Bonna Fide Occupational Requirement
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Just announced. The long-awaited decision in the Thwaites hearing will be released tomorrow morning. Apparently it deals with both BFOR and whether age 60 is the normal age of retirement for mandatory retirement purposes.
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Last edited by 777longhaul; 10th Aug 2011 at 18:50. Reason: corrections
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mandatory retirement for AC pilots upheld
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Flatface
Yes, you are correct, it did dismiss the mandatory retirement, well sorta.....
The JR will probably overturn it, because of numerous legal errors.
Read the entire ruling, pay close attention to the "pilots working in similar positions"
The CHRT, (Sinclair) for some unknown reason, took out West Jet, AirTransAt, and Skyservice in the already approved Federal Court list. Can't Do that.
The CHRT, (Sinclair) also ruled on the Charter issue, that was NOT supposed to be legally included in the ruling. Can't do that.
The CHRT (Sinclair), did rule properly, that the BFOR shield, that AC and acpa have been hiding behind for years, is NOT available to them, and the BFOR issue is now dead. So, the ONLY issue AC and acpa can use, is to say that AC employs more pilots in Canada than anyone else, and that they can set the "normal age of retirement". They can not do that, as they are the biggest employer, BUT they do not employ the most pilots is Canada, so they can not set the "normal age of retirement" legally. Period.
ALL the rest of the airlines in Canada, regardless of size, aircraft type, destinations, etc, do NOT force their pilots to retire at 60. That is 100% of the other airlines in Canada. So, AC is the only one, hardly the "normal age of retirement" is it?
The CHRT, (Sinclair) took out West Jet, etc, so that the "normal age of retirement" numbers would work in AC and acpa's favor, however, the previous Federal Court JR set the conditions, definitions, and other critera, and the Federal Court is BINDING on the CHRT, period. So the CHRT (Sinclair) can not do that.
Amazing to think that Air Tindi, is a comparator airline, but West Jet, AirTransAt, Skyservice are not. Does that make sense to you?
Hope this sheds some light on your posting. The big issue, is the BFOR issue, and AC and acpa lost it totally! The Meiorin Test, (go to www.flypast60.com) website, and look at the BFOR flow chart, and you will quickly see how AC and acpa can not use the BFOR issue, just as CHRT Sinclair ruled in this award. (August).
Judge Criag (July award) ruled incorrectly on the BFOR issue on the V/K case, and his award will go to JR also. What do you think are his chances?
This entire issue, has become a joke in the legal sense, and it will go the entire distance from both sides of the fence.
Other POV's are on www.AVCANADA.CA both pro and con.
Yes, you are correct, it did dismiss the mandatory retirement, well sorta.....
The JR will probably overturn it, because of numerous legal errors.
Read the entire ruling, pay close attention to the "pilots working in similar positions"
The CHRT, (Sinclair) for some unknown reason, took out West Jet, AirTransAt, and Skyservice in the already approved Federal Court list. Can't Do that.
The CHRT, (Sinclair) also ruled on the Charter issue, that was NOT supposed to be legally included in the ruling. Can't do that.
The CHRT (Sinclair), did rule properly, that the BFOR shield, that AC and acpa have been hiding behind for years, is NOT available to them, and the BFOR issue is now dead. So, the ONLY issue AC and acpa can use, is to say that AC employs more pilots in Canada than anyone else, and that they can set the "normal age of retirement". They can not do that, as they are the biggest employer, BUT they do not employ the most pilots is Canada, so they can not set the "normal age of retirement" legally. Period.
ALL the rest of the airlines in Canada, regardless of size, aircraft type, destinations, etc, do NOT force their pilots to retire at 60. That is 100% of the other airlines in Canada. So, AC is the only one, hardly the "normal age of retirement" is it?
The CHRT, (Sinclair) took out West Jet, etc, so that the "normal age of retirement" numbers would work in AC and acpa's favor, however, the previous Federal Court JR set the conditions, definitions, and other critera, and the Federal Court is BINDING on the CHRT, period. So the CHRT (Sinclair) can not do that.
Amazing to think that Air Tindi, is a comparator airline, but West Jet, AirTransAt, Skyservice are not. Does that make sense to you?
Hope this sheds some light on your posting. The big issue, is the BFOR issue, and AC and acpa lost it totally! The Meiorin Test, (go to www.flypast60.com) website, and look at the BFOR flow chart, and you will quickly see how AC and acpa can not use the BFOR issue, just as CHRT Sinclair ruled in this award. (August).
Judge Criag (July award) ruled incorrectly on the BFOR issue on the V/K case, and his award will go to JR also. What do you think are his chances?
This entire issue, has become a joke in the legal sense, and it will go the entire distance from both sides of the fence.
Other POV's are on www.AVCANADA.CA both pro and con.
Last edited by 777longhaul; 20th Aug 2011 at 23:34.
