BETWEEN:
and
AIR LINE PILOTS ASSOCIATION
and
AIR CANADA
Respondents
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-392-06
Citation: 2007 FCA 242
CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Appellant
and
AIR LINE PILOTS ASSOCIATION
and
AIR CANADA
Respondents
REASONS FOR JUDGMENT
[1] This application for judicial review by the Air Canada Pilots Association (ACPA) is in respect of Reconsideration Decision no. 360 issued September 1, 2006 (Decision 360) by the Canada Industrial Relations Board.
[2] The relevant facts of this case have been set out in the reasons for judgment of this Court issued in File A-144-06, which dismisses an application for judicial review filed with respect to the original decision of the Board, issued March 10, 2006 (Decision 349).
[3] As found by this Court in Air Line Pilots Assn. v. Air Canada Pilots Assn., 2003 FCA 160, at paragraph 28, the standard of review is patent unreasonableness.
[4] One has to start with the premise that the Board itself, in sections 44 and 45 of the Canada Industrial Relations Board Regulations, 2001 (SOR/2001-520), has set out the circumstances under which it might accept to reconsider a decision:
(Section 44 has recently been examined by this Court in Vidéotron Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90)
[5] In Lamoureux v. Canadian Airline Pilots Association, [1993] F.C.J. No. 1128 (F.C.A.), where the applicant had only challenged the reconsideration decision, this Court found that the applicant could not make use of that challenge to call the original decision into question and had to restrict himself to grounds arising out of the reconsideration decision.
[6] In Vidéotron (supra), an applicant who had unsuccessfully sought reconsideration of an original decision brought an application for judicial review solely with respect to the original decision. This Court found that absent a challenge to the reconsideration decision the Court could not set aside the original decision. The Court then observed that the practice generally followed in this Court was to file two concurrent applications for judicial review, one with respect to the original decision, the other with respect to the reconsideration decision, and to join them for a hearing.
[7] In the case at bar, ACPA has followed the general practice. The Court was therefore seized with two applications for judicial review. The Court having dismissed the application with respect to the original decision, judicial review of the reconsideration decision can obviously not succeed unless the arguments raised were not and could not have been raised in the first application for judicial review. Because of the different purposes of the two proceedings before the Board, it is not impossible, though it would be a rare event, for an applicant to succeed on the second application despite his failure in the first.
[8] In the case at bar, ACPA sought reconsideration on the following grounds:
1) the Board had failed to address the issue of the Board’s jurisdiction under section 16(p) of the Code; and
2) the Board had adopted without any analysis the original panel’s obiter dicta as justification for refusing to reconsider Decision 349.
[9] These grounds are substantially similar to those already dismissed in A-144-06. They can no more succeed the second time around than they did the first time.
[10] Counsel for ACPA has suggested, in his memorandum of fact and law and at the hearing, that the Board, in the process leading to its original decision, had violated the rules of natural justice by not giving ACPA the opportunity to present evidence on the issue of change of circumstances.
[11] This argument was not relied upon by ACPA in its application for judicial review of the original decision. The reconsideration process is not meant to allow parties to submit arguments that they could have raised, and failed to raise, at the first opportunity.
[12] In any event, the record speaks for itself. ALPA had sought an oral hearing before the Board with respect to its three applications/complaints. ACPA resisted such a hearing and the Board decided to hear the matter without any oral hearing. The issues were all canvassed in the written submissions of the parties. It would have been open to ACPA to file further evidence and make additional representations. ACPA did not use the opportunity.
[13] Counsel for ALPA sought costs in his memorandum on a solicitor-client basis. While I agree that these continuous attacks on the Keller Award have been counter-productive, I am not prepared yet to decide that they achieved the degree of misconduct or abuse that opens the door to an award of costs on a solicitor-client basis.
[14] I would dismiss the application for judicial review of the reconsideration decision 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-392-06
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 |