A-859-83
L. R. Appleton and all other pilots of Eastern
Provincial Airways Ltd. set forth in Appendix "A"
hereto (hereinafter referred to as the "New
Pilots") (Applicants)
v.
Eastern Provincial Airways Ltd., Canadian Air
Line Pilots Association, Canada Labour Relations
Board, and Deputy Attorney General of Canada
(Respondents)
Court of Appeal, Thurlow C.J., Mahoney J. and
Cowan D.J.—Ottawa, August 23, 24, 25, 26 and
October 5, 1983.
Judicial review — Applications to review — Labour rela
tions — Applicants hired as pilots during air-line strike —
Complaints of unfair labour practices filed by airline and
bargaining agent — Board ordering employer to desist from
giving permanent status to replacement pilots hired from
outside bargaining unit and to reinstate striking employees —
Applicants having standing to file s. 28 application — Appli
cants "parties directly affected" by order within s. 28(2) of Act
— Statute remedial and "party" to be given broad interpreta
tion — Applicants persons against whose interest order was to
be made — Also members of unit for whom Pilots Association
bargaining agent, so de facto parties — Denial of natural
justice — Applicants neither notified of Board proceedings nor
given opportunity to be heard — Board's order relating to
irremovability and applicants' interests set aside — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a),(2) —
Canada Labour Relations Board Regulations, 1978, SOR/78-
499, ss. 13, 14 — 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. 7.
Labour relations — Hiring of replacement pilots during
strike — Complaints of unfair labour practices filed by air
line and bargaining agent — Application by new pilots to
review and set aside Board's order to desist from giving
permanent status to replacement pilots and to reinstate strik
ing employees — Denial of natural justice — Applicants
neither notified of Board proceedings nor given opportunity to
be heard — Applicants "parties directly affected" by order
within s. 28(2) of Act — Board's order set aside in part —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(1)(a),(2) — Canada Labour Relations Board Regulations,
1978, SDR/78-499, ss. 13, 14.
This is an application to review and set aside an order of the
Canada Labour Relations Board made following complaints of
unfair labour practices filed by the respondents, the Canadian
Air Line Pilots Association ("CALPA") and Eastern Provin
cial Airways Ltd. ("EPA") on March 11 and 29, 1983, respec
tively. The applicants are air-line pilots hired by EPA at
various times after March 1, 1983, during a strike. The Board's
order directed the employer, EPA, to cease from conferring
permanent status on the replacement pilots "originating from
outside the bargaining unit" and to reinstate the striking pilots
to their former positions. The issues are whether the applicants
are parties directly affected by the order pursuant to subsection
28(2) of the Federal Court Act, thus having standing to file
this application, and whether they were denied natural justice
on the grounds they were not given notice of the proceedings
before the Board and were not afforded an opportunity to be
heard.
Held (Cowan D.J. dissenting), the Board's decision in so far
as it held that EPA's action in employing replacement pilots
and in seeking to negotiate their irremovability was in violation
of the Canada Labour Code, should be set aside, as well as that
portion of the order requiring EPA to cease from conferring
irremovability upon replacement pilots from outside the bar
gaining unit, and other portions affecting applicants' interests.
Per Thurlow C.J. (Mahoney J. concurring): Although the
Board's order is directed at EPA, the employer, it affects the
applicants directly and immediately, in that it requires EPA to
cease and desist from conferring permanent status on those
applicants who had been hired from outside the bargaining
unit. It also requires EPA to reinstate striking pilots whether or
not that measure displaces new pilots from positions which they
fill. Applicants are "parties" within the meaning of subsection
28(2) of the Act. That statute is remedial, and the word
"party" should be given a broad interpretation. As members of
the bargaining unit for whom CALPA was the recognized
bargaining agent, they were de facto parties, and as persons
against whose interest an order was to be made, they should
have been given an opportunity to become parties. It is clear
from the record that the applicants were neither notified of the
proceedings before the Board nor given an opportunity to be
heard. As a matter of natural justice, they were entitled to such
notice and opportunity.
