Canada Industrial Relations Board � Conseil canadien des relations industrielles

1 Front Street W est, Suite 5300, Toronto, Ontario M5J 2X7

1, rue Front ouest, Place 5300, Toronto (Ontario) M5J 2X7

Fax: (416) 973-6543

_____________________________________________________________________

COMPLAINT TO THE CANADA INDUSTRIAL RELATIONS BOARD

Section 37: Duty of Fair Representation

1. Name and address of the complainants:

Rob McInnis Don Gerke Antony Dodd Eric David Mark Zwanski Mike LowtherStuart Hyde

c/o 207 Lindsay Street, Kimberley, BC V1A 1L4

Address for Service:

CAVALLUZZO HAYES SHILTON McINTYRE & CORNISH LLP

Barristers & Solicitors474 Bathurst Street, Ste. #300Toronto, ON M5T 2S6Tele: (416) 964-1115Fax: (416) 964-5895

Attention: James Hayes

2. Name and address of employer:

Air CanadaAir Canada ZIP 1263Labour RelationsDorval, PQ H4Y 1H4

Attention: Kevin Howlett, Senior Vice-President, Employee Relations, Air Canada-MontrealTelephone: (514) 422-4622 / Fax: (514) 422-5609

- and -

2.

Air Canada Air Canada CenterLabour Relations (zip 1263)730 Cote Vertu West Dorval, PQ H4Y 1C2

Attention: Scott Morey, Vice-PresidentLabour Relations, Air CanadaTelephone: (514) 422-5658 / Fax: (514) 422-5669

3. Name and Address of the bargaining agent:

Air Canada Pilots Association6299 Airport Road, Suite 205Mississauga, ON L4V 1N3

Attention: Paul Strachan, MEC ChairmanTelephone: (905) 678-9008 Fax: (905) 678-9016

4. Statement of facts and circumstances in support of your complaint.

See Schedule “A”

5. Describe the nature of the order or decision that you seek from the Board:

See Schedule “B”

Counsel forComplainants’ signature: ___________________ Date: February , 2009

SCHEDULE “A”

I. INTRODUCTION

the application

1. This application concerns continuing action by ACPA with respect to the seniorityrights of the former Canadian Airlines minority pilot group employed at Air Canada.

2. More particularly, the application addresses pre-collective bargaining conduct andthe refusal of ACPA to respond to former Canadian pilots who seek a simpleassurance that their bargaining agent will not seek to diminish minority seniorityrights or re-rank seniority order established by the Keller Award.

3. The application has immediate labour relations significance beyond itsstraightforward facts.

4. As the CIRB has previously recognized, a successful effort by ACPA to circumventa pilot seniority integration arbitration award will serve to renew tensions amongother employees similarly situated in other Air Canada bargaining units. Collectivebargaining in 2009 will be difficult enough in the current economic environment. AirCanada should not be confronted with an unlawful demand. The ACPAmembership should be united not held hostage to a divisive but settled dispute.

the applicants

5. The applicants are pilots who were employed by Canadian Airlines prior to thecorporate merger with Air Canada in 2000. They are represented by ACPA forpurposes of collective bargaining. ACPA and Air Canada are parties to an AirCanada/ACPA collective agreement which will expire on June 30, 2009.

6. The applicants comprise the ALPA Merger Committee which acts as the exclusiverepresentative of the former Canadian pilot group concerning all matters reasonablyrelated to the Keller awarded seniority list. They also constitute the OversightCommittee directed by the Keller Award. The role of ALPA in these matters wasidentified most recently in CIRB L.D. 2000 on November 12, 2008.

7. The applicants have instructed counsel throughout all of the pilot seniority litigationwhich has been conducted since the corporate merger. They have considerableexperience with these matters.

8. The applicant Rob McInnis, an A340 Captain based in Vancouver, has been theChair of the Merger Committee since 2000. He has over 38 years service as amainline airline pilot consecutively with CP Air, Canadian Airlines, and Air Canada.

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Captain McInnis is a past President of both the Canadian Airline Pilots Association(“CALPA”) and the International Federation of Airline Pilot Associations (“IFALPA”).IFALPA is an international association which represents over 100,000 airline pilotsfrom over 100 member associations around the world. Captain McInnis hasextensive experience at the CALPA bargaining table and has been involved withvirtually every pilot seniority integration which has taken place in Canada since1985.

9. Accordingly, the applicants understand and respect the role which ACPAdischarges as exclusive bargaining agent. Their sole interest as members of theMerger Committee is to discharge their own fiduciary responsibility to the formerCanadian pilot group which entails ensuring that the final and binding Keller Awardis respected.

background

10. The current Air Canada pilot seniority list is the one awarded by Arbitrator Keller in2003. The litigation history concerning this matter is well known to the CIRB andis summarized below.

11. There remains within ACPA a political constituency obsessed with seniority issueswhich usually succeeds in electing a fluctuating number of representatives with asingular agenda. To date, the leadership of ACPA has been unable or unpreparedto make clear to its membership that this dispute is at an end. In the result ACPAhas never accepted that the Keller Award is and should be final and binding– notwithstanding the express language of the Keller protocol which gave rise to theaward.

