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Air Canada Age 60 Limit To End

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Old 14th May 2010, 01:58
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There have been two attempts to repeal Section 15(1)(c) of the Canadian Human Rights Act (the mandatory retirement exemption to the general prohibition against discrimination on the basis of age). Neither has been enacted. The first was a government bill that died on the Order Paper in 1995 when an election was called. The second is a private member's bill that is currently before Parliament. You are correct, there has not yet been an outright repeal of the legislative provision.

Further, not all federal jobs come within the purview of the CHRA. Separate statutes apply to others, such as the military, the judges, and federal civil servants.

However, the exemption under Section 15(1)(c) allows for mandatory retirement only if it occurs at the "normal age of retirement for individuals doing similar work."

To date, the Tribunal and the Courts have interpreted that statistically, meaning 50% plus one defines the normal. The Federal Court had real problems with that concept in the V-K judicial review, for the simple reason that the statistical interpretation leads to condoning discrimination provided that it is enforced by a majority against a minority--an anethema to human rights principles. The Court suggested that the Charter should cure that problem, and it overturned the original Tribunal decision that found that Section 15(1)(c) did not violate the prohibition on discrimination against age found in the Charter.

The Tribunal then found that that violation of Section 15(1) of the Charter by the exemption was not justified by Section 1 of the Charter. Because a Tribunal can only interpret legislation and not strike it down, it has to interpret each decision that comes before it. The Tribunal decision that the exemption is not saved by Section 1 of the Charter is now on its way back to the Federal Court by way of a separate judicial review, to be heard in late November. If the Court strikes down the exemption, that will end mandatory retirement in the federal jurisdiction, subject to the Federal Court's decision being appealed to the Federal Court of Appeal and to the Supreme Court of Canada.

The general postulation made earlier, however, is still valid. Age discrimination violates the Act, and although the Tribunal is not legally bound to follow even its own decision with respect to Section 1 of the Charter, the likelihood of it arriving at a different conclusion on the basis of a separate case of mandatory retirement is near zero and will soon become moot. As of now, that simply means that each new case must be relitigated to have the Tribunal repeat the same decision (a two year process).

That may also change, especially with respect to Air Canada pilots, when the V-K decision is released regarding the Commission's request for an Order against Air Canada to cease involuntarily terminating the employment of pilots based on age. There is also a huge number of other cases on the subject pending hearing before the Tribunal, from other professions and industries, including the trucking inddstry
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Old 14th May 2010, 23:43
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So in other words mandatory retirement at a company governed by federal law is currently not illegal..
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Old 14th May 2010, 23:56
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So in other words mandatory retirement at a company governed by federal law is currently not illegal..
Age discrimination in this country is illegal and has been for many years. The CHRT has determined that there is no justification for forced retirement at Air Canada at age 60, and that it is age discrimination.

From that you can conclude that forcing pilots out at age 60 is against the law. Nothing difficult to understand there, just as it's not difficult to understand that this is a lost battle for ACPA, Air Canada and any other organization that tries to kick people to the curb based on age alone.

You can grasp at as many straws as you like, and you can continue to rationalize it in your mind as much as you like. But ACPA lost, as was inevitable from the beginning for anybody who gave it two seconds of actual thought.
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Old 15th May 2010, 00:05
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So using your logic, any employee governed by federal law who is forced to retire at 65 can claim age discrimination, sue their former employer and fellow colleagues and continue to work as long as they want?

PS The final decision in this case is far from being decided. Appeals can take years to work their way through the courts...

PPS Everyone knows this case has absolutely NOTHING to do with age discrimination. Its all about GREED pure and simple.
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Old 15th May 2010, 00:11
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So using your logic, any employee governed by federal law who is forced to retire at 65 can claim age discrimination, sue their former employer and fellow colleagues and continue to work as long as they want?
Not quite. It isn't my logic, it's the law of the land. Get used to it. Or keep doing this

PS The final decision in this case is far from being decided. Appeals can take years to work their way through the courts...
So you and ACPA wish. But it only means you don't know when you've lost and you continue to fight with no possible hope of winning. Start paying attention to what's going on around you in this country.

