This thread required two posts to initiate.
After the failed attempt at a Single Employer designation between Air Canada and the Air Canada connector airlines sought by CALPA/ALPA represented pilots at the Air Canada connectors in the late 1990's, the connector pilots unsuccessfully sought solace and/or restitution via the
, a class action proceeding pitting regional pilots against various groups of Air Canada pilots, both in and out of their representational capacity under CALPA and/or ACPA (IIRC). The more interesting examination I would like to take, using this case and the judgment as a guide, is whether certain classes of WJ (and potentially WJE pilots), in their representational roles in various MEC/LEC/NC positions did conspire, on or about the period preceding the November 2, 2018 Update issued by the WJ MEC, to injure both financially and in career progression, a class of OTS pilots hired subsequent to the hiring of the first WJE pilot.
For the tort of conspiracy to be provable, I believe damages to the OTS pilots would have to result, which means that an LOU would have to be agreed to by WJ and ALPA, with injury done to the seniority rights of OTS pilots.
I must make clear that I am not accusing anyone of anything, and I must be clear to avoid libelling any person. So, I will endeavour to analyze actions in a general way. The tort of unlawful conspiracy differs from a Breach of Contract action agianst ALPA, or an allegation of a DFR in that liability can be found as against the persons individually, removed from the cover of their roles as ALPA reps. I think.
was involved in this proceeding, if I am not mistaken, and perhaps can add commentary if he chooses.
Due to the bandwidth I have utilized in the last month, I have donated another $100 to AvCanada today in recognition of their help in discussing very important issues that do not have a means of being discussed elsewhere without being subject to the ALPA censor.
I reproduce here the unabridged excerpt from the 2012 case that deals with the conspiracy claim as alleged by the regional pilots. In time I will post some thoughts and comparisons. It is very dry reading and requires several read throughs and an understanding of the situation some 20 years ago with respect to Air Canada pilots and the relationship it had with its connector colleagues. The unhappiness of Air Canada pilots with their membership in CALPA lead to the formation and certification of ACPA, and further resulted in the amalgamation of CALPA into ALPA.
1. Tort of Unlawful Conduct Conspiracy
(i) Legal Principles
[371] There are two types of actionable conspiracy: lawful act conspiracy, also known as conspiracy to injure; and unlawful conduct conspiracy, also known as conspiracy to commit an unlawful act or unlawful act conspiracy: Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd. This case only engages the second type, namely unlawful act conspiracy. As such, the Plaintiffs need not establish that the Defendants' predominant purpose was to injure the Plaintiffs. In Canada Cement Lafarge, Estey J. described unlawful act conspiracy:
"[W]here the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result."
[372] For the Defendants to be liable for the tort of unlawful act conspiracy, it must be established that:
(a) they acted in combination, that is, in concert, by agreement or with a common design;
(b) their conduct was unlawful;
(c) their conduct was directed towards the Plaintiffs;
(d) the Defendants should have known that, in the circumstances, injury to the Plaintiffs was likely to result; and
(e) their conduct caused injury to the Plaintiffs: Agribrands Purina Canada Inc. v. Kasamekas.
[373] I will discuss each of these elements in turn.
(a) Agreement or Common Design
[374] Proof of an agreement is an essential requirement of the tort of conspiracy. The necessity for an agreement does not require a binding contract or a specific form: "Agreement is not used in the formal sense of a binding contract but rather in the sense of a joint plan or common design": Nicholls v. Richmond (Municipality). Conspiracy is a serious allegation and is not to be lightly inferred: Kaymar Rehabilitation Inc. v. Champlain Community Care Access Centre. The existence of an agreement can be proven either by direct evidence or by inference: Nicholls v. Richmond (Township).
[375] Conduct alone is insufficient, as is mere acquiescence: McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario. As noted in Pontillo v. Zinger:
"... one does not participate in a conspiracy by conduct. One participates in a conspiracy by conspiring, that is, by agreeing, either at the outset of the conspiracy, or during its course. Conduct can be evidence of agreement, but there is no tort of engaging in acts that further someone else's conspiracy."
[376] So, for instance in Posluns v. Toronto Stock Exchange, a Board of Governors voted to dismiss an employee. They had agreed upon nothing before voting. It was held that by so voting, they did not enter into an agreement. As such, the tort of unlawful act conspiracy was not established.
