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T1079 6005 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN - Tribunal

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T1079  6005 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN - Tribunal Powered By Docstoc
					                                                                Tribunal File No. T1079 / 6005


                      CANADIAN HUMAN RIGHTS TRIBUNAL

BETWEEN:
                                     GEORGE VILVEN
                                                                                 Complainant
                                           – and –

                     CANADIAN HUMAN RIGHTS COMMISSION

                                                                                 Commission
                                           – and –

                                       AIR CANADA

                                                                                  Respondent
_______________________________________________________

                                  NOTICE OF MOTION

                                             OF

                             THE " FLY PAST 60 COALITION "
_______________________________________________________

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)   An order adding the group of individuals above, namely,
      the Fly Past 60 Coalition, as an Interested Party to this complaint;
(b)   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 cross-
      examination 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;
(c)   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;
(d)   An order that the Fly Past 60 Coalition disclose its expert report and summary of
      evidence, if any, by October 31, 2006, and
(e)   Such further or other relief as the Tribunal may permit or deem advisable.

THE GROUNDS OF THE MOTION ARE AS FOLLOWS:


(a)   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.

(b)   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)   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.

(d)   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.

(e)   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)   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.

(g)   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.

(h)   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)   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.

(j)   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.

(k)   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.

(k)   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)    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.

(m)     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.

(n)    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                                       2226 West Taylor Boulevard
                                                      Winnipeg, Manitoba
Member, The Fly Past 60 Coalition                     R3P 2J5
                                                      Telephone: ................. 204-897-9000
                                                      Fax: ........................... 416-238-7501


                                              Page 6.
To:                                        And To:

The Canadian Human Rights Tribunal         George Vilven
900 – 473 Albert Street                    269 Woodside Road
Ottawa, Ontario                            Airdrie, AB
K1A 1J4                                    T4B 2C6

Attention: Ms. N. Bacon



And To:                                   And To:

Heenan Blaikie                            Nelligan O'Brien Payne, LLP
1250 boul. Rene-Levesque oust             66 Slater Street, Suite 1900
Suite 2500                                Ottawa, Ontario
Montreal, QC                              K1P 5H1
H3B 4Y1

Attn. Ms. Maryse Tremblay                 Attention: Mr. Steve Waller

  Solicitors For                               Solicitors For
  Air Canada                                   Air Canada Pilots Association



And To:

Canadian Human Rights Commission
344 Slater Street
Ottawa, Ontario
K1A 1E1

Attn: Mr. Dan Pagowski
   Legal Counsel




                                     Page 7.

				
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