Air Canada Pilots Association v. Air Line Pilots Association

Air Canada Pilots Association v. Air Line Pilots Association
Court (s) Database
Federal Court Decisions
Date
2005-05-20
Neutral citation
2005 FC 723
File numbers
T-1261-03
Decision Content
Date: 20050520
Docket: T-1261-03
Citation: 2005 FC 723
BETWEEN:
AIR CANADA PILOTS ASSOCIATION
Applicant
- and -
AIR LINE PILOTS ASSOCIATION and AIR CANADA
Respondents
REASONS FOR ORDER
DAWSON J.
[1] On January 4, 2000, Air Canada merged with Canadian Airlines International Ltd. ("Canadian"). At that time, Air Canada's unionized pilots were represented by the Air Canada Pilots Association ("ACPA") and Canadian's unionized pilots were represented by the Air Line Pilots Association ("ALPA"). On August 3, 2000, the Canada Industrial Relations Board ("Board") declared Air Canada to be a single employer under the Canada Labour Code, R.S.C. 1985, c. L-2 ("Code"). Subsequently Air Canada, ACPA and ALPA confirmed to the Board their view that two certified bargaining units of pilots were no longer appropriate and requested that the Board replace the two bargaining units with a single, consolidated bargaining unit.
[2] This present litigation reflects the continuing inability of the parties to determine the pilots' seniority issues that arose in consequence of the merger of the two separate bargaining units into a single, combined bargaining unit.
INTRODUCTORY FACTS
[3] While the parties were unable to reach agreement on the pilots' seniority issues, they did agree upon a process to resolve the dispute. Pursuant to the consent of the two unions, an arbitration was held before Arbitrator Morton G. Mitchnick to determine a merged pilot seniority list. Arbitrator Mitchnick's award was then incorporated into an order of the Board dated May 2, 2001.
[4] Following the Board's May 2, 2001 order, ALPA applied for reconsideration of the Board's order pursuant to section 18 of the Code. On July 10, 2002, the Board released its decision, setting aside Arbitrator Mitchnick's award on two grounds: first, on the ground that it had not complied with the Code principles governing seniority integration, and second, that sufficient written reasons had not been provided to support the decision. While this decision of the Board (cited Air Canada (Re), [2002] C.I.R.B.D. No. 31; CIRB Decision No. 183) did not finalize the relevant seniority lists, it did set out certain principles that were to govern the determination of seniority integration pursuant to the Code. The Board directed the parties to enter into another process to produce a new seniority list based on these principles, and the Board reserved its jurisdiction over that continuing process.
[5] The parties were unable to agree upon and produce a new seniority list. However, the "merger committee" for each pilot group and Air Canada agreed to a mediation/arbitration process to be conducted by a three-person panel, chaired by Arbitrator Brian Keller. Each pilot union would nominate a member of the panel to bring the panel to its full complement. The parties signed a memorandum of agreement with respect to the arbitration process. The agreement, among other things, provided that the Chair's award would be the award of the panel in the event that both nominees dissented from his award. The agreement also provided that the panel would function as a "tripartite mediation/arbitration panel" and that the panel "will determine a mediation/arbitration hearing schedule and its own process after consultation with the parties".
[6] The Board retained supervisory jurisdiction over the process in order to ensure that the resulting seniority list complied with the principles enunciated in the Board's July 10, 2002 decision.
[7] On June 16, 2003, Chairman Keller issued his award. Both union nominees to the arbitration panel (Mr. Ronald A. Pink, Q.C. for ALPA and Mr. Menno Vorster for ACPA) issued dissenting awards. ACPA's nominee's dissent was issued on June 25, 2003 and ALPA's nominee's dissent was issued on July 8, 2003. ACPA's nominee and Chairman Keller subsequently each issued an addendum to their award. ACPA's nominee's addendum was issued on August 6, 2003 and Chairman Keller's was issued on August 13, 2003.