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Flatface
I know that you posted it. Thanks.
I put the brief.....facts after your link to the posting, so that those who are reading this, can reference what the ruling says, what it doesn't say, what was legally correct, and what is wrong/right with the ruling from CHRT, Sinclair.
The various rulings require some explaination, and that is all that I am posting. Nothing directed at or about you.
The rulings, regardless of which way they go, will most likely go to JR, by any and or all the parties.
I know that you posted it. Thanks.
I put the brief.....facts after your link to the posting, so that those who are reading this, can reference what the ruling says, what it doesn't say, what was legally correct, and what is wrong/right with the ruling from CHRT, Sinclair.
The various rulings require some explaination, and that is all that I am posting. Nothing directed at or about you.
The rulings, regardless of which way they go, will most likely go to JR, by any and or all the parties.
Last edited by 777longhaul; 20th Aug 2011 at 23:35.
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For the record, Mr. Sinclair is not a judge. He was the Chair of the Tribunal, and he was a law professor, but he never was a judge.
In any event, his error in dismissing the complaints is about to be corrected without a judicial review. Air Canada agreed that the Tribunal should continue to hear the Charter arguments in the case, and the Tribunal has now ordered all parties to make submissions regarding the type of hearing needed to continue the case.
In any event, his error in dismissing the complaints is about to be corrected without a judicial review. Air Canada agreed that the Tribunal should continue to hear the Charter arguments in the case, and the Tribunal has now ordered all parties to make submissions regarding the type of hearing needed to continue the case.
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New update on www.flypast60.com
Thread Starter
Good Morning All:
This is the Air Canada filing to save you the trouble going over to their web site:
Court file No. T-
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise
This is the Air Canada filing to save you the trouble going over to their web site:
Court file No. T-
I Y ')3 ~ I)
FEDERAL COURT
AIR CANADA
AIR CANADA
Applicant
-and-
ROBERT ADAMSON, ROBERT DAVID ANTHONY, JACOB BAKKER,
DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON,WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF,
JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT,LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER,GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN,TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN,JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES,GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING,GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE,HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC,DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD,PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD,BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN,GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON,MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE,MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT,PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULlST, DONALD SMITH,OWEN STEWART, RAY THWAITES, DALE TRUEMAN,ANDRE VERSCHELDEN, AND DOUGLAS ZEBEDEE
DONALD BARNES, MICHAEL BINGHAM, DOUG BOYES, KENNETH BUCHHOLZ, DANIEL BURROWS, DAVID G. CAMERON,WAYNE CASWILL, GEORGE COCKBURN, BERT COPPING, GARY DELF,
JAMES E. DENOVAN, MAURICE DURRANT, COLM EGAN, ELDON ELLIOTT,LEON EVANS, ROBERT FORD, LARRY FORSETH, GRANT FOSTER,GUY GLAHN, KENWOOD GREEN, JONATHAN HARDWICKE-BROWN,TERRY HARTVIGSEN, JAMES HAWKINS, GEORGE HERMAN,JAMES RICHARD HEWSON, BROCK HIGHAM, LARRY HUMPHRIES,GEORGE DONALD IDDON, PETER JARMAN, NEIL CHARLES KEATING,GEORGE KIRBYSON, ROBIN LAMB, STEPHEN LAMBERT, LES LAVOIE,HARRY G. LESLIE, ROBERT LOWES, GEORGE LUCAS, DONALD MADEC,DON MALONEY, MICHAEL MARYNOWSKI, BRIAN MCDONALD,PETER MCHARDY, GLENN RONALD MCRAE, JAMES MILLARD,BRIAN MILSOM, HOWARD MINAKER, GEORGE MORGAN,GREG MUTCHLER, HAL OSENJAK, STEN PALBOM, DONALD PAXTON,MICHAEL PEARSON, DAVID POWELL-WILLIAMS, PAUL PRENTICE,MICHAEL REID, PATRICK RIESCHI, STEVEN ROSS, GARY SCOTT,PHILLIP SHAW, ANDREW SHERET, MICHAEL SHULlST, DONALD SMITH,OWEN STEWART, RAY THWAITES, DALE TRUEMAN,ANDRE VERSCHELDEN, AND DOUGLAS ZEBEDEE
CANADIAN HUMAN RIGHTS COMMISSION
AIR CANADA PILOTS ASSOCIATION
Respondents
APPLICATION FOR JUDICIAL REVIEW
UNDER SECTION 18
UNDER SECTION 18
.1 OF THE FEDERAL COURT ACT
NOTICE OF APPLICATION
TO THE RESPONDENTS:
NOTICE OF APPLICATION
TO THE RESPONDENTS:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed
by the applicant appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise
, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Montreal.
