Tribunal File No. T1079 / 6005 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN: GEORGE VILVEN and CANADIAN HUMAN RIGHTS COMMISSION and AIR CANADA Complainant Commission Respondent NOTICE OF MOTION THE " FLY PAST 60 COALITION " OF This motion is brought by: Grant F. Foster, Kenwood Green, Raymond D. Hall, George D. Iddon, Robert Neil Kelly, Tim D. Ockendon, David A. Powell-Williams, Ray G. Thwaites, and such additonal Pilots or Former Pilots of Air Canada as the Tribunal may permit to appear as members of the group hereinafter referred to as, the "Fly Past 60 Coalition". PROPOSED METHOD OF HEARING: the motion is to be heard in writing.
THE MOTION IS FOR: (a) (b) (c) (d) (e) An order adding the group of individuals above, namely, the Fly Past 60 Coalition, as an Interested Party to this complaint; An order that the Fly Past 60 Coalition be permitted to fully participate in the hearing of this complaint before the Tribunal, including the introduction of evidence and crossexamination of witnesses, to the extent that such participation is not duplicative of the evidence and submissions of the Complainant and/or Respondent and other parties; An order that the Fly Past 60 Coalition provide its Statement of Particulars and full disclosure, excluding expert reports and summary of expert evidence, if any, to the other parties not later than September 30, 2006; An order that the Fly Past 60 Coalition disclose its expert report and summary of evidence, if any, by October 31, 2006, and Such further or other relief as the Tribunal may permit or deem advisable. THE GROUNDS OF THE MOTION ARE AS FOLLOWS: (a) (b) The Respondent Air Canada is a party to an agreement with its pilot union, the Air Canada Pilots Association (hereinafter referred to as, "ACPA"), whereby each pilot's employment with Air Canada is terminated on the last day of the calendar month in which that pilot attains the age of 60 years. For the sake of brevity, we shall refer to this agreement as the mandatory retirement provision ("MRP") of the substantive collective agreement (and ancillary agreements including pension plan agreements) currently in force between the Respondent and ACPA. Grant F. Foster was born on November 5, 1946, and was hired by Air Canada as a pilot on April 2, 1979. He is currently employed in the capacity of Boeing 767 Captain at the Toronto base. Pursuant to the MRP, his employment with the Respondent will be terminated on November 30, 2006, contrary to his desire to remain employed in the capacity of a Boeing 767 Captain beyond that date. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire Page 2.
to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 001. (b) (d) (e) Kenwood Green was born on February 2, 1946 and was hired as a pilot with the Respondent on September 11, 1972. Pursuant to the MRP, his employment with the Respondent was terminated on February 28, 2006. Prior to his termination, he was employed by the Respondent as a Captain on the Airbus 340 aircraft at the Vancouver base. Prior to the termination of his employment, he served notice upon his employer that he objected to the termination of his employment by reason of the MRP, and advised the Respondent that he intended to continue his employment in his existing capacity as a Captain on the Airbus aircraft after the end of the month in which he acquired the age of 60 years. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 002. Raymond D. Hall was born on July 5, 1949, and was hired as a pilot by the Respondent on July 9, 1973. He is currently employed in the capacity of Boeing 767 Captain at the Toronto base. Pursuant to the MRP, his employment will be terminated on July 31, 2009, contrary to his desire to exercise his right to remain employed in the then-held capacity as a Captain beyond that date. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 003. George D. Iddon was born on February 5, 1946, and was hired by the airline Nordair (which was subsequently acquired, after a series of mergers, by the Respondent) on May 20, 1975. Pursuant to the MRP, his employment was terminated by Respondent on February 20, 2006. At the time of termination of employment, he was employed by the Respondent as a Boeing 767 Captain at the Vancouver base. Prior to the termination of his employment, he served notice upon his employer that he objected to the termination of his employment by reason of the MRP, and advised the Respondent that he intended to continue his employment in his existing capacity as a Captain on the Boeing aircraft after the end of the month in which he acquired the age of 60 years. George D. Iddon has filed Page 3.
a separate complaint with the Canadian Human Rights Commission in respect of the termination of his employment by the Respondent by reason only of the MRP. The investigation of that complaint is being handled as CHRC File Number 2006-0656. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 004. (f) (g) (h) Robert Neil Kelly was born on April 30, 1945, and was hired by the Respondent on September 11, 1972. Pursuant to the MRP, his employment with the Respondent was terminated on April 30, 2005. Prior to his termination, he was employed by the Respondent as a Captain on the Airbus 340 aircraft at the Toronto base. Robert Neil Kelly has filed a separate complaint with the Canadian Human Rights Commission in regard to his own termination pursuant to the MRP, and that complaint is still under investigation, as CRHC File Number. 2006-0441. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 005. Tim D. Ockenden was born on September 25, 1949, and was hired as a pilot by the Respondent on September 10, 1973. Pursuant to the MRP, his employment will be terminated on September 30, 2009, contrary to his desire to exercise his right to remain employed in his then held capacity of Captain beyond that date. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 006. David A. Powell-Williams was born on August 4, 1946, and was hired by Canadian Pacific Airlines (which was subsequently acquired, after a series of mergers, by the Respondent) on August 12, 1969. He is currently employed in the capacity of an Airbus 330 / 340 Captain at the Vancouver base. Pursuant to the MRP, his employment will be terminated on August 31, 2006, contrary to his desire to exercise his right to remain employed in the capacity as a Captain beyond that date. A signed "Letter of Participation" Page 4.