PPS Everyone knows this case has absolutely NOTHING to do with age discrimination. Its all about GREED pure and simple.
Man, I love it when you guys start throwing around the GREED word. This topic encompasses societal issues that will be with us for decades. Much longer than me, you, or any of the people who actually stood up for their (and your) rights will be around for. You think you can stop this for...what...your next upgrade? You don't even recognize your own motivation for fighting this, and yet you have the audacity to accuse other people of being greedy?

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Old 15th May 2010, 00:55
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If its the law of the land how can mandatory retirement still be legal?

Do you have any reason to believe this won't be in the courts for years?

I have to admit that I'm puzzled why someone as junior as you claim to be supports this so wholeheartedly. This will do nothing but penalize the junior ranks.. Senior guys benefit, junior guys get hung out to dry again.. Sound familiar?
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Old 15th May 2010, 02:00
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If its the law of the land how can mandatory retirement still be legal?
It's legal only if the case can be made that it's required. ACPA and Air Canada didn't make that case...ergo it's illegal.

Do you have any reason to believe this won't be in the courts for years?
Yes.

I have to admit that I'm puzzled why someone as junior as you claim to be supports this so wholeheartedly.
Several reasons. First of all because I believe it's discriminatory to force someone out of their job for the sole reason they had a birthday. Secondly because I am capable of thinking beyond my own immediate future. There are more reasons but they are the biggest.

This will do nothing but penalize the junior ranks..
False. You will realize that when you get older and see how this benefits you and every other pilot. Not to mention every other working person in this country. If you want to lay blame on someone for any negative effect this has on you, look to ACPA and yourself. You didn't insist ACPA prepare for this and so they didn't.

Senior guys benefit, junior guys get hung out to dry again..
You have not been hung out to dry. Don't believe a fraction of the bs ACPA has put forward justifying this.
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Old 15th May 2010, 03:40
  #128 (permalink)  
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BC Flyer: You say, "Senior guys benefit, junior guys get hung out to dry again..." and "This will do nothing but penalize the junior ranks..."

Have you given any thought at all to addressing the fundamental issue that I raised at the outset of this thread? Namely, the reality that this law cannot be overcome, and that it must be dealt with?

This entire fiasco could have been avoided had ACPA dealt with the facts and reality of the law when this issue first arose over four years ago. That was my advise then, and that has been my advice since. Ignored.

Nobody appears to want to discuss the fundamental facts that ACPA members will have to face. There are now almost 150 Complainants before the Commission and the Tribunal, all of whom will likely be given the same option as G.V. and N.K. to return to full employment. Most of us won't be restricted to flying as F/O's, as they were, by reason of their conceding the restrictions related to ICAO for pilots-in-command over age 65. And the cease order will make it a lot easier for many, many others now coming up to age 60 to opt to stay, without even being visible or litigious. The change is now upon us.

To my understanding there is a large segment of the ACPA membership, in addition to the approximately 25% that voted in favour of ending mandatory retirement, that was not even on the premises when the vote was taken in April, 2006. Many of those pilots (average age of hire, 34) may start to flex their voting muscles, once the legal pendulum starts to inevitably swing--they may very well demand that ACPA revisit its strategy of spending their union dues fighting an unwinnable cause that they were not even given the opportunity to exercise their democratic rights of participation in, regardless of whether they favour the change or not.

As I said earlier in the thread, "...despite the tendency to overlay the issues with all sorts of irrelevant emotional distractions, such as anyone's purported motivation, we need to address the one issue that is before us, namely integrating the necessary changes into our workplace."

The impact on the junior pilots is now almost a given. It need not have been that way. Don't blame me or us for the failure of your own Association to manage the inevitable impact of the law of the land on your working relationship. There were many manageable alternatives available, all of which were discounted and/or ignored by ACPA in favour of denying or delaying the day and cost of reckoning. Still your Association fights on, suggesting appeals as well as alternatives that propose to continue the age discrimination in one form or another, notwithstanding the Tribunal's finding that its actions were and are illegal. The work of the renowned historian Barbara Tuchman comes to mind..."The March of Folly...From Troy to Vietnam."

Finally, let's talk about your assertion, " Its all about GREED pure and simple..."

Let's assume, for the sake of argument, that that assertion is correct. That accusation has been levelled at me and at every one of my associates who realize that mandatory retirement is no longer legally supportable. I do not agree with the proposition (for a number of reasons than could be the subject of a separate thread), but nevertheless, does that change anything for you? Anything at all?

