Berry et al. v. Pulley et al., (2015) 335 O.A.C. 176 (CA)

• Judge: Hoy, A.C.J.O., Watt and Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 14, 2015
• Jurisdiction: Ontario
• Citations: (2015), 335 O.A.C. 176 (CA);2015 ONCA 449

Berry v. Pulley (2015), 335 O.A.C. 176 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.030

Patrick Berry, James Deluce, Jeffrey Karelsen, Robert James Simerson and Ernest Zurkan (plaintiffs/appellants) v. Chris Pulley, Tom Fraser, James Griffith, Peter Wallace, George Cockburn, Denis Belhumeur, Greg Mutchler, Gary Dean, Yves Filion, Howard Malone, Kevin Vaillant and Gordon Grieg (defendants/respondents) and Kent Hardisty (third party/respondent)

(C55933; 2015 ONCA 449)

Indexed As: Berry et al. v. Pulley et al.

Ontario Court of Appeal

Hoy, A.C.J.O., Watt and Brown, JJ.A.

June 19, 2015.

Summary:

On March 1, 1991, the Canadian Airline Pilots Association (CALPA) initiated a process to merge pilot seniority lists at Air Canada and five regional airlines. Ultimately, an arbitrator crafted first a framework for a merged seniority list and then drafted an actual merged seniority list. A couple of days after the arbitrator finalized the merged seniority list, the Air Canada pilots voted to leave CALPA and join a new union known as the Air Canada Pilots Association. The merged seniority list was not implemented. In a class proceeding, the representative plaintiffs of a class comprised of 171 pilots employed by Air Ontario claimed, inter alia, that the defendant Air Canada pilots had committed the tort of unlawful act conspiracy. In particular, they alleged that Air Canada First Officer Pulley and 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 sued for expenses incurred in connection with creating the merged list and for the loss of the chance to implement the merged seniority list.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 1790, dismissed the plaintiffs' claims. The court found that the plaintiffs' claim for unlawful act conspiracy failed against the defendants in sub-classes two, four and six because those defendants had committed no unlawful acts. The court dismissed the claims against the defendants in sub-classes one, three and five because it found their unlawful conduct did not cause damage to the plaintiffs. The court found that due to a number of barriers to implementation of a merged seniority list, the plaintiffs did not lose more than a de minimis chance to have a merged seniority list implemented. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Damages - Topic 206

Entitlement - Loss of chance - The Canadian Airline Pilots Association (CALPA) initiated a process to merge pilot seniority lists at Air Canada and five regional airlines - Ultimately, an arbitrator crafted first a framework for a merged seniority list and then drafted an actual merged seniority list - A couple of days after the arbitrator finalized the merged seniority list, the Air Canada pilots voted to leave CALPA and join a new union known as the Air Canada Pilots Association - The merged seniority list was not implemented - In a class proceeding, the representative plaintiffs of a class comprised of 171 pilots employed by Air Ontario claimed that the defendant Air Canada pilots had committed the tort of unlawful act conspiracy - The plaintiffs sued for expenses incurred in connection with creating the merged list and for the loss of the chance to implement the merged seniority list - The plaintiffs' claims were dismissed - After finding that the plaintiffs had established the first four elements of unlawful act conspiracy with respect to the defendants in sub-classes one, three and five, the trial judge dismissed the claims against those defendants because she found their unlawful conduct did not cause damage to the plaintiffs - The trial judge found that due to a number of barriers to implementation of a merged seniority list, the plaintiffs did not lose more than a de minimis chance to have a merged seniority list implemented - The plaintiffs appealed - The Ontario Court of Appeal held that the trial judge made no error in concluding that the plaintiffs' chance of implementing the merged seniority list did not exceed the de minimis threshold - See paragraphs 68 to 93.

