[1] I have not been convinced that the Canada Industrial Relations Board (Board) erred in the decision under review: Air Canada (Re) [2004] C.I.R.B.D. No. 4, CIRB Decision No. 263, January 28, 2004. The Board deferred to the conclusions reached by arbitrator Keller. In rendering the decision under review, the Board was of the view that it had exhausted any residual jurisdiction concerning the seniority integration process that it had reserved for itself during the parties' attempt to come to an agreement on that issue.

[2] In addition, it concluded that it would not exercise any discretion that it possessed to embark upon an inquiry on the issue of the seniority integration of its own motion. The applicant challenges these findings.

[3] The integration of pilot seniority lists in the wake of the merger of Canadian Airlines International Limited and Air Canada on April 4, 2000 has been highly contentious. The procedural history of this dispute is not necessary for present purposes. It is sufficient to note that the parties agreed to refer the issue of seniority list integration to third-party arbitration. Under the agreement governing the first attempt at arbitration (the Mitchnik protocol), the resulting award had to be incorporated into a Board order issued under subsection 18.1(2) of the Canada Labour Code, R.S.C. 1985, c. L-2 (Code) and was made subject to review by the Board. Upon review, the Board concluded that the award did not respect some of the principles of the Code and was not sufficiently substantiated. The award was set aside. That decision was in turn upheld by this Court (see Air Canada Pilots Association v. Air Line Pilots Association et al. (2003), 302 N.R. 159 (F.C.A.). The Board then incited the parties to attempt to negotiate and reach an agreement themselves. This resulted in the appointment of a panel of arbitrators by the parties. The panel was led by Mr. Keller. A protocol was established by the parties that fixed the terms and conditions of this second arbitration.

[4] In establishing the conditions under which the second arbitration would take place, the parties clearly stated that they were seeking a final and binding resolution of the seniority dispute: see the preamble of the arbitration protocol, Respondent Record, at page 46. They agreed to be bound by the seniority list resulting from the panel's decision: ibidem, clause 8 of the protocol. They were adamant that there would be no review or request for reconsideration of the arbitrator's award. Only rights to judicial review were reserved: ibidem, clause 9. The relevant part of clause 8 read:

The parties further agree that they will not pursue any Board proceedings relating to the seniority dispute, including initiating any request for reconsideration of the panel's decision(s).

[5] Furthermore, the Keller protocol stated explicitly that if the Board were to undertake a review of the award of its own motion (since it was not open to the parties to make such a request), the parties were enjoined from making submissions with regards to such a review. It is in this context that the Board's decision ought to be read.

[6] Finally, clause 9 reiterated that, subject only to judicial review rights of the parties, the "decision(s) of the panel will be for all purposes final and binding on the parties and the seniority list resulting from the decision(s) will be the seniority list that shall be implemented by the parties" (emphasis added). The intent of the parties could not be clearer and expressed in more encompassing and compelling terms.

[7] The applicant raises two grounds of judicial review. First, it claims that the Board ignored the legitimate expectations of the parties that it would conduct a review of the substance of the second arbitration award. Second, it contends that the Board erred in rendering its decision when it took into account the following irrelevant factors: the motives of the applicant and its members and the length of the dispute between the parties as well as the likelihood of judicial review.

[8] As previously mentioned, in Decision No. 183, [2002] CIRB No. 183, the Board set aside the first arbitration award and enunciated a number of Code principles with which the arbitrator had failed to comply. It reserved its jurisdiction over the seniority integration process until its final resolution. Thereafter ensued a significant exchange of correspondence between the parties and the Board regarding the seniority integration issue and the process governing its resolution. The Board reviewed and approved the protocol relating to the second arbitration by letter dated January 7, 2003. Again it reserved its jurisdiction as set out in Decision No. 183.

[9] The substance of the applicant's argument is that the Board, by its reservation of jurisdiction, created a legitimate expectation that it would exercise that jurisdiction to review any settlement or arbitration award for compliance with the principles enunciated in CIRB Decision No. 183. To assess that contention, it is useful to examine what the Board said about its reservation of jurisdiction.

[10] In CIRB Decision No. 183, issued July 10, 2002, at paragraph 176, the Board reserved its jurisdiction in very broad terms:

Finally, the Board expressly notes that the present decision is taken pursuant to sections 18.1 and 20 of the Code and reserves jurisdiction over the present matters in accordance with the relevant Code provision until their final resolution.

