Air Canada Pilots Association v. Air Line Pilots Association, 2005 FC 723

Date: 20050520

Docket: T-1261-03

Citation: 2005 FC 723

BETWEEN:

AIR CANADA PILOTS ASSOCIATION

Applicant

- and -

AIR LINE PILOTS ASSOCIATION and AIR CANADA

Respondents

                                                  REASONS FOR ORDER

DAWSON J.

[1]                On January 4, 2000, Air Canada merged with Canadian Airlines International Ltd. ("Canadian"). At that time, Air Canada's unionized pilots were represented by the Air Canada Pilots Association ("ACPA") and Canadian's unionized pilots were represented by the Air Line Pilots Association ("ALPA"). On August 3, 2000, the Canada Industrial Relations Board ("Board") declared Air Canada to be a single employer under the Canada Labour Code, R.S.C. 1985, c. L-2 ("Code"). Subsequently Air Canada, ACPA and ALPA confirmed to the Board their view that two certified bargaining units of pilots were no longer appropriate and requested that the Board replace the two bargaining units with a single, consolidated bargaining unit.

[2]                This present litigation reflects the continuing inability of the parties to determine the pilots' seniority issues that arose in consequence of the merger of the two separate bargaining units into a single, combined bargaining unit.

INTRODUCTORY FACTS

[3]                While the parties were unable to reach agreement on the pilots' seniority issues, they did agree upon a process to resolve the dispute. Pursuant to the consent of the two unions, an arbitration was held before Arbitrator Morton G. Mitchnick to determine a merged pilot seniority list. Arbitrator Mitchnick's award was then incorporated into an order of the Board dated May 2, 2001.

[4]                Following the Board's May 2, 2001 order, ALPA applied for reconsideration of the Board's order pursuant to section 18 of the Code. On July 10, 2002, the Board released its decision, setting aside Arbitrator Mitchnick's award on two grounds: first, on the ground that it had not complied with the Code principles governing seniority integration, and second, that sufficient written reasons had not been provided to support the decision. While this decision of the Board (cited Air Canada (Re), [2002] C.I.R.B.D. No. 31; CIRB Decision No. 183) did not finalize the relevant seniority lists, it did set out certain principles that were to govern the determination of seniority integration pursuant to the Code. The Board directed the parties to enter into another process to produce a new seniority list based on these principles, and the Board reserved its jurisdiction over that continuing process.

[5]                The parties were unable to agree upon and produce a new seniority list. However, the "merger committee" for each pilot group and Air Canada agreed to a mediation/arbitration process to be conducted by a three-person panel, chaired by Arbitrator Brian Keller. Each pilot union would nominate a member of the panel to bring the panel to its full complement. The parties signed a memorandum of agreement with respect to the arbitration process. The agreement, among other things, provided that the Chair's award would be the award of the panel in the event that both nominees dissented from his award. The agreement also provided that the panel would function as a "tripartite mediation/arbitration panel" and that the panel "will determine a mediation/arbitration hearing schedule and its own process after consultation with the parties".

[6]                The Board retained supervisory jurisdiction over the process in order to ensure that the resulting seniority list complied with the principles enunciated in the Board's July 10, 2002 decision.

[7]                On June 16, 2003, Chairman Keller issued his award. Both union nominees to the arbitration panel (Mr. Ronald A. Pink, Q.C. for ALPA and Mr. Menno Vorster for ACPA) issued dissenting awards. ACPA's nominee's dissent was issued on June 25, 2003 and ALPA's nominee's dissent was issued on July 8, 2003. ACPA's nominee and Chairman Keller subsequently each issued an addendum to their award. ACPA's nominee's addendum was issued on August 6, 2003 and Chairman Keller's was issued on August 13, 2003.

[8]                ACPA sought a review of the Keller award by the CIRB on the basis that the decision was not decided within the parameters set in the Board's Decision No. 183. On January 28, 2004 the Board, in a decision cited Air Canada (Re), [2004] C.I.R.B.D. No. 4, CIRB Decision No. 263, deferred to the conclusions reached by Arbitrator Keller, expressing the view that it had exhausted any residual jurisdiction concerning the seniority integration process that it had reserved to itself. The Board also concluded that it would not exercise any discretion it possessed to embark, on its own motion, upon an inquiry into the issue of seniority integration.

[9]                By application filed February 19, 2004, ACPA applied for reconsideration of that decision. That application was dismissed by the Board on December 14, 2004 by CIRB Letter Decision No. 1170.

[10]            On February 14, 2005, the Federal Court of Appeal dismissed the application for judicial review brought by ACPA from CIRB Decision No. 263. The Court agreed with the Board's conclusion that its intervention was neither warranted nor justified.

[11]            This application for judicial review is brought in respect of Chairman Keller's award. ACPA seeks an order quashing the award on grounds that various acts and omissions of Chairman Keller deprived ACPA of procedural fairness and gave rise to a reasonable apprehension of bias.

THE POSITIONS OF THE PARTIES AND THE ISSUES TO BE DETERMINED

[12]            In the submission of ACPA, Chairman Keller:

4.              [...] was entrusted with a dispute of the most serious import for thousands of affected airline pilots. Yet he failed to follow even the most basic precepts of procedural fairness. The Chair attended a private party hosted by one of the litigants, to which the other litigant was not invited and did not attend. The Chair publicly criticized the personal characteristics of one litigant, while praising the other litigant. The Chair ordered that the hearing was at an end, then reopened it to allow only one litigant to tender new evidence, while denying the other litigant the right to respond or tender its own evidence. The Chair even purported to dismiss one litigant's nominee from the arbitration panel, without telling that nominee. In every case, the Chair's irregularities favoured ALPA and prejudiced ACPA. Finally, the Chair issued an award that dramatically favoured ALPA and prejudiced ACPA and the pilots it represented.

[13]            In the result, ACPA frames the issues to be decided to be:

(1)            Did Arbitrator Keller violate the rules of natural justice by attending a social function with one of the parties during the arbitration hearing?

(2)            Did Arbitrator Keller violate the rules of natural justice by making disparaging comments about the representatives of one of the parties?

(3)            Did Arbitrator Keller make an error of natural justice by excluding one of the panel members from the panel's deliberations?

(4)            Did Arbitrator Keller make an error of natural justice by accepting submissions from one party without permitting the other party to respond?

(5)            Did Arbitrator Keller lose jurisdiction by failing to follow the panel's procedural directions to the parties?

[14]            ALPA responds that:

(a)            ACPA was not denied the right to a fair hearing. In particular, ACPA was itself responsible for the alleged failures of which it now complains. They were a product of ACPA's conduct during the proceedings and of its decision to abandon the Keller process.

(b)            There is no reasonable apprehension that Mr. Keller was biased against ACPA.

(c)            Further, this Honourable Court should exercise its discretion not to award a remedy to ACPA because ACPA brings this application without clean hands. In addition, the Canada Industrial Relations Board has already declined to interfere with the substance of Mr. Keller's award on the basis that the award complies with the Canada Labour Code and that sound labour relations policy and common sense demand that this protracted dispute be brought to an end.

THE EVIDENCE

[15]            To support its assertions that Chairman Keller's conduct deprived ACPA of procedural fairness and gave rise to a reasonable apprehension of bias, ACPA filed the affidavit of Captain Kevin Whiteside. He is a long serving Air Canada pilot who at all material times was a member of the ACPA merger committee and who served as one of ACPA's "data representatives". The data representatives were union members who were able to use electronic data that Air Canada provided about the pilots to be included on the merged seniority list, in conjunction with software programs, in order to display the seniority list that would result from particular methods of merging seniority lists. This manipulation of the data allowed assessment of the impact that any particular proposed merged list would have upon pilot jobs and salaries. ACPA also filed the affidavit of a second pilot, Captain Bruce Durrer, relevant to the issue of the Chair's alleged bias.

[16]            In response to Captain Whiteside's affidavit, ALPA filed the affidavit of Captain Robert McInnis. He is a long serving pilot who initially flew with Canadian and who now flies for Air Canada. He chaired ALPA's merger committee. A supplementary affidavit sworn by Captain McInnis was filed that slightly modified his earlier affidavit.

[17]            The recollections of Captains Whiteside and McInnis about significant events vary dramatically. Neither deponent was cross-examined. The chief difficulty in this application for judicial review is to discern from the conflicting evidence what actually transpired.

i) Conduct of Keller Arbitration - ACPA's Version of Events

[18]            ACPA describes the significant events surrounding the arbitration to be as follows.

Panel Spent More Time with ALPA than ACPA during Mediation

[19]            ACPA recalls that, during the mediation phase, the panel spent most of the time exploring ALPA's proposed solutions, and Chairman Keller showed virtually no interest in exploring items and concepts proposed by ACPA. ACPA raised this issue with the panel on the last day of mediation. While Chairman Keller initially refused to schedule one additional day with ACPA, after Mr. Vorster's intervention, the Chair eventually reversed his decision. However, ACPA says that, even with the additional day, the panel spent far more time with ALPA than with ACPA.

Ground Rules

[20]            Chairman Keller informed ACPA that the mediation phase would end, and the arbitration hearing would resume, when the panel concluded that there was nothing further to be gained from further mediation. Therefore, ACPA made all of its concessions during the mediation phase. Chairman Keller ended the mediation phase on April 13, 2003 (although subsequently an additional day was given to ACPA on May 2, 2003 to ensure that its position was fully understood by the panel). On May 4, 2003, following the hearings, the panel reserved its decision and retired to deliberate on a final award in executive sessions.

[21]            Prior to the first executive session, Chairman Keller issued the following directive to the parties by way of an e-mail sent to counsel:

Menno, Ron and I spoke last night about when and where our first, but not necessarily last, executive session will take place and some clarification about the process is required. First, when the stage of final submissions is completed the process will be left to the panel to complete in the fashion they consider appropriate. Second, at that point the parties will not, absent communications from the panel to them, and if required only by the panel, have any further role to play in these proceedings. Third, the "techninical [sic] gurus" will become part of the deliberative process of the panel, will attend at the location of the executive session(s) with the panel and their role will be limited to assisting the panel. As discussed earlier in these proceedings, at that stage they will not be able to communicate back to their respective parties unless the panel asks/gives them permission to do so. This last point is critical to the panel being able to complete its mandate !