12. Commencing in 2003, as was permitted by the Keller protocol, ACPA sought judicialreview of the Keller Award which application was followed by an appeal and afurther leave application to the Supreme Court of Canada. ACPA acted exclusivelyon behalf of the majority original Air Canada pilot group. ALPA acted on behalf ofthe former Canadian pilots through the applicants on the Merger Committee.

13. Also commencing in 2003, as was not permitted by the Keller protocol, ACPAinitiated a vigorous effort to seek CIRB reconsideration of the Keller Award. ThoseBoard applications led to additional applications for judicial review. Furthermore,original Air Canada pilots engaged in a variety of misconduct which drew negativecomment from the CIRB. Those actions included conduct relating to the acquisitionof B777 and B787 equipment which Air Canada characterized as an unlawful strike.ACPA later engaged in a misguided ‘mediation’ exercise with Air Canada and Mr.Teplitsky which the CIRB declined to sanction.

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14. The applicants refer to the further extensive course of conduct previously cited inCIRB File Nos. 23857-C and 25435-C.

15. The pilot seniority issue has been the subject of multiple attempts at negotiation,two full rounds of mediation/arbitration, numerous complaints and applications forbefore the CIRB, six or more applications for judicial review, one appeal, oneapplication for a stay, and four applications for leave to the Supreme Court ofCanada. In addition, individual pilots or groups have initiated seniority-relatedBoard proceedings.

16. The most recent round of litigation involved the Teplitsky exercise. Most unusually,the CIRB referred that matter to three person panels consisting solely of neutrals.ACPA’s request that the Teplitsky recommendations be endorsed by the Board wasrejected by a unanimous panel consisting of Chair Edmondson and Vice-ChairsDurette and Fecteau. A request for reconsideration of that decision was rejectedby yet another unanimous panel which included Vice-Chairs Sims, Tobin, and Ruck.Both of those decisions were upheld, also unanimously, by the Federal Court ofAppeal with leave denied by the Supreme Court of Canada on November 29, 2007.

17. It is important to recognize that the former Canadian pilots were also dissatisfiedwith the Keller Award. Neither side clearly won or lost. The Keller Award was acompromise outcome which fully satisfied no-one. That is the nature of zero sumseniority integration arbitrations as the CIRB has come to appreciate. Thedifference between ACPA and ALPA has been that ALPA has accepted the ‘finaland binding’ commitment which the parties made to each other, to Arbitrator Keller,and to the CIRB– while ACPA has not.

CIRB and judicial commentary

18. The CIRB and the courts have expressed strong views that this dispute should beended.

19. In January 2004, the Board opined at para. 58 of Decision 263: “There is a point inany process where the parties must either resolve their dispute or accept that theyhave obtained maximum gains. There is also a time when common sense mustprevail.”

20. In May 2005, Dawson, J. of the Federal Court Trial Division at para. 146 cited thatCIRB observation with approval and added that “there is a public interest in bringingfinality to this dispute”. [2005 FC 723]

21. In March 2006, the Edmondson panel in Decision 349 stated that:

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It is the seniority-related rights and benefits, not the employee’s ranking on the

seniority itself, that are routinely negotiated by the collective agreement

parties.[para.92]

ACPA and Air Canada, acting alone, cannot change the rankings of the former

Canadian pilots on the seniority list because of a perceived unfairness on the part

of some of the other pilots in the bargaining unit...the Keller award, which sets the

post-merger seniority rankings for the pilots at Air Canada, is final and binding. [para.

107]

ACPA and Air Canada’s section 16 (p) request is a disguised attempt to have the

Board do indirectly what it has already said it has no jurisdiction to do directly. [para

103]

The dismissal does not mean, however that ACPA and Air Canada, acting on their

own, will never be able to justify addressing the issue of pilot seniority in the future.

Just as the 2000 merger necessitated changes to existing seniority lists, so too may

some new, equally significant, corporate initiative or event occur that would

necessitate making changes to the present pilot seniority list..an event of the

magnitude of a merger, for example, might occur sometime in the future. .Should

that prove to be the case...Those negotiations would have to be conducted within the

confines and the spirit of the Code. [para 108] (emphasis added)

22. In Decision 360, the Sims panel made the following additional comments:

As bargaining agent, its [ACPA’s] right to negotiate changes to the collective

agreement, particularly mid-term, is qualified by the Board’s grant of ongoing status

to the Airline Pilots Association to represent the interests of the pilots subject to

integration.

[ALPA} has no generalized right to insist, for all time, that the seniority solution

represented by the collective agreement terms brought about by the Keller award

cannot be varied. It does, however, have status, albeit a diminishing one over time,

to ensure that the minority group of pilots are treated fairly by the bargaining agent,

through the vehicle of its Board-ordered status and, where appropriate, through

section 37 applications.

The original decision at paragraphs 106-108 gives some indication of what might

result in a legitimate change to the collective agreement’s seniority terms. W hat, in

the face of this request, perhaps needs greater emphasis is what will not. An

integration of seniority lists involves competing interests, particularly where there is

a majority group and a minority group. If the process simply involved letting the

majority choose their preference without regard to the competing rights and interests

of the minority, a solution would be easy to find...a ‘might makes right’ majority rules

approach was inadequate and unacceptable given the statutory scheme and the

various competing interests.

W hat follows from this is that “emerging labour relations difficulties,”that are little

more than efforts to impose the majority will so as to diminish minority interests, will

not serve as a sufficient reason to change the seniority provisions agreed upon by

all (albeit through arbitration) and put in place to balance those majority or minority

interests.

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If and when the Board is called upon to judge any proposed change it will have to

assess, as did the original panel in this case, the underlying need for and cause of

the change. The type of changes alluded to in paragraph 108 may well justify

change. Evidence of the type of activities described in paragraphs 17-20 and

commented on in paragraphs 100, 101 and 107 will be counter-productive and will

only serve to detract from evidence that change is needed for valid operational

reasons.

[paras. 19-23] (emphasis added)

23. In June 2007, Decary, J.A., for a unanimous Federal Court of Appeal, [2007 FCA242] made the following telling comment at para. 13:

W hile I agree that these continuous attacks on the Keller Award have been counter-

productive, I am not prepared yet to decide that they achieved the degree of

misconduct or abuse that opens the door to an award of costs on a solicitor-client

basis. (emphasis added)

24. In summary, the Board has conclusively stated that:

• the Keller seniority list is final and binding• former Canadian pilots have a continuing right to ensure that their minority

group is treated fairly by their bargaining agent• collective bargaining concerning seniority involves entitlements and not re-

ranking of seniority order• some new significant event, of the magnitude of a corporate merger, might

open a door to change• continuing “perceived unfairness” of current rankings will not suffice• seniority factionalism and the use of voting/majority power to effect change

is unacceptable

25. On November 29, 2007 the Supreme Court of Canada dismissed ACPA’s finalapplication for leave to appeal. For the first time in years there was no activepending litigation concerning pilot seniority. The ALPA Merger Committee beganto consider if, for how long, or in what form it should continue.

26. The straightforward ‘final and binding’ language contained in the Keller protocol hadbeen sustained. The Keller seniority list was in place. The CIRB had stated clearlyin Decision 360 that false majority claims were unacceptable and would fail. ACPAhad failed to convince a single member of either the CIRB or the courts, in any ofits numerous applications since 2003, that the Keller seniority list should bereviewed, set aside, or amended.

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II. FACTS GIVING RISE TO THE APPLICATION

27. Matters however did not end there. The issue began to surface again a mere fivemonths after what should have been the final word from the Supreme Court ofCanada.

retainer of former Chairperson was improper

28. On May 1, 2008 (as the applicants later learned) ACPA entered into a privateagreement with the former Chair of the CIRB, Paul Lordon, pursuant to which heagreed to provide “mediation” and to prepare a report addressing the“correspondence of current Air Canada seniority list with Decision 183 principles”.Lordon agreed to prepare an “appropriate report in close consultation with” twoACPA officers (who were themselves original Air Canada pilots).

29. The ‘Lordon report’ when issued included the following statement of its mandate:

The panel was asked to direct, particular attention to the seniority provisions

currently in effect under the operative collective agreement, including the ordering

of seniority pursuant to the Keller arbitration, and the extent to which those seniority

provisions accorded with the principles set out in Air Canada (2002) CIRB No. 183

of July 10, 2002. (emphasis added)

Tab 1 Lordon ‘report’, at page 1

30. The ALPA Merger Committee was shocked when rumour of the Lordon retainer wasconfirmed. The applicants had no desire to come into conflict with a former CIRBChair. They instructed their counsel to communicate directly with him. Given thesensitivity of the matter, and out of an abundance of caution, they sought the adviceof The Honourable R. Roy McMurtry, O.Ont., Q.C., the former Chief Justice ofOntario and a former Attorney General of Ontario on the propriety of Mr. Lordon’sretainer. Mr. Cavalluzzo sent a lengthy letter to Mr. Lordon which inter alia invitedhim to await receipt of Mr. McMurtry’s opinion. The letter set out the applicants’concerns in considerable detail and it speaks for itself.

Tab 2 Cavalluzzo/Lordon, June 4, 2008Tab 3 McMurtry/Cavalluzzo, June 25, 2008

31. Mr. Lordon is a member of the Law Society of New Brunswick. The applicantscomplained to the Law Society that he was in breach of both Subsections 5 (a) and(b) of Chapter 17 of the New Brunswick Code of Professional Conduct which read:

(a) the lawyer shall not represent any person in the same or in a related

matter with which the lawyer has been concerned while holding a

public office;

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and

(b) the lawyer shall not advise any person upon a ruling of an official

body of which the lawyer is or was a member at the time the ruling

was made. (emphasis added)

32. The Law Society complaint is active and pending. It has been forwarded to theComplaints Committee pursuant to Subsection 41 (4) (d) of the Law Society Act.

33. ACPA knew or should have known that its retainer of Mr. Lordon was improper,regardless of any particular provisions of any Law Society code. Mr. Lordon wasdirectly advised in the Cavalluzzo letter that “the obvious purpose of your retainerby ACPA was to secure an opinion from a former Chair of the CIRB, the author ofDecision 183, which could then be used politically as a credible reason for inducingthe company to revisit the Keller seniority list in the upcoming 2009 round ofcollective bargaining.”