[8] ACPA sought a review of the Keller award by the CIRB on the basis that the decision was not decided within the parameters set in the Board's Decision No. 183. On January 28, 2004 the Board, in a decision cited Air Canada (Re), [2004] C.I.R.B.D. No. 4, CIRB Decision No. 263, deferred to the conclusions reached by Arbitrator Keller, expressing the view that it had exhausted any residual jurisdiction concerning the seniority integration process that it had reserved to itself. The Board also concluded that it would not exercise any discretion it possessed to embark, on its own motion, upon an inquiry into the issue of seniority integration.
[9] By application filed February 19, 2004, ACPA applied for reconsideration of that decision. That application was dismissed by the Board on December 14, 2004 by CIRB Letter Decision No. 1170.
[10] On February 14, 2005, the Federal Court of Appeal dismissed the application for judicial review brought by ACPA from CIRB Decision No. 263. The Court agreed with the Board's conclusion that its intervention was neither warranted nor justified.
[11] This application for judicial review is brought in respect of Chairman Keller's award. ACPA seeks an order quashing the award on grounds that various acts and omissions of Chairman Keller deprived ACPA of procedural fairness and gave rise to a reasonable apprehension of bias.
THE POSITIONS OF THE PARTIES AND THE ISSUES TO BE DETERMINED
[12] In the submission of ACPA, Chairman Keller:
4. [...] was entrusted with a dispute of the most serious import for thousands of affected airline pilots. Yet he failed to follow even the most basic precepts of procedural fairness. The Chair attended a private party hosted by one of the litigants, to which the other litigant was not invited and did not attend. The Chair publicly criticized the personal characteristics of one litigant, while praising the other litigant. The Chair ordered that the hearing was at an end, then reopened it to allow only one litigant to tender new evidence, while denying the other litigant the right to respond or tender its own evidence. The Chair even purported to dismiss one litigant's nominee from the arbitration panel, without telling that nominee. In every case, the Chair's irregularities favoured ALPA and prejudiced ACPA. Finally, the Chair issued an award that dramatically favoured ALPA and prejudiced ACPA and the pilots it represented.
[13] In the result, ACPA frames the issues to be decided to be:
(1) Did Arbitrator Keller violate the rules of natural justice by attending a social function with one of the parties during the arbitration hearing?
(2) Did Arbitrator Keller violate the rules of natural justice by making disparaging comments about the representatives of one of the parties?
(3) Did Arbitrator Keller make an error of natural justice by excluding one of the panel members from the panel's deliberations?
(4) Did Arbitrator Keller make an error of natural justice by accepting submissions from one party without permitting the other party to respond?
(5) Did Arbitrator Keller lose jurisdiction by failing to follow the panel's procedural directions to the parties?
[14] ALPA responds that:
(a) ACPA was not denied the right to a fair hearing. In particular, ACPA was itself responsible for the alleged failures of which it now complains. They were a product of ACPA's conduct during the proceedings and of its decision to abandon the Keller process.
(b) There is no reasonable apprehension that Mr. Keller was biased against ACPA.
(c) Further, this Honourable Court should exercise its discretion not to award a remedy to ACPA because ACPA brings this application without clean hands. In addition, the Canada Industrial Relations Board has already declined to interfere with the substance of Mr. Keller's award on the basis that the award complies with the Canada Labour Code and that sound labour relations policy and common sense demand that this protracted dispute be brought to an end.
THE EVIDENCE
[15] To support its assertions that Chairman Keller's conduct deprived ACPA of procedural fairness and gave rise to a reasonable apprehension of bias, ACPA filed the affidavit of Captain Kevin Whiteside. He is a long serving Air Canada pilot who at all material times was a member of the ACPA merger committee and who served as one of ACPA's "data representatives". The data representatives were union members who were able to use electronic data that Air Canada provided about the pilots to be included on the merged seniority list, in conjunction with software programs, in order to display the seniority list that would result from particular methods of merging seniority lists. This manipulation of the data allowed assessment of the impact that any particular proposed merged list would have upon pilot jobs and salaries. ACPA also filed the affidavit of a second pilot, Captain Bruce Durrer, relevant to the issue of the Chair's alleged bias.
