Federal Court Decisions

Date: 20050126

Docket: T-706-02

Citation: 2005 FC 133

BETWEEN:

EILEEN BIRD

                                                                             

Applicant

- and -

AIR CANADAand

CANADIAN HUMAN RIGHTS COMMISSION

Respondents

REASONS FOR ORDER AND ORDER

HUGESSEN J.

[1]               This motion is for an Order that the Stay of Proceedings granted herein September 2, 2003, be vacated and that a further case conference be held to determine the timetable for the completion of the steps required to enable this matter to be heard on the merits.

[2]               A stay of proceedings against Air Canada was issued by the Ontario Superior Court of Justice under the Companies' Creditors Arrangements Act R.S.C. 1985 c. C-36 (CCAA) on April 1, 2003. As a result of that stay, this Court issued a stay of proceedings herein, on September 2, 2003, until either further Order of this Court, or the lifting of the CCAA stay.

[3]               The applicant in this case filed a claim pursuant to the claims procedure under the CCAA, against Air Canada. Her claim was initially valued at $0 by the Canadian Human Rights Commission (Commission). The CCAA Monitor also valued her claim at $0, based on the Commission's valuation. She says that she cannot appeal the Monitor's valuation due to the stay imposed by this Court on September 2, 2003. The appeal of the valuation remains outstanding.

[4]               Air Canada has filed submissions with the Claims Officer/Monitor under the CCAA process, wherein Air Canada seeks to have the applicant's appeal summarily dismissed or stayed, and the $0 valuation upheld.

[5]               The claim that was valued at $0 arose out of a complaint filed by the applicant, asserting that Air Canada discriminated against her by wrongfully refusing to allow her to return to work because of a disability. The Canadian Human Rights Commission (Commission) investigated the applicant's complaint, and concluded that the complaint had no merit. The applicant made submission to the Commission, based on natural justice and procedural fairness. The applicant made these submissions after the investigation report was complete, but before the Commission ruled on the complaint. The Commission dismissed the complaint.

[6]               On January 29, 2004, the Ontario Superior Court established a grievance claims procedure to have all the grievances by or on behalf of unionized employees filed before April 1, 2003, heard and determined by the Grievance Claims Officer. The applicant's union, the CAW, filed a Proof of Claim on November 14, 2003, which included four grievances which had been filed by the applicant. On June 4, 2004, the Grievance Claims Officer issued an Order awarding $50,000 to the applicant in resolution of her four grievances listed in the Proof of Claim. Those grievances include the substance of the applicant's complaint to the Commission.

[7]               The approved CCAA Plan of Arrangement for Air Canada provides that each Affected Unsecured Creditor and Unionized Employee releases its claims against Air Canada. The Sanction Order issued by the Ontario Superior Court on August 23, 2004, approved and rendered final and binding the Plan of Arrangement, and discharged Air Canada from the claims of Affected Unsecured Creditors and Unionized Employees.

[8]               I am not persuaded that in the circumstances of this case I should exercise my discretion to lift the stay. While there may technically be some life left in the judicial review proceedings before this Court, they are wholly procedural in nature. The underlying substance of the applicant's claims has been conclusively dealt with and settled by the grievance claims procedure. Even if I were to allow the judicial review to go forward and the applicant were successful in having the Commission's decision set aside, any substantial underpinning of that claim has disappeared and been settled on its merits. The matter is therefore moot.

ORDER

The motion to lift the stay is dismissed.

"James K. Hugessen"        

                                                                                    Judge

Ottawa, Ontario

January 26, 2005

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       T-706-02         

STYLE OF CAUSE:               EILEEN BIRD V. AIR CANADA

                                                AND CANADIAN HUMAN RIGHTS COMMISSION

MOTION IN WRITING PURSUANT TO RULE 369       

REASONS FOR ORDER

AND ORDER OF                  THE HONOURABLE MR. JUSTICE HUGESSEN

DATED:          JANUARY 26, 2005   

WRITTEN SUBMISSIONS BY:

MR. DAVID C. MOORE	FOR THE APPLICANT
MS. MARYSE TREMBLAY	FOR THE RESPONDENT, AIR CANADA

SOLICITORS OF RECORD:

BELLMORE & MOORE TORONTO, ONTARIO	FOR THE APPLICANT
HEENAN BLAIKIE LLP MONTREAL, QUEBEC	FOR THE RESPONDENT, AIR CANADA