Tab 2 page 6

34. It was not open to ACPA to solicit and pay for such an opinion from Mr. Lordongiven his former position. The ostensible credibility of his former office is notavailable for hire. ACPA was not entitled to claim, as it later did, that the KellerAward should be trumped because of a second guess opinion provided by a formerCIRB member allegedly with special insight. If Mr. Lordon develops another pointof view five years after the fact, then he is not entitled to provide such advice to anyclient ever. He is precluded from doing so because such advice relates directly toa decision issued by him in his capacity as CIRB Chair. Mr. Cavalluzzo suggestedto him that any tribunal would be concerned about such a development and theimpact that such conduct might have upon the continuing institutional credibility andintegrity of the tribunal.

Tab 2 page 7

35. ACPA and ALPA selected Arbitrator Keller not Mr. Lordon to fashion a seniority listto comply with Decision 183. In fact, as Decision 263 at paras. 51-52 makes clear,it was ACPA which demanded that Arbitrator Keller provide the final word. TheKeller Award complied with Decision 183 as Decision 263 concluded. There maywell have been other possible outcomes which would have done so also.

purpose of Lordon retainer was improper

36. ACPA also knew that the purpose of the Lordon retainer was improper.

37. ACPA and Mr. Lordon ignored the fact that the CIRB has repeatedly, unanimously,and consistently made it clear that the Keller Award may not be overturned by either

8

direct or indirect means and that any other review of the pilot seniority question byanyone would constitute only another point of view. As long ago as January 2004,the CIRB stated that:

There will never be a ‘perfect’ decision or one that will satisfy all. That is the nature

of the decision-making process. W hile the parties may not have chosen the Board

panel, they certainly had the choice of the independent arbitrators on whom they

relied to make a decision on their behalf. [Decision 263 at para. 60]

38. Mr. Lordon was advised in the Cavalluzzo letter that “Unless you were to conclude

that you agreed with everything Mr. Keller said and did– and everyone concedesthat there is no single ‘correct’ way of effecting seniority integration– ACPA will beable to claim that the Keller award lacks legitimacy as it fails to comply with whatyou the author of Decision No. 183 intended or would have done. It will also be ableto maintain that the CIRB erred in refusing to conduct the review of the merits of theKeller award which ACPA continues to demand– notwithstanding the terms of theKeller protocol, and every decision of the CIRB and the courts since 2003.”

Tab 2 pages 6-7

39. Exacerbating this situation was the fact that the CIRB had already commenteddirectly and negatively upon the Teplitsky exercise. The Lordon undertaking wasa virtual clone of that one.

40. Furthermore, ACPA had been repeatedly advised (as was Mr. Lordon) of theapplicants’ position that ALPA is legally required to honour the terms of the Kellerprotocol. The ALPA Merger Committee has no legal right to resile from the ‘finaland binding’ commitment which ACPA itself demanded at the outset. Theapplicants also pointed out the irony that, when it suits it, ACPA also relies upon thefact that it is bound to honour seniority protocols to which it is a signatory. [CIRBL.D. 2000]

Tab 2 pages 5-6

41. ACPA and Mr. Lordon also chose to ignore the admonition that “perceivedunfairness on the part of some of the other pilots in the bargaining unit” wasinsufficient to justify a change [Decision 360, para. 107], and, the conclusionreached at para. 101 that “In the Board’s view, the primary purpose of the Teplitskymediation exercise was to undo in part the Keller award and to change the seniorityrankings of the former Canadian pilots in a fashion that would be acceptable tosome of the pilots in the protest groups.”

42. Subsequent events demonstrated that this was indeed ACPA’s purpose. It is whatACPA continues trying to do.

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Lordon process was deficient

43. The ‘Lordon report’, as ACPA now calls it, was issued in June 2008. Mr. Lordonhimself called it “Report of Mediation Panel– ACPA Seniority issues”.

44. The title was astonishing. There had been no mediation. Mr. Lordon was not amediator. His colleagues on the so-called “mediation panel” were two original AirCanada pilots. Neither the former Canadian pilots nor Air Canada had participatedin this private ACPA exercise.

45. Mr. Lordon and ACPA chose to ignore directly apposite concerns which the CIRBhad previously expressed about the ‘Teplitsky exercise’. In Decision 360 at para.102, Mr. Lordon’s successor as Chair, Mr. Edmondson, noted that the “initiative wasessentially a one-party mediation” and concluded that ALPA’s “reasons for decliningto participate in the exercise do not appear to be unreasonable”. He also made theobvious point that “Mr. Teplitsky did not have the benefit of receiving submissionsfrom the party that had represented the former Canadian pilots for the past fiveyears in proceedings relating to seniority integration”.

46. The report appears cobbled together. It was prepared against an artificial timedeadline, with dispatch not typical of the author. It was released in June about twoweeks after Mr. Cavalluzzo requested that it be delayed pending receipt of theMcMurtry opinion.

47. Furthermore Mr. Lordon lacked all of the technical assistance provided by theCanadian pilots to the Keller panel. That technical assistance was supported by themost sophisticated seniority integration software available anywhere– which madepenetrating data analysis and detailed future career projections accessible to theKeller panel. This custom designed software was not available at the time of theMitchnick arbitration or Decision 183 but Arbitrator Keller made extensive use of it.The software has since been utilized in major pilot seniority arbitrations in the UnitedStates.

48. What is indisputable is that the Lordon report was certainly not produced aftervigorous participation by both ACPA and ALPA before a tripartite panel selected bythemselves in a complex process extending over several months– as had been theKeller Award.

Lordon conclusions were deficient

49. The substantive conclusions reached by Mr. Lordon would be challenged by theapplicants in virtually every respect should it ever be necessary to do so. To anyinformed observer, the ‘report’ appears unbalanced and incomplete. At the most

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fundamental level, there is basic disagreement about the application of theprinciples which had been enunciated in Decision 183.

50. In making recommendations for change only to selected parts of the Keller Award,Mr. Lordon entirely missed the point made by the CIRB in Decision 263 where it wasstated at para. 62: “..the Board must agree with ALPA that reviewing the Kelleraward is not a simple case of making a few adjustments to the award, but wouldrequire assessing the complex balance of the award’s entire result.”

51. Ironically, the Lordon report itself acknowledged this problem and then ignored itssignificant consequences. As Mr. Lordon put it, “There are many such equities andconsiderations that might be argued to have influenced the ratio at the merger date,and since it is impossible to completely and fairly accommodate all of them it issuggested that....[his recommendations followed]”.

Tab 1 page 20

52. All of those equities and considerations were fully argued before the Keller panel.It is not apparent that Mr. Lordon even knew what they were. What is clear is thathe only knew what ACPA told him.

53. Notwithstanding these limitations and heedless of the CIRB’s recognition that “therewill never be a ‘perfect’ decision or one that will satisfy all”, Mr. Lordon went on toconclude that aspects of the Keller Award “defeated the explicit intention of Decision183".

Tab 1 page 21

groundless criticism of former Canadian pilots’ refusal to participate

54. Mr. Lordon compounded his substantive error with his misleading and offensiveconclusion that “based on correspondence received by panel members it wouldappear that the former CAIL members not only do not wish to take part, but haveengaged counsel to seek to obstruct and defeat the work of the panel”. He can onlyhave been referring to the Cavalluzzo letter.

Tab 1 page 7

55. The CIRB had already concluded that the refusal of ALPA to participate with Mr.Teplitsky was reasonable. Mr. Lordon, and two original Air Canada pilots opposedto them in interest, had no right whatsoever to expect or require the attendance orparticipation of the applicants for any purpose.

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56. As ACPA and Mr. Lordon had been repeatedly advised, the ALPA MergerCommittee has no legal authority to negotiate or ‘mediate’ the vested seniority rightsof its members. Participation in any Lordon exercise would have been pointless,would have breached the Keller protocol, and would have made all of the previousCIRB and court litigation redundant. The ALPA Merger Committee was as boundto the Keller protocol as ACPA was bound to the Mitchnick protocol– as the Boardconcluded in CIRB L.D. 2000 in November 2008.

57. Because of Mr. Lordon’s intervention however, and his former position, many

original Air Canada pilots are now convinced that the ALPA Merger Committee wasimproperly intransigent, has something to hide, is afraid of the truth. They believethat their personal view of unfairness has been vindicated by not just anotherlawyer, but by a higher authority.

objection to Lordon exercise

58. On July 25, 2008 counsel for the applicants wrote to ACPA and put ACPA squarelyon notice of its objections to the Lordon retainer and to any use of the Lordon reportby ACPA. It offered to share the McMurtry opinion with ACPA’s counsel. It askedthat ACPA cancel seniority ‘roadshows’ scheduled across the country if they wereto include any participation by Mr. Lordon.

Tab 4 Hayes/ACPA, July 25, 2008

59. The ‘roadshows’ went ahead. Mr. Lordon withdrew at the last minute. Memberswere told that he did so because of the Law Society complaint.

60. ACPA did not reply to the July 25 letter.

‘credibility’ of Lordon report

61. ACPA explained to its members that Mr. Lordon was chosen in the first place “toundertake this examination as it was he who, as the Chair of the Canada IndustrialRelations Board (CIRB) at the time, authored Decision 183...”. ACPA’s newsletterstated the reason why Mr. Lordon was selected without equivocation: he wasselected because he was formerly Chair of the CIRB and the author of Decision183.

Tab 5 ACPA Newsletter #21, June 20, 2008 at page 3

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62. The ACPA Merger Committee went further still in its own newsletter. Thatnewsletter claimed that “it [the Keller seniority list] has now been proven by theauthor of Decision 183 to be ill-gotten gains”.

Tab 6 ACPA Merger Committee Newsletter, July 2008

63. The applicants were left in an impossible position. They had been accused by Mr.Lordon of obstruction. Original Air Canada pilots were now convinced that they hadbeen treated unfairly if for no other reason than that a former CIRB Chair had toldthem so. The only way to attempt to satisfy Mr. Lordon of his substantive errorswould have been for the applicants to cooperate with his misguided exercise– inviolation of their own Keller protocol commitments.

64. The ostensible credibility of a former CIRB Chair had been used and abused.ACPA and the original Air Canada pilots were placed in a position where they couldmaintain that the Lordon report demonstrated that the CIRB and the courts haderred in refusing to permit a review of the merits of the Keller Award. The Lordonreport was used as justification for branding the Keller Award as ‘ill gotten gains”.

