Cherrier v. Attorney General of Canada, 2017 ONSC 7336

COURT FILE NO.: 2775/17

DATE: 2017-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YOHAN PAUL CHERRIER

Applicant

– and –

ATTORNEY GENERAL OF CANADA, CANADIAN INDUSTRIAL RELATIONS BOARD, KEVIN BURKETT

Respondents

COUNSEL:

Charles Lugosi, for the Applicant

Stewart Phillips, for the Attorney General of Canada

HEARD: November 14 & 15, 2017

REASONS FOR JUDGMENT

gray J.

[1] In this application, Mr. Cherrier seeks recognition of his seniority rights, which he claims are protected under the Canadian Charter of Rights and Freedoms.

[2] This matter has a long history, both with respect to the trade union involved in the matter, and with respect to Mr. Cherrier’s attempts to rectify the situation from his perspective.

[3] While there is no denying the importance of seniority to the trade union movement and to individual employees, I must hold that Mr. Cherrier’s attempt to persuade me that seniority rights are protected by the Charter must fail. For the reasons that follow, notwithstanding Mr. Lugosi’s able argument, the application is dismissed.

Background

[4] This matter originates in the merger, in January, 2000, of Air Canada and Canadian Airlines International Ltd. (“CAIL”). At the time, the two airlines were the largest in Canada. Air Canada had formerly been a corporation owned by the Government of Canada. CAIL had itself been the product of mergers of various airlines, including Canadian Pacific Airways; Eastern Provincial Airways; Nordair; Pacific Western Airlines; and Wardair.

[5] At the time of the merger, various units of employees at both airlines were represented by trade unions. As it happens, the cabin crews of both airlines were represented by the same trade union, Canadian Union of Public Employees.

[6] On August 3, 2000, the Canada Industrial Relations Board (“CIRB”) declared the airlines to be a single employer under the Canada Labour Code. Pursuant to section18.1(2)(a) of the Code, the CIRB requested that the parties seek agreement with respect to the determination of the merged bargaining unit and other consequential questions arising from the declaration.

[7] It was evident that in merging the two cabin crew units at the two airlines into one bargaining unit, issues arise as to how to merge the seniority lists pertaining to the two units. It was also evident that the interests of the Air Canada employees and the CAIL employees were likely to clash. This obviously placed the union in a rather difficult and unenviable position. It was required, as a matter of law, to fairly represent the interests of both groups of employees, and in this case those interests would clash.

[8] The union notionally set up two components for the purposes of dealing with this issue. One component was called the “Air Canada Component of the Airline Division of Canadian Union of Public Employees” and the other was called the “Canadian Airlines Component of the Airline Division of Canadian Union of Public Employees”. Recognizing that the two components would necessarily take adversarial positions, the union retained separate counsel for each component and authorized each component to take whatever positions they thought to be necessary in order to protect the interests of the particular employees at each airline.

[9] While Air Canada would necessarily be a proper party to any proceedings taken to merge the seniority lists, ultimately Air Canada took no position on the matter, and the litigation was conducted solely between the two components of the union, with Air Canada maintaining essentially a watching brief.

[10] As noted, pursuant to s.18.1(2)(a) of the Code, the CIRB requested that the parties seek agreement with respect to the determination of the bargaining unit and other consequential questions rising from the declaration it had made.

[11] The parties agreed to settle the seniority integration issue through a mutually agreed-upon arbitration process. They agreed that the integration of the seniority lists would be determined by a sole arbitrator, Kevin Burkett. The parties to the arbitration would be the Air Canada Component of the union, the CAIL Component of the union, and Air Canada.

[12] Certain provisions of the agreement are germane. They are:

(G) Without limiting the generality of any other commitment, and for greater specificity only, Air Canada Component and CAIL Component will have the right to represent their respective groups throughout the arbitration process, before the CIRB, and before the Courts with respect to any proceedings reasonably related to seniority integration, regardless of whether bargaining rights are obtained and asserted with respect to a unified bargaining unit by CUPE and/or the Airline Division of any other party.

(J) the Components are free to make whatever submissions they wish as to what the principles required for a fair and equitable seniority integration should be. CAIL Component will submit to the arbitrator, inter alia, that the policies of the Airline Division are in place as of January 3, 2000 are fair and equitable and should govern. Air Canada Component does not agree with such a submission and will make its own complete submissions to the arbitrator as to what the principles should be.

(M) The arbitrator shall not make an award which alters the relative seniority rankings among employees on the Cabin Personnel seniority list of either Component.

(O) The arbitrator shall include in his award a provision retaining jurisdiction until all provisions of the award have been satisfied for the limited purpose of resolving disputes which may arise between the Components with regard to the meaning or interpretation of the award.

(P) Except as provided below, the decision(s) of the arbitrator shall be final and binding on Air Canada Component, CAIL Component, CUPE, the Airline Division, Air Canada and the Cabin Personnel of Air Canada and CAIL.

