CITATION: Canadian Union of Public Employees v. Air Canada, 2019 ONSC 4613
COURT FILE NO.: 394/18
DATE: 20190801
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Thorburn, Myers and Favreau JJ
B E T W E E N :
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT
Applicant
– and –
AIR CANADA AND ARBITRATOR LARRY STEINBERG
Respondents
Sean Dewart and Adrienne Lei
for the applicant
Christopher D. Pigott and Rachel Younan
for the Respondent Air Canada
HEARD: May 29, 2019
FAVREAU J.:
Overview
[1] The applicant, the Canadian Union of Public Employees, Air Canada Component ("CUPE"), seeks judicial review of an arbitration award made by arbitrator Larry Steinberg on April 13, 2018, dismissing the Union's grievance against the respondent, Air Canada.
[2] CUPE represents flight attendants employed by Air Canada. CUPE claims that, during collective bargaining in 2011, Air Canada promised not to award travel passes with a higher priority to any other group of unionized employees. In 2014, Air Canada granted three B1/J10 travel passes per year for 10 years to the Air Canada Pilot's Association (the "APCA"), which is the union that represents pilots employed by Air Canada. The B1/J10 passes give pilots higher priority than the usual passes given to flight attendants and pilots for commuter and personal travel. CUPE claims that Air Canada thereby breached the promise it made to the flight attendants in 2011.
[3] While the Arbitrator found that Air Canada did make a promise to CUPE in relation to passes for commuting, he found that the scope of the promise did not extend to the passes awarded to the pilots because the passes do not give pilots general access to higher priority commuting but, rather, the passes were a discretionary reward that Air Canada gave to the pilots following a successful round of collective bargaining.
[4] CUPE argues that the Arbitrator's finding that the passes granted to the pilots did not fall within the scope of the promise was unreasonable and, in addition, that he failed to address the Union's claim that Air Canada's award of the passes to the pilots discriminated against the flight attendants on the basis of sex. Air Canada argues that the Arbitrator's decision was reasonable and that the discrimination issue was not a live issue at the arbitration.
[5] For the reasons that follow, the application for judicial review is dismissed.
Background
Employee travel program
[6] Air Canada gives various types of travel passes to its employees. The travel passes carry different levels of priority. In combination, a pass's level of priority, an employee's seniority and other factors, determine if an employee will be allocated a seat on a flight and the class of travel.
[7] Passes can be either for business or personal uses.
[8] Business purposes include "deadheading", which occurs when employees travel as passengers to reach a location in order to operate a flight. When travelling for business purposes, the employee is guaranteed a seat. Until 2004, flight attendants and pilots held passes that were equal in priority for deadheading. Their passes gave them a confirmed seat in the economy class ("Y class"), with an opportunity to upgrade to business class when space was available ("J Class"). J Class seats were allocated based on seniority, regardless of whether the employee was a flight attendant or a pilot. However, in 2005, Air Canada and the APCA negotiated a higher priority for pilots when deadheading. This agreement was a source of bitterness on the part of flight attendants.
[9] Personal purposes include commuting and leisure travel. All flight attendants and pilots receive an unlimited number of passes for personal travel, which are referred to as C2 passes. These are Y class passes that do not include a right to upgrade to J class. They also do not guarantee a seat.
[10] In addition to these travel programs, Air Canada provides special personal passes or modifies the terms and conditions applicable to travel passes for specific employee groups on a discretionary basis from time to time. Air Canada claims that these discretionary special passes are awarded to groups of employees in recognition of various achievements and successes.
2011 Collective bargaining
[11] In 2011, CUPE and Air Canada were engaged in collective bargaining to renew their collective agreement. CUPE had heard rumours that the APCA, which was also involved in collective bargaining at the time, was negotiating a higher commuting priority for its members. Given the history of what happened with the deadheading priority, CUPE wanted to ensure that its members would also receive higher commuting priority.
[12] As part of the negotiations, CUPE submitted two proposals that were meant to ensure that Air Canada would give its members the same travel priority increases it gave to pilots. These were referred to as "me-too" proposals.
[13] CUPE's first proposal, made on April 6, 2011, stated that "If any group receives a higher pass priority for personal use, including commuting, CUPE shall receive the same benefits".
[14] The second proposal was made on May 26, 2011, and provided as follows:
5.01.01 If, during the term of the Collective Agreement, any other employee group or part thereof receives any across the board payment or benefit increase, including pass travel privileges, or any enhanced work rule, then the members of the Union shall receive an equivalent payment or benefit, or enhanced work rule.
[15] CUPE and Air Canada negotiated through the night of July 31, 2011 and August 1, 2011. During those negotiations, Air Canada advised CUPE that it was not negotiating a higher commuter priority with the pilots. Air Canada also made a representation that it would not give a higher travel priority to one union over another union in the future. The scope of that commitment is at the heart of the dispute between the parties and is addressed further below.
[16] CUPE then withdrew its "me-too" proposals, and a tentative agreement was reached. The agreement was not ratified by CUPE’s members, and the collective agreement was ultimately settled by arbitration on November 7, 2011.
2014 passes awarded to pilots and grievance
[17] In 2014, after Air Canada and the ACPA completed a collective bargaining agreement, Air Canada granted three B1/J10 travel passes per year for 10 years to the members of the ACPA. These passes give pilots a higher priority for personal travel, including commuting, than the C2 passes the flight attendants and pilots are generally entitled to.
[18] Relying on the promise made by Air Canada during the 2011 negotiations, CUPE requested that the same passes be provided to its members. Air Canada refused, after which CUPE filed a grievance claiming that Air Canada was required to give the same number of B1/J10 passes to the flight attendants as it had provided to the pilots.
Arbitration award
[19] The Arbitrator released his decision dismissing the grievance on April 13, 2018.
[20] The evidence on the arbitration included a number of will-say statements on behalf of witnesses for both parties. Some of those witnesses were cross-examined.
[21] In his decision, the Arbitrator reviewed Air Canada's travel pass program, the history of collective bargaining between the parties and the evidence of what was said during two meetings that took place early on the morning of August 1, 2011.
[22] Ultimately, the Arbitrator found that Air Canada's promise was "narrow in scope":
[109] I find that Morey's representation was narrow in scope. It was in respect of the very concerns that had been expressed by the union and the rationale for the me-too proposals. He represented that the employer would not negotiate a commuting priority with ACPA during collective bargaining and it did not do so. His promise did not extend to a representation that the employer would fetter its discretion to grant travel privileges. If the union had clarified at the time that it understood Morey's promise to extend that far, I have no doubt that TA1 would not have agreed to.
[110] The conversation regarding this particular issue lasted no more than five minutes. In the context of the relationship between the parties on this issue, the realities of collective bargaining and the words he words [sic] he used, it is not possible to conclude that the representation was as broad as the union asserts in this case.
[111] It is a fact that the union proposal that was withdrawn was broad enough to include the passes at issue here. However, that does not, on the facts of this case, give any greater breadth to the promise that was made. Even if the union intended, by the proposals, to include the employer's historical practice of awarding passes for personal travel, the promise that made [sic] was much narrower and did not include that practice.
Standard of review
[23] The parties agree that the standard of review is reasonableness. I agree. In EllisDon Corp. v. Ontario Sheet Metal Workers' and Roofers' Conference, 2014 ONCA 801, at para. 40, the Court of Appeal emphasized that "the unique context of labour relations requires that arbitrators and labour boards receive a high degree of deference on judicial review”.
[24] The issue to be decided in this case is whether the Arbitrator made an error when he found that Air Canada's promise did not extend to the passes awarded to the pilots in 2014. This required the Arbitrator to make factual determinations about the scope of Air Canada's promise and to apply the doctrine of promissory estoppel to the evidence before him.
[25] In Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, the Supreme Court of Canada recognized that labour arbitrators have expertise in applying the doctrine of estoppel in the context of labour disputes. At paras. 5-6, the Court held that arbitrators’ expertise allows them to apply estoppel in a flexible manner that is adapted to the labour context:
5 Labour arbitrators are not legally bound to apply equitable and common law principles -- including estoppel -- in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations.
6 To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.
[26] Pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, the decision of an administrative decision maker is reasonable if it is justified, transparent and intelligible, and if it "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".