Not one iota. The decisions of the Tribunal and the Courts have no regard to the motivation of the litigants, and the Tribunal members and judges are loathe to contaminate their reviewable decisions by taking any such evidence into consideration, even if that evidence were before them, which it is not.

So the decisions are coming, regardless. The impact will be identical, regardless of who brought the case forward and regardless of what their motivations were. And your working relationship will be impacted.

What are you going to do about that? Manage it, or curse it? Are you planning to deal with it in a positive manner or in a negative manner? Are you planning to support creative incentives for pilots to leave at age 60 or earlier, or are you going to support negative incentives that purport to continue the discrimination based upon age and punish those who elect to stay even for one year beyond age 60?

In other words, is your motivation and action going to be based upon reason, or will it be based upon emotion and contempt arising from your assumptions about others' motivation, notwithstanding the inevitability of the law and notwithstanding how irrelevant their motivation is to the outcome?

How about answering that question?

Last edited by Raymond767; 15th May 2010 at 21:17.
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Old 17th May 2010, 18:42
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Raymond767,

I have to ask you one simple question. Why Bother ?

If the BCFLERS of this profession haven't figured the why's and wherefore's by now , they never will.

My guess is that about 98%, after giving it some thought, will go with the flow realizing it was inevitable,finally glad to put it to bed and get on with life.

Then there's the other 2% who will cause problems ( for a while ). For some strange reason there is a very small minority in the ACPA membership that appear not to be able to accept reality.

The saving grace is that most who come back will be flying with senior F/O's in the company who in my experience are a very enjoyable and stable bunch of pilots to work with.

MTK
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Old 17th May 2010, 23:22
  #130 (permalink)  
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It would have nice if 98% would have accepted this concept in 2006, when we could have traded off some benefit for the windfall to the employer by reason of the increased contributions to and decreased draw from the pension plan.

Fewer than 50% appear to accept it now, and apparently zero percent of those controlling the direction of it on an executive level accept it now.

The issue arises in the context of implementation. According to the proposals tendered at the YYZ Council meeting, the Association is planning to attempt to continue the discrimination on the basis of age even after the ruling comes down, by attempting to make amendments to the terms of the contract that prejudice anyone who wishes to stay working beyond age 60--which is a recipe for continued litigation and for continued breach of cohesion among the members, at a critical period, not to mention the potential adverse impact on the workplace environment.
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Old 18th May 2010, 02:17
  #131 (permalink)  
 
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AC reaps a huge benefit from pilots staying longer. ACPA should have tired to share this. Training costs of $40K times seven or so courses for every retirement, plus the pension benefits. Even at five courses, the saving is $200K which doesn't have to be paid out till someone actually goes. Raising the age defers training and saves current funds, as well as resulting in fewer total training courses. AC will likely benefit by about a two year reduction in retirement training; savings that would really give the company a boost. Of course, since AC and ACPA decided to fight, the savings may go out in damages instead.

There is no logical reason for AC to fight this, other than a desire to control. The quality of testimony from the AC witnesses at the hearings would suggest that AC doesn't really want to win, but to appear supportive of ACPA.

When considering motivations, how about an ACPA committee member who will have almost a 40 year career (because he got in at 20 through influence) telling someone that got in at 34 that they can only have a 26 year career; what is the motivation there?

ACPA attempts to perpetuate age discrimination defy logic. Perhaps their legal counsel has told them he can win if only this fight is stretched out forever. He gets big bucks an hour; no motivation there!

In any case, hopefully we will move on to the next stage in a couple of weeks. If things go the way they appear to be going, ACPA can accept reality or waste more money and time.

Place your bets on the likelihood of reality!

Last edited by O360A1A; 28th May 2010 at 18:18. Reason: Editorial
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Old 18th May 2010, 07:21
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If discrimination has been found to occur, and it has, and if the discrimination has been ordered to stop, and if certain parties elect to draft proposals to further discriminate under a contract that has already been judged to be discriminatory, would the architects of that set of proposals not fall under the criminal code? If they are talking about altering the contract to further discriminate on one of the prohibited grounds of discrimination, would the Company not have to be party to any amendments and so would they also fall under the criminal code?
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Old 18th May 2010, 13:12
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0360A1A wrote:
how about an ACPA committee member who will have almost a 40 year career (because he got in at 20 through influence) telling someone that got in at 34 that they can only have a 16 year career
It would appear that you passed mathematics "through influence".
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Old 18th May 2010, 13:40
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0360A1A wrote:

Quote:
how about an ACPA committee member who will have almost a 40 year career (because he got in at 20 through influence) telling someone that got in at 34 that they can only have a 16 year career
It would appear that you passed mathematics "through influence".
His point is still valid. People who will accrue the 35 years service necessary for a full pension are trying to restrict a large percentage of current pilots, and all future pilots to 25 - 26 years of service. At some point those pilots will suss on to that fact, and when that happens they will be thankful their earlier misguided efforts to force retirement at 60 failed.
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Old 18th May 2010, 16:39
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Some many things to reply to and so little time.. (I actually try to have a life outside of aviation and all its politics but more on that later)

ELF:
Would you mind elaborating on your single word answer about why you think this case won't be in the courts for years to come?

Please explain how this will benefit every pilot in the country. The way I see things this will delay everyones advancement in the company by at least 2-4 yrs. That means 2-4 yrs longer at lower pay, worse schedules, perhaps even layoffs. All of which equates to a much poorer lifestyle. For the pilots waiting to come to Air Canada, it means at least 2-4 yrs longer before they have the opportunity to get hired. For the pilots waiting to start their career in aviation it means a much harder slog to find that first job. All for the oppportunity to work an extra 5 yrs before they retire? Sounds like a real win, win situation to me....

The argument that pilots are being hired older and therefore need the extra years of service to top up their pension doesn't wash. Alot of the older pilots that came in during the last hiring spree are already quite well set up for their retirement. Alot of us came from Jazz or other airlines and brought all our pension money from our time there. Add in RRSP investments and the pension, while nice to have, isn't the be all end all that it was when pilots were hired at age 22 and had nothing else to fall back on. I would much rather retire at 60 with my $70000.00 yr AC pension (might be shocking to some but you can live on the amount) and enjoy my life while I still can.

Raymond767:
Once again a long winded post full of legalese. I did notice one interesting comment in your post though. All through these proceedings your group has claimed that the junior pilots would not be negatively effected. I believe your original propoganda stated that the delay in advancement would only be 3-4 months. Now you are openly stating that "the impact on junior pilots is a given" What has changed?
As for your assertion that only about 50% of the pilots support
Earlier posts have mentioned several pilots that brought this same case before the courts in the past. Did you openly support them then? Did you bring all your legal expertise to the table and fight for them as hard as you are fighting now? Or did you just sit in the background and watch it unfold? After all if they had won their case, you might not have had the career you did.
To answer your question as to how I plan to manage this attack on my career, I fully support ACPA on this one. Enough said?

Macktheknife:
Spoken like a true senior pilot.... Believe me there is a much bigger percentage of pilots who are against this than you seem to believe.

And now back to my life OUTSIDE of flying!
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Old 18th May 2010, 17:08
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ELF:
Would you mind elaborating on your single word answer about why you think this case won't be in the courts for years to come?
I don't mind at all. Every single jurisdiction in this country except federal has banned the practice of mandatory retirement on the grounds that it is discriminatory. Federally, legislation removing the exemption that ACPA is basing their argument on has been introduced and is working its way through parliament. While it's true another election could kill it just like it has in the past, it will pass eventually.

In the meantime the CHRT has ruled that it is not a valid exemption in this case which is entirely within their purview. The CHRT has ruled, and ACPA and Air Canada must comply even while they pursue whatever legal avenues they like. Failure to comply while that is going on makes the damages they will be subject to worse by the month.

You would have to be willfully blind to not see which way this fight has already ended. Stalling tactics won't work because a ruling has been made and we must comply. Not doing so is breaking the law. Eventually people with a brain are going to realize the stupid futility of continuing this fight and stop.

Please explain how this will benefit every pilot in the country. The way I see things this will delay everyones advancement in the company by at least 2-4 yrs. That means 2-4 yrs longer at lower pay, worse schedules, perhaps even layoffs.
This has been explained many times already, and I don't think explaining it to you yet again will make any difference. Your assumptions on the negative effects are speculative at best, fostered in part by ACPA's ridiculous financial impact study that is so transparently biased they should be embarrassed they tabled it. Your assertion that new hires won't be bothered by their inability to get a full pension is equally absurd. Talk to me in 20 years.
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Old 18th May 2010, 18:10
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Spoken like a true senior pilot.... Believe me there is a much bigger percentage of pilots who are against this than you seem to believe.
The % of pilots against this is irrelevant as the rule of law will be the governing factor. Live in your make believe world as long as you want but it won't change anything, except maybe flare up your brewing ulcer. Let me take a stab here. Your probably one of those on the OAC forum who are still fighting the long lost seniority battle?


