A-783-83
Eastern Provincial Airways Limited (Applicant)
v.
Canada Labour Relations Board and Canadian Air
Line Pilots Association (Respondents)
Court of Appeal, Thurlow C.J., Mahoney J. and
Cowan D.J.—Ottawa, August 23, 24, 25, 26 and
October 5, 1983.
Labour relations — Application by Eastern Provincial Air
ways Limited ("EPA") to review and set aside Canada Labour
Relations Board order following findings of unfair labour
practices — EPA conferring permanent status on replacement
pilots hired during strike — Excess of jurisdiction and denial
of natural justice alleged — Application allowed, Board deci
sion quashed — Board finding hiring of replacement pilots
based on individual contracts of employment — "Permanent"
meant as antonym of "temporary" — Board exceeding juris
diction — Parliament, not Board, vested with authority to
mandate that only replacements struck employer may legally
engage are strike-breakers — Board's policy not to allow
verbatim transcription of proceedings well settled — Not
procedurally unfair — EPA denied opportunity to lead evi
dence on unfair labour practices though ready with witnesses
— Proposed evidence neither repetitious nor abusive of
Board's process — Canada Labour Code, R.S.C. 1970, c. L-1,
ss. 119 (rep. and sub. S.C. 1972, c. 18. s. 1), 122 (rep. and sub.
S.C. 1977-78, c. 27, s. 43), 148(a) as added by S.C. 1972, c. 18,
s. 1), 184(1)(a) (as added idem), 184(3)(a)(vi) (as added idem),
184(3)(b) (as added idem), 184(3)(c) (as added idem), 186 (as
added idem), 187 (as added idem), 188(1)(b)(as added idem),
189 (as am. by S.C. 1977-78, c. 27, s. 68) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a),(2),(5) —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 1.
Judicial review — Applications to review — Labour rela
tions — Application by Eastern Provincial Airways Limited
("EPA") to review and set aside Canada Labour Relations
Board order following findings of unfair labour practices —
EPA conferring permanent status on replacement pilots hired
during strike — EPA alleging excess of jurisdiction and denial
of natural justice in Board's refusal to permit EPA to com
plete evidence — Board having wide powers under s. 189 of
Code to enforce, by order, compliance with Code provisions —
Board exceeding jurisdiction when basing hiring of replace
ment pilots on individual contracts of employment — Parlia
ment, not Board, vested with authority to mandate that only
replacements struck employer may legally engage are strike-
breakers — Implementation of Board's policy not to allow
verbatim recording of proceedings not procedurally unfair —
EPA denied opportunity to lead evidence as to unfair labour
practices though ready with witnesses — Board's decision to
rehear parties pursuant to Code s. 119 not precluding judicial
review — Application allowed, Board's decision quashed —
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 119 (rep. and
sub. S.C. 1972, c. 18, s. 1), 122 (rep. and sub. S.C. 1977-78, c.
27, s. 43), 148(a) (as added by S.C. 1972, c. 18, s. 1), 184(1)(a)
(as added idem), 184(3)(a)(vi) (as added idem), 184(3)(b) (as
added idem), 184(3)(c) (as added idem), 186 (as added idem),
187 (as added idem), 188(1)(b) (as added idem), 189 (as am. by
S.C. 1977-78, c. 27, s. 68) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28(1)(a),(2),(5) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 1.
In the course of a legal strike against the applicant, Eastern
Provincial Airways Limited ("EPA") by its pilots, their bar
gaining agent, the Canadian Air Line Pilots Association
("CALPA") filed complaints of unfair labour practices against
EPA pursuant to sections 148(a), 184(1)(a) and 184(3)(a)(vi)
of the Canada Labour Code. EPA also filed complaints under
sections 148(a) and 186 of the Code. The Canada Labour
Relations Board dismissed EPA's complaints and upheld
CALPA's. EPA thereupon filed this section 28 application on
the grounds that the Board exceeded its jurisdiction and violat
ed principles of natural justice. After the filing of the section 28
application, the Board called the parties to a rehearing pursu
ant to section 119 of the Code. The Board maintained its initial
order. EPA alleges that: (1) the Board did not permit it to
complete its evidence on one of the complaints and to present
any evidence at all, beyond common evidence, with respect to
the remaining complaints; (2) the Board admitted illegal evi
dence; (3) the Board's decision is based on inferences unsup
ported by any evidence and its conclusions are, in fact, wrong;
(4) the Board did not permit the parties to make a verbatim
record of the proceedings; (5) the Board's actions constitute
bias. EPA also argues that the Board exceeded its jurisdiction
when it found that EPA had committed an unfair labour
practice when it conferred permanent status on the replacement
pilots hired from outside the bargaining unit, and when the
Board ordered EPA to extract from the collective agreement a
new proposal introduced by EPA at a time when there were no
more collective bargaining issues left outstanding between the
parties. EPA contends that that order imposes on it a collective
agreement subject only to ratification. EPA contends finally
that its right to freedom of expression has been infringed.
Held (Cowan D.J. dissenting), the Board's decision is
quashed.
Per Mahoney J.: The Board did not exceed its jurisdiction
when it ordered EPA to delete its new proposal from the
collective agreement. The Board finds its jurisdiction in section
189 of the Code which authorizes it to make orders to remedy
any consequence of the failure to comply with, inter alia,
sections 148 and 184. The Board's order had the effect not of
imposing, but of reinstating, a complete collective agreement
which had been negotiated between EPA and CALPA and
required only ratification by CALPA's membership to become
effective.
On the issue of the permanent status conferred on replace
ment pilots: there is no reviewable error if the Board intended
the word "permanent" to comprehend only the terms of the
replacement pilots' employment that would give them prefer
ence over the striking pilots after the strike. However, it
appears that the Board had the intention of using the word
"permanent" in its ordinary meaning, i.e. as the antonym of
"temporary" when it stated in its reasons that the hiring of the
replacement pilots was based upon the entering into of
individual contracts of employment. In so doing, the Board
exceeded its jurisdiction. It is for Parliament, not the Board, to
mandate that the only replacements a struck employer can
legally engage are strike-breakers.
There is no merit in any of the arguments based on the
Charter. The exercise of one's entrenched right to freedom of
expression may be found, in certain circumstances, an unfair
labour practice just as it might be found, in other circum
stances, defamation. Section 1 of the Charter does not preclude
such a finding.
On the issue of denial of natural justice: as to the allegedly
illegal evidence, the Board was entitled to receive evidence as to
events after the date of CALPA's complaints. Review of the
Board's findings of fact is excluded by subsection 122(1) of the
Code, which limits judicial review to issues of natural justice
and jurisdiction pursuant to paragraph 28(1)(a) of the Federal
Court Act. As to the allegation of bias, a public statement by
an employee of the Board as to the possible disposition of a
complaint before it has been decided, is no basis for imputing
bias or reasonable apprehension of bias to the Board itself.
The Board's policy with respect to the recording of its
proceedings was explained in the Canadian Merchant Service
Guild case, [1980] 3 Can LRBR 87. Verbatim transcription
was seen as inhibiting the Board in its fulfilment of its mission
as a forum for labour principals rather than one for lawyers. It
is a fair conclusion to be drawn from the Board's reasons that it
had determined that its mission could be better accomplished if
the parties before it were discouraged from recourse to the
Court. Parliament had already agreed to that: it had limited, in
subsection 122(1) of the Code the grounds of judicial review to
those set out in paragraph 28(1)(a) of the Federal Court Act.
It follows that implementation of the policy cannot be found to
have been procedurally unfair to EPA.