(Q) The decision(s) of the arbitrator shall be incorporated into CIRB orders(s) issued under Subsection 18.1 (2) of the Code, in order to implement this agreement of the parties. The parties shall request that the CIRB accept and adopt the decision(s) of the arbitrator. Such orders will be final orders of the CRIB, subject only to judicial review under the Federal Court Act.

(R) The implementation of the award of integrated seniority lists shall come into effect upon the latter of the issuance of a single Air Operating Certificate, and, the final decision of the arbitrator confirming the ordering of the seniority lists.

[13] As noted earlier, the arbitrator agreed upon by the parties was Kevin Burkett. Mr. Burkett is one of the most experienced and respected arbitrators in Canada. He issued an initial award on November 28, 2001.

[14] The proceedings commenced with hearings on February 17 and 18, 2001. Thereafter, there was a six-month period of mediation spread over some 20 days. The parties filed extensive written submissions and, in an open hearing on November 12, 2001, made full oral submissions in support of their respective positions.

[15] Mr. Burkett’s award is 24 pages long, and I will not attempt to reproduce everything he said in it. However, some points are noteworthy.

[16] At page 3 of his award, arbitrator Burkett stated:

As a creature of the code sanctioned by the CIRB, I must be governed by the overriding purposes of the statute, in particular, sections 35 and 18.1, in deciding the seniority integration issue that is before me. Consistent with the purposes of the Code and the express objective of the protocol under which I have been appointed, I must endeavour to reconcile the competing interests in a fair and even-handed manner and in a way that best promotes sound and harmonious labour relations and, thereby, minimizes the potential for ongoing intra- or inter-union conflict.

[17] At page 5 of his award, Mr. Burkett stated his acknowledgement of the importance of seniority to one’s entitlement to jobs and/or work, the selection of vacation time, one’s ability to transfer, and one’s protection from layoff. He noted that there are two distinct concepts of seniority. The one advanced by the CAIL Component focused upon seniority as an unalterable ranking by date of hire. The one advanced by the Air Canada Component focused upon seniority as currency based on relative position. In a single employer situation, the two concepts are complimentary but in a merger situation the distinction between the two concepts is crucial. At page 6 of his award, he stated:

When reference is had to both the labour relations objectives of the Code and to the ultimate goal under the protocol (pursuant to which I have been appointed) of achieving a fair and equitable seniority integration, I must reject a blind adherence to the concept of seniority as an unalterable ranking by date of hire. This is so because the value of one’s seniority, i.e. the extent to which one’s seniority provides access to these benefits/protections, is not dependent upon one’s date of hire but rather upon one’s relative position on the seniority list. One’s date of hire has no intrinsic value other than as a mechanism by which one’s relative position may be established. It is one’s position relative to others within the group that is competing for these service related benefits/protections that has real value. Accordingly, notwithstanding the emotional attachment to one’s date of hire as a measure of one’s worth or the self-interest that causes some to embrace date of hire integration and others to reject it, it is the relative position of the affected employees that gives meaning and value to their seniority.

Accordingly, I am driven to accept the more flexible concept of seniority as a currency based on relative position that allows me to fashion an integration model that best retains for all affected employees the value of their seniority. Strict date of hire ranking for all purposes may in some cases result in a method of integration that preserves the value of individual seniority within reasonable limits (as in the integration of seniority for customer sales/service employees adjudicated by arbitrator Jolliffe, September 20, 2001). However, in other cases, where the demographics so dictate, its application will result in a significant distortion of relative position and, thereby, create significant windfalls/losses in terms of employee access to these service related benefits/protections. The adoption of seniority as currency based on relative position, on the other hand, although it may or may not result in a method of integration that preserves ranking by date of hire, will to the greatest extent possible preserve the value of seniority for all employees. Notwithstanding the submission of the CAIL Component to the contrary, a concept of seniority that limits the choice of a method of integration to that which requires integration based on a date of hire and thereby leaves open the possibility of significant windfalls/losses in the value of one’s individual seniority must be rejected in favour of a concept of seniority whose application ensures that to the greatest extent possible, the real value of an individual’s seniority is maintained.

[18] Mr. Burkett noted that the trade union itself had a policy that supported integration of seniority lists on the basis of date of hire, but he rejected that concept here. At page 8 of his award, he stated:

I have, for the reasons cited, chosen to adopt a concept of seniority that recognizes that the value of seniority flows from an employee’s relative position, notwithstanding the existence of the 1990 Union policy that contemplates that integration be on the basis of date of hire. If the policy was enforceable, there would be no need to engage in this protracted and at times painful exercise. Further, the policy, while it clearly creates a presumption in favour of a date of hire integration is, to the extent that the protocol mandates a fair and equitable result, at variance, on the facts here, with the protocol as signed by both Components.

