Thwaites et al. v. Air Canada and Air Canada Pilots Association

Thwaites et al. v. Air Canada and Air Canada Pilots Association
Collection
Canadian Human Rights Tribunal
Date
2011-08-10
Neutral citation
2011 CHRT 11
File number(s)
T1196/0807, T1197/0907, T1246/5807, T1247/5907, T1263/7507, T1280/1008, T1336/6608, T1337/6708, T1380/0609, T1390/1609, T1402/2809, T1418/4409
Decision type
Decision
Decision status
Final
Grounds
Age
Decision Content
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, 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 Shulist, Donald Smith, Owen Stewart, Ray Thwaites,
Dale Trueman, Andre Verschelden, and Douglas Zebedee
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Air Canada
Air Canada Pilots Association
Respondents
Decision
Member: J. Grant Sinclair
Date: August 10, 2011
Citation: 2011 CHRT 11
Table of Contents
Page
I............. Introduction. 1
A. Normal Age of Retirement, section 15(1)(c) CHRA.. 1
B. What Should be the Test for the Comparator Group?. 4
(i).......... The Respondents’ Comparator Group. 5
(ii)......... The Complainants’ Comparator Group. 7
a............ Evidence of Captain Paul Prentice. 7
(iii)........ Conclusion on C-Table 1 and the Normal Age of Retirement 10
(iv)........ Combined Comparator Group Tables. 12
(v)......... Which Airlines Should be Included in the Comparator group?. 27
(vi)........ Conclusion on Comparable Airlines. 30
(vii)...... Conclusion on the Normal Age of Retirement 33
C. Sections 15(1)(a) and 15(2) CHRA.. 34
(i).......... Rodney Stone. 34
(ii)......... Samuel Elfassy. 35
(iii)........ Arlo Speer 40
(iv)........ Harlan Clark. 43
(v)......... Edward Tarapasky. 46
(vi)........ Professor Johnathan Kesselman. 51
(vii)...... Captain Steven Duke. 55
D. Sections 15(1)(a) and 15(2) of the CHRA and Meiorin. 60
E. Sections 15(1)(a) and 15(2) and ACPA.. 61
(i).......... Rikk Salamat 64
F. Conclusion on s. 15(1)(a) of the CHRA for ACPA.. 72
G. Section 15(1)(a) and Air Canada. 73
II........... Final Conclusion. 77
I. Introduction [1] This proceeding involves seventy complainants, sixty-eight of whom are represented by counsel (“Complainants”). They allege that Air Canada and the Air Canada Pilots Association (ACPA) (“Respondents”) have discriminated against them by reason of their age by requiring them to retire from employment as pilots with Air Canada on reaching the age of 60, contrary to ss. 7 and 10 of the Canadian Human Rights Act (CHRA). Their mandatory retirement dates vary and run from 2005 to 2009.
[2] To succeed in their complaints, the Complainants must establish a prima facie case of discrimination and once having done so, the onus shifts to the Respondents to establish a defence on a balance of probabilities.
[3] Under the terms of the collective agreement and pension plan between Air Canada and ACPA, Air Canada pilots are required to retire on the first day of the month following their 60th birthday. Amended Schedule A, Complainants Employment History (January 4, 2010) provided by Air Canada, lists each complainant’s name; date of birth; date of 60th birthday; and date of retirement. This shows that all of the complainants were retired on the prescribed date. Their employment was terminated solely because of their age. This is not disputed by the Respondents. Accordingly, the Complainants have established a prima facie case of discrimination.
[4] The Respondents have offered two defences to the allegation of discrimination. First, under s. 15(1)(c) of the CHRA and secondly, under s. 15(1)(a) and15(2) of the CHRA.
A. Normal Age of Retirement, section 15(1)(c) CHRA [5] In its April 9, 2009 decision in Vilven & Kelly v. Air Canada & ACPA, the Federal Court rejected the Tribunal’s conclusion in Vilven that the appropriate comparator group for the purposes of s.15(1)(c) of the Canadian Human Rights Act were pilots who flew regularly scheduled, international flights on wide-bodied aircraft to international destinations with a major international airline.
[6] The Court stated that s. 15(1)(c) requires two questions to be answered. First, “what is the proper comparator group to identify the positions that are similar to that occupied by Air Canada and secondly, what is the normal age of retirement”.
[7] And when assessing whether a position is “similar” to that occupied by the complainants, the focus should be on the objective duties and functional responsibilities of the position in question. That is, what do Air Canada pilots actually do?
