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The Winnipeg lawyer who won a wrongful termination suit on behalf of two Air Canada pilots says he's pleased with the outcome but expects it to be the first of several that will lead to the end of mandatory retirement for all employees in federal jurisdiction.
On Tuesday, Raymond Hall said the Canadian Human Rights Tribunal had already ruled that these two pilots were wrongfully terminated through mandatory retirement but added he was disappointed the tribunal refused to extend the impact of its ruling to all Air Canada pilots.
"It's a huge victory," Hall said of the tribunal's ruling Monday that ordered the two men be re-instated as pilots with no loss of seniority.
George Vilven, 67, was forced to retired in 2003 and Neil Kelly, 65, was forced to retire in 2005. Air Canada is the only major airline in North American with mandatory retirement for its pilots. The tribunal ruled in August 2009 that the forced retirements of Vilven and Kelly violated the Charter and Rights and Freedoms and ruled Monday that they be re-instated with full seniority and back pay dating to the August 2009 ruling.
Hall said Air Canada contacted Vilven and Kelly Tuesday morning and ordered them to report for work first thing next week.
Hall, 60, has been practising law since 1988 and was a former Air Canada pilot and head of the pilot's union from 2000 to 2001. He said the tribunal refused to expand its ruling to the other 150 Air Canada pilots who are fighting their forced retirement.
"Why force others to go through five or seven years of litigation to get to the same point as (Vilven and Kelly)," Hall said. "It makes no sense whatsoever. It gives absolutely no accord to jurisprudence and the proper rule of precedence in labour relations and human rights legislation and jurisprudence. We think that's a reviewable error."
Hall said the tribunal did set a precedent this week when it held both Air Canada and the pilots' union, the Air Canada Pilots Association (ACPA), jointly liable for the costs. Hall said the union could face liabilities of $20-$30 million if the tribunal orders back pay to the day of dismissal for a second group of 73 pilots who are also challenging their retirements.
ACPA President Paul Strachan said his group believes the tribunal erred in not accepting the right of Air Canada and the pilots' representative to determine the age of retirement during the collective-bargaining process. He said a recent survey of the association's membership -- which includes slightly fewer than 3,000 pilots -- showed more than 80 per cent want the retirement age to be 60 or younger.
The tribunal's ruling Monday revolved solely around the remedies Air Canada should provide the two pilots. In the ruling, the tribunal said Air Canada has agreed to reinstate the two pilots as soon as they get the required training updates and meet other medical requirements.
Hall said he's already filed a complaint on behalf of the retired pilots against ACPA to the Canada Industrial Relations Board, alleging that the mandatory retirement provision was stuck into the collective agreement in the 1980s without the consent or ratification by the pilots.
Hall said the pilots's union could face decertification if the Industrial Relations Board supports his complaint of a breach of duty of fair representation.
Further challenges may be unnecessary, Hall said, adding that the Federal Court on Nov. 22 will examine the issue of exempting mandatory retirement from the provisions of the Human Rights Act.
"If we're successful in our federal court hearing in two weeks, the court will strike down that exemption clause in the Human Rights Act and that will end mandatory retirement in the federal jurisdiction," Hall said.
-with files from PostMedia