Damages - Topic 206

Entitlement - Loss of chance - The Canadian Airline Pilots Association (CALPA) initiated a process to merge pilot seniority lists at Air Canada and five regional airlines - Ultimately, an arbitrator crafted first a framework for a merged seniority list and then drafted an actual merged seniority list - A couple of days after the arbitrator finalized the merged seniority list, the Air Canada pilots voted to leave CALPA and join a new union known as the Air Canada Pilots Association - The merged seniority list was not implemented - In a class proceeding, the representative plaintiffs of a class comprised of 171 pilots employed by Air Ontario claimed that the defendant Air Canada pilots had committed the tort of unlawful act conspiracy - The plaintiffs sued for expenses incurred in connection with creating the merged list and for the loss of the chance to implement the merged seniority list - The plaintiffs' claims were dismissed - After finding that the plaintiffs had established the first four elements of unlawful act conspiracy with respect to the defendants in sub-classes one, three and five, the trial judge dismissed the claims against those defendants because she found their unlawful conduct did not cause damage to the plaintiffs - The trial judge found that due to a number of barriers to implementation of a merged seniority list, the plaintiffs did not lose more than a de minimis chance to have a merged seniority list implemented - The plaintiffs appealed - They argued that once the trial judge found that the merger expenses constituted an injury to the plaintiffs that the defendants knew or ought to have known would result from their unlawful conduct, she erred by failing to, at a minimum, award damages equal to the $150,280 incurred by the plaintiffs in retaining lawyers and preparing for the arbitration with respect to the merged seniority list - The Ontario Court of Appeal disagreed - The trial judge concluded that regardless of the defendants' wrongful conduct, the merged seniority list would not have been implemented - The plaintiffs had not established that the defendants' wrongful conduct caused the loss of the merger expenses - See paragraphs 94 to 98.

Labour Law - Topic 2255

Unions - Constitution and bylaws - Breach of - What constitutes - [See Labour Law - Topic 2562 ].

Labour Law - Topic 2321

Unions - Mergers - General - The Canadian Airline Pilots Association (CALPA) initiated a process to merge pilot seniority lists at Air Canada and five regional airlines - Ultimately, an arbitrator crafted first a framework for a merged seniority list and then drafted an actual merged seniority list - A couple of days after the arbitrator finalized the merged seniority list, the Air Canada pilots voted to leave CALPA and join a new union known as the Air Canada Pilots Association - The merged seniority list was not implemented - In a class proceeding, the representative plaintiffs of a class comprised of 171 pilots employed by Air Ontario claimed that the defendant Air Canada pilots had committed the tort of unlawful act conspiracy - In particular, they alleged that Air Canada First Officer Pulley and 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 trial judge found, inter alia, that the plaintiffs' claim for unlawful act conspiracy failed against the defendants in sub-classes two, four and six because those defendants had committed no unlawful acts - The plaintiffs appealed - They argued that the trial judge erred in concluding that sub-classes two and four did not commit unlawful acts related to the merged list - The Ontario Court of Appeal found no basis to interfere with the trial judge's conclusion that sub-class two (one of the Air Canada pilots' Merger Representatives) and sub-class four (members of the committee appointed by the Air Canada Master Executive Council (MEC) to negotiate the new Air Canada collective bargaining agreement) did not breach the Merger Policy - The trial judge found that the members of sub-classes two and four had a limited contractual role and that they acted under the control and direction of the Air Canada MEC - The plaintiffs argued that whether the members of sub-classes two and four acted under others' direction was irrelevant - However, in addition to finding that the members of these two sub-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 - See paragraphs 63 to 66.