All of this means that where, how and when the executive session(s) take place is/are within the sole discretion of the panel. We obviously can't prevent anyone from attending at the locale where we intend to deliberate, but it should be made very clear that their attendance is not requested or required. All that we will require is some means of communicating with counsel who in turn can communicate with their clients if necessary.

MAP Proposal

[22]            ACPA says that, on the second last day of mediation, Chairman Keller assured ACPA that he would not award "Mapping". This was a seniority list adjustment mechanism that ALPA sought for the purpose of compensating former Canadian pilots for their higher rate of retirements ("MAP" is an acronym for Mutual Attrition Preservation). Mapping would have worked to the benefit of Canadian pilots, and to the detriment of Air Canada pilots. Therefore, ACPA was strongly opposed to the Mapping proposal, but did not make any submissions on it, after being assured by Chairman Keller that he would not award Mapping. ACPA claims, however that Chairman Keller's final decision included what, in substance, was ALPA's Mapping adjustment that Chairman Keller had expressly assured ACPA that he would not award. ACPA says that Chairman Keller gave it no further opportunity to be heard on the impact of the Mapping adjustment.

Submission of New Proposals

[23]            On the third day of the executive sessions, Chairman Keller informed the data representatives of a change in the ground rules. He identified a number of new facts and principles that would govern the panel's award, and invited each party to submit three new proposals incorporating those new principles. ACPA recalls that ALPA submitted three proposals that contained elements never raised or discussed before the end of hearings, and ACPA was given no opportunity to react to these elements. ACPA, on the other hand, had tabled all of its proposals during the mediation phase, and had believed that ALPA had done so as well.

Extra Submissions & Breach of Ground Rules

[24]            On June 6, ACPA's nominee on the panel informed ACPA that Chairman Keller had requested and accepted new evidence and submissions from ALPA alone, without telling ACPA's nominee about the request or inviting ACPA to respond to ALPA's new evidence. The new evidence concerned Air Canada's route structure, aircraft assignment and the technical capacities of different aircraft. ACPA complained to Chairman Keller regarding this violation of the panel's procedural ground rules, but Chairman Keller did not respond to the complaint. His final award expressly relied upon evidence about Air Canada's route structure and aircraft assignment.

[25]            Also on June 6, ACPA discovered that Chairman Keller was pursuing, for the first time, another ALPA proposal under which Canadian pilots would be compensated for "the Mitchnick effect" (the detrimental impact of the original Mitchnick arbitration award on Canadian pilots). ALPA produced new calculations, different from the evidence it had submitted during the hearing, indicating that the former Canadian pilots had lost $13 million annually due to the Mitchnick list award. The ACPA data representatives could not determine the basis of the ALPA calculations.

[26]            That same day, ACPA was informed that Chairman Keller had already reached a decision on all but a few elements of the arbitration. Chairman Keller had decided on his solution without giving ACPA the opportunity to respond to the new evidence he had secured from ALPA.

ACPA's Withdrawal from Process

[27]            In light of Chairman Keller's apparent disregard for, and lack of interest in, ACPA's case throughout the proceedings, and his breach of his own ground rules, ACPA's merger committee notified Chairman Keller that it was withdrawing its data representatives as resources to the panel.

Social Event

[28]            ACPA also provided details regarding a wine and cheese event organized by the ALPA merger committee. ACPA did not learn until after Chairman Keller's award was complete that this wine and cheese event had taken place, and that Chairman Keller had attended it. ACPA's nominee on the panel did not attend this social event. In fact, while members of the ALPA merger committee attended the party with Chairman Keller, no one from ACPA or its merger committee was invited or attended.

Conversation

[29]            ACPA provided evidence regarding an alleged conversation between Chairman Keller and an Air Canada pilot, Captain Durrer, seated next to him on a flight that occurred during the hearings. ACPA claims that Chairman Keller told this pilot that the representatives of the Canadian pilots were much more humble than the Air Canada representatives, whom he described as being arrogant. Chairman Keller then assured the pilot that "in two years, you will recover to where you are now".

ii) Conduct of Keller Arbitration - ALPA's Version of Events

[30]            ALPA's evidence describes the events surrounding the arbitration as follows.

Panel Spent More Time with ALPA than ACPA during Mediation

[31]            ALPA concedes that, during the mediation, the panel did spend more time exploring ALPA's proposals. However, ALPA says this was a product of the differing approaches the two unions took to the mediation process. ACPA only offered up a few proposals, and the panel was informed that ACPA's proposals were very close to its bottom line, so the panel should expect little movement in subsequent proposals. ALPA, on the other hand, submitted a number of proposals, including a detailed proposal on how to integrate the seniority lists on the basis of a ratio (MAP proposal). As Chairman Keller noted in the addendum to his decision, the panel was required to spend the time necessary with ALPA during mediation in order to properly understand its proposals. Given that ALPA was making proposals that had to be studied, circumstances required that more time be spent with its representatives than with ACPA's representatives.

[32]          After the mediation sessions, the panel granted ACPA one additional day of hearing during which the panel would hear from ACPA exclusively, and spend as much time with ACPA as it felt was required. In addition, at the end of the extra day, ACPA expressed its appreciation to the panel and declared that it was satisfied with the process. At no other point did ACPA request additional time with the panel.

MAP Proposal

[33]            ALPA says that Chairman Keller did not award Mapping. ALPA made a MAP proposal which set out a category ratio integration, and addressed the remedial concerns ALPA had regarding the impact of a disproportionate number of ALPA retirements over the short term. MAP was a specific concept for integration which would see each pilot group follow its own retirement attrition so that neither group would advance on the seniority list at the expense of the other. The impetus for the proposal was that Canadian pilots had more projected retirements and should have the benefit of them in the future. Chairman Keller ultimately rejected the MAP proposal of ALPA. This is said to be clear in his decision, as Chairman Keller indicates that Mapping would have created two independent, parallel seniority lists, and the lists could not merge until all existing Canadian pilots retire.

[34]          The remedy ultimately chosen by Chairman Keller was based on a category ratio, and Chairman Keller rejected the theory that retirements were a protected equity. Chairman Keller did, however, make a one-time adjustment to the list to address the impact of the Mitchnick award. ALPA notes that the proposal for the one-time adjustment originated from Chairman Keller's discussion with ACPA's nominee.

Submission of New Proposals

[35]            On May 18, the panel informed the parties that it had decided upon the facts and principles that would govern its final deliberations, and asked the parties to submit three new proposals for an award, which were to be used to narrow the distance between the parties' previous positions. The proposals were to be submitted by May 26. The panel advised the parties that each party would receive a copy of the other party's proposals for review when it had filed its own proposals. ALPA provided three new proposals, while ACPA did not file any by the stipulated deadline. ACPA did submit one late proposal, on June 6, which the panel accepted and reviewed. When it submitted its proposal, ACPA was provided with ALPA's proposals. ACPA did not object to the proposals at the time or request an opportunity to make further legal submissions regarding ALPA's new proposals.

[36]            Given that the principles and facts set out on May 18 were different from the positions taken by either ACPA or ALPA, it was clear that the point of the panel's request for additional proposals was to see something new from the parties based on the panel's new factual findings. Therefore, these proposals would necessarily include elements the parties had not previously submitted.

Extra Submissions

[37]          ALPA says that ACPA learned of, and accepted, the data ALPA provided on Air Canada routes and fleet utilization. ALPA does note that there was an additional "data run" prepared by ALPA on June 7 which was to form the basis of discussion at the June 7 executive session. This data run related to a one-time adjustment and was prepared in response to the proposal raised on June 6 by ACPA's nominee that this be considered as a remedy in the final award. When this suggestion was communicated to Mr. Pink by the Chair, Mr. Pink undertook to have ALPA prepare a data run on the issue and have it available for the next day's executive session. The data run was prepared on the morning of June 7. The only reason why ACPA did not receive this data was because ACPA withdrew from the arbitration process on that same morning.

ACPA's Withdrawal from Process

[38]            On June 6, Chairman Keller communicated to the nominees the general direction that his award would be taking. He communicated that no final decision had been made about the details of the award, and further executive sessions were scheduled to discuss these details. On June 7, ACPA abandoned the arbitration process, and its nominee also withdrew from the process. As a result, the Chair told Mr. Pink that, given ACPA's withdrawal, he would no longer seek input from ALPA or its nominee. The Chair then wrote his award and the nominees wrote their separate dissents.

Social Event

[39]            The social event in April 2003 was organized by the ALPA merger committee for its own members. The event was not arranged especially for Chairman Keller. At the end of the mediation session, the panel members and their spouses were casually invited to the event. The Arbitrator and ALPA's nominee attended, and it is the recollection of the ALPA merger committee that ACPA's nominee also attended. At the event, there was no discussion of the arbitration. As well, at no point prior to this application for judicial review did ACPA raise any concern about the Arbitrator's attendance at the social event.

Conversation

[40]            ALPA disputes that the conversation alleged to have occurred between Chairman Keller and an Air Canada pilot even took place. Chairman Keller, in a memo exhibited to Captain McInnis' affidavit, advises that he has no recollection of such a conversation, and believes that it is unlikely that any such conversation would have occurred. In addition, at no point prior to this application for judicial review did ACPA or its nominee raise any concern about this alleged conversation.

STANDARD OF REVIEW

[41]            ACPA's concerns in substance are twofold: did it receive a hearing that was in accordance with procedural fairness, and is there a reasonable apprehension of bias on the part of the Chair? Because the issues raised are solely confined to the fairness of the arbitration process, there is no need to conduct a pragmatic and functional analysis. It is for the Court to provide the legal answers to questions as to whether procedural fairness has been adhered to. See: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100; Canada (Attorney General) v. Fetherston, 2005 FCA 111; [2005] F.C.J. No. 544 at paragraph 16.

