Date:
20070619
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
DÉCARY J.A.
[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:
|
Powers
of Board
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.
|
Pouvoirs du Conseil
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.
|
[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.
“Robert
Décary”
“I
agree.
A.M. Linden.”
“I
agree.
J. Edgar Sexton.”
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