65. These newsletters demonstrate beyond doubt that the potential ethical mischiefidentified in the Cavalluzzo letter had come to pass. Mr. Cavalluzzo had attemptedto explain to Mr. Lordon how his participation might impact the continuinginstitutional credibility and integrity of the Board (Tab 2). Counsel had also said thesame thing to ACPA (Tab 4) without the courtesy of a reply.

66. Ironically, ACPA and ALPA had deliberately chosen Arbitrator Keller rather than Mr.Lordon to finally resolve their seniority dispute in 2003. Indeed it had been ACPAwhich had insisted that the protocol contain language to prohibit any Codereconsideration by Mr. Lordon of any decision made by Arbitrator Keller. It was Mr.Lordon himself, on behalf of the CIRB, who had approved the Keller protocol andMr. Keller as final arbitrator.

IVR Vote #90

67. Following ‘roadshows’ conducted in August ACPA took immediate steps to advanceits seniority agenda now using the platform of the Lordon report.

68. ACPA in September 2008 conducted a membership referendum which posed thefollowing questions. The Sub-Committee report referred to is the Lordon report.

1) Do you support the recommendations of the MEC’s Seniority Sub-

Committee’s Report calling for the elimination of the .25 seniority premium

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afforded the former CAIL pilots and the reinstatement of the original Oct. 17,

2000 merger date to the current seniority list ?

2) Do you support the MEC immediately approaching the Company and the

CIRB with a view to implementing the Sub-Committee’s recommendations

as soon as possible ?

3) If necessary, do you support carrying efforts to implement the Sub-

Committee recommendations through to 2009 contract negotiations with the

MEC having open-ended discretion to allocate bargaining capital as required

to secure implementation ? (emphasis added)

4) Do you support efforts to create a merger policy that will protect the interests

of all Air Canada pilots in the event of any future seniority integration ?

Tab 7 ACPA IVR Vote #90 material, September 16, 2008

69. Given the minority position of the former Canadian pilot group, the results of thisreferendum, known as IVR #90, were inevitable. ACPA obtained the purported‘mandate’ which it was seeking.

Tab 8 ACPA IVR Vote #90 final result, September 26, 2008

objection to IVR #90

70. The applicants instructed counsel to object strongly to this latest ACPA initiative ina letter sent on September 26, 2008 prior to the announcement of the referendumoutcome. The letter set out the former Canadian pilots’ objections in detail.

Tab 9 Hayes/ACPA, September 26, 2008

71. Inter alia., the applicants objected to ACPA seeking a mandate to seek employerimplementation of its recommendations and, if necessary, to give the MEC “openended discretion to allocate bargaining capital as required to secureimplementation” during 2009 bargaining. They advised ACPA that its conduct wasunprecedented and patently unlawful. They pointed out that the first threequestions identified in IVR Vote #90 constituted a repudiation of the Keller Awardand of all the CIRB decisions which have unanimously upheld that award. Theystated that an imprudent private retainer of a former CIRB member does nothing toalter this reality nor does any mandate which ACPA may achieve as the result ofsuch a vote.

72. The applicants once again suggested that these matters be reviewed by counsel forboth parties as soon as possible.

73. ACPA ignored the letter.

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no pretense at justification

74. The applicants, at paras. 21-22 above, have identified what the CIRB has referredto as changes of the magnitude which might permit making changes to the presentseniority list. That is as far as the Board has gone however. The Board hasproceeded no further than to speculate about a hypothetical possibility. What theBoard did do was to point out that “seldom if ever is one’s position on the senioritylist changed as a result of collective bargaining”.

75. The applicants are not aware of a situation in any industry where an arbitratedseniority list has been re-ranked in subsequent collective bargaining other than tocorrect inadvertent error.

76. The applicants are not aware of any situation where an arbitrated seniority list hasever been re-ranked in subsequent collective bargaining by any pilot trade union inNorth America.

77. Where corporate transactions require seniority integration, the applicants state thatit is universal practice that the relative seniority rankings among employees on theseniority list of pre-merger pilot groups inter se are always preserved.

78. The Mitchnick protocol said that expressly because the pre-merger Canadianseniority list was itself the product of a number of previous contentious mergersinvolving CP Air, PWA, Nordair, EPA, and Wardair– perhaps out of an abundanceof caution. The issue was considered so obviously noncontentious that the issuewas not even included when the Keller protocol was drawn.

79. A fortiori, the idea that a majority may lawfully undo ranking established by anarbitrated seniority award, to the detriment of the minority, is preposterous. If amajority may lawfully wait until the next round of bargaining to rectify a “perceivedinjustice” [to use the phrase employed by Chair Edmondson in Decision 349], thenthe applicants ask why they were put to the expense of both arbitrations and thesubsequent litigation. The majority group should just have imposed its idea ofjustice in the first place. The pilots would have been saved the aggravation. TheCIRB would have been spared the task of considering its Code jurisdiction pursuantto Subsection 18.1 (4) (d).

80. What is noteworthy is that neither ACPA nor Mr. Lordon have even bothered toidentify any possible corporate event of any “magnitude”, to use Mr. Edmondson’sterm, which could even conceivably justify taking this issue to the 2009 bargainingtable. They haven’t bothered to refer to any event at all. They rely entirely upon Mr.Lordon’s personal piece-meal recommendations and conclusions with respect to‘fairness’– rendered by him five years after the fact.