[19] Mr. Burkett approached his task by noting the importance of analyzing the demographics of each bargaining unit. At page 9, he stated:

A review of the jurisprudence as it pertains to seniority integration underscores the necessity of analyzing each case on its own demographics. This is so because the employee demographics determine the extent to which a date of hire integration will preserve relative position and thereby the real value of an individual’s seniority, conversely, the extent to which an alternative method of integration must be found that better preserves relative position. As I observed earlier, date of hire sequencing results in the proper relative position of each employee within a single bargaining unit. However, where there is a merger of bargaining units, any differentiation in historical hiring patterns as between the two bargaining units will result in a distortion of relative position if the seniority is integrated on the basis of strict date of hire.

[20] At page 11 of his award, arbitrator Burkett set out a chart that disclosed the hiring patterns of cabin personnel by year of hire for each airline. I will not reproduce it, but he summarized it by noting that CAIL hired significantly more cabin personnel than Air Canada in the period 1974-1988, and Air Canada hired significantly more than CAIL in the period 1989-1997. At page 13, he stated “Accordingly, as here, the demographics would cause significant dislocation of relative position on a straight date of hire integration, an alternate method of integration should be adopted that better maintains the relative position of all employees and, thereby, the real value of their seniority.”

[21] At page 15 of his award, the arbitrator summarized his general conclusions as follows:

In summary, the employee demographics in this case are such that a strict date of hire integration would increase the relative position of a large number of CAIL cabin personnel hired after 1978 with a corresponding decrease in relative position for a large number of Air Canada cabin personnel hired after 1988. Because it is one’s relative position on the integrated seniority list that determines access to work (with corresponding financial impact), choice of vacation period and protection from layoff, a gain in relative position increases the real value of one’s seniority, whereas a loss in relative position diminishes the real value of one’s seniority. Accordingly, if, in the interests of harmonious and productive labour relations, the objective is to minimize the negative impact of seniority integration upon all affected employees so that there are no real winners and no real losers, an integration model that avoids significant changes in relative position for all employees is to be preferred.

[22] Having set out his general approach, the arbitrator then considered the models put forward by each party and a model that had been suggested by the arbitrator himself. The CAIL Component proposed a model based on the date of hire with certain “fixes” where a date of hire integration causes dislocation at any individual base. The Air Canada Component proposed integration by means of a ratio. The arbitrator himself suggested a compromise, consisting of a strict date of hire integration to a point in advance of the CAIL hiring bulge, and adjusting the balance of the list by augmenting the seniority of the affected Air Canada personnel to the extent necessary to maintain the quality of pre-merger flying. Ultimately, he concluded that the model he proposed was the one that commended itself best, subject to a number of clarifications and refinements. For the purpose of my decision, it is unnecessary to discuss the details of the model or the refinements. His conclusion was as follows:

It is important to reiterate that an employee’s date of hire, standing alone, has no intrinsic value, whereas an employee’s relative position on a seniority list has real value in that access to a range of service related benefits/protections is governed by one’s relative position. Accordingly, in paying heed to the need for fairness and equity in the integration of the two separate seniority lists, as I am required to do under both the protocol, and under the Code, I have been driven to a model that preserves to the extent possible the relative position of all affected flight attendants and, thereby, the real value of their seniority. I have fashioned a model that, to the extent possible, given the overriding requirement for equity, takes account of the Union policy and the potential impact of “top blocking”. In the result, I have adopted a model that maintains the absolute seniority of all CAIL cabin personnel, protects them from “top blocking” in the case of any future merger, and, most importantly, protects their relative position and hence the real value of their seniority. At the same time, the model that I have adopted maintains the date of hire or an augmented seniority date for all Air Canada cabin personnel such that their relative position is also maintained and thereby the real value of their seniority. In doing so, the overriding objectives of both the protocol and the Code have been satisfied to the greatest extent possible.

[23] The arbitrator issued five supplementary awards, in which he clarified some of the elements of his first award, and in which he ordered the finalization of a merged seniority list. The last award, dated April 29, 2003, dealt with the issue of whether the proceedings were affected by the proceedings commenced by Air Canada under the Companies Creditors Arrangement Act. He simply noted that it had been agreed that those proceedings would have no effect on his awards or the proceedings before the CIRB.

[24] By decision dated June 3, 2003, the CIRB ordered that seniority in respect of the single consolidated unit of cabin personnel at Air Canada was to be determined and resolved in accordance with the awards of Mr. Burkett.

[25] The CAIL Component of the union applied to the CIRB for reconsideration of the order. In a decision dated March 18, 2004, that application was dismissed: see Re Air Canada, 2004 CIRB 266.

[26] The CAIL Component of the union applied to the Federal Court of Appeal for judicial review of the reconsideration decision. On January 10, 2006, the Federal Court of Appeal dismissed the application: see C.U.P.E. Airline Division, Canadian Airlines Component v. C.U.P.E. Airline Division, Air Canada Component, 2006 FCA 10.

[27] The CAIL Component of the union applied to the British Columbia Supreme Court for judicial review of the awards of the arbitrator. On June 3, 2005, the application was dismissed: see C.U.P.E., Airline Division, Canadian Airlines Component v. C.U.P.E., Airline Division, Air Canada Component, 2005 BCSC 810.