[8] For the Federal Court, “the essence of what Air Canada pilots do is to fly aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and international airspace”, (para. 111).
[9] Thus the appropriate comparator group for the complainants should be “pilots working for Canadian airlines who fly aircraft of varying sizes and types to both domestic and international destinations, through Canadian and international airspace”, (para.112) (“Test”).
[10] The Court reiterated the Test later in paragraph 125 of its decision where it said, “To summarize my findings to this point: the essence of what Air Canada pilots do can be described as flying aircraft of varying sizes and types, transporting passengers to both domestic and international destinations, through Canadian and foreign airspace. There are many Canadian pilots in similar positions, including those working for other Canadian airlines. These pilots form the comparator group for the purposes of paragraph 15(1)(c) of the CHRA.”
[11] The Court observed that, as of the date of the Agreed Statement of Facts that the parties submitted to the Vilven Tribunal, there were five airlines in Canada, apart from Air Canada, that transported passengers to domestic and international destinations. They were Jazz, Air Transat, CanJet, Skyservice and WestJet. However, there is nothing in this observation that suggests that the Court accepted that these five airlines satisfied all of the comparator criteria set out in paragraphs 112 and 125.
[12] Interestingly, the Court went on to say in paragraph 170 of its decision that, “as explained earlier, the Tribunal erred in its identification of ‘positions similar’”. It is “pilots working for Canadian airlines flying aircraft of various sizes to domestic and international destinations, through Canadian foreign airspace that form the proper comparator group”. The words, “transporting passengers” and “both” in reference to destinations and “types” in reference to aircraft are absent in this formulation of the test for the comparator group.
[13] As to the second question of “what is the normal age of retirement,” the Court found that a binding rule in place mandating retirement at a fixed age is not required for the purposes of s. 15(1)(c). The CHRA does not contemplate that the defence under s. 15(1)(c) is only available if there is a binding rule in a given industry mandating retirement at a particular age. Rather, the age of retirement in issue must be the normal, customary or standard within the relevant industry sector. As was the case in McAllister v. Maritime Employers Association, (1999) 36 C.H.R.R. D/446 (F.C.T.D.) where the Court held that there is a significant difference between the normal age of retirement and the mandatory age of retirement.
[14] The Court agreed with the Vilven Tribunal that the determination of the normal age of retirement requires a statistical analysis of the total number count of similar positions. This involves a factual determination of the age at which a majority of employees working in similar positions retire, whether required to or normally do so.
[15] In Campbell v. Air Canada (1981), 2 C.H.R.R. D/602, age 60 was found to be the normal age of retirement where approximately 81% of Canadian flight attendants were required to retire at that age according to the terms of their collective agreement. In Canadian National Railway v. Prior (1983), 4 C.H.R.R.D/268, where 60% of the employees were subject to mandatory retirement at age 65, this age was found to be the normal age of retirement.
[16] In its decision in Vilven, the Court referred to the statistical evidence before the Tribunal with respect to airline pilots working for both Air Canada and other comparator Canadian airlines. This evidence showed that 56.13% of Canadian airline pilots retired by the time they attained age 60. The Court considered this to be the normal age of retirement for the purposes of s. 15(1)(c) of the CHRA. (This was also the result reached by the Vilven Tribunal but using a different test to determine the comparator group).
[17] The Complainants challenge the use of a statistical analysis arguing that the Tribunal is required to read s. 15(1)(c) in its entire context, in its grammatical and ordinary sense harmoniously with the scheme of the CHRA and the intent of Parliament, which may or may not be consistent with other judicial decisions relating to this provision. In support of this position, the Complainants rely on various sources including, principles of statutory interpretation; regulations under the CHRA; Parliamentary proceedings; Directive from the Supreme Court of Canada and other judicial authorities.
[18] These sources do not contemplate a statistical analysis to determine the normal age of retirement. The Complainants go further and suggest that, relying on this contextual approach, it may not be possible to determine the normal age of retirement. Thus, they argue that the statutory defence under s. 15(1)(c) would not be available to the Respondents.
[19] Although a very intriguing argument, I do not see how I can ignore other judicial decisions as urged by the Complainants including those of the Federal Court. These decisions deal with the same issues as here and are binding on this Tribunal.