IF YOU WISH TO OPPOSE THIS APPLICATION
, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Court Rules and serve it on the applicant's solicitor, or where the applicant is self represented, on the applicant, WITHIN 10 DAYS after being served with the notice of application.
Copies of the Federal Court Rules, information concerning the local offices of the Court and necessary information may be obtained on request to the Administrator of this court at Ottawa (telephone 613-992-4238) or at any local office
.
.
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU
.
Date
:
SEP O8 2011
L'ORIGINAL ATSIGN PAR RAZVAN MOVILA HAS SIGNED THE ORIGINAL
Issued by
: ___________ _
Address of local office
30 McGill St.
Montreal, Quebec H2Y 3Z7
Tel.: (514) 283-4820
Telecopier:
(514) 283-6004
30 McGill Street
Montreal, Quebec
H2Y 3Z7
To: Raymond Hall
2226 West Taylor Boulevard
Winnipeg (Manitoba)
R3P 2J5
Winnipeg (Manitoba)
R3P 2J5
AND
David Baker
4711 Yonge Street
4711 Yonge Street
, Suite 509
Toronto (Ontario)
M2N
M2N
Last edited by a330pilotcanada; 10th Sep 2011 at 12:40. Reason: Spacing
Thread Starter
Part 2
Counsel for: Robert Adamson,Robert David Anthony, Jacob Bakker, Donald Barnes, Michael Bingham, Doug Boyes, Kenneth Buchholz, Daniel Burrows, David G. Cameron, Wayne Caswill, George Cockburn, Bert Copping, Gary Delf, James E. Denovan,Maurice Durrant, Colm Egan, Eldon Elliott, Leon Evans, Robert Ford, Larry Forseth, Grant Foster, Guy Glahn, Kenwood Green, Jonathan Hardwicke-Brown,Terry Hartvigsen, James Hawkins, George Herman, James Richard Hewson,
Brock Higham, Larry Humphries, George Donald Iddon, Peter Jarman, Neil Charles Keating, George Kirbyson, Robin Lamb, Stephen Lambert, Les Lavoie, Harry G. Leslie, Robert Lowes, George Lucas, Donald Madec, Don Maloney, Michael Marynowski, Brian McDonald, Peter McHardy, Glenn Ronald McRae,James Millard, Brian Milsom, Howard Minaker, George Morgan, Greg Mutchler,Hal Osenjak, Sten Palbom, Donald Paxton, Michael Pearson, David PowellWilliams,Paul Prentice, Michael Reid, Patrick Rieschi, Steven Ross, Gary Scott, Phillip Shaw, Andrew Sheret, Michael Shulist, Donald Smith, Owen Stewart, Ray Thwaites, Dale Trueman, Andre Verschelden, and Douglas ZebedeeTo: Donald Paxton
15212 Columbia Ave,
White Rock (British Columbia)
V4B 1J3
15212 Columbia Ave,
White Rock (British Columbia)
V4B 1J3
Last edited by a330pilotcanada; 10th Sep 2011 at 12:36. Reason: spacing
Thread Starter
Part 3
8th Floor
Laughton
APPLICATION
This is an application for judicial review of a decision dated August 10, 2011of the Canadian Human Rights Tribunal (the "Tribunal") in Tribunal file numbers
In the Decision (reported at 2011 CHRT 11), the Tribunal dealt with seventy complaints filed by individual pilots formerly employed by Air Canada who alleged that Air Canada and the Air Canada Pilots Association ("ACPA") discriminated against them by requiring that they retire at age 60 pursuant to themandatory retirement rule found in the collective agreement entered into between Air Canada and ACPA. In the Decision, the Tribunal determined that Air Canada had not met the burden of proving that it will suffer undue hardship with the elimination of the age 60 retirement rule and accordingly, concluded that Air Canada could not rely on the defence of bona fide occupational requirement under ss. 15(1 )(a) and 15(2) of the Canadian Human Rights Act ("CHRA').
In the Decision, the Tribunal ruled that Air Canada could not rely on the defence of bona fide occupational requirement despite the existence of international conventions established by the International Civil Aviation Organization ("ICAO'') to which Canada is a party and which impose maximum age limits on pilots who flyinternationally.
The Applicant makes application for:
(a) an order in the nature of certiorari quashing the Decision of the Tribunal;
(c) such further and other relief as counsel may advise and that this
Honorable Court may deem just.
The grounds for the application are:
(a) The Tribunal erred in law and in fact in finding that the Applicant did
(b) The Tribunal erred in law and in fact in finding that Air Canada did not meet its burden of proving that it will suffer undue hardship with the
(c) Such further and other grounds as counsel may advise and this
Honorable Court permit.
