Date: 20021106
Docket: A-472-02
Neutral citation: 2002 FCA 432
CORAM: STRAYER J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
AIR LINE PILOTS ASSOCIATION and AIR CANADA
Respondents
REASONS FOR ORDER
STRAYER J.A.
Introduction
[1] This is an application for a stay of a decision rendered by the Canadian Industrial Relations Board ("the Board") on July 10, 2002 in which among other things it set aside the award of an arbitrator, in an arbitration conducted with the agreement of the parties and with the approval of the Board, in respect of the arbitrator's decision as to the seniority list of the pilots represented respectively by the applicant and respondent associations.
Facts
[2] Air Canada acquired ownership and control of Canadian Airlines International Limited on January 4, 2000. While the management was integrated at that time there remained two corporate entities until the end of that year. On August 3, 2000, on the application of the applicant union, the Board declared Air Canada and Canadian Airlines International Limited to be a single employer for the purpose of the pilot bargaining unit. After the unification of management in early 2000 Air Canada Pilots Association ("ACPA") represented the Air Canada pilots while Air Line Pilots Association ("ALPA") represented the former Canadian Airlines pilots. The two unions plus Air Canada agreed that a single bargaining unit of the pilots would be appropriate, a vote was held, and ACPA was approved as that bargaining agent and so certified by the Board on April 4, 2001. For present purposes, however, the associations represent the pilots they represented before the merger.
[3] On June 29, 2000 in contemplation of the single employer declaration the unions agreed that pilot seniority in the merged unit would be determined by arbitration. On October 17, 2000 the Board accepted this agreement and approved the agreed process for determining seniority issues, that is by decision of an arbitrator. The arbitrator's award was issued on March 31, 2001 and was incorporated into an order of the Board on May 2, 2001. ACLA, apparently being dissatisfied with the results of the arbitration to which they had agreed, applied for reconsideration by the Board and the Board issued its reconsideration decision on July 10, 2002. This is a remarkable document of some 91 pages, with no concise formal judgment, no head note, nor any internal sub-headings (other than those in the documents quoted) within the last 65 pages. It is replete with quotations from a multitude of documents and submissions by the parties. It rejects the arbitrator's award with respect to seniority and orders the parties to negotiate another seniority list in accordance with a new set of principles enunciated by the Board. If they are unable to do so within 120 days, that is, by November 10, 2002, the Board will then intervene and create an integrated seniority list.
[4] ACPA has applied for judicial review of this decision of the Board and has moved for a stay of that decision until the judicial review is determined. As I understand it, this would have the effect of making the arbitration award applicable for seniority purposes until at least the judicial review is determined. It is less apparent that restoring the arbitration award to this temporary force and effect would necessarily have any practical consequences.
Criteria for a Stay
[5] It is common ground that the three criteria which are to be considered in such a stay motion are: (1) whether a serious issue is raised by the judicial review application; (2) whether the applicant would suffer irreparable harm if the stay is not granted; and (3) even if elements (1) and (2) are found to exist, does the balance of convenience favour granting the stay or refusing it? This latter issue involves consideration of the relative effects on the applicant and the respondent.
Serious Issues
[6] Although invited by the respondent to apply the more rigorous requirement of a prima facie case being made out instead of a "serious issue" being raised, because the Board is protected by a "strong" privative clause, I am not persuaded that this is necessary. Even "strong" privative clauses leave areas for normal judicial review, and in a judicial review on one of the permitted grounds the test on the merits for a stay pending that review only requires a "serious issue" to be raised. (See e.g. International Brotherhood of Locomotive Engineers v. Cairns [2000] F.C.J. No. 112 (C.A.)).
[7] With respect to the first criterion, then, I am satisfied that serious issues are raised by the application for judicial review. By subsection 22(1) of the Canada Labour Code the power of this Court to review judicially orders or decisions of the Board on matters of jurisdiction, denial of natural justice or fairness, or fraud or perjured evidence, is specifically preserved by Parliament. The applicant has raised some issues of jurisdiction and of denial of natural justice or fairness which, in my view, cannot be dismissed out of hand as frivolous or vexatious. The respondents argue that there is a "strong" privative clause in the Canada Labour Code to protect Board decisions and therefore, seemingly, I should not regard the issues raised by the applicant union as "serious". I believe that, instead of resorting to adjectives characterizing privative clauses for this purpose, one should examine what Parliament has actually said in respect of judicial review by the Federal Court in respect of the Canada Industrial Relations Board. Analogies drawn from judicial review of provincial agencies are not necessarily helpful. By subsection 22(1) of the Canada Labour Code this Court is given not only the right, but the duty, to determine whether the Board has acted within its jurisdiction or has denied the applicant natural justice or fairness. I need not comment on the fairness issues, as I need go no farther than to find serious issues raised with respect to jurisdiction. The respondent ALPA laid great stress on a recent decision of this Court in Telus Advance Communications v. Telecommunications Workers Union ([2002] F.C.J. No. 1235) decided on September 9, 2002. That case involved judicial review of a decision taken under section 18.1 of the Canada Labour Code, one of the principal sections on which the Board relies in the present case. (Indeed the Board seems to assume that it has been granted broad new powers by section 18.1 on which it needs to rely in this case). That section specifically authorizes the Board to "review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate . . .". Subsection 18.1(3) upon which the Board and the respondent place considerable reliance opens with the words " If the Board is of the opinion that the agreement reached by the parties would not lead to the creation of units appropriate for collective bargaining or if the parties do not agree on certain issues within the period . . .". I think it is at least quite arguable that the whole of the section has to do with the structure of bargaining units and is not an automatic entrée for the Board to revise any element of an agreement or an arbitration award unrelated to that issue. Of the Telus case two points can be made. First, this Court clearly recognized there that issues of jurisdiction were judicially reviewable. Secondly, the decision of the Board in question there specifically had to do with the structure of the bargaining unit and its appropriateness, the matter specifically covered by section 18.1. Thirdly, the Court specifically defined the scope of section 18.1 as follows:
The language used by Parliament in granting such powers would indicate . . . that the legislator intended to provide the Board with the jurisdiction to consider the appropriateness of an agreement reached between parties regarding the definition of a bargaining unit. (Emphasis added) (Paragraph 49)
It followed that the Court accepted the Board decision as being within it jurisdiction under section 18.1.