B. What Should be the Test for the Comparator Group? [20] For the comparator group, the Respondents accept and rely on the Court’s formula in paragraphs 112 and 125. The Complainants have a different opinion. Both the Complainants and the Canadian Human Rights Commission (“CHRC”) assert that the formula prescribed by the Court in these two paragraphs of its decision should not be literally applied in determining the appropriate comparators. Rather, the test that the Court set out in Vilven was dictated by the facts in that case and should only be considered as guidelines to assist the Tribunal in defining the comparator group.
[21] Both the Complainants and the CHRC point to paragraph 170 of the Vilven decision position as support and propose that the Test should be “pilots working for Canadian airlines flying aircraft to either domestic or international destinations through Canadian or foreign airspace”. They say that the Court inserted “both” in relation to domestic and international destinations in the Test to emphasize that the Tribunal erred in limiting the comparator group to those airlines that fly only to international destinations. The Court did not intend that the definition of the comparator group to be more restrictive than that of the Tribunal. It should be read disjunctively to include an airline whether it operates only domestically or only internationally.
[22] Further, both the Complainants and the CHRC assert that the absence of “varying types” in paragraph 170 makes sense. Otherwise, two of Air Canada’s major competitors, who fly only one type of aircraft would be excluded from the comparator group.
[23] This is so even though their pilots do essentially do what Air Canada pilots do, fly passengers to domestic and international destinations. The CHRC would also drop Varying Sizes from the Test arguing that size does not matter. Whether an aircraft is small, medium or large, the essence of what a pilot does is the same.
[24] It is unfortunate that the Court went on to state the comparator test for yet a third time and somewhat differently as it did in paragraph 170 of its decision. There is no explanation from the Court, at this late stage of its decision, as to why the comparator test should be modified. In my view, it should be regarded more as a matter of inadvertence rather than a restatement of the comparator group test.
[25] What the Tribunal must do in this case is what the Court did in Vilven, which is to ask and answer the question, what is the essence of what Air Canada pilots do? The evidence in this case demonstrates that what Air Canada pilots do is as described by the Court in Vilven in paragraphs 112 and 125. Thus, the criteria to be applied in this case will be the same as the criteria applied in Vilven to determine the appropriate group.
(i) The Respondents’ Comparator Group [26] The Respondents have the burden of answering the prima facie case of discrimination established by the Complainants. To do so, the Respondents have put forward in evidence two tables, “Table of Canadian Airlines, Criteria of Comparator Group-2005 to 2008”, (“R-Table 1”) prepared by Captain Steven Duke, Six Sigma Black Belt, Flight Operations. The second table, “Revised Table of Canadian Airlines, Criteria of Comparator Group as of October 2009”, (“R‑Table 2”) was prepared by Harlan Clark, Director, Labour Relations for Air Canada.
[27] Both of the Respondents’ Tables deal with the activities of the same airlines that were referenced by the Complainants, Captain Duke for the years 2005-2008 and Mr. Clark for 2009. Both Tables include 37 Canadian airlines for consideration. Both Tables indicate either “yes’ or “no” under each of the five Test criteria. Where there is “yes” for all of the criteria, the airline was included in the comparator group.
[28] For Varying Size, both Captain Duke and Mr. Clark relied on the definition provided by the Canadian Transportation Agency (“CTA”) in its Application Guide for Canadian Applicants for a Licence to operate a Domestic or Non-scheduled International Service. They chose the CTA definition rather than Transport Canada (“TC”) 703/704/705 definition because it refers to the number of seats and if considering airlines that transport passengers, the number of seats was a common denominator for all the airlines.
[29] The CTA classifies aircraft on the basis of the Certificated Maximum Carrying Capacity (“CMCC”). A “large aircraft” means an aircraft equipped for the carriage of passengers and having a CMCC of more than 89 passengers. A “medium aircraft” means an aircraft equipped for the carriage of passengers and having a CMCC of more than 39 but not more than 89 passengers. A “small aircraft” means an aircraft equipped for the carriage of passengers and having a CMCC of not more than 39 passengers.
[30] Captain Duke and Mr. Clark defined Domestic to mean from one point in Canada to another point in Canada, scheduled or non-scheduled and whether or not it overflies the U.S. enroute. They considered an International as a flight between two city pairs, one in Canada and one outside of Canada.
[31] Both The Canadian Transportation Act (s.55) and the CTA Application Guide: For Canadian applicants for a licence to operate a domestic or non-scheduled international air service, define “domestic service” as air service between points in Canada, from and to the same point in Canada or between Canada and a point outside Canada that is not in the territory of another country; and “International service” as an air service between Canada and a point in the territory of another country. The CTA Air Carrier Licence Search (“ACLS”) for type of licence shows Domestic as Service within Canada.
[32] For Varying Types, Mr. Clark referred to the TC OLS website that outlined the various types of aircraft for a particular airline and used that as a guideline for determining airline types. Captain Duke relied on what the airline representatives told him about the types of aircraft they operated.
(ii) The Complainants’ Comparator Group a. Evidence of Captain Paul Prentice [33] Captain Prentice is a complainant in this matter. He was employed as a first officer with Air Canada. He retired on October 1, 2005, the first day of the month following his 60th birthday. At one point in his career at Air Canada from about 1997 to 2001, he was the manager of flight operations and flight safety. He returned to line flying because he was due to retire about 18 months later and wanted to go back to flying aircraft.
[34] Captain Prentice prepared three Tables. His first Table (“C-Table 1”) entitled “Retirement Ages of Pilots working for Canadian Air Carriers” December 31st 2005 combines each airline’s activities, their pilot totals and their retirement age and policy. It includes the following headings: Air Carrier; Pilots; Retirement Age; Retirement Policy; International Flights; Passenger; Freight; Part 705; Data provided by; and Contact Info. There are no categories for Domestic Flights or Varying Sizes and Types.
[35] The genesis of C-Table 1 is found in Captain Prentice’s Statement of Facts, February 6, 2006, that he submitted to the CHRC in support of his human rights complaint. He reviewed what he considered to be the relevant jurisprudence on s. 15(1)(c) and compiled a list of Canadian airlines from the TC website that he considered comparable to Air Canada. These airlines are designated as part 705 air carriers under the Canadian Aviation Regulations (“CARs”) and hold the same Air Operating Certificate (“AOC”) as Air Canada.
[36] He came up with the list of nine airlines which had a total of 3,090 pilots compared to 3,066 for Air Canada. He obtained this information by contacting key personnel whom he knew at these airlines who had access to seniority lists which showed the number of pilots employed in similar positions to Air Canada pilots. From these sources, he also obtained confirmation that their pilots were not required to retire at age 60.
[37] Once he determined that Air Canada was in the statistical minority, he did no further investigation and submitted this information to the CHRC.
[38] For the purpose of this hearing, Captain Prentice continued his information gathering. In obtaining the information for C-Table 1, Captain Prentice said that it was a group effort, a group of five pilots including him. In some cases he was given the information by others in the group and in some cases he researched the website. Where he indicated on C-Table 1 that the data was provided online, he would determine if the airline had a website. If so, either he or one of the group would contact the airline.
[39] As to the phone numbers of the airlines listed on this Table, Captain Prentice said he would have called a fair portion of those but was not certain which airlines other people called.
[40] As to the Pilot totals for each airline, he had the Air Canada, January 1, 2006 pilot seniority lists and the Jazz pilot position lists for 2005. He also referred to Schedules A and B of the Vilven Agreed Facts which has pilot numbers for Air Canada, Jazz, Air Transat, CanJet, Skyservice and Westjet. For the other airlines listed on C-Table 1, he or other members of the group obtained this information from someone who had worked or worked at the airline.
[41] Captain Prentice believed that the pilot numbers that he acquired would be more accurate at year-end because seniority lists were the most stable for the latter part of the year. So he chose December 31, 2005 as a snapshot. To acquire data month by month or year by year was an acquisition nightmare. Pilot seniority lists go up and down and it was beyond his ability to get information by month or year. If the numbers for pilots were close to that data he had acquired, he used the Vilven data.
[42] For “Retirement Age” on C-Table 1, Captain Prentice said that he used data from the Vilven Agreed Facts. The Table shows that all of the airlines he listed have a retirement age of 65. Only Air Canada has a retirement age of 60. For “Retirement Policy” on C-Table 1, some of the data comes from the Vilven Agreed Facts and for the rest of the listed airlines it may have come from calling the references listed.
[43] As to the Air Carriers that he listed as comparators, C-Table 1 shows thirty-four, Part 705 airlines and two, Part 704 airlines (Air Alliance/Georgian and Air Inuit). The TC website, Part VII, CARs, defines a Part 705 AOC and a Part 704 AOC.