While the Board's decision is not subject to review on the
basis of its findings of fact, those findings are to be considered
in the context of whether EPA was denied natural justice. The
nature of the arrangement made by EPA with the replacement
pilots was an important issue before the Board, as were the
provisions of the back-to-work agreement proposed by EPA,
identified by the Board as an unfair labour practice. These
issues were to have been addressed by two EPA witnesses.
Nothing leads the Court to conclude that the proposed evidence
of those two witnesses was repetitious or otherwise abusive of
the Board's process. It is evident from the Board's own decision
that on points it considered significant, EPA was denied a fair
opportunity to make out its own case and to answer CALPA's
by the refusal of the Board to receive evidence. It is also evident
that EPA was, by the same refusal, denied the opportunity to
lead evidence on subjects which the Board specifically found to
have been unfair labour practices.
The action taken by the Board to review the decision under
section 119 neither cured the defect, nor validated the decision,
nor estopped EPA from pursuing its right to judicial review.
While the Board's rescission of a decision might render a
section 28 application moot, an offer to review the decision does
not.
Per Thurlow C.J. (concurring in part with Mahoney J.): The
exercise by the Board of its power under section 119 of the
Code, without the concurrence and over the objections of the
applicant, is evidence of the Board's failure to afford the
applicant the opportunity to which it was entitled to present its
evidence and as an attempt by the Board to alter the situation
and forestall the review of its order by the Court.
The point relating to the hiring of replacement pilots on a
permanent basis is not one which goes to the jurisdiction of the
Board. It is simply a point of law which, if the Board's opinion
is erroneous, it will be for Parliament to correct, but which is
not open to review by this Court.
Per Cowan D.J. (dissenting): The Board acted within its
jurisdiction when it found that EPA committed an unfair
labour practice when, as reflected in the back-to-work agree
ment, it conferred permanent status on the replacement pilots,
with the discriminatory effect on the striking pilots flowing
therefrom. The jurisdiction of the Board is founded on the
complaints made by CALPA that EPA had committed unfair
labour practices. Section 187 of the Code authorizes the
making of such complaints and section 188 imposes on the
Board the duty to hear and determine the complaints. Under
section 189, the Board may, by order, require compliance with
the relevant sections of the Code and the Board is given wide
powers to make orders to enforce compliance. Even if it is
assumed that the Board erred in making that finding, such an
error would be an error in law in the course of making a
decision which the Board had jurisdiction to make and, as such,
is excluded from judicial review pursuant to section 122.
The allegation that EPA was denied the opportunity to
complete its evidence is unsustainable. Counsel for EPA did not
at any time during the public hearing object to the action of the
Board in stating that it would hear no further oral evidence, nor
did he state that EPA had additional witnesses which it was
proposing to call to give evidence. The fact that EPA refused to
participate in the rehearing and to adduce additional evidence,
supports the conclusion that it had no additional evidence to
adduce and was content to rely upon the possible weakness in
law of CALPA's case and the absence of power in the Board to
grant the relief sought by CALPA.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Canadian Merchant Service Guild v. Canadian Pacific
Limited, [1980] 3 Can LRBR 87; St. Lawrence Seaway
Authority et al. v. Canada Labour Relations Board et
al., (1979), 31 N.R. 196 (F.C.A.).
COUNSEL:
Roy L. Heenan and Peter M. Blaikie for
applicant.
Ian G. Scott, Q.C. for respondent Canada
Labour Relations Board.
John T. Keenan, Lila Stermer and Luc Mar-
tineau for respondent Canadian Air Line
Pilots Association.
Eric Durnford for "New Pilots".
SOLICITORS:
Heenan, Blaikie, John, Potvin, Trépanier,
Cobbett, Montreal, for applicant.
Gowling & Henderson, Toronto, for respond
ent Canada Labour Relations Board.
John T. Keenan, Montreal, for respondent
Canadian Air Line Pilots Association.
McInnes, Cooper & Robertson, Halifax, for
"New Pilots".
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: (concurring in part with
Mahoney J.): I have had an opportunity to read
and consider the reasons for judgment prepared by
Mr. Justice Mahoney. I share his opinion that the
evidence establishes that the Canada Labour Rela
tions Board failed to observe a principle of natural
justice by denying the applicant a fair opportunity
to present its case and in particular in reaching
conclusions on evidence which the applicant,
though ready with witnesses, was not afforded an
opportunity to refute. Nor am I persuaded that in
the circumstances any inference should be drawn
that the applicant's right to call witnesses to refute
such evidence was waived.
Moreover, the Board's order having been made
and having become effective immediately on May
27, 1983, the manoeuvre initiated on July 26, 1983,
by the Board itself, without the concurrence and
over the objections of the applicant, to exercise
power under section 119 1 of the Canada Labour
Code [R.S.C. 1970, c. L-1 (rep. and sub. S.C.
1972, c. 18, s. 1)], after the applicant had applied
to this Court for review of the Board's order and
after the Court had given special directions for
expediting the proceedings, should I think be
viewed as evidence of the Board's failure to afford
the applicant the opportunity to which it was
entitled to present its evidence and as an attempt
by the Board to alter the situation and forestall the
review of its order by the Court. Under paragraph
188(1)(b) of the Code, at the stage which the
proceedings had reached in the latter part of April,
it was the duty of the Board to "hear and deter
mine" the complaints before it. The applicant was
entitled to a fair hearing of its case on the com
plaints before the matter was decided. It was no
substitute to offer the applicant afterwards an
opportunity to dispel, if it could, conclusions
already reached and cogently expressed by the
Board.
With respect to the several points raised by the
applicant alleging that the Board's order exceeds
its jurisdiction, I agree with the opinion of Mr.
Justice Mahoney save that I would regard the
point relating to the holding by the Board that the
hiring of replacement pilots on a permanent basis
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
was, in the circumstances, unlawful not as one
going to the jurisdiction of the Board but simply as
a point of law which, if the Board's opinion is
erroneous, it will be for Parliament to correct, but
which is not open to review by this Court.
I would dispose of the matter as proposed by
Mr. Justice Mahoney.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: In the course of a legal strike
against the applicant, Eastern Provincial Airways
Limited, hereinafter "EPA", by its pilots, their
certified bargaining agent, the respondent, the
Canadian Air Line Pilots Association, hereinafter
"CALPA", made three complaints of unfair
labour practices against EPA and EPA countered
with two complaints against CALPA. CALPA's
complaints alleged EPA's failure to bargain in
good faith contrary to paragraph 148(a) of the
Canada Labour Code; 2 interference in the
administration of a trade union contrary to para
graph 184(1)(a) and discriminating against,
intimidating and threatening striking employees
contrary to subparagraph 184(3)(a)(vi). EPA's
complaints alleged CALPA's failure to bargain in
good faith contrary to paragraph 148(a) and
intimidation and coercion to compel persons to join
and quit the union contrary to section 186. The
conduct of the hearing on those complaints by the
respondent, Canada Labour Relations Board,
hereinafter "the Board", and the orders ensuing
upon the hearing are subject of this section 28
application. EPA alleges that it was denied natural
justice in the course of the proceeding and that the
Board was without jurisdiction to make the orders
it did.