THE DUTY OF FAIRNESS

[42]            There is no doubt that a duty of procedural fairness was imposed upon the Chair when conducting the mediation/arbitration process that was to lead to the merger of the pilot seniority lists. That said, the content of procedural fairness is "eminently variable and its content is to be decided in the specific context of each case". See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 21. In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at page 685, the majority of the Supreme Court cautioned that administrative bodies are to be given some latitude to develop their procedures. The content of the rules to be followed by an administrative decision-maker is determined by reference to all of the circumstances under which the decision-maker operates. Madam Justice L'Heureux-Dubé wrote at page 685 that:

49             It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by de Smith (Judicial Review of Administrative Action (4th ed. 1980), at p. 240), the aim is not to create "procedural perfection" but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome. [underlining added]

[43]            It is the closeness of the administrative process to the judicial process that should indicate how much of the principles that govern our legal system are to be imported into the realm of administrative decision making (Knight, supra at page 683).

[44]            In Baker, supra, Madam Justice L'Heureux-Dubé set out a non-exhaustive list of factors that assist when determining what the duty of procedural fairness requires in a particular circumstance. Those factors are:

i)           The nature of the decision made and the process followed in making it.

ii)          The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.

iii)          The importance of the decision to the affected individuals.

iv)         The legitimate expectations of the person challenging the decision.

v)          The choices of procedure made by the agency itself.

[45]            Madam Justice L'Heureux-Dubé emphasized that "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker".

[46]            Applying these factors to the circumstances of this case, the merger of seniority lists is a decision different from a judicial decision in the sense that it involves the exercise of significant discretion, and requires the consideration of a number of factors. The Board described this in the following terms in its reasons for setting aside the Mitchnick award:

[...] the issue that inevitably arises from the need to revisit the Mitchnick award from a Code perspective is how this is to be done. Before considering this, it is useful that certain further observations be made respecting the nature of seniority and possible methodologies that may be used to merge two previously independent seniority lists. First of all, as noted above, all relevant considerations should be assessed, but under the provisions of section 18.1 of the Code, the preservation of pre-existing seniority and related collective agreement rights must be a priority. The Board must undertake this task in the context of the Code in a manner that supports the objectives of the Code including free collective bargaining, sound labour-management relations and in a manner which ensures a just share of the fruits of progress to all. So far as possible, the Board should ensure in matters of seniority integration that neither party emerges from the integration process with any more or less than they entered it with. Put succinctly, there should be no winners and no losers, or all should gain, and collective agreement rights must be effectively recognized and continued if possible. The arbitral jurisprudence may also be relied upon, but it must be carefully assessed in the context of the relevant Code provisions. Additionally, it should be noted that each situation must turn on the facts relevant to it, which may be determinative. As Arbitrator Nicolau expressed it, the integration of seniority lists should be fair and equitable and each matter should turn on its own facts. These facts should be applied against the background of relevant principles. [underlining added]

[47]            The Board also noted that the process of integrating lists works best if it is interactive. Thus, any arbitrator was to first have the opportunity of working with the parties in a mediative role. For that reason, the Board did not immediately refer the issue for further arbitration, but rather ordered ACPA and ALPA to again attempt to prepare a seniority list. When that failed, the parties entered into the memorandum of agreement for a mediation/arbitration process and expressly conferred on the panel the power to determine its own procedure.

[48]            These considerations, particularly the ambit of discretion, in my view imply neither strong nor weak procedural protections (See: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 116).

[49]            Turning to the nature of the statutory scheme, the adjudication arises out of the failure of the parties to themselves agree upon a merged seniority list. However, the Board reserved its jurisdiction over the dispute, and the parties reserved their rights to seek judicial review of the panel's decision. The availability of such review suggests the need for weaker procedural safeguards.

[50]            As for the importance of the decision to the affected individuals, the greater the effect on the life of the individual, the greater the need for procedural protections. Without doubt, in the words of counsel for ALPA, the seniority lists "govern in minute detail virtually every aspect of a pilot's career". In the words of ACPA's nominee, "[w]hat makes the seniority issue such a volatile one is that for pilots, seniority dictates the city they live in, the planes they fly, the money they earn, the days they have off, the holidays they take, the routes they fly and the size of their eventual pension income".

[51]            The importance of the decision to the pilots is a fact that indicates increased requirements of procedural fairness. However, such requirements do not rise to the same level as where the right to continue in one's employment is at stake.

[52]            With respect to the legitimate expectation of the parties, the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision-makers. It will generally be unfair for a decision-maker to act in contravention of representations as to procedure. I discuss below whether, as a matter of fact, the Chair or the panel backtracked on substantive procedural promises, without according significant procedural rights.

[53]            Finally, it is relevant to consider the choices of procedure made by the panel, particularly where the panel was given the right to choose its own procedures.

[54]            The process followed by the panel was described by Captain McInnis in his affidavit as follows:

40.            The parties adopted a mediation-arbitration format in which their nominees would play key roles on behalf of their respective pilot groups at all stages of the process. This permitted a fluid process in which the parties could and did meet separately with the full panel, with the Chair and one panel member, or with their own nominee alone. Private meetings with party nominees were particularly important opportunities for frankly communicating to each party any specific direction from Mr. Keller along with the nominee's sense of the process to date and the effectiveness of the party's submissions and positions. The protocol permitted the panel to develop an effective informal process for the theories of the parties and information required to mediate, and, ultimately arbitrate, the case.

41.            In addition to the extensive pre-hearing briefs, with submissions and evidence supporting their interpretations of Decision No. 183, the parties submitted other material to the panel as the process developed. Both sides were able to make submissions and presentations to the panel on any subjects they chose. Both ACPA and ALPA used these opportunities to meet with the full panel, to meet with Mr. Keller and their own nominee, to provide material to the panel through their nominees, as well as to make submissions in formal hearings to the full panel in the presence of the other party. The panel had the ability, in all the above ways, to access knowledgeable pilots, sophisticated computer software, and management representatives, which enabled it to assess various proposals and options very quickly. The panel actively sought evidence of the merits and impacts of various seniority solutions both as proposed by the parties and as suggested by panel members themselves.

42.            The idea was to provide the panel with the authority to construct an efficient and effective mediation-arbitration process unlike the more formal adjudicative model. I believe it proved to be the kind of "interactive" process contemplated by the Board in Decision No. 183.

43.            Sessions in the first phase of the Keller mediation-arbitration process were held as follows:

a.              March 29-30           Toronto

b.              April 4-7 Vancouver

c.              April 12-13              Toronto

d.              May 2-4 Ottawa

44.            After an unsuccessful attempt by the Keller panel to achieve a consensual result, the parties were directed to file written final arguments. Hearings on these submissions were held on the final mediation dates, May 3 and 4, 2003. The submissions of ALPA and ACPA at these hearings are attached as Exhibit "5" to my affidavit.

45.            Following the final hearing, the panel advised the parties it would deliberate on a final award by holding a series of Executive Sessions. The panel requested support from party-designated experts on pilot data and software experts be present in order to model alternatives arising from the panel's own deliberations. Mr. Keller outlined the Executive Session process to the parties by way of an email dated April 24, 2003, attached as Exhibit "6" to my affidavit.

46.            The ALPA and ACPA Merger Committees also convened on location during the scheduled Executive Sessions, anticipating that they might be called upon by the panel. Within limits determined by the panel, the nominees could and did consult with their nominating parties during the course of the Executive Sessions.

[55]            This explanation is generally consistent with the process described by Captain Whiteside, and by Mr. Pink in his dissent. Captain Whiteside particularly describes the role of the two nominees on the panel as follows:

25.            Chair Keller made it clear at the outset of the hearing that the union nominees would play a dual role in the hearings. First, they would participate in the panel's deliberations to ensure that the concerns of the party nominating them were considered. Second, the Chair would use each nominee as his "go-between", for communicating his messages to the union that nominated him, and for communicating that union's response back to the Chair.

26.            As a result, the ACPA Merger Committee relied primarily on its nominee to pass messages or directions to and from the Chair. It was less common for the Chair to convey such matters personally.

[56]            Mr. Pink described the process followed at the end of the executive session as follows:

During the last two days of the Executive Session, the Chair essentially engaged the nominees in more mediation on behalf of their parties as he continued to explore possible solutions. The mediation was conducted as described by the Chair in his decision and the express intention of the Chair was that after the completion of the final Executive Session, the Chair would make an ultimate decision on behalf of all parties unless he could achieve a consensus.

Mr. Vorster does not dispute this in the subsequently issued addendum to his dissent.

[57]            I find this evidence to accurately describe the process established by the panel, without any party objecting per se to that process.

[58]            Such a process was interactive and inconsistent with a more judicially modelled process. The parties agreed to a process whereby one or more members of the panel met with one party in the absence of the other, where the panel was to ascertain the positions of the parties before the formal arbitration hearing started, and where even after the arbitration session ended the Chair engaged the nominees in more mediation. Mr. Vorster, in his dissent, noted that, at least until the ACPA merger committee stated it was no longer participating in the process, even during executive sessions the parties had the capability and willingness to demonstrate the effects of elements of an award.

[59]            In the face of such agreement as to the process to be followed, in my view, it is inappropriate to apply principles or jurisprudence taken from rights based arbitrations.

[60]            The parties, urged by the Board, elected to opt for a system that was flexible, adopted to their needs, and essentially fair. That agreed process requires a degree of deference from the Court and significantly impacts on the content of the requirements of procedural fairness.

[61]            Having discussed the content of the duty of procedural fairness, I turn to consider each of the breaches of that duty asserted by ACPA. Because, in oral argument, ACPA's counsel conceded that not every alleged breach alone would be sufficient to set aside the award, I will consider the alleged breaches in the general order in time in which they are said to have occurred. This will better facilitate consideration of the totality of the acts and omissions put forward by ACPA in asserting that the Chair repeatedly made little effort to be fair, or to appear to be fair, particularly after the executive sessions commenced.