Analysis
[27] There are two issues to be decided in this case:
a. Whether the Arbitrator's finding that Air Canada's promise does not apply to the passes granted to the pilots in 2014 was reasonable; and
b. Whether the Arbitrator erred in not addressing the claim that Air Canada discriminated against the flight attendants on the basis of sex.
Whether Air Canada's promise included the passes awarded to the pilots
[28] The Arbitrator concluded that the promise made by Air Canada was narrow in scope and did not extend to the passes awarded to the pilots in 2014. The Arbitrator found that the promise made by Air Canada in 2011 was that no other bargaining unit would be given a higher class of travel privilege for commuting, but that this does not preclude Air Canada from giving out special passes for personal travel that carry a higher level of priority. In reaching this conclusion, the Arbitrator found that Air Canada's promise was meant to address the Union's concern that the pilots were negotiating a higher priority of commuting privileges. He thereby drew a distinction between the classes of travel privileges to which flight attendants and pilots are generally entitled, and special passes Air Canada awards from time to time on a discretionary basis to its employees in recognition of various achievements and successes.
[29] In my view, the Arbitrator's decision is reasonable. It was based on a comprehensive review of the relationship between the parties and the evidence of negotiations in 2011. Ultimately, the scope of the promise is a factual finding to which deference is owed. The Arbitrator had the expertise to appreciate the labour context in which the promise was made. The decision is justified, transparent and intelligible, and falls within the range of reasonable outcomes.
[30] The Arbitrator relied on the test for promissory estoppel in the context of labour arbitrations set out in Telus Communications Inc. v. Telecommunications Workers Union (2010), 201 LAC (4th) 15, at para. 137:
… The question of whether, in all the circumstances, there has been conduct that amounts to a representation that has been relied upon to the claimant's detriment is a matter of fact and judgment based on the practical realities of bargaining. The fact the practice is long standing, or involves compensation of some form is a relevant consideration, but neither is decisive as a matter of law.
[31] In this case, there is no dispute that Air Canada made a representation to CUPE, and that CUPE relied on that representation to its detriment by giving up the "me too" clauses it requested during the 2011 negotiations. The key issue on the arbitration was the scope of the representation -- or promise -- made by Air Canada.
[32] In finding that the scope of the promise was narrow and did not extend to the passes Air Canada gave the pilots in 2014, the Arbitrator conducted a detailed review of the context in which Air Canada made the promise.
[33] The Arbitrator started with the history of bargaining between CUPE and Air Canada. He looked at the origin of "me-too" clauses, finding that they started in 2003 and 2004, at a time when Air Canada was in CCAA protection. At that time, while recognizing that negotiating a better collective agreement was unrealistic, CUPE wanted to ensure no other union was able to get improved wages or benefits. In that context, the parties entered into a memorandum of understanding that provided that any increases in wages and benefits Air Canada gave to another employee group would also be given to CUPE.
[34] The Arbitrator found that the negotiations in 2011 were the first round of "normal" negotiations. Air Canada was out of CCAA protection and CUPE hoped to obtain a better deal than its previous collective agreement. The Arbitrator made a finding that "me-too" clauses made sense when Air Canada was in financial difficulties, but not once it was out of CCAA protection.
[35] The Arbitrator then reviewed Air Canada's employee travel program, including the employees' entitlement to business travel and personal travel privileges described above. In this context, he addressed the business travel priority passes that Air Canada negotiated with the pilots in 2005. The Arbitrator explicitly recognized that CUPE's members felt that this deal was unfair and that Air Canada was aware of those feelings:
[23] It is not surprising that this has been a matter of ongoing bitterness and upset among the flight attendants. It is seen by them as an indication of a lack of respect for the work they do, a failure to recognize their contribution to the success of the employer and a failure to reward long service with the company. The feelings of the bargaining unit are well known to the employer.
[36] When describing the travel programs, the Arbitrator drew a distinction between the business and personal travel programs on the one hand and the special passes Air Canada gives to its employees from time to time. After describing the business and personal travel programs, he described the circumstances in which Air Canada awards special personal passes as follows:
[26] In addition to its system-wide travel program, the employer will, from time to time, provide special personal passes or modify the terms and conditions applicable to travel passes to specific employee groups in recognition of accomplishments or superior performance.
