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Air Ontario Pilot's Law Suit Against Acpa Members...


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After many long years (14?) enriching many law firms and lawyers, the law suit is done.....and the Air Ontario pilots have lost.

Actually given the current state of affairs I'd say you all lost, can you imagine how great a company AC could have been?

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I think it may be a bit left of the third base line to suggest any other group of pilots would have made the company any better; but I'm not sure that's what you meant, Brett...?

In any case, .... I hope all involved can accept what is, and move on. I'm damned sure it's been a lot of stress, strain, and misery for some, and I hope those of you feeling it most can put it to rest in your minds... I know something of the angst that can consume you when you can't let something go, but somehow, a dead issue is much better than one still pending.... Like the airplane that might be out on time, if, and if, and if, and if... ... it might be good... if.... ...when it's finally a done deal that the hoped for fix is not there, and the beast just cannot go, you feel better on one level.... or the difference between driving an iffy old car that might make it where you're going, and you're filled with uncertainty, and then when it's finally dead and your uncertainness is now certain.... sorry, ok, I'll shut up.

Cheers all. Best of luck to all of you! :m:

Mitch

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Mitch, I think Brett was probably suggesting that the company could have been a better place if the time, energy and money spent on the fight had been spent instead on a common goal.

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I think it may be a bit left of the third base line to suggest any other group of pilots would have made the company any better; but I'm not sure that's what you meant, Brett...?

Cheers all. Best of luck to all of you! :m:

Mitch

Mitch

You weren't around when Hollis drove the first wedge between the employee groups, (about the time that a lot of CP people were wearing a button that said "Better Dead than Red")

There was a very small window where had people put aside their own greed and stepped up to do what would have been good for the whole one could argue that WestJet would have gone the way of Roots et al and CP would have been allowed to die a peaceful and respectful death and AC (A Canadian Company)would be a dominate player on the world stage. This is of course the world the way I see it but who knows it just might have been.

At any rate it means nothing to me any longer because I was not married to an AC pension so I was not willing to take the cuts made to management back in 2004 (you think the union cuts were bad you should have been where I was).

In the years to come I'm sure people will look back on this in much the same way they look at the Jetliner and Arrow "Just think of what might have been"

Just my thoughts, Brett

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  • 2 years later...

found on another site:

Air Ontario Lawsuit
Good Afternoon All:

The very long saga of the Air Ontario Law Suit appears to be over.

A very well deserved BRAVO ZULU to those who were involved in this file from 1997!

My Fellow Pilots,

Summary
Since 1997 ACPA has supported the defence of a lawsuit filed by a group of Air Ontario pilots against a group of Air Canada pilots.
After many years of litigation, a recent decision of the Court of Appeal for Ontario has dismissed all claims against the defendant Air Canada pilots. In short, the Court found that the trial judge was correct in her conclusions of fact and law and dismissed the appeal.
While it is technically possible that an appeal may be filed with the Supreme Court of Canada (SCC) in relation to this matter, given the narrow grounds for appeal at the SCC and the decision at issue, we are cautiously optimistic that this may finally be the conclusion of this long-running dispute. The Air Ontario pilots have until September 19, 2015 to file a request for leave to appeal to the SCC. We will keep you advised of any such action or if and when we can confirm that the matter is finally at an end.

A more detailed explanation of the Air Ontario lawsuit and this recent decision is set out below and the complete decision is posted on the web site next to this newsletter.

Thank You
To say the least, this has been an epic file. I would be remiss if I were not to try to thank the many people involved in this matter and the membership for your patience and support during the course of this long struggle.
First and foremost, it is important to recognize those who dedicated themselves to seeing this matter through to this positive end. The favourable findings by the Courts in this matter are due largely to the high quality of the evidence that was given by those who testified on your behalf: Air Canada pilots Chris Pulley, Gary Dean, Tom Fraser, Yves Filion, Kevin Vaillant, and ACPA's founding President Dave Edward, as well as former Air Canada CEO Hollis Harris.
Special recognition is owed to Chris Pulley and our legal counsel Steve Waller and his firm, Nelligan, O'Brien, Payne LLP, who dedicated themselves fully to the process of ensuring the appropriate end came to this litigation.