[28] Mr. Cherrier filed a complaint with the Canadian Human Rights Commission against the union. The Commission concluded that Mr. Cherrier’s complaint did not identify a prohibited ground of discrimination under the Canadian Human Rights Act. He filed an application for judicial review of the Commission’s decision, but did not file his application record in time. A prothonotary of the Federal Court determined that he did not meet the test for an extension of time. By order dated April 25, 2005, Mr. Justice O’Reilly of the Federal Court dismissed an appeal from the prothonotary’s decision.

[29] Mr. Cherrier commenced proceedings in the Federal Court against the Federal Crown. By order dated October 26, 2015, prothonotary Milscynski struck out the Statement of Claim on the ground that the pleading, as constituted, did not set out a claim that could succeed.

[30] Mr. Cherrier was a flight attendant at Canadian Airlines International, and was represented by the CAIL Component of the union.

[31] In his affidavit, Mr. Cherrier swears, without contradiction, that his seniority, as calculated from his date of hire by Canadian Airlines International, was devalued by nine years as a result of the awards of arbitrator Burkett. He alleges that the devaluation of his seniority results in an infringement of his rights under sections 7 and 15 of the Charter. He seeks declarations that arbitrator Burkett and the CIRB made orders infringing the Charter, and he seeks damages, interest, and his costs on a full indemnity basis. He sought remedies from the Government of Canada, the CIRB and arbitrator Burkett.

[32] It should be noted that the CIRB and arbitrator Burkett were represented by counsel at a preliminary hearing of this matter on September 26, 2017. At that hearing, it was agreed by Mr. Cherrier and his counsel that any relief would be pursued only as against the Government of Canada, and it was agreed by counsel for the Attorney General of Canada that if any monetary relief were awarded it would be paid by the Government of Canada. Accordingly, I ordered, on consent, that the application be dismissed as against the CIRB and arbitrator Burkett.

[33] Mr. Cherrier also seeks an order that section 18.1 of the Canada Labour Code is inconsistent with the Constitution of Canada and is, to the extent of the inconsistency, of no force and effect.

[34] In his affidavit, Mr. Cherrier states that he was hired by Canadian Pacific Airways as a flight attendant on April 28, 1986. He states that when the seniority lists were integrated as a result of the Burkett awards, he became junior by nine years to Air Canada cabin crew personnel who had just been hired the year before. He states that the award fails to account for the cumulative years of physical stress and harm that is part of flying. He states that because he was forced down the seniority list, he was compelled to accept schedules as an older person that would otherwise go to someone more junior and younger.

[35] Mr. Cherrier asserts that the accrual of seniority is a fundamental principle of security of the person, since seniority determines entitlement to protection from layoff, rate of pay, choice of vacation time, choice of work shifts, entitlement to work, and ability to transfer. He asserts that seniority as determined by date of hire is a bright line that meets the requirement under s.15(1) of the Charter that each individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination.

[36] Mr. Cherrier asserts that in the 2002 collective agreement, Air Canada male “In-Charges” negotiated to give themselves bonuses while cutting the wages and benefits of the remainder of the union membership. He swears that on July 24, 2003, he filed a grievance, but the leadership of the union refused to advance the grievance.

[37] Mr. Cherrier swears that he filed four national policy grievances, on July 24, 2003; May 24, 2005; April 23, 2007; and May 20, 2009. He states:

I believe that the union executives who refused to advance the grievances were rewarded for their actions and that a substantial majority of the membership in my union component suffered from the loss of seniority from date of hire.

[38] Mr. Cherrier asserts that he suffered discrimination following the devaluation of his employment seniority. He had no individual standing to make representations before arbitrator Burkett and he was powerless to stop the loss of his seniority. He asserts that the decisions of the arbitrator had the effect of stripping nine years of seniority and resulted in injuries to his psychological integrity and mental health, thus violating his security of the person contrary to s.7 of the Charter. Devaluating his seniority was an attack upon economic security, bodily integrity, and psychological integrity.

[39] Mr. Cherrier points out that he has attempted to litigate this matter on his own without success in many different forums. He states “My attempts to seek justice having been ignored led to mental and physical stress. These conditions eventually caused the loss of my employment with Air Canada in 2015.”

Submissions

[40] Mr. Lugosi, counsel for Mr. Cherrier, submits that this court has jurisdiction to entertain this application, restricted as it is to a constitutional issue. Mr. Lugosi submits that the application is carefully tailored so that none of the administrative law issues that have been raised in other proceedings are in issue here.

[41] Mr. Lugosi submits that this court, being a court of general jurisdiction, is a “court of competent jurisdiction” within the meaning of s.24 of the Charter. As a Superior Court, this court has jurisdiction to hear and determine any constitutional issue, regardless of whether any other court or tribunal might also be able to hear it.

[42] Mr. Lugosi submits that to the extent that s.18.1 of the Canada Labour Code grants authority to the CIRB to ignore seniority by date of hire, it is unconstitutional to that extent if seniority by date of hire is a constitutional right protected by s.7 or 15 of the Charter. He submits that arbitrator Burkett and the CIRB, who exercised power conferred by s.18.1 of the Code, are constitutionally limited accordingly. Furthermore, arbitrator Burkett and the CIRB are government actors whose actions can be attacked directly under the Charter.

