Date: 19981118
Docket: T-323-98
| IN THE MATTER OF the decision of an arbitrator, Me. Roland Tremblay, Q.C., dated September 16, 1988; |
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| IN THE MATTER OF the Canada Labour Code, R.S.C. 1985, c. L-2, as amended |
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BETWEEN:
LOCAL 4004, AIRLINE DIVISION OF
CANADIAN UNION OF PUBLIC EMPLOYEES
Applicant
- and -
AIR CANADA
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This Court is seized of a show cause application pursuant to Rules 466 et seq. of the Federal Court Rules 1998.
[2] The issue is one which had its origin in 1988 when a dispute over the interpretation of a Memorandum of Understanding executed between the bargaining agent at that time and the respondent airline was submitted to arbitration. The bargaining unit was made up of cabin attendants, including Flight Service Directors (FSDs), Pursers and Flight Attendants.
[3] The issue submitted to arbitration was to interpret a Memorandum of Understanding, signed in 1985, as it referred to FSDs. This particular classification of cabin crew had been created when air regulations required a "two in-charge" approach on wide-bodied jets, namely B-747s and L-1011s. The two-in-charge crew was the FSD, first in-charge and responsible for in-flight services and documents, and the Purser, second in-charge and responsible for first class or business class passengers.
[4] In 1985, the two in-charge requirement was abolished and the respondent airline decided that on these jets, only one in-charge would be required. In September 1985, the airline exchanged a Letter of Understanding with the union, providing for the elimination of the FSD classification through the process of attrition. The implementation of this process was the subject matter of the reference to arbitration. In May 1988, the Arbitrator issued his decision which, among other things, declared that the reduction of FSDs could only been done through attrition and that the Letter of Understanding did not allow for not replacing an FSD who was temporarily absent.
[5] It was only in late 1997 or early 1998 that Toronto Local 4004 of what had then become the Air Division of the Canadian Union of Public Employees (CUPE), complained that the respondent was in serious breach of the arbitral award. Toronto Local 4004 then proceeded to register the arbitral award with the Federal Court, the effect of which, pursuant to s. 66 of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, was to make the decision an Order of the Court. When the respondent denied that it was in breach of the 1988 arbitral award, the applicant instituted these show cause proceedings.
[6] Before delving into the several legal doctrines which surface whenever an alleged breach of a collective agreement or arbitral award becomes a matter of criminal contempt charges, it might be wise to outline how the foregoing events evolved.
Background
[7] As previously mentioned, the respondent airline has its cabin crew employees classified in the following three groups, in the usual pecking order: FSDs, Pursers and Flight Attendants. The employer-union relationship is on the basis of nation-wide bargaining, resulting in a nation-wide collective agreement, presumably with some degree of flexibility with respect to local issues, available to six local unions located in Air Canada bases in Halifax, Montreal, Toronto, Winnipeg, Calgary and Vancouver.
[8] The operational requirements of the airline, particularly in relation to its flight crews, are obviously complex and applicable throughout the airline. Systems have accordingly been developed for the pairing of cabin crews so that, through the linking of various flights to which they are assigned, they will eventually return to their base. It would not be an effective use of human resources if cabin attendants found themselves too often and for too long stranded, at airline expense, in London, Frankfurt or Miami. To implement this scheme, a system of blocks has been adopted. These blocks are open for bids on a rank and seniority basis by the three groups described above. They are open for bidding for some six days and are usually closed on the sixteenth day of the preceding month. Generally speaking, all cabin crews will know by that time on what flights they are booked, going out of their base and returning to it.
[9] As mentioned earlier, some aircraft, namely the wide-bodied B-747 and the L-1011, required the presence of both an FSD and a Purser, under the two in-charge system. After deregulation of the industry in 1985, this manning requirement was abolished. The employer then negotiated with the union to dispense with this two in-charge system and to rely exclusively on one person only as head of the cabin crew. An agreement was reached which, generally speaking, allowed the employer the eliminate the FSD positions through attrition. At that time, the airline had a complement of 70 FSDs, distributed across the previously-mentioned six bases.
