BETWEEN:
and
ROB McINNIS
and
AIR CANADA
Heard at Vancouver, British Columbia, on May 30, 2007.
Judgment delivered at Ottawa, Ontario, on June 19, 2007.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LINDEN J.A.
SEXTON J.A.
Docket: A-144-06
Citation: 2007 FCA 241
CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
and
AIR LINE PILOTS ASSOCIATION,
ROB McINNIS
and
AIR CANADA
Respondents
REASONS FOR JUDGMENT
[1] This application for judicial review by the Air Canada Pilots Association (ACPA) is in respect of Decision no. 349 issued March 10, 2006 (Decision 349) by the Canada Industrial Relations Board.
FACTS
[2] This dispute arises out of the integration of pilot seniority lists following the January 2000 corporate merger of Canadian Airlines and Air Canada and the merger of their two pilots bargaining units. The integration of these pilot seniority lists has been particularly contentious and has been in litigation – before arbitrators, the Board and the civil courts – continuously since 2000.
[3] An arbitration protocol (the Keller Protocol) was approved by the Board under section 18.1 of the Canada Labour Code that was signed by ACPA, the Air Line Pilots Association (ALPA) and Air Canada. This protocol agreed that the seniority integration would be decided by an arbitration panel by Brian Keller. The parties expressly agreed that (a) the Keller Award was final and binding on the parties for all purposes; (b) no party would pursue any Board proceedings relating to the seniority dispute; and (c) review of the Keller Award was limited to judicial review on procedural grounds only. The Keller Award was issued on June 16, 2003.
[4] Despite its express Keller Protocol commitments, ACPA has sought – through legal proceedings before the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada and other strategies – to overturn the Keller Award from the date it was released.
[5] Most importantly for the purpose of the present proceedings, the Board, on January 28, 2004, issued its decision 263 upholding the final and binding nature of the mediation/arbitration process, as set out in the Keller Protocol, and declining to undertake any further review of the Keller Award. ACPA applied for reconsideration, a request which the Board denied on December 14, 2004. An application for judicial review of Decision 263 was dismissed by the Federal Court of Appeal on February 14, 2005 (Air Canada Pilots Association v. Air Line Pilots Association et al; 2005 FCA 60). Leave to appeal was denied by the Supreme Court of Canada on November 10, 2005.
[6] While these court proceedings remained ongoing, ACPA engaged in a continuing pattern of actions aimed at undoing the Keller Award. These strategies led to another informal effort by ACPA and AC to reduce the residual resentment among the former AC pilots by inviting a respected mediator, Mr. Martin Teplitsky, to consider the issue. ALPA objected to this process and did not participate. Mr. Teplitsky, nevertheless, proceeded to consider the matter and issued his report dated November 14, 2005 in which he made certain informal suggestions which, it was thought, might ease the tensions if they were voluntarily adopted, which they were not.
[7] The current dispute arises out of three applications filed with the Board by ALPA. Firstly, ALPA sought an interim order directing ACPA and Air Canada to continue to respect the Keller Award. Secondly, ALPA sought a declaration under section 18.1(2)(b) of the Code stating that ACPA violated its agreement on seniority integration and asked the Board to order implementation of the Keller Award and to file that order in the Federal Court. Thirdly, ALPA alleged that ACPA breached its duty of fair representation under section 37 of the Code with respect to the former Canadian Airlines pilots when it agreed to have the pilot seniority issue mediated by Mr. Teplitsky.
[8] In their submissions in reply to these three applications, ACPA and Air Canada asked the Board to dismiss the application of ALPA and to declare, pursuant to section 16(p) of the Code, that the Teplitsky recommendations, if implemented, would not violate the Code.
[9] In Decision 349 the Board dismissed the two applications and the complaint filed by ALPA. The Board, essentially, was of the view
1) that there was no reason to issue the requested interim order, as the Keller seniority list had been incorporated in the pilots’ collective agreement and was respected by ACPA and Air Canada;
2) that it would be inappropriate to issue an order under section 18.1(2)(b) directing the implementation of an agreement that has already been implemented; and
3) that it was premature to consider a complaint under section 37, as the Board was dealing only with a recommendation from a mediator which had not been put to a ratification vote, had not been made part of the collective agreement and, more importantly, had not changed the seniority rights of any member of the bargaining unit.
