Federal Court of Appeal Decisions

     A-467-96

CORAM:      THE CHIEF JUSTICE

     MARCEAU J.A.

     HEALD D.J.

IN THE MATTER of an application to review and set aside, pursuant to sections 28 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, a decision of the Canada Labour Relations Board rendered by Richard I. Hornung, Q.C., Patrick H. Shafer and Robert Cadieux on May 7, 1996 respecting a complaint filed by Brian L. Eamor against the Canadian Air Line Pilots Association alleging violation of section 37 of the Canada Labour Code

BETWEEN:

     CANADIAN AIR LINE PILOTS ASSOCIATION

     Applicant

     - and -

     BRIAN L. EAMOR

     Respondent

     - and -

     AIR CANADA

     Interested Party

     - and -

     CANADA LABOUR RELATIONS BOARD

     Tribunal

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Vancouver, British Columbia,

     on Wednesday, June 18, 1997)

MARCEAU J.A.

     We are all of the view that this application for judicial review of a decision of the Canada Labour Relations Board cannot succeed.

     The reasons given by the Board to explain and sustain its finding that the applicant had failed to fulfil its duty of fair representation toward its member, the respondent, when dismissed by his employer, Air Canada, are at times somewhat unclear and even ambiguous. For example, the conflict of interest that the Board saw as an important and central component of the applicant's whole attitude may have been better defined and possibly more appropriately characterized; likewise, all the acts of the applicant's officers described by the Board were not equally offensive and did not constitute breaches of section 37 of the Canada Labour Code (R.S.C. 1985, c. L-2). However, one should not have to be reminded that reasons of a tribunal such as this should not be read "microscopically" and their comments made subject to a high level of scrutiny. One should always try to ascertain the real reasoning behind the words used and we think that, considered in this way, the Board's reasons and findings here are sound and ought not to be interfered with.

     It is clear to us that, even as regards the issue of whether the respondent's complaint was statute-barred, all of the conclusions of the Board are based on its understanding of the evidence, the inferences it drew from the facts placed in context, and the interpretation it could give to the behaviour of the parties. Bearing in mind that the decisions of the Board are protected by the strongest privative clause, we feel absolutely unable to accept the invitation of counsel to criticize its findings as errors of law that are patently unreasonable.

     It was not irrational, in our view, to find that the section 37 breach had been an ongoing one that became final and irreparable on the occasion of the November meeting in Vancouver, a finding, it may be said incidentally, that distinguished the case the Board had before it from a case of repeated identical demands as in Upper Lakes Shipping Ltd. v. Sheehan.¹ It was no more irrational to assess the applicant's attitude and infer its state of mind through the actions of its officers " even actions that, taken in isolation, would have less significance, or could not be directly related to the section 37 breach. The Board was no doubt entitled to draw from the general picture a pattern that indicated the profound reticence of the applicant to represent the respondent fairly and efficiently.

     As for the remedy ordered by the Board, with respect to which the same standard of review is applicable, we see no more reason to intervene. On the one hand, the award of costs was rationally connected to the section 37 breach and its consequences within the meaning of subsection 99(2). On the other hand, a potential award of damages, provided it be established as having a direct causal link to the breach, is not in itself insupportable under the broad remedial discretion conferred by subsection 99(2) as it is not punitive in nature, does not infringe the Canadian Charter of Rights and Freedoms, and does not contradict the purposes of the Code (cf. Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369).

     On the whole, therefore, the application shall be dismissed.

     "Louis Marceau"

     J.A.

     A-467-96

CORAM:      THE CHIEF JUSTICE

     MARCEAU J.A.

     HEALD D.J.

IN THE MATTER of an application to review and set aside, pursuant to sections 28 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, a decision of the Canada Labour Relations Board rendered by Richard I. Hornung, Q.C., Patrick H. Shafer and Robert Cadieux on May 7, 1996 respecting a complaint filed by Brian L. Eamor against the Canadian Air Line Pilots Association alleging violation of section 37 of the Canada Labour Code

BETWEEN:

     CANADIAN AIR LINE PILOTS ASSOCIATION

     Applicant

     - and -

     BRIAN L. EAMOR

     Respondent

     - and -

     AIR CANADA

     Interested Party

     - and -

     CANADA LABOUR RELATIONS BOARD

     Tribunal

Heard at Vancouver, British Columbia, on Tuesday, June 17 and Wednesday, June 18, 1997.

Judgment rendered from the Bench on Wednesday, June 18, 1997.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

     IN THE FEDERAL COURT OF APPEAL

     A-467-96

IN THE MATTER of an application to review and set aside, pursuant to sections 28 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, a decision of the Canada Labour Relations Board rendered by Richard I. Hornung, Q.C., Patrick H. Shafer and Robert Cadieux on May 7, 1996 respecting a complaint filed by Brian L. Eamor against the Canadian Air Line Pilots Association alleging violation of section 37 of the Canada Labour Code

BETWEEN:

     CANADIAN AIR LINE

     PILOTS ASSOCIATION

     Applicant

     - and -

     BRIAN L. EAMOR

     Respondent

     - and -

     AIR CANADA

     Interested Party

     - and -

     CANADA LABOUR RELATIONS BOARD

     Tribunal

     REASONS FOR JUDGMENT

     OF THE COURT

__________________

¹      [1979] 1 S.C.R. 902.