[16] In response to Captain Whiteside's affidavit, ALPA filed the affidavit of Captain Robert McInnis. He is a long serving pilot who initially flew with Canadian and who now flies for Air Canada. He chaired ALPA's merger committee. A supplementary affidavit sworn by Captain McInnis was filed that slightly modified his earlier affidavit.
[17] The recollections of Captains Whiteside and McInnis about significant events vary dramatically. Neither deponent was cross-examined. The chief difficulty in this application for judicial review is to discern from the conflicting evidence what actually transpired.
i) Conduct of Keller Arbitration - ACPA's Version of Events
[18] ACPA describes the significant events surrounding the arbitration to be as follows.
Panel Spent More Time with ALPA than ACPA during Mediation
[19] ACPA recalls that, during the mediation phase, the panel spent most of the time exploring ALPA's proposed solutions, and Chairman Keller showed virtually no interest in exploring items and concepts proposed by ACPA. ACPA raised this issue with the panel on the last day of mediation. While Chairman Keller initially refused to schedule one additional day with ACPA, after Mr. Vorster's intervention, the Chair eventually reversed his decision. However, ACPA says that, even with the additional day, the panel spent far more time with ALPA than with ACPA.
Ground Rules
[20] Chairman Keller informed ACPA that the mediation phase would end, and the arbitration hearing would resume, when the panel concluded that there was nothing further to be gained from further mediation. Therefore, ACPA made all of its concessions during the mediation phase. Chairman Keller ended the mediation phase on April 13, 2003 (although subsequently an additional day was given to ACPA on May 2, 2003 to ensure that its position was fully understood by the panel). On May 4, 2003, following the hearings, the panel reserved its decision and retired to deliberate on a final award in executive sessions.
[21] Prior to the first executive session, Chairman Keller issued the following directive to the parties by way of an e-mail sent to counsel:
Menno, Ron and I spoke last night about when and where our first, but not necessarily last, executive session will take place and some clarification about the process is required. First, when the stage of final submissions is completed the process will be left to the panel to complete in the fashion they consider appropriate. Second, at that point the parties will not, absent communications from the panel to them, and if required only by the panel, have any further role to play in these proceedings. Third, the "techninical [sic] gurus" will become part of the deliberative process of the panel, will attend at the location of the executive session(s) with the panel and their role will be limited to assisting the panel. As discussed earlier in these proceedings, at that stage they will not be able to communicate back to their respective parties unless the panel asks/gives them permission to do so. This last point is critical to the panel being able to complete its mandate !
All of this means that where, how and when the executive session(s) take place is/are within the sole discretion of the panel. We obviously can't prevent anyone from attending at the locale where we intend to deliberate, but it should be made very clear that their attendance is not requested or required. All that we will require is some means of communicating with counsel who in turn can communicate with their clients if necessary.
MAP Proposal
[22] ACPA says that, on the second last day of mediation, Chairman Keller assured ACPA that he would not award "Mapping". This was a seniority list adjustment mechanism that ALPA sought for the purpose of compensating former Canadian pilots for their higher rate of retirements ("MAP" is an acronym for Mutual Attrition Preservation). Mapping would have worked to the benefit of Canadian pilots, and to the detriment of Air Canada pilots. Therefore, ACPA was strongly opposed to the Mapping proposal, but did not make any submissions on it, after being assured by Chairman Keller that he would not award Mapping. ACPA claims, however that Chairman Keller's final decision included what, in substance, was ALPA's Mapping adjustment that Chairman Keller had expressly assured ACPA that he would not award. ACPA says that Chairman Keller gave it no further opportunity to be heard on the impact of the Mapping adjustment.
