CITATION: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552
DIVISIONAL COURT FILE NO.: 332/13
DATE: 20140423
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, POLOWIN AND LEDERER JJ.
BETWEEN:
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT Applicant
– and –
AIR CANADA
-and –
ARBITRATOR M. BRIAN KELLER Respondents
Tim Gleason and Megan Reid, for the Applicant
Douglas G. Gilbert and John Craig, for the Respondent, Air Canada
HEARD at Toronto: April 23, 2014
LEDERER J. (ORALLY)
[1] Air Canada wished to commence a new low cost service. CUPE and Air Canada negotiated a memorandum of agreement providing for the conditions and terms for the cabin personnel. The parties could not agree on five terms for the new employees. One of these was the per diem to be paid as a meal allowance. It was submitted to interest arbitration.
[2] The union proposed that the per diem should be the same as provided to those who staffed its main line operation. Air Canada suggested the per diem in effect at a competitor (Canjet) plus $1.00. The arbitrator rejected both proposals. He determined that the per diem should be equal to the principal comparators. He stated that he remained seized of the issue in the event that the parties were unable to agree on the comparators. They were not and the matter was remitted back to the arbitrator.
[3] The arbitrator convened a second hearing; this one by telephone, The union took the position that the per diems of another competitor (Air Transat) should apply. The company was prepared to accept the union’s original proposal to apply the mainline rates. Over the objections of the union, the arbitrator accepted the position of Air Canada and imposed the per diem utilized in the mainline operation.
[4] In response the union has brought this application for judicial review. As the union sees it, the Arbitrator was functus officio (his mandate had expired because he had accomplished its purpose) and without jurisdiction to reconsider the matter. It was no longer open to the Arbitrator to reverse his previous award and allow the issue to be determined by looking inward at Air Canada when he had previously required that the issue be dealt with looking outward at low cost comparators.
[5] We disagree.
[6] The doctrine of functus officio favours the finality of decisions. Once a final decision has been issued the matter may only be reopened by means of appeal. There are at least two exceptions: a court may correct slips and address errors in expressing its manifest intent (see: Nova Scotia Government and General Employees Union v. Capital District Health Authority 2006 NSCA 85 at para. 36 referring to Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186). The cases recognize that the doctrine does apply to adjudicative administrative tribunals while acknowledging that in the absence of full rights of appeal the underlying rationale is finality. This means that in the administrative law sphere functus officio has been applied with greater flexibility and less formalism than in relation to court orders (see: Nova Scotia Government and General Employees Union v. Capital District Health Authority, supra at para. 38:
“Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.”
(see: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at 862).
[7] What is the standard of review to be applied in considering whether a tribunal, in making a further or supplementary order, has failed to recognize the principle that decisions are to be final? Was the decision made without the proper application of an exception of the doctrine of functus officio? “…[A]bsent some error in legal principle…on which the board had to be correct, its determination of whether the initial award gave effect to its manifest intent should be reviewed for reasonableness.” (see: Nova Scotia Government and General Employees Union v. Capital District Health Authority, supra at para. 52).
[8] In this case the intention fundamental to the decision of the arbitrator was not to “look out” or “look in” it was that the new low cost service had the ability to compete successfully with other domestic low cost carriers. The decision on the initial award accepts the submission that “…the Union’s proposal would undermine the fundamental objective of lower-cost” and the understanding that: “Comparable per diems would meet the test of competiveness.” (see: Air Canada [Employer] v. CUPE, Airline Component (Union) And in the Matter of Rouge; the original Award).
[9] The Supplementary Award is demonstrably in furtherance of the manifest intention to recognize the low cost requirement of the new service. The comparator proposed by the union, at the second hearing, would result in a cost to the employer that is nearly 150% of what is available to mainline flight attendants. The Arbitrator noted:
Regardless of how the issue is characterized it is evident that there is an inherent contradiction within the award that requires clarifying. The initial award provides the background to the dispute. It also provides, in detail, the agreements of the parties to the focus of their bargaining and the terms by which outstanding matters could be resolved at arbitration. It further provides, in its reasons, the determination that low-cost is critical to the validity of the new, low-cost, airline. The award attempts to remain faithful, in that respect, to the intent and instructions of the parties.
It is now apparent that the award on per diems does not accomplish my over-all desired results.
(Air Canada [Employer] v. CUPE, Airline Component (Union) And in the Matter of Rouge: Supplementary Award pp.2-3)
[10] This is not a case where the Arbitrator changed his mind. His Supplementary Award clarifies and corrects that error and reflects the manifest intention of the original award. In the absence of an appropriate comparator the Arbitrator did this by awarding, as the per diem, the same rate as the mainline. He was not functus and was within his jurisdiction in doing so. Moreover, this can hardly be said to be inappropriate or unreasonable when it represents what the union initially proposed.
[11] The decision meets the applicable standard of review. It “…falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (see: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 47).
[12] The application is dismissed.
ASTON J.
[13] I have endorsed the Application Record on behalf of the panel, “This application is dismissed for oral reasons given by Lederer J. The applicant is to pay costs fixed at $10,000 all inclusive.”
ASTON J.
POLOWIN J.
LEDERER J.
Date of Reasons for Judgment: April 23, 2014
Date of Release: April 25, 2014
CITATION: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552
DIVISIONAL COURT FILE NO.: 332/13
DATE: 20140423
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, POLOWIN AND LEDERER JJ.
BETWEEN:
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT Applicant
– and –
AIR CANADA
-and –
ARBITRATOR M. BRIAN KELLER Respondents
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: April 23, 2014
Date of Release: April 25, 2014