[10] The Board denied ACPA and Air Canada’s section 16(p) request on the basis that the section was inapplicable because the question of the validity of the Teplitsky recommendations did not arise in the proceedings that were before the Board. The Board went on to say that even if it had the power to entertain the request, it would not have been a proper use of its discretion to embark upon such a review for two reasons. First, the request constituted yet another attempt to partially undo the Keller Award. Second, it would set a precedent that the Board was not prepared to set, notably the Board taking part in a process that could result in a final and binding arbitration award, involving three parties, being amended by recommendations from a mediation process that was initiated by, directed by, and had as participants, only two of those three parties.
[11] ALPA, whose three applications/complaints had been dismissed, did not seek reconsideration or judicial review of the award. Air Canada, whose section 16(p) request had been denied, did not challenge Decision 349 and has since adopted a neutral position in the proceedings. ACPA, which had been successful in having the Board dismiss the three ALPA applications/ complaints, sought reconsideration of the decision denying its section 16(p) request as well as judicial review of it.
[12] The Board in Decision 360 dated September 1, 2006, refused to reconsider Decision 349. That refusal is the object of another application for judicial review (in Docket A-392-06). Both applications for judicial review were consolidated for the purpose of this hearing. I shall dispose of Docket A-392-06 in reasons issued today.
ISSUES
[13] The Air Canada Pilots Association submits that the Board erred in deciding that it did not have jurisdiction under section 16(p) to make the determination requested by ACPA and Air Canada. ACPA says, alternatively, that the Board erred by refusing to accept and exercise jurisdiction under the Code, generally, and under sections 15.1(2), 18 and 18.1, particularly. ACPA also submits that the Board, having dismissed the application on jurisdictional grounds, erred in addressing in obiter the merits of the application.
STANDARD OF REVIEW
[14] I pause here to note that ACPA incorrectly uses the words “jurisdiction” and “jurisdictional”. Section 16 of the Code, and the Board in its reasons, refer to the “power” of the Board. Section 16(p) reads:
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16. The Board has, in relation to any proceeding before it, power
. . .
(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether (i) a person is an employer or an employee, (ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations, (iii) a person is a member of a trade union, (iv) an organization or association is an employers’ organization, a trade union or a council of trade unions, (v) a group of employees is a unit appropriate for collective bargaining, (vi) a collective agreement has been entered into, (vii) any person or organization is a party to or bound by a collective agreement, and (viii) a collective agreement is in operation.
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16. Le Conseil peut, dans le cadre de toute affaire dont il connaît :
[. . .]
p) trancher, dans le cadre de la présente partie, toute question qui peut se poser à l’occasion de la procédure, et notamment déterminer : (i) si une personne est un employeur ou un employé, (ii) si une personne occupe un poste de direction ou un poste de confiance comportant l’accès à des renseignements confidentiels en matière de relations de travail, (iii) si une personne adhère à un syndicat, (iv) si une organisation est une organisation patronale, un syndicat ou un regroupement de syndicats, (v) si un groupe d’employés constitue une unité habile à négocier collectivement, (vi) si une convention collective a été conclue, (vii) si une personne ou une organisation est partie à une convention collective ou est liée par celle-ci, (viii) si une convention collective est en vigueur.
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[15] ACPA’s suggestion that the standard of review is correctness is premised on its erroneous belief that the matter at issue is a jurisdictional one. The Supreme Court of Canada, in International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd. [1996], 2 S.C.R. 432 at 445, made it clear that Courts must be slow to brand a matter as jurisdictional, as doing so undermines the purpose of creating specialized administrative tribunals such as the Board. Cory J., for the Court, started his analysis with the following reminder:
At the outset it should be stated, once again, that it would be all too easy for courts to find that empowering provisions of statutes creating administrative tribunals are jurisdictional in nature, thereby increasing the likelihood that their jurisdiction will be unnecessarily limited. The result of adopting such an approach would be that a great many decisions of the tribunals would be required to be correct in the eyes of the courts. There have been very salutary warnings sounded against the courts taking such a position.
(my emphasis)
[16] This statement describes an approach which has been expanded by the Courts, to the point that nowadays the very idea that jurisdictional questions cannot but attract the correctness standard has been “washed away” (see Via Rail Canada Inc. v. Cairns [2005] 1 F.C.R. 205 (F.C.A.), per Evans J.A. at paragraph 46).