[377] The Court held:
"… the directors of a corporation do not make an 'agreement' in the conspiracy sense by voting the same way. They individually make the same decision. In the popular sense, they are 'in agreement', but in the sense in which the law of conspiracy uses 'agree', they were not. Each simply expressed an individual opinion and the majority opinion prevailed. (1984), 52 B.C.L.R. 302 (S.C.) at para. 98, per McLachlin J. (as she then was). 2010 ONSC 2248; [2010] O.J. No. 3865 at para. 132. Indeed, as seen in para. 38 of Canada Cement Lafarge, supra note 19, some advocate the demise of the tort of conspiracy."
[378] A simple synopsis of the agreement requirement is found in the B.C. Court of Appeal decision in Golden Capital Securities Ltd. v. Holmes:
"Thus, to prove a case in conspiracy, it is first necessary to plainly establish, directly or by inference, that there was an agreement between the defendants and one or more others. This does not mean an agreement in the contractual sense. A defendant must be shown to have agreed in the sense of having combined or conspired with one or more others to carry out a common design or a means of achieving a common objective, which is then implemented with resulting injury to the plaintiff."
(b) Unlawful Conduct
[379] The conduct may be unlawful if it constitutes a tort, a breach of contract or breach of legislation. Not surprisingly, a breach of fiduciary duty may also constitute unlawful conduct for the purposes of the tort of unlawful conduct conspiracy: GHL Fridman, The Law of Torts in Canada, and Levy-Russell Ltd. v. Techmotiv Inc. Fiduciary obligations may be owed by union officers to their union and a failure to abide by a union's constitution and bylaws by officers of a union has been held to amount to a disregard of a duty of loyalty and a breach of fiduciary duty owed to the union: U.F.C.W., Local 1252 v. Cashin. See also Burley v. OPSEU.
[380] Although dealing with the tort of interference with economic relations, in Reach MD Inc. v. Pharmaceutical Manufacturers Assn. of Canada, Laskin J.A. held that an unlawful act included the making of a ruling that was beyond the powers of the party but he declined to decide the "outer limits" of the definition of unlawful means or act. The tort was made out because the actions of the defendant, a voluntary association that caused its members to stop advertising with the plaintiff, constituted unlawful means directed at third parties, which then caused them to injure the plaintiff. These actions were beyond the lawful authority that the defendant had under its constitution, and could be set aside by the Court at the behest of the three plaintiffs.
[381] The trial judge in Agribrands Purina Canada Inc. v. Kasamekas determined that an unlawful act included conduct that the defendant was "not at liberty" or "not authorized" to engage in, whether as a result of a law, a contract, a convention or an understanding. The trial judge had in part relied on Ontario Realty Corp. v. P. Gabriele & Sons Ltd., in which Newbould J. determined that the broader definition was also appropriate for a claim of conspiracy.
[382] In light of the Court of Appeal's decision in Agribrands overturning the trial judge, it is fair to conclude that the broader definition afforded to the term "unlawful act" has not been accepted as good law. The Court of Appeal disagreed with the trial judge's reasons on the issue of the scope of unlawful conduct.
[383] The Court of Appeal made other observations. Goudge J.A. stressed that there must be unlawful conduct by each conspirator. The tort is designed to catch unlawful conduct done in concert, not to turn lawful conduct into tortious conduct. To constitute unlawful conduct, the conduct must be wrong in law. Quasi-criminal conduct and conduct in breach of the Criminal Code would constitute unlawful conduct, though not actionable. In addition, he noted the separate evolution of unlawful conduct in the context of the tort of civil conspiracy and that of intentional interference and cautioned against turning away from this separate evolution simply to achieve a unified theory for economic torts. He held, "What is required, therefore, to meet the 'unlawful conduct' element of the conspiracy tort is that the defendants engage, in concert, in acts that are wrong in law whether actionable at private law or not."
(c) The Conduct Must be Directed Towards the Plaintiff
[384] The predominant purpose of the defendant's conduct need not be to cause injury to the plaintiff, but the conduct must be directed towards the plaintiff in some manner.
(d) Knowledge that Damages Were Likely to Result
[385] A plaintiff must prove that the defendant knew or ought to have known that damages were likely to result to the plaintiff from the defendant's conduct. A constructive intent to injure the plaintiff is derived from the defendant's knowledge that injury to the plaintiff would ensue: Levy-Russell Ltd. v. Tecmotiv Inc.
(e) Conduct Caused Injury
[386] A plaintiff must establish that there was a causal connection between the loss suffered by the plaintiff and the defendant's conduct. In Canada Cement Lafarge v. British Columbia Lightweight Aggregate Ltd., the Supreme Court of Canada stated:
"I turn then to the third submission relating to the causation and remoteness aspects of the tort of conspiracy. The issue raised by this proposition is simply whether or not the loss suffered by the respondent was occasioned by any action or omission on the part of the appellants.
