Air Canada Age 60 Limit To End

[cloudcity]

Further they made it quite clear that Vilven/Kelly was not precedent-setting so therefore none of the future litigants can appeal to VK as precedental

Seems correct. For now, pending retirees still need to apply to the Human Rights Commission in Ottawa to join the process. You have 1 year from your date of mandatory retirement to file a complaint. At this point that includes everyone since last November, 2009. The process is very straightforward. Once you contact the Commission they will fax you all the required forms.

Canadian Human Rights Commission :: Home :: Contact Us

[a330pilotcanada]

Good Afternoon ACAV8R:


That was a very good post as it seems you have read the process very carefully to navigate this minefield. When you get a chance please expand your thoughts on this ongoing progression in order to give it some stability.
As far as "Understated" is concerned please explain why your posts share the same sentence structure, tempo and tenor as "Over/Under" who has been conspicuously absent from this discussion?

[Understated]

Originally Posted by ”AVAV8R”

Further they made it quite clear that Vilven/Kelly was not precedent-setting so therefore none of the future litigants can appeal to VK as precedental. Because Canadian jurisprudence is based on Stare Decisis, precedental law, that is a huge setback for future litigants.

I believe that you are not reading the words in the decision correctly. It did not say that the VK decision was not "precedent-setting" so therefore none of the future litigants can appeal to VK as precedent. The decision said that the decision was not a "legal precedent," meaning, I would infer, that it is a non-binding precedent, not that it is not a precedent.

I will leave it up to the lawyers to labour over the proposition that this decision is not a legal precedent, but from my lay point of view the implications of that finding should come from the person who decides the next case, not from the person that decided this one. It will be up to later Tribunal panels to decide whether or not to follow the decision.

Frankly, to a layman the proposition that the case does not represent a "legal" (i.e. non-binding) precedent does make some sense. But that should not stop another Tribunal from deciding the outcome of the next case on the basis of the same reasoning followed in this case, or from even crediting this case as precedent if the essential facts and issues in the next case are identical. I believe it only means that the next Tribunal is not required to follow this decision.

The interpretation that this decision does not represent a "precedent" at all does not make a lot of sense. Can't any decision from any tribunal be a precedent if the decision is followed in subsequent cases? Wasn't the August 2009 decision a precedent in that it marked the first time that the Tribunal refused to uphold the prior case law permitting mandatory retirement? This case marks the first time that this collective agreement provision has not been upheld. Can the same collective agreement provision be contrary to the Human Rights Act in this case, but not in the next? I doubt it.

If the Tribunal's statement was intended to imply that subsequent Tribunals could not cite this decision as precedent (albeit, non-binding) it would not surprise me if the Tribunal is wrong on that point. That wouldn't be the only error in the decision, however. The award of damages payable by an "interested party" (as opposed to a "respondent") to a complainant (ACPA to Vilven) is an embarrassment to the Tribunal.

If Air Canada loses the Thwaites case ("normal age of retirement") should it make the same assumption, namely that that case as well is not a precedent, and that it should therefore recklessly continue its policy of terminating the employment of pilots at age 60, without regard to the potential adverse consequences? Only at the risk of allowing the damages payable to continue to mount, in the desperate hope that it can now overturn both decisions on appeal.

Moreover, is there any implication anywhere in this decision or the prior one that would lead anyone to suspect that any of the litigants in the queue will not eventually be reinstated with full seniority, with full rights under the collective agreement and with substantial damages, with interest payable to the date of their award, just as Vilven and Kelly were? If there is, I didn’t see it.

Contrary to what you suggest, I don't see this decision as being a huge setback to the future litigants because it is likely to be mooted very soon in either or both of the decisions that are pending, especially the Federal Court decision. If the Federal Court upholds the Tribunal’s August, 2009 decision that the violation of the Charter by the mandatory retirement exemption in the statute is not justified under Section 1 of the Charter, that will end mandatory retirement for everyone in the federal jurisdiction, including all of the future litigants. That decision will be a legal precedent.

[trop_rider]

"...Pardon me for being naive, but is being a pilot really that difficult a job?..."

I guess if you are seriously seeking an answer to such a question (even after the 1943 or so posts your profile attributes to you) that perhaps you might consider addressing that question to the family,colleagues, and friends of the airmen who perished on AF 447... (may their souls rest in peace)

[Chuck Ellsworth]

I fail to see what the Air France 447 has to do with this comment you made.

Now THAT would be some interesting stuff to deviate around on a dark and dirty moonless night on min fuel while the suits held hands and whimpered in the back...

My personal opinion is pilots as a group are not all that much different from any other group of people working in any other occupation.

And I have flown with a few airline types who were marginal with regard to their aircraft handling skills, which leads me to believe that being a pilot is not all that difficult an occupation relatively speaking.

