My Fellow Pilots,
Since 1997 ACPA has supported the defence of a lawsuit filed by a group of Air Ontario pilots against a group of Air Canada pilots.
After many years of litigation, a recent decision of the Court of Appeal for Ontario has dismissed all claims against the defendant Air Canada pilots. In short, the Court found that the trial judge was correct in her conclusions of fact and law and dismissed the appeal.
While it is technically possible that an appeal may be filed with the Supreme Court of Canada (SCC) in relation to this matter, given the narrow grounds for appeal at the SCC and the decision at issue, we are cautiously optimistic that this may finally be the conclusion of this long-running dispute. The Air Ontario pilots have until September 19, 2015 to file a request for leave to appeal to the SCC. We will keep you advised of any such action or if and when we can confirm that the matter is finally at an end.
A more detailed explanation of the Air Ontario lawsuit and this recent decision is set out below and the complete decision is posted on the web site next to this newsletter.
To say the least, this has been an epic file. I would be remiss if I were not to try to thank the many people involved in this matter and the membership for your patience and support during the course of this long struggle.
First and foremost, it is important to recognize those who dedicated themselves to seeing this matter through to this positive end. The favourable findings by the Courts in this matter are due largely to the high quality of the evidence that was given by those who testified on your behalf: Air Canada pilots Chris Pulley, Gary Dean, Tom Fraser, Yves Filion, Kevin Vaillant, and ACPA's founding President Dave Edward, as well as former Air Canada CEO Hollis Harris.
Special recognition is owed to Chris Pulley and our legal counsel Steve Waller and his firm, Nelligan, O'Brien, Payne LLP, who dedicated themselves fully to the process of ensuring the appropriate end came to this litigation.
Captain Ian Smith (President)
Air Ontario Fact Sheet and Highlights from June 19, 2015 Decision:
Background to the Litigation
In the fall of 1997, the Air Ontario pilots launched a $300,000,000 lawsuit against all Air Canada pilots who, as of March 28, 1995, were CALPA members on the Air Canada seniority list. The lawsuit claimed financial harm arising from the Air Canada pilots' resistance to implementing the merged mainline/feeder seniority list envisioned by the Picher Award. The lawsuit was originally intended to pressure ACPA into capitulating during regional merger settlement talks and striking a deal favourable to the regional pilots. In addition to the lawsuit, the feeder pilots through CALPA also filed a single employer application with the Canada Industrial Relations Board (CIRB). The hoped-for pressure never materialized. The single employer application was dismissed by CIRB Vice-Chair Michele Pineau on December 23, 1999.
Initially, the lawsuit sought damages for breach of contract. The Air Ontario pilots alleged that the CALPA constitution was a contract between the Air Canada pilots and the Air Canada regional pilots, obliging the Air Canada pilots to pursue a merger of pilot seniority lists, in accordance with the Picher Award. ACPA moved for summary judgment, i.e., asked to have the lawsuit dismissed, based on legal precedent concerning the special contractual character of union constitutions. When it became apparent that the lawsuit was going to be dismissed, the Air Ontario pilots amended their allegations, adding several tort claims including: civil conspiracy, interference with contractual relations and interference with economic interests. The plaintiffs were successful in having the claims consolidated as a class action proceeding in the courts.
As expected, Judge Winkler granted our motion for summary judgment and dismissed the contract claims, in accordance with clear and established law. Judge Winkler did not see as clear a basis in law to dismiss the tort claims, so the lawsuit, based only on those tort claims, proceeded.
The lawsuit was dismissed by the Superior Court of Justice of Ontario on July 25, 2012 but the Air Ontario Pilots appealed that decision to the Court of Appeal for Ontario.
The Lower Court - Air Ontario Pilot Class Action Dismissed by the Superior Court of Justice
On July 25, 2012 Justice Pepall issued a 153-page decision dismissing the class action.
In the class proceeding, more than 170 pilots employed by Air Ontario on March 28, 1995 claimed, among other things, that the defendant Air Canada pilots had committed several torts including but not limited to the tort of unlawful act conspiracy, negligent misstatement and that they breached their fiduciary duty. Specifically, they alleged that specific defined sub classes of Air Canada pilots conspired with each other by expressly or impliedly entering into an agreement or agreements to prevent implementation of the merged seniority list. The plaintiffs also sued for expenses incurred in connection with creating the merged list and for the loss of the chance to implement the merged seniority list.
After a lengthy trial, the judge dismissed all claims. The decision provides a lengthy analysis of each cause of action, the applicable law and the court's finding on that issue. Equally important, the trial judge provided a detailed analysis as to why the Plaintiffs actions did not cause the Air Ontario Pilots "damage", a legal requirement for several of the causes of action.
Our legal counsel, Steve Waller of Nelligan O'Brien Payne LLP, wrote an excellent summary of lengthy decision. It was released to you in MEC newsletter # 48, dated August 14, 2012. For additional detail, you can reread that MEC newsletter on the ACPA website.
The Decision at the Court of Appeal of Ontario dated June 19, 2015
The Plaintiffs appealed Justice Papal's decision to the Court of Appeal of Ontario on the following grounds:
1. The trial judge erred in concluding that a union member's "right to dissent" permitted the defendants in sub-class six (Air Canada rank-and-file who somehow acted to prevent implementation of a merged seniority list) to resist implementation of the merged list. As a result, the trial judge wrongly concluded that the defendants in sub-class six acted lawfully in resisting implementation of the merged list.