The Board sat on March 28 and 29, 1983. It
adjourned at the request of the parties. The hear
ing was resumed at the request of CALPA. It
2 R.S.C. 1970, c. L-1 (as am. by S.C. 1972, c. 18; 1977-78, c.
27).
continued on April 18, 19, 20 and 21. No verbatim
transcript of the proceeding was kept. We have the
documentary evidence received by the Board but,
as to what transpired at the hearings, we have only
the affidavit evidence submitted by EPA and
CALPA. The undated and unverified "public
hearing reports" (Case, pages 602 and 609 ff.),
prepared in circumstances unknown to the Court,
are of no evidentiary value. CALPA tendered the
affidavit of Ronald Young. He was cross-exam
ined on it. EPA tendered the affidavits of Ralph
D. Farley (Case, pages 710-717), Danny J. Kaufer
(pages 718-720), Genevieve Payne (pages 721-
722), William J. Verrier (pages 723-727), Chester
Walker (pages 728-733), Eero O. Lahtinen (pages
734-737), Kevin C. Howlett (pages 738-740) and
Peter D. Chalmers (pages 741 and 742). Farley
and Kaufer were cross-examined. The Board's
decision was rendered and order made May 27
(pages 615-707). It dismissed EPA's complaints
and upheld CALPA's. This section 28 application
was filed June 1. On June 29, the Court made an
order of directions scheduling proceedings with a
view to hearing this application as soon as possible
after August 15. On July 26, after affidavits as to
what had occurred at its hearings had been filed in
this Court and their deponents cross-examined
thereon, the Board called the parties to a rehearing
of the complaints pursuant to section 119 of the
Code. EPA attended but declined to participate in
the rehearing. CALPA filed, inter alia, a copy of
the Case prepared for this application including
EPA's affidavits. The proceeding, which resulted
in no change to the order, was held August 2 and
3. It was transcribed verbatim by the Board. On
application by the Board, the record of the pro
ceeding was added to the Case at the hearing of
this application.
The violations of the principles of natural justice
alleged by EPA are, briefly, as follows:
1. The Board heard EPA argue only an inscription in law in
respect of the CALPA complaints yet it decided, on their merits,
all five complaints.
2. The Board did not permit EPA to complete its evidence on
CALPA's complaint under s. 184(1)(a) and, except to the extent
that the evidence as to that complaint pertained to them, had
no evidence at all as to the other four.
3. Over objection, the Board admitted illegal evidence.
4. The decision is based, in part, on inferences unsupported by
any evidence whatever and the conclusions are, in fact, wrong.
5. The Board neither provided for nor permitted the parties to
make a verbatim record of the proceedings.
6. The Board's actions, before and during the hearings, taken as
a whole, constituted bias.
The excesses of jurisdiction alleged are:
7. The orders made exceed the jurisdiction of the Board as
defined by the Canada Labour Code.
8. The Board exceeded its jurisdiction by making findings so
patently unreasonable that they cannot be rationally supported
by the Code.
9. The Board exceeded its jurisdiction in that it infringed EPA'S
right to freedom of expression guaranteed by the Charter of
Rights and Freedoms.
The Canada Labour Code provides:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with paragraph 28(1)(a) of the
Federal Court Act.
The Federal Court Act 3 provides:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
Exclusion of judicial review under paragraphs (b)
and (c) of subsection 28 (1) was effected by Parlia
ment in the 1977-78 amendment to the Code [c.
27, s. 43].
3 R.S.C. 1970 (2nd Supp.), c. 10.
There are serious issues raised in this applica
tion with which this Court has jurisdiction to deal.
Those unsupported by the evidence or which, how
ever serious, are beyond our jurisdiction to deal
with, are numbers 3, 4, 6, 7 and 9. As to number 3,
the Board was entitled to receive evidence as to
events after the date of CALPA's complaints.
Review of number 4 is excluded by subsection
122(1). As to number 6, a public statement by an
employee of the Board, not a member, as to the
possible disposition of a complaint before it has
even been received, however ill-advised and
improper and whatever its actual impact on the
patently sensitive status quo of a bitter strike, is no
basis for imputing bias or a reasonable apprehen
sion of bias to the Board itself. As to number 9, I
see no merit at all in any of the arguments based
on the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]. Having regard to section 1 of the Chart
er, I see no bar in the Charter to an exercise of
one's entrenched right to freedom of expression
being found, in certain circumstances, an unfair
labour practice just as, in other circumstances, it
might be found defamation.
As to number 7, the particulars set forth in each
of the CALPA complaints are apparently identi
cal. Among the things which the Board found to
have been unfair labour practices was EPA's addi
tion to the proposed collective agreement, on April
4, 1983, of a new proposal for a third year at 5%
when, theretofore, a 2-year term had been the
basis of negotiation. The CALPA complaints were
dated March 7, a month before the introduction of
the third year by EPA. It is, nevertheless, a
manifestation of the alleged failure to bargain in
good faith as required by section 148. The
preamble to the Canada Labour Code [S.C. 1972,
c. 18] recites Parliament's intention.
And Whereas the Parliament of Canada desires to continue
and extend its support to labour and management in their
cooperative efforts to develop good relations and constructive
collective bargaining practices, and deems the development of
good industrial relations to be in the best interests of Canada in
ensuring a just share of the fruits of progress to all;
That intention to develop good relations between
labour and management would not be served by
limiting the Board, once seized of a complaint, to
consideration of incidents recited in the complaint
or antedating it when its subject-matter is, by its
nature, ongoing, as here. I find no support for
EPA's position in the requirement, by subsection
187(5), of Ministerial consent nor in the consent
itself (Case, page 217).
The Board found that EPA had presented
CALPA with a collective agreement, dated April
4, executed by EPA, reflecting in its terms every
thing the parties had agreed upon and a single
item, provision for a third year at a 5% pay
increase, which had not been agreed to by
CALPA. The introduction of that item at that
stage of negotiations was held to be an unfair
labour practice. The Board ordered (Case, page
6,18) as follows:
i) the employer to cease and desist from negotiating in bad
faith and not making every reasonable effort to enter into a
collective agreement and, to that end, the Board directs Eastern
Provincial Airways Ltd. to extract from the collective agree
ment it has proposed to the Canadian Air Line Pilots' Associa
tion the clause extending said collective agreement's duration to
a three year [sic] period.
The Board further directs the Canadian Air Line Pilots' Asso
ciation to examine the text of the proposed collective agree
ment, submitted by Eastern Provincial Airways Ltd. on April 4,
1983, taking into account the fact that any reference to a third
year to the duration of the proposed collective agreement has
been deleted by the Board and then to submit said text to the
ratification of its Local pilot membership within three (3)
working days of the issuance of the present Order.
Within 24 hours from said ratification, if it is attained, the
Canadian Air Line Pilots' Association is directed to make a
declaration by telex to this Board whether or not, on the basis
of said ratification, it is ready to sign this agreement.
In the event of the Canadian Air Line Pilots' Association
confirming ratification, as stipulated in the preceding para
graph, a collective agreement between the parties shall be
deemed to be in effect for all the purposes of the Canada
Labour Code (Part V—Industrial Relations).
EPA argues that the order to extract and what
follows effectively imposes on it a collective agree
ment subject only to the ratification.
Section 189 of the Code enumerates a number
of particular orders the Board may make if it finds
particular unfair labour practices. None of those is
apt. The section concludes:
189... .
and, for the purpose of ensuring the fulfilment of the objectives
of this Part, the Board may, in respect of any failure to comply
with any provision to which this section applies and in addition
to or in lieu of any other order that the Board is authorized to
make under this section, by order, require an employer or a
trade union to do or refrain from doing any thing that it is
equitable to require the employer or trade union to do or
refrain from doing in order to remedy or counteract any
consequence of such failure to comply that is adverse to the
fulfilment of those objectives.