Submission of New Proposals
[23] On the third day of the executive sessions, Chairman Keller informed the data representatives of a change in the ground rules. He identified a number of new facts and principles that would govern the panel's award, and invited each party to submit three new proposals incorporating those new principles. ACPA recalls that ALPA submitted three proposals that contained elements never raised or discussed before the end of hearings, and ACPA was given no opportunity to react to these elements. ACPA, on the other hand, had tabled all of its proposals during the mediation phase, and had believed that ALPA had done so as well.
Extra Submissions & Breach of Ground Rules
[24] On June 6, ACPA's nominee on the panel informed ACPA that Chairman Keller had requested and accepted new evidence and submissions from ALPA alone, without telling ACPA's nominee about the request or inviting ACPA to respond to ALPA's new evidence. The new evidence concerned Air Canada's route structure, aircraft assignment and the technical capacities of different aircraft. ACPA complained to Chairman Keller regarding this violation of the panel's procedural ground rules, but Chairman Keller did not respond to the complaint. His final award expressly relied upon evidence about Air Canada's route structure and aircraft assignment.
[25] Also on June 6, ACPA discovered that Chairman Keller was pursuing, for the first time, another ALPA proposal under which Canadian pilots would be compensated for "the Mitchnick effect" (the detrimental impact of the original Mitchnick arbitration award on Canadian pilots). ALPA produced new calculations, different from the evidence it had submitted during the hearing, indicating that the former Canadian pilots had lost $13 million annually due to the Mitchnick list award. The ACPA data representatives could not determine the basis of the ALPA calculations.
[26] That same day, ACPA was informed that Chairman Keller had already reached a decision on all but a few elements of the arbitration. Chairman Keller had decided on his solution without giving ACPA the opportunity to respond to the new evidence he had secured from ALPA.
ACPA's Withdrawal from Process
[27] In light of Chairman Keller's apparent disregard for, and lack of interest in, ACPA's case throughout the proceedings, and his breach of his own ground rules, ACPA's merger committee notified Chairman Keller that it was withdrawing its data representatives as resources to the panel.
Social Event
[28] ACPA also provided details regarding a wine and cheese event organized by the ALPA merger committee. ACPA did not learn until after Chairman Keller's award was complete that this wine and cheese event had taken place, and that Chairman Keller had attended it. ACPA's nominee on the panel did not attend this social event. In fact, while members of the ALPA merger committee attended the party with Chairman Keller, no one from ACPA or its merger committee was invited or attended.
Conversation
[29] ACPA provided evidence regarding an alleged conversation between Chairman Keller and an Air Canada pilot, Captain Durrer, seated next to him on a flight that occurred during the hearings. ACPA claims that Chairman Keller told this pilot that the representatives of the Canadian pilots were much more humble than the Air Canada representatives, whom he described as being arrogant. Chairman Keller then assured the pilot that "in two years, you will recover to where you are now".
ii) Conduct of Keller Arbitration - ALPA's Version of Events
[30] ALPA's evidence describes the events surrounding the arbitration as follows.
Panel Spent More Time with ALPA than ACPA during Mediation
[31] ALPA concedes that, during the mediation, the panel did spend more time exploring ALPA's proposals. However, ALPA says this was a product of the differing approaches the two unions took to the mediation process. ACPA only offered up a few proposals, and the panel was informed that ACPA's proposals were very close to its bottom line, so the panel should expect little movement in subsequent proposals. ALPA, on the other hand, submitted a number of proposals, including a detailed proposal on how to integrate the seniority lists on the basis of a ratio (MAP proposal). As Chairman Keller noted in the addendum to his decision, the panel was required to spend the time necessary with ALPA during mediation in order to properly understand its proposals. Given that ALPA was making proposals that had to be studied, circumstances required that more time be spent with its representatives than with ACPA's representatives.