To: Daniel Poulin
Canadian Human Rights Commission
344 Slater Street
Canadian Human Rights Commission
344 Slater Street
8th Floor
Ottawa (Ontario)
K1A 1 E1
Counsel for the Respondent Canadian Human Rights Commission
To: Bruce Laughton
Laughton
& Company
Suite 1090 - 1090 West Georgia Street
Vancouver (British Columbia)
V6E 3V7
V6E 3V7
Counsel for
Respondent Air Canada Pilots Association
TO
: Canadian Human Rights Tribunal
160 Elgin Street
, 11 th Floor
Ottawa (Ontario)
K1A 1J4
TO
: Attorney General of Canada
Minister of Justice
284 Well
ington Street
Ottawa (Ontario)
K1A OH8
APPLICATION
This is an application for judicial review of a decision dated August 10, 2011of the Canadian Human Rights Tribunal (the "Tribunal") in Tribunal file numbers
T1196/0807, T1197/0907, T1246/5807, T1247/5907, T1263/7507, T1279/0908,T1280/1008, T1336/6608, T1337/6708, T138010609, T1390/1609, T1402/2809 and T1418/4409, (the "Decision").
In the Decision (reported at 2011 CHRT 11), the Tribunal dealt with seventy complaints filed by individual pilots formerly employed by Air Canada who alleged that Air Canada and the Air Canada Pilots Association ("ACPA") discriminated against them by requiring that they retire at age 60 pursuant to themandatory retirement rule found in the collective agreement entered into between Air Canada and ACPA. In the Decision, the Tribunal determined that Air Canada had not met the burden of proving that it will suffer undue hardship with the elimination of the age 60 retirement rule and accordingly, concluded that Air Canada could not rely on the defence of bona fide occupational requirement under ss. 15(1 )(a) and 15(2) of the Canadian Human Rights Act ("CHRA').
In the Decision, the Tribunal ruled that Air Canada could not rely on the defence of bona fide occupational requirement despite the existence of international conventions established by the International Civil Aviation Organization ("ICAO'') to which Canada is a party and which impose maximum age limits on pilots who flyinternationally.
The Applicant makes application for:
(a) an order in the nature of certiorari quashing the Decision of the Tribunal;
(b) the costs of this application; and
(c) such further and other relief as counsel may advise and that this
Honorable Court may deem just.
The grounds for the application are:
(a) The Tribunal erred in law and in fact in finding that the Applicant did
not meet its obligation of accommodation prior to November 2006
; and
(b) The Tribunal erred in law and in fact in finding that Air Canada did not meet its burden of proving that it will suffer undue hardship with the
elimination of the age 60 retirement rule
.
(c) Such further and other grounds as counsel may advise and this
Honorable Court permit.
Last edited by a330pilotcanada; 10th Sep 2011 at 13:00. Reason: spacing
Thread Starter
Part 4
HBdocs - Il 038343vl
This application will be supported by the following material:
(a) an Affidavit from Harlan Clarke, Director of Labour Relations at Air
Canada
(a) an Affidavit from Harlan Clarke, Director of Labour Relations at Air
Canada
, together with exhibits attached thereto, to be sworn and filed in
this Honorable Court; and
(b) such other affidavits and material as counsel may advise and this
Honorable Court permit.
September 8, 2011 .
this Honorable Court; and
(b) such other affidavits and material as counsel may advise and this
Honorable Court permit.
September 8, 2011 .
Heenan Blaikie
LLP
Maryse Tremblay
Heenan Blaik
Heenan Blaik
ie LLP
1250 Rene-Levesque Blvd
. West
Suite 2500
Montreal, Quebec H3B 4Y1
T : 514 846.2288
F : 514921 .1288
Counsel for Air Canada
Suite 2500
Montreal, Quebec H3B 4Y1
T : 514 846.2288
F : 514921 .1288
Counsel for Air Canada
HBdocs - Il 038343vl
Thread Starter
FP 60 Application
Court File No.
