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T-4640-80
The Queen and Attorney General of Canada (Plaintiffs)
v.
Wayne Perry, Robin Mercer, Vernon Abram Warkentin, Bruce Norman Nahorny, Normand Rivest, Patrick Tupper, Douglas Harold Church, Brian Alexander Wilson, David E. English, Frede- rick G. Brock, Robert William Randall, Gareth Leland Gwilliam in their personal capacity and also as representatives of all of the employees of the Government of Canada included in the Air Traffic Controllers Group Bargaining Unit (Defendants)
Trial Division, Walsh J.—Ottawa, October 9, 1980.
Prerogative writs — Quia timet injunction — Labour rela tions — Plaintiffs apply for an interlocutory injunction to restrain air traffic controllers from engaging in illegal "wild- cat" strikes — A relatively small number of air traffic con trollers failed to perform the duties they were obligated to perform under the existing contract on a series of occasions, contrary to the instructions of union leaders — Disruptions have since ceased — Members of the public have suffered and will suffer, if disruptions recur, hardship, inconvenience and financial loss — Whether this is a proper case for bringing a class action pursuant to Rule 1711 — Whether an injunction should be granted on a quia timet basis — Injunction to issue so as to prohibit withdrawal of services in concert with other members of the Canadian Air Traffic Control Association — Federal Court Rule 1711 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, ss. 101(2)(a), 103.
Heath Steele Mines Ltd. v. Kelly (1978-79) 7 C.P.C. 63, referred to. Blackie v. Postmaster-General (1976) 61 D.L.R. (3d) 566, referred to.
MOTION. COUNSEL:
W. Nisbet, Q.C. for plaintiffs.
C. H. MacLean and D. Jewitt for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiffs.
Nelligan/Power, Ottawa, for defendants.
The following are the reasons for judgment rendered in English by
WALSH J.: Plaintiffs apply for an interlocutory injunction restraining defendants and all the air traffic controllers employed by the Government of Canada who are included in the air traffic con trollers group bargaining unit and who are employees for the purposes of the Public Service Staff Relations Act, R.S.C. 1970, c. P-35 until the trial of this action from engaging in a strike in contravention of clause 101(2)(a) of the Public Service Staff Relations Act.
The proceedings arise from a series of failures to report for work at scheduled times or to remain at work for the scheduled periods at various airports throughout Canada, principally Dorval Airport, Toronto Airport and Vancouver Airport, at vari ous times since September 1, 1980, as a result of which the direction and control of air traffic was seriously disrupted with consequent danger to members of the public being transported by air who have suffered and will suffer hardship, incon venience and financial loss if these withdrawals of service should continue.
The seriousness of even temporary disruptions of air traffic cannot be over-emphasized and is perti nent in deciding whether such an injunction should be granted on a quia timet basis, since for the time being, in any event, the disruptions have ceased. When such disruptions occur, usually without notice, since they have during September been on what is colloquially called a "wild-cat" basis, by union militants who have defied the instructions of their leaders to perform the duties they are obli gated to perform, since their contract does not expire until December 31, 1980, this has resulted in serious flight delays or cancellations for the consequences of which the airlines are not obliga ted to compensate passengers. Connections are missed, hotel bookings at resorts frequently cannot be cancelled, elderly people, some in ill-health spend hours waiting in airports or have to seek and pay for hotel accommodation, unaccompanied children going to visit grandparents or friends are stranded in a strange airport, frequently without funds, persons travelling urgently to seek medical attention or visit sick or dying relatives cannot
proceed, business deals are lost as a result of missed appointments, enormous bills are incurred by the airlines for overtime work of harassed ticket agents and others. In short the matter is so serious in its consequences for third parties, the travelling public, that such illegal strikes or walk-outs must never be tolerated and if there is even the slightest chance of their recurring the injunction should be granted.
It should also be said that "booking off sick" (without medical certificate), "study sessions" (really pep talks to encourage walk-outs or slow downs), slow-downs justified as "working to rule" but in actuality a refusal in most cases to perform normal contractual services, and similar euphem isms for disrupting work are in my view equivalent to going on strike, without being honest enough to admit it, in the hope that in this manner salary loss or suspensions may be avoided.
The union in this case is not to blame but only those who engaged in such activity.
Counsel for one of the defendants who was served argued the case very ably. She pointed out, as is undoubtedly true that different named defendants might have different defences and con tended that this is not a proper case for bringing a class action pursuant to Rule 1711 of the Rules of this Court. Reference was made to the cases of Heath Steele Mines Ltd. v. Kelly (1978-79) 7 C.P.C. 63, a New Brunswick case and to Blackie v. Postmaster-General (1976) 61 D.L.R. (3d) 566 on the ground that the interests of all the persons in the class are not the same. To adopt this argu ment would make the proceedings impossible on a quia timet basis. There can be no infringement of an injection which has not yet been issued, so past conduct of any of the named defendants or of other members of the union the proceedings name them to represent is not in issue, save to indicate
the probability of recurrences of such illegal con duct by the named defendants or other members of the bargaining unit, who might well be different individuals. The fact that only a relatively small number of the union members defied the recom mendations of their union representatives and engaged in these illegal withdrawals of services, nevertheless makes it necessary to designate all members of the air traffic controllers bargaining unit as a class as defendants as it cannot be determined which of them might engage in further illegal activity. In the reasons for judgment in the case of The Queen v. Rahoman' dealing with strikes by members of the Public Service Alliance of Canada, issued yesterday I had occasion to say at pages 780-781:
Since the jurisprudence does indicate however that it is concerted illegal action by members of a bargaining group which may be enjoined to return to work, rather than an individual who cannot be so enjoined, and the present proceed ings are directed against the members of the bargaining groups participating in an illegal strike, rather than against the groups themselves, I am wording the order so as to enjoin the members from engaging in concerted illegal withdrawal of services with other members of the groups.
In the present case the striking members did not act on recommendations of union officers but quite the contrary but there is sufficient evidence to indicate that these were not individual decisions, but decisions made in concert with and after dis cussion with other union members.
Defendants' counsel also submitted that it is not sufficient that illegal acts have been done in the past but that jurisprudence indicates that there must be a real and present fear of them being repeated if they are not enjoined. It is admitted that at present air traffic control is operating normally and she contends that there is no juris prudence justifying the issue of an injunction when workers have voluntarily returned to work without having been enjoined to do so, so that plaintiffs can merely have it to hold over the heads of the air traffic controllers for use if necessary. She rejects the argument that an injunction against persons who are not intending to disobey it can do no
' [1981] 1 F.C. 773.
harm, contending that this is an infringement of their civil liberties.
Although defendants contend that there have been no work stoppages since September 28, 1980, a dispute arose respecting bilingual air traffic con trol at Dorval between October 2 and 5, which was supposedly settled after consultations by October 6, with an agreement to be implemented on Octo- ber 15. The affidavit of Malcolm F. Morell, Chief of Operations discloses that he has been informed that on the evening shift on October 7, 1980, disruption of flights occurred by the controllers restricting the volume of traffic in a manner more severe than required by the restrictions agreed to.
With respect to the situation in Toronto disputes arose over classification and on September 4, 1980, Department of Transport management after a study stated that Treasury Board had agreed in principle to revise the classification standard but that the study would take a year to complete. There was no guarantee of any change. Controllers who failed to report on September 1, 5 and 28 were suspended for one day, an earlