Air Canada Age 60 Limit To End

[Raymond767]

Originally Posted by ea340

so why did you not find a guy to bring a case in say 1988or 1995.

A few pilots attempted to do so then. None were successful. One took the appeal of the refusal of the Commission to refer his case to the Tribunal to the Supreme Court of Canada; he lost. Why? Two reasons, both based on the legislation.

First, the substantive portion of the legislative exemption, namely Section 15(1)(c) of the Canadian Human Rights Act. That allows for mandatory retirement provided that it is done at “the normal age of retirement for individuals doing similar work.” In the 1980’s, age 60 was the normal age of retirement. So no cases were referred to the Tribunal—they all failed on the merits at the administrative stage. So there was no point in me or anyone else complaining—the Commission simply would not accept the complaints.

Of course, that all changed after 2000, with the normal age in the industry moving off age 60. Hence, the Commission allowed the complaints, and referred them to the Tribunal for adjudication.

In the Thwaites case (hearing completed in January, 2010, decision not yet rendered) we presented substantive evidence that Air Canada pilots account for less than 40% of the pilots in the industry, hence the normal age of retirement (50% plus 1) is no longer age 60. Air Canada’s mandatory retirement, we suggest, no longer meets the statutory requirements.

Second, the interpretations of the Charter re the mandatory retirement exemption, have been changing. With the changing demographics, with changing public policy with respect to mandatory retirement, with the improvement in health and fitness, combined with the job shortages at the intake stage of the labour market, the factors that the Supreme Court of Canada considered in their seminal cases in the early 1990’s are being re-evaluated by the Courts.

The Federal Court, in its review of the original Vilven-Kelly decision, had trouble with the idea that the statute permitted discrimination provided that the discrimination is applied to everybody. The judge suggested that the remedy to that statutory interpretation problem lies in the Charter, specifically Section 1, and she struck down the provision under Section 15(1) (the equality provisions) as being contrary to the Charter.

Regarding bringing the matter up at CALPA or ACPA, we already know the result of that option. Other pilot unions facing the same issue decided to remain neutral, or even to finance both sides of the dispute. Not so ACPA. It chose to use the dues of those opposed to mandatory retirement to pay for the legal fight against themselves. How could a union, taking such a position, treat the minority fairly, in view of the outright conflict of interest that it put it self in?

Does that make the violation of the law any less a violation?

So your point then goes again to the issue of fairness, which is separate from the reality that you are facing—namely the reality that you are supporting a union position that is attempting solve the solution by denial and obfuscation.
Last night I observed the PBS interview of Bill Clinton. Some of his words hit home on our issue.

He said the following:

“Change is totally disorienting to people if it threatens their employment, their social status, or their sense of political empowerment. … You can scream, “Stop the world, I want to get off,” and look for ways to make it simple again. .. What I think we have to do is get back in the future business, and I don’t think there is any option cause I don’t think you can get off the world. Denial is not a strategy. It never works—ever!”