Federal Court of Appeal - Van Den Hoef v. Air Line Pilots Assn.

[1] By this application, the applicant seeks to have reviewed and set aside a decision of the Canada Industrial Relations Board dated October 24, 2000, which dismissed the applicant's complaint under subsection 97(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 in which he alleged that the respondent Association had failed in its duty to him under section 37 of the Code.

[2] Section 37 of the Code reads:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.	37. Il est interdit au syndicat, ainsi qu'à ses représentants, d'agir de manière arbitraire ou discriminatoire ou de mauvaise foi à l'égard des employés de l'unité de négociation dans l'exercice des droits reconnus à ceux-ci par la convention collective

[3] The applicant's complaint centred on the quality of the representation he received from the respondent Association at an internal investigation by his former employer into an aspect of the applicant's conduct after the closing of the employer's Montreal offices required his transfer from that city to Vancouver, and at arbitration proceedings. The investigation led to the applicant's dismissal from his employment. The applicant grieved his dismissal. A hearing before an arbitrator was to no avail.

[4] The applicant was accompanied at the internal investigation as well as before the arbitrator by representatives from the respondent Association. In addition, he retained independent counsel to advise him with respect to the arbitration proceedings.

[5] The Board's decision contains a detailed analysis of the evidence. In brief, the applicant claims that he was not adequately represented at the internal investigation which he claims was called on short notice. The quality of representation at the arbitration stage focussed on claims of failure to call evidence, to properly cross-examine witnesses and, generally, negligent handling of the applicant's grievance.

[6] The parties agree that the Board's decision should be reviewed for patent unreasonableness. We agree, given the nature of the question and the Board's expertise in matters of this kind. The Board found on the evidence that the applicant was properly prepared by the respondent Association for the internal investigation and that the efforts of counsel at the arbitration were adequate. In our opinion, the decision was not patently unreasonable.

[7] In our view, while it is true that the Board disposed of the complaint on the basis of the written record, the applicant can scarcely complain at this late date that this was somehow inadequate. The applicant, faced with the submission of the respondent Association before the Board that no oral hearing was required, remained silent despite his undoubted right under subsection 19(1) of the Canada Industrial Relations Board Regulations to request such a hearing. By failing to avail himself of that right the applicant passed up the opportunity at an oral hearing of calling and cross-examining witnesses. In the circumstances, we consider that this failure by the applicant himself does not provide a basis for concluding that the Board's decision was patently unreasonable simply because it was based on the written record which was filed before the Board in accordance with its procedural requirements.

[8] The application will therefore be dismissed with costs to the respondent Air Line Pilots Association.

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-723-00

STYLE OF CAUSE:

RICHARD VAN DEN HOEF v. AIR LINE PILOTS ASSOCIATION AND OTHERS

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: MAY 8, 2002

REASONS delivered from the Bench at Ottawa, Ontario on Wednesday, May 8, 2002

REASONS FOR JUDGMENT BY: STONE J.A.

NOËL J.A.

SEXTON J.A.

APPEARANCES:

Mr. D. Bruce Sevigny FOR THE APPLICANT

Mr. Brian Shell FOR THE RESPONDENT,

AIR LINE PILOTS ASSOCIATION

Mr. Geoffrey J. Litherland FOR THE RESPONDENT,

CANADIAN AIRLINES INTERNATIONAL LTD.

SOLICITORS OF RECORD:

Sevigny Law Office FOR THE APPLICANT

Ottawa, Ontario

Shell, Jacobs FOR THE RESPONDENT

Toronto, Ontario AIR LINE PILOTS ASSOCIATION

Harris & Company FOR THE RESPONDENT

Vancouver, B.C. CANADIAN AIRLINES INTERNATIONAL LTD.