. . .
It is sufficient in my view to conclude on this branch of the appeal that there is no causal connection between the unlawful activities of the appellants and the commercial demise of the respondent."
(ii) Plaintiffs' Conspiracy Claim
[387] The Plaintiffs' conspiracy claim is that from March 28, 1995 until November 14, 1995, First Officer Pulley and members of the Defendant classes conspired with each other by expressly or impliedly entering into an agreement or agreements to prevent the implementation of the Picher Award. The particulars were that:
a) the Defendants did not take any steps to cause the negotiation in good faith of the merged seniority list with Air Canada;
b) the Defendants attempted to negotiate alternatives to the Picher Award with Air Canada, without the Plaintiffs' knowledge or consent;
c) the Defendants refused to be bound by the Award of arbitrator Picher dated March 28, 1995 and took steps in an effort to avoid being bound by it;
d) the Defendants refused to support and opposed the negotiation of the merged seniority list with Air Canada;
e) the Defendant classes instructed their representatives on the Air Canada MEC to reject the Picher Award, to refuse to negotiate it and to use any and all means to stop its implementation;
f) the Defendants failed to take steps to prevent their representatives from rejecting the Picher Award, from refusing to negotiate the Award or from using any and all means to stop the implementation of the Award when they knew that their representatives planned to do those acts;
g) the Air Canada MEC Defendants members declared the Award to be unacceptable, refused to be bound by it and to implement it;
h) the Defendants wrote letters to the CALPA President and signed petitions calling for Air Canada to reject any merged seniority list arising out of the Picher Award;
i) First Officer Pulley, the Air Canada MEC Chair, the Air Canada MEC members and the Air Canada Merger Representatives refused to participate in meetings to fashion the seniority and bidding list in accordance with the Picher Award;
j) the Air Canada MEC members authored a newsletter directed to pilots in the Defendant class which improperly advised the pilots and the Defendant class that the Picher Award would not govern them unless they voted in favour of it;
k) First Officer Pulley, the Air Canada MEC members and the members of the Negotiating Committee refused to negotiate the Picher Award with Air Canada in contract negotiations in 1995;
l) First Officer Pulley instructed the Negotiating Committee of the Air Canada MEC that no proposal for the implementation of the Picher Award could be made to or be discussed with Air Canada in contract negotiations in 1995; and
m) the Air Canada MEC members did not replace their Merger Representatives after the Merger Representatives resigned in September 1995.
[388] The Plaintiffs state that these acts were directed or authorized by members of the Defendant classes or alternatively were ratified by them.
(iii) Common Issues Relating to Conspiracy
[389] The following common issues relate to the claim of conspiracy:
(a) Did Defendant Pulley and members of sub-classes 1 to 6 enter into an agreement giving rise to an actionable conspiracy?
(b) Did the members of sub-class 7, by failing to take steps to prevent their representatives on the Master Executive Council, the Local Executive Councils, the Negotiating Committee, the Merger Representatives and the members of the SMMAC refusing to implement the Picher Award, impliedly enter into the agreement giving rise to the conspiracy?
(c) Was the conduct of Defendant Pulley and the sub-classes unlawful?
(d) Should the Defendants have known that injury would result to members of the Plaintiff Class? and
(e) Were actions taken pursuant to the conspiracy binding on the members of the sub-classes?
[390] With each issue, I will provide a brief though not exhaustive review of the arguments advanced by the parties followed by a discussion of the common issue itself.
Conspiracy Issue (a)
Did the Defendant Pulley and members of sub-classes 1 to 6 enter into an agreement giving rise to an actionable conspiracy?
1. Parties’ Positions
[391] The Plaintiffs submit that the Air Canada pilots and their elected and appointed representatives were aware of the circumstances that gave rise to Mr. Picher's Award and their obligations as union members and officials. The Air Canada pilots had been polled on the motion to delay, postpone or cancel the merger and actively campaigned against the Award as evidenced by the execution of the Declaration of Pilot Solidarity, communications with Air Canada management and their continued direction to the Air Canada MEC and LECs to refuse to accept the Award. First Officer Pulley, the Air Canada MEC, the LECs and committees which comprise sub-classes 1 to 5, agreed with the direction provided by the members. The Defendants had a joint plan or common design to actively oppose the acceptance of Mr. Picher's Award and its implementation.
