Prior to November 1, 1996, the aircraft navigation system in Canada was operated by Transport Canada. The system involved a number of bargaining units represented by different unions. Labour relations were governed by the federal public service legislation (including the Public Service Employment Act and the Public Service Staff Relations Act). Under this statutory régime, certain matters were not capable of being bargained collectively or being included in a collective agreement, including classification. Air traffic controllers were governed by the 1991-93 collective agreement between Treasury Board and the Canadian Air Traffic Control Association.

When the civilian air traffic control system was privatized in November 1996, labour relations became governed by the federal private sector legislation (the Canada Labour Relations Code). By virtue of the Civil Air Traffic Control Privatization Act and the Code, the existing collective agreements continued in force pending negotiation of a replacement collective agreement. Nav Canada and its various unions signed a Memorandum of Understanding dated November 19, 1996 to apply during the transition period which (among other things) includes Appendix B replacing the previous grievance and arbitration procedure under the collective agreement.¹

The grievances arise out of the following fact pattern:

• In 1977, Transport Canada adopted consistent criteria for the measurement of tower workload in a document referred to as TP1362.² The criteria used a mathematical formula to measure the dynamic and static elements of the work done at a particular tower. The measurement of the dynamic elements resulted in an "initial point rating" (or IPR), and the measurement of the static elements resulted in a "secondary point rating" (or SPR), which were combined into a "final point rating" (or FPR), which was intended to be regarded as a realistic mathematical reflection of the workload at any given tower. The FPR was used to determine the level of a particular tower, the daily controller staffing levels, the degree of administrative support, and sometimes the hours of operation.
• In 1991, Transport Canada adopted a classification standard for positions in the Air Traffic Control Group.³ This Classification Standard used essentially the IPR, SPR, FPR calculations from TP1362 to create a three-year rolling average (the AFPR) which was used to classify the controllers’ positions:⁴

The national policy grievance (Grievance No. 98-009) was filed by the Association on March 24, 1998.⁶ It relates to pay levels for controllers at towers where traffic levels have increased. The operative part of the grievance reads as follows:

The parties agreed to use the Calgary tower as a test case in the national grievance, with my remaining seized with the policy grievance to deal with the other towers if that is required.

The second grievance (No. 98-013) was filed by the Association on December 19, 1997. It relates to the effective date of pay adjustments at the Edmonton International Control tower due to increased traffic as a result of the transfer of scheduled traffic in June 1996 from the City Centre Airport to the International Airport. Although the Employer recognized that the transfer resulted in increased workload, it did not reclassify the controllers’ positions until September 1997, effective retroactively to April 1, 1997. The Union says that the effective date should be June 1, 1996.⁷

The Employer raised two preliminary objections to the national policy grievance—namely, (1) that it was filed outside the time limits prescribed in the collective agreement;⁸ and (2) that it is a classification grievance which cannot be arbitrated under the terms of the collective agreement.

Although counsel for the Employer initially raised an objection to the timeliness of the Edmonton tower grievance, this was not pursued at the hearing.⁹ However, the Employer did object that the Edmonton tower grievance is inarbitrable because it is a classification grievance; in the alternative, that the Edmonton controllers were not entitled to be reclassified or to back pay under the terms of the Classification Standard; and in the further alternative that any damages should be limited to the period preceding December 19, 1997 equivalent to the time period for filing a grievance (i.e., 40 days), during which no damages occurred.

I reserved my ruling on these preliminary matters until after hearing evidence and submissions from the parties.

The Union led evidence from the following witnesses:

Although he subsequently became President, when the arbitration hearing started Mr. Bhimji had been Vice-President of Labour Relations for CATCA since July 1993, which is a full-time elected position. His duties included support in the collective bargaining process, interpreting the collective agreement, consultation and attendance at national consultation meetings with the Director of Air Traffic Services and other Vice-Presidents of the Employer, assistance with the wording of grievances, assigning work to legal counsel and obtaining legal opinions, and attending meetings of the Union’s National Executive and Board.

In 1996, the staff in the Labour Relations sections consisted of one Labour Relations Assistant who was responsible for tracking grievances. In 1997, a second Labour Relations Specialist was added who was responsible for the preparation of cases. In addition, the section has in-house legal counsel.

With respect to the administration of grievances, Mr. Bhimji testified that national officers are usually only involved at the final level of the grievance procedure. The first level occurs at the region, and national officers may or may not be aware of grievances filed at that level. Prior to privatization, the Union could not file Union grievances under the Public Service Staff Relations Act, but that can occur now that their labour relations are governed by the Canada Labour Code.

In general, once a grievance is filed at the branch level, a copy is forwarded to the Union’s Regional Director and to the national office. However, that process does not invariably happen. Once a grievance comes to the attention of the national office, it has a tracking system which is intended to permit the Union to review outstanding grievances on a monthly basis to determine what files are to be referred to arbitration. However, the Union may not know about all of the grievances which are filed at the branch or regional level.

Mr. Bhimji acknowledged that there was confusion about the issue relating to Dorval Tower.¹⁰ He understood that a grievance had been filed with respect to the workload at Dorval. Although Mr. Bhimji sent a letter to the Company in July 1997 referring the Dorval Tower matter to arbitration¹¹ and the matter was subsequently processed for arbitration,¹² with the hearing scheduled for February 26 and 27, 1998,¹³ in January 1998 the Union realized that no grievance had been filed concerning the classification of Guy Ruel’s position at the Dorval Tower.¹⁴ The day before our arbitration hearing, Mr. Bhimji became aware of a letter written by the President of the Dorval Branch of CATCA to the Manager of the Dorval Control Tower dated December 30, 1996¹⁵ which noted the publication of the new version of TP1362 in January 1996, noted that using the new version would justify a higher classification for the Dorval controllers and supervisors back to March 1990, and asked that the salaries of all affected employees be adjusted to account for the reclassification back to that date with interest.

A copy of this letter is shown as having been sent to Guy Ruel, Regional Director of CATCA. On March 18, 1997, Mr. Ruel (as Quebec Regional Director of CATCA) sent a letter to Mr. Dupéré (Executive Regional Director of the Quebec Region of Nav Canada) to make:¹⁶

In July 1997, Mr. Ruel asked Mr. Dupéré to transmit the complaint to the national level in order to accelerate resolution of the problem.¹⁷ On September 5, 1997, Jean-Marc Blake (Vice-President of Human Resources for Nav Canada) denied the complaint because Mr. Ruel could not complain about the classification of the position in question because he did not hold that position and did not perform the assigned duties thereof.¹⁸ On September 26, 1997, Keith Stefanik (Director, Compensation for Nav Canada) sent a follow-up letter to David Lewis (President of CATCA) asserting that the Company did not intend to affect classification when it revised TP1362.¹⁹

Mr. Bhimji testified that he first became aware of the situation at the Calgary Tower in Summer 1997. Todd Gabel telephoned Mr. Bhimji to advise that the former had filed a grievance in the following terms:²⁰

The corrective action requested was to "upgrade Calgary Tower to an AI-05 level". Mr. Bhimji perceived that the grievance was more like a pay issue than a classification grievance, and he suggested different wording for the grievance. Accordingly, Mr. Gabel filed a revised grievance on August 19, 1997 in the following terms:²¹

The corrective action requested was:

The Calgary grievance was initially placed in abeyance with the consent of the CATCA Regional Director (Rick Snow) and the Employer’s Regional Director of Human Resources (Janice Foley) in order to gather data. Although a meeting about this grievance took place in January 1998, the Calgary Tower grievance was folded into the national grievance in a letter dated March 24, 1998 from Peter J. Barnacle, CATCA’s Legal Counsel, to Mary J. Gleason, Acting Legal Counsel for Nav Canada.²² Mr. Bhimji stated that he became aware of the Edmonton grievance²³ which had been filed on December 19, 1997 by Richard Nye (CATCA’s Northwest Regional Director) with the Employer’s Regional Director for Western Canada (Mr. Corkett) in January 1998, although he had previously been in contact with Mr. Nye about the significant rise in traffic after the Edmonton City Centre Airport was consolidated at the International Airport.

The Edmonton grievance reads as follows:

In August 1998, the Employer’s Director of Labour Relations (T. K. Veltheim) responded to the Edmonton grievance as follows:²⁴

Mr. Bhimji confirmed that, while the system was part of the public service, pay was governed by public service guidelines as well as Article 14 of the collective agreement:²⁵

Mr. Bhimji explained that the classifications in Appendix "A" are the result of the application of the Classification Standard²⁶ which uses the AFPRs.²⁷ When the Classification Standard was implemented in 1991, it referred to the 1977 version of TP1362, which in turn was designed to provide a uniform measure of workload at the various towers.²⁸ Mr. Bhimji described his understanding of the formula used in the 1977 version of TP1362, which results in the final point rating (FPR) for each airport. This number was reported monthly to Statistics Canada, who prepared a report for all airports in the country, which included a calculation of the average FPR for the airport for the preceding twelve months (the AFPR or Annual FPR). In 1977, the AFPR was used by the Employer only for determining staffing levels—that is, how many shifts at a particular airport, the start time of the shifts, the number of controllers on a shift, etc.