Section 189 applies, inter alia, to sections 148 and
184. The Board finds its jurisdiction in those
words. In the circumstances, I think the Board is
correct. The Board having found, as facts, that "as
at April 4, 1983, there were no more collective
bargaining issues left outstanding between the two
parties" (Case, page 656) and that the introduc
tion of the third year in April was an unfair labour
practice, the order to cease and desist that practice
had the effect not of imposing, but of reinstating, a
complete collective agreement which had been
negotiated between EPA and CALPA and
required only ratification by CALPA's member
ship to become effective.
In view of the disposition of this application I
propose on other grounds, it is not necessary to
deal with number 8 in the detail that might other
wise have been required. This alleged excess of
jurisdiction rests on two bases.
The prolixity of the Board's decision results,
perhaps inevitably, in ambiguity. One of the things
EPA had done, which the Board found to have
been an unfair labour practice, was to confer
" permanent status on the replacements hired
during the lawful strike who originated from out
side the bargaining unit" (Case, page 616). It is,
as the Board recognized (Case, page 645), entirely
legal, under the Canada Labour Code, for an
employer who has been struck to carry on the
business, if it can, by hiring replacements for the
striking employees.
I see no reviewable error if, as I trust, the Board
intended the adjective "permanent" only to com
prehend the terms of the replacement pilots'
employment it found would give them preference
over the striking pilots after the strike. If, however,
"permanent" was used in its ordinary meaning, as
the antonym of "temporary", it is a different
matter. It is not inconceivable that the Board had
the latter intention. For example, addressing the
issue (Case, page 669), the Board says:
The hiring of those replacement pilots is based upon the
entering into an individual contract of employment. If it is for a
temporary term terminating on the same day that the strike is
brought to conclusion, this does not create any problem.
I should think it would be for Parliament, not the
Board, to mandate that the only replacements a
struck employer can legally engage are strike-
breakers.
The Board, in Parts X and XI of its decision
(Case, pages 692-707), purports to import into
Canadian labour law the concept of a strike, which
had begun as an economic strike (Case, page 704),
being converted into an unfair labour practices
strike from its inception (Case, page 706). The
purpose of this lengthy exercise is not clear. Noth
ing, not otherwise held to have been an unfair
labour practice, was found to have been one
because the strike was deemed to have been con
verted into an unfair labour practices strike from
its beginning. It was an exercise in pure tautology
and, therefore, entirely obiter dicta. Assuming that
the concept expounded in Parts X and XI can, in
some circumstances, have a practical application,
the question whether or not its incorporation into
the law of Canada is within the Board's jurisdic
tion should be dealt with when those circum
stances arise.
It is convenient now to deal with the question of
the record, number 5. The affidavits of Farley,
Kaufer and Payne all address the refusal of the
Board to permit the proceedings to be recorded. Of
them, only Kaufer was present April 18. As to the
sittings March 28 and 29, it is necessary to refer
only to the Payne affidavit. She is a shorthand
reporter frequently employed by the Supreme
Court of Newfoundland in examinations for dis
covery. She was engaged by EPA to record the
proceedings. On March 28, she recorded the fol
lowing statement by the Chairman:
... in due course, no recording of the hearing is going to be
allowed. It is the policy of this Board not to have recordings of
its hearings ....
As to the April sittings, Kaufer, one of EPA's
counsel, deposes, with respect to Louise Vachon, a
secretary employed by EPA, that the Chairman
"informed the parties that any notes taken by
Vachon could not ever be used in any court" and,
after noticing that Vachon was using a tape
recorder to assist her, the Chairman called counsel
to the bench and stated:
... that he had ruled in St. John's that no stenography or
recording of the hearing would be allowed, and that he was
directing the parties to stop any recording of the proceedings.
That all transpired during the first hour of the
sitting of April 18. I am satisfied that the Board
prevented EPA from making a verbatim record of
the proceedings by any practical means whatso
ever.
The Board's policy vis-Ã -vis the recording of its
proceedings was explained at length in Canadian
Merchant Service Guild v. Canadian Pacific
Limited. 4 The Board had theretofore traditionally
recorded its proceedings. The reason for the policy
change appears to have been twofold. A verbatim
record was, in its view, unnecessary once its deci
sions were no longer subject to judicial review on
the grounds of error in law or perverse error in
finding facts. For numerous reasons, verbatim
transcription was seen as inhibiting the Board in
its fulfilment of its mission as "a forum for labour
relations principals—employees, employers and
unions—not a court or forum for lawyers". It is to
4 [1980] 3 Can LRBR 87, at pp. 91 ff.
be remarked that the Board conducts many sorts
of hearings, not just the sort in issue here. The
rationale of the policy may be more plausible when
applied to some sorts than to others.
It is a fair conclusion to be drawn from its
reasons that the Board had determined that it
could do its job better if those before it were
discouraged from recourse to the Court. Parlia
ment had already agreed. It had limited the
grounds of judicial review to denial of natural
justice and issues of jurisdiction. The Board, at
pages 95-96 of the report, continued:
For the same reasons we have decided not to allow one party to
have recording facilities at a hearing. To do so will reintroduce,
on a selected basis, the atmosphere we seek to eliminate by
discontinuing recording and act contrary to the purposes we
seek to achieve. Although we see and our experience has shown
us little advantage during the conduct of the hearing a record
ing may be of some advantage afterward. Otherwise why would
a party want it? That advantage could be in written propagan
da surrounding a dispute, or to play edited versions of the
proceedings on radio or television, or to prepare future wit
nesses where there has been an exclusion of witnesses or
adjournment, or for other reasons within the imagination of
parties. The Board will not allow its proceedings and mediative
efforts to be open to this potential for compromise.
An obvious reason a party might want a record,
not mentioned, is to facilitate pursuit of its remain
ing right to judicial review.
A verbatim record would unquestionably have
made easier the fulfilment by this Court of its
duty. However, the refusal to permit EPA to make
a verbatim record was not, per se, a denial of
natural justice even though intended, inter alia, to
make more difficult the pursuit of its remedy in
this Court. Applicable as it was to both parties in
this dispute, indeed to all parties in all disputes
generally, implementation of the policy cannot be
found to have been procedurally unfair to EPA.
The refusal does, however, expose the Board to
having issues of natural justice determined on
evidence as to what happened led by the parties,
while it cannot, itself, be heard on the subject
unless it elects to file affidavits and offer their
deponents for cross-examination.
I turn now to the alleged denials of natural
justice numbered 1 and 2. There are undisputed
facts as to the conduct of the resumed hearing
April 18 to 21.
a. At its outset, April 18, EPA raised an inscription in law and
CALPA asked to have the evidence apply, as relevant, to all five
complaints.
b. Rulings on both and argument on the inscription were
deferred and the Board proceeded to receive evidence on the
CALPA complaint under s. 184(1)(a).
c. CALPA completed its evidence on that complaint late in the
afternoon of April 19.
d. The evidence of one EPA witness was completed April 20.
The second EPA witness, CALPA'S president who had been called
by subpoena duces tecum, was unable to identify certain docu
ments and his testimony was suspended. A third EPA witness
had been testifying about 20 minutes when the hearing
adjourned for the day.
e. When the hearing reconvened at 9:00 a.m., April 21, the
third EPA witness resumed the stand but had not begun to
testify when the public hearing was suspended and the Board
called counsel to an in camera meeting.
f. When the public hearing resumed, after 11:00 a.m.,
(i) the parties submitted and the Board received, or made
provision to submit and receive, all the remaining documen
tary evidence by agreement.