Per Cowan D.J. (dissenting): Pursuant to the Canada
Labour Relations Board Regulation 13(1), the Registrar of the
Board is required to give notice in writing of an application to
any person who, in his opinion, may be affected thereby. EPA,
as the person whom the Registrar considered to be affected by
the complaints, was given such notice, participated in the
hearing of CALPA's complaints, and brought before the Board
all matters relevant to its relationship with its pilots, including
the applicants. There was no failure by the Board to observe a
principle of natural justice by not giving the applicants or any
of them notice of the complaints or the opportunity to be heard,
since in receipt of CALPA's complaints, the Board had no
information as to any person other than EPA who might be
affected by the complaints. The time at which the question of
notice to interested parties is to be determined is the time when
the application in question is received by the Board. In addi
tion, the dispute between CALPA and EPA was a matter of
common knowledge among all EPA's employees, so that the
applicants hired must be taken to have known of the filing of
the complaints by CALPA and of the proceedings before the
Board. The party directly affected is EPA and any effect on the
applicants as employees is indirect. Applicants' right to liberty
has not been infringed upon.
CASE JUDICIALLY CONSIDERED
APPLIED:
Canadian Telecommunications Union, Division No. 1 of
the United Telegraph Workers v. Canadian Brotherhood
of Railway, Transport and General Workers, et al.,
[1982] 1 F.C. 603 (C.A.).
COUNSEL:
Eric Durnford for applicants.
Roy L. Heenan and Peter M. Blaikie for
respondent Eastern Provincial Airways Ltd.
John T. Keenan, Lila Stermer and Luc Mar-
tineau for respondent Canadian Air Line
Pilots Association.
Ian G. Scott, Q.C. for respondent Canada
Labour Relations Board.
SOLICITORS:
McInnes, Cooper & Robertson, Halifax, for
applicants.
Heenan, Blaikie, Jolin, Potvin, Trépanier,
Cobbett, Montreal, for respondent Eastern
Provincial Airways Ltd.
John T. Keenan, Montreal, for respondent
Canadian Air Line Pilots Association.
Gowling & Henderson, Toronto, for respond
ent Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: The applicants are air-line
pilots hired by Eastern Provincial Airways Ltd.
(EPA) at various times after March 1, 1983,
during the course of a strike by regular pilots of
the air-line. Claiming to be parties directly affect
ed by an order made by the Canada Labour
Relations Board, these new pilots seek the review
and setting aside of the order on the grounds that
they were not notified of the proceedings before
the Board in which the order was made and were
not afforded an opportunity to be heard in support
of their interest in the matter.
The order resulted from three complaints of
unfair labour practices lodged against EPA by the
Canadian Air Line Pilots Association (CALPA) as
bargaining agent for the bargaining unit which
included the striking pilots. The order included the
following:
2.(i) the employer is directed to cease and desist from confer
ring permanent status and, thereby irremovability, to the
replacements originating from outside the bargaining unit hired
during the strike; ...—and—to cease and ';desist from dis
criminating against striking pilots as to reinstatement to their
former or substantially equivalent positions for the sole reason
they participated in a lawful work stoppage.
(iv) the employer, Eastern Provincial Airways Ltd., is ordered
to reinstate, in accordance with the Return to Work Agreement
clauses the parties will have negotiated in substitution of
clauses 7 and 12 as provided in 2(ii) above, each striking pilot
employee to his former or a substantially equivalent position
who will have forwarded the written request as in 2(iii) above,
whether or not a strike replacement employee must be trans
ferred, laid off, terminated or removed from a position to which
he had been promoted, in order to provide work for said
striking pilot.
On the question which arises on the wording
"any party directly affected by the decision or
order" in subsection 28(2)' of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10], I am of the
opinion that at least some of the new pilots
referred to in the above excerpts from the order of
the Board are parties directly affected by the
order. The order is directed to EPA. But it
'28....
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
decision or order by filing a notice of the application in the
Court within ten days of the time the decision or order was first
communicated to the office of the Deputy Attorney General of
Canada or to that party by the board, commission or other
tribunal, or within such further time as the Court of Appeal or
a judge thereof may, either before or after the expiry of those
ten days, fix or allow.
requires EPA to cease and desist from conferring a
status on at least those of the applicants who had
been hired from outside the bargaining unit. It also
requires EPA to reinstate striking pilots whether
or not to do so displaces new pilots from positions
which they fill. No option is given to EPA. Though
it is directed at EPA the order affects the appli
cants as directly and immediately as if it had been
directed to them and had ordered them to resign.
It thus, in my view, affects them directly.
I am also of the opinion that these pilots fall
within the meaning of "party" in subsection 28(2).
The statute is remedial and, as pointed out by Le
Dain J. in Canadian Telecommunications Union,
Division No. 1 of the United Telegraph Workers v.