In 1991, there was a reclassification for air traffic controllers. At that time, the AFPR levels derived from TP1362 became linked to classification levels in the Classification Standard.²⁹ Prior to 1991, the classification for towers was quite subjective. After discussions between the Employer and the Union, Treasury Board linked classification to AFPRs for airport controllers. The AFPR calculation in the Classification Standard was derived by averaging the FPR calculation from TP1362 over a period of twelve months. The result of the AFPR calculation was to determine the level of a particular tower and the corresponding classification of the positions at that tower. The issue in the national grievance (according to Mr. Bhimji) as exemplified by the Calgary Tower is whether it should be properly characterized as being a Level 4 or a Level 5 tower, in light of the AFPRs for the Calgary Tower after the 1996 revision to the method of calculating FPRs in TP1362 (and therefore AFPRs for the purpose of the Classification Standard).

The issue with respect to the Edmonton grievance is the date upon which the Edmonton tower should be characterized as being a Level 3 tower. Although a change in the level of tower normally looks to the annual Average Final Point Rating averaged over a consecutive three-year period, that is not mandatory where major changes in traffic patterns occur as a result of either reorganization or opening of airports, which cases will be considered on their relative merits.³⁰

Thus, Mr. Bhimji said that if the workload at the Edmonton tower met the criteria for a Level 3 tower, one would go to Appendix "A" in the collective agreement to determine the pay rates for AI-03 positions.

The 1996 version of TP1362 was circulated in draft form to the Union, which had had input through the working group that prepared the draft revision. The revision of TP1362 was discussed at a number of national consultation meetings between the Employer and CATCA prior to the implementation of the revised version of TP1362:

• on June 30, 1993:³¹

• on October 6, 1994:³³

• on January 25, 1995:³⁴

In addition, there were consultations after the 1996 revision of TP1362 was put into effect in April 1996—namely, in March and April 1997 (Exhibit 3.6).

• March 6, 1997:³⁶

Mr. Bhimji testified that he had never seen the results of the Employer’s review of using blended AFPRs (using the old formula for periods prior to April 1996, and the new formula for periods after March 1996). However, Mr. Bhimji understood that the Employer had clearly recognized that the revised TP1362 would impact on pay and classification, and that the only issue was about which method to use in calculating the AFPRs. This was consistent with a letter dated January 22, 1997 from the manager of Dorval Tower (Donald Cameron)³⁷ to members of CATCA at Dorval explaining that the reclassification request for Dorval Tower was not able to be done by calculating the three-year AFPR by using a hybrid formula to apply the old calculation and the new calculation,³⁸ and in addition, referring to another management memorandum dated November 15, 1996,³⁹ directing that the data could not be used to justify any change in tower category, classification or staffing. Accordingly, the Dorval Tower could not be changed to a different level at that time.

Mr. Bhimji then referred to the Statistics Canada reports for the AFPRs for the Calgary Tower.⁴⁰ These AFPRs would put the Calgary Tower at Level 4.⁴¹ Statistics Canada apparently made two mistakes in implementing the new formula in 1996—it applied the new formula back to (at least) January 1996, and it applied the old SPR (28.10) rather than the new SPR (59.02).⁴² Nevertheless, the AFPR for December 1996 was 81109. The formula was corrected in 1997, and the AFPR for December 1997 was 87783, and for December 1998 was 94886. Applying these numbers to the Classification Standard (Table 1 above), Calgary Tower would have arguably moved to Level 5 (whose threshold is 70000).⁴³

According to Mr. Bhimji, the Union was prepared to accept a blended three year average.

On April 1, 1996 (contemporaneous with the implementation of the new version of TP1362), the Employer issued a Provisional Management Directive to change the unit staffing standard table at control towers as follows:⁴⁴

On cross-examination, Mr. Bhimji confirmed that CATCA’s National Executive includes the President and the Vice-President (Labour Relations) who are both on leave from the Employer, and one part-time Vice-President for technical matters. In addition, the Regional Directors are members of the Board of Directors, although they are not part of the Executive. Under the Union’s constitution, the Regional Directors have certain responsibilities, as does Mr. Bhimji in his role as Vice-President (Labour Relations). In particular, the Regional Directors are responsible for grievances at the first level (although the actual filing is usually done by Branch Chairs). Each branch is a unit, which may comprise more than one facility. At the branch level, there may be several stewards on different shifts, each of whom has responsibility for filing grievances.