(ii) the Board ruled that it would accept the evidence there-
tofore received in respect of the one complaint as evidence in
the other four.
(iii) the Board announced that it would hear argument after
the lunch recess and then recessed for lunch. Argument on
inscription in law was specifically mentioned by the Chair
man, who explained the concept.
g. There were, at the recess, EPA witnesses, including the
witness in the box, present and available to testify. (It appears
that the need to resume examination of CALPA'S president had
been obviated by the agreement on documentary evidence.)
h. After lunch, EPA'S counsel argued first.
i. After hearing argument in the afternoon, the Board recessed.
j. Following the recess April 21, the Board did not resume the
public hearings nor receive further evidence from the parties,
except the documents as had been agreed, nor receive further
argument prior to rendering its decision on the merits of all five
complaints.
What is disputed is whether EPA was denied
opportunities (1) to complete its evidence on CAL-
PA's paragraph 184(1)(a) complaint; (2) to
present evidence at all, beyond the common evi
dence, on the remaining complaints, including its
own; and (3) to argue anything but the inscription
in law.
Young, the deponent of CALPA's affidavit is
not a lawyer. He was present throughout the
public hearing but did not attend the in camera
meeting April 21. Farley and Kaufer, deponents of
EPA affidavits, are lawyers. Kaufer was present
April 18; Farley was not but was otherwise present
throughout and did attend the in camera meeting.
I think the evidence of Farley and Kaufer must be
preferred to Young's in all instances of disagree
ment as to the legal significance of what occurred.
CALPA had lawyers present throughout who
could have given the Court evidence if it disputed
theirs on such points.
Farley's affidavit and the cross-examination
thereon is the only evidence as to the in camera
meeting. The cross-examination (pages 8,10 to
9,6) and re-examination (20,3 to 22,23) do not
modify the evidence of his affidavit (Case, pages
713 ff., paragraphs 16 to 36). After dealing with
the documents and the application of the evidence
received to all complaints, the affidavit continues:
22. THAT Mr. Lapointe then declared that the Board had the
power to decide when they had heard enough proof to order the
parties to argue;
23. THAT Mr. Heenan of Counsel of Applicant, indicated his
disagreement with the declaration that the Board had the
power to order argument at any time;
24. THAT Mr. Marc Lapointe stated that the Board intended to
finish all five complaints by that evening;
25. THAT Mr. Heenan of Counsel of Applicant stated that that
would be impossible;
Then, after describing the exchange between
Heenan and the Chairman, the affidavit conclud
ed, as to the meeting, with:
35. THAT immediately following this statement by Mr. Heenan,
Mr. Lapointe stated that the Board was directing the parties to
produce what documents they could by consent, and that he
was directing them to argue immediately after lunch;
36. THAT at no time during this meeting did the Board ask
Counsel for Applicant to declare their client's defense closed or
to waive their client's defense or even to seek instructions from
their client to close or waive its defense, nor did counsel do so;
EPA ought to have been in no doubt after the in
camera meeting that it was expected to argue the
merits, not just the inscription in law. The absence
from Farley's affidavit of an explicit statement
that EPA argued only the inscription and not the
merits, a distinction he would clearly have
appreciated, is conspicuous, and the inference to
be drawn obvious. Considering also Young's
detailed list of the subjects covered by EPA in
argument, I am entirely satisfied that EPA did
argue the merits and that there is no basis in fact
for the allegation of denial of natural justice
number 1.
It is also clear that the Board, at the in camera
meeting, indicated in no uncertain terms its inten
tion to receive no further evidence than the docu
ments. Accordingly, no inference is to be drawn
from the failure of EPA to express its objection
when the public hearing resumed. The objection
had been emphatically, if unsuccessfully, taken
while the Board sat in camera. Farley's affidavit,
paragraph 10, also establishes that the Board did
disallow questions, while receiving viva voce evi
dence on the complaint under paragraph
184(1) (a), on the grounds that they were not
relevant to that complaint.
In its reasons, dealing with the complaint under
subparagraph 184(3) (a)(vi), the Board (Case,
page 666) stated:
CALPA alleged that on March 2, Mr. H. Steele, President of
EPA, in an article published in the Globe and Mail, is quoted
as having stated: "Mr. Steele said the pilots hired yesterday
will remain with Eastern Provincial Airways after the strike is
settled and that returning employees may have to wait for jobs
to come open." (underlining ours) (para. 60). EPA, in its Reply
to this specific allegation, stated: "Respondent denies as drafted
paragraph ... 60", adding that "Respondent cannot be held
responsible for the statements reported out of context by either
the press or complainant (see para. 43 of Reply of Respond
ent)." However, at the public hearings no evidence was
adduced by EPA, to support the allegation of para. 43 of its
Reply.
Early on January 27, as testified to by witness Capt. John-
stone, Mr. Harry Steele, the President of EPA, telephoned him.
In the course of that conversation, Mr. Steele stated to him: "I
have the jobs and the paycheques ... We will continue to fly,
we will hire replacement pilots and you may not have a job to
come back to." Captain Tanton, another witness, received four
telephone calls from Mr. Steele, one of those lasting for more
than one hour. In the course of the first of these calls, on
January 27, Mr. Steele stated to the witness that he wanted
him to be with him. He said that he owned the jobs and called
the shots. On February 13, Steele stated to him that the
company would hire pilots and "If you want to have a seat you
better come back." [The underlining is the Board's. The italics
are mine.]
Then, dealing with the paragraph 184(1)(a) com
plaint (Case, pages 675-676), it stated:
Captain Tanton testified that, at the occasion of the first
telephone call by Harry Steele, President, on January 27, 1983,
at 7:30 a.m. from Wabush, the latter stated that "when this is
over, there will be no more CALPA at EPA", and that he would
"get rid of the bastards". Tanton added that, as a result of this
call, he was quite shocked; "it rattled my cage". At the
occasion of a second phone call on February 13, -Mr. Steele
discussed with him in detail the productivity problems as
perceived by the company. Mr. Steele also spoke of the eventu
al plans of the company when it would get additional equip
ment, that it would hire more pilots and it would be a non
union company. Captain W.L. Tuck also received telephone
calls from President Steele. The first one occurred on January
27, the first day of the strike. A major portion of the conversa
tion was consumed by Mr. Steele, asserting that he was con
vinced that the strike of the pilots at EPA was not an action
taken by the local boys but had been initiated from CALPA
Toronto. During a second phone call by Mr. Steele, on the
following Sunday, the president of EPA went into the personali
ties involved. He stated to Captain Tuck that he could find no
fault with Captains Lacey and Warren, local boys. His view
was that "the whole thing is orchestrated from Toronto".
According to the witness, Steele then went after Captain
Cooke, the president of CALPA. Finally, in that conversation,
which lasted nearly one hour, Steele wanted to know from him
why, when the Company had given in on the issue of operating
the HS/748's in-house, the pilots were not accepting the rest of
the package. In a final call in the last days of February (a
Tuesday or Wednesday, the witness recalls), Mr. Steele's tone
of voice had changed. It was now more direct and, inter alia, he
stated to Captain Tuck that he was sick and tired of CALPA and
the union, "I cannot deal with them anymore". The witness
added that, on the basis of that phone call, he was particularly
shaken up and felt that "I would return to work on the basis of
that phone call."
Yet another statement attributed to Steele in the
March 2 newspaper article is recited in connection
with the paragraph 148(a) complaint (Case, page
679) and both EPA's failure to contradict it and
Steele's failure to testify are noted. The making of
that statement was specifically found to have been
an unfair labour practice (Case, page 685).
