Date: 20070619
Docket: A-392-06
Citation: 2007 FCA
242
CORAM: DÉCARY J.A.
LINDEN J.A.
SEXTON J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Appellant
and
AIR LINE PILOTS ASSOCIATION
and
AIR CANADA
Respondents
Heard at Vancouver, British
Columbia, on May 30, 2007.
Judgment delivered at Ottawa,
Ontario, on June 19, 2007.
REASONS FOR JUDGMENT BY: DÉCARY
J.A.
CONCURRED
IN BY: LINDEN J.A.
SEXTON
J.A.
Date: 20070619
Docket: A-392-06
Citation: 2007 FCA 242
CORAM: DÉCARY
J.A.
LINDEN J.A.
SEXTON
J.A.
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Appellant
and
AIR LINE PILOTS ASSOCIATION
and
AIR CANADA
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
This
application for judicial review by the Air Canada Pilots Association (ACPA) is
in respect of Reconsideration Decision no. 360 issued September 1, 2006
(Decision 360) by the Canada Industrial Relations Board.
[2]
The
relevant facts of this case have been set out in the reasons for judgment of
this Court issued in File A-144-06, which dismisses an application for judicial
review filed with respect to the original decision of the Board, issued March
10, 2006 (Decision 349).
[3]
As found
by this Court in Air Line Pilots Assn. v. Air Canada Pilots Assn., 2003 FCA 160, at paragraph
28, the standard of review is patent unreasonableness.
[4]
One has to
start with the premise that the Board itself, in sections 44 and 45 of the
Canada Industrial Relations Board Regulations, 2001 (SOR/2001-520), has set out
the circumstances under which it might accept to reconsider a decision:
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APPLICATIONS
FOR RECONSIDERATION
44. The circumstances under which an application
shall be made to the Board exercising its power of reconsideration under
section 18 of the Code include the following:
(a) the
existence of facts that were not brought to the attention of the Board, that,
had they been known before the Board rendered the decision or order under
reconsideration, would likely have caused the Board to arrive at a different
conclusion;
(b) any error
of law or policy that casts serious doubt on the interpretation of the Code
by the Board;
(c) a failure
of the Board to respect a principle of natural justice; and
(d) a decision
made by a Registrar under section 3.
45. (1) In
addition to the information required for an application made under section
10, an application for a reconsideration must set out any arguments
supporting the application that may address one or more of the circumstances
referred to in section 44.
(2) The application
must be filed within 21 days after the date the written reasons of the
decision or order being reconsidered are issued.
(3) The application
and the relevant documents must be served on all persons who were parties to
the decision or order being reconsidered.
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DEMANDES DE
RÉEXAMEN
44. Les circonstances dans lesquelles une demande
de réexamen peut être présentée au Conseil sur le fondement du pouvoir de
réexamen que lui confère l'article 18 du Code comprennent les suivantes :
a) la
survenance de faits nouveaux qui, s'ils avaient été portés à la connaissance
du Conseil avant que celui-ci ne rende la décision ou l'ordonnance faisant
l'objet d'un réexamen, l'auraient vraisemblablement amené à une conclusion
différente;
b) la
présence d'erreurs de droit ou de principe qui remettent véritablement en
question l'interprétation du Code donnée par le Conseil;
c) le
non-respect par le Conseil d'un principe de justice naturelle;
d) toute
décision rendue par un greffier aux termes de l'article 3.
45. (1) En plus des renseignements exigés pour
toute demande présentée aux termes de l'article 10, la demande de réexamen
énonce les moyens qui la sous-tendent, lesquels peuvent mettre en jeu une ou
plusieurs des circonstances visées à l'article 44.
(2) La demande est déposée dans les vingt et un jours suivant la date
où les motifs de la décision ou de l'ordonnance réexaminée sont rendus.
(3) La demande et les documents à l'appui doivent être signifiés aux
personnes qui étaient des parties à l'instance ayant donné lieu à la décision
ou à l'ordonnance réexaminée.