Sincerely,

Ian
Captain Ian Smith (President)

post_new.gif 25th Jun 2015, 20:09
Air Ontario Fact Sheet and Highlights from June 19, 2015 Decision:

Background to the Litigation
In the fall of 1997, the Air Ontario pilots launched a $300,000,000 lawsuit against all Air Canada pilots who, as of March 28, 1995, were CALPA members on the Air Canada seniority list. The lawsuit claimed financial harm arising from the Air Canada pilots' resistance to implementing the merged mainline/feeder seniority list envisioned by the Picher Award. The lawsuit was originally intended to pressure ACPA into capitulating during regional merger settlement talks and striking a deal favourable to the regional pilots. In addition to the lawsuit, the feeder pilots through CALPA also filed a single employer application with the Canada Industrial Relations Board (CIRB). The hoped-for pressure never materialized. The single employer application was dismissed by CIRB Vice-Chair Michele Pineau on December 23, 1999.
Initially, the lawsuit sought damages for breach of contract. The Air Ontario pilots alleged that the CALPA constitution was a contract between the Air Canada pilots and the Air Canada regional pilots, obliging the Air Canada pilots to pursue a merger of pilot seniority lists, in accordance with the Picher Award. ACPA moved for summary judgment, i.e., asked to have the lawsuit dismissed, based on legal precedent concerning the special contractual character of union constitutions. When it became apparent that the lawsuit was going to be dismissed, the Air Ontario pilots amended their allegations, adding several tort claims including: civil conspiracy, interference with contractual relations and interference with economic interests. The plaintiffs were successful in having the claims consolidated as a class action proceeding in the courts.
As expected, Judge Winkler granted our motion for summary judgment and dismissed the contract claims, in accordance with clear and established law. Judge Winkler did not see as clear a basis in law to dismiss the tort claims, so the lawsuit, based only on those tort claims, proceeded.
The lawsuit was dismissed by the Superior Court of Justice of Ontario on July 25, 2012 but the Air Ontario Pilots appealed that decision to the Court of Appeal for Ontario.

The Lower Court - Air Ontario Pilot Class Action Dismissed by the Superior Court of Justice
On July 25, 2012 Justice Pepall issued a 153-page decision dismissing the class action.
In the class proceeding, more than 170 pilots employed by Air Ontario on March 28, 1995 claimed, among other things, that the defendant Air Canada pilots had committed several torts including but not limited to the tort of unlawful act conspiracy, negligent misstatement and that they breached their fiduciary duty. Specifically, they alleged that specific defined sub classes of Air Canada pilots conspired with each other by expressly or impliedly entering into an agreement or agreements to prevent implementation of the merged seniority list. The plaintiffs also sued for expenses incurred in connection with creating the merged list and for the loss of the chance to implement the merged seniority list.

After a lengthy trial, the judge dismissed all claims. The decision provides a lengthy analysis of each cause of action, the applicable law and the court's finding on that issue. Equally important, the trial judge provided a detailed analysis as to why the Plaintiffs actions did not cause the Air Ontario Pilots "damage", a legal requirement for several of the causes of action.
Our legal counsel, Steve Waller of Nelligan O'Brien Payne LLP, wrote an excellent summary of lengthy decision. It was released to you in MEC newsletter # 48, dated August 14, 2012. For additional detail, you can reread that MEC newsletter on the ACPA website.

The Decision at the Court of Appeal of Ontario dated June 19, 2015
The Plaintiffs appealed Justice Papal's decision to the Court of Appeal of Ontario on the following grounds:
1. The trial judge erred in concluding that a union member's "right to dissent" permitted the defendants in sub-class six (Air Canada rank-and-file who somehow acted to prevent implementation of a merged seniority list) to resist implementation of the merged list. As a result, the trial judge wrongly concluded that the defendants in sub-class six acted lawfully in resisting implementation of the merged list.
2. The trial judge erred in concluding that sub-classes two and four did not commit unlawful acts related to the merged list.
3. The trial judge erred in her causation analysis. She should have concluded that the defendants' unlawful conduct had caused the plaintiffs to lose more than a de minimis chance of having a merged seniority list implemented. She should then have gone on to value that lost chance.
4. The trial judge erred by failing to award damages equal to the $150,280 incurred by the plaintiffs in retaining lawyers and preparing for the arbitration with respect to the merged list.
The three judges of the Court of Appeal of Ontario unanimously rejected each of these grounds, and dismissed the claims, for the following reasons:
On the first ground of appeal the Court clearly and unequivocally ruled that the rank and file Air Canada members were entitled to select a union of their choice, had the right to dissent, and accordingly acted lawfully in resisting the implementation of the merged list. Specifically, the Court reasoned in part as follows:

[57] . The terms of the contractual relationship between the rank-and-file members of sub-class six and CALPA must be interpreted in light of both the statutory right of union members to choose their union and the labour law principle affording a right to dissent to union members.
[58] The trial judge concluded, and I agree, that the Constitution and Merger Policy did not expressly require the members of sub-class six to act to implement a merged seniority list. Nor did the Merger Policy expressly require the members of sub-class six to refrain from impeding or thwarting implementation of a merged list. Having regard to the statutory right of union member to choose their union and the labour law principle affording a right to dissent to union members, I would not imply such a term.
On the second ground of appeal, the Court of Appeal confirmed the trial court's decision that the Air Canada pilots who were the Air Canada Pilots Merger Representatives and Negotiating Committee representatives did not engage in unlawful conduct. The court's reasons for this conclusion were in part as follows:
[66].The trial judge had to decide whether the members of the sub-classes, in their capacities as Merger Representatives or negotiating committee members, breached the Merger Policy. In addition to finding that the members of these two classes acted under the control and direction of the Air Canada MEC, the trial judge found that their conduct did not breach the Merger Policy. The plaintiffs do not articulate how the trial judge erred in her interpretation of the Merger Policy, if they in fact argue that she did err. I am not persuaded that there is any basis to interfere with the trial judge's conclusion that sub-classes two and four did not breach the Merger Policy.
On the third ground of appeal, the Court of Appeal confirmed the trial judge's determination that the test for causation was not met and the plaintiffs failed to prove damages. In reaching this conclusion the court reasoned as follows:
[81] In my view, all of the plaintiffs' arguments fail in the face of the trial judge's acceptance of Mr. Harris' evidence, her detailed analysis of the circumstances leading to decertification, and her assessment of the lawfulness of the defendants' actions.
On the last ground of appeal, the Court concluded in short order that based on the other conclusions of the trial decision, and particularly the conclusion regarding causation, the Plaintiffs' had no argument to recoup the costs incurred in the merger.
As a result, the Court of Appeal dismissed the appeal and awarded costs in the amount of $175,000 against the Plaintiffs.
The decision of the Court of Appeal for Ontario, dismissing the appeal, is available on our website. It can also be found at: CanLII - 2015 ONCA 449 (CanLII)
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So much has been unsaid; so much that is known but for various reasons was unheard.

One should read the trial judge's decision and her characterizations of the conduct of SOME of the defendant sub-classes as "unlawful". The same characterization was made in reference to the largest sub-class but the conduct was excused as being within the union member's "right of dissent".

So---if your union decides to embark upon a course of conduct perceived to be in the best interests of the collective, you individually can attempt to sabotage that agenda notwithstanding your obligation to the union under its constitution.

Think about that.

There are some parties who believe that is inconsistent with union principles and should not stand as the law of Ontario.

I wouldn't rush to the conclusion that "it's all over". I think that was also said when the trial decision was released and that assumption was premature.

The trial judge construed the evidence of Hollis Harris as a statement that "he" (Air Canada) would not have accepted a merged seniority list. She therefore held that the wrongful conduct of the Air Canada pilots did not "cause" the plaintiffs' loss.

I believe that most who were involved with this case from day one know that what Hollis Harris actually resolved was that he would not impose a merged list upon "his" pilots---the AC pilots. If they were opposed to that list, that was the end of the story.

People such as Don Hudson were "sucked in" by the story that the Picher list put regional pilots above senior AC pilots on the basis of doh. That wasn't true (and I think Capt. Hudson agrees that he should have known better) but it was a successfully employed tactic by the Montreal solidarity group to garner full support of the AC pilot group.

And so it goes.

Maybe it's the end of the road; maybe not but the issues were important and deserving of judicial consideration. Don't for a moment believe that dismissal of the claim constitutes vindication.

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Neverminds....

I wouldn't presume to offer an opinion BUT it is my understanding that some years ago in this very case, after the Ontario Court of Appeal dismissed an appeal, the SCC granted leave to appeal from that decision. The result was a decision of the SCC that re-wrote the law on the relationship between a union and its members and between members per se.

The SCC recently delivered a decision on "right to strike" and MAY want to clarify the law with respect to the "right of dissent".

Like everything else these days---it's a crap shoot.

Maybe everybody has had enough---maybe not. Time will tell.

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Given what has occurred in the past, one suspects that the plaintiffs will be counselled appropriately as to the merits of a further appeal to the SCC. At a glance one can see there are some very troubling aspects to the Court of Appeal Decision.

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I don't know. But as a bystander on this, litigating yourself into a job/position seems dubious.

With a comment like that it's obvious that you don't understand the history of this issue and why the litigation began in the first place (and, no, I won't be the guy who explains it to you).

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