Steele was present April 21 and EPA intended
to call him (Case, page 735). While the Board's
decision is not subject to review on the basis of its
findings of fact, those findings are to be considered
in the context of whether EPA was denied natural
justice by being denied a fair opportunity to make
out its own case and to answer CALPA's.
The nature of the arrangement made by EPA
with the replacement pilots was a central issue
before the Board. It is the uncontroverted evidence
of Kevin C. Howlett, EPA's Director of Employee
Relations, that the Board's findings of fact on that
issue are dead wrong and that he was present and
was intended to testify. Similarly, the provision of
the back-to-work agreement proposed by EPA,
identified by the Board as an unfair labour prac
tice, was to have been addressed by Captain
Walker. He was the witness in the box when the
Board decided it had heard enough. Whether its
decision would have been different had it heard the
evidence referred to in, for example, paragraph 23
of his affidavit (Case, page 731) is not our con
cern. That it hear it is. The paragraph states:
23. THAT at the time of the decision of the Board, none of the
pilots still on strike were qualified to fly, all of whom have to be
requalified after ground school, simulator training, aircraft
training and flying under supervision, some of this being con
ducted under Ministry of Transport supervision, and taking
about a week.
Nothing in the Case leads me to suspect that the
proposed evidence of either Howlett or Walker
was repetitious or otherwise abusive of the Board's
process.
The instances recited are examples. There are
others to be found.
I conclude that the alleged denial of natural
justice number 2 is well founded. It is evident from
the Board's own decision that, on points it con
sidered significant, EPA was denied a fair oppor
tunity to make out its own case and to answer
CALPA's case by the refusal of the Board to
receive evidence. It is also evident that EPA was,
by the same refusal, denied the opportunity to lead
evidence on subjects which the Board specifically
found to have been unfair labour practices.
CALPA argues that, even if a denial of natural
justice is found, the action taken by the Board to
review the decision under section 119 either cured
the defect or estopped EPA from complaining of it
or both. The section provides:
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
That provision was considered by this Court in a
decisions where it was said [at pages 201-202], by
way of obiter dicta, that:
It is quite true that this provision confers on the Board the
extraordinary power of reviewing its own decisions. In exercis
ing this power, the Board may correct its decisions, especially
those which it may have made in disregard of the rules of
natural justice; but the mere existence of this power does not
have the effect of validating these decisions and of placing them
beyond the power of review of the court under s. 28(1)(a) of
the Federal Court Act.
Here, the Board did not correct its decision; it
offered to review it and gave the parties the oppor
tunity to make representations and call evidence to
that end. That offer, at the stage of the proceed
ings in this section 28 application it was made, did
not have the effect of validating the decision nor
estopping EPA from pursuing its right to its judi
cial review any more than did the mere existence
of the Board's power to review. The correction of a
decision with a view to obviating a denial of natu
ral justice may prove difficult in practice once the
Board has communicated it. A section 28 applica
tion must, by subsection 28(2), have been filed
within 10 days of the Board's first communication
of its decision to the aggrieved party and the Court
5 St. Lawrence Seaway Authority et al. v. Canada Labour
Relations Board et al. (1979), 31 N.R. 196 (F.C.A.).
is, by subsection 28(5), required to dispose of it
expeditiously. While the Board's rescission of a
decision might render a section 28 application
moot, an offer to review the decision does not.
I see no alternative but to quash the decision
entirely notwithstanding the considerable invest
ment of the Board and parties in the proceedings.
The decision runs to just over 94 typed foolscap
pages. It is eloquent and, in places, impassioned. In
view of the vehemence with which the decision has
been expressed, it would be most unwise for the
same members of the Board to undertake any
rehearing of the complaints and I would direct
that the panel rehearing them not include any of
those members.
* * *
The following are the reasons for judgment
rendered in English by
COWAN D.J. (dissenting): I have read the rea
sons for judgment of Mahoney J., and agree with
his reasoning on the points raised on behalf of the
applicant, EPA, with the exception of those relat
ing to the alleged action in excess of jurisdiction on
the part of the Board and to the alleged failure of
the Board to observe a principle of natural justice.
I am unable to agree with the proposition that
the Board acted in excess of its jurisdiction when it
found that EPA committed an unfair labour prac
tice, within the meaning of that phrase as used in
sections 184(3)(a)(vi) and 184(3)(c), when, "as
reflected in clause 12 of the Return to Work
Agreement, it conferred permanent status on the
replacements hired during the lawful strike ...
from outside the bargaining unit".
Even if it is assumed for the purpose of argu
ment that the Board erred in making that finding,
such an error would, in my opinion, be an error in
law in the course of making a decision which the
Board had jurisdiction to make and, as such, is
excluded from judicial review by this Court by the
provisions of section 122 of the Canada Labour
Code.
In addition, in my opinion, the finding in ques
tion was not one made by the Board in order to
base its jurisdiction on that finding. The jurisdic
tion of the Board is founded on three complaints
made by CALPA that EPA had committed unfair
labour practices.
Section 187 of the Code authorizes the making
of such complaints and section 188 imposes on the
Board, in the circumstances of the present case,
the duty to hear and determine the complaints.
Section 189 provides that where, under section
188, the Board determines that a party to a com
plaint has failed to comply with the relevant sec
tions of the Code the Board may, by order, require
the party to comply with the relevant sections and
the Board is given wide powers to make orders to
enforce compliance.
The finding of the Board which is attacked is
not the only finding of unfair labour practices on
the part of EPA made by the Board. The order of
the Board sets out eight additional findings of
unfair labour practices and breaches of sections
148(a), 184(1)(a), 184(3)(a)(vi) and 184(3)(b)
and (c), and the order of the Board was based on
those findings as well as on the specific finding as
to the permanence of employment of the replace
ments hired during the strike from outside the
bargaining unit.
It should be kept in mind that the finding in
question is not a finding that the conferring of
permanent status on the replacement pilots would
itself be an unfair labour practice. The finding is
that EPA committed an unfair labour practice
when "as reflected in clause 12 of the Return to
Work Agreement, it conferred permanent status
on the replacements".
The provisions of the Return to Work Agree
ment and, in particular, those of clause 12 are
dealt with by the Board in its decision of May 27,
1983. (Case, pages 652-655.) The Board found
that some of these provisions were most unusual
and vitally affected the job security of employees
who engaged in the strike. These provided that all
pilots on strike would be placed on lay-off; that the
laid-off pilots would only be recalled to work when
vacant positions became available; that for a
period of sixty days they could be recalled out of
seniority; that the collective agreement would not
apply to striking pilots in recall and that they
would be barred from filing grievances on recall
for a period of sixty days and, in particular, that
"the provisions of the Collective Agreement
regarding seniority shall not affect the status and
base location of any pilot, who was already on
active flying duty, or who had commenced, or been
scheduled to commence training on the date of the
signing of this Return to Work Agreement".
The Board then continued in its decision (Case,
page 654) as follows:
The provisions described above would have the effect of
providing super-seniority or, for practical purposes, permanent
employment for employees in the bargaining unit who con
tinued to work during the strike or crossed the picket line and
were working or available for work at the end of the strike. It
also provided the same superior conditions for new employees
hired during the strike and even for any employees who had
never worked in the bargaining unit but were in training or
scheduled to report for training when the strike terminated.
Clearly, the employer had entered into individual contracts
of employment with certain individuals, guaranteeing them
preferential treatment over striking employees on the condition
that they did not engage in the strike or, more specifically,
provided they were not participating in the strike on its termi
nation, which is of the nature of the notorious "yellow dog"
contracts, forbidden by Section 184(3)(b) of the Code.