Labour Law - Topic 2562

Unions - Members' rights or liabilities - Right to dissent - The Canadian Airline Pilots Association (CALPA) initiated a process to merge pilot seniority lists at Air Canada and five regional airlines - Ultimately, an arbitrator crafted first a framework for a merged seniority list and then drafted an actual merged seniority list - A couple of days after the arbitrator finalized the merged seniority list, the Air Canada pilots voted to leave CALPA and join a new union known as the Air Canada Pilots Association (ACPA) - The merged seniority list was not implemented - In a class proceeding, the representative plaintiffs of a class comprised of 171 pilots employed by Air Ontario claimed that the defendant Air Canada pilots had committed the tort of unlawful act conspiracy - In particular, they alleged that Air Canada First Officer Pulley and 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 trial judge found, inter alia, that the plaintiffs' claim for unlawful act conspiracy failed against the defendants in sub-classes two, four and six because those defendants had committed no unlawful acts - The plaintiffs appealed - They argued that 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) to resist implementation of the merged list - The trial judge acknowledged that the CALPA Constitution and Merger Policy constituted a contract between each union member and CALPA - The plaintiffs alleged that the members of sub-class six breached that contract and thereby acted unlawfully - The plaintiffs' argument had two prongs - First, the plaintiffs argued that the trial judge erred in concluding that the conduct of the rank-and-file members did not breach their contract with the union - Second, if a union member harmed another member by the breach of the union's rules, the injured member might have an action in tort against that member - The plaintiffs submitted that a union member's "right to dissent" did not insulate him or her from tort claims from other union members - The Ontario Court of Appeal dismissed the appeal - The terms of the contractual relationship between the rank-and-file members of sub-class six and CALPA had to 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 - The members of sub-class six did not breach their contracts with CALPA in voting to form ACPA and in taking other steps to avoid implementation of a merged seniority list - See paragraphs 39 to 61.

Labour Law - Topic 2563

Unions - Members' rights or liabilities - Right to change unions - [See Labour Law - Topic 2562 ].

Labour Law - Topic 2575

Unions - Members' rights or liabilities - Personal liability of union members - [See Labour Law - Topic 2562 ].

Torts - Topic 5084

Interference with economic relations - Conspiracy - Unlawful conduct or unlawful means conspiracy - [See Labour Law - Topic 2321 and Labour Law - Topic 2562 ].

Cases Noticed:

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R. 477; 450 N.R. 201; 2013 SCC 57, refd to. [para. 35].

Agribrands Purina Canada Inc. v. Kasamekas et al. (2011), 278 O.A.C. 363; 106 O.R.(3d) 427; 2011 ONCA 460, refd to. [para. 36].

Tippett v. International Typographical Union, Local 226 (1975), 63 D.L.R.(3d) 522 (B.C.S.C.), refd to. [para. 41].

Berry et al. v. Pulley et al., [2002] 2 S.C.R. 493; 287 N.R. 303; 158 O.A.C. 329; 2002 SCC 40, consd. [para. 42].

Fullowka et al. v. Pinkerton's of Canada et al., [2010] 1 S.C.R. 132; 398 N.R. 20; 474 A.R. 1; 479 W.A.C. 1; 2010 SCC 5, refd to. [para. 43].

Culina v. Guiliani, [1972] S.C.R. 343, refd to. [para. 50].

Southern Foundries (1926), Ltd. v. Shirlaw, [1940] A.C. 701 (H.L. Eng.), refd to. [para. 50].

Berry et al. v. Pulley et al. (1999), 96 O.T.C. 198; 45 O.R.(3d) 449 (Sup. Ct.), refd to. [para. 52].

G.F. et al. v. Reardon (2005), 194 O.A.C. 201; 74 O.R.(3d) 688 (C.A.), refd to. [para. 70].

Kinkel v. Hyman, [1939] S.C.R. 364, refd to. [para. 71].

Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 62 O.A.C. 20; 12 O.R.(3d) 675 (C.A.), leave to appeal refused [1993] 3 S.C.R. vii; 162 N.R. 399, refd to. [para. 71].

Wong et al. v. 407527 Ontario Ltd. et al. (1999), 125 O.A.C. 101; 179 D.L.R.(4th) 38 (C.A.), refd to. [para. 72].

Statutes Noticed:

Canada Labour Code, R.S.C. 1985, c. L-2, sect. 38(1) [para. 57, footnote 1].

Counsel:

Benjamin Zarnett, Graham D. Smith and Peter R. Merchant, for the appellants;

Steve Waller and Leanne Storms, for the respondents;

Brian Shell and Steven Sagle, for the third party/respondent.

This appeal was heard on April 14, 2015, before Hoy, A.C.J.O., Watt and Brown, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Hoy, A.C.J.O., and was released on June 19, 2015.