



COURT OF APPEAL FOR ONTARIO

CITATION: Cherrier v. Canada (Attorney General), 2019 ONCA 20

DATE: 20190115

DOCKET: C64755

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Yohan Paul Cherrier

Applicant (Appellant)

and

Attorney General of Canada
, Canadian Industrial
    Relations Board, Kevin Burkett

Respondents (
Respondent
)

Yohan P. Cherrier, acting in person

Stewart Phillips, for the respondent, Attorney General
    of Canada

Heard: December 12, 2018

On appeal from the
    order of Justice Douglas K. Gray of the Superior Court of Justice, dated December
    7, 2017, with reasons reported at 2017 ONSC 7336, 401 C.R.R. (2d) 202.

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of his
    application for recognition of seniority by date of hire as a protected right
    under the
Canadian Charter of Rights and Freedoms
.

[2]

As submitted by the appellant, a summary of the
    history of proceedings leading up to this appeal is useful to understand the
    context of the appellants arguments on appeal.

[3]

The appellant was formerly employed as a flight
    attendant by Canadian Airlines International Ltd. (CAIL), which merged with
    Air Canada in January 2000.  At the time of the merger, the appellant and other
    members of the two airlines cabin crews were represented by the same trade
    union, Canadian Union of Public Employees. In August 2000, the Canada
    Industrial Relations Board (the Board) declared the airlines to be a single
    employer under the
Canada Labour Code
, R.S.C. 1985, c. L-2
(the
Code
). The Board requested under s.
    18.1(2)(a) of the
Code
that the parties seek
    agreement with respect to the determination of the merged bargaining unit and
    other issues arising from the declaration, which included the issue of
    seniority integration.

[4]

The parties agreed to settle the seniority
    integration issue in relation to the merged bargaining unit through a mutually
    agreed upon arbitration process. After the completion of the process over
    several months, the arbitrator issued a number of awards, which the Board confirmed
    in 2003. The arbitrator determined that seniority integration of the merged
    bargaining unit would be on the basis of the members relative position on the
    seniority lists rather than on date of hire.

[5]

The appellant and many members of the merged
    bargaining unit strenuously objected to the seniority integration decision.
    Over many years, the appellant and others have sought to challenge it through
    numerous unsuccessful proceedings, including several grievances, applications
    to the Board seeking reconsideration, complaints to the Canadian Human Rights
    Commission, an action in the Federal Court of Canada, judicial review
    applications, and appeals before the British Columbia Supreme Court and the
    Federal Court of Appeal.

[6]

The appellant brought the present application
    for a declaration that the integration of seniority rights on the basis of
    relative position on a seniority list rather than by date of hire contravened
    his rights under ss. 7 and 15 of the
Charter
.
    If the court found that seniority by date of hire is protected by the
Charter
, the appellant sought an order declaring s. 18.1 of the
Code
unconstitutional.

[7]

The application judge thoroughly reviewed the
    history of the seniority rights integration process and outcome. His reasons
    demonstrate that he was alive to the importance of seniority rights and of the
    integration issue for the appellant.  Having carefully reviewed the relevant
    evidence in the record, and having addressed the parties submissions, the
    application judge concluded that the integration of the seniority rights of the
    merged lists did not infringe the appellants ss. 7 and 15
Charter
rights.

[8]

We see no basis to interfere with the
    application judges decision.

[9]

While the application judge recognized that the
    results of the arbitration and Board proceedings undoubtedly caused the
    appellant stress, he concluded that the alleged psychological, emotional and
    physical stress did not amount to the kind of harm that constitutes an
    infringement of the appellants s. 7
Charter
rights. Further, the application judge found that the alleged devaluation of the
    appellants seniority concerned harm to economic rights, which are not
    protected under the
Charter
. Rather, the
    integration of the collective seniority rights in issue was properly addressed
    by the bargaining parties in a collective bargaining process. We see no error
    in these conclusions. Nor did the application judge err in finding that the
    integration of seniority rights did not result from any discrimination because
    of age, or other enumerated or analogous ground protected under s. 15 of the
Charter
.

[10]

The appellant raises the issue of procedural
    fairness and submits that he was prevented from making several arguments before
    the application judge. The appellant was represented by counsel on the
    application. Although he acknowledges that his counsel ably presented his
Charter
arguments, the appellant submits his counsel did not raise the
    arguments that he wanted to raise before the application judge, and he now seeks
    to raise them on appeal. These arguments include, but are not limited to, the
    illegal acquisition and merger of the two airlines; discrimination against
    female members of the merged bargaining unit; improper activities by the union
    and certain of its representatives; and malfeasance, dereliction of duty, and
    obstruction of justice, specifically by the Canadian Human Rights Commission
    and the Board.

[11]

We are not persuaded by this submission.

[12]

It is important to recall that counsel and the
    court are circumscribed by the issues raised by the parties in their pleadings.
    The appellants application sought a
Charter
remedy
    for the alleged infringement of his ss. 7 and 15 rights as a result of the
    integration of seniority rights and a declaration of constitutional invalidity
    of s. 18.1 of the
Code
. The appellant pursued
    all available avenues of relief in his various proceedings in which he already
    litigated many of the issues he seeks to raise on appeal. The appellant cannot
    pursue these issues within the framework of this application.

[13]

Turning to the motion for fresh evidence, the
    appellant seeks to admit numerous documents on appeal, including several motion
    records and other court filings related to the proceedings instigated by the
    appellant in other forums. While the transcripts from the hearing of the
    application can properly be added to the record, we dismiss the motion seeking
    to file fresh evidence. We agree with the respondent that the proposed fresh
    evidence would not have affected the outcome of the application because it
    concerns matters already litigated and outside its scope.

[14]

Accordingly, the appeal is dismissed.

[15]

The respondent does not seek costs. As a result,
    we make no order as to costs.

Paul
    Rouleau J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