2. The trial judge erred in concluding that sub-classes two and four did not commit unlawful acts related to the merged list.
3. The trial judge erred in her causation analysis. She should have concluded that the defendants' unlawful conduct had caused the plaintiffs to lose more than a de minimis chance of having a merged seniority list implemented. She should then have gone on to value that lost chance.
4. The trial judge erred by failing to award damages equal to the $150,280 incurred by the plaintiffs in retaining lawyers and preparing for the arbitration with respect to the merged list.
The three judges of the Court of Appeal of Ontario unanimously rejected each of these grounds, and dismissed the claims, for the following reasons:
On the first ground of appeal the Court clearly and unequivocally ruled that the rank and file Air Canada members were entitled to select a union of their choice, had the right to dissent, and accordingly acted lawfully in resisting the implementation of the merged list. Specifically, the Court reasoned in part as follows:
 . The terms of the contractual relationship between the rank-and-file members of sub-class six and CALPA must be interpreted in light of both the statutory right of union members to choose their union and the labour law principle affording a right to dissent to union members.
 The trial judge concluded, and I agree, that the Constitution and Merger Policy did not expressly require the members of sub-class six to act to implement a merged seniority list. Nor did the Merger Policy expressly require the members of sub-class six to refrain from impeding or thwarting implementation of a merged list. Having regard to the statutory right of union member to choose their union and the labour law principle affording a right to dissent to union members, I would not imply such a term.
On the second ground of appeal, the Court of Appeal confirmed the trial court's decision that the Air Canada pilots who were the Air Canada Pilots Merger Representatives and Negotiating Committee representatives did not engage in unlawful conduct. The court's reasons for this conclusion were in part as follows:
.The trial judge had to decide whether the members of the sub-classes, in their capacities as Merger Representatives or negotiating committee members, breached the Merger Policy. In addition to finding that the members of these two classes acted under the control and direction of the Air Canada MEC, the trial judge found that their conduct did not breach the Merger Policy. The plaintiffs do not articulate how the trial judge erred in her interpretation of the Merger Policy, if they in fact argue that she did err. I am not persuaded that there is any basis to interfere with the trial judge's conclusion that sub-classes two and four did not breach the Merger Policy.
On the third ground of appeal, the Court of Appeal confirmed the trial judge's determination that the test for causation was not met and the plaintiffs failed to prove damages. In reaching this conclusion the court reasoned as follows:
 In my view, all of the plaintiffs' arguments fail in the face of the trial judge's acceptance of Mr. Harris' evidence, her detailed analysis of the circumstances leading to decertification, and her assessment of the lawfulness of the defendants' actions.
On the last ground of appeal, the Court concluded in short order that based on the other conclusions of the trial decision, and particularly the conclusion regarding causation, the Plaintiffs' had no argument to recoup the costs incurred in the merger.
As a result, the Court of Appeal dismissed the appeal and awarded costs in the amount of $175,000 against the Plaintiffs.
The decision of the Court of Appeal for Ontario, dismissing the appeal, is available on our website. It can also be found at: http://www.canlii.org/en/on/onca/doc/20 ... ca449.html
I am also under the understanding that the SCC is swamped and only hears cases that affect national interest.
This dead horse can finally be buried.
Thankfully, other than the possibility that the misguided plaintiff class reps will attempt to seek review by the SCC based on advice from questionable legal representation, this can finally be relegated to the dust bin and the majority of pilots that are not living in the past can take control of fostering a more productive and respectful relationship between the groups of pilots that transport AC customers.
Here's a funny, and true story, and the last time I will make a comment on this issue. About 10 years ago while this court case was heatedly being fought, one of the ex-Air Ontario pilots phoned me and asked to meet with my wife and myself. He was a plaintiff in the court case, and I a defendant. If he won the court case, I stood to lose $300,000. I thought to myself, what could this man possibly want to meet me for. I thought that possibly he wanted to tell me face to face why he was suing me. I agreed to meet with him thinking I may get some insight on what was going on in his mind. The next day he and his wife arrived at my doorstep. I graciously, yet guardedly let them in and offered them a drink. It turns out the guy wanted to sell me AMWAY.
Takes a lot of nerve. Sue someone, then show up on their doorstep to try to sell them AMWAY.
It might take a bit longer for me to "move on".
That attitude epitomizes one example of the failure to move on. As far as I know, no order for damages has ever been made against the defendant class.The Raven wrote:It may be time for some to "move on" but none of the plaintiffs will ever be welcome in my flight deck or at my home. You can't sue someone, then when you lose claim to be a friend.
It might take a bit longer for me to "move on".
Many of the so called 'plaintiffs' have been trying to end the litigation for years. The list that some carry around contains the names of many individuals that never saw the purpose of the lawsuit in the same way that the case managers (class representatives) did. And you cannot attempt to change direction from the outside - it logically only happens from inside.
Your pledge of isolation may prove to have some logistical challenges - several of the plaintiffs are already occupying AC flight decks as AC pilots. Possibly more to come. Much like the pain after a bitter divorce, you can carry the animosity around with you forever and cling to it like some righteous cause that will affect the rest of your life. That is the mistake that some of the former AON Pilots have made.
Most of the plaintiffs moved on long before this court decision and several decisions that preceded it. Threats of flight deck embargoes do little for moving past the agenda of the minority of hardliners that has done so much to damage the professional relationship between pilots over the years.
I don't carry lists - I carry anyone who asks.