[44] A Part 705 certificate, Airline Operations, is issued to an air operator that operates an aircraft with a maximum takeoff weight (“MCTOW”) in excess of 19,000 lbs and for which a Canadian type certificate has been issued for the transport of 20 or more passengers.
[45] A Part 704 certificate, Commuter Operations, issues for an airline that operates aircraft having a MCTOW of 19,000 lbs or less and a seating configuration excluding pilot seats of 10 to 19 inclusive.
[46] A Part 703 certificate, Air taxi Operations, is issued for aircraft having a MCTOW of 19,000 lbs or less and a seating configuration, excluding pilot seats, of nine or less.
[47] Captain Prentice searched the TC website, Operator List Search (“OLS”) in October 2009 for Part 705 airlines that produced a total of thirty-seven airlines. He also searched the TC, OLS website for Part 704 airlines that showed eighty-seven airlines.
[48] Although Captain Prentice did not include Part 704 airlines in C-Table 1 (except for Air Alliance and Air Inuit) the Complainants say that these airlines arguably meet the comparator Test. They want the Tribunal to take them into account as backup comparators if there is problem in terms of numbers to support their position.
[49] Captain Prentice said that he did not contact any of these Part 704 airlines nor did the Complainants offer any analysis beyond the information on the TC website to show that any of them fall within the comparator group. There was no evidence on the number of pilot positions for these Part 704 airlines other than Captain Prentice’s estimate, based on his experience in the industry, that you need at least 1,500 pilots to keep these airlines in business.
[50] With respect to “International Flights”, Captain Prentice said that he consulted the airline’s website to see if it had a charter operation. If it was not apparent from the website, either he or one of the other pilots who were assisting him contacted the airline. Captain Prentice included airlines as comparators if they actually did fly internationally, scheduled or charter or whether they were licenced, or were willing and able to do so.
[51] For those airlines that he called, he asked if he wanted to charter an aircraft to the US could they do that. This was in 2009. He did not ask them about 2005. He could not vouch for what questions the other group members asked. So all the data under “International” on C‑Table 1 is 2009 data.
[52] Captain Prentice did not include on C-Table 1 any category for Varying Types or Varying Sizes of aircraft and did not provide any explanation as to why these criteria were not considered.
[53] The conclusion that Captain Prentice reached from C-Table 1 is that the number of pilots employed by the comparator airlines as of December 31, 2005 total 5,350, compared to the total number for Air Canada pilots of 3,037. In terms of percentage, the total for the comparator pilots constitutes 63.8% of the total number of pilots.
(iii) Conclusion on C-Table 1 and the Normal Age of Retirement [54] In my opinion, there are problems if the Complainants are relying on Captain Prentice’s C-Table 1 to establish the normal age of retirement for the purposes of s.15(1)(c). As he explained, C-Table 1 is a snapshot of the situation at December 31, 2005. But some of the pilot numbers are taken from the Vilven Agreed Facts which are from 2006. Other pilot numbers were obtained either by Captain Prentice or by his colleagues contacting the airlines in 2009. Data for International is as of 2009. So C-Table 1 is a hybrid of 2005, 2006 and 2009 data but purports to represent the situation as it was in December 2005.
[55] Last but certainly not least, Captain Prentice has constructed his own formula as to what criteria should be used to determine the comparator group. He includes only two of the five criteria enunciated by the Court. I have decided that all five should be used to determine the comparator. Even if paragraph 170 of the Court’s decision governs, his factors don’t match. It may be arguable to wander away somewhat from the Court’s formulation. But there must be some justification for doing so. Here there is none unless it is rooted in his initial submission to the CHRC. That may be an explanation but it is not a justification.
[56] For these reasons, I cannot accept his C-Table 1 as the basis for establishing the normal age of retirement.
[57] Captain Prentice prepared a second table, “Table of Canadian Airlines, Criteria of Comparator Groups, 2005 to 2009”. The Complainants submitted this as reply evidence. It responds to both Captain Duke’s R-Table 1 and Mr. Clark’s R-Table 2. What Captain Prentice did was highlite, airline by airline, under each of the five criteria, where his conclusion differed from that of Mr. Clark and Captain Duke.
[58] In constructing C-Table 2, Captain Prentice used different definitions than Captain Duke and Mr. Clark for the Test. The differences related mainly to Domestic, International and Varying Size. As to Type if an aircraft was a different model as shown on the OLS or company website, Captain Prentice would consider it is a different type.