Canadian Brotherhood of Railway, Transport and
General Workers, et al., [1982] 1 F.C. 603 [C.A.],
at page 611, a broad interpretation should be given
to the word "party" so as to include an applicant
whose rights are directly affected by the order and
who, whether or not technically joined as a party
to the proceedings of the tribunal, should have
been offered the opportunity to be a party. Here
the applicants, whether they were employees
before the strike began or were hired after it
began, were all members of the bargaining unit for
which CALPA was the recognized bargaining
agent. As members of the unit they would be
bound by the collective agreement which the
Board by its order established. Yet it is obvious
that their interests were adverse to those espoused
by CALPA. As members of the unit for whom
CALPA acted they were, in my view, de facto
parties and as persons against whose interest an
order was to be made they were persons who ought
to have been given an opportunity to become par
ties before such an order was made.
The other point that arises is whether as a
matter of natural justice such pilots were entitled
to notice and an opportunity to be heard before
such an order was made. In my opinion, they were
entitled to such an opportunity and while the
affidavit of William Sidor is unsatisfactory as
evidence on the point I think it is manifest from
the rest of the record that they were neither noti
fied nor afforded an opportunity to be heard.
Moreover, there is nothing in the circumstances
disclosed which appears to me to have been cal
culated to warn them that their rights might be
affected, either in the way they have been affected
or otherwise, by any order the Board might have
been expected to make on the complaints before it.
Accordingly, though it may seem pointless in
view of the disposition to be made of the applica
tion of EPA directed against the Board's order, I
would, on this application, set aside (1) the
Board's decision in so far as it held that EPA's
action in employing replacement pilots and in
seeking to negotiate their irremovability was in
violation of the Canada Labour Code [R.S.C.
1970, c. L-1], (2) that portion of paragraph 2(i) of
the Board's order which requires EPA "to cease
and desist from conferring permanent status and,
thereby irremovability, to the replacements origi
nating from outside the bargaining unit hired
during the strike", and (3) paragraph 2(iv) of the
order and those portions of paragraph 2(ii)
referred to in paragraph 2(iv) which affect the
interests of the new pilots.
MAHONEY J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
COWAN D.J. (dissenting): This is an application
under paragraph 28(1)(a) of the Federal Court
Act, brought by the applicants, hereinafter
referred to as the "new pilots", to review and set
aside the decision and order of the Canada Labour
Relations Board (the "Board") dated May 27,
1983. That decision and order were made in pro
ceedings involving the respondents, Eastern Pro
vincial Airways Ltd. ("EPA") and the Canadian
Air Line Pilots Association ("CALPA").
On March 11, 1983, CALPA filed with the
Board three complaints alleging unfair labour
practices on the part of EPA. The Board processed
these complaints and scheduled hearings to com
mence on March 28, 1983. On or about March 29,
1983, EPA filed two unfair labour practice com
plaints against CALPA and public hearings on the
five complaints were held by the Board on April
18, 19, 20 and 21, 1983. On May 27, 1983, the
Board filed the decision and order.
The new pilots were hired as permanent
employees by EPA on an indefinite hiring basis at
various times during the period March 1 to June 1,
1983.
On June 1, 1983, EPA applied to this Court
under paragraph 28(1)(a) asking that the decision
and order of the Board dated May 27, 1983, be
reviewed and set aside. That application numbered
A-783-83 came on for hearing at the same time as
the hearing of the application of the new pilots. By
order of the Court granted June 29, 1983, the case
on appeal, prepared for the EPA application, was
used for the purposes of this application with the
addition of an affidavit of William Sidor, filed
June 27, 1983. In that affidavit Mr. Sidor stated
that he was one of the 34 new pilots who had filed
this application and that he was authorized by all
of the new pilots to make and file the affidavit;
that he applied for employment with EPA as a
pilot and was hired as a permanent employee with
EPA on an indefinite hiring basis on or about May
27, 1983; that he was informed by all the other
new pilots and verily believed that during the
three-month period commencing March 1, 1983,
EPA hired the other new pilots on the same basis
as that applicable to him; that none of the new
pilots was informed or contacted by any employee
or official of the Board with regard to any investi
gation or other proceeding, prior to the hearings
involving unfair labour practice complaints filed
by CALPA and EPA and heard by the Board on
April 18, 19, 20 and 21, 1983; that no notice was
posted on EPA premises, nor was any notice in any
form given to any of the new pilots as to the
proposed hearings, their nature or potential effect
upon their employment with EPA, nor were they
in any way notified by the Board of their right to
participate in person, by representation or by any
other means, at such hearings; that the first oppor
tunity which the new pilots had to determine in
any meaningful way the contents of the Board's
decision dated May 27, 1983, was on or about
June 8, 1983; that if the new pilots had been
notified of the proceedings or hearings they would
have considered it necessary and advisable to
attend in person or by representative to ensure that
their interests in the proceedings were protected;
that it was the view of the new pilots that their
employment positions with EPA and other employ
ers might be seriously and adversely affected by
the decision of the Board, which was made without
their presence and without any notice to them or
opportunity given to them to participate in any
way in the proceedings leading to that decision,
with the result that they believe that they have
been denied natural justice.