[10] Some conflict arose relating to the flexibility open to the employer to replace no-show FSDs with other available FSDs. The issue was referred to arbitration and the arbitrator was asked the following question: "Is the purpose of the Letter of Understanding to reduce the number of Fligh Service Directors through attrition only, or does it allow the company not to replace a scheduled Flight Service Director who is absent due to illness or other reasons?" (Underline mine).
[11] The decision of the Arbitrator, dated September 16, 1988, stated, inter alia, that:
As long as there are Flight Service Directors at Air Canada, Management must continue to prepare its Blocks in such a way that there are two In-charges on wide-bodies, i.e. a Flight Service Director and a Purser.
[12] The Arbitrator also stated:
It is only when the company reads the Block bids that it can find out whether there are enough Flight Service Directors to keep two In-charges, and if there are not enough, then the Purser may remain the sole In-charge for the entire Block.
[13] The Arbitrator made a number of other observations and finally concluded with the following declaration:
The grievance is allowed. It is acknowledged that there has been a violation of the collective agreement on the part of the company with regard to temporary replacement of a Flight Service Director. The reply to the question submitted is that the purpose of the Letter of Understanding is to gradually reduce the number of Flight Service Directors through attrition and this letter understanding [sic] does not allow not replacing a Flight Service Director who is temporarily absent.
[14] In order to gain a better appreciation of the foregoing, reference must again be made to the block system in use. The process is usually run by union members and non-management employees. With specific reference to cabin crews for B-747s and L-1011s, the block system provides that if an FSD block is not filled through the process, the Purser takes full "in-charge" responsibility. If, however, an FSD or other cabin crew member is on vacation during the operation of a block, then pairings would be affected. Consequently, a supplemental block system is put in place, from which vacant pairings are re-assembled into new blocks and open for bidding. This is done during the last week of the preceding month and bidding is open for two days. If an FSD block remains unbid following this process, then once again, the Purser assumes full "in-charge" responsibility and the FSD vacancy in that block is not filled.
[15] On the other hand, if an FSD becomes unavailable to fill the block or part of the block after all awards are completed, the FSD position in that block belongs exclusively to FSDs and the block is to be completed by another FSD or, if unavailable, by a Purser or a Flight Attendant. In effect, the "two in-charge" mode is maintained.
The Issue
[16] The whole issue between the parties is one in respect of what each party thinks is the proper interpretation of the arbitral award of 1988.
Position of the Applicant
[17] The quick view of the Union is that the decision of the Arbitrator means, no more no less, that once a block is closed, no absent FSD may be replaced by anyone other than an FSD, unless the FSD is absent by way of attrition, i.e. is no longer an employee. It is only when there are no FSDs bidding to fill the vacancy that the pecking order is lowered by one notch.
[18] Affidavit evidence on behalf of the applicant Union was tendered by: Ms. Sacks, President of CUPE Local 4004, sworn on May 1, 1998; Richard, Vice-President of the Local, sworn on May 22, 1998; and Egan Keist, currently Union Representative for CUPE, sworn on July 8, 1998. Mr. Keist was formerly a Purser, Flight Service Director and a Union component President.
Position of the Respondent
20. The employer airline takes a different approach. In its opinion, as expressed in the June 18, 1998, affidavit of Mr. D.Frederick Parker, Manager, Employee Relations and Administration at Air Canada, at paragraphs 20 and 21:
20. As a result of the [arbitral] Decision, Air Canada began replacing FSD"s who were absent when a block was in progress with other FSD"s, maintaining the two In-charges on the block. Air Canada has abided by the practice for the last ten years. The Applicant is not alleging that Air Canada has ceased this aspect of the practice or that the alleged contempt of the Decision relates to this aspect of the practice.
21. Consistent with the Decision, Air Canada continued to award FSD positions to Flight Attendants and Pursers remaining sole In-charge on the flight, for blocks not bid on by FSD"s either in the initial or supplemental blocks. Also consistent with the Decision, Air Canada continued to award FSD positions to Flight Attendants with Pursers remaining sole In-charge on the flight, on blocks which had been bid on by FSD"s either in the initial or supplemental blocks but which had become vacant prior to the completion of the award process and before the block was in progress. ...