[59] For Varying Size he did not use the CTA definitions of small, medium and large as determined by the maximum passenger carrying capacity. Instead he relied on the TC OLS maximum weight.
[60] In particular, if there was a weight difference of more than 500 lbs, Captain Prentice would classify them as being of a different size. Captain Prentice said that his cut off point is not based on any official document but rather on logic. He gave the example of a BE100 at 11,500 lbs and a BE99 at 11,000 lbs. They would be different types but not different sizes. A BE100 at 11,500 lbs and a DHC8 at 34,500 lbs, they would be different types and different sizes.
[61] On the question of International Flights, Captain Prentice relied on the ACLS to determine whether an airline is licenced to fly internationally. He also relied on the company website and on email information from airline representatives. If he could not obtain further information from the website or by contacting the airline, he would rely solely on the ACLS.
[62] The criterion he used for International was whether it was licenced and operated international charters or whether the airline was licenced to operate internationally and was capable and willing to quote on and provide an international charter flight.
(iv) Combined Comparator Group Tables [63] I have combined R-Table 1, R-Table 2 and C-Table 2 into one Table which shows only those airlines where the parties disagree as to whether or not the Test is met and the reasons therefor.
[64] Duke: Air Transat: Issue: Domestic: No Size: No Data Source: Testimony of Anne Bujold, Human Resources Advisor. She testified that Air Transit is a charter vacation airline that operated scheduled flights to 60 destinations in Europe, the Caribbean, Mexico, US and South America and did so in 2005-2009. She also testified that Air Transat did not fly any domestic flights during 2005-2009. The airline had two types of aircraft A310 and A330 in 2005-2009. These are both large.
[65] Clark: Air Transat for 2009: same as above. Further, Mr. Clark tried to book a flight on Air Transat from Montreal to Toronto; from Montreal to Vancouver; and from Toronto to Vancouver and was unable to do so. His explanation was that Air Transat does not provide service between one Canadian city and another.
[66] Prentice: Air Transat: Issue: Domestic: Yes Size: Yes Data Source: CTA website, Air Carrier Licence Search (“ACLS” 2009). This shows that Air Transat holds a Domestic licence to fly domestically. He also produced Schedule Notice Change from Nolitours dated November 2009, showing an Air Transat flight from Puerto Vallarta to Toronto and a letter from Janet Brock, owner of Travel Plus (2009), that says that Air Transat frequently connect domestic cities in Canada to fly their passengers to international destinations. Captain Prentice relied on this to show that Air Transat flies to domestic destinations. The TC Canadian Civil Aircraft Register (2010) (“CCAR”) for Air Transat shows that it operates the A310-300, A330-243 and A330-342.
[67] Duke: SkyService: Issue: Domestic: No Size: No Data Source: Director, Planning and Scheduling. SkyService stopped flying passenger domestic flights in 2005. During the years from 2005-2008, Skyservice flew three sizes of aircraft, B757, A320 and A330. Under the CTA definition, these are all large aircraft.
[68] Clark: Skyservice for 2009: same as above except for Data Source: Testimony of Phillip Goss. Mr. Goss is a Human Resources Specialist with Skyservice. Skyservice was a charter operation that would be contracted by tour operators who would provide the aircraft and Skyservice would provide the pilots and flight attendants to operate the aircraft. Currently Skyservice does not fly to any domestic destinations. When he joined Skyservice in 2007, it operated exclusively international but is licensed to fly both international and domestic. In 2009, Skyservice had 16 aircraft provided to it and one of its own. They were comprised of eight A320’s and eight 757’s, two aircraft types but all large aircraft.
[69] Prentice: Skyservice: Issue: Domestic: Yes Size: Yes Data Source: Wikipedia which shows the types of aircraft Sky service flies, B767-300, A319-100 and A330-340. CCAR (2010) which shows aircraft types for Skyservice Business Aviation 1. Printouts from Sabre Airline Solutions (2007). These are pairing print reports for Captain Robert Kelly showing Skyservice Flight 393, YYC-YVR and Flight 394, YVR-YYC on 12FEB07 and 13FEB0, Calgary–Vancouver return. There are other pairings shown for YWG-YVR, YVR-YYZ (23Dec06); YWG-YQR (Regina) YQR-YYZ (December 2005).
[70] Duke: WestJet: Issue: Size: No Type: No Data Source: Exec. Vice-Pres., Operations, who advised that in 2005 WestJet flew two sizes of aircraft, B737A and B737C, both large aircraft. As to types, WestJet stopped flying the B737A in 2005 so that from 2006-2008 it only flew one type of aircraft, B737C. They continue to fly only the B737C.