[27] Vezina provided the following examples: a) in December 2013 members of the union were issued a pass with higher priority (and upgrade privileges) than the C2 basic pass for winning an industry award as best flight attendants in North America; b) after collective bargaining in 2015, the members of the union were awarded two passes per year with higher priority (and upgrade privileges) than the basic C2 pass as a thank you for agreeing to a 10-year collective agreement; c) members of the union who work Christmas and/or New Years Day receive a pass with a higher priority (and upgrade privileges) than the C2 pass for each day worked; and d) in 2016 special passes were awarded to the employees represented by Unitor and IAMAW in recognition of the ratification of long-term agreements.
[37] The Arbitrator then reviewed the evidence of the 2011 negotiations, with a focus on discussions about travel passes. He referred to CUPE's concerns about the rumour that Air Canada and the pilots were negotiating a higher priority for commuting, and found that Air Canada was aware of this rumour. He reviewed the attempts CUPE made to obtain a me-too provision dealing with travel passes. He then focused on the evidence from both parties of the negotiations that took place during the meetings early in the morning of August 1, 2011.
[38] He first made a finding that an earlier conversation between a union representative, Daniela Scarpelli, and an Air Canada representative, Michael Abbott, was irrelevant:
[50] Scarpelli testified that "during the very early hours of the morning of August 1st she spoke with Michael Abott ("Abott"), Director Labour relations for the employer, during a meeting with Morey and Taylor. Scarpelli testified that Abott indicated that the employer "would not give another employee group better travel passes that [sic] flight attendants, as the Union had proposed, but that doing so on paper would cause problems for Air Canada." She testified that she understood that the employer had agreed with the union's proposal regarding pass priority but did not want to set a precedent with me-too language.
[53] The union strongly asserted that Scarpelli's evidence of this meeting must be accepted since it is uncontradicted. There is some merit to that position but the fact that Taylor, the other union representative to attend the meeting, did not refer to it raises some concern. However, whether I accept Scarpelli's evidence or not, the meeting is not determinative of the issue I have to decide. The union relies on the representation made by Morey later that morning as the basis for its estoppel argument.
[39] The Arbitrator then reviewed the evidence about a meeting that took place around 6:00 am on August 1, 2011, and specifically what was said by Scott Morey, who was one of the Air Canada representatives at that meeting. The Arbitrator reviewed the evidence of Ms. Scarpelli and Mr. Morey, and the notes of several CUPE representatives. He found that their evidence was generally consistent.
[40] Starting with Ms. Scarpelli's evidence, she testified that Mr. Morey said that the rumour about the "pilot commuter issue" was not true, and that he said that "the Company would not give one unionized group higher priority than another unionized group".
[41] The Arbitrator then reviewed Mr. Morey's evidence, finding that it was generally consistent with Ms. Scarpelli's evidence. He described Mr. Morey's evidence about the purpose of the promise and his recollection of what he said as follows:
[58] Morey did not disagree in any material way with Scarpelli's evidence of what was said; however he testified that the promise he made was narrow in scope. He testified that, prior to making the promise, he was aware of the upset among the members of the union regarding the deadheading priority for first officers and he was aware of a rumor that ACPA was attempting to bargain priority for commuting and that the commuting issue had been raised at the bargaining table by the union. He also testified during cross-examination that the broader issue of the personal travel program and the issuance of special passes was never discussed. He therefore set out to assuage the union's concerns as he understood them.
[59] He testified that at a meeting in the early hours of August 1, 2011, he advised the union that he was aware of the rumour that ACPA was attempting to bargain a priority for commuting and stated that the rumour was not true. He testified that it was in this context that he promised that the employer would not give travel priority with [sic] to one group of employees over another as it had done in connection with deadheading for first officers. He testified that there was no discussion of proposed Article 5.01.01, no example other than commuting was raised by either party and there was no discussion about allotments of special passes for personal travel. He testified that the discussion lasted approximately five minutes.
[42] The Arbitrator then reviewed the notes of a number of union representatives who were at the meeting, and found that they were consistent with Ms. Scarpelli and Mr. Morey's evidence that Mr. Morey said that there was no truth to the rumour that pilots were negotiating a "higher commuter priority".
[43] It was on the basis of this evidence that the Arbitrator found that Air Canada made a narrow promise not to grant a higher priority for commuting to the pilots, and that the passes Air Canada gave to the pilots in 2014 do no fall within that scope.