[11] In a letter to the parties dated December 5, 2002, the Board expressed its reservation of rights in more specific terms:

As indicated in the telephone conference of this afternoon, the Board wishes to reaffirm that the provisions of any settlement will be subject to Board review in accordance with the provision of 18.1 of the Canada Labour Code.

[12] On January 7, 2003, when it confirmed the parties' arrangement to refer the matter to another arbitrator, the Board reaffirmed its reservation of jurisdiction in the following terms:

The terms of the agreement to refer the matter to mediation/arbitration appear to be in accordance with the principles set out in Air Canada [2002] as yet unreported, CIRB Decision no. 183. The Board will reserve its jurisdiction as set out in that decision and would appreciate being kept up to date in respect of the progress of the mediation/arbitration.

[13] This is all the Board said about reserving its jurisdiction prior to the issuance of the Keller award. One notes that in CIRB Decision No. 183, the Board did no more than reserve its jurisdiction over the final disposition of the matter in accordance with relevant Code principles. The reference to reservation of jurisdiction in the December 5, 2000 letter specifically refers to section 18.1 which recognizes, among other things, the importance of the agreement of the parties. Finally, the letter of Jan. 7, 2003 does no more than refer to the reservation of jurisdiction found in CIRB Decision No. 183.

[14] Following the release of the Keller award, the applicant approached the Board seeking its intervention on the ground that the Keller award did not comply with the principles articulated in decision no. 183. Chairman Lordon, who wrote Decision No. 183 as well as the letters of December 5, 2002 and January 7, 2003, disposed of the applicant's request by setting out a procedure to be followed to complete the record and concluded his remarks as follows:

Following receipt of these submissions and a consideration of all relevant material on the file, the tripartite panel of the Board will consider what matters should be reconsidered and by letter will indicate those matters, if any, remaining for resolution. These will be scheduled for final adjudication.

(emphasis added)

[15] I do not see in these passages anything more than a general reservation intended to maintain jurisdiction over the dispute, a reservation which did nothing more than hold the door open should the Board decide that further intervention was required. In particular, one does not find here a reservation of jurisdiction and an unequivocal commitment to exercise that jurisdiction in relation to the principles set out in paragraph 170 of CIRB Decision No. 183.

[16] Subsequent to the second arbitration award, the Board received a request from the applicant for a review of the award. A hearing was convened and, on June 26, 2003, the Board issued Decision No. 236. In that decision, it made it abundantly clear that the review undertaken would be carefully limited and circumscribed. The respondent Air Line Pilots Association (ALPA) applied for a reconsideration of that decision in view of the binding nature of the protocol. The Board ruled in Decision No. 925 that ALPA's request was premature because submissions from the parties as to what matters remained in dispute had not yet been solicited.

[17] Decision No. 925, at page 9, is instructive in that the Board indicated to the parties the scope of the limited and circumscribed jurisdiction that it intended to exercise:

Once written submissions are received, it will then be up to the tripartite panel to consider those submissions and adjudicate them. The reconsideration panel understands that the third part of the process is not meant to revisit the substance of the Keller Award, but to consider what issues, if any, remain unresolved as a result of it. It is to be expected that the tripartite panel will consider the written submissions and provide concerned parties with a full opportunity of presenting their case. This means that the tripartite panel will also consider the submissions put forward as part of this application for reconsideration, including but not limited to, the final and binding nature of the Keller mediation/ arbitration protocol, whether the Keller Award was decided in accordance with the principles set out in Air Canada (183), supra, and the extent of the Board's reserve jurisdiction to determine any outstanding matters.

(emphasis added)

[18] The Board would consider the final and binding nature of the Keller arbitration protocol and would not revisit the substance of the Keller award. It would consider unresolved issues and determine any outstanding matters. It would also consider whether the Keller award was decided in accordance with the principles set out in Decision No. 183.

[19] A case management conference followed on November 27, 2003 at which the Vice-Chairperson and counsel for the parties determined the questions to be dealt with under the limited and circumscribed review. In a letter sent thereafter to the parties, the Board informed them that it would begin by examining the effect of the Keller protocol on the Board's jurisdiction to review the award since the Board acknowledged that the terms of the protocol might be dispositive of all remaining issues: see the Board's November 28, 2003 letter to the parties, as referenced in Air Canada (Re), [2004] C.I.R.B.D. No. 4 at paragraph 12.

[20] This series of events, letters and decisions illustrates that the scope of the residual jurisdiction of the Board was not fixed, save for the fact that the substance of the award would not be revisited. It depended on the intent of the parties expressed in the protocol and on an identification of the unresolved and outstanding matters. In this context, I cannot see how the applicant can claim any expectation, let alone a legitimate expectation, that the Board would review the merits of the arbitrator's award.