21. The foregoing was substantially endorsed by another witness, Mr. Anthony Colliss, in his affidavit of June 18, 1998.
22. It should be noted here that the three Union witnesses and the two employer witnesses were all subjected to cross-examination. The result was a somewhat heavy, four-volume Motion Record totalling some 899 pages.
Comments
23. For purposes of this Motion, I need not analyse all of the evidence in detail. It may be fairly stated, however, that the interpretation of the arbitral award of 1988 cannot, one way or another, be easily reduced to very simple terms. It will be observed that through the long relationship between the parties, a growing "block" of jargon has been introduced, giving particular or special meaning to such words and expressions as "pairings", "supplemental block", "open flying", "two in-charge", "blocks in progress", "sole in-charge", a "scheduled Flight Service Director", "closed block", etc.
24. An examination of the transcripts of the cross-examination of the witnesses makes it clear to me that in some respects, at least, the parties were not speaking the same language. The words used are the same, but each side appears to give them different meanings. The ensuing strenuous debate then becomes merely "un dialogue des sourds" and the true intent of the agreement, in its particular fields of application, remain vague and ambiguous. In this regard, it might cursorily be noted that while the terms of reference of the arbitration specify "scheduled" Flight Service Director, that position is left unqualified in the arbitral award as it reads in the concluding paragraph of the decision.
25. Another observation to be made is that the respondent"s application of the 1988 arbitral award has continued in a consistent manner for some ten years and did not become controversial until roughly one year ago.
26. A revised system of allocation of blocks was instituted in the Toronto operations during the months of September to December 1997, which system was in keeping with the union local"s current interpretation of the arbitral award. This was not a management decision, however, but purely a union initiative. In my respectful view, and on the basis of the evidence before me, it should have no bearing on the issue of contract interpretation or attract any inference one way or the other.
27. I have already voiced some concern that these contempt proceedings appear to be at the sole initiative of Toronto Local 4004 of the Airline Component of the Canadian Union of Public Employees. Under Air Canada"s existing organization, there are five other CUPE locals, stretching from Halifax to Vancouver. These locals have not been heard from, nor have they joined Local 4004 in these proceedings. As a consequence, if the respondent airline states that its implementation of the arbitral award has been consistent throughout all of its bases, there is no one gainsaying it. In that respect, I need not do more than voice some concern as to what legal effects on contract interpretation might be of a practice which has remained unchallenged for so long.
28. There are other elements, as well, to this case. It is trite law that whenever a statute or a contract provides for a special forum for the settlement of differences, a Court owes deference to it and will only exercise its competence in exceptional cases. With respect to the proceedings before me, the Canada Labour Code states in s. 57 that any dispute over a collective agreement shall be submitted to arbitration. The full text of that section reads as follows:
| 57 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.
(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.
(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).
(4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairman, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or arbitration board chairman, as the case may be.
(5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairman, as the case may be.
(6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairman shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.
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| 57 (1) Est obligatoire dans la convention collective la présence d"une clause prévoyant le mode " par arbitrage ou tout autre voie " de règlement définitif, sans arrêt de travail, des désaccords qui pourraient survenir entre les parties ou les employés qu"elle régit, quant à son interprétation, son application ou sa prétendue violation.
(2) En l"absence de cette clause, tout désaccord entre les parties à la convention collective est, malgré toute disposition de la convention collective, obligatoirement soumis par elles, pour règlement définitif:
(a) soit à un arbitre de leur choix;
(b) soit, en cas d"impossibilité d"entente sur ce choix et sur demande écrite de nomination présentée par l"une ou l"autre partie au ministre, à l"arbitre que désigne celui-ci, après enquête, s"il le juge nécessaire.
(3) Lorsque la convention prévoit, comme mécanisme de règlement, le renvoi à un conseil d"arbitrage, tout désaccord est, malgré toute disposition de la convention collective, obligatoirement soumis à un arbitre conformément aux alinéas (2)a) et b) dans les cas où l"une ou l"autre des parties omet de désigner son représentant au conseil.