In my opinion the Board acted within its juris
diction in making the finding in question to the
effect that the granting of permanent status to the
replacement pilots in the circumstances of the case
and with the discriminatory effect on the striking
pilots flowing therefrom and from the provisions of
the Return to Work Agreement constituted an
unfair labour practice, contrary to the relevant
sections of the Code.
While, for the purpose of argument, I have
assumed that the Board erred in making that
finding, I am not convinced that it did, in fact, err.
For the foregoing reasons I am of the opinion
that the Board did not act beyond its jurisdiction
in making the decision and order dated May 27,
1983.
With regard to the allegation that the Board
failed to observe a principle of natural justice it is
submitted that EPA was denied the opportunity to
complete its evidence on the CALPA complaint
under paragraph 184(1)(a) and to present any
evidence at all, beyond the common evidence, on
the remaining complaints, including its own.
The hearing before the Board began on the
morning of April 18, 1983, and three days had
been scheduled for completion of the hearing of
evidence and the argument on behalf of the par
ties, CALPA and EPA. On April 19 and 20 the
hearing continued until late in the evening and, on
the evening of April 20, the Chairman of the
Board stated that the Board would finish the
hearing by the end of the day on April 21, an
additional fourth day having been scheduled. All
CALPA's witnesses had been heard with respect to
the first complaint of CALPA and three witnesses
had been called on behalf of EPA, the last of
whom had been giving evidence for approximately
twenty minutes when the hearing adjourned at
10:40 p.m. on April 20.
Captain Lacey, one of the CALPA witnesses,
had been cross-examined by EPA counsel for nine
hours. On at least one occasion the Chairman
reminded EPA counsel that some of the questions
were repetitious and on a number of occasions he
mentioned the limitations of time set by the Board.
When the hearing reconvened on April 21 at 9
a.m. there was a discussion about exhibits and the
Board held an in camera meeting with counsel.
The proceedings at that meeting are described in
the affidavit of Farley and in his cross-examina
tion on that affidavit. There is no other record of
what happened at that meeting and it must be
accepted that the Chairman stated that the Board
had the power to decide when it had heard enough
proof to order the parties to argue; that the Board
intended to finish all five complaints by that
evening; that EPA counsel stated that this would
be impossible; that the Chairman stated that the
Board was directing the parties to produce what
documents they could by consent and that he was
directing them to argue immediately after lunch,
and that at no time during that meeting, or during
the public hearing, did the Board ask EPA counsel
to declare his client's case closed.
The parties then met and agreed to the admis
sion in evidence as exhibits of a considerable
number of documents. The Board reconvened the
public hearing after 11 a.m. and it is clear that all
available documentary evidence with respect to all
complaints was then placed before the Board by
the parties. The Board stated that it would accept
the evidence already given in respect of the first
CALPA complaint as evidence in the other four
complaints and that it would hear argument after
the lunch recess which then took place.
Counsel for EPA did not at any time in the
public hearing on the morning of April 21 object
to the action of the Board in stating that it would
hear no further oral evidence, nor did he state that
EPA had additional witnesses which it was propos
ing to call to give evidence.
An affidavit of Ronald Young, Director of
Industrial Relations of CALPA, was produced on
this section 28 application. Young was not present
at the in camera meeting of April 21, but was
present during the public hearing sessions of the
Board. His affidavit states, in part, as follows:
9. THAT On the evening of April 20th, Chairman Lapointe
asked Mr. Heenan if he could give the Board some indication of
how many more witnesses he would be calling to which Mr.
Heenan responded that he had one long and one short witness.
10. THAT the Chairman suggested that due to the lateness of
the evening, the short witness be called.
11. THAT Mr. Heenan stated that this witness was not
available that evening.
12. THAT Chairman Lapointe suggested that Mr. Heenan
therefore proceed with the long witness.
13. THAT this witness was Captain Chester Walker.
14. THAT the short witness was never identified by Mr.
Heenan.
15. THAT Mr. Harry Steele was present the morning of April
21st and that no request was ever made on that day by Mr.
Heenan for permission to examine Mr. Harry Steele or any
other witness.
16. THAT on the evening of April 20th, Mr. Heenan did put
Captain Chester Walker on the witness stand.
17. THAT during his examination in chief of Captain Walker,
Mr. Heenan was reminded more than once by Chairman
Lapointe who told him that he was going over evidence which
was already before the Board.
18. THAT from at least the morning of the 19th of April until
the very last day of hearings, Chairman Lapointe repeatedly
cautioned both counsel that the hearings would be finished
within the times set down, originally scheduled to be completed
on the 20th of April, and subsequently extended to the 21st of
April, and that they would be well advised to produce all their
evidence without delaying the proceedings.
19. THAT to my knowledge, at no time during these hearings
did counsel for EPA or CALPA ever request or demand addition
al time or opportunity to call other witnesses.
20. THAT to my understanding all the evidence which was
being adduced by both counsel from the start to the finish of
the hearings was accepted as proof before the Board on all five
complaints.
21. THAT on the morning of April 21st, during the testimony
of Chester Walker, Chairman Lapointe asked the parties to
meet privately with the Chairman.
22. THAT I was not present at those meetings.
23. THAT when those meetings were completed, counsel for
CALPA asked myself and a number of other people to help
review any pertinent evidence not yet submitted by CALPA.
24. THAT this evidence was necessary in order to complete
our proof on all complaints.
25. THAT it was my understanding that counsel and repre
sentatives for EPA were simultaneously involved in this same
process of reviewing its evidence to finalize their case.
26. THAT upon our return to the public hearing room before
lunch, the Chairman ascertained from both counsel that all
pertinent evidence was now before the Board.
27. THAT at that time the Chairman did tell the parties that
in the Board's view all pertinent evidence had been elicited and
that the Board felt that they were in possession of all relevant
facts in all five complaints.
28. THAT both counsel confirmed to the Chairman their
agreement as to the submission of final exhibits and that the
Chairman then regarded proof as having been closed.
29. THAT both parties were then instructed to return after
lunch for the presentation of their summations on all matters
before the Board.
30. THAT there was no objection from either counsel to
proceeding in this manner.
After referring in detail to the argument of EPA
counsel in the afternoon of April 21 the affidavit
continues:
37. THAT throughout the above arguments Counsel for EPA
never requested, demanded or otherwise indicated an expecta
tion or a desire to continue with other witnesses or evidence.
38. THAT it was apparent throughout the Hearing that the
complaints would be disposed of by the 21st of April.
39. THAT it was absolutely clear on the morning of the 21st
of April that the Board regarded itself as having a clear picture
of all the facts relevant to all five complaints before it.
40. THAT there was no doubt before, during or after summa
tion by both Counsel, that evidence and argument was com
pleted on all complaints and that the Board would indeed issue
its Decision on that basis.
Young was cross-examined extensively on his
affidavit and repeated his statements to the effect
that, at the resumption of the public hearing some
time after 11 a.m. on April 21, the Chairman of
the Board asked counsel for the parties if there
was an agreement as to all the evidence and all the
exhibits on all the complaints, and stated that the
Board was in possession of all the facts in all the
complaints and further, that he was satisfied that
the evidence was in. (Transcript of cross-examina
tion of Young, pages 48-49; 51-53.)
