Echo Hotel Aviation Law Briefings

This weekly briefing series outlines recent decisions and news that affect the aviation sector.

The articles listed below are intended to provide readers with general information. They should not be regarded or relied upon as legal advice or opinion.

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May 29, 2018 – ALPA & Westjet Agree to Settlement Process

May 29, 2018

TOP STORY Settlement Process Reached Between WestJet Pilots and WestJet   DECISIONS Grievance – Meal Allowance – Canadian Union of Public Employees, Air Canada Component v Air Canada Rouge, 2018 CanLII 44930 Grievance regarding failure to pay meal allowance during mandatory training periods – Review of collective agreement language clearly connected meal allowance to duty on flights, not non-flight duty – Dismissed Preliminary Objection – Unjust Dismissal – Hogan and Air Spray (1967) Ltd., Re, 2018 CarswellNat 2154 Pilot complaint for unjust dismissal – Employer contended pilot was laid off and that lay-off was due to 25% reduction in provincial…

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May 24, 2018 – More Labour Turbulence as UNIFOR Votes for Strike Action at Flair

May 24, 2018

TOP STORY Members at Flair Airlines Have Spoken   DECISIONS Judicial Review – Regulations – Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518 CUPE challenge of new Regulations stating how many flight attendants are required on passenger airplanes in proportion to passenger seats – CUPE alleged that Regulations were contrary to basic norms of procedural fairness and breached CUPE’s legitimate expectation to be meaningfully consulted – CUPE had the opportunity to participate in focused consultations regarding the challenged regulations and its input was acknowledged – No duty of procedural fairness owed by the Governor in Council…

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May 18, 2018 – WestJet Pilots Vote to Strike

May 18, 2018

TOP STORY WestJet Pilots Vote to Strike if Negotiations Break Down   DECISIONS Grievance – Pre/post-flight time – Syndicat canadien de la fonction publique, section locale 4041 v transat A.T. inc., 2018 CanLII 41770 Flight Directors grieved failure to pay 30 minute premium for duties performed as per collective agreement – Employer split premium into two parts of 15 minutes – Grievance turned on meaning of “flight” and other terms contained in agreement – Grievance allowed Appeal – Compensation Exclusions – Lukács v. Canada (Canadian Transportation Agency), 2018 FCA 92 Appeal of exclusions for eligibility for compensation if bumped from…

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May 8, 2018 – Pilot’s Age Discrimination Claim Dismissed

May 11, 2018

TOP STORY Bagherinia v. Wal-Mart Canada Corp, 2018 HRTO 502 Human Rights – Age Discrimination – Commercial pilot applied for position flying corporate jet – When not awarded position, filed Human Rights complaint on the basis of age discrimination – Decision who to hire was based upon immediate ability to fly (i.e. no delay to obtain licensing etc.) – Dismissed   DECISIONS Judicial Review – Certification – Garda Security Screening Inc. v. General Teamsters, Local Union 979, 2018 FCA 71 Garda sought review of decision certifying Teamsters as bargaining unit for Check Point Managers and Quality Leads at YWG – Employees…

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April 27, 2018 – Court Upholds Manager Finding: S.240 Complaint Dismissed

April 27, 2018

TOP STORY Cicale v. Swiss International Air Lines Ltd., 2018 FC 389 Judicial Review – Constructive Dismissal – Adjudicator concluded applicant was a “manager” therefore not covered under CLC – Finding of adjudicator was reasonable – Not the place for Court to question credibility and documentary findings only examine reasonableness of outcome – Application dismissed (Lower Decision: Cicale and Swiss International Air Lines Ltd., Re, 2017 CarswellNat 1428) DECISIONS Motion – Amended Response – The Commissioner of Competition v. Vancouver Airport Authority, 2018 CACT 9 YVR motion to file Amended Response – Will not create delay – Allowed …

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April 17, 2018 – Employee on “auto-pilot” Wins Unjust Dismissal Notice

April 18, 2018

TOP STORY Roy and Northern New Brunswick Airport Inc., Re, (Canada Adjudication) Application – Unjust Dismissal – Employee drove baggage tug while under orders not to drive any motorized vehicle during the temporary suspension of his driver’s license – Employee could not provide explanation and was terminated – Employee claimed unjust dismissal under Canada Labour Code – No application of progressive discipline, dismissal disproportionate – Reinstatement not recommended in light of employee’s disobedience, insubordination and lack of candor and honesty with Employer and during hearing – Claim for punitive damages denied – Employee awarded 10 months wages as compensation, 2…

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April 10, 2018 – Weed and the Workplace

April 10, 2018

TOP STORY Weed and the Workplace   DECISIONS Passenger Complaint – Delayed Baggage – Wajsfeld c. Air Canada, 2018 QCCQ 1386 Passenger claim of $5,333.65 for delayed baggage and failure to respond by airline – Airline offered $200 in compensation after baggage was delivered – Claimant could not produce proper receipt showing damages – Dismissed with costs Application – Certification – United Food and Commercial Workers International Union, Local 175 v. CLS Catering Services Ltd., 2018 CanLII 27857 Representation vote ordered – Bargaining unit comprised of: all employees working as Customer Service Representatives of CLS Catering Services Ltd., at Lester…

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April 4, 2018 – Harassment in the air

TOP STORY Air Canada flight staff graded on appearance, sexually harassed by management, union alleges DECISIONS Application – Appointment of arbitrator – Overberg v Aerospace, 2018 ONSC 1720 Application to appoint sole arbitrator in dispute pursuant to Commercial Agent Agreement – Sole arbitrator originally agreed to by parties – Respondent later sought to appoint different arbitrator – Respondent argued no finalized Arbitration Agreement with chosen arbitrator – Respondent had repeatedly communicated its agreement to the chosen arbitrator – Allowed, sole arbitrator appointed Complaint – Jurisdiction Issue – Kufuor-Boakye and WestJet Operations Corp. (Federal Mediation and Conciliation Service), Re, 2018…

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March 27, 2018 – Medical Use of Marijuana Triggers Duty to Accommodate Ramp Employee

March 28, 2018

TOP STORY Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 14518 Grievance – Termination – Ramp agent tested positive for marijuana after incident – Grievor refused specific conditions offered for continued employment under the Corporate Drug and Alcohol Policy – Employee’s marijuana use was medical, not recreational – No evidence of impairment – Post-incident drug testing was found to be reasonable despite flawed process – Employer knowledge of medical use of marijuana by employee triggered duty to accommodate – Grievor reinstated   DECISIONS Appeal – Bankruptcy – Syndic d’Aviation Flycie inc., 2018 QCCA 423 original decision: Syndic…

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March 20, 2018 – Time for More Oversight?

March 20, 2018

TOP STORY Airlines in Canada ‘on the precipice of something bad,’ say critics   DECISIONS Judicial Review – Security Clearance – Dhesi v. Canada (Attorney General), 2018 FC 283 Station Attendant at YVR denied security clearance due to associations with gangs and guns – Applicant given sufficient information on concerns and time to respond – Minister’s decision was reasonable and within the acceptable outcomes – Dismissed   CANADIAN TRANSPORTATION AGENCY DECISIONS Application – 161768 Canada Inc. c.o.b. as Decair – Determination No. A-2018-51 For cancellation of Licence Nos. 000085 and 000086 Application – Deutsche Lufthansa Aktiengesellschaft (Lufthansa German Airlines), on behalf of itself and Lufthansa CityLine GmbH – Determination…

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