(4) Lorsque la convention collective prévoit le règlement définitif des désaccords par le renvoi à un arbitre ou un conseil d"arbitrage et que les parties ne peuvent s"entendre sur le choix d"un arbitre " ou dans le cas de leurs représentants au conseil d"arbitrage, sur le choix d"un président ", l"une ou l"autre des parties " ou un représentant " peut, malgré toute disposition de la convention collective, demander par écrit au ministre de nommer un arbitre ou un président, selon le cas.
(5) Le ministre procède à la nomination demandée aux termes du paragraphe (4), après enquête, s"il le juge nécessaire.
(6) L"arbitre ou le président nommé ou choisi en vertu des paragraphes (2), (3) ou (5) est réputé, pour l"application de la présente partie, avoir été nommé aux termes de la convention collective.
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29. Another material element in the case is, of course, s. 66 of the Canada Labour Code, which provides that upon registration in this Court of an arbitral award, the award becomes as fully enforceable as an Order of the Court. In this respect, however, two points should be kept in mind: one, that contempt proceedings require proof that there has been a breach of the award, and two, that by reason of the criminal or penal nature of the proceedings, such proof must be beyond a reasonable doubt. In Bhatnager v. Canada (Minister Of Employment and Immigration), [1990] 2 S.C.R. 217, Sopinka J., at page 224, bluntly stated:
It is well to remember at the outset that an allegation of contempt of court is a matter of criminal (or at least quasi-criminal) dimension: see [1953] 1 S.C.R. 516">Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, per Kellock J., at pp. 517-18; and In re Bramblevale Ltd.., [1970] Ch. 128 (C.A.), per Lord Denning, M.R., at p. 137. In the present case, a finding of guilt could have subjected the appellants to a fine of as much as $5,000 and the possibility of imprisonment to a maximum of one year; see Rule 355(2). It is necessary, therefore, that the constituent elements of contempt be proved against the appellants, and proved beyond a reasonable doubt.
30. This process provokes consideration of another matter. If the purpose of contempt proceedings is to enforce compliance with an order or decision, there must be something to enforce. It is now well established that this Court will refuse to enforce a judgment which is purely declaratory. (See Syndicat des Postiers du Canada c. Société canadienne des postes (1987), 16 F.T.R. 4; Letter Carriers Union of Canada v. Canada Post Corporation (1986), 8 F.T.R. 93; C.A.L.P.A. v. Canadian Airlines International (1989), 27 F.T.R. 61.
31. On the face of the arbitral award at issue, it appears to be a pronouncement which simply declares what the agreement is. Addy J., in Letter Carriers Union of Canada (supra), dealt with an arbitral award in response to the following question being put to the arbitrator: Does management at Canada Post Corporation have the right to order a letter carrier out for the p.m. portion of his walk, if that letter carrier still has some mail to process at the postal station? In dismissing a show cause application, Addy J. commented that "the very fundamental question is whether the award, having regard to its very nature and substance, was actually capable of supporting any contempt of court proceedings". He then went on to quote from Wade"s Administrative Law, Oxford: Clarendon Press, 1977, p. 500, as follows:
... A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not be contempt of court. But by enabling a party to discover what his legal position is it opens the way to the use of other remedies for giving effect to it.
32. In a similar vein, Rouleau J., in Syndicat des Postiers, supra, at pp. 9-10, observed as follows:
The arbitrator ruled on events between January and June 1985, without specifying action to correct the violations alleged. He found that the respondent had not complied with the collective agreement at that time but he did not order corrective action that could be given effect. In my opinion, an order which only sets forth a general line of conduct is not sufficient.
The order must compel the person in question to perform actions or impose a specific constraint on him. General statements, as in the case at bar, are therefore to be regarded as more declaratory than enforceable; and a declaratory arbitral award is not capable of enforcement ...
