CITATION: Air Canada v. International Association of Machinists and Aerospace Workers, 2022 ONSC 5231
DIVISIONAL COURT FILE NO.: 21-504-JR
DATE: 20220913
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Shore and Nishikawa JJ.
BETWEEN:
AIR CANADA
Christopher J. Rae and Karen Sargeant, for the Applicant
Applicant
– and –
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS
Stephen J. Moreau, for the Respondent
Respondent
HEARD at Toronto (by videoconference): September 13, 2022
REASONS FOR DECISION[^1]
D.L. Corbett J. (Orally)
[1] This is an application by Air Canada for judicial review of the decision of Arbitrator Christine Schmidt, (unreported, dated May 27, 2021), allowing IAMAW’s grievance and directing Air Canada to stop applying the Off-Duty Status provision of the collective agreement (Article 20.14) unless and until it establishes a discontinuation of its revenue operations. Air Canada seeks an order dismissing the grievance, or in the alternative, an order quashing the decision and remitting the grievance back to a different arbitrator.
[2] Article 20.14.01 of the collective agreement reads:
20.14.01 The Union acknowledges the Company’s right to place employees on “off duty status without pay” under circumstances where the Company discontinues its revenue operations due to an Act of God, national war emergency, revocation of the Company's operation certificates or certificate, strike, lockout or picketing of the Company's premises, grounding of a substantial number of Company aircraft or other circumstances over which the Company has no control. (emphasis added)
[3] As a consequence of the COVID-19 pandemic, as of April 2020, Air Canada’s revenue operations were reduced by 90% and it invoked its rights under Article 20.14. The union did not challenge this action.
[4] On June 7, 2020, Air Canada terminated its reliance on Article 20.14, and normal layoff, bumping and recall procedures applied thereafter.
[5] In January 2021, Air Canada gave the union notice that it was invoking Article 20.14 again. The union filed a grievance in respect to this action. The grievance was heard following an expedited procedure, and the Arbitrator’s decision was rendered on May 27, 2021.
[6] The Arbitrator found for the union on the basis that Air Canada did not establish that, as of January 2021, the Company “discontinued its revenue operations” within the meaning of Article 20.14.
[7] Air Canada argues that this finding is unreasonable. It argues that the uncontested evidence was that 90% of its flights were grounded, a reduction in its operation that objectively fits within the phrase “discontinues its revenue operations” and which was considered by the parties to qualify as within Article 20.14 of the collective agreement.
[8] We do not accept this argument. The evidence relied upon by Air Canada for this proposition is set out in the “will say” evidence of Mr Beveridge. There are two substantial problems with this argument. First, by its position within the will say of Mr Beveridge, the statement must be taken to refer to the reduction of activity experienced by Air Canada in the “first wave” of the pandemic in April 2020. That is where it is placed within the narrative of the will-say, and that reading accords with the positions taken by Air Canada and the union at that time.
[9] Counsel for Air Canada argues that the will-say is framed in the present tense, and the evidence should be taken to refer to both April 2020 and January 2021. We do not view this as a tenable argument. The parties and the Arbitrator all understood the 90% figure did apply in April 2020. The evidence of additional impacts in January 2021 is not framed as cumulative to 90%, and, as argued by the union, there is no attempt at quantification of overall impacts in January 2021.
[10] The argument from Air Canada seems to be that COVID-19 was unprecedented and had an enormous impact upon it. That argument was conceded by the union as of April 2020. This does not relieve Air Canada from establishing a record of the impact upon it of the pandemic as of January 2021, when it sought to invoke Article 20.14 a second time.
[11] In June 2020, Air Canada ceased its reliance on Article 20.14. This implies a material change in the impact of the pandemic – an implication that could be rebutted with evidence – but an implication available as a matter of common sense. So, the 90% figure as of April 2020 changed – and materially. What further changes happened and how did they impact Air Canada’s business to justify invoking Article 20.14 again? The Arbitrator found that this was not established on the record before her. Implicit in this finding – and the reasons set out at para. 19 and 20 of the decision – is the Arbitrator’s conclusion that the Beveridge will-say is not evidence of a continued 90% reduction in business as of January 2021. That is an available reading of the record and was open to the Arbitrator to accept.
[12] One further related argument emerges. The union argued that a “new normal” was established in the second half of 2020, and that it was for Air Canada to establish that it had discontinued its operations within the context of this new normal, rather than by comparison to pre-pandemic operations. The arbitrator’s decision does not turn on this distinction, and we would not rule on it. Here, since the Arbitrator found that Air Canada had not established the impact on its operations as of January 2021, no issue arises as to whether this impact should be measured against pre-pandemic activity or against a “new normal”.
[13] The decision of the Arbitrator is reasonable and arises from the record before her and the terms of the collective agreement. We see no basis to interfere. The application is dismissed with costs in the agreed amount of $10,000.
“D.L. Corbett J.”
I agree
“Shore J.”
I agree
“Nishikawa J.”
Date of Oral Reasons for Judgment: September 13, 2022
Date of Written Release: January 13, 2023
CITATION: Air Canada v. International Association of Machinists and Aerospace Workers, 2022 ONSC 5231
DIVISIONAL COURT FILE NO.: 21-504-JR
DATE: 20220913
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Shore and Nishikawa JJ.
BETWEEN:
AIR CANADA Applicant
– and –
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS Respondent
ORAL REASONS FOR JUDGMENT
D.L. Corbett J.
Date of Oral Reasons for Judgment: September 13, 2022
Date of Written Release: January 13, 2023
[^1]: This decision was released orally on September 13, 2022, and in writing on January 13, 2023.