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(Section 44 has recently been examined by this Court in Vidéotron
Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90)
[5]
In Lamoureux
v. Canadian Airline Pilots Association, [1993] F.C.J. No. 1128 (F.C.A.),
where the applicant had only challenged the reconsideration decision, this
Court found that the applicant could not make use of that challenge to call the
original decision into question and had to restrict himself to grounds arising
out of the reconsideration decision.
[6]
In Vidéotron
(supra), an applicant who had unsuccessfully sought reconsideration of an
original decision brought an application for judicial review solely with
respect to the original decision. This Court found that absent a challenge to
the reconsideration decision the Court could not set aside the original
decision. The Court then observed that the practice generally followed in this
Court was to file two concurrent applications for judicial review, one with
respect to the original decision, the other with respect to the reconsideration
decision, and to join them for a hearing.
[7]
In the
case at bar, ACPA has followed the general practice. The Court was therefore
seized with two applications for judicial review. The Court having dismissed
the application with respect to the original decision, judicial review of the
reconsideration decision can obviously not succeed unless the arguments raised
were not and could not have been raised in the first application for judicial
review. Because of the different purposes of the two proceedings before the
Board, it is not impossible, though it would be a rare event, for an applicant
to succeed on the second application despite his failure in the first.
[8]
In the
case at bar, ACPA sought reconsideration on the following grounds:
1)
the Board
had failed to address the issue of the Board’s jurisdiction under section 16(p)
of the Code; and
2)
the Board
had adopted without any analysis the original panel’s obiter dicta as
justification for refusing to reconsider Decision 349.
[9]
These grounds
are substantially similar to those already dismissed in A-144-06. They can no
more succeed the second time around than they did the first time.
[10]
Counsel
for ACPA has suggested, in his memorandum of fact and law and at the hearing,
that the Board, in the process leading to its original decision, had violated
the rules of natural justice by not giving ACPA the opportunity to present
evidence on the issue of change of circumstances.
[11]
This
argument was not relied upon by ACPA in its application for judicial review of
the original decision. The reconsideration process is not meant to allow
parties to submit arguments that they could have raised, and failed to raise,
at the first opportunity.
[12]
In any
event, the record speaks for itself. ALPA had sought an oral hearing before the
Board with respect to its three applications/complaints. ACPA resisted such a
hearing and the Board decided to hear the matter without any oral hearing. The
issues were all canvassed in the written submissions of the parties. It would have
been open to ACPA to file further evidence and make additional representations.
ACPA did not use the opportunity.
[13]
Counsel
for ALPA sought costs in his memorandum on a solicitor-client basis. While I
agree that these continuous attacks on the Keller Award have been
counter-productive, I am not prepared yet to decide that they achieved the
degree of misconduct or abuse that opens the door to an award of costs on a
solicitor-client basis.
[14]
I would
dismiss the application for judicial review of the reconsideration decision with
costs payable by ACPA to ALPA.
“Robert
Décary”
“I
agree.
A.M. Linden.”
“I
agree.
J. Edgar Sexton.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-392-06
STYLE OF CAUSE: Air Canada Pilots Ass. v.
Air Lines Pilots Ass. et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF
HEARING: May
30, 2007
REASONS FOR
JUDGMENT BY: DÉCARY
J.A.
CONCURRED IN BY: LINDEN
J.A.
SEXTON J.A.
DATED: June 19, 2007
APPEARANCES:
Louis J. Zivot FOR
THE APPLICANT
N. David McInnes
Paul J. J. Cavalluzzo FOR
THE RESPONDENT,
James K. A. Hayes AIR
LINE PILOTS
ASSOCIATION
Jillian Frank FOR
THE RESPONDENT,
AIR
CANADA
SOLICITORS
OF RECORD:
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Lang Michener
LLP
Vancouver, B.C.
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FOR THE
APPLICANT
|
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Cavalluzzo Hayes Shilton McIntyre &
Cornish LLP,
Toronto, Ontario
Heenan Blaikie
LLP
Vancouver, B.C.
|
FOR THE RESPONDENT,
AIR LINE
PILOTS ASSOCIATION
FOR THE
RESPONDENT,
AIR CANADA
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