[392] The Defendants submit that there was no agreement and no actionable conspiracy. Rather, a great number of Air Canada pilots had similar reactions and voiced similar opposition to the Award, but this does not constitute a conspiracy. Opposition was spontaneous and uncoordinated. The reaction to the Award was a "grass roots uprising." Relying on Fullowka v. Pinkertons of Canada Ltd., union members have an unqualified right to speak out against the agenda of their bargaining agent. This is a union member's right to dissent. The CALPA Merger Policy did not exist in a vacuum. The Air Canada bargaining unit had the right to advance its members' own interests with their employer and the Merger Policy did not force members of the bargaining unit to renounce their own interest in favour of the interests of members in anotherbargaining unit. In particular, the Defendants rely on Posluns v. Toronto Stock Exchange and Gardiner in support of their position.
[393] The Third Party submits that there is no evidence that the Defendant First Officer Pulley or members of sub-classes 1 to 6 entered into any agreement giving rise to actionable conspiracy. Like the Defendants, the Third Party relies on Posluns v. Toronto Stock Exchange and Gardiner in which the court found that individuals who reach the same decision independently have not, by inference, entered into an agreement. Mere knowledge, acquiescence or approval of an action is insufficient to amount to an agreement for the purposes of the tort of conspiracy. At most, the evidence indicates that individuals came to the same decision to oppose efforts to implement the Award and were speaking out against the agenda of their bargaining agent, CALPA, as they were entitled to do.
2. Discussion
[394] Before embarking on a discussion of this cause of action, however, it is helpful to consider the contextual background of this issue.
[395] The late 1980s and 1990s witnessed huge changes in the airline industry in Canada including the Open Skies Agreement, a difficult economic environment, and the ultimate demise of Canadian Airlines International Ltd. The airlines were in competition with one another yet their pilots were all in the same union. To use Mr. Shell’s expressive terminology, CALPA was a stew of pilot discontent. The union pot of pilots – containing pilots from different airlines and in different bargaining units – was boiling over and containment was a major difficulty. By 1995, the pot effectively exploded and CALPA disappeared. Maintaining the cooking metaphor, part of the problem was the recipe. This was a proposed merger of the seniority lists of six airlines in the absence of any operational merger. Some called it a fictional or fake merger; others, a bargaining position. The merger procedure was really CALPA strategy designed to seek to change the existing bargaining unit structure. Indeed, on the two occasions when Air Canada pilots had been polled on the desirability of a merged seniority list, first in 1988 and then in May 1994, support was lacking. Another part of the problem was the composition of the chefs. The pilot groups were all united conceptually in their desire to thwart any efforts by Air Canada to play one group of pilots off the other, but fundamentally, both the Air Canada pilots and the Air Ontario pilots were motivated by financial self-preservation or personal financial enhancement. Just as the Air Canada pilots wished to protect their economic interests, the Connector pilots wished to enhance theirs. This was not a case of a contest between those with a higher purpose and those without; rather, it was a dispute over opportunity.
[396] The first fundamental issue to be addressed with respect to the conspiracy claim is whether there was an agreement between the Defendants. Put differently, is there evidence of a joint plan or common design to prevent the implementation of the Picher Award?
[397] There is no evidence of an agreement in a conventional sense but in my view, it may be inferred that there was a joint plan or common design to prevent the implementation of the Picher Award by the Defendants in sub-classes 1 to 6. I reach this conclusion for the following reasons.
[398] Firstly, on joining CALPA, each pilot received a copy of the Constitution and Administrative Policy. Even if he did not, the Air Canada MEC newsletters repeatedly addressed the subject of the merger process and its progression. This included newsletters dated July 25 and 29 and October 11, 1988, September 7 and November 29, 1990, March 18, April 25, May 31, August 28, and December 30, 1991, February 20, May 19, August 10, and September 17, 1992, September 1, November 17, and December 15, 1993, February 1994 (which contained a very detailed review of the history of the merger of seniority lists with the Connectors), March 23, May 17 and 18, July, August, November, and December 1994, March, April 5 and 21, two newsletters in May, 1995, July, August, September, and October 1995.
[399] It is fair to conclude that the Air Canada pilots were aware of the Merger Policy, the merger process, the Picher Award and its final and binding nature.
[400] It is evident from the minutes of meetings that the Declaration of Solidarity, the activities of SMMAC, the motions passed, the poll to delay, postpone or cancel the merger, the establishment of the Seniority Protection Committee in May 1995, and the content of the communications made between Air Canada pilot representatives and Air Canada management that the pilots in these sub-classes had a common design to thwart implementation of the Picher Award. Specifically, the Declaration of Solidarity expressly stated that "we the pilots of Air Canada are united in our complete rejection of the Picher Award."