33. I should here make another comment. The initial process in contempt matters, as in the situation before me, may be assessed by way of written evidence. If a citation follows, however, and a trial takes place, Rule 470(1) makes it quite clear that unless the Court directs otherwise, the evidence must be oral. This rule is, of course, in keeping with the longstanding principle of criminal law that an accused is entitled to face his accusers. He is entitled to more than a paper trial. Such a trial would be a heavy burden for both parties to bear.
34. I have one final comment to make, one which touches upon the spirit of the legislation with respect to the whole field of industrial relations. The whole tenor of our system is clearly imposed by the statutory jurisdiction given to labour boards, mediators and arbitrators, providing for relatively inexpensive and expeditious resolution of contract disputes, and also reducing as much as possible the fall-out inherent in our traditional adversarial system with its close affectation for form and precedents. Recourse to penal procedures for the enforcement of contractual rights or to assure compliance with contractual obligations should be exercised with some restraint by the parties and the courts. There are ample judicial pronouncements to that effect, such as: Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 503 (S.C.C.); Ste Anne Nackawic Pulp & Paper Ltd. v. Canadian Paper Workers Union, [1986] 1 S.C.R. 04; Pilon v. International Minerals and Chemical Corp. (1996), 31 O.R. (3d) 210 (C.A.); and Roberts v. Canada Post Corp. (1997), F.C.J. No. 1483 (F.C.T.D.).
Findings
35. It will be clear to the parties that the foregoing comments merely repeat the concerns I expressed during the hearing with respect to the kind of proceeding instituted by the applicant union to enforce its rights under the Letter of Understanding of 1985 and the arbitral award of 1988.
36. The elements of the applicant"s case are a strange mix. Furthermore, it is necessary to stress once again the burden which falls on anyone wishing to secure compliance with the terms of a labour contract by using contempt proceedings. In my respectful view, an application of the kind before me should only be launched when the allegations of non-compliance refer to some clear and unambiguous order, set in the arbitral award, to do or to refrain from doing something. I should not wish to prejudge the case for either party, but it seems to me that the ingredients to support a contempt order are not there. The substance of the arbitral award is, at first blush, purely declaratory. Even if it could be found otherwise, I should doubt that the case for the applicant can be made beyond a reasonable doubt. It could be said that by the nature of the reference originally submitted to the Arbitrator, the question put to him is itself ambiguous. I have already referred to some contract usages where, in the absence of proper definitions, ambiguities are created and misunderstandings occur.
37. Counsel for the applicant, in a well-articulated factum, sets out the grounds to establish that there has been a breach of the arbitral award. Well and good, but the issue before me is whether counsel"s argument is so convincing, persuasive or unquestionable, that I should simply give it my equally unquestionable endorsement and let the show cause trial proceed. I note, in this respect, that the applicant"s written argument, although running more than 20 pages, would not have relied on any case law which might be at variance with the comments or observations made herein, and with case law which I might have cited. Furthermore, I should observe that if it takes some 800 pages of evidence in the Record to bring all the material facts to the Court"s attention, it cannot be said that the issue of contract interpretation is as clear, obvious or unqualified as the applicant suggests. In Beamscope Canada Inc. v. Aviva Software Corp. (1988), 18 C.P.R. (3d) 100, Jerome A.C.J. makes it clear that a reasonable interpretation of an order allegedly violated is enough to escape the rigours of contempt.
Conclusion
38. The arbitral award deals with contract interpretation. The argument of the applicant before me also deals with contract interpretation. No prior factual finding of the Court has been made. On the basis of all the foregoing, I should find insufficient grounds to allow the applicant to go any further with its contempt proceedings. The case for the applicant, to launch contempt proceedings involving the interpretation of an arbitral award, must be analysed in the context of the several observations which I have made herein. In my respectful opinion, the arguments advanced by the applicant fall far short of opening the door to the penal proceedings contemplated under Rule 461. The law provides the applicant with much more expeditious and equally effective remedies via the grievance route.
39. The application is therefore dismissed, with costs to the respondent. In the circumstances of a two-day hearing plus several days of witness cross-examination, I should allow the respondent costs at the highest level of units set out in Category III of Tariff B.
L-Marcel Joyal
JUDGE
OTTAWA, Ontario
November 18, 1998.
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