[71] Clark: Westjet for 2009: same as above except for Data Source: Testimony of Fazel Manji. Mr. Manji is a Compensation Analyst for Westjet. Westjet transports passengers to 66 destinations including Canada, US, and to sun destinations. In 2009, it operated the B737-600-700-800 series which is a large aircraft as per the CTA definition. The B737 is one type of aircraft.
[72] Prentice: Westjet: Issue: Size: Yes Type: Yes Data Source: TC CCAR (2010). This shows that Westjet flies the B737-600-700-800 series. It retired the B-737-200 in 2006. Captain Prentice relied on this for different sizes and different types from 1996-2006.
[73] Duke: Air Georgian: Issue: Size: No Data Source: Payroll and HR Manager who he spoke to and who also advised him by email that Air Georgian’s fleet consisted a number of different types of aircraft for those years but they were all small as per the CTA definition.
[74] Clark: Air Georgian for 2009: Issue: Size: No Type: No Data Source: Testimony of Marjorie Vivanco. Air Georgian does not meet the Test because it does not fly varying sizes or types of aircraft. According to Ms. Vivanco, as of 2009, it only operated the BE1900 aircraft, a small aircraft. It stopped flying the BE300-350 BE90 and Cessna 550 in 2007.
[75] Prentice: Air Georgian: Issue: Size: Yes Type: Yes Data Source: TC OLS (2010); shows aircraft types, BE90 9,300 lbs, 703; BE300, 14,000 lbs, 703; BE1900, 17,000 lbs, 704; and Cessna550 13,300 lbs, 704. CCAR (2010) shows types of aircraft as the BE and a BAE25.
[76] Duke: Bearskin Airline: Issue: Size: No Type: No Data Source: Chief Pilot. In 2005- 2008 Bearskin only operated small aircraft and only one type of aircraft. Captain Duke also relied on his personal knowledge as a pilot with Bearskin for five years.
[77] Clark: Bearskin Airline for 2009: Issue: International: ? Size: No Type: No Data Source: Exhibit R-14, Tab 7. Mr. Clark referenced the Company’s website for his conclusion of No under the above three issues. He did not however, refer to that part of the website that indicates that Bearskin conducts private charters throughout North America. He would not agree that the No should be changed to Yes, but would agree to a question mark be placed in the International column on R-Table 2.
[78] Prentice: Bearskin Airline: Issue: International: Yes Size: Yes Type: Yes Data Source: OLS (2009) which indicates that Bearskin operates BE99-100, 11,000 lbs and SW-4-5-17,000 lbs, all TC 704 aircraft. Email request from Dr. Kelly to Bearskin Airlines (2009). This document is an email which incorporates data taken by Dr. Kelly from CTA ACLS website and answers from James Reszitnyk Bearskin Flight/Charter Coordinator to questions asked by Dr. Kelly. It shows that Bearskin is licenced for scheduled and non-scheduled international service. It also shows that Bearskin has flown international charters between 2005-2009, the last such charter being in August 2009 and could and would be able to provide an international charter anytime between 2005-2009.
[79] Duke: CanJet: Issue: Domestic: No Size No. Data Source: Chief Pilot. CanJet ceased flying domestic operations in 2006 and in 2007-2008 operated only between Canada and sun destinations. In 2005, CanJet had a mixed fleet with two different types B737 A and B. In 2006, they stopped flying the B737A and the B737B in 2007. From 2008 it operated exclusively a B737 C fleet.
[80] Clark: CanJet for 2009: Issue: Domestic: No Size: No Type: No Data Source: Testimony of Kim Maguiness. Ms. Maguiness is the Director of Human Resources with CanJet. Her evidence was that until September 2006, CanJet operated to cities in Canada as a discount passenger airline. In September 2006, it ceased domestic flights and continued to operate as a charter airline. Between 2005-2006, its fleet consisted of Boeing 737-300-500 aircraft. In 2009, it operated the B737-800.