[401] Mr. Picher in his March Award remitted the matter to the parties to fashion the seniority and bidding lists in accordance with the Award but the Air Canada pilots, led by their MEC, did not do so.
[402] The issue of a right of dissent is not a response to whether there was a joint plan or common design. Rather, that defence is more properly analyzed in the context of whether the Defendants' conduct was unlawful.
[403] As for the Defendants' submission that the position of members of sub-classes 1 to 6 was akin to the directors in the Posluns decision, in my view, the conduct of the Defendants was not so passive as Defendants' counsel suggest. This was not simply a situation of the triumph of majority opinion or spontaneous opposition. Rather, it was a concerted, organized effort by the members of sub-classes 1 to 6 to achieve an objective: to defeat the Picher Award and impede its implementation.
[404] I find that an agreement was established by members of sub-classes 1 to 6 to prevent the implementation of the Picher Award. Whether it gave rise to an actionable conspiracy is dependent on the other elements that comprise the tort.
Conspiracy Issue (b)
Did the members of sub-class 7, by failing to take steps to prevent their representatives on the Master Executive Council, the Local Executive Councils, the Negotiating Committee, the Merger Representatives and the members of the SMMAC refusing to implement the Picher Award, impliedly enter into the agreement giving rise to the conspiracy?
[405] As mentioned, a settlement was approved with respect to sub-class 7 and members had to deliver a statutory declaration by November 1, 2011. Both the Plaintiffs and the Defendants submit that common issue (b) relating to sub-class 7 should be answered in the negative presumably as a result of the settlement. I agree and therefore do not propose to address that issue in detail except to say that, at a minimum, members of that class did not impliedly or inferentially enter into any agreement giving rise to a conspiracy.
Conspiracy Issue (c)
Was the conduct of Defendant Pulley and the sub-classes unlawful?
1. Parties' Positions
[406] The next common issue to consider is whether the Defendants’ conduct was unlawful. The Plaintiffs submit that the CALPA Constitution was binding on every member of CALPA and that its elected representatives were required to assist in the implementation of CALPA's policies. The Plaintiffs argue that the Defendants' refusal to accept the Picher Award and to implement the CALPA Merger Policy constituted a breach of contract, a breach of fiduciary duty and/or conduct the Defendants were not at liberty to commit.
[407] The Defendants submit that it was not unlawful for individual Air Canada pilots to speak out against implementation and to direct their MEC not to seek implementation of the Award. Relying on Fullowka v. Pinkertons of Canada Ltd., union members have an unqualified right to speak out against the agenda of their bargaining agent. This is a member's right of dissent. The CALPA Merger Policy did not exist in a vacuum. The Air Canada bargaining unit had the right to advance their own interests with their employer and the Merger Policy did not force members of the bargaining unit to renounce their own interest in favour of the interests of members in another separate bargaining unit.
[408] The Third Party submits that labour law principles inform the lawfulness of the Defendants' conduct. As noted in the Supreme Court of Canada decision in Berry v. Pulley, a union is a democratic organization. The merger process was a means for CALPA to establish its bargaining position, the result of which was the Award. CALPA controlled the power to seek Air Canada's agreement to implement the Award. The Third Party also took issue with the Plaintiffs' particularized allegations.
2. Discussion
[409] As mentioned, this action went to the Supreme Court of Canada on a summary judgment motion brought by the Defendants. The Supreme Court determined that there is no contract between union members and therefore there was no cause of action for breach of the CALPA Constitution by one union member against the other. Among other things, "it is not within the reasonable expectations of union members that they could be held personally liable to other members for breaching the union Constitution." Rather, a relationship in the nature of a contract arises between individual members and the trade union itself, however, the terms of that contract "will be greatly determined by the statutory regime affecting unions generally as well as the labour law principles that the courts have fashioned over the years." So, for example, due to statute, members of a union may change bargaining agreements without penalty provided they comply with the relevant statutory requirements.
[410] Both the Supreme Court and the Court of Appeal accepted that union members may be liable in tort. At paragraph 33 of the Court of Appeal decision, Sharpe J.A. wrote:
"However, it is well recognized that the acts of individual union members may attract tort liability for conspiracy and interference with economic relations… A claim for tortious conspiracy to deprive a party of contractual rights is plainly distinct from a claim for breach of those contractual rights. Similarly, there is a distinctive nature to a claim for intentional interference with economic interests..."