What I said was anyone coming back will fly with senior F/O's who have a much greater grasp of the situation and will therefore make the initial transition period easier.

I'll make you a deal. Get AC & ACPA to iron clad GUARANTEE the viability of the pension plan AND regain the indexation ACPA pissed away and I GUARANTEE, you will never here another peep from me (and probably a lot of others.)

?

MTK

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Old 19th May 2010, 03:20
  #138 (permalink)  
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Originally Posted by BCFlyer
All through these proceedings your group has claimed that the junior pilots would not be negatively effected. I believe your original propoganda stated that the delay in advancement would only be 3-4 months. Now you are openly stating that "the impact on junior pilots is a given" What has changed?
What changed? Nothing, except your misinterpretation of my previous posts. Show me where I have stated that the junior pilots will not be negatively affected. On the contrary, since 2006 I have been strongly suggesting that the Association owed a duty to all of their members to negotiate a benefit for those who will be adversely affected. I have repeatedly stated that the change is not "fair." I have also repeatedly stated that it cannot be avoided, so those adversely affected should be protected by creating a positive incentive for senior pilots to want to leave early (for example, a reduction in the penalty for leaving early).

Earlier posts have mentioned several pilots that brought this same case before the courts in the past. Did you openly support them then? Did you bring all your legal expertise to the table and fight for them as hard as you are fighting now? Or did you just sit in the background and watch it unfold?
How could I have supported them in the 1990's if I didn't find out their complaints until I became involved in 2006, once I did some legal research? And how could I have supported them at that point in time, even if I did know about their Complaints, when the Charter jurisprudence wasn't as clear as it is now with respect to Section 15(1) [equality rights]? I was the first person to ever file a Charter challenge to Section 15(1)(c) of the Canadian Human Rights Act, and I did that largely as a result of the changing interpretation of Section 1 of the Charter. But I wasn't the last one to file a challenge, and after the JR in November, it will likely all be moot anyway.

And what the heck difference does it make whether I supported them, anyway? Can you not get it through your head that my role here is irrelevant to the issue that you are facing--namely, the issue that you refuse to acknowledge? The change is upon us, and you and the rest of the pilots who are fighting this change are causing yourselves serious damage as a result of your short-sightedness and denial.

Maybe a special assessment for damages will finally get you to focus your mind on that issue. But likely only after you have drawn and quartered the messengers, of course.

Last edited by Raymond767; 19th May 2010 at 03:54.
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Old 20th May 2010, 15:07
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ACPA still does not get it. This is a direct quote from their most recent mailing on pensions:

"If you are planning on retiring at the normal and mandatory age of retirement of 60,"

They still cannot acknowledge that they have lost the fight, and they still perpetuate this myth that forced retirement at age 60 is both mandatory and normal. It's like the ruling last August never happened in their world. They have shut down any reciprocal discussion on this issue on their forum, and their supporters have successfully done the same on Avcanada.

This policy of denial and suppression of dissenting opinion is hurting us all and has got to stop.

Last edited by engfireleft; 20th May 2010 at 16:34.
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Old 20th May 2010, 19:37
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Others may have better information, but it's a couple of weeks until the VK remedy order is issued and maybe somebody knows the time line for the general cease and desist which would affect the entire operation, but for those currently retiring on a monthly basis they will apparently still technically need to file their complaint with the HRC - they have 12 months from the date of their forced retirement to file. After that it will not be accepted. But the sooner you file with the HRC the sooner the files are grouped and forwarded to the Tribunal. The FlyPast60 website likely has the information for that process. There are about 70 pilots finished hearings already from back in January, the VK verdict was issued way back the middle of last year, something like another 40 in the process of being referred from the HRC to the Tribunal and another number in the process of filing?? Something like 140 altogether at this point and rising. So for those wishing to continue their employment like every other pilot in North America, for now you apparently need to file. The VK remedy has been promised for June 1, that's less than 2 weeks away now, and the results of the hearings for the next 70 could be issued anytime now.
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