[81] Prentice: CanJet: Issue: Domestic: Yes Size: Yes Type: Yes Data Source: CTA ACLS website (2009) indicates that CanJet is licenced for domestic flying and for scheduled and non-scheduled international service. TC OLS website (2009) which lists the CanJet fleet as including B737 300-400-500, B737 600-700-800-900. Letter (undated) from Manager Scheduling & Charter Planning stating that CanJet operated a scheduled airline up to September 2006 when it switched to a solely charter operator. It is currently licenced for charters within North America and internationally. Its fleet from 2005-2009 was B737-200-300-500, 120 seats, 132 seats and 118 seats. Currently it operates the B737-800, 189 seats.
[82] Duke: Kelowna Flightcraft: Issue: Passenger: No Data Source: Chief Pilot. Kelowna qualified as a comparator for the years 2005-2006, but not for the years 2007-2008. According to the Chief Pilot, in 2007-2008, they were exclusively a freight/cargo operation.
[83] Clark: Kelowna Flightcraft for 2009: Issue: International: No Passenger: No Data Source: Exhibit R-14 Tab 9. Company website (2009), Kelowna was a freight operation only in 2009, serviced all major cities across Canada and was available for freight service to any location in North America or internationally.
[84] Prentice: Kelowna Flightcraft: Issue: International: Yes Passenger: Yes Data Source: CTA ACLS (2009) shows that Kelowna is licenced for non-scheduled international service. November 2009 email from Dr. Kelly to Captain Prentice. This email contains information about Kelowna’s history and current operations. The information relied on is that Kelowna has 3 main bases in Kelowna, Hamilton and Portage la Prairie as well as 9 satellite bases that stretch across Canada from British Columbia to Newfoundland and significant operations across Canada. It also indicates that Kelowna provides executive jet services.
[85] Duke: Arctic Sunwest: Issue: Size: No Data Source: Chief Pilot. In the years 2005-2008, its fleet consisted of Dash-8-100 models Twin Otters, Buffalos all of which are small aircraft.
[86] Clark: Arctic Sunwest for 2009: International: No Size: No Data Source: Exhibit R‑14 Company website Tab 10 (2009) shows small aircraft (except for the DH5 Buffalo which is a cargo aircraft) and has a schedule which indicates domestic flights in the North only.
[87] Prentice: Arctic Sunwest: Issue: International: Yes Size: Yes Data Source: ACLS website (2009). This shows that Arctic is licenced as a non-scheduled international carrier. TC OLS website (2010). This indicates the aircraft types and weight of their fleet which consists of BE99-100, 11,000 lbs; DH2 6,000 lbs; DH6 12,500 lbs; DH5 Buffalo 38,000 lbs; and DH8 34,500 lbs. maximum takeoff weight, being a mix of TC 702 703, 704 and 705 aircraft. Email (Nov 2009) from Renee Mayne, Charter Sales, Arctic Sunwest to Dr. Kelly. This says that they are able to arrange charters to the US if given at least a week’s notice and recently completed a US charter in September.
[88] Duke: Central Mountain Air: Issue: International: No Size: No Data Source Airline Vice- President. This airline has not flown internationally since 2005. Their fleet consists of Beech 1900 and Dornier 328 aircraft, both of which are small aircraft.
[89] Clark for 2009: Central Mountain Air for 2009. Issue: Same as above. Data Source: Exhibit R-14 Tab 11, Company website: (2009) indicates that CMA offers scheduled and charter flights to over 17 BC and Alberta communities. Its aircraft fleet includes the BE19 and Dornier328, 18 and 30 passenger seats.
[90] Prentice: Central Mountain Air: Issue: International: Yes Size: Yes Data Source: CTA ACLS (2009) shows licenced for scheduled and non-scheduled international carriers. TC OLS (2009) for size of aircraft, BE19, 17,000 lbs, and D328 28,000 lbs. Email Nov 2009 from Vancouver Dispatch, Northern Thunderbird Air to Dr. Kelly that they are currently licenced to fly charters to and from Canada and the US. They are a charter company and will provide quotes on an ad hoc basis for a group charter, which if accepted the customer can be airborne in less than 2 hours. The OLS for Central Mountain Air does not show anything for Northern Thunderbird. Another OLS shows Northern Thunderbird as holding a Part 704 operating certificate Captain Prentice agreed that it would appear to be a separate airline.
[91] Duke: Air Labrador: Issue: International: No Size: No Data Source: Director, Flight Ops. Their fleet in 2005-2008 was Dash-6s, Dash-8s and Cessna 208s. These are all CTA small aircraft, TC 703-704. Captain Duke asked did they fly to the US in this time period and the answer was no.
[92] Clark: Air Labrador for 2009: Issue: Same as