[411] In the Supreme Court of Canada decision, Justice Iacobucci wrote at paragraphs 63-64:
"However, this is not to say that union members do not have some obligations inter se. By joining a union, the member agrees to follow the rules of the union, and, through the common bond of membership, union members have legal obligations to one another to comply with these rules. If there is a breach of a member's constitutional rights, this is a breach by the union, and the union may be liable to the individual. Similarly, the disciplinary measures in the constitution can be imposed by the union on a member who contravenes the union's rules. A failure by the union to follow these disciplinary procedures may cause it to breach its contractual obligations to the other members, giving rise to corresponding contractual remedies."
"In addition to potential internal procedures, a failure by the union to insist on compliance with the constitution or impose disciplinary measures for its breach may allow members to initiate proceedings either at the CIRB, or the courts, depending on the nature of the complaint. Aside from actions against the union, a member who is harmed by the breach of the union's rules by another member may, if the requisite elements are present, have an action in tort against that member."
[412] It seems implicit from these dicta that the Plaintiffs may meet this requirement of illegality provided that the Defendants deprived the Plaintiffs of their contractual rights under the Constitution or, put differently, assuming the other elements of the tort of conspiracy are present, the Plaintiffs were harmed by the Defendants’ breach of the CALPA Constitution.
[413] In addressing whether the illegality component of the tort of conspiracy has been met, I will consider whether the Defendants breached their contract by trying to avoid implementation of the Picher Award. In addition, a breach of a fiduciary duty would also ground a finding of illegality in this case. This requires a consideration of the status of the members of the Defendant Classes. First, however, I will consider whether a union member’s right of dissent precludes a finding of illegality.
[414] The right of a trade union member to dissent was described by the British Columbia Supreme Court in Tippett et al v. International Typographical Union, Local 226:64
"All members of trade unions have the unqualified right to speak out against the manner in which union affairs are conducted. There is a right of dissent. There is a right of decertification, subject to the condition that no member of a union shall conspire with his employer to injure the union… No person can be expelled or penalized by a trade union for insisting on his rights."
[415] The Supreme Court of Canada also referred to this right of dissent in the summary judgment appeal in this case in the context of the breach of contact claims. Justice Iacobucci wrote at paragraph that: "Exposing the personal assets of dissenting union members to liability would be antithetical to this 'unqualified right' of union members to speak out against the agenda of their bargaining agent. The result would be to discourage member participation in union affairs and to erode union democracy." He did not comment on the interaction of tort claims with the right of dissent.
[416] More recently, in Fullowka v. Pinkertons of Canada Ltd., Justice Cromwell writing for the Supreme Court stated:
The relationship between a union member and his or her union is contractual in nature, with both the union and the member agreeing to be bound by the terms of the union constitution. However, the analogy to contract has its limits given that the relationship is greatly determined by the relevant statutory regime and the general principles of labour law which have been fashioned over the years. Significantly, the members have the "unqualified" right to speak out against the agenda of their bargaining agent…
[417] The first question to be asked is whether a right to speak out against an agenda of a bargaining agent or the manner in which union affairs are conducted permits departure fromterms contained in a Constitution and Administrative Policy that govern at least in part an employee’s relationship with his or her union.
[418] I have no hesitation in concluding that the members of sub-classes 1 through 5 should not be protected by virtue of the right to dissent. They were either officers of the union or acting on behalf of officers. The more troublesome proposition is whether members of sub-class 6 were permitted to seek to avoid the implementation of the Picher Award. I conclude that they were.
[419] The complaint of the Plaintiffs as pleaded is that the Defendant Classes conspired to prevent the implementation of the Picher Award. A review of the Merger Policy places the primary responsibility for implementation on CALPA, not the MECs, much less the individual members. Furthermore, while the Constitution bound union members, the Merger Policy provides that the President shall notify the MECs that it is their responsibility, as representatives of the affected pilots, to activate the described procedure for the integration of the pilot lists. The remainder of the Merger Policy describes the role of the MEC, the Merger Representatives and CALPA. With the exception of a passing reference to "pilot groups" in section 5(a) of the Merger Policy, there is no reference to the individual union members.
[420] It seems to me that the unqualified right to dissent should operate to permit members of Class 6 to speak out against the agenda of CALPA and its union officers in these circumstances.