[21] As a matter of fact, the arbitration protocol unambiguously revealed the intention of all the parties that there be no such review by the Board. Indeed, the applicant was the most vocal party in asserting its intent to that effect. In an e-mail addressed to the other parties, it strongly indicated that it did not want to be involved in parallel proceedings with the Board with respect to the issue assigned to arbitration. I fail to see how the applicant can now claim that it legitimately expected an intervention of the Board on the merits of the award when it emphatically rejected such intervention at the outset and throughout until dissatisfied with the award.

[22] Dissatisfaction with the arbitrator's award does not create a legitimate expectation of a review of the merits of that award by the Board, especially when the parties have clearly indicated that the arbitrator's award is to be considered final and binding. Nor does the legitimate expectation doctrine create a substantive right of review in favour of a dissatisfied party that has agreed that there be no such right and made its participation to the arbitration process conditional on an undertaking to that effect: see Libbey Canada Inc. v. Ontario (Ministry of Labour) (1999), 42 O.R. (3d) 417, at page 434. The doctrine creates procedural rather than substantive entitlements: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 26. Any entitlement in this instance would have related to the applicant's right to be heard by the Board.

[23] The Board reviewed the arbitration protocol and, in view of its content and of the history of the parties' interaction, decided that the intention of the parties that there be no intervention at all by the Board should be respected and given full force and effect. It cannot be faulted for having done so. That was the legitimate expectation of the parties and especially of the applicant. In addition, it was in compliance with both the spirit and the principles embodied in subsection 18.1(2) of the Code which, I repeat, favours mediation and conciliation and encourages parties to come to an agreement by themselves:

18.1 (1) Review of structure of bargaining units - On application by the employer or a bargaining agent, the Board may review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining.

(2) Agreement of parties - If the Board reviews, pursuant to subsection (1) or section 35 or 45, the structure of the bargaining units, the Board

(a) must allow the parties to come to an agreement, within a period that the Board considers reasonable, with respect to the determination of bargaining units and any questions arising from the review; and

(b) may make any orders it considers appropriate to implement any agreement.

[24] The decision whether to exercise the jurisdiction which the Board reserved to itself was a discretionary decision, situated squarely at the core of the Board's expertise, and reviewable only on the narrowest of grounds. In the end, the Board decided not to exercise its jurisdiction in the face of the parties' determination to be bound by the Keller award.

[25] In conclusion, I see no merit in the applicant's first ground of judicial review.

[26] Nor do I see any basis for an intervention of this Court in the second complaint of the applicant. In labour matters, celerity and finality are valid objectives of the Canadian labour dispute resolution system: see Royal Oak Mines v. Canada (Labour Relations Board) (1996), 133 D.L.R. (4^th) 129, at page 149 (S.C.C.). These were relevant factors that the Board could take into consideration in deciding whether or not to exercise its discretion to intervene, either at the request of the applicant or of its own motion. In the same vein, there was nothing improper in the Board looking at the cause of the pilots' dissatisfaction with a view to ensuring that it did not result from a breach of their rights under the Code. It was satisfied that this was not the case: see paragraph 63 of the decision.

[27] Relying upon its expertise and experience and the wishes of the parties, the Board concluded that its intervention was neither warranted nor justified. I agree with this conclusion. I would dismiss the application for judicial review with costs.

"Gilles Létourneau"

J.A.

"I agree

M. Nadon J.A."

"I agree

J.D.Denis Pelletier J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-106-04

STYLE OF CAUSE: AIR CANADA PILOTS ASSOCIATION v. AIR

LINE PILOTS ASSOCIATION and AIR CANADA

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: February 9, 2005

REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.

CONCURRED IN BY: NADON J.A.

PELLETIER J.A.

DATED: February 14, 2005

APPEARANCES:

Mr. Steven N. H. Waller FOR THE APPLICANT

Ms. Ainslie Benedict

Mr. Christopher Rootham

Mr. Paul J. J. Cavalluzzo FOR THE RESPONDENT, ALPA

Mr. James K. A. Hayes

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP FOR THE APPLICANT

Ottawa, Ontario

Cavalluzzo Hayes Shilton FOR THE RESPONDENT, ALPA

McIntyre & Cornish

Toronto, Ontario

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Air Canada Pilots Assoc. v. Air Line Pilots Assoc., 2005 FCA 60

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2005 FCA 60