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81. It was suggested to the Board in the Teplitsky litigation that a “significant and largelyunforeseeable change in circumstances [had] taken place at Air Canada since theKeller award was issued in June 2003". [Decision 349, para. 98] The Board had nodifficulty in concluding otherwise stating, at para. 101, that “the primary purpose ofthe Teplitsky mediation exercise was to undo in part the Keller award....” and, atpara. 103, that the request for CIRB approval was “a disguised attempt to have theBoard do indirectly what it has already said it has no jurisdiction to do directly”.

82. There has been no corporate change since these words were written. Air Canadaremains the employer. ACPA’s motive for seeking change has never changed– and,in fact, is now more transparent than ever before. That motive is plain to see in theLordon report and the questions posed in IVR Vote #90.

further inquiry by the applicants

83. At year end, and with 2009 bargaining on the horizon, and with the economic crisisvisibly deepening around Air Canada, the applicants continued to be concernedabout the prospect of their bargaining agent seeking an agreement with theemployer which would diminish their arbitrated seniority rights in some collectivebargaining exchange.

84. Accordingly, they instructed counsel to communicate again with ACPA. ACPA wasasked on December 11, 2008:

W ould you please advise whether ACPA has any intention of approaching Air

Canada and/or the CIRB with a view to implementing the recommendations found

in the Lordon report. Secondly, would you please advise whether or not ACPA

intends to table the Lordon recommendations during the 2009 round of collective

bargaining.

Tab 10 Hayes/ACPA, December 11, 2008

85. ACPA ignored the applicants altogether, now for the third time.

2009 bargaining preparation

86. In January, 2009 the ACPA membership was advised that “work continues withinthe Negotiating Committee to prepare draft proposals....Soon, your input will againbe sought in the form of polling and/or surveying in order to fine tune the prioritiesthat you identified in the WAWCON survey [an earlier survey] and to ensure thatthey do, indeed, remain your priorities in the lead up to negotiations. Please lendyour active and considered participation when called upon to do so.”

Tab 11 ACPA Newsletter, January 12, 2009

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87. There are no former Canadian pilots who are members of the ACPA NegotiationsCommittee. The practice of ACPA is to conduct collective bargaining on aconfidential basis. Typically, the membership is not aware of specific proposalswhich are actually made to the company. Typically, the first members are aware ofthe substance of any aspect of an agreement is after a tentative contract has beenreached subject to ratification.

88. Given the history of this matter, the applicants are gravely concerned that theirbargaining agent will act upon the results of IVR Vote #90 and seek to implementthe Lordon report recommendations through the 2009 collective bargaining process.All of ACPA’s conduct over the years suggests that this is a virtual certainty. IVRVote #90 points specifically in this direction. The irresponsible Lordon report hasonly encouraged such a course.

Tabs 7, 8 Question 3 Tab 1 page 20

89. The applicants are concerned that they not be faced with a ‘done deal’. Unless theprospect of a Keller Award revision is not ruled out by ACPA or the CIRB at the frontend, then the ‘horse may leave the barn’ without the former Canadian pilots evenbeing aware of it.

2009 request to ACPA

90. In a final attempt to allay their concerns, on January 26, 2009 the applicants senta letter requesting that ACPA answer a simple question. They asked that ACPAadvise them as to whether or not their bargaining agent had any intention of tablingany bargaining proposal which would have the effect of reordering or amending theKeller seniority list or purporting to implement the Lordon recommendations throughany other process.

Tab 12 Applicants/ACPA, January 23, 2009

91. The applicants stated that: “A simple ‘no’ response to the question will answer ourconcerns and this matter will be at an end. If we do not receive a satisfactory replywithin ten days, we will instruct our counsel to take any steps we deem necessaryto protect the position of the pilots whom we represent without further notice to you.”

92. As of the date of filing of this application, no reply had been received from ACPA.

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III CONCLUSION

93. ACPA has a Section 37 Code duty to the former Canadian pilot minority group aswas specifically identified by Vice Chair Sims at para. 20 of Decision 360. Theapplicants are entitled to lawful representation in the preparation and conduct of2009 collective bargaining which does not involve an attack upon their arbitratedseniority rights.

94. The applicants, in their collective capacity as the ALPA Merger Committee, haveresponsibilities to represent the minority Canadian pilot group concerning the Kellerseniority list. They have discharged those responsibilities as volunteers to the bestof their ability for many years now. It is their view that they would fail in their dutyshould, at the eleventh hour, they stand negligently by while ACPA– in all likelihoodin secret– pursues a bargaining agenda consistent with Question 3 set out in IVRVote #90.

95. The applicants have provided ACPA with every opportunity to set their concerns atrest. They set out their issues in detail from the moment the Lordon retainer cameto their attention. They invited ACPA to discuss the issue, counsel to counsel,should that be of assistance. They did everything possible to avoid an unseemlyconfrontation with a former CIRB Chair. They obtained an opinion from someoneas distinguished as Mr. McMurtry at their own expense. They wrote to ACPA on fouroccasions over a six month period. They have made it clear to ACPA that theyrespect its exclusive bargaining agency. The applicants cannot think of anythingelse they could have done to avoid further litigation conflict with ACPA.