[421] Many members of Class 6 communicated with Air Canada, urged the MEC and LECs to oppose the implementation of an integrated seniority list, supported the formation of SMMAC or the Local Seniority Protection Committee, signed the Declaration of Solidarity, and took other steps and positions to advocate against the imposition of the Picher Award. I decline to find that any of these actions or the conduct advanced by the Plaintiffs constituted unlawful conduct for the purposes of liability for conspiracy. Rather, they were permissible given the Class members' right to dissent. To the extent there are any members of Class 7 who did not sign settlement declarations, by necessary implication, they too would have no liability.
[422] Turning to sub-classes 1 to 5, two grounds of illegality are advanced by the Plaintiffs. Firstly, they submit that breach of a fiduciary obligation may be the source of illegality for the tort of conspiracy. I agree. Sub-class 1, namely the members of the Air Canada MEC, were officers of CALPA, as were members of sub-class 5, that is, members of the LECs of Local Councils 1, 7, 11 and 14. They owed fiduciary obligations to CALPA and were obliged to act in the best interests of the union as a whole: Office and Professional Employees International Union v. Office and Professional Employees International Union, Local 1566 and Burley v. Ontario Public Service Employees Union.67 Although the fiduciary duty is not owed to the Plaintiffs by the Defendants, the breach of such a duty may still constitute unlawful conduct. Members of sub-classes 1 and 5 owed duties of loyalty to CALPA which they breached by actively pursuing a course of conduct that was inconsistent with the express provisions of the union’s Merger Policy. In my view, members of sub-classes 2, 3 and 4 were not fiduciaries, did not owe fiduciary duties and committed no breach in that regard.
[423] In addition to breach of fiduciary duty, the Plaintiffs also rely on breach of the CALPA Constitution as a basis of illegality. The Merger Policy is found in the Administrative Policy section of the Constitution and Policy. The preamble to the Administrative Policy expressly states that some of the policies may represent desirable goals which, for one reason or another, are incapable of being realized at any particular time.
[424] The Policy required that specific steps be taken by the MECs of the affected airlines. There were some steps that the Air Canada MEC did not follow. It made no effort to obtain agreement from Air Canada that "all questions of pilot seniority shall be determined by the Association through its established procedures" although as I will discuss later, such agreement never would have been forthcoming and in any event, CALPA was the bargaining agent. It did appoint Merger Representatives who did attempt to negotiate a single integrated pilot seniority list. It attended at mediation and also participated fully at the arbitration. Clearly the Merger Policy contemplated that there could be disagreement among the parties, however, the decision of the arbitrator was final and binding.
[425] The implementation provision contained in the Merger Policy then required: (i) acceptance of the integrated pilot seniority list by the Association within five days (or other time period specified by the President) of the Arbitration Award; and (ii) that the President call a meeting of the MECs to discuss the procedure for implementation. The Administration Policy did not particularize how the merged seniority list was to be implemented although it does state that the intent of the Association would be to negotiate the integrated list as the seniority list to be used by the successor airline.
[426] I do not accept many of the Plaintiffs' allegations of unlawful acts. For instance, the MEC did not authorize and direct SMMAC to meet with Air Canada management and immunize Air Canada from a common employer application. Similarly, the Air Canada MEC did not assist with the formation of a new bargaining unit. The Air Canada MEC was entitled to work to prevent a s. 35 application and to engage in acts that legitimately delayed the implementation of the Merger Policy, recognizing the MEC's responsibility to represent the views of the Air Canada pilots.
[427] The Defendants and the Third Party submit that the integrated pilot seniority list was never accepted by CALPA and was not in existence until Mr. Picher’s Award of November 7, 1995 was issued. As such, they argue that there was no breach of the Merger Policy because the triggering event was acceptance of the list and this never occurred. Furthermore, they submit that there was no Award to implement until one week prior to CALPA’s decertification as the bargaining agent for the Air Canada pilots, a right the Air Canada pilots were entitled to pursue.
[428] The arguments advanced by the Defendants and the Third Party address whether anything flowed from the MEC's conduct but this does not dispel illegal acts. The Merger Policy states that the decision of the arbitrator shall be final and binding on all parties to the arbitration. The Air Canada MEC's conduct was inimical to this provision. This included communication with Air Canada management to advise of their opposition to implementation of the Award and the MEC's work with SMMAC which was, at its heart, designed to avoid the binding nature of the Picher Award even though SSMAC also served to alleviate the MEC’s workload. The parties to the arbitration were the MECs. Certainly, the Air Canada MEC refused to be bound by the Picher Award and its members acted so as to avoid its implementation. In my view, this constituted illegal conduct for the purposes of the tort of conspiracy.