Mr. Bhimji’s role as Vice-President (Labour Relations) is responsibility for the bargaining relationship, including ultimate responsibility for grievances and the processing of grievances, especially at the final level of the grievance process. He has instituted a new process at the national level for tracking all Union grievances, and has put in place training seminars for stewards, and communicated these changes to the Employer’s labour relations personnel.

The scope of what could be grieved under the Public Service Staff Relations Act was more restricted than is the case under the Canada Labour Code. For example, under the PSSRA, the Union could only grieve about matters which an individual could not grieve—for example, union dues. Classification grievances were not arbitrable under the PSSRA.

Mr. Bhimji agreed that the letter from Guy Ruel dated March 18, 1997 requesting to have the Dorval Tower reclassified to Level 5 did not constitute a grievance, but rather a complaint under the formalized complaint resolution process which is separate from the grievance procedure and which deals with matters which cannot be grieved. Similarly, Mr. Ruel’s letter dated July 24, 1997 to Mr. Dupéré (Regional Director–Quebec)⁴⁵ was a complaint, not a grievance, and Mr. Bhimji confirmed that in fact no grievance was filed about the reclassification of controllers at Dorval Tower even though the Union erroneously sent the matter to arbitration.⁴⁶ There was confusion between this matter and another grievance involving the UOS file.

Mr. Bhimji confirmed that he only became aware in January 1998 of the letter from Keith Stefanik (Director, Compensation) to David Lewis (President of CATCA) dated September 26, 1997,⁴⁷ which asserted that the potential for impact of the new NP1362 on position classifications had not been discussed, and that the classification process was unchanged notwithstanding the implementation of the new NP1362.

Although Mr. Bhimji was aware before the fact that the formula in TP1362 was starting to be changed in April 1996, with an initial change to the IPR and a later change to the SPR, he was not involved with Statistics Canada about how the changes would be implemented by them. Although he knew that Statistics Canada prepares its reports monthly, the Union does not directly receive a copy, although he agreed that the Employer usually provides the Union with any requested information.

Mr. Bhimji confirmed that while the Employer was part of the federal government, classification matters were dealt with by the Treasury Board, and could not be bargained or arbitrated. When a position was created, the classification branch evaluated and classified it in the public service. The AI Classification Standard dealt with air traffic controllers, classifying the positions from AI-01 to AI-05 for operational positions (and higher for some non-operational positions; students were classified at the AI-00 level). While Mr. Bhimji agreed that under the 1991 Classification Standard⁴⁸ it is the position which is classified, he also pointed out that it is the level of the tower which is relevant to determine the classification of the positions, referring particularly to paragraph 5 in the Notes to Raters in the Classification Standard:

If the level of the tower is downgraded, the Terms and Conditions of Employment in the public service green-circled the controller’s pay, although their positions might be reclassified at the lower level and new employees would have been appointed at the new (lower) level. Mr. Bhimji agreed that all controllers at the Calgary Tower would have received letters or certificates of appointment at the AI-04 level.

Mr. Bhimji said that acting pay would generally not be available to a person performing the duties of his own position, although he understood that acting pay was sometimes paid when classification was delayed.

With respect to the original grievance filed by Todd Gabel at the Calgary Tower in July 1997,⁴⁹ Mr. Bhimji agreed that this version of the grievance had been withdrawn and that it was recast so as to be able to grieve the pay issue, which he said was a continuing grievance. He testified that he told Mr. Gabel to reword the grievance to make it track the pay grievance at the Ottawa Tower arbitration. At Ottawa, he said, the Employer tried to have trainee controllers perform only part of a job and purported to pay them at less than the rate of pay for positions at that Tower. The arbitrator required the Employer to pay the employees in question at the higher level once they were working without supervision.

With respect to the Edmonton International Tower, Mr. Bhimji says that the effective date of AI-03 should be June 1, 1996, the date of the transfer of the traffic from the Municipal Airport. Mr. Bhimji did not personally review the statistics, but was advised by CATCA’s Northwest Regional Director (Mr. Peters) that the Edmonton International met this level under the criteria in the new NP1362, and that Mr. Peters was talking to Management about whether pay would be retroactive, and that Management had requested some more time in order to review more statistics. The controllers at the time had known right away that there had been a sudden and significant increase in their workload. The statistics a year later clearly justified the change. Using the figures in Exhibit 15 (which uses the old TP1362 formula up to April 1996, and the new formula thereafter), Mr. Bhimji agreed that the twelve month AFPR did not go over 30000 until January 1996 (31446), but pointed out that nevertheless there was a discrete increase in July 1996—in other words, one would have to look at the month of July 1996.

With respect to the other towers in the national grievance, Mr. Bhimji stated that he had not personally reviewed the statistics, and therefore could not specify the operative dates for the changes CATCA was seeking at these towers. However, he agreed that for all of these towers, the three year average would apply (because there is no suggestion of a discrete change in workload, as was the case at Edmonton International). The Union initially took the position that the Employer should recalculate the statistics for the three years prior to April 1, 1996 using the new formula. When the Employer replied that this would cause technical difficulties, the Union said that it would accept the hybrid formula.

Mr. Bhimji agreed that the 1977 version of TP1362 was in effect when the Classification Standard was written in 1991. He agreed that the ASPR ("Assigned SPR") is the result of applying the %SPR to the VSPR ("Available SPR for the unit, maximum available points for SPR"). Mr. Bhimji agreed that the Assigned SPR for a unit was done by Management. He also agreed that paragraph 3 of the Notes to Raters in the Classification Standard indicated that cases where there are major changes in traffic patterns "... will be considered on their relative merits", and that there is no rule or direction given as to how this is to be done except (Mr. Bhimji said) it must be reasonable.

The process for amending TP1362 started just before Mr. Bhimji became Vice-President (Labour Relations) in 1993. His understanding was that the purpose of the revision was to reflect workload, which in turn impacts both staffing and pay. He has not seen any terms of reference which restricted the mandate of the revision of TP1362 solely to staffing issues. However, he acknowledged that in 1993 Air Traffic Services was part of the Department of Transport, and that while staffing was within the authority which the Public Service Commission had delegated to the Director of ATS, classification was not within the Director’s purview but rather rested with Treasury Board. Although there had been consultation about classification in 1991-92, he agreed that the consultation did not constitute bargaining. Mr. Bhimji agreed that the cover letter dated November 7, 1995 conveying the draft revised TP1362 to the President of the Union⁵⁰ referred to the "Team to review the Control Tower Workload Measurement Criteria (TP1362) and the Staffing Standard". The Rationale and Explanations for the draft of the revised TP1362 referred⁵¹ to the following:

However, Mr. Bhimji asserted that this paragraph deals only with staffing, and says nothing about classification one way or the other. Similarly, he agreed that the reference in the minutes of the October 1994 consultation meeting⁵² to "IFR Workload Measurement" relates to measuring the workload at the Area Control Centres, which involves the number of flight minutes, which is relevant for staffing purposes (although it has not been implemented yet at the Area Control Centres). In the minutes of the January 1995 consultation meeting,⁵³ there was a discussion about whether TP1362 would adequately measure the staff levels at the Mirabel, Dorval and Pearson airports which have intersecting runways.

Mr. Bhimji agreed that the Employer had changed the staffing standard for towers contemporaneously with the implementation of the revised TP1362 on 1 April 1996.⁵⁴

On redirect examination, Mr. Bhimji pointed out that the FPR at Edmonton had jumped from 27049 in May 1996 to 32202 in June 1996,⁵⁵ which reflected the transfer of the traffic from Edmonton City Centre Airport. Thereafter, only one month (November 1996) had an FPR of less than 30000.

Richard Nye was currently an IFR Controller in training in Winnipeg Air Traffic Control Centre. He was recruited in 1990 and went to Edmonton, then to the Cornwall School in March 1991, then to Fort McMurray in October 1991, qualifying in April 1992. In January 1993, he was posted to Yellowknife Tower, where he checked out in April 1993. In July 1993, he was released from the direct IFR stream and obtained a permanent position in Yellowknife. In 1995, he won a competition to be the Unit Supervisor (the Operating Supervisor in the Tower). In March 1998, he went to Winnipeg by seniority bidding to start training.

Mr. Nye was the Branch Chair of CATCA in Yellowknife from November 1993 through April 1997, when he was elected as the Regional Director for the Northwest Region which includes the towers at Edmonton International, Edmonton City Centre, Villeneuve, Yellowknife and Whitehorse. In December 1997, this CATCA region merged with Rick Snow’s region to become the Western Region. As CATCA Regional Director, Mr. Nye’s duties included representing members at the Edmonton Towers and