Transport Committee on March 29th, 2012

[Mike Sullivan, NDP, York South—Weston, ON]

With respect, I'm going to disagree.

The essence of this decision was whether Air Canada could contract its work out to Aveos, and not Air Canada itself. The judge's ruling was that as long as Aveos was doing the line maintenance work on behalf of Air Canada in Winnipeg, Montreal, and to a certain extent Toronto, that in itself was compliance. It didn't matter whether those employees were employees of Air Canada, provided that the work continued to be done. The judge didn't say anywhere in this decision that if the work disappears, if Aveos closes, they'll still be in compliance. That's not said anywhere in that decision.

[Pierre Legault]

I think it's possible for Air Canada to be in compliance even if Aveos has disappeared, and I think the judge has left that door open.

[Mike Sullivan, NDP, York South—Weston, ON]

With respect, I'm going to have to disagree.

The other public policy issue here is that it has been stated on many occasions, and the judge did say this, that ACPPA was somewhat vague. When a law is somewhat vague, as you know, as a lawyer, when something is not clear on its face, one goes to the statements made around it. One uses the history of the creation.

It was abundantly clear in 1988 and subsequently that the intent of Parliament was to ensure that some work remained with regard to overhauling of aircraft and their parts in Winnipeg, Montreal, and Toronto. That overhaul work is now completely gone. There is no more overhaul work for Air Canada airframes or engines being done anywhere in Canada, let alone Winnipeg, Montreal, and Toronto.

We now have a situation in which the clear intent of Parliament has been violated. A judge having said that these words are somewhat vague leads one to the next step: that is, okay, if they are vague, what did Parliament really mean? What we're getting, both from the minister and now from you, is that Parliament meant they could do whatever the heck they wanted. Therefore, they could probably stop offering services in both official languages, because Parliament didn't really spell that out as clearly as it could have. That's clearly not the case.

What's going on here is a clear attempt to union-bust. That's really what's happening. Air Canada has gone to great lengths to carve out this expensive maintenance. They've said it. You have said it: there's a competitive edge that must be had here, and that competitive edge is gone. But that's not why Parliament insisted on something. Parliament insisted on something in the ACPPA in order to ensure that work remained in Canada. We now have the single largest disappearance—laying off—of talent in the aircraft and aerospace industry since a previous Conservative government cancelled the Avro Arrow. It's huge.

Air Canada is saying “Maybe they will get a job in Winnipeg, or maybe they will get a job in Vancouver, Toronto, Windsor, or Trois-Rivières.” Yes, at half the rates. They are not going to take the jobs at half the rates with no benefits and no pension. That's what this is really all about. It's lowering Air Canada's costs. That's not what Parliament said they could do.

With respect, Mr. Legault and Ms. Burr, I don't believe that this decision actually provides us with enough guidance to say whether or not Air Canada today actually does what Parliament intended. That's just not in that decision. For you to now rely on it, and then to say in your opinion that if the government were to now interfere and suggest that they have to would be in violation of NAFTA....

It beggars belief that we are now bringing NAFTA into this equation. Parliament made a decision in 1988 that said we are going to maintain operational maintenance and repair centres in three big places. Now, if we try to do that, we're going to raise NAFTA? Can you explain why NAFTA comes into this thing?

[Pierre Legault]

NAFTA was passed subsequent to the legislation we're talking about, in 1988. The legislation is valid under NAFTA, but its application obviously continues to this day.

I'm not here to provide additional legal opinion to this committee. I'm here to explain the opinion and what I wrote, but no more than that.

[Mike Sullivan, NDP, York South—Weston, ON]

Well, you didn't explain how NAFTA.... The way I read your opinion is that if Parliament were to decide, “Oh my goodness, we screwed up, we should have told Air Canada to actually keep those bases open”, you have said in your opinion, I believe, that if we now do that, it's in violation of NAFTA. But if all we're doing is enforcing the law as written in 1988, it's not in violation of NAFTA.

[The Chair, Conservative, Merv Tweed]

I have to stop you there and go to Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

Mr. Chair, what I'd like to do is to try, as much as possible, to simplify the issue.

I'm not a lawyer myself. I do believe in the rule of law. I do believe that whether an individual or a corporation breaks the law, there should be some justice that comes out of it.

There's a sense of frustration. The workers of Aveos, who were formerly Air Canada employees, feel that there has not been any justice, that their government has let them down.

Let's look at what the law actually says. This is paragraph 6(1)(d): “...provisions requiring the Corporation to maintain operational and overhaul centres in the City of Winnipeg, the Montreal Urban Community and the City of Mississauga”.

