Flight crew members at Exploits Valley Air Services who were laid off 12 months, paid severance lost recall rights: N.L. court

A Beechcraft plane comes in for a landing. Photo: Sharply Done/Getty Images/Canva

The Supreme Court of Newfoundland and Labrador has upheld an arbitrator’s ruling that unionized flight crew members at Exploits Valley Air Services (EVAS) who were laid off during the pandemic, were off work more than 12 months and paid severance, are no longer employees.

The pandemic led to Air Canada canceling 56 of the 58 regional flights supplied by EVAS, resulting in layoffs across various sectors of the company, including flight crew members and administrative staff.

Or, as the Court put it: “The COVID-19 pandemic caused considerable mischief in the aviation industry.”

Central to the case was the interpretation of Article 16 of the Collective Agreement between EVAS and Unifor Local 2002, the union representing the employees. The disagreement revolved around whether the permanent layoff of flight crew members (FCMs) would lead to a loss of their recall rights.

Unifor contended that recall rights do not terminate with the cessation of employment, arguing that the agreement remains silent on this aspect if there is no recall or if a recall of less than 30 days is refused.

In contrast, EVAS interpreted Article 16.3 of the Collective Agreement as a clear directive on recall rights, stating that laid-off FCMs are to receive severance in accordance with the Canada Labour Code, implying the termination of employment and recall rights after 12 months of layoff notice.

During the arbitration, both parties presented witnesses to shed light on the negotiations and intentions behind Article 16. However, Arbitrator Sterns, while finding the witnesses credible, ruled that the terms of the Collective Agreement were clear and unambiguous, thereby disregarding the extrinsic evidence.

He further held that if there were any ambiguities, the evidence would lead to the conclusion that severance payment, as stipulated in the Canada Labour Code, would indeed terminate the employment relationship and the associated recall rights.

In reviewing Arbitrator Sterns’ decision, the Supreme Court adhered to the standard of reasonableness as instructed by the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov. The court found that Arbitrator Sterns’ decision was based on a coherent and rational analysis, aligned with the facts and law.

Consequently, the court upheld the Arbitrator’s award in favor of EVAS, dismissing Unifor’s application for certiorari with costs and reiterating that the terms of the Collective Agreement clearly indicate the cessation of recall rights following the 12-month period as outlined in the Canada Labour Code.

For more information, see Unifor Local 2002 v. Exploits Valley Air Services Ltd., 2024 NLSC 11 (CanLII).