Date: 20031210
Docket: T-1782-02
Citation: 2003 FC 1423
Ottawa, Ontario, this 10th day of December, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
GREGORY SEAN MESSNER
Applicant
and
PACIFIC SPIRIT AIR LTD.
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Gregory Messner is a pilot who was employed by Pacific Spirit Air Limited in 1999 and 2000. At end of his employment, he launched a complaint against Pacific Spirit for unpaid overtime and other benefits he felt were owing: termination pay, vacation pay, and so on. He succeeded in respect of the other benefits, but not the overtime. He launched an appeal under the Canada Labour Code, Part III, R.S.C. 1985 c. L-2, s. 251.11, but a labour inspector turned it down. The inspector reviewed the evidence surrounding Mr. Messner's hours of work and concluded that he did not exceed the standard hours of work stipulated in the Canada Labour Code. Mr. Messner appealed again.
[2] A labour arbitrator, Mr. John Thorne, considered the matter afresh, reviewing the evidence put before him by both parties. He too found that Mr. Messner's claim for overtime pay was unfounded. Mr. Messner argues that the arbitrator's findings were at odds with the evidence and the product of a biased outlook on the case. He asked me to quash Mr. Thorne's decision and order that another arbitrator reconsider the evidence.
[3] Mr. Messner presented his arguments ably. Still, having considered his submissions and the evidence carefully, I can find no serious error on the arbitrator's part. I must, therefore, dismiss this application for judicial review.
[4] On an application for judicial review, this Court's role is limited - more limited, in fact, than in the case of an appeal. On matters of fact, the Court will only quash a decision if the applicant shows that it is seriously and demonstrably flawed. An applicant bears the burden of showing an error on that scale before the Court will intervene. I have not found an error of that gravity in the arbitrator's decision.
Issues:
[5] Mr. Messner argued that the arbitrator's decision was patently unreasonable, given that it was based on erroneous findings of fact and failed to take account the evidence. He also suggested that the arbitrator was biased.
1. Did the arbitrator fail to base his decision on the evidence?
[6] The arbitrator considered Mr. Messner's hand-written record of his hours of work, his flight logbook, a "Flight Duty Time Sheet" generated on Pacific Spirit's computer, and a written employment agreement between the parties setting out Mr. Messner's salary "inclusive of overtime."
[7] The arbitrator discounted the evidence tendered by Mr. Messner. For example, he found that there were discrepancies between his hand-written records and the "Flight Duty Time Sheet". The inspector had previously found Mr. Messner's notes to be less than reliable. The arbitrator also found that the "Flight Duty Time Sheet" was probably generated with input from Mr. Messner himself and was of questionable reliability. Further, he found that the total hours Mr. Messner claimed to have worked were disproportionate to his actual flight time; the former exceeded the latter by a factor of 3.5 times.
[8] Mr. Messner argues that the arbitrator failed to understand that his hand-written records set out his total hours, whereas the "Flight Duty Time Sheet" only recorded the time between reporting for a flight and its termination: Canadian Aviation Regulations, SOR/96-433, Subpart I, 101.01(1). The latter, he submits, did not take account of other related duties, unassociated with particular flights. Further, he argued that Pacific Air's own record of flights showed that he worked longer than 8 hours some days.
[9] For its part, Pacific Spirit maintained that Mr. Messner enjoyed a good deal of time off between flights, which should not have counted as hours of work; that he was paid separately for his duties as Chief Pilot and for maintenance responsibilities (neither of which were particularly onerous); and that his salary package already took account of the fact that he may spend more than 8 hours on the job during busy months.
[10] Based on this evidence, the arbitrator concluded that Mr. Messner's salary was commensurate with his duties as a pilot, and that he was paid a supplementary amount for his additional responsibilities. He was not satisfied that the evidence supported Mr. Messner's assertion that he was usually busy with other duties when he was not flying. Accordingly, he concluded that Mr. Messner had failed to substantiate his overtime claim.
[11] Clearly, Mr. Messner disputes the arbitrator's findings. However, I cannot find any serious errors or omissions in the arbitrator's analysis of the evidence. I must reject this aspect of Mr. Messner's application.
2. Was the arbitrator biased?
[12] In his reasons, the arbitrator criticized Mr. Messner. He said that it "cannot be considered acceptable from any moral and ethical perspective for the appellant to have done what he did in this case." He was alluding to the fact that Mr. Messner had a contract with Pacific Spirit that specifically stipulated that his salary was inclusive of overtime, yet he made a claim for overtime. The arbitrator said, "surely a deal is a deal".
[13] These comments appeared at the end of the arbitrator's decision, after he had completed a thorough review of the evidence. They followed his rejection of Pacific Spirit's argument that the Canada Labour Code did not apply to it (a finding that was not challenged before me). On the whole, I find the arbitrator's reasons to be balanced and cogent. While I would not necessarily agree with his final comments, I cannot conclude that they displayed bias against Mr. Messner.
[14] Therefore, I must dismiss this application for judicial review, with costs to the respondent.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed with costs to the respondent.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1782-02
STYLE OF CAUSE: GREGORY SEAN MESSNER v
PACIFIC SPIRIT AIR LTD.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 26th, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: December 10, 2003
APPEARANCES BY:
Mr. Gregory Sean Messner FOR THE APPLICANT
Mr. Mark W. Sager FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Gregory Sean Messner FOR THE APPLICANT
100 Mile House, BC V0K 2E0
Sager Anderson
Barristers and Solicitors
300 - 235 15th Street FOR THE RESPONDENT
West Vancouver, BC V7T 2X1
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