[Islanderguy]

I've flown with several airline types who are beyond reproach with regard to their handling skills. Which has led me to believe that piloting may not be that difficult, those that spend their career seeking to improve their knowledge base and skill continously, often leave those surfing mediocrity far behind. the airplane someone operates and their skill level shouldn't be painted with the same brush.

[Vic777]

My personal opinion is pilots as a group are not all that much different from any other group of people working in any other occupation.

Any job, once you're trained for it and skilled at it, becomes, "easy". Lee Westwood finds Golf easy ... but I don't want him flying my airplanes ... in fact I would have a far better chance at parring the last hole to win the British Open than he would have at landing the AF 447 flight. I would probably bat over 500 on the "golf" while he would bat zero. Now here's a difficult job that the lads are neither trained at, nor experienced in ... The ACPA exec's who have to get themselves out of the hole they dug. (and pushed everyone into, I might add)

[ACAV8R]

Understated, maybe we are coming at the question from different angles. You are correct that the CHRT said that the VK decision was not "legal-precedent." The way I read that is that, because it is NOT legal precedent, or precedent-setting, future cases could NOT appeal to the VK decision as precedent-setting. IOW because the decision to order V&K reinstated was not precedent-setting, was a one-off, future litigants could not say, "You reinstated V&K so therefore, on the basis of Stare Decisis, legal precedent, you must order us to also be reinstated."

That's how I see it anyway.

Regards.

[Understated]

Originally Posted by ACAV8R

IOW because the decision to order V&K reinstated was not precedent-setting, was a one-off, future litigants could not say, "You reinstated V&K so therefore, on the basis of Stare Decisis, legal precedent, you must order us to also be reinstated."

I agree. We are both saying the same thing. The precedent is not binding, so it cannot be used by future litigants to force the Tribunal to arrive at the same outcome.

However, I believe that we must be very careful not to draw the incorrect inference from the decision, namely that this outcome will be an anomoly. There is nothing to stop the next Tribunal from arriving at the same outcome, nor is there any suggestion that it should not do so, given the same factual situation; in fact the opposite is true--all factors point towards the Tribunal arriving at the same outcome, especially regarding reinstatement.

With respect to reinstatement (as opposed to damages and recovery of lost compensation), nothing in the VK decision is dependent upon the factual circumstances of these two individuals. The termination, like all the following terminations, was based solely upon the collective agreement provision. That fact will not change. So, reinstatement of all those who wish it should logically follow in all of the succeeding cases.

Damages and payment for lost compensation must be determined on a case by case basis, however, taking into consideration the nature of the discriminatory practice (violation of the exemption provision, versus Charter damages), mitigation, and other relevant factors specific to the individual litigants.

The bottom line is that no matter what the Tribunal said about this not being a "legal precedent" the implications are substantial. The dam will not just get a bigger crack, it is about to burst.

[trop_rider]

Mr. Ellsworth, I agree with you. It is my opinion as well that pilots are not all that different from people working in other occupations. People, after all, are just people: we all come from different backgrounds, cultures, geographic regions, and we all have different strengths and weaknesses. The descriptor "professional pilot" or "airline pilot" (or whatever) should not bring with it any suggestion that one is 'superior' or different than any other individual. I have personally flown with "all shapes and sizes" in my brief 24 year career, and as you can well imagine, assigning expectations or pre-judging any individual before one spends time getting to know him or her is an exercise in futility and frankly, a waste of energy.

My comment regarding deviating around nasty cells in a fuel-critical situation was borne out of frustration with my perception that although the poster wrote with great style and is clearly an intelligent and well-read individual, that he is apparently not even familiar with the layers of our atmosphere. Put simply, it is very difficult to accept commentary about one's profession from a person who has not sat in the seat, or signed the logbook.

Flying airplanes is nothing special at all. Professionals make it look easy day in and day out, around the world, all year long. However, there is a HELL of a lot that goes on behind the scenes to make the journey as safe, routine, and seamless as possible for those who are paying my salary. I am just fine with them neither knowing about, or caring about these "details". That is what I get paid for, and I accept the responsibility with quiet pride. But when someone who clearly knows very little about what happens in the pointy end spouts off about my profession on a "professional pilots" forum, I sometimes feel the need to speak out.

My apologies for playing a part in the side-tracking of this thread...if you wish to continue on this topic, I would respectfully suggest starting a new one; I am sure there will be many varying opinions on the profession...

[Understated]

Originally Posted by a330pilotcanada

As far as "Understated" is concerned please explain why your posts share the same sentence structure, tempo and tenor as "Over/Under" who has been conspicuously absent from this discussion?

Because he too is a cunning linguist?


Please explain why your posts share the same sentence structure, tempo and tenor as Tommy Smothers ("Mom always like you best!")