[32] After the mediation sessions, the panel granted ACPA one additional day of hearing during which the panel would hear from ACPA exclusively, and spend as much time with ACPA as it felt was required. In addition, at the end of the extra day, ACPA expressed its appreciation to the panel and declared that it was satisfied with the process. At no other point did ACPA request additional time with the panel.
MAP Proposal
[33] ALPA says that Chairman Keller did not award Mapping. ALPA made a MAP proposal which set out a category ratio integration, and addressed the remedial concerns ALPA had regarding the impact of a disproportionate number of ALPA retirements over the short term. MAP was a specific concept for integration which would see each pilot group follow its own retirement attrition so that neither group would advance on the seniority list at the expense of the other. The impetus for the proposal was that Canadian pilots had more projected retirements and should have the benefit of them in the future. Chairman Keller ultimately rejected the MAP proposal of ALPA. This is said to be clear in his decision, as Chairman Keller indicates that Mapping would have created two independent, parallel seniority lists, and the lists could not merge until all existing Canadian pilots retire.
[34] The remedy ultimately chosen by Chairman Keller was based on a category ratio, and Chairman Keller rejected the theory that retirements were a protected equity. Chairman Keller did, however, make a one-time adjustment to the list to address the impact of the Mitchnick award. ALPA notes that the proposal for the one-time adjustment originated from Chairman Keller's discussion with ACPA's nominee.
Submission of New Proposals
[35] On May 18, the panel informed the parties that it had decided upon the facts and principles that would govern its final deliberations, and asked the parties to submit three new proposals for an award, which were to be used to narrow the distance between the parties' previous positions. The proposals were to be submitted by May 26. The panel advised the parties that each party would receive a copy of the other party's proposals for review when it had filed its own proposals. ALPA provided three new proposals, while ACPA did not file any by the stipulated deadline. ACPA did submit one late proposal, on June 6, which the panel accepted and reviewed. When it submitted its proposal, ACPA was provided with ALPA's proposals. ACPA did not object to the proposals at the time or request an opportunity to make further legal submissions regarding ALPA's new proposals.
[36] Given that the principles and facts set out on May 18 were different from the positions taken by either ACPA or ALPA, it was clear that the point of the panel's request for additional proposals was to see something new from the parties based on the panel's new factual findings. Therefore, these proposals would necessarily include elements the parties had not previously submitted.
Extra Submissions
[37] ALPA says that ACPA learned of, and accepted, the data ALPA provided on Air Canada routes and fleet utilization. ALPA does note that there was an additional "data run" prepared by ALPA on June 7 which was to form the basis of discussion at the June 7 executive session. This data run related to a one-time adjustment and was prepared in response to the proposal raised on June 6 by ACPA's nominee that this be considered as a remedy in the final award. When this suggestion was communicated to Mr. Pink by the Chair, Mr. Pink undertook to have ALPA prepare a data run on the issue and have it available for the next day's executive session. The data run was prepared on the morning of June 7. The only reason why ACPA did not receive this data was because ACPA withdrew from the arbitration process on that same morning.
ACPA's Withdrawal from Process
[38] On June 6, Chairman Keller communicated to the nominees the general direction that his award would be taking. He communicated that no final decision had been made about the details of the award, and further executive sessions were scheduled to discuss these details. On June 7, ACPA abandoned the arbitration process, and its nominee also withdrew from the process. As a result, the Chair told Mr. Pink that, given ACPA's withdrawal, he would no longer seek input from ALPA or its nominee. The Chair then wrote his award and the nominees wrote their separate dissents.
Social Event
[39] The social event in April 2003 was organized by the ALPA merger committee for its own members. The event was not arranged especially for Chairman Keller. At the end of the mediation session, the panel members and their spouses were casually invited to the event. The Arbitrator and ALPA's nominee attended, and it is the recollection of the ALPA merger committee that ACPA's nominee also attended. At the event, there was no discussion of the arbitration. As well, at no point prior to this application for judicial review did ACPA raise any concern about the Arbitrator's attendance at the social event.