THE WINE AND CHEESE EVENT

[62]            ACPA says that, on April 8, 2003, during a particularly acrimonious phase of the hearings in Vancouver, the Chair "[attended] a private party arranged by ALPA. No one from ACPA was invited, attended or was notified of the party. The Chair was known to be a connoisseur of wine, and ALPA arranged that its party be a wine-tasting".

[63]            ACPA asserts that, because no members of ACPA were present, the Chair's conduct created a reasonable apprehension of bias in favour of ALPA.

[64]            ACPA's assertion must be considered in the context of findings of fact as to what actually occurred. I accept the evidence of Captain McInnis that the event was arranged by the ALPA merger committee for its own members (many of whom were not from Vancouver), that the event was not a formal wine-tasting, and that it was not arranged especially for the Chair. I accept this evidence because the ALPA representatives are better placed to know the origins of the event and because this explanation accords with common sense and logic.

[65]            It is agreed that the event took place while the parties were in the mediation phase and that all members of the panel and their wives were invited to attend. According to Mr. Vorster's wife, they did not receive the telephone message, left for them at about 5:30 p.m inviting them to attend, until later that evening when they returned from dinner with Messrs. Keller and Pink and their wives. I do not believe that there is any dispute about the fact that Mr. and Mrs. Keller and Mr. and Mrs. Pink did attend the wine and cheese reception.

[66]            There is no agreement as to whether Mr. Vorster attended the wine and cheese event. In an unsworn affidavit, his wife says he did not; in a letter, Mr. Vorster says he did not; but in a sworn affidavit, Captain McInnis reiterates that Mr. Vorster did attend and that members of the ALPA merger committee also confirm that Mr. Vorster attended the wine and cheese reception. I accept Mr. Vorster's unsworn letter and find that he did not attend the reception. I accept Mr. Vorster's advice on this point as no one is in a better position to know whether he attended, and as an experienced and respected labour arbitrator I accept the veracity of his statement made for the purpose of having it put before the Court.

[67]            It is also agreed that ACPA did not learn of the reception and the Chair's attendance at it until mid-June 2003 (after the hearings and the executive sessions) when Mr. Vorster told them about it.

[68]            At law, the test for a reasonable apprehension of bias is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think it is more likely than not that [a decision-maker], whether consciously or unconsciously, would not decide fairly". See: [1978] 1 S.C.R. 369">Comm. for Justice v. Nat. Energy Board, [1978] 1 S.C.R. 369 at page 394.

[69]            In my view, an informed person would consider that the Chair was an experienced arbitrator who was, at least initially, acceptable to both sides, and who was participating in a mediation phase of the proceeding where ex parte communication with one party was contemplated and acceptable. Also relevant to the informed person would be that the other members of the panel were invited, Mr. Keller's wife and Mr. and Mrs. Pink attended, the event was not arranged for the Chair, and Mr. Vorster did not consider it necessary to even mention the event to ACPA until almost two months later. Considering those factors, in my view, an informed person, looking realistically and practically at the issue, and thinking the matter through, would not conclude that the Chair would not decide the merger issue fairly because of his attendance at this event. No reasonable apprehension of bias arises from the Chair's attendance at the wine and cheese reception.

MEDIATION PHASE - UNEQUAL OPPORTUNITY TO BE HEARD

[70]            ACPA, through Captain Whiteside's affidavit, complains that:

35.            Under the Chair's direction, the panel spent the vast majority of the mediation phase meeting privately with the ALPA Merger Committee to explore ALPA's proposed seniority solutions.

36.            Of the little time the panel did spend with the ACPA Committee, most of it was spent reacting to the Chair's queries about ALPA's proposals. The Chair showed virtually no interest in exploring items and concepts being proposed by ACPA. Repeatedly, he waived off our attempts to explain our issues, claiming that he understood them already.

37.            It was arranged in advance that the panel would spend one particular day of "mediation" (March 30) hearing ACPA's presentations on the most important parts of its own proposals, and on the problems inherent in ALPA's proposals. This was the core of ACPA's case.

38.            ACPA had distributed to the panel, in advance, the printed material on which its presentation would be based. The Chair attended on the appointed day without bringing his copy of that material. After he was given a replacement copy, he was visibly inattentive throughout our presentation.

39.            For example, when we spoke, he was often looking away from the speaker, reading unrelated materials, or having private conversations with the nominees. On several occasions, our presenters stopped their presentations in order to wait for more visible signs of attention from the Chair. Each time, the Chair assured us that he had heard and understood us, and directed us to move on.

40.            I was left with an overwhelming impression that the Chair was neither interested in, nor trying to understand, the material in our presentation. This same impression was voiced by other members of our Committee, and our legal counsel.

[...]

44.            April 13 was scheduled to be the last day of mediation. On that day, ACPA's counsel requested that the Chair schedule one additional day of mediation with our Committee. Our counsel expressed our concern that ACPA had not been able to make its case due to the disproportionate time spent so far with ALPA, and due to the focus on ALPA's proposals during the little time that had been spent with ACPA.

45.            The Chair immediately responded, with visible impatience, that "you're not getting another day, I don't have another day", or words to that effect. The Chair then left the room. Our nominee later intervened, and the Chair reversed his decision the next day.

46.            Even with that additional day, the panel spent far more time with ALPA than with ACPA.

[71]            Mr. Vorster, in his dissent, states that he agreed with ACPA's concern that both sides were being directed to focus their attention on the issue of demographics being pushed by ALPA.

[72]            In oral argument, counsel for ACPA said that this concern was not, by itself sufficient to set aside the Chair's award, but that it illustrates a further instance of favouritism to ALPA and disadvantage to ACPA.

[73]            An explanation for the attention given to ALPA's submissions is given by Mr. Pink in his dissent, and by the Chair in his addendum.

[74]            Mr. Pink wrote, apparently in response to Mr. Vorster's comment in his dissent referred to above, that:

Further, the Chair cannot be unfairly criticized for the time spent with both parties. There was a distinct difference in the positions presented by both parties. ALPA approached the case as though the Mitchnick decision ceased to exist and the process should start afresh subject to the constraints placed on us by the CIRB. ACPA, meanwhile, did everything in its power to retain Mitchnick and its impact and the gains made thereunder.

The Panel knew what the Mitchnick Award said and how it impacted the parties. This was adequately explained by the parties in their opening Brief and in their opening submissions. The Panel wanted new ideas and solutions. It was the ALPA Committee which created new concepts and ideas which required attention and study. There was a need to have the ALPA proposal reviewed and analyzed by ACPA and vice versa.

It was suggested during the process that too much time was being spent with ALPA and a disproportionately lesser time with ACPA. This is not fair. The Panel, having heard the complaint, gave ACPA a special day of hearing at which time they had the undivided attention of the Panel to submit any issue and to make any submissions they desired. They expressed their appreciation to the Panel at the conclusion of our session and declared emphatically that they were satisfied with the process.

[75]            Mr. Keller responded in the addendum to his award that:

1.              It is a fact that more time was spent with ALPA than with ACPA. However, that was at the mediation phase only. The reason is very simple. After each party, during mediation, made their first proposal early in the process, we were informed by Mr. Vorster that the proposal was very close to ACPA's bottom line and we should expect little movement in subsequent proposals. Later proposals from ACPA, during mediation, bore this out.

ALPA, on the other hand, was making various and different proposals to the Panel. In particular was their proposal on MAP and various iterations of it. The panel was required to spend the time necessary with ALPA during mediation in order to properly understand their proposals, and ACPA's reaction to them. Anyone familiar with mediation will understand that it is not unusual to spend more time with one party than the other depending on the circumstances. Given that ALPA was making proposals that had to be studied, circumstances in this case required that more time be spent with them than ACPA.

The mediation phase was followed by the formal arbitration. At arbitration, each party was given the same amount of time to make whatever formal representations to the Panel it thought appropriate.

[76]            As noted previously, in the absence of some reason to the contrary, I am inclined to accept at face value statements made by experienced and respected labour arbitrators. They are less interested in the outcome and rely on their professional reputation in order to be appointed to arbitrate. Statements made in their reasons pre-date this litigation.

[77]            While I note Mr. Vorster's expression of concern, I accept Mr. Pink's unchallenged statement that, at the end of the special hearing, ACPA expressed its appreciation and "declared emphatically" that they were satisfied with the process. I also accept the statements of Mr. Pink and the Chair that they wanted new concepts to study and that it was ALPA who created new concepts and ideas, while Mr. Vorster had advised that ACPA's first proposal was very close to its bottom line.

[78]            I find nothing untoward in the fact that more time was spent with one side in mediation than with the other. This is a common occurrence.

[79]            As a result, I reject as unsubstantiated the factual assertion that the Chair's conduct during the mediation phase illustrated any favouritism or pre-disposition to ALPA or any disadvantage or negative disposition to ACPA.

THE CONVERSATION WITH THE AIR CANADA PILOT

[80]            Captain Durrer, an Air Canada pilot since 1987, swore an affidavit in which he deposed that on April 27, 2003 he was deadheading, in uniform, on an Air Canada flight from Ottawa to Toronto. During that flight, the person in the next seat engaged Captain Durrer in conversation and:

·            introduced himself as Brian Keller, the Chair of the panel conducting the pilot seniority arbitration;

·            inquired which "side" Captain Durrer was on;

·            upon learning that he was an Air Canada pilot, inquired where Captain Durrer fit in on the Air Canada pilots' seniority list;

·            advised that there were two more days of hearings scheduled for the following weekend;

·            volunteered (on more than one occasion) that the representatives of the former Canadian pilots were "much more humble" than the ACPA representatives whom he described as being "arrogant";

·            failed to respond to Captain Durrer's statement that it would be unfortunate if personality conflicts had a negative effect on the outcome;

·            conveyed the impression to Captain Durrer that his mind was already made up. This was evident, to Captain Durrer, by Mr. Keller's statement to the effect that "in two years you will recover to where you are now".