T- 112 g -11
FEDERAL COURT
BETWEEN:
Robert Adamson, Robert David Anthony, Jacob Bakker,
Donald Barnes, Michael Bingham, Doug Boyes,
Kenneth Buchholz, Daniel Burrows, David G
Donald Barnes, Michael Bingham, Doug Boyes,
Kenneth Buchholz, Daniel Burrows, David G
. Cameron,
Wayne Caswill, George Cockburn, Bert Copping, Gary Delf,
James E Denovan, Maurice Durrant (Estate of), Colm Egan,
Eldon Elliott, Leon Evans, Robert Ford, Larry Forseth,
Grant Foster, Guy Glahn, Kenwood Green, Jonathan HardwickeBrown,
Terry Hartvigsen, James Hawkins, George Herman,
James Richard Hewson, Larry Humphries, George Donald Iddon,
Peter Jarman, Neil Charles Keating, George Kirbyson,
Robin Lamb, Stephen Lambert, Les Lavoie, Harry G. Leslie,
Robert Lowes, George Lucas, Donald Madec, Don Maloney,
Michael Marynowski, Brian McDonald, Peter McHardy,
Glenn Ronald McRae, James Millard, Brian Milsom,
Howard Minaker, George Morgan, Greg Mutchler, Hal Osenjak,
Sten Palbom, Michael Pearson, David Powell-Williams,
Paul Prentice, Michael Reid, Patrick Rieschi, Steven Ross,
Gary Scott, Phillip Shaw, Andrew Sheret, Michael Shulist,
Donald Smith, Owen Stewart, Ray Thwaites, Dale Trueman,
Wayne Caswill, George Cockburn, Bert Copping, Gary Delf,
James E Denovan, Maurice Durrant (Estate of), Colm Egan,
Eldon Elliott, Leon Evans, Robert Ford, Larry Forseth,
Grant Foster, Guy Glahn, Kenwood Green, Jonathan HardwickeBrown,
Terry Hartvigsen, James Hawkins, George Herman,
James Richard Hewson, Larry Humphries, George Donald Iddon,
Peter Jarman, Neil Charles Keating, George Kirbyson,
Robin Lamb, Stephen Lambert, Les Lavoie, Harry G. Leslie,
Robert Lowes, George Lucas, Donald Madec, Don Maloney,
Michael Marynowski, Brian McDonald, Peter McHardy,
Glenn Ronald McRae, James Millard, Brian Milsom,
Howard Minaker, George Morgan, Greg Mutchler, Hal Osenjak,
Sten Palbom, Michael Pearson, David Powell-Williams,
Paul Prentice, Michael Reid, Patrick Rieschi, Steven Ross,
Gary Scott, Phillip Shaw, Andrew Sheret, Michael Shulist,
Donald Smith, Owen Stewart, Ray Thwaites, Dale Trueman,
vi,./'
Andre Verschelden, and Douglas Zebedee ---
Applicants
"!
- and-
AIR CANADA,
-'-
-:-
- AIR CANADA PILOTS ASSOCIATION and
'
" r ~r~ - _\
-~
- rJ.~ Respondents
APPLICATION
UNDER Sections 18 and 18.1 of the Federal Courts Act and
Rules 300 and 317 of the Federal Court Rules
Rules 300 and 317 of the Federal Court Rules
NOTICE OF APPLICATION FOR JUDICIAL REVIEW
L...-___ ~~~_~Thread Starter
Part 2:
TO THE RESPONDENTS
SEP'O 6 2011
SEP 0 6 2011
Ottawa, ON
Attn: Mr. Daniel Poulin, Counsel
TO THE RESPONDENTS
:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the
applicant appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the
Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as
requested by the applicant. The applicant requests that this application be heard at Toronto.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules
and serve it on the applicant's solicitor
applicant appears on the following page.
THIS APPLICATION will be heard by the Court at a time and place to be fixed by the
Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as
requested by the applicant. The applicant requests that this application be heard at Toronto.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules
and serve it on the applicant's solicitor
, or where the applicant is self-represented, on the
applicant, WITHIN 10 DAYS after being served with this notice of application.
Copies of the Federal Courts Rules information concerning the local offices of the Court
and other necessary information may be obtained on request to the Administrator of th
Copies of the Federal Courts Rules information concerning the local offices of the Court
and other necessary information may be obtained on request to the Administrator of th
is Court
at Ottawa (telephone 613-992
-4238) or at any local office.
September 6, 2011
IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN
YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.
September 6, 2011
ORIGINAL sIGNED BY
S
ANDRA MCPHERSON
ASIGNE L'ORlGINAL
Issued by:
_______________ _
(Registry Officer) Courts Administration Service
PO
PO
P.O. Box 10065, 3rd Floor 701 West Georgia Street
TO: Air Canada
1250 boul. Rene-Levesque oust, Suite 2500
Montreal, QC H3B 4Y1
Tel: (514) 846-1212
Vancouver, B.C. V7Y 1SG
TO: Air Canada
AND TO:
c/o Heenan Blaikie LLP
1250 boul. Rene-Levesque oust, Suite 2500
Montreal, QC H3B 4Y1
Tel: (514) 846-1212
Fax
.: (514) 846.3427
Attn: Ms. Maryse Tremblay
I hereby Certify that the above document is a true copy of the original is a true copy of the original issued out of/filed in the Court on day of
SEP'O 6 2011
Dated this day of
SEP 0 6 2011
AND TO: Canadian Human Rights Commission
344 Slater Street, 8th Floor
Ottawa, ON
K1 A 1 E1
Tel.
: (613) 947-6399
Fax
.: (613) 993-3089
Attn: Mr. Daniel Poulin, Counsel
Last edited by a330pilotcanada; 10th Sep 2011 at 13:09. Reason: spacing
Thread Starter
Part 3
c/o
The Canadian Human
900
Attn.: Ms
Attorney
AND TO:
Air Canada Pilots Association
c/o
Laughton & Company
Suite 1090
, 1090 West Georgia Street
Vancouver, Be V6E 3 V7
Tel.:
Tel.:
(604) 683-6665
Fax.: (604) 683-6622
Fax.: (604) 683-6622
Attn.: Bruce Laughton, Q
.c.
