:25   #14 (permalink)
 
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For those who are interested in how these cases are meant to be adjudicated, here is a good summary of the considerations that must be taken when the CHRT reviews a discrimination complaint and the subsequent BFOR from the respondent:

Canadian Human Rights Commission :: Home :: Resources :: Publications
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Old 27th Jul 2011, 04:53   #15 (permalink)
 
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I'm not slandering anyone. That's a pretty extreme reaction to calling these guys losers.
And for your point of the over/under being reviewed and possibly overturned, do you really think a judge, ruling on something today, is going to base his decision on what may happen in the future? Or on what the reality is today when he makes the decision?
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Old 27th Jul 2011, 08:43   #16 (permalink)
 
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GMC 1500:

That was my point. As I understand it, these guys were dismissed years ago. Their complaints with the Commission were that their employment was terminated. Yes, it took years to get a decision on their termination, but isn't the issue whether their continued employment then would have justified termination of employment. Would Air Canada have suffered undue hardship then as a result of their alleged adverse cost impact on the airline resulting from the ICAO restrictions?

How does what happened years after the decision was made to terminate their employment (i.e. post-November 2006 ICAO changes) have to do with the decision to terminate them months or years prior to those changes? I fail to see the relevance.

Is the impact of the ability to manage the over-under restrictions not a matter of degree? Could Air Canada handle 1 pilot over age 60 without undue hardship? 2? 5? 20? 100? 1,000? So why were these two guys fired, especially if, working as First Officers, there was no adverse impact on Air Canada's ability to meet the ICAO restrictions.

That is what I mean about errors in the decision. It just seems obvious to me that there was no reason to dismiss their complaints if there was no occupational requirement that they could not meet as pilots, especially as First Officers, given that there are no ICAO restrictions at all for F/Os.

But then again, I am not a judge. What do I know?
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Old 27th Jul 2011, 11:29   #17 (permalink)
 
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Just to clarify, they were not fired. They retired in accordance with the collective agreement.
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Old 27th Jul 2011, 13:08   #18 (permalink)
 
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You can put whatever brand of lipstick that you choose on that sow, it's still a pig. Involuntary termination of employment is still involuntary termination of employment.
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Old 27th Jul 2011, 16:25   #19 (permalink)
 
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But if it happens at 65 vs 60 then that's just fine?
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Old 27th Jul 2011, 20:48   #20 (permalink)
 
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Quote:
But if it happens at 65 vs 60 then that's just fine?
The only option left for Air Canada or anybody else in Canada for that matter to enforce mandatory retirement based on age is through the BFOR exemption. The recent ruling permitting age 60 will not stand the first challenge and will be turfed. What will Air Canada do then?

They will argue for a BFOR of age 65.

Where have I heard that before?
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