[81]            ACPA argues strongly that the Chair's comments gave rise to a reasonable apprehension of bias because his disparaging comments about ACPA's representatives reflect the impression that he conveyed throughout the hearing that he was dismissive of ACPA's issues and submissions. Further, by referring to a seniority outcome from which Captain Durrer would have to recover, the Chair revealed a possible pre-judgment of the outcome.

[82]            ALPA disputes that the conversation occurred. Mr. Keller has responded in correspondence, filed by counsel's mutual consent, that:

1.          He was on a flight on that particular day.

2.          He does not recall the conversation.

3.          It is not a conversation which likely would have occurred on that date.

[83]            There was no cross-examination upon this issue.

[84]            The alleged conversation was not raised by ACPA until the application for judicial review was filed.

[85]            On this evidentiary basis, particularly on Mr. Keller's admission that he was on "a" flight on this day, I find as a fact that a conversation did occur between Mr. Keller and Captain Durrer on April 27, 2003. The question then becomes one of fact: was the conversation as Captain Durrer recalls?

[86]            In order to make that factual determination I look to the following contextual facts:

i)           By April 27, 2003, more time had been spent by the panel with ALPA during the mediation phase. We know from Mr. Keller's addendum that he viewed ACPA to have made little movement in that process and that he viewed ALPA as being the party which made various and different proposals to the panel.

ii)          The conversation occurred before the May 2, 2003 extra day given to ACPA, before the parties made their final presentations on May 3 and 4, and before the executive sessions held on May 17 and 18 and June 6 and 7.

iii)          On May 18, 2003 the Chair, through the nominees, had requested that the parties submit by May 26, 2003 their final proposals, based upon the facts and principles as found by the panel at that point. In at least Mr. Pink's view, by doing so, the Chair was trying to induce the parties to provide their bottom lines in order to determine whether there were any common positions.

[87]            Looking at those facts, I find, on a balance of probabilities, that:

i)           Mr. Keller did make a remark or remarks to the effect that the ACPA representatives were more arrogant, or less flexible, than the ALPA representatives. Such a view would have been consistent with the opinion that ACPA made little or no movement and then requested an additional hearing date.

ii)          Mr. Keller did not make remarks that indicated that he had pre-judged the outcome. I find that it was too early in the process for that to be the case, and I believe that such a pre-judgment would be contrary to the continuing effort of the Chair to obtain new positions from the parties. I also find support for this conclusion on the basis that, had Mr. Keller made any clear statement that his mind was made up, an earlier complaint or objection would have been made. Captain Durrer only refers to remarks that conveyed an "impression" to him.

[88]            Having made those findings of fact, the evidence does not therefore support any reasonable apprehension of bias arising from any possible pre-judgment of the issues.

[89]            Nor, I conclude, would a reasonably informed person, viewing the matter realistically and practically, and having thought the matter through, conclude that the Chair would not decide the seniority issue fairly because he thought that ACPA's representatives were arrogant and that ALPA's representatives were humble. In my view, an informed person would conclude that representatives of parties to a dispute generally fall across a spectrum of humility. In common experience, humility (or the lack thereof) is not a reliable indicator of the likelihood of a particular outcome. This is especially likely to be the case with an experienced, respected labour arbitrator. The Chair's conversation with Captain Durrer was ill-advised, but I find it does not give rise to a reasonable apprehension of bias.

DEPARTURE FROM THE GROUND RULES TO GOVERN THE EXECUTIVE SESSION

[90]            ACPA says that in the direction issued to the parties before the first executive session (quoted at paragraph 21 above) the panel established the ground rules to govern the executive sessions. Those ground rules reserved to the panel the right to re-open the proceedings for further evidence or submissions, precluded the parties from any role unless asked to participate by the panel, and made the data representatives available to the panel. Those ground rules were never varied and yet ACPA says that on three occasions they were varied for ALPA, giving no opportunity to ACPA to see or to respond to evidence or submissions advanced by ALPA. On one further occasion, ACPA says the Chair even excluded its nominee from the panel's deliberations.

[91]            Aside from violating the audi alterum partum rule, these actions are said by ACPA to further evidence the reasonable apprehension of bias on the part of the Chair.

[92]            Each asserted breach of the ground rules will be considered in turn.

(i) Was ACPA denied the right to respond to crucial evidence on flights and routes?

[93]            Captain Whiteside swears that on June 6, 2003, Mr. Vorster advised ACPA that the Chair had accepted new evidence from ALPA concerning Air Canada's current route structure, its assignment of various aircraft types to different types of routes, and the technical capacities of different aircraft. Such evidence was said to have been sought by the Chair from ALPA only, without telling ACPA's nominee that the information had been sought. Captain Whiteside goes on to swear that:

82.            The Chair had not invited ACPA to tender evidence on the same subject. Nor had he invited ACPA to respond to ALPA's new evidence. Nor had the Chair exhibited any intention of doing so.

83.            Our nominee had then requested a copy of ALPA's new evidence, to show to the ACPA data representatives present in Boston. The Chair had granted that request. Our nominee then presented this new evidence to us.

84.            We immediately raised three complaints about the Chair's receipt of this new evidence, and asked our nominee to relay these complaints back to the Chair.

85.            Our first complaint was that the Chair had sought and accepted any input from one party only, in violation of his ground rules.

86.            Our second complaint was that this new evidence went beyond the "data runs" that the Chair had ruled would be the only additional input received by the panel during its deliberations. This new evidence was the not the kind of data in possession of the data representatives. The data representatives were only able to manipulate the electronic data in their databases, which did not include this kind of information about routes or the assignment of aircraft types to routes.

87.            Our third complaint was that we could not assess the accuracy of the ALPA evidence or otherwise respond to it without conducting our own factual investigation into Air Canada's route structure and its aircraft assignments. To do that, we would need more time than one or two days. The Chair had already indicated his intention to end all deliberations on the next day, June 7.

88.            The Chair never did respond to any of those complaints. In his final award, however, he expressly relied on evidence about Air Canada's route structure and aircraft assignments, as follows:

The final categories were developed by considering the article 25 hierarchy as well as, among other things, the type of flying, the range, whether wide-body or narrow-body, stage length and capacity of each type of aircraft. The Panel acknowledges that this may not be the only way of grouping likes with likes but it is one that, in its view, most corresponds to how the Company views and uses each aircraft type.

[94]            This evidence is said by ACPA to put beyond question the lack of procedural fairness and a reasonable apprehension of bias.

[95]            Relevant to ACPA's assertion is the following excerpt from Mr. Pink's dissent:

In addition, it is now suggested by the ACPA nominee that the Chair had information available to him which was requested only from the ALPA side. This complaint related to the "flying of various types of aircraft". The Chair had previously indicated that in order to meet the CIRB's test of matching "likes with likes" and to develop the CIRB's "category test", he would consider the aircraft flown. The grouping of aircraft into categories became a major consideration. In effect, it had to be one of the first principle decisions to be determined.

ACPA is mistaken if it believe [sic] that the Chair requested this information be generated. During the process of the Executive Session and between hearings, there was much discussion by the Chair with each of the panelists. In the discussions concerning the "Category Ratio", this Nominee impressed upon the Chair the need to compare the aircraft flown and their missions. I had the ALPA committee prepare a comparison of the various missions of various aircraft. I presented this material to the Chair for his edification. The Chair never requested it be developed. The information provided to the Chair was given to the ACPA nominee for his review and consideration. He immediately took the material to the ACPA representatives for their analysis. He returned a short time later to report that the ACPA representatives did not dispute the contents of the material.

[96]            Mr. Vorster does not take issue with Mr. Pink's explanation. In his dissent, issued before Mr. Pink's, Mr. Vorster simply wrote that:

Finally, on June the 6^th, the Panel was provided with considerable detail on the precise aircraft that flew on particular Air Canada routes. The information had been generated by ALPA. The ACPA Committee was neither aware of the request to ALPA nor had they received a similar request. To them it appeared that the Chair was satisfied in receiving information from only one side.

[97]            Mr. Vorster's subsequently issued addendum is silent on this point.

[98]            Viewing the evidence on this point, I prefer the statements of the arbitrators, made in their reasons, to the evidence of Captain Whiteside. I say this because the arbitrators are less interested in the outcome than both the pilot groups, and because their reasons were issued before the commencement of this litigation.

[99]            I therefore find that when the ACPA nominee advised the ACPA representatives of the existence and content of the aircraft route and technical information before the panel, ACPA's representatives were understandably unhappy that information had been received only from ALPA. However, I also find that the Chair had not requested the information from ALPA, that ACPA received, reviewed and analysed the information, that ACPA then told Mr. Vorster that they did not dispute the contents of the information, and that Mr. Vorster communicated this to the panel.

[100]        On the facts that I have found, I conclude that there was neither a breach of the audi alterum partum rule nor any basis for imputing bias on the part of the Chair as the result of the receipt of information from ALPA about Air Canada routes and the like.

(ii) Mapping

[101]        On April 5, 2003, ALPA, in the mediation session, introduced the concept of MAP. This was a proposal to deal with the demographic anomaly said to be posed by the pending retirement boom of the former Canadian pilots. The Mapping adjustment proposed by ALPA is described in the following terms by Captain Whiteside:

50.            The ALPA adjustment would work as follows: as each pilot retires from his job at age 60, a more junior pilot from his pre-merger group would move up the seniority list to take the place of the retired pilot. The junior pilot would gain dozens or even hundreds of seniority numbers, and would instantly gain the ability to hold a much-higher paying job, one that would never have been within his grasp but for the retirement of one of his more senior colleagues.

[102]        On April 13, 2003 (the second last day of mediation) the Chair assured the ALPA committee that he would not award Mapping.