from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 007. (i) (j) (k) (k) Ray G. Thwaites was born on March 19, 1946, and was hired by the Respondent on March 12, 1979. Pursuant to the MRP, his employment was terminated by Respondent on March 31, 2006. At the time of termination of employment, he was employed by the Respondent as a Boeing 767 Captain at the Toronto base. Ray G. Thwaites has filed a separate complaint with the Canadian Human Rights Commission in regard to his own termination pursuant to the MRP, and that complaint is still under investigation, as CRHC File Number. 2006-0492. A signed "Letter of Participation" from this individual specifying his own relevant personal facts and indicating his desire to be a part of this group's application for status in this proceeding is appended to this Notice as Exhibit 008. There are three essential reasons why this group should be accorded status before the Tribunal. First, each of the named individuals above submits that by reason of the preceding termination of employment or impending termination of employment pursuant to the MRP, as the case may be, which in all cases was carried out or will be carried out solely on the basis of each pilot acquiring the age of 60 years, each of us either has had or will soon have our rights violated, contrary to the provisions of Canadian Human Rights Act prohibition of discrimination on the basis of age. The said violation of our statutory human rights was or will be, as the case may be, carried out in a manner identical to the violation of rights alleged by the Complainant in the instant matter. Consequently, each individual has a bona fide and compelling interest in being represented as an Interested Party in the hearing of the instant matter. Additional Air Canada pilots whose employment with the Respondent has already been terminated by reason of the MRP, as well as pilots whose termination of employment by the Respondent is impending by reason of the MRP pilots who are not named above but who similarly desire to object to this violation of their human rights could, rather than applying for and being granted status independently, make representations and submissions in support of the Complainant through this group, thereby minimizing Page 5.
procedure and assisting the Tribunal in its desire to determine this matter in an effective, timely manner. As such, the granting of status as an Interested Party to this open-ended group of interested pilots would well serve the interests of the Tribunal. (l) (m) (n) Second, because the ultimate decision of the Tribunal is likely to be binding on all subsequent applicants sharing the same complaint now and henceforward, it is essential that those with a direct, substantive interest in the outcome be allowed to make representations to the Tribunal prior to the Tribunal's deliberation and resolution of the issue before it. Third, the very union that is statutorily bound to fairly represent the interests of both the Complainant and the hundreds of its members who support the Complainant's allegation of violation of his rights under the Code, will not, we understand, be appearing before the Tribunal in support of the Complainant. On the contrary, not only is ACPA a party to the MRP which allegedly violates the Complainant's rights, but ACPA, we understand, desires to be granted status before the Tribunal as an Interested Party advocating the view that the violation of the Complainant's human rights is totally exempted by the statute. This, in our view, places ACPA in a direct conflict of interest both with the Complainant and with hundreds of its own members who share the Complainant's position and viewpoint, including ourselves, whose interests and rights, we submit, are violated by the MRP. By appearing before the Tribunal and making representations to the Tribunal in support of the Complainant, we seek to assist the Tribunal in making a fair and proper determination of the dispute before it. All of which is respectfully submitted. June 20, 2006. [ Original Signed By Raymond D. Hall ] Raymond D. Hall Member, The Fly Past 60 Coalition 2226 West Taylor Boulevard Winnipeg, Manitoba R3P 2J5 Telephone:... 204-897-9000 Fax:... 416-238-7501 Page 6.
To: The Canadian Human Rights Tribunal 900 473 Albert Street Ottawa, Ontario K1A 1J4 George Vilven 269 Woodside Road Airdrie, AB T4B 2C6 Attention: Ms. N. Bacon Heenan Blaikie 1250 boul. Rene-Levesque oust Suite 2500 Montreal, QC H3B 4Y1 Attn. Ms. Maryse Tremblay Solicitors For Air Canada Nelligan O'Brien Payne, LLP 66 Slater Street, Suite 1900 Ottawa, Ontario K1P 5H1 Attention: Mr. Steve Waller Solicitors For Air Canada Pilots Association Canadian Human Rights Commission 344 Slater Street Ottawa, Ontario K1A 1E1 Attn: Mr. Dan Pagowski Legal Counsel Page 7.