[43] Mr. Lugosi submits that Mr. Cherrier has both private and public interest standing to bring this application. He was directly impacted by the Burkett award and the order of the CIRB, which stripped him of nine years of seniority. He has a direct personal interest in challenging the awards and the order.

[44] Alternatively, Mr. Cherrier satisfies the test for public interest standing, in that he has a genuine interest as a citizen in the constitutional issue, and there is no other reasonable and effective manner in which the issue may be brought before the court.

[45] Mr. Lugosi submits that seniority from date of hire is a vested Charter right, being a fundamental component of an individual’s liberty and security of the person. Where seniority from date of hire is sacrificed in a merger between two bargaining units, the loss of seniority is a Charter violation. He submits that seniority from date of hire fills a deep psychological need consistent with tenure and job security. Its loss greatly impacts upon an individual’s psychological integrity that is intertwined with self-worth, identity, dignity, emotional wellbeing, self-respect, health and job security.

[46] Mr. Lugosi submits that security of the person protects both the physical and psychological integrity of the person. If the impugned state action, viewed objectively, has a serious and profound impact on the psychological integrity of a person of reasonable sensibility, the test for a violation of security of the person is established.

[47] Mr. Lugosi submits that there is a sufficient causal connection between the arbitrator’s award and the CIRB’s order that stripped him of nine years of seniority resulting in serious psychological harm, thus infringing upon his security of the person.

[48] Mr. Lugosi submits that the liberty interest protected by s.7 of the Charter extends beyond freedom from physical restraint. It protects an individual’s personal autonomy to make choices, to live his or her own life, and to make decisions that are of fundamental personal importance.

[49] Mr. Lugosi submits that the accumulation of seniority from date of hire increases the liberty of a flight attendant to make decisions of fundamental importance that allow a choice of when to work, where to fly, the equipment to fly on, when not to work, the hours of work, and whom to work with. These decisions are integral to personal autonomy and a reward for years of service.

[50] Mr. Lugosi submits that in connection with both security of the person and liberty, Mr. Cherrier has been deprived of his rights under s.7 of the Charter. The remaining question is whether those deprivations are contrary to the principles of the fundamental justice.

[51] The principles of fundamental justice now incorporate notions of arbitrariness, overbreadth and gross disproportionality.

[52] Mr. Lugosi submits that the Burkett awards were arbitrary. It was unnecessary and irrational to integrate the bargaining units by resorting to a vague and meaningless standard that was a tool for manipulation.

[53] Mr. Lugosi submits that the awards were overbroad. The awards interfered with the individual lives of the CAIL flight attendants whose seniority was expropriated or devalued. The effects of the awards were unnecessary to attain the goal of integration.

[54] Mr. Lugosi submits that the impact of the awards was grossly disproportional. Robbing Mr. Cherrier of nine years of seniority was like using a sledgehammer to kill a fly, when a flyswatter would have sufficed. Nearly a decade of work was ripped away from his seniority, which was grossly disproportional to the impact upon others.

[55] Mr. Lugosi submits that the awards and the CIRB’s order violate s.15(1) of the Charter.

[56] Mr. Lugosi submits that it is no longer necessary to prove any intent to discriminate; if the impugned action is discriminatory in its effect, that is sufficient.

[57] Mr. Lugosi submits that the awards and the CIRB’s order impose differential treatment between Mr. Cherrier and others, and they have a discriminatory effect on him. The remaining issue is whether the discrimination is on the basis of an enumerated or analogous ground covered by s.15. Mr. Lugosi submits that the discrimination is based on both.

[58] Mr. Lugosi submits that individuals in the situation of Mr. Cherrier are part of a discrete and insular minority that is vulnerable, and they fall into an analogous group to those specifically enumerated in s.15(1) of the Charter. As such, he is in the same position a non-citizen, without status, and is powerless. Furthermore, the effect of the awards and the order is to disadvantage older employees, such as Mr. Cherrier, who have longer service.

[59] Mr. Lugosi submits that the purpose of the equality guarantee under s.15(1) has at its heart the concept of human dignity. It is concerned with the realization of personal autonomy and self-determination. The impugned decisions treated Mr. Cherrier unfairly. He suffered and continues to suffer adverse mental and physical health, and, in particular, damage to his security of the person by lasting harm to his psychological integrity.

[60] Mr. Lugosi submits that the violation of Mr. Cherrier’s Charter rights cannot be justified under s.1 of the Charter.

[61] Mr. Lugosi submits that Mr. Cherrier is entitled to damages for the violation of his Charter rights. The functions of compensation, vindication, deterrence, fairness and affirmation all promote and require the awarding of damages. He submits that a reasonable starting point for damages would be $3,000,000.

[62] Mr. Phillips, counsel for the Attorney General of Canada, submits that the application should be dismissed.