[103]        ACPA says, however, that in his award the Chair rejected the only justification given by ALPA for Mapping as follows:

The ALPA pilots strenuously urged the Panel to consider pilot demographics (i.e.) age, because they, on average, are older and have fewer flying years left. The Panel was told that it must preserve more higher paying flying positions for ACPA in order to preserve their age equity. To that end a process they called 'MAP" was proffered. MAPing would have preserved the same number of positions in each category for each pilot group on a go-forward basis. In essence, it would have created two independent, parallel seniority lists and the seniority lists would not merge until all existing CAIL pilots retire.

The Panel rejects this approach.

Age is not a collective agreement equity that the CAIL pilots had on October 17, 2000. It results from the fact the ALPA pilot group is older results [sic] as CAIL had done very little hiring for at least 5 years prior to 2000 whereas Air Canada had. Undoubtedly, this hiring pattern will affect the ALPA pilots long-term "bumping ability" and expectations but it is not an equity and therefore is not something that can legitimately be protected. [underlining added]

[104]        However, ACPA, and Mr. Vorster in his dissent, say that:

At the conclusion of his statement on the ALPA position, the Chair states that, "the Panel rejects this approach". However, I submit that the Award did no such thing. It is clear that by shifting the date and then applying the ratio, the Chair has in fact awarded the MAPing approach. The only difference is that rather than re-applying the ratio every year, the Award re-applies it once after a period of two and two-third years. MAPing for a shorter time is still MAPing. [underlining added]

[105]        ACPA says that by "knocking out" the only reason that supported Mapping, and by then awarding Mapping, the Chair breached the ground rules. It is argued that "any fair tribunal" would allow submissions on this remedy.

[106]        While Mr. Vorster is of the view that what the Chair awarded through a changed date and applying a ratio is still Mapping, this is Mr. Pink's view:

The Chair rejected the MAPing concept and, in my view, was incorrect.

It cannot be suggested that re-ratioing was MAPing through the "back door". MAPing would have been an ongoing process where there were annual changes to the seniority list determined by actual retirements. Some years more retirements would occur than others. The seniority list is updated every year in any event.

[107]        The merits of the Chair's decision are not before the Court. Faced with the opposing views of Messrs. Vorster and Pink as to whether Mapping was awarded, and considering the Chair's stated rejection of Mapping, I find that ACPA has failed to establish, on a balance of probabilities, that the Chair awarded Mapping.

[108]        As I have found that ACPA has not established that Mapping was in fact awarded by the Chair, it follows that there has been neither a breach of the ground rules nor conduct that would give rise to a reasonable apprehension of bias on the asserted ground that the Chair awarded Mapping after he said he would not.

(iii) The Mitchnick Effect

[109]        ACPA says that on June 6 it also learned from Mr. Vorster that the Chair was considering another ALPA proposal, that former Canadian pilots should be compensated for the Mitchnick effect. (This was the effect caused by the fact that for approximately two and a half years until the Mitchnick award was set aside by the Board, pilots had bid and functioned under the Mitchnick seniority list). Very much in dispute before the panel was the measure of harm the former Canadian pilots had suffered as a result.

[110]        ACPA says that in compensating the former Canadian pilots for this effect, the Chair erred in two respects: first, he awarded a remedy that exceeded what ALPA had proposed; second, he did so without giving ACPA the opportunity to make submissions on this.

[111]        I find that the evidence establishes that the effect, if any, of the Mitchnick award was on the table from the beginning of the process. ALPA's opening position, which is dated January 24, 2003 and which is attached as Exhibit 2 to Captain McInnis' affidavit, on page 1 sets out that one of the principles and objectives of the pilots' proposal is to "[p]rovide appropriate adjustments for adverse effects of the interim operation of the Mitchnick Award". During the mediation phase, ACPA tendered some evidence to prove that, in its view, as a general rule, there was no demonstrable loss arising from the Mitchnick award. Two of ALPA's proposals, submitted on May 26, 2003 in response to the panel's directive, proposed an annual ratio reduction of .06 over five years to permit recovery by 2008 of the losses caused from the operation of the Mitchnick award. ACPA received ALPA's proposals when it provided its one proposal to the panel on June 6, 2003. (The panel had previously advised the parties that each party would receive the other's proposal when it filed its own). There is no evidence that on receipt of the ALPA proposals ACPA sought any extension of time to respond to ALPA's proposed five year ratio reduction.

[112]        Chairman Keller in his reasons then wrote as follows:

Thus, even though the Panel is establishing the seniority list as of October 17, 2000, the reality is that more than two and one-half years have passed and a number of pilot bids have taken place. These bids, as indicated earlier, were all based on the quashed Mitchnick award, including for example the fence awarded for the A330/340 type of aircraft. This issue was raised by ALPA during the hearing, with the claim that the effects of the Mitchnick seniority list on the bids to date have worked significantly to the disadvantage of the former CAIL pilots. According to their analysis, they will have suffered many millions of dollars in "damages" over the course of their careers unless something is done to redress the effects of bidding with the Mitchnick seniority list. It should come as no surprise that ACPA, while acknowledging that there was some effect because of the A330/340 fence, takes the position that the net affect is very minimal and does not need to be redressed. The Company too, acknowledges that the Mitchnick list has had some effect but is also not of the view that it is as drastic as ALPA claims. Finally, that reality was also recognized by the CIRB as related earlier in this award.

Because there have been intervening bids since the Mitchnick award, using the Mitchnick list and fence, that post-date October 17, 2000 if nothing is done, the full benefit of this award can not be realized. In order to maintain, to the extent possible, equities between the parties as of the merger date, the Panel has had to develop a means to put the parties in the position they would have been in on the date of this award, but for the effects of the Mitchnick award. The details of the award attempts to do that. The award goes beyond what ACPA claims is necessary (as they claimed no redress is required) and does not, by a significant measure, satisfy the ALPA "damage" claim. It is, however, in the view of the Panel, a reasonable approach to take to attempt to reconcile the competing interests of the two pilot groups.

[113]        I accept, therefore, that having heard the competing evidence and views of both ACPA and ALPA, the Chair chose to re-ratio a number of pilot categories. The Chair viewed this to be a "reasonable approach" to "attempt to reconcile the competing interests of the two pilot groups". I also accept that the award went beyond what ACPA claimed was necessary, but did not satisfy ALPA's claim.

[114]        The merits of the Chair's decision are not before the Court. The Court is confined to considering whether the Chair reached his conclusion in breach of the duty of fairness. On that issue, I find that where the issue was on the table from the outset, and the panel had heard competing submissions on the issue, the Chair did not breach any duty of procedural fairness in deciding the issue as he did. ACPA has not established, on a balance of probabilities, that the award so exceeded what ALPA sought as to, by itself, indicate unfairness. I also find that the evidence does not support any apprehension of bias.

THE ALLEGED EXCLUSION OF ACPA'S NOMINEE AND THE 7:00 A.M. DATA RUN

[115]        Captain Whiteside swears that the ACPA committee reached a consensus on the evening of June 6, 2003 that the Chair had shown a total disregard for ACPA's case throughout the arbitration, the mediation and the deliberations. Therefore, ACPA resolved to notify the Chair at the outset of the next day's deliberations that ACPA was "withdrawing our data representatives as resources to the panel".

[116]        ACPA then relies upon the addendum to Mr. Vorster's dissent to argue that Mr. Vorster was excluded from the panel's deliberations, without being told of that exclusion, and that several events had occurred without Mr. Vorster's knowledge, but with the knowledge of ALPA's nominee.

[117]        In this regard, in the addendum to his dissent, Mr. Vorster wrote as follows:

A revelation has been made in the dissent of the ALPA Nominee in this matter. I must address the issue for the record. The new information clearly demonstrates that in the final stages of the arbitration process, the other two members of this Board had information provided to them that was not made available to me. Secondly, I was improperly excluded from commenting on crucial information which was clearly central to the Chair's Award.

Mr. Pink refers to a data run done by ALPA at Mr. Pink's request at 7 a.m. on the final day of the Board's Executive Sessions. Apparently it was "a run performed of the final ALPA proposal." Mr. Pink suggests that the run was completed using a ratio adjustment of .30 for the June re-ratioing which was less favourable to ALPA than the .25 eventually decided upon by the Chair. The ALPA nominee states, however, that "the Chair knew exactly what the process was going to look like in the end result."

[...]

I had no knowledge whatsoever of any of this until I read Mr. Pink's dissent. The Chair and the other Board member had exclusive information that later proved determinative in the Chair's Award. It was incumbent on the Panel to advise me that the two other Board members had information on which they intended to rely in reaching their decision, information that had not previously been introduced and on which I had no opportunity to comment.

When I wrote my dissent prior to that filed by Mr. Pink, I was convinced that the Chair had not done a test run of the only scenario that ultimately counted, namely the one he decided upon. Further, I expressed some surprise at the apparently arbitrary numbers the Chair had used. I stated that, "Without any rationale, the Award adjusts the ratios of pilots by which pilots are to be apportioned to each Category by .25. No one knows why this number is used." I now stand corrected. It seems that of the three Panel members, only I didn't know where this number came from.

I was not informed that the ALPA data personnel had been requested to make a run of the ALPA proposal nor was I told that the run had been produced. I was not provided with the results nor any information regarding the overall impact of the ALPA proposal that the data run may have demonstrated. Simply, I was deprived of offering any input or opinion to the Panel because I had no idea whatsoever that this information existed. [emphasis in original]

[118]        These are most serious allegations. In order to properly assess whether they are made out on the evidence, and if so, what the effect of such conduct is, it is important to determine the following facts:

i)           Did ACPA simply withdraw its data representatives from the process?

ii)          As of June 6 and 7, 2003, what were the functions being performed by the union nominees to the arbitration panel?

iii)          What was the status of deliberations when Mr. Vorster left the process?

iv)         Did Mr. Vorster withdraw from the panel?

i)           Did ACPA simply withdraw its data representatives?

[119]        In my view, the best evidence as to what transpired again comes from the reasons of the three arbitrators.