96. The applicants considered Decision 349 with care. They did not wish to file aSection 37 application prematurely at the first mention of the Lordon retainer. Nordid they do so when ACPA conducted IVR Vote #90. It was their reasonable hopethat the leadership of ACPA, on the advice of counsel, would let these issues restafter the internal politics settled down. The applicants resisted considerablepressure from many of their former Canadian pilot colleagues to take immediateaction and “sue ACPA”.

97. The applicants have concluded now however that the continuing refusal of theirbargaining agent to respond, either to their counsel or to themselves, must meanthat ACPA intends to pursue an unlawful 2009 bargaining agenda.

98. There are now sufficient individual events seen together to constitute a pattern ofconduct. It is now apparent that ACPA’s actions concerning seniority issues sinceMay, 2008 do not permit a benign characterization. That conduct includes theretainer of Mr. Lordon, the preparation and dissemination of his report, thecharacterization of his report, the conduct of IVR Vote #90, the use of the dues of

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all ACPA members to finance an illegal assault upon the seniority of the formerCanadian pilots, and the continuing refusal of ACPA to acknowledge and allay thelegitimate concerns of the minority pilot group. All of this conduct may now be seenand identified as constituting unlawful activity in breach of Section 37.

99. ACPA’s most recent refusal to respond to the January 23, 2009 letter sent by theapplicants constitutes action which is arbitrary, discriminatory, and in bad faith. Inall of the circumstances set out herein, the applicants are entitled to an answer tothe question posed in their letter. 2009 collective bargaining is imminent. Therefusal of their bargaining agent to respond to them in any way at all constitutes adiscrete violation of Section 37.

100. There will be insurmountable problems should the Board be faced with remedialissues following after the fact litigation. The Board and the Keller panel havealready seen what occurred after the Mitchnick list was used, through severalequipment bids, before it was replaced by the Keller Award. Addressing the so-called ‘Mitchnick effect’ presented the Keller panel with one of its most difficultissues. The training costs of returning pilots to proper aircraft are prohibitive in anyenvironment. Given the inherently subjective aspect of certain pilot biddingpatterns, it will be impossible to precisely reconstruct what would have occurred ifthe Keller list had been properly used– as opposed to some new version. Damageswhich will be impossible to quantify with precision and without controversy. Thatdetrimentally affected pilots would suffer irreparable harm, without recourse to aneffective remedy, is not even debatable. It has happened before.

101. The applicants seek the remedies set out in Schedule “B”. They ask that the CIRB

consider its labour relations mandate and act preemptively in this matter now.

notes to application:

1. The applicants would be pleased to withdraw this application should ACPA respondto its January 23, 2009 letter and state simply that it will not table any 2009bargaining proposal which would have the effect of reordering or amending theKeller seniority list or purporting to implement to Mr. Lordon recommendationsthrough any other process.

2. The applicants are acutely aware that the 2009 bargaining environment for AirCanada and ACPA will be difficult and complex. There will be many issues ofobvious importance to the company, the bargaining agent, and to the membership.They will not be easy to resolve. The applicants respectfully suggest that the lastthing that should make its way to the 2009 bargaining table is the Keller senioritylist. It is their hope that the CIRB will exercise its labour relations judgment toensure that the settled seniority issue does not reappear.

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3. The applicants also wish to make clear that there is nothing in this application whichsuggests that Air Canada has in any way acted improperly concerning seniorityissues since the release of Decision 360. However, in the absence of some pre-bargaining assurance from ACPA or some clear intervention by the CIRB, it is avirtual certainty that Air Canada will face an unlawful seniority bargaining demandat the outset. This has happened before. Decision 349 described pressure placedon the company at the time when the B777 and B787 aircraft were acquired. Theapplicants respectfully suggest that Air Canada should not be placed in such asituation, especially in this economic environment. The employer should not beforced to consider the sensitive labour relations implications of filing a bad faithbargaining complaint by way of response. The seniority rights of the minority formerCanadian pilot group should not be left in bargaining play as IVR Vote #90,Question 3, specifically contemplates– if, for its own reasons, Air Canada choosesto avoid a seniority confrontation with ACPA. Appropriate disposition of thisapplication would ensure that the parties are focussed upon the legitimatechallenges which confront them both. The ALPA Merger Committee has nointerest in participating in any way in the 2009 bargaining process nor in becominginvolved in any litigation in connection therewith which might confuse or make thatbargaining more difficult. This application is intended to preclude that eventuality.

SCHEDULE “B”

The applicants respectfully request that the Board provide the following relief:

1. Declaration that ACPA has violated Section 37 of the Canada Labour Code

2. Direction to ACPA that no proposal shall be tabled during the 2009 round ofcollective bargaining which would have the effect of reordering or amending theKeller seniority list or purporting to review or implement the Lordonrecommendations through any other process

3. Direction to ACPA that the Lordon ‘report’ shall not be used or relied upon for anypurpose whatsoever

4. Direction to ACPA that any proposed initiative of any kind, affecting the seniorityrights of the minority former Canadian pilot group, shall be disclosed at the outsetto the ALPA Merger Committee

5. Damages to any member of the former Canadian pilot group who may suffer loss

6. Solicitor and client costs