[17] We are dealing here with an “empowering” provision, one which grants the Board discretionary powers. The discretionary power at issue, in the case at bar, is that of deciding, in the course of a proceeding before it, a question that arises in the proceeding. Clearly, this lies at the core of the Board’s expertise, an area that can attract only the narrowest judicial review (Air Canada Pilots Association, supra at paragraph 24).
[18] As a result, the Board’s decision should be reviewed only on the very strict standard of patent unreasonableness.
THE MERITS
[19] The Board found, at para. 86 of its reasons, that:
In the present case, the question as to the validity of the Teplitsky recommendations does not arise in the proceedings before the Board.
There was no need for the Board to consider the validity of the mediator’s recommendations in order to dispose of the applications/complaints filed
by ALPA under sections 18.1(2)(b), 19.1 and 37 of the Code.
[20] As I read and understand the decision, the Board was of the view, on procedural grounds, that the Teplitsky recommendations were not properly before it at that point in time, and on substantial grounds, that it would be premature to deal with recommendations which at that point in time had not been enforced in any manner.
[21] The Board, in my view, is in a much better position than this Court to determine whether a question does indeed arise in the proceeding within the meaning of section 16 (p), whether a question is hypothetical or premature and whether the way it was put to the Board is the proper one. The Board’s decision is rational and makes particular sense in the overall context of the seniority lists proceedings. I am not prepared to substitute my opinion to that of the Board as to how it should exercise its discretionary power under section 16 (p).
[22] ACPA also submits that the Board erred in not accepting “jurisdiction” under other sections of the Code. As I have already indicated, the use of the word “jurisdiction” is improper.
[23] The Board notes, at paragraph 80 of its reasons, that ACPA’s request “was not supported by any submissions that might assist the Board in determining whether it had jurisdiction to make such a conclusion and whether there existed any compelling labour relations reasons that might justify a Board review of the [Teplitsky] recommendations”.
[24] Before this Court counsel for ACPA relied on section 15.1(2) of the Code, which grants the Board the power, on application, to give declaratory opinions and on sections 18 and 18.1 of the Code, which allow the Board to reconsider a decision.
[25] Assuming, for the sake of discussion, that ACPA may raise before us arguments not raised before the Board, these sections are clearly not applicable. For ACPA to rely on section 15.1(2) indicates to me that it is simply seeking a reconsideration of the Keller Award. Even if that were possible despite Decision 263, a proper “application” would still be required. Submissions in a reply are not “applications”.
[26] Neither are sections 18 and 18.1 applicable. The only decision that could be reconsidered and reviewed would be Decision 263. This Court has already decided that the Board did not err in finding that Decision 263, in itself, was beyond review because of the Keller Protocol. In any event, applications for reconsideration are subject to specific procedural requirements (see the reasons of this Court in A-392-06) which have not been met.
[27] Finally, ACPA blames the Board for having given a declaratory opinion in obiter. However, precisely because the views expressed by the Board were obiter dicta, they have no precedential value (see Canada (Director of Investigation and Research) v. Air Canada et al, [1994] 1 F.C. 154 (C.A.)) and would not justify the intervention of this Court on a judicial review application.
DISPOSITION
[28] I would dismiss this application for judicial review with costs payable by ACPA to ALPA.
“I agree.
A.M. Linden.”
“I agree.
J. Edgar Sexton.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-144-06
STYLE OF CAUSE: Air Canada Pilots Ass. v.
Air Lines Pilots Ass. et al
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR JUDGMENT BY: DÉCARY J.A.
SEXTON J.A.
DATED: June 19, 2007
APPEARANCES:
Louis J. Zivot FOR
THE APPLICANT
N. David McInnes
Paul J. J. Cavalluzzo FOR THE RESPONDENT,
James K. A. Hayes AIR LINE PILOTS
ASSOCIATION
Jillian Frank FOR
THE RESPONDENT,
AIR
CANADA
SOLICITORS OF RECORD:
|
Lang Michener
LLP |
FOR THE APPLICANT |
|
Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, Toronto, Ontario
Heenan Blaikie
LLP |
AIR LINE PILOTS ASSOCIATION
FOR THE RESPONDENT, AIR CANADA |