[120]        Chairman Keller provides the most complete description:

The Panel met in joint executive session on June 6 and in the afternoon of that day the Chair met individually with each of the nominees. Further meetings were set for June 7. On the morning of June 7 the Chair was asked to meet with Captain David Coles, the Chair of the ACPA merger committee. Captain Coles, speaking on behalf of the ACPA merger committee, stated that the committee was very upset because of the direction the award was heading and the process that was used to get there. As a result he said the committee was withdrawing from the proceedings since the ACPA committee considered that further participation would make no difference. The Chair informed Captain Coles that no final decision had yet been made with respect to the contents of the award but if the ACPA merger committee wished to no longer participate there was nothing he could do about it.

The Chair then informed the ALPA nominee of the ACPA decision and further informed the ALPA nominee that, given the withdrawal of ACPA, he would no longer seek input either from ALPA or their nominee. At that point the executive session was terminated.

The Chair wishes to reiterate what was said to Captain Coles: no final decision respecting the details of the award had been made at the time ACPA chose to no longer participate in the process. A general direction had been communicated to the nominees but there were a variety of ways that the general direction could go each with a different impact on each group. Indeed, the ACPA nominee, in discussions with the Chair on June 6, raised issues regarding those details that the Chair was planning to explore with ACPA on June 7. Regretably [sic] that was not possible due to the actions of ACPA and this award is therefore made without the benefit of the final input from ACPA that the Chair was looking forward to obtaining on June 7. [underlining added]

[121]        Mr. Vorster refers to the departure of the ACPA merger committee when he writes that "[t]he Chair may not have felt he could ask for the run after the ACPA Merger Committee stated it was no longer prepared to participate [...]" [underlining added]. Towards the end of his reasons, Mr. Vorster writes:

While it is unfortunate that tensions were allowed to reach that point, the ACPA Committee left on the last scheduled day of the executive session in this lengthy process. All the evidence had been received and the Chair had made it clear that no more submissions would be requested or accepted from either party. Any further information would be relayed through the nominees. [underlining added]

[122]        Mr. Pink describes the departure as follows:

During the last two days of the Executive Session, the Chair essentially engaged the nominees in more mediation on behalf of their parties as he continued to explore possible solutions. The mediation was conducted as described by the Chair in his decision and the express intention of the Chair was that after the completion of the final Executive Session, the Chair would make an ultimate decision on behalf of all parties unless he could achieve a consensus.

ACPA withdrew from the process to our shock and dismay. ACPA simply decided they were no longer going to participate because "ACPA did not like the direction in which the process was heading". This was how ACPA's position was described to the Board by the ACPA nominee. It was not a question of process. It was clearly an expression by the ACPA pilots that they felt that the ultimate decision would be unfavourable to them. How they could possibly have come to this conclusion when the Chair had not made his final decision is beyond me. There was much discussion going on in the Executive Session and the Chair had clearly indicated to this nominee that his mind was far from made up and he was attempting, even on the last day, to find a solution which would prove useful to both sides even if neither side would be happy with the ultimate decision.

[123]        In my view, it is not correct for Captain Whiteside to say that ACPA only withdrew its data representatives. I accept from the reasons of the three arbitrators, and find, that ACPA's withdrawal was more fundamental. The members of ACPA's merger committee that were present withdrew their participation.

ii)          As of June 6 and 7, 2003 what were the functions being performed by the two union nominees?

[124]        ACPA argues that at this time the interactive portion of the proceedings was over and that the panel was deliberating in an effort to reach its award.

[125]        Again, I do not accept that limited characterization. Rather, I find that the panel's executive sessions took on aspects of mediation with negotiations occurring among panel members with input from both unions. The evidence that supports this finding includes the following:

i)           The Chair's reasons, quoted above, to the effect that once ACPA left, he told ALPA's representative that he would no longer seek input from ALPA or its nominee. Implicit in this is that the Chair had been obtaining input from not only ALPA's nominee, but from ALPA during the executive sessions.

ii)          Mr. Vorster noted in his dissent that in addition to access to computer runs in open process during the hearing stage "[t]wo experts from either party would then be asked to provide continuing information in a confidential manner to the Panel only during the executive sessions". Mr. Vorster does not limit the continuing information to data runs.

iii)          Mr. Vorster noted as well that as of the last scheduled day of the executive session the "Chair had made it clear that no more submissions would be requested or accepted from either party". It follows that earlier in the executive sessions, submissions were being requested or accepted.

iv)         Mr. Pink stated that in the last two days of the executive sessions the Chair engaged the nominees in more mediation on behalf of the parties.

v)          Mr. Pink noted that as a result of discussions between the Chair and Mr. Vorster, the Chair was able to advise him that a "one-time adjustment" with respect to the Mitchnick award might be palatable. It follows from this that the Chair was meeting separately with the nominees, still in an effort to find common ground.

vi)         The Chair in his addendum stated:

5.              On the final weekend of the process, members of both merger committees were in attendance. Both nominees were communicating and getting their instructions from those committees. That was the way the process was set up and agreed upon by the parties.

When ACPA, a party to the proceedings, withdrew, they unilaterally ended the interactive portion of the process. In fact Mr. Vorster informed the other members of the panel that in light of the circumstances, he too felt he could no longer continue and he too was withdrawing and could no longer participate in the process. All that was left for me to do was to prepare a final decision.

ACPA's withdrawal from the process de facto ended the interactive part of the process. I could no longer do anything other than write the Award in the absence of a party, given that the process that had been established, and followed until that point, required the attendance and participation of both ALPA and ACPA. [emphasis in original]

[126]        Having found that as of the morning of June 7, 2003 the panel was still functioning interactively, with the union nominees each communicating with the representatives of the union that appointed them, and communicating separately with the Chair, I turn to the related issue of what the status of the award was when ACPA withdrew.

iii)         The status of the award

[127]        As quoted above, according to the Chair, at the time that ACPA withdrew, a general direction as to how he was going to find had been communicated to the nominees, but there were a variety of ways the general direction could go.

[128]        Captain Whiteside swears that, as of June 6, 2003 "both union nominees had told the Chair that they intended to issue dissenting awards" so that the Chair's decision would stand as the decision of the panel. Captain Whiteside's evidence is consistent with the Chair's addendum where at paragraph 6 he wrote:

6.              It is disingenuous to suggest the process was transformed somehow from a Panel to a single arbitrator. Regardless of what happened on the last day, it was evident virtually from the beginning that I would be writing an award with two dissents. The parties were never close to agreeing on anything and, unfortunately, neither were the nominees.

[129]        I find, therefore, that at least at the time ACPA withdrew (and perhaps earlier) it was the common expectation that the Chair would issue his own award, and each nominee would issue a dissent.

iv)         Did Mr. Vorster withdraw from the panel?

[130]        As noted above, Mr. Keller recited in his original reasons that, as a result of ACPA's withdrawal, he told ALPA's nominee that he would no longer seek input from either ALPA or its nominee. After those reasons were released and Mr. Vorster issued his dissent, Mr. Vorster made no complaint about that.

[131]        It was only in the addendum to his dissent that Mr. Vorster stated that he learned from Mr. Pink's dissent of the 7:00 a.m data run, and therefore observed that members of the panel had information not provided to him, so that he was improperly excluded from commenting upon crucial information that was "central" to the Chair's award. Mr. Vorster argues, in his addendum, that ACPA's withdrawal ought not to have had any effect on the process of the panel's future deliberations and that he did not withdraw as a member of the panel.

[132]        To this the Chair replied in his addendum that "Mr. Vorster informed the other members of the panel that in light of the circumstances, he too felt he could no longer continue and he too was withdrawing and could no longer participate in the process."

[133]        Mr. Pink in his dissent referred to the Chair seeing a final data run "after the ACPA member withdrew from the process".

[134]        I find on the basis of the reasons of the arbitrators described above that Mr. Vorster did not withdraw from the panel in the sense of resigning, or not preparing his own dissenting reasons. I do find, however, that Mr. Vorster withdrew from the interactive, mediation type proceeding that was continuing in the final days of the executive session. This finding is consistent with the remarks of the Chair and Mr. Pink in their reasons, is consistent with the Chair then deciding that he could no longer get any input from ALPA or its nominee (because ACPA and its nominee were not there to provide input) and is consistent with logic and common sense in that Mr. Vorster could no longer participate in a mediation or interactive session in the absence of ACPA. This finding is also consistent with the fact that all members of the panel knew that they would each be writing their own awards. There was, therefore, no need seen for any continued discussion among the panel members who had all already decided to write their own awards.

v)          The 7:00 a.m. data run

[135]        The circumstances surrounding the creation of this new data are described as follows by Mr. Pink:

However, it must be known where the process stood at the time of the withdrawal of ACPA. As ALPA's nominee, I was vigorously promoting the declining ratio methodology as a means of ameliorating the "Mitchnick effect" (to be discussed later). During the "final push" to conclusion, the Chair advised me that the concept of yearly re-ratioing or a fixed ratio was completely unacceptable to the ACPA nominee and could not form the basis of an agreement. However, the Chair advised that the ACPA nominee felt that if there was a "one-time adjustment", this may be more palatable.

ALPA had recommended a declining ratio of six bases points per year totalling 30 basis points over a five-year period.

At my request, the ALPA computer committee did a "run" of the effect of a one-time ratio reduction of 30 bases points off the actual ratio as in effect on October 17, 2000, applied to those pilots who remained employed with the new Air Canada.

[136]        Mr. Pink also confirms that the Chair saw that final data run. He writes:

The fact is that the Chair did see the final run of the ALPA proposal. This was done after the ACPA member withdrew from the process. The ACPA computer committee, having left the process, could provide no analysis or comment. They simply "picked up their bat and went home". It is wrong for anyone to suggest that the Chair had no idea or had no run of the final proposal. He was shown a run performed of the final ALPA proposal. This run was done at 7:00 a.m. on the last day of the Executive Session by the computer committee of ALPA at my request. It was done in anticipation of discussions which would take place later that morning. The last "run" that the Chair saw was more favourable to the ALPA position than the ultimate conclusion reached by the Chair.