The Canadian Human
Rights Tribunal
900
- 473 Albert Street
Ottawa, ON K1A 1J4
Tel.: (613) 995-1707
Fax.: (613) 995-3484
Ottawa, ON K1A 1J4
Tel.: (613) 995-1707
Fax.: (613) 995-3484
Attn.: Ms
. Nicole Bacon, Registry Officer
Attorney
General of Canada
Justice Building
239 Wellington Street
Ottawa, ON K1 A OHB
Tel.:
239 Wellington Street
Ottawa, ON K1 A OHB
Tel.:
(613)957-4222
Fax.:
(613) 954-0811
Thread Starter
Part 4:
Court File No. T-
Robert Adamson, Robert David Anthony, Jacob Bakker, Donald Barnes,
Michael Bingham, Doug Boyes, Kenneth Buchholz, Daniel Burrows,
David G. Cameron, Wayne Caswill, George Cockburn, Bert Copping,
Gary Delf, James
-and -
AIR CANADA,
AIR CANADA PILOTS ASSOCIATION and
Applicants
Respondents
1.
2.
- 1 -
Court File No. T-
142.<6 -11
FEDERAL COURT
FEDERAL COURT
BETWEEN:
Robert Adamson, Robert David Anthony, Jacob Bakker, Donald Barnes,
Michael Bingham, Doug Boyes, Kenneth Buchholz, Daniel Burrows,
David G. Cameron, Wayne Caswill, George Cockburn, Bert Copping,
Gary Delf, James
E Denovan, Maurice Durrant (Estate of), Colm Egan,
Eldon Elliott, Leon Evans, Robert Ford, Larry Forseth, Grant Foster,
Guy Glahn, Kenwood Green, Jonathan Hardwicke-Brown,
Terry Hartvigsen, James Hawkins, George Herman,
James Richard Hewson, Larry Humphries, George Donald Iddon,
Peter Jarman, Neil Charles Keating, George Kirbyson, Robin Lamb,
Stephen Lambert, Les Lavoie, Harry G. Leslie, Robert Lowes,
George Lucas, Donald Madec, Don Maloney, Michael Marynowski,
Brian McDonald, Peter McHardy, Glenn Ronald McRae, James Millard,
Brian Milsom, Howard Minaker, George Morgan, Greg Mutchler,
Hal Osenjak, Sten Palbom, Michael Pearson, David Powell-Williams,
Paul Prentice, Michael Reid, Patrick Rieschi, Steven Ross, Gary Scott,
Phillip Shaw, Andrew Sheret, Michael Shulist, Donald Smith,
Owen Stewart, Ray Thwaites, Dale Trueman, Andre Verschelden,
and Douglas Zebedee
Eldon Elliott, Leon Evans, Robert Ford, Larry Forseth, Grant Foster,
Guy Glahn, Kenwood Green, Jonathan Hardwicke-Brown,
Terry Hartvigsen, James Hawkins, George Herman,
James Richard Hewson, Larry Humphries, George Donald Iddon,
Peter Jarman, Neil Charles Keating, George Kirbyson, Robin Lamb,
Stephen Lambert, Les Lavoie, Harry G. Leslie, Robert Lowes,
George Lucas, Donald Madec, Don Maloney, Michael Marynowski,
Brian McDonald, Peter McHardy, Glenn Ronald McRae, James Millard,
Brian Milsom, Howard Minaker, George Morgan, Greg Mutchler,
Hal Osenjak, Sten Palbom, Michael Pearson, David Powell-Williams,
Paul Prentice, Michael Reid, Patrick Rieschi, Steven Ross, Gary Scott,
Phillip Shaw, Andrew Sheret, Michael Shulist, Donald Smith,
Owen Stewart, Ray Thwaites, Dale Trueman, Andre Verschelden,
and Douglas Zebedee
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AIR CANADA,
AIR CANADA PILOTS ASSOCIATION and
CANADIAN
HUMAN RIGHTS COMMISSION
APPLICATION FOR JUDICIAL REVIEW
Applicants
Respondents
1.
This is an application for judicial review of the Canadian Human Rights Tribunal
("Tribunal
") decision 2011 CHRT 11 released August 10,2011 in which the Tribunal
dismissed the complaints of the
Applicants and two other complainants (who are not
Applicants in this proceeding, Mr. Brock Higham and Mr. Don Paxton).
Applicants in this proceeding, Mr. Brock Higham and Mr. Don Paxton).
2.