[44] CUPE argues that the Arbitrator's decision is not reasonable because the passes Air Canada gave the pilots in 2014 give them a higher priority for personal travel, including commuting, than the C2 passes to which the flight attendants are entitled. CUPE argues that, by definition, this is contrary to the promise made by Air Canada not to give one unionized group higher priority for commuting than another group. However, in his decision, the Arbitrator found that Air Canada draws a distinction between its employee travel program which, amongst other matters, gives all employees unlimited C2 passes for personal travel including commuting, and the special passes Air Canada awards to its employees from time to time on a discretionary basis. The B1/J10 passes granted to the pilots in 2014 do give them access to a higher priority for three flights per year for ten years, but the pilots have not been granted unlimited access to a higher class of priority for commuting. This is different from what occurred in 2004 for deadheading, when Air Canada agreed to give higher priority to pilots for deadheading on a class basis. Notably, there were also examples of circumstances when Air Canada gave the flight attendants discretionary personal passes with a higher priority level in recognition of their successful collective bargaining. Based on the evidence considered by the Arbitrator, in my view, his finding that the promise was narrow in scope and that it did not extend to special passes was available to him.
[45] CUPE also argues that the Arbitrator's finding in his concluding paragraphs that Air Canada "would not negotiate a commuting priority with ACPA" is inconsistent with his earlier finding that Air Canada "would not give a higher priority to one group of employees over another group" (emphasis added). In my view, the Arbitrator's decision did not turn on the word "negotiate". His finding that Air Canada did not breach its promise was not based on a finding that Air Canada did not “negotiate” the higher priority passes it awarded to the pilots in 2014 but, rather, as reviewed above, that these were special personal passes that did not fall within the narrow scope of the promise.
[46] Accordingly, for the reasons above, I find that the Arbitrator’s finding on the issue of estoppel was reasonable.
Discrimination issue
[47] CUPE argues that the Arbitrator failed to address its argument that Air Canada’s decision to award the B1/J10 passes to the pilots in 2014 constitutes discrimination against the flight attendants on the basis of sex.
[48] Air Canada argues that the issue of discrimination was not a live issue before the Arbitrator.
[49] I agree with Air Canada.
[50] The document that initiated the grievance makes reference to discrimination, but only in a cursory fashion by stating that “[t]he union’s position is that the Company has acted unreasonably and discriminatorily…” CUPE’s will-say statements do not address the issue of discrimination with the exception of Michel Cournoyer’s statement in which he says “[t]he decision to provide Pilots and not Flight Attendants B1 passes reflects a form of corporate, institutional sexism, as pilots are predominantly male, and flight attendants are predominantly female”. CUPE has offered no statistical evidence or expert evidence of adverse impact on the basis of sex. Finally, the written argument submitted by CUPE to the Arbitrator only focused on the estoppel argument and did not address the issue of sex discrimination.
[51] Judicial review is to be based on the record before the decision maker below: Sierra Club Canada v. Ontario (Minister of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), at para. 12. In addition, a decision maker is not required to address every argument advanced at a hearing: Newfoundland and Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, at para. 16. While there may be an argument to be made for gender discrimination in relation to Air Canada’s allocation of travel passes, it was not an error in this case for the Arbitrator not to address the issue. CUPE did not pursue the issue at the hearing nor did the record put forward by CUPE at the hearing support a finding of discrimination.
Conclusion
[52] For the reasons above, the application for judicial review is dismissed.
[53] Air Canada is entitled to $10,000 in costs, which is the amount the parties agreed should be awarded to the successful party.
FAVREAU J.
I agree _______________________________
THORBURN J.
I agree _______________________________
MYERS J.
RELEASED: August 1, 2019
CITATION: Canadian Union of Public Employees v. Air Canada, 2019 ONSC 4613
COURT FILE NO.: 394/18
DATE: 20190801
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Thorburn, Myers and Favreau JJ
B E T W E E N :
CANADIAN UNION OF PUBLIC EMPLOYEES, AIR CANADA COMPONENT
Applicant
– and –
AIR CANADA AND ARBITRATOR LARRY STEINBERG
Respondents
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: August 1, 2019