Now, for the average worker, including myself as someone who is concerned about the worker, we read that and interpret it as meaning that Air Canada is obligated to maintain those overhaul centres. Then Air Canada kind of privatizes and pushes that responsibility over to Aveos. A court then makes a decision that because Aveos is now there, Air Canada is indirectly keeping those jobs.

Many of the workers were not pleased with that court ruling, but they could at least understand the ruling. Aveos now is disappearing. The law saying that those jobs are supposed to be there is still in place. How else can the employees interpret the fact that, on the surface, it would appear there is a violation of the law?

If we go back to the time when the law was put into order, this was what was actually said on April 12, 1988, by Minister Don Mazankowski, the Conservative government's Deputy Prime Minister and former transportation minister, who introduced the bill in question. There are five quick points I will quote:

1. Maintenance and Overhaul Centres in Montreal, Winnipeg and Toronto are fundamental to the success of Air Canada; 2. None of these Centres will lose its importance; 3. The Centres will continue to expand; 4. The company fleet maintenance will continue to be done at those locations; 5. The Act would have to be amended if there were going to be any modification concerning the transfer of Air Canada's Overhaul Centres to another location.

Now, if I am an employee and I look at that, that sounds pretty much sealed. I realize that you can get a legal opinion on anything, on different opinions. It really seems to confuse things.

You represent the federal government. Is your recommendation to the federal government that Air Canada is in compliance with the intent and the law itself?

[Pierre Legault]

The Department of Justice has been asked to provide an opinion to our client, Transport Canada, on the applicability of the ACPPA to this case. We've looked at it, and we've provided the opinion that is in front of you today.

The requirement in the act, as you've read yourself, is that the articles of Air Canada include the provision that maintenance and overhaul be located in those three cities. That article is in fact in the documents of Air Canada, so Air Canada has met its obligation under the ACPPA.

I understand that it can be hard to make a distinction between the fact that there may be a prime obligation to do something versus the obligation to inscribe in the articles that Air Canada should maintain those operations. That distinction does exist.

Again, Air Canada is in compliance with the Air Canada Public Participation Act.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It would appear there are provincial governments, political leaders of different political parties, all looking at it and saying that Air Canada is in fact in violation of the law or appears to be in violation of the law.

If you were to advise the Prime Minister today, what would you tell the Prime Minister?

You heard the testimony from Air Canada. From Air Canada's perspective, there is no violation of the law. Everything they're doing is perfectly clear. If the Government of Canada doesn't get directly involved in this, there is no future. There is no tangible future for Air Canada to fulfill its commitment to the law.

What is your position, in layman's language? What should the Prime Minister do? Should he be taking Air Canada to court?

[Pierre Legault]

Our opinion is in front of you. We've said that Air Canada was in compliance with the ACPPA. That is included in the opinion. The enforcement of the articles of Air Canada is left to the Canada Business Corporations Act. It's normally up to the shareholders and creditors and other complainants to take action if they so wish. My advice in this opinion is that if we were to take any action our chance of success would be low. So the advice that I have provided sits in front of you. That is what has been given to the Department of Transport.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

We know that if the Prime Minister doesn't do anything, or the Government of Canada doesn't do anything, then nothing will happen and these jobs will disappear. Aveos or Air Canada will not be held accountable to the law. At least if the Prime Minister or the Government of Canada takes them to court, there is an opportunity to save these valuable jobs for those communities where those jobs are being lost today. That is a fair assessment.

[Pierre Legault]

I think it rests with our elected officials to decide what to do with the opinion.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes, but your argument is that in your opinion there is an opportunity to be successful. You're not saying that the government has no chance of success.

[Pierre Legault]

What I wrote is that for a number of reasons our chances of success would be low. That's what I wrote.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Right, but—

[The Chair, Conservative, Merv Tweed]

I have to stop you there.

Monsieur Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

Who can bring an action under the Air Canada Public Participation Act?

[Pierre Legault]

A complainant can do so. A creditor can do so. A complainant can be a shareholder or a former shareholder. It could be the director of the corporation or anybody authorized by the court.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

The IAMAW did so in 2011.

[Pierre Legault]

Yes.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

And they could do so again.

[Pierre Legault]

They could try it. They could go to the court and ask that they be recognized as having standing. Whether the court would accept this would be up to the court's discretion.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

The opposition has provided its legal opinion that ACPPA is being violated. Presumably the union could use that opinion to pursue a legal action against Air Canada under ACPPA.

[Pierre Legault]

I have not seen the opinion and I cannot speculate on what they could or could not do. But any party can, under the CBCA, address the court and ask that they be recognized as having standing.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

What I'm saying is that if ACPPA is being violated now, as the opposition argues, there is nothing to stop a court from independently finding that after a complaint is brought.