[137]        The Chair's addendum is consistent with this. Mr. Keller wrote:

7.              On the final Friday discussions with my colleagues, Mr. Pink reiterated to me and Mr. Vorster the "final" position of his clients was a re-ratioing over a five year period. Needless to say, Mr. Vorster objected to the proposal strenuously. That objection was again made to me forcefully in my later discussions with Mr. Vorster. I had arranged to have separate discussions with both Messrs. Pink and Vorster in an attempt to bridge the gap and to find any common ground. During my Friday discussion with Mr. Vorster, in the absence of Mr. Pink, it was suggested that rather than a five year re-ratioing of the list perhaps a one time re-ratioing might be more palatable. It was left at that and was going to be further explored the next day.

I advised Mr. Pink of the idea, namely a one time re-ratioing and he undertook to have ALPA prepare a separate run and to have it available for the next day's discussions. That was apparently done early Saturday morning and presented to me when I arrived that morning. It was to be the subject of further discussions with my colleagues. That discussion, for reasons recounted earlier, never took place. The end result is that while I had the "run" it was never the subject of any discussion between me and Mr. Pink, or between me and the ALPA technical committee. In any event, it bears repeating that whatever was in the "run" was not the basis on which the Award was ultimately formulated.

[138]        I find on this evidence that an additional data run was requested by Mr. Pink, was obtained by him, and was provided to the Chair. It was not provided to Mr. Vorster.

vi)         The effect of the failure of Messrs. Keller and Pink to provide the final data run to Mr. Vorster

[139]        Because Mr. Vorster did not resign as an arbitrator, he was entitled to be provided with the 7:00 a.m. data run for his own information, and so that he could, in the normal course, express his own view on that data run to the Chair and to Mr. Pink. Procedural fairness required that all members of the panel have this document. The issue then becomes whether the failure to have provided a copy to Mr. Vorster should vitiate the Chair's award.

[140]        The following facts are, in my view, relevant to that decision. First, I find the error (of not providing the document to Mr. Vorster) to be serious, but I do not find that it arose out of any mala fides. It occurred because ACPA withdrew from the process, followed by Mr. Vorster's withdrawal from the interactive process, followed by Mr. Keller's advice to Mr. Pink that he would no longer seek input from either ALPA or its nominee. It was in this process that the 7:00 a.m. data run was not provided to Mr. Vorster, perhaps through oversight or the view that, because ACPA had withdrawn so that the interactive process was over, there was no longer any purpose to be served by providing such data run for discussion purposes.

[141]        Second, I accept the Chair's statements that he never discussed the data run with Mr. Pink, or with the ALPA representatives, and that it was not the basis upon which he formulated his award. Mr. Vorster had, I have found, withdrawn from the interactive process. That evidence does not establish that any different award would have resulted if Mr. Vorster had seen the data run. I therefore find, on a balance of probabilities, that if the data run had been provided to Mr. Vorster, the Chair's award would not likely have changed in any substantial fashion.

[142]        While the duty of procedural fairness required the document to be shown to Mr. Vorster, and while ordinarily the consequence of any breach of the duty of fairness is to vitiate the process, this is not inevitably so. In Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at page 228 the Supreme Court of Canada quoted with approval the statement that "it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless".

[143]        I have found that the wrongly withheld data run would not likely have resulted in any different outcome if provided on a timely basis to Mr. Vorster. This is a significant factor to consider when determining whether vitiating the award on this ground is warranted.

[144]        Further, I accept the submission of ALPA that judicial review is not directed exclusively to vindicating individual rights. As noted in Brown & Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998) at pages 3-1 to 3-2 "[t]he public interest in good government, including the principle that it should be conducted according to law, has been an equally important factor in the development of the law of judicial review". It is settled law that relief in an application for judicial review is discretionary.

[145]        In its decision CIRB No. 263 cited above, the Board concluded that:

57             To decide whether or not the Board should review the Keller award, even on a limited basis, the Board must also take into consideration the objectives of the Code as set out in its Preamble. The Code states that labour policy and legislation is designed to promote not only free collective bargaining but the constructive settlement of disputes. The Code further supports sound labour-management relations. The basis for the creation of an administrative tribunal to deal with these fundamental issues is to avoid the long and drawn out processes before the courts and provide for a timely and expert forum for resolving labour disputes, so as to avoid disruption, except under certain limited conditions, of not only the employer's operations but the livelihood of organized workers, which are recognized as joint contributors to the economic well-being of this country.

58             Dealing in labour relations, as in all human relations for that matter, is not an exact science. It requires give and take. There is a point in any process where the parties must either resolve their dispute or accept that they have obtained maximum gains. There is also a time when common sense must prevail.

59             The seniority dispute of the Air Canada pilots has been before this Board since the year 2000. This is now 2004 and the matter is not yet settled. The pilots have continuously been in one proceeding or another since that time, be it case management conferences, hearings, judicial reviews or written submissions, all to no avail. Their written submissions fill several filing cabinets. Their counsel have pleaded every authority that could possibly be relied upon. Their case has been extensively reviewed, by not only the former Chairperson of this Board but by the civil courts. Additionally, the pilots have had the benefit of presenting their case before seasoned decision-makers. Arbitrator Mitchnik is the former Chairperson of the Ontario Labour Relations Board; Arbitrator Keller is a former Vice-Chairperson of the former Canada Labour Relations Board. Both are considered prominent and well respected labour arbitrators.

60             There will never be a "perfect" decision or one that will satisfy all. That is the nature of the decision-making process. While the parties may not have chosen the Board panel, they certainly had the choice of the independent arbitrators on whom they relied to make a decision on their behalf. A cursory review of the Keller award shows that the arbitrator considered Board Decision no. 183 extensively and cites relevant previous jurisprudence on the principles to be applied. Not only does arbitrator Keller consider the Mitchnik award itself, he also takes the perspective of subsequent events and their effect on the context of this decision.

61             The decision of another panel of the Board reviewing the Keller award would be but just another educated point of view and would require that the Board engage once more in relitigating the entire case put before not only a previous panel of the Board, but before two arbitration panels as well. Furthermore, there is no guarantee that a decision of a review panel will provide a satisfactory conclusion. If history is to be relied upon, it will likely ignite yet another round of review.

62             In this regard, the Board must agree with ALPA that reviewing the Keller award is not a simple case of making a few adjustments to the award, but would require assessing the complex balance of the award's entire result.

63             In light of the pilots' submissions, as represented by the merger committees, the Board is of the view that the issues now underlying the pilots' dissatisfaction with either of the arbitrators' awards or the Board's decisions are based on financial considerations, that is, their rank on the seniority list, not a breach of their rights under the Code. The pilots have been afforded every opportunity under section 18.1(2) of the Code, to come to an agreement with respect to an integrated seniority list for the two pilot groups which now form Air Canada. Air Canada has in turn abided by the seniority ranking decided by each of the arbitral awards. The Board is, therefore, satisfied that the conditions of section 18.1(2) of the Code have been met in that the Keller protocol herein represents an agreement of the parties to resolve the pilots' seniority dispute.

d) Disposition

64             For these reasons, the Board defers to the conclusions reached by the Keller award, rules that it has exhausted any residual jurisdiction concerning the seniority integration process and decides that it will not exercise any discretion to embark upon an inquiry on the issue of the seniority integration of its own motion.

[146]        This decision articulates sound policy reasons for withholding relief. Most particularly, there is a public interest in bringing finality to this dispute. As well, in light of the Board's views that: common sense must prevail; the decision of another panel of the Board reviewing the award would be "just another educated point of view"; and the conditions of subsection 18.1(2) of the Code had been met; a significant question is raised as to the efficacy of remitting the award to the Board for review as ACPA asks.

[147]        Therefore on the basis that I am not satisfied that the breach of fairness affected the outcome, and weighing the public policy issues and the questionable efficacy of the relief sought, in the exercise of my discretion, I decline to grant the relief sought, notwithstanding the failure to provide the 7:00 a.m. data run to Mr. Vorster.

CONCLUSION

[148]        For these reasons, the application for judicial review will be dismissed.

[149]        Each side seeks costs, but no submissions as to costs were made at the oral hearing. In the result, the respondent Air Line Pilots Association shall have 14 days from receipt of these reasons to serve and file written submissions with respect to costs. Thereafter, the Air Canada Pilots Association shall have 14 days to serve and file responsive submissions. Following receipt of those submissions the Air Line Pilots Association shall have 5 days to serve and file any reply submissions.

[150]        Following consideration of those submissions, an order will issue dismissing the application for judicial review and disposing of the issue of costs.

"Eleanor R. Dawson"

______________________________

Judge

Toronto, Ontario

May 20, 2005

AMENDED

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1261-03

STYLE OF CAUSE:             AIR CANADA PILOTS ASSOCIATION

Applicant

and

AIR LINE PILOTS ASSOCIATION and

AIR CANDA

Respondents

PLACE OF HEARING:                     OTTAWA, ONTARIO

DATE OF HEARING:                       NOVEMBER 22, 2004

REASONS FOR ORDER BY:          DAWSON, J.

DATED:                                              MAY 20, 2005

APPEARANCES BY:

Mr. Steve Waller                                   FOR THE APPLICANT

Ms. Ainslie Benedict                              Air Canada Pilots Association

Mr. Paul Cavalluzzo                               FOR THE RESPONDENT

Mr. James Hayes                                   Air Line Pilots Association

No appearance                                     FOR THE RESPONDENT

Air Canada

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP                              FOR THE APPLICANT

Barristers & Solicitors                            Air Canada Pilots Association

Ottawa, Ontario

Cavalluzzo Hayes Shilton McIntyre                    FOR THE RESPONDENT

   & Cornish                                                      Air Line Pilots Association

Barristers & Solicitors

Toronto, Ontario