[63] Mr. Phillips does not dispute the importance of seniority to Mr. Cherrier, and does not dispute that Mr. Cherrier’s seniority ranking was adversely affected by the arbitration awards and the decision of the CIRB that incorporated them. However, Mr. Phillips submits that Mr. Cherrier has not shown that there has been any violation of his rights under the Charter. Accordingly, it is not necessary to address s.1 of the Charter or the issue of remedies.

[64] Mr. Phillips submits that this court has no jurisdiction to hear this application. He submits that the essential character of the matter is not one arising under the Charter, but rather deals with matters that have already been dealt with by the CIRB, the Federal Court, the Federal Court of Appeal and the Supreme Court of British Columbia. He submits that in particular, the Federal Court of Appeal has exclusive jurisdiction to challenge any aspect of arbitrator Burkett’s awards and the CIRB’s order endorsing those awards.

[65] Mr. Phillips also submits that the matters at issue are res judicata and an abuse of process. He notes that the decisions at issue have been the subject of applications for review at the CIRB and in the Federal Court. Furthermore, Mr. Cherrier has brought proceedings before the Canadian Human Rights Commission and has filed grievances.

[66] As far as Mr. Cherrier’s claim for damages is concerned, Mr. Phillips submits that the claim is statute barred, having been brought beyond the limitation period prescribed by the Limitations Act, 2002.

[67] Mr. Phillips submits that seniority from date of hire is not a right protected under s.7 of the Charter. He submits that what is sought is recognition of a purely economic right, which is not protected by s.7. The right asserted has no connection with the concepts of “security of the person” or “liberty”.

[68] Mr. Phillips submits that there is no violation of s.15 of the Charter. Essential to this question is the choice of a comparator group.

[69] Mr. Phillips submits that not every difference in treatment will necessarily result in discrimination. A prime concern is the prevention of the violation of essential human dignity through the imposition of disadvantage, stereotyping, or political or social prejudice.

[70] Mr. Phillips submits that it cannot be concluded that there is any “personal characteristic” that is analogous to the grounds listed in s.15 that can be said to be worthy of protection under s.15. Seniority ranking, or even length of service, are not analogous to any enumerated grounds under s. 15.

[71] Fundamentally, Mr. Phillips submits that Mr. Cherrier’s Charter arguments are simply submissions that he has been treated unfairly. If he has been treated unfairly, which is not conceded, it has not been in a way that would violate the Charter.

[72] Authorities relied on by the parties include: Canada Post Corp. v. C.U.P.W. (1989), 1989 CanLII 4337 (ON SC), 70 O.R. (2d) 394 (H.C.J.); Halpern v. Toronto (City), [2000] O.J. No. 3213 (S.C.J.); Kelly v. Ontario (2008), 2008 CanLII 22557 (ON SC), 91 O.R. (3d) 100 (S.C.J.); Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Di Cienzo v. Ontario (Attorney General), 2017 ONSC 1351; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101; Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358; Borowski v. Canada (Minister of Justice), 1981 CanLII 34 (SCC), [1981] 2 S.C.R. 575; Energy Probe v. Canada (Attorney General) (1989), 1989 CanLII 258 (ON CA), 68 O.R. (2d) 449 (C.A.); Canadian Council of Churches v. R., 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Re Vanguard Manufacturing and IWA, Local 1-423, 1982 CarswellBC 3198 (B.C.L.R.B.); New Brunswick (Minister of Health & Community Services ) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Re Air Canada and CAW-Canada (2001), 2001 CanLII 61998 (CA LA), 101 L.A.C. (4th) 1 (Jolliffe); Re Air Canada Pilots Assn. v. A.L.P.A. (2001), 2001 CanLII 62066 (CA LA), 104 L.A.C. (4th) 253 (Mitchnick); Re Canadian Airlines International Co. and C.A.L.P.A., 1990 CarswellNat 1732 (Munroe); Andrews v. Law Society (British Columbia), 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493; Law v. Canada (Minister of Employment & Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497; O.N.A. v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 (C.A.); Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624; Ward v. Vancouver (City), 2010 SCC 27, [2010] 2 S.C.R. 28; Elmardy v. Toronto Police Services Board (2017), 136 O.R. (3d) 483 (Div. Ct.); Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679; Godbout v. Longueuil (Ville), [1997] 3 S.C. 844; Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55; Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 16 O.R. (3d) 161 (C.A.); British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Little Sisters Book & Art Emporium v. Canada (Commissioner of Customs & Revenue Agency), 2007 SCC 2, [2007] 1 S.C.R. 38; Gauthier v. Air Canada, 2008 C.L.L.C. 220-061 (Ont. S.C.J.); Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Alexis v. Toronto Police Services Board (2009), 2009 ONCA 847, 100 O.R. (3d) 232 (C.A.); Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 SCC 1, [2007] 1 S.C.R. 3; Baltrusaitis v. Ontario, 2011 ONSC 532; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; Masse v. Ontario (Ministry of Community & Social Services) (1996), 1996 CanLII 12491 (ON SCDC), 89 O.A.C. 81 (Div. Ct.); Tanudjaja v. Canada (Attorney General) (2013), 2013 ONSC 5410, 116 O.R. (3d) 574 (S.C.J.); aff’d 2014 ONCA 852, 123 O.R. (3d) 161 (C.A.); Sivak v. Canada, 2012 FC 272; Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Law v. Canada (Minister of Employment & Immigration), [1999] 1 S.C.R. 497; and British Columbia Government & Service Employees Union v. British Columbia (Public Service Employee Relations Commission), 2005 BCCA 129.