Conversation
[40] ALPA disputes that the conversation alleged to have occurred between Chairman Keller and an Air Canada pilot even took place. Chairman Keller, in a memo exhibited to Captain McInnis' affidavit, advises that he has no recollection of such a conversation, and believes that it is unlikely that any such conversation would have occurred. In addition, at no point prior to this application for judicial review did ACPA or its nominee raise any concern about this alleged conversation.
STANDARD OF REVIEW
[41] ACPA's concerns in substance are twofold: did it receive a hearing that was in accordance with procedural fairness, and is there a reasonable apprehension of bias on the part of the Chair? Because the issues raised are solely confined to the fairness of the arbitration process, there is no need to conduct a pragmatic and functional analysis. It is for the Court to provide the legal answers to questions as to whether procedural fairness has been adhered to. See: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100; Canada (Attorney General) v. Fetherston, 2005 FCA 111; [2005] F.C.J. No. 544 at paragraph 16.
THE DUTY OF FAIRNESS
[42] There is no doubt that a duty of procedural fairness was imposed upon the Chair when conducting the mediation/arbitration process that was to lead to the merger of the pilot seniority lists. That said, the content of procedural fairness is "eminently variable and its content is to be decided in the specific context of each case". See: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 21. In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at page 685, the majority of the Supreme Court cautioned that administrative bodies are to be given some latitude to develop their procedures. The content of the rules to be followed by an administrative decision-maker is determined by reference to all of the circumstances under which the decision-maker operates. Madam Justice L'Heureux-Dubé wrote at page 685 that:
49 It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by de Smith (Judicial Review of Administrative Action (4th ed. 1980), at p. 240), the aim is not to create "procedural perfection" but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome. [underlining added]
[43] It is the closeness of the administrative process to the judicial process that should indicate how much of the principles that govern our legal system are to be imported into the realm of administrative decision making (Knight, supra at page 683).
[44] In Baker, supra, Madam Justice L'Heureux-Dubé set out a non-exhaustive list of factors that assist when determining what the duty of procedural fairness requires in a particular circumstance. Those factors are:
i) The nature of the decision made and the process followed in making it.
ii) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
iii) The importance of the decision to the affected individuals.
iv) The legitimate expectations of the person challenging the decision.
v) The choices of procedure made by the agency itself.
[45] Madam Justice L'Heureux-Dubé emphasized that "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker".
[46] Applying these factors to the circumstances of this case, the merger of seniority lists is a decision different from a judicial decision in the sense that it involves the exercise of significant discretion, and requires the consideration of a number of factors. The Board described this in the following terms in its reasons for setting aside the Mitchnick award:
[...] the issue that inevitably arises from the need to revisit the Mitchnick award from a Code perspective is how this is to be done. Before considering this, it is useful that certain further observations be made respecting the nature of seniority and possible methodologies that may be used to merge two previously independent seniority lists. First of all, as noted above, all relevant considerations should be assessed, but under the provisions of section 18.1 of the Code, the preservation of pre-existing seniority and related collective agreement rights must be a priority. The Board must undertake this task in the context of the Code in a manner that supports the objectives of the Code including free collective bargaining, sound labour-management relations and in a manner which ensures a just share of the fruits of progress to all. So far as possible, the Board should ensure in matters of seniority integration that neither party emerges from the integration process with any more or less than they entered it with. Put succinctly, there should be no winners and no losers, or all should gain, and collective agreement rights must be effectively recognized and continued if possible. The arbitral jurisprudence may also be relied upon, but it must be carefully assessed in the context of the relevant Code provisions. Additionally, it should be noted that each situation must turn on the facts relevant to it, which may be determinative. As Arbitrator Nicolau expressed it, the integration of seniority lists should be fair and equitable and each matter should turn on its own facts. These facts should be applied against the background of relevant principles. [underlining added]
[47] The Board also noted that the process of integrating lists works best if it is interactive. Thus, any arbitrator was to first have the opportunity of working with the parties in a mediative role. For that reason, the Board did not immediately refer the issue for further arbitration, but rather ordered ACPA and ALPA to again attempt to prepare a seniority list. When that failed, the parties entered into the memorandum of agreement for a mediation/arbitration process and expressly conferred on the panel the power to determine its own procedure.
[48] These considerations, particularly the ambit of discretion, in my view imply neither strong nor weak procedural protections (See: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 116).
[49] Turning to the nature of the statutory scheme, the adjudication arises out of the failure of the parties to themselves agree upon a merged seniority list. However, the Board reserved its jurisdiction over the dispute, and the parties reserved their rights to seek judicial review of the panel's decision. The availability of such review suggests the need for weaker procedural safeguards.
[50] As for the importance of the decision to the affected individuals, the greater the effect on the life of the individual, the greater the need for procedural protections. Without doubt, in the words of counsel for ALPA, the seniority lists "govern in minute detail virtually every aspect of a pilot's career". In the words of ACPA's nominee, "[w]hat makes the seniority issue such a volatile one is that for pilots, seniority dictates the city they live in, the planes they fly, the money they earn, the days they have off, the holidays they take, the routes they fly and the size of their eventual pension income".
[51] The importance of the decision to the pilots is a fact that indicates increased requirements of procedural fairness. However, such requirements do not rise to the same level as where the right to continue in one's employment is at stake.
[52] With respect to the legitimate expectation of the parties, the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision-makers. It will generally be unfair for a decision-maker to act in contravention of representations as to procedure. I discuss below whether, as a matter of fact, the Chair or the panel backtracked on substantive procedural promises, without according significant procedural rights.
[53] Finally, it is relevant to consider the choices of procedure made by the panel, particularly where the panel was given the right to choose its own procedures.
[54] The process followed by the panel was described by Captain McInnis in his affidavit as follows:
40. The parties adopted a mediation-arbitration format in which their nominees would play key roles on behalf of their respective pilot groups at all stages of the process. This permitted a fluid process in which the parties could and did meet separately with the full panel, with the Chair and one panel member, or with their own nominee alone. Private meetings with party nominees were particularly important opportunities for frankly communicating to each party any specific direction from Mr. Keller along with the nominee's sense of the process to date and the effectiveness of the party's submissions and positions. The protocol permitted the panel to develop an effective informal process for the theories of the parties and information required to mediate, and, ultimately arbitrate, the case.
41. In addition to the extensive pre-hearing briefs, with submissions and evidence supporting their interpretations of Decision No. 183, the parties submitted other material to the panel as the process developed. Both sides were able to make submissions and presentations to the panel on any subjects they chose. Both ACPA and ALPA used these opportunities to meet with the full panel, to meet with Mr. Keller and their own nominee, to provide material to the panel through their nominees, as well as to make submissions in formal hearings to the full panel in the presence of the other party. The panel had the ability, in all the above ways, to access knowledgeable pilots, sophisticated computer software, and management representatives, which enabled it to assess various proposals and options very quickly. The panel actively sought evidence of the merits and impacts of various seniority solutions both as proposed by the parties and as suggested by panel members themselves.
42. The idea was to provide the panel with the authority to construct an efficient and effective mediation-arbitration process unlike the more formal adjudicative model. I believe it proved to be the kind of "interactive" process contemplated by the Board in Decision No. 183.
43. Sessions in the first phase of the Keller mediation-arbitration process were held as follows:
a. March 29-30 Toronto
b. April 4-7 Vancouver
c. April 12-13 Toronto
d. May 2-4 Ottawa
44. After an unsuccessful attempt by the Keller panel to achieve a consensual result, the parties were directed to file written final arguments. Hearings on these submissions were held on the final mediation dates, May 3 and 4, 2003. The submissions of ALPA and ACPA at these hearings are attached as Exhibit "5" to my affidavit.