The hearings in respect of Tribunal files T1196/0807, T1197/0907, T1246/5807,
T1247/5907 , T1263/7507 , T1279/0908 T1280/1008, T1336/6608 & T1337/6708 ,
T1247/5907 , T1263/7507 , T1279/0908 T1280/1008, T1336/6608 & T1337/6708 ,
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T138010609
, T1390/1609 , T1402/2809, & T1218/4409 for which the August 10,
2011 was rendered
, were held in October and November, 2009 and January, 2010.
3. On August 17, 2009, the Tribunal directed that the hearing of the complaints
commence in the week of October 5, 2009 and continue in the week of October 26,
3. On August 17, 2009, the Tribunal directed that the hearing of the complaints
commence in the week of October 5, 2009 and continue in the week of October 26,
2009
.
4. On September 23
, 2009, the Complainants to the proceeding filed and served a
Notice of
Constitutional Questions in respect of the complaints. Service was made
upon the Respondents, the Attorney General of Canada and the Attorneys General
of Canada's Provinces and its Territories.
5. On September 25, 2009, Air Canada filed in the Federal Court an application for
judicial review of a separate Tribunal decision, 2009 CHRT 24, a complaint
involving two Air Canada pilots, Mssrs. Vilven and Kelly, complainants whose
complaints were substantially similar to the complaints filed in the Tribunal
proceeding leading to this Application , namely complaints regarding mandatory
retirement at age 60.
6. On September 25, 2009, Air Canada filed with the Tribunal and served upon the
parties to this proceeding a motion to adjourn the scheduled hearing of the
complaints of the Applicants pending the outcome of the judicial review application
in the Vilven-Kelly proceeding. Air Canada cited as grounds for its motion to delay
the scheduled October 5, 2009 commencement of the hearing of the complaints in
this proceeding, among other grounds, being provided insufficient notice to
adequately prepare evidence and expert reports in support of a defence to the
constitutional questions, should the hearing commence as scheduled on October 5,
upon the Respondents, the Attorney General of Canada and the Attorneys General
of Canada's Provinces and its Territories.
5. On September 25, 2009, Air Canada filed in the Federal Court an application for
judicial review of a separate Tribunal decision, 2009 CHRT 24, a complaint
involving two Air Canada pilots, Mssrs. Vilven and Kelly, complainants whose
complaints were substantially similar to the complaints filed in the Tribunal
proceeding leading to this Application , namely complaints regarding mandatory
retirement at age 60.
6. On September 25, 2009, Air Canada filed with the Tribunal and served upon the
parties to this proceeding a motion to adjourn the scheduled hearing of the
complaints of the Applicants pending the outcome of the judicial review application
in the Vilven-Kelly proceeding. Air Canada cited as grounds for its motion to delay
the scheduled October 5, 2009 commencement of the hearing of the complaints in
this proceeding, among other grounds, being provided insufficient notice to
adequately prepare evidence and expert reports in support of a defence to the
constitutional questions, should the hearing commence as scheduled on October 5,
2009.
7. The Tribunal
7. The Tribunal
, after receiving submissions from all of the parties in respect of the
motion, issued a direction on October 2, 2009 that stated, in part:
motion, issued a direction on October 2, 2009 that stated, in part:
The Tribunal has reviewed in detail the motion and supporting materials of Air
Canada
Canada
, the submissions of ACPA in support of Air Canada's motion and the
responding materials and submissions of the complainants; The Tribunal has
responding materials and submissions of the complainants; The Tribunal has
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concluded that the hearing into the complaints should go forward on October 5
th
.
The evidence and legal submissions shall be directed to s. 15(1 )(c)
, 15(1 )(a) and
15(2) of the Canadian Human Rights Act.
15(2) of the Canadian Human Rights Act.
The question of the constitutionality of s. 15(1 )(c) will not be considered by the
Tribunal at this time
Tribunal at this time
. After the conclusion of the evidence on s. 15(1 )(c),
s. 15(1 )(a) and s
. 15(2) of the CHRA, the parties, if so advised, may make
submissions as to whether the Tribunal should hear evidence and argument on
the constitutional question, and if so, the Tribunal will set dates for the hearing of
this question.
submissions as to whether the Tribunal should hear evidence and argument on
the constitutional question, and if so, the Tribunal will set dates for the hearing of
this question.
8. The constitutional issue was then deferred pending the outcome of the hearing into
Paragraph 15(1 )(c) of the
Paragraph 15(1 )(c) of the
Act on its merits. The subsequent Tribunal hearing
concerned itself only with the other two outstanding issues, the "normal age of
retirement" defence or exception, and the bona fide occupational requirement
("BFOR") defence.
9. In its decision of August 1 0, 2011 in respect of the first issue, the Tribunal
concluded at Paragraph [182]:
concerned itself only with the other two outstanding issues, the "normal age of
retirement" defence or exception, and the bona fide occupational requirement
("BFOR") defence.