Analysis

[73] Seniority is of relevance only in a unionized environment. It has no relevance at common law. In Hémond v. Coopérative fédéré du Québec, 1989 CanLII 46 (SCC), [1989] 2 S.C.R. 962, Gonthier J., for the Court, quoted with approval the following statement by Professor Bora Laskin, as he then was, in Re Federal Wire and Cable Co. (1960), 3 Steelworkers Arbitration Cases 276, at p.278, as follows:

I take as my starting point that seniority under a collective agreement has its meaning and application only under the terms and in the context of the agreement. Seniority, in other words, is a collective bargaining concept.

[74] Length of service with the employer is something that is relevant at common law. It is a factor to be considered in determining the period of reasonable notice to terminate an employee: see Bardal v. Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.J.). It is often a consideration in determining rates of pay and vacations, and often certain benefits will commence only once an employee has attained a certain length of service.

[75] However, the concept of seniority in a unionized environment signifies a ranking of employees on a list. Depending on one’s ranking, an employee may be preferred for such things as promotions, vacation selection, layoffs and bumping, and work assignments. The concept is entirely one created and regulated through collective bargaining.

[76] There is no denying the importance given to seniority by trade unions and their members. Over 50 years ago, His Honour Judge Reville, sitting as chair of an arbitration panel, stated the following in Re Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161 (Reville), at p.162.

Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee’s seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights to name only a few.

[77] This passage, and excerpts from it, have been quoted with approval in dozens of cases, including in the Supreme Court of Canada (Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 130); and the Ontario Court of Appeal (Lakeport Beverages v. Teamsters Local Union 938 (2005), 2005 CanLII 29339 (ON CA), 77 O.R. (3d) 543 (C.A.), at para. 56).

[78] No matter how important the concept of seniority may be, it is for the bargaining parties to define how seniority is to be calculated, and for what purposes it may be used. While it usually bears a relationship to an employee’s date of hire, there are issues that arise that must be addressed by the bargaining parties. For example, they must decide whether seniority continues during periods when an employee is not at work, such as where an employee is absent on a leave of absence or for some other reason such as a temporary assignment outside the bargaining unit. Where both full-time and part-time employees are in the same bargaining unit, they must decide whether service accrued by part-time employees will have the same value as service accrued by full-time employees. Where a non-bargaining unit employee, such as a foreperson, comes into the bargaining unit does that person’s seniority commence as of that person’s date of hire with the employer or does it commence with the date that person entered the bargaining unit?

[79] These questions are not necessarily easy to answer, and it is for the bargaining parties to deal with them as part of the collective bargaining process.

[80] There is no concept of “vested” seniority rights. For example, when an employee was promoted to be a foreman, and later re-joined the bargaining unit, and the provisions regarding seniority in the new collective agreement differed from those at the time of promotion, the Supreme Court of Canada in Hémond, supra, held that the seniority rights of the individual were subject to the collective bargaining process, and the employee’s seniority rights depended on the most recent collective agreement. As stated by Gonthier J. for the Court:

Seniority rights are subject to the collective bargaining process like any other employee right. In the context of labour relations it would be singular, to say the least, for these rights to be absolutely and irremediably raised to the level of vested rights.

[81] The question now before the court is whether seniority rights, as important as they are, are protected by the Charter. At the end of the day, I hold that they are not.

[82] Having regard to this conclusion, it is unnecessary to decide whether the claim for damages is statute barred, and whether s.1 of the Charter is engaged.

[83] It is also, strictly speaking, unnecessary to decide the jurisdictional issue, and/or whether the application should be dismissed on the basis of res judicata or abuse of process. However, I will provide my views on them.

[84] This court, being a court of general jurisdiction, has the power, and indeed the duty, to decide a constitutional issue regardless of whether Parliament or the legislature has conferred jurisdiction on another court or tribunal: see Canada (Attorney General) v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307; and Canada (Labour Relations Board) v. Paul L’Anglais Inc., 1983 CanLII 121 (SCC), [1983] 1 S.C.R. 147. Furthermore, this court is clearly a court of competent jurisdiction within the meaning of s.24(1) of the Charter, and has jurisdiction to entertain a claim that Charter rights have been violated. This is not a case like Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, in which the Court held that as a matter of policy it was preferable that an asserted Charter right be determined by a labour arbitrator, where the issue arose in the context of a case that was properly before the arbitrator. In the case before me, no Charter right has been asserted in any of the proceedings to date, and there is no reason why this court should decline to exercise its jurisdiction.