[8] In the present case the Board also asserts a right under section 35 (which relates to declarations by the Board of associated businesses as a single employer, a declaration in respect of Air Canada and CAIL which the Board had previously made on August 3, 2000 and which, as far as I can ascertain, was not in dispute in the reconsideration proceedings). For these reasons alone I believe there are serious issues raised which would justify a stay if the other necessary criteria are present, and it is not necessary for me to canvass other serious issues which I believe also exist.
Irreparable Harm
[9] With respect to the question of irreparable harm to the applicant, however, I am not satisfied that this has been sufficiently made out. The irreparable harm required for the issue of a stay must be demonstrated with some certainty and be more than speculative. As long as the Board order stands, the priority list established by the arbitrator will not be used for further "bidding" by pilots, but it is not at all clear to me from the evidence that there would be any such further bidding within the next two months in any event. Even if there were, as the evidence of the applicant itself shows, it is extremely difficult to establish a predominantly and substantially negative effect on the Air Canada pilots who were employed by the airline before January 4, 2000. Put at its highest, the "damage" would consist of some original Air Canada pilots not being able to obtain, in the interim before a disposition of the judicial review application, their first choices as to routes, dates and times of travel, or aircraft to be flown. There is no suggestion of possible loss of jobs as such. Also as I understood it from the arguments of counsel for both unions, the relative effects of the arbitrator's priority list on the respective members of the two groups is mixed at best. Further, the Board ordered the parties to seek agreement in a period which will expire on November 10, 2002, within a week of these reasons. The Board has indicated that failing such agreement, it will settle the priority list (although nothing in the proceedings to date suggests to me that this will happen very soon either).
[10] However, at my suggestion the parties have agreed to an expedited hearing of the judicial review commencing on January 14, 2003 and I am not satisfied that clearly demonstrable, irreparable, harm will ensue to the members of the applicant association prior to the time that the judicial review is heard and disposed of. I am also mindful of the fact that the Board has a primary responsibility to ensure that there is a priority list in place which is both fair and workable and as it has chosen to nullify the list which was the result of an arbitration agreed to by the parties and approved by the Board, it will presumably feel a responsibility to ensure that the pilots and the employer are not prejudiced by its intervention. In this I think it appropriate to defer to the Board to which Parliament has given the primary responsibility for harmonizing industrial relations.
Balance of Convenience
[11] Given this conclusion as to a lack of clear irreparable damage, I find it unnecessary to consider the question of the balance of convenience.
Disposition
[12] I will therefore dismiss the motion for a stay, but order an expedited hearing of the application for judicial review as follows: the applicant must file its application record by December 4, 2002; the respondent must file its application record by January 6, 2003; and the hearing will commence on January 14, 2003 for which 1½ days will be allocated by the Court. As the respondent has submitted that there be no costs regardless of the outcome, none will be awarded.
(s) "B.L.Strayer"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-472-02
STYLE OF CAUSE: Air Canada Pilots Association vs. Air Line Pilots
Association and Air Canada
MOTION DEALT WITH ORALLY
PLACE OF HEARING: Ottawa
DATE OF HEARING: November 4, 2002
ORDER AND REASONS
FOR ORDER BY : Strayer, J.A.
DATED: November 6, 2002
APPEARANCES:
Mr. Steve Waller FOR THE APPLICANT
Mr. Chris Rootham
Mr. Paul Cavalluzzo FOR THE RESPONDENT
Mr. James Hayes (Air Line Pilots Association)
Mr. Geoff Berg
Ms. Maryse Tremblay FOR THE RESPONDENT
(Air Canada)
Ms. Carol McLean FOR CANADA INDUSTRIAL RELATIONS BOARD
.../2
2.
Nelligan O'Brien Payne LLP FOR APPLICANT
Ottawa, Ontario
Cavalluzzo Hayes Shilton FOR THE RESPONDENT
McIntyre & Cornish (Air Line Pilots Association)
Toronto, Ontario
Ms. Maryse Tremblay FOR RESPONDENT
Montreal, Quebec (Air Canada)
Ms. Carol McLean
Ottawa, Ontario FOR CANADA INDUSTRIAL RELATIONS BOARD