9. In its decision of August 1 0, 2011 in respect of the first issue, the Tribunal
concluded at Paragraph [182]:
[182] Given this conclusion, the mandatory retirement imposed on the
Complainants at age 60 pursuant to the collective agreement between the
Respondents by virtue of s. 15(1 )(c) of the
Complainants at age 60 pursuant to the collective agreement between the
Respondents by virtue of s. 15(1 )(c) of the
CHRA does not constitute a
discriminatory practice ....
discriminatory practice ....
10. In respect of the second issue, the Tribunal made findings in respect of each
Respondent's
Respondent's
BFOR defence. In respect of ACPA's BFOR defence, the Tribunal
stated at Paragraph [346]:
stated at Paragraph [346]:
[346] For these reasons
, I have concluded that ACPA has failed to satisfy steps
one and two of the Meiorin test. The result is that ACPA cannot rely on
the BFOR defence provided by s. 15(1 )(a) of the CHRA.
one and two of the Meiorin test. The result is that ACPA cannot rely on
the BFOR defence provided by s. 15(1 )(a) of the CHRA.
and at Paragraph [405]:
[405] The choice is difficult. But in my opinion
, the impact of eliminating the age
60 retirement rule does not reach the threshold of "undue" hardship. I
have concluded therefore that ACPA has not satisfied the third step of the
60 retirement rule does not reach the threshold of "undue" hardship. I
have concluded therefore that ACPA has not satisfied the third step of the
Meiorin
test.
11. In respect of Air Canada
's BFOR defence, the Tribunal stated at Paragraph [429]:
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[429] At the end of
it all, my opinion is that Air Canada has not met the burden
of proving that it will suffer undue hardship with the elimination of the age
60 retirement rule. Accordingly, it cannot rely on the BFOR defence under
s. 15(1 )(a) of the CHRA.
of proving that it will suffer undue hardship with the elimination of the age
60 retirement rule. Accordingly, it cannot rely on the BFOR defence under
s. 15(1 )(a) of the CHRA.
12.
In its conclusion, the Tribunal dismissed the complaints by reason of its finding in
respect of the Paragraph 15(1 )(c) issue. At Paragraph [430] it stated:
respect of the Paragraph 15(1 )(c) issue. At Paragraph [430] it stated:
[430] I have concluded that the Respondents can rely on s.
15(1 )(c) of the
CHRA
so that the mandatory retirement policy at age 60 does not amount
to a discriminatory practice. Accordingly, the complaints are dismissed.
to a discriminatory practice. Accordingly, the complaints are dismissed.
13.
The Applicants make application for:
A. an order quashing Tribunal decision 2011 CHRT 11 , dated
August 10, 2011 , in part; namely, quashing:
1. the dismissal of the complaints; and
2. the Tribunal's finding in respect of Paragraph 15(1 )(c) of the Act,
namely the finding "that the Respondents can rely on s. 15(1 )(c)
of the Canadian Human Rights Act so that the mandatory
retirement policy at age 60 does not amount to a discriminatory
practice;"
A. an order quashing Tribunal decision 2011 CHRT 11 , dated
August 10, 2011 , in part; namely, quashing:
1. the dismissal of the complaints; and
2. the Tribunal's finding in respect of Paragraph 15(1 )(c) of the Act,
namely the finding "that the Respondents can rely on s. 15(1 )(c)
of the Canadian Human Rights Act so that the mandatory
retirement policy at age 60 does not amount to a discriminatory
practice;"
B. an order awarding costs to the Applicants
; and
C. such further and other relief as this Honourable Court considers
just.
C. such further and other relief as this Honourable Court considers
just.
14.
The grounds for the application are as follows. The Tribunal erred in law and fact
and failed to observe principles of natural justice and procedural fairness and
exceeded its jurisdiction:
A. in failing to consider the entire legislative and jurisprudential context of
the Act and of Paragraph 15(1 )(c) of the Act in the application of
Paragraph 15(1 )(c) to the facts of the complaints of the Applicants;
B. in failing to narrowly construe the defence or exception to a
discriminatory practice provided by Paragraph 15(1 )(c) of Act,
and failed to observe principles of natural justice and procedural fairness and
exceeded its jurisdiction:
A. in failing to consider the entire legislative and jurisprudential context of
the Act and of Paragraph 15(1 )(c) of the Act in the application of
Paragraph 15(1 )(c) to the facts of the complaints of the Applicants;
B. in failing to narrowly construe the defence or exception to a
discriminatory practice provided by Paragraph 15(1 )(c) of Act,
C. in electing to use a statistically-based (50% plus one) method of
determining the
determining the
"normal age of retirement," in the circumstances where
the number of pilots employed by the dominant carrier in the market,
the number of pilots employed by the dominant carrier in the market,
the Respondent Air Canada
, has the effect of so skewing the statistical
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