[429] I do not believe that liability for illegal conduct based on breach of contract should be visited upon members of sub-class 5 (the LECs), sub-class 2 (the Merger Representatives), or sub-class 4 (the Negotiating Committee.) The latter two class members had a limited contractual role. In addition, they acted under the control and direction of the Air Canada MEC. Furthermore, it is not clear to me that their conduct did amount to a breach of contract. Similarly, members of sub-class 5 (the LECs) did have a responsibility to represent the opinions of their members and they too had a limited contractual role.
[430] I put the members of SMMAC who constitute sub-class 3 in a different category. While they were a sub-committee of the MEC, they acted with some degree of independence and actively and knowingly assisted the MEC in its unlawful conduct.
[431] In conclusion, I find that there was unlawful conduct on the part of members of subclasses 1, 3 and 5 for the purposes of the tort of conspiracy based on either breach of fiduciary duty, breach of contract or both. There was no unlawful conduct on the part of members of subclasses 2, 4 and 6.
Conspiracy Issue (d)
Should the Defendants have known that injury would result to members of the Plaintiff Class?
1. Parties' Positions
[432] The Plaintiffs submit that the Defendants knew that as a result of the Defendants' conduct, the Plaintiffs and CALPA would be unable to implement the merged seniority list arising from Mr. Picher's Award through negotiation or through a section 35 common employer application. In addition, they submit that at all material times the Defendants knew that the Air Ontario pilots were incurring expenses related to the merger process.
[433] The Defendants submit that injury to the Plaintiff Class was not reasonably foreseeable and there is no causation.
[434] The Third Party acknowledges that members of the Defendant Class were aware that if the merged list was not implemented, members of the Plaintiff Class would not become employees of Air Canada and gain access to such things as flying Air Canada's equipment, however, members of the Plaintiff class knew that the list would require acceptance by Air Canada. The Defendants’ conduct did not cause the Plaintiffs any damages.
2. Discussion
[435] This common issue addresses the third, fourth and fifth elements of unlawful act conspiracy, namely whether the Defendants' conduct was directed towards the Plaintiffs; whether the Defendants should have known that, in the circumstances, injury to the Plaintiffs was likely to result; and whether the Defendants' conduct caused any injury to the Plaintiffs.
[436] Dealing with the third element, as mentioned, with unlawful act conspiracy, the Plaintiffs need not establish that the predominant purpose of the Defendants was to cause injury to the Plaintiffs but must establish that the Defendants' conduct was directed towards the Plaintiffs.
[437] Both the Supreme Court of Canada in Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd.68 and the Ontario Court of Appeal in Agribrands Purina Canada Inc. v. Kasamekas state that a constituent element of the tort of conspiracy is that a defendant's conduct must be directed towards the plaintiff.
[438] The Defendants submit that the Defendants' response to the Picher Award was driven by a desire to protect their career expectations and economic interests, avoid unfairness to Air Canada junior pilots and the undermining of morale. The Defendants state that they were motivated by job preservation concerns and a desire to maintain their perceived pilot supremacy and status. They assert that they were not primarily motivated by a desire to harm or negatively impact the Plaintiffs.
[439] This argument loses sight of the fact that the focus of the dispute was the result of the Merger Policy and within that context, the object of the Defendants' conduct clearly was the Connector pilots. Put differently, the Connector pilots were the impediment to the Air Canada pilots' desire to avoid a merged list reflecting Mr. Picher’s Award.
[440] As already mentioned, in Nicholls v. Richmond (Township), McLachlin J. (as she then was) stated that a conclusion of actionable conspiracy is not to be arrived at by light conjecture, and I am mindful of that direction. Having said that, while the original adversary in the merger process was Air Canada, once the Air Canada pilots determined that they did not wish to pursue the implementation of the Picher Award, the impediment to their objective was the Plaintiffs, other Connector pilots and CALPA. While certainly this is not a case of lawful act conspiracy in which an intent to injure is a requisite element, I am persuaded that the Defendants’ conduct was directed at the Plaintiffs. The Plaintiffs, together with the other Connector pilots and CALPA, stood in the way of the abandonment of the Picher Award and the avoidance of its implementation.
[441] The second and third elements associated with this common issue are whether the Defendants knew or ought to have known that injury was likely to result, and did the Defendants’ conduct cause injury to the Plaintiffs.
[442] The second element is straightforward. Clearly the Air Canada pilots knew or ought to have known that the Connector pilots might have been harmed. They certainly knew or ought to have known that the Air Ontario pilots were subject to assessments for merger expenses just as the Air Canada pilots were themselves.
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