45. Following the final hearing, the panel advised the parties it would deliberate on a final award by holding a series of Executive Sessions. The panel requested support from party-designated experts on pilot data and software experts be present in order to model alternatives arising from the panel's own deliberations. Mr. Keller outlined the Executive Session process to the parties by way of an email dated April 24, 2003, attached as Exhibit "6" to my affidavit.
46. The ALPA and ACPA Merger Committees also convened on location during the scheduled Executive Sessions, anticipating that they might be called upon by the panel. Within limits determined by the panel, the nominees could and did consult with their nominating parties during the course of the Executive Sessions.
[55] This explanation is generally consistent with the process described by Captain Whiteside, and by Mr. Pink in his dissent. Captain Whiteside particularly describes the role of the two nominees on the panel as follows:
25. Chair Keller made it clear at the outset of the hearing that the union nominees would play a dual role in the hearings. First, they would participate in the panel's deliberations to ensure that the concerns of the party nominating them were considered. Second, the Chair would use each nominee as his "go-between", for communicating his messages to the union that nominated him, and for communicating that union's response back to the Chair.
26. As a result, the ACPA Merger Committee relied primarily on its nominee to pass messages or directions to and from the Chair. It was less common for the Chair to convey such matters personally.
[56] Mr. Pink described the process followed at the end of the executive session as follows:
During the last two days of the Executive Session, the Chair essentially engaged the nominees in more mediation on behalf of their parties as he continued to explore possible solutions. The mediation was conducted as described by the Chair in his decision and the express intention of the Chair was that after the completion of the final Executive Session, the Chair would make an ultimate decision on behalf of all parties unless he could achieve a consensus.
Mr. Vorster does not dispute this in the subsequently issued addendum to his dissent.
[57] I find this evidence to accurately describe the process established by the panel, without any party objecting per se to that process.
[58] Such a process was interactive and inconsistent with a more judicially modelled process. The parties agreed to a process whereby one or more members of the panel met with one party in the absence of the other, where the panel was to ascertain the positions of the parties before the formal arbitration hearing started, and where even after the arbitration session ended the Chair engaged the nominees in more mediation. Mr. Vorster, in his dissent, noted that, at least until the ACPA merger committee stated it was no longer participating in the process, even during executive sessions the parties had the capability and willingness to demonstrate the effects of elements of an award.
[59] In the face of such agreement as to the process to be followed, in my view, it is inappropriate to apply principles or jurisprudence taken from rights based arbitrations.
[60] The parties, urged by the Board, elected to opt for a system that was flexible, adopted to their needs, and essentially fair. That agreed process requires a degree of deference from the Court and significantly impacts on the content of the requirements of procedural fairness.
[61] Having discussed the content of the duty of procedural fairness, I turn to consider each of the breaches of that duty asserted by ACPA. Because, in oral argument, ACPA's counsel conceded that not every alleged breach alone would be sufficient to set aside the award, I will consider the alleged breaches in the general order in time in which they are said to have occurred. This will better facilitate consideration of the totality of the acts and omissions put forward by ACPA in asserting that the Chair repeatedly made little effort to be fair, or to appear to be fair, particularly after the executive sessions commenced.
THE WINE AND CHEESE EVENT
[62] ACPA says that, on April 8, 2003, during a particularly acrimonious phase of the hearings in Vancouver, the Chair "[attended] a private party arranged by ALPA. No one from ACPA was invited, attended or was notified of the party. The Chair was known to be a connoisseur of wine, and ALPA arranged that its party be a wine-tasting".
[63] ACPA asserts that, because no members of ACPA were present, the Chair's conduct created a reasonable apprehension of bias in favour of ALPA.
[64] ACPA's assertion must be considered in the context of findings of fact as to what actually occurred. I accept the evidence of Captain McInnis that the event was arranged by the ALPA merger committee for its own members (many of whom were not from Vancouver), that the event was not a formal wine-tasting, and that it was not arranged especially for the Chair. I accept this evidence b