The relevant provisions of section 28(1)(a) and
(2) of the Federal Court Act are as follows:
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;
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
decision or order ....
It was submitted on behalf of the applicants that
they are parties directly affected by the decision
and order attacked. They state that in its unfair
labour practice complaints CALPA repeatedly
referred to the involvement of the new pilots in
their dispute with EPA and that the new pilots'
position and, in particular, their continuing
employment status, was an integral part of the
issues joined by the parties in the proceedings
before the Board. They referred to the orders
sought by CALPA from the Board which involve
the new pilots and the right of EPA to continue to
employ new pilots who were not members of the
bargaining unit on January 26, 1983, and the
nature of the employment of new pilots by EPA.
It was pointed out that the Board in its decision
considered the status of the new pilots and that, in
its order, the Board directed EPA to do certain
things and to cease and desist from doing other
things which affected the status of the new pilots.
It was submitted on behalf of the new pilots that
they have standing to apply to set aside the
Board's decision and order under paragraph
28(1) (a) since they are parties directly affected by
the decision and order; that the Board's decision
and order adversely affected the new pilots without
their having been given by the Board any notice of
the proceedings or any opportunity to participate
and that, as a result, they were denied natural
justice. It was further submitted that the failure of
the Board to give notice to the new pilots constitut
ed violations of the rights of the new pilots under
section 7 of 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.)], which provides as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
The matter of notice of applications filed with
the Board is dealt with by the Canada Labour
Relations Board Regulations, 1978 [SOR/78-
499], made under the authority of the Canada
Labour Code. Regulation 13 provides as follows:
13. (1) Subject to subsection (2), the Registrar shall, on
receipt of an application, give notice in writing thereof to any
person who, in his opinion, may be affected thereby.
(2) The Registrar may, in writing, require an employer to
immediately post notices of an application in places where
those notices are most likely to come to the attention of the
employees who may be affected by the application and to keep
the notices posted for a period of seven days.
(3) The Registrar may, in writing, require the employer, in
addition to posting the notices referred to in subsection (2), or
in lieu thereof, to bring the application to the attention of the
employees who may be affected thereby in such other manner
as the Registrar may direct.
(4) Where an employer has complied with a requirement of
the Registrar under subsection (2) or (3), the employer shall,
on request from the Registrar, file a statement to that effect
with the Board.
Regulation 14 provides as follows:
14. When notices of an application are posted by an employ
er as required by the Registrar pursuant to subsection 13(2),
any person employed by that employer who wishes to file a
reply to or intervene in the application is deemed to have
received notice of the application as of the first day the notices
are posted unless, before that day, he has been notified pursu
ant to subsection 13(1) or (3).
It appears that the Registrar of the Board gave
notice in writing to EPA of the complaints filed by
CALPA and EPA appeared before the Board and
participated in the hearing of the complaints and
of the two complaints filed by EPA against
CALPA. It does not appear that the Registrar
required EPA, as the employer, to post notices of
the application as contemplated by Regulation
13(2) or that he required the employer to bring the
application to the attention of the employees who
might be affected thereby, in accordance with
Regulation 13(3).
I note that, by the provisions of Regulation
13(1), the Registrar is required to give notice in
writing of the application to any person who, in his
opinion, may be affected thereby. It is apparent
that the Registrar was of the opinion that the
persons affected by the complaints were EPA, in
the case of the complaints filed by CALPA, and
CALPA in the case of the complaints filed by
EPA. The first complaint filed by CALPA
contained 81 paragraphs, setting out allegations of
unfair labour practices, a request for a number of
declarations and orders of the Board and some 40
pages of exhibits. The two other complaints were
equally detailed and lengthy (see Case, pages
5-93).