[OverUnder]

I am truly flattered. But conspicuously absent? When I have something meaningful to add to the discussion, I will add it.

[clunckdriver]

I hear that HR at Air Canada are having the odd chat with the new intakes re the ramifications of all this . Question, all those in Air Canada at this time knew the rules when they joined, why therefore isnt this change to the retirment age simply applied to those who have joined since the decision?{If it does in fact become binding} Strikes me as being fair to all and wont screw those who are waiting for upgrades at this time and wont generate the hostility so evident amoungst this group or slow their upgrades/pay raises.For this to be implemented one would of course have to ignore the bloody silly stuff coming from the two complainents at the hearing.

[Vic777]

why therefore isnt this change to the retirment age simply applied to those who have joined since the decision?

It's an indication of the astuteness and managerial talents of those running AC, just reactive not proactive, shaped by events, not shaping events, you know the guys that did the fuel hedging and got the PTV's on the 777. ACPA should be eating them for breakfast, unfortunately, it's the other way around.

... ignore the bloody silly stuff coming from the two complainents at the hearing.

Thank goodness the Commission has ignored AC and ACPA.

[Understated]

Originally Posted by clunkdriver

I hear that HR at Air Canada are having the odd chat with the new intakes re the ramifications of all this .

What a pile of crap. Do you not have anything better to do than to stir the pot with complete fabrications?

The first pilot new-hires in years at Air Canada arrived for their first day on the premises yesterday morning and you are saying that despite the fact that you do not work for Air Canada, you have the inside scoop on the nuances and innuendos of conversations that took place during their coffee breaks yesterday?

What do you mean by the expression, "the ramifications of all this?" Are you suggesting that Air Canada's "HR" (Human Resources?) personnel, who work in a different building from the training centre, were brought in to start engaging in discussions with new employees about issues that are still before the court, without the authorization of senior management or corporate legal counsel?

Or do you mean that Flight Operations line managers or training staff working at the training centre would make that kind of mistake? Regardless, you obviously don't understand corporate culture, you don't give them much credit, or both. Get real.

Then you re-lob the now judicially defeated proposition about fairness and the contract, and pilots knowing when they joined that they would be required to retire at age 60--like you haven't read a single post here for the past five years, you have no understanding of the law and you haven't bothered to read the two Tribunal decisions that buried that concept. Thanks for your contribution.

[clunckdriver]

Understated, in fact one of the new hires had a discussion during the hiring process re this subject, with HR, I dont think he/she dreamed this up, as for the rest of your rant , my computer shut down half way through it! Must have an Auto Rant Shut Down feature! Relax, keep your blood presure down if you want to keep flying!

[Vic777]

Hey clunkdriver ... Is this you?

A Japanese Soldier Who Continued Fighting WWII 29 Years After the Japanese Surrendered, Because He Didn?t Know

[Understated]

Originally Posted by clunkdriver

in fact one of the new hires had a discussion during the hiring process re this subject, with HR

During the hiring process? Like, weeks ago? Before the reinstatement order was issued last Monday, when Air Canada was still maintaining that these pilots would be forced onto the Embraer? Before the CIRB stated that it was ordering a hearing into the DFR complaint?

Don't be surprised to see a major shift in attitude with respect to returning pilots from both Air Canada management and from ACPA executives, given the fact that these two individuals, since last Monday, are both active employees and active members of the union.

[clunckdriver]

Vicc777, I dont know how you can missread so badly, I am in no way affected by this stuff, nor do I feel I have taken extreame positions on either side, but am a more than interested observer, {Flying four legs today, at age 72} As for the previous post about AC scewing up the fuel futures, been there! Got it right four times but not the fith for sure, went back to paying the price and inflicting "Fuel Surcharge" on the SLF, belive me, it aint as easy as it looks, so if any of you have a better crystal ball, I would like the use of it! And yes, Understated, some of these discussions took place some time back during the interview process, in fact those at the bottom of the food chain that I deal with seem to be very up to date and well read with the facts in this hearing , wouldnt you be if you were in their shoes?

[Understated]

Originally Posted by clunckdriver

Vicc777 [sic], I dont [sic] know how you can missread [sic] so badly...

Poetic! Misread his name (Vic777, versus Vicc777) while complaining about him misreading your posts!

Originally Posted by clunckdriver

I am in no way affected by this stuff, nor do I feel I have taken extreame [sic] positions on either side...

Argumentum ad avoidum. His point is that you don't seem to recognize either that human rights legislation supercedes collective agreements (the argument about this applying only to new-hires is totally dead--you obviously can't get your mind around that), nor do you seem to recognize that the die has now been cast--the arbitrary age 60 limit has been broken by a legally enforceable Tribunal order, and that there are two pilots on the Air Canada payroll who are not only over age 60, but over age 65.