The Board produced as part of the Case and as
a document forming part of its records in the file a
public hearing report (Case, pages 609-611) which
states that it was prepared by S. Chartrand with
respect to the hearing held on April 18-21, 1983. It
bears the initials of a clerk "S.C." and of the
Chairman "M.L.", the Chairman of the Board at
the hearing being Marc Lapointe, Q.C. The report
is not otherwise verified by affidavit or otherwise
and the date of its preparation is not stated. The
report contains the following statements (Case,
page 611) with regard to the proceedings of April
21:
April 21, 1983
The hearing reconvened at 9.25 a.m. and as more objections
continued as to the relevance of evidence to the file under
consideration the hearing recessed for the Board to meet with
the representatives of the parties. The representatives of the
parties again requested that the evidence adduced in one case
be joined to include all cases as evidence in the three CALPA
complaints and the two EPA complaints. The Board met pri
vately following which it informed the parties that it would
agree to their request in view of the great amount of evidence
which had already been introduced by both parties and which
could not but have pertinency in all complaints. The Board also
suggested that if the parties could see their way clear to making
a stipulation as to the balance of the evidence remaining to
complete all files, it could greatly reduce the time needed to
complete the evidence of both sides in all five cases.
Counsel for the parties then met separately and reported back
to the Board (still recessed) that they had agreed to a stipula
tion of all additional evidence. Exhibits 57 to 63 were filed on
behalf of EPA and exhibits 64 to 66 were filed on behalf of
CALPA. Counsel for EPA stated that if pilots working for Austin
Airways were called to testify they would state that they had
indeed received copies of exhibit 27. That stipulation was
agreed to on behalf of CALPA.
The Board reconvened the public hearing and formally granted
the request of the parties to join the five applications and to
place all evidence adduced on all five files. The Board also
asked counsel to confirm their agreement as to additional
evidence to be added to all files to complete evidence. Upon this
confirmation by counsel the Board recited the list of additional
exhibits. The stipulation concerning Austin Airways pilots who
would testify that they had received exhibit 27 was made
publicly by counsel for CALPA. The evidence having been
completed the Board announced that it would recess for lunch
following which it would hear the argument of the parties.
When the Board reconvened after lunch the parties submitted
their arguments on the preliminary objections and on the merits
of all applications. On the conclusion of the argument the
Board said it would render its decisions as soon as possible.
Representatives of the parties thanked the Board and indicated
that they would file jurisprudence. Mr. Heenan also indicated
that he would file material which he had agreed to provide
during the course of the hearing concerning the date of the
CALPA Board of Directors approval of the strike at EPA. Mr.
LaPointe [sic] said the Board would allow it to be filed no later
than April 22nd, 1983, with a copy to Mr. Heenan and
reserving Mr. Heenan's right to make representations on that
issue if necessary.
While it may be said that the hearing report is
not formally proved and may be considered to be
self-serving, it does state that the parties, at the
resumption of the public hearing sometime after
11 a.m. on April 21, confirmed their agreement as
to additional evidence to be added to all files to
complete evidence. This is consistent with the
statements made by Young in his affidavit and on
cross-examination on this point.
It is to be noted that EPA did not, at the
resumption of the public hearing, object to the
action of the Board in closing off the taking of
further oral evidence. Counsel for EPA had object
ed at the in camera meeting and stated that he had
further witnesses to be called, but he did not
repeat that objection at the public hearing. I would
have expected him to object and ask that his
objection be noted by the Board for the record if
he did not, in fact, agree that all necessary evi
dence, documentary and oral, was before the
Board with respect to all the complaints after the
parties had produced the additional exhibits fol
lowing the morning recess. The person who pre
pared the hearing report referred to above was,
apparently, careful to note a number of objections
made from time to time by counsel.
There is no affidavit from Mr. Harry Steele,
President of EPA, setting out in detail the kind of
evidence he would have given if called to give
evidence or denying the making of statements
attributed to him in the documents produced and
in the oral evidence given before the Board.
Kevin C. Howlett made an affidavit taking issue
with certain of the Board's findings as to the
contracts of employment with the replacement
pilots and said that he was to testify before the
Board that at no time during the strike did EPA
offer to change the seniority of any of the striking
or new pilots; that the employment form used for
pilots hired after March 1, 1983, was the same
form used for all new employees of EPA, except
senior management; that while the Board, in its
decision, made reference to individual contracts of
employment with the new pilots for a term extend
ing beyond the date of termination of the strike, as
a matter of fact only the standard forms were
signed with the new pilots and that at no time
during the strike did EPA threaten to fire or
change the seniority of any striking pilot.
However, the Board had before it the Return to
Work Agreement, which it interpreted as contain
ing provisions which gave the new pilots the right
to remain in other jobs after the end of the strike,
on terms which affected the seniority rights of the
pilots who were on strike when the strike ended.
The contracts of employment may well have been
in the usual form, for a hiring for an indefinite
period, but that is not inconsistent with the
Board's findings. If the form of the contracts
entered into by EPA with the new pilots was
considered by it to be significant, there was ample
opportunity during the four days of hearing to
produce them as exhibits. They would speak for
themselves when considered in the light of the
other evidence before the Board.
Captain Chester Walker, Vice-President Opera
tions and Maintenance of EPA, completed an
affidavit and stated inter alla:
22. THAT I would have testified that it was taking over three
weeks to train newly hired skilled pilots to fly on our airline,
and to be certified by the Ministry of Transport, before the
pilot could be released for line flying during the strike.
23. THAT at the time of the decision of the Board, none of the
pilots still on strike were qualified to fly, all of whom have to be
requalified after ground school, simulator training, aircraft
training and flying under supervision, some of this being con
ducted under Ministry of Transport supervision, and taking
about a week.
These paragraphs raise questions which do not
appear to be relevant to the matters before the
Board. No one raised any question before the
Board, or before the Court, as to the necessity of
requalification of pilots after a lengthy lay-off in
order to meet Department of Transport require
ments, but that does not affect the findings of the
Board that the striking pilots, even after any
necessary requalification, were to be placed at a
disadvantage as compared with the replacement
pilots and as compared with their positions prior to
the strike.
Having regard to the whole of the evidence I am
not convinced that EPA was not given a fair
hearing and an adequate opportunity to present its
case before the Board, or that the Board failed to
observe a principle of natural justice.
After the filing of the section 28 application the
Board invited the parties to appear before the
Board and take part in a review by the Board of its
May 27, 1983, decision and order, including the
submission of any relevant additional evidence or
argument. CALPA appeared and offered no addi
tional pertinent evidence and EPA appeared as a
matter of courtesy to the Board but declined to
adduce any additional evidence or argument on the
ground that since judical review proceedings had
been taken by it EPA objected to a reopening of
the hearing.
It seems clear that the existence of the power in
the Board under section 119 of the Code to review
its own decision does not have the effect of validat
ing that decision or of placing that decision beyond
the power of review of the Court under paragraph
28(1)(a) of the Federal Court Act. In my view,
however, the fact that the applicant, EPA, is com
plaining that the Board did not, in April 1983,
afford it the opportunity of presenting all the
evidence it had available to it; that the Board
offered a rehearing on August 2 and 3, 1983, in
order that any relevant additional evidence might
be adduced by the parties; and that EPA refused
to participate in that rehearing and to adduce
additional evidence, lends support to the conclu
sion that on April 21, 1983, it really did not have
any relevant additional evidence to adduce before
the Board and was content to rely upon what it
thought was the weakness in law of CALPA's case
and the absence of power in the Board to grant the
kind of relief sought by CALPA, whatever the
state of the evidence might be.
For the foregoing reasons I would dismiss the
paragraph 28(1)(a) application of EPA.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.