The three complaints contained allegations of
unfair labour practices on the part of EPA with
respect to a number of matters, some of which
related to the relationship between EPA and pilots
it proposed to hire as replacements for pilots then
taking part in a legal strike. The complaints filed
on behalf of CALPA were signed on March 7,
1983, and do not allege or disclose that EPA had,
at that time, hired any new pilots and, in this
respect, merely referred to statements alleged to
have been made on behalf of EPA with regard to
its intention to hire new pilots at some future date.
It is clear, therefore, that, on receipt of the
complaints on March 11, 1983, the Board had no
information as to any person other than the
employer, EPA, who might be affected by the
complaints. EPA, as the person who might be
affected by the complaints, was given notice and
filed responses to the three complaints of CALPA
and appeared on the hearings before the Board on
March 29, 1983, and April 18, 19, 20 and 21,
1983. It vigorously opposed the granting of the
relief sought by CALPA and defended its right as
an employer to deal with replacement pilots in the
way in which it proposed to deal with them, prior
to March 1, 1983, and in which it had dealt with
replacement pilots by the time of the completion of
the hearings, April 21, 1983. Its position as an
employer in relation to replacement pilots and the
position of the replacement pilots as employees of
EPA were fully dealt with by EPA and it is quite
clear that all matters relating to the position of the
new pilots, as employees of EPA, were brought to
the attention of the Board and dealt with fully by
EPA.
In my opinion, the time at which the question of
notice to interested parties is to be determined is
the time when the application in question is
received by the Board. This date was March 11,
1983, in the case of the CALPA complaints and,
in my opinion, there is no basis for the allegation
that the Board in this case failed to observe a
principle of natural justice by not giving notice of
the complaints to the applicants or any one of
them, or by not giving to the applicants or any of
them an opportunity to be heard on the hearing of
the complaints.
It was stated on the argument before the Court
that, in the period March 1 to March 11, 1983,
some new pilots had been hired by EPA. It was
suggested that the number was fewer than twelve
but there was no evidence before the Court as to
which, if any one, of the 34 applicants in the
present case were among those new pilots hired by
EPA in that period.
It is apparent from the affidavit of William
Sidor, one of the applicants, that he was hired as
an employee of EPA on or about May 27, 1983,
which is the date of the decision and order of the
Board being attacked. It is quite clear, in my
opinion, that the Board cannot be said to have
failed to observe a principle of natural justice in
not giving him notice of the complaints filed by
CALPA or of the hearings to be held on those
complaints, since the hearings had been concluded
and the decision and order of the Board made,
prior to the time when he became employed as a
new pilot by EPA. There is no evidence, either in
his affidavit or in any other material before the
Court, which indicates which, if any, of the appli
cants was employed by EPA at the relevant date,
March 11, 1983.
In addition, I am of the opinion that the dispute
between CALPA and EPA was of such a nature
and was so prolonged that it was a matter of
common knowledge throughout the territory
served by EPA, and particularly among all the
employees of EPA, including pilots, whether those
who were on strike or those who were hired as
replacements for those on strike, so that the new
pilots who were employed at the relevant time
must be taken to have known of the filing of the
complaints by CALPA and of the proceedings
before the Board.
I am also of the opinion that the applicants are
not parties directly affected by the decision and
order of the Board. The party directly affected is
the employer and any effect on the new pilots as
employees is indirect.
For the foregoing reasons, I am also of the
opinion that the Board has not infringed upon or
denied the right to liberty of the new pilots or any
of them and that the Board has not acted in
relation to the new pilots or any of them, contrary
to the principles of fundamental justice.
It is significant, in my opinion, that at no time
during the hearings before the Board did EPA
suggest to the Board that the new pilots should be
notified or separately represented in the proceed
ings before the Board. This tends to confirm my
view that it was prepared to bring before the
Board and did, in fact, bring before the Board, all
matters relevant to its relationship with its pilots,
including the new pilots.
I would dismiss the section 28 application.
Appendix "A" — Annexe «A»
L. R. Appleton Robert B. MacDonald
J. Ross Bartlett Brian Milson
G. Beland B. O'Connor
Ian G. Black Allan Phillips
Chris Boyer G. Pigeon
Max R. Brunner Robert Poirier
G. Clarke Peter Prins
R. Cortens Rod Pusch
Terrence R. Davis Robert Reeve
S. Gallant William A. Rommens
R. Garback R. Ruschmeier
D. Germain Dwight B. Sharpe
D. Graham William George Sidor
B. Groeneveld S. St. Laurent
D. Hatton Earle Cecil Vance
Franklin S. Horton G. S. Weatherly
Bruce Hughes Lorn S. Yanik
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.