[85] I do not agree that s.7 of the Charter has any application. It protects the rights to life, liberty, and security of the person. A person is not to be deprived of those rights except in accordance with the principles of fundamental justice.

[86] The rights asserted here are those of liberty and security of the person.

[87] The concept of “liberty” includes physical liberty and certain fundamental personal decisions or choices that “go to the core of what it means to enjoy individual dignity and independence”: see R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para.85.

[88] Physical liberty is obviously not at issue here. Fundamental personal decisions or choices include whether or not to terminate a pregnancy (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30); making health care choices (Ciarlariello v. Schacter, 1993 CanLII 138 (SCC), [1993] 2 S.C.R. 119); determining the circumstances of one’s own death (Carter v. Canada (Attorney General), supra); and choosing where to establish one’s home (Godbout v. Longueuil (Ville), supra).

[89] Economic liberty is not protected: Gosselin, supra. The right to engage in a particular job or profession, carry on a business, or earn a particular livelihood are not protected: A&L Investments Ltd. v. Ontario (Minister of Housing) (1997), 1997 CanLII 3115 (ON CA), 36 O.R. (3d) 127 (C.A.); Mussani v. College of Physicians & Surgeons (Ontario) (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1 (C.A.).

[90] I am not persuaded that defining seniority as something other than the strict order of date of hire falls within the concept of liberty. There is no personal decision or choice at issue that can be said to go to the core of what it means to enjoy individual dignity and independence.

[91] Security of the person protects against state interference with physical integrity and, to some degree, mental or psychological integrity.

[92] It is not contended here that there is any state interference with physical integrity. The applicant argues that interference with his seniority rights affects his mental and psychological integrity.

[93] State action that impinges on an individual’s mental or psychological integrity to a degree that violates his or her security of the person includes causing serious psychological stress where a decision as to child-bearing is interfered with (R. v. Morgentaler, supra); and state apprehension of a child from parental care (Winnipeg Child & Family Services (Central Area) v. W.(K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519). However, it does not protect against delay causing distress in human rights proceedings (Blencoe, supra) or distress arising out of disciplinary proceedings (Mussani, supra).

[94] In my view, while the result of the arbitration and CIRB proceedings undoubtedly caused Mr. Cherrier stress, this is not sufficient to violate security of the person within the meaning of s.7 of the Charter. This does not approach the circumstances dealt with in the cases mentioned, where significant stress resulted from interference with a decision as to whether or not to give birth to a child, or state apprehension of a child.

[95] Since I have found that there has been no violation of Mr. Cherrier’s rights to liberty or security of the person, it is unnecessary to determine whether he has been deprived of them in accordance with the principles of fundamental justice. It is also unnecessary that I consider any issue arising under s.1 of the Charter.

[96] As far as s.15 of the Charter is concerned, I am not persuaded that Mr. Cherrier has been discriminated against on any ground enumerated in s.15 or on any analogous ground.

[97] While it true that in general longer-service employees would tend to be older, it is not necessarily the case that a person’s seniority ranking is related to age. Furthermore, I am not persuaded that the compromise position arrived at by the arbitrator in this case necessarily affects people who are older more than people who are younger. It would require far more robust evidence than that presented here to show the necessary nexus between government action and discrimination on the basis of age. Date of hire was not rejected as a consideration, even a strong consideration. It was adjusted to take into account different hiring patterns at the two airlines, and to ameliorate perceived inequities that could result if a straight date of hire standard were to be adopted. There was nothing irrational in such an approach, and is certainly a long way from showing any discriminatory effect based on age.

[98] I am also not persuaded that a person’s seniority or seniority ranking are in any way analogous to the grounds listed in s.15 (1), namely, race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. These are all personal characteristics that are unique to the individual and are, for the most part, unalterable. With respect, it would trivialize the Charter to hold that a person’s seniority or seniority ranking are analogous to any of the characteristics listed in s.15(1).

[99] For all of the foregoing reasons, I hold that none of the applicant’s Charter rights have been violated, and the application must be dismissed.

[100] While practical considerations are not to enter into the determination of a Charter case, it is comforting to know that the result is consistent with the general understanding of the bargaining parties, both in the public sector and the private sector. The bargaining parties have always operated on the understanding that seniority rights are a product of collective bargaining, and it is open to the bargaining parties to define seniority in any way they choose, and to define the rights that flow from seniority in any way they choose, subject only to the obligation of the trade union to represent its members fairly and in good faith. For the applicant to succeed in this application, it would mean the bargaining parties would have to look over their shoulders before agreeing to any feature of the agreement that affected seniority rights. That would have a clear chilling effect on the bargaining itself.

Disposition

[101] For the foregoing reasons, this application is dismissed.

[102] I will entertain brief written submissions with respect to costs, not to exceed five pages together with a costs outline or bill of costs. Mr. Phillips shall have five days and Mr. Lugosi shall have an additional five days. Mr. Phillips shall have three days to reply.

Gray J.

Released: December 7, 2017