Court of Appeal of Quebec

Davies c. Air Canada

Gagnon, Healy, Bachand

Appeal from a judgment of the Superior Court dismissing an application for authorization to institute a class action. Allowed.

Over the past several decades, the respondent, Air Canada, consistently undertook to grant and continue to make available, including upon retirement, free and reduced travel passes to all employees with at least six months’ experience. It also undertook, throughout that period, to ensure that priority for the use of those passes would be determined by seniority. The appellant claims that the respondent breached those undertakings by issuing passes with higher priority to tens of thousands of current employees, causing injury to its retirees by substantially reducing the usefulness of their travel benefits. On their behalf, she claims pecuniary and non-pecuniary damages. The trial judge found that the facts alleged in the application did not appear to justify the conclusions sought.

The trial judge made errors of law when he found that the respondent could not be under an obligation to continue providing retired employees with passes with seniority-based priority.

Firstly, while he was right that it is possible to consider the pass programs as resulting from the respondent’s exercise of its management rights, the judge erred in assuming that such rights were so unfettered that they surely allowed the respondent to modify, without prior notice, aspects of the program it had previously undertaken to maintain. The proposition that the respondent’s assumed-to-be-true failure to act consistently with its past representations amounts to wrongful conduct cannot be discarded as frivolous or surely devoid of any merit.

Secondly, the judge erred in dismissing out of hand the possibility that the respondent’s alleged obligations arose out of distinct contracts legally independent from the collective agreements. While, in principle, a collective agreement leaves no room for separate contracts concerning the conditions of employment, independent agreements addressing matters not mentioned in the collective agreement may exist and be legally effective. For this reason, one cannot exclude the possibility that the respondent’s longstanding practice regarding passes gave rise to one or several tacit contracts constituting the source of its alleged obligations.

Thirdly, the judge overlooked the possibility that the syllogism asserted by the appellant could find support in the theory of estoppel or peremptory exceptions.

Last, based on the record as it currently stands, it is possible that the appellant will succeed in proving that she and other of the respondent’s retirees were injured by the extensive issuance of higher priority passes. The judge made a reviewable error by assuming that a retiree in circumstances similar to the appellant’s who has yet to be prevented from using their pass as a result of a current employee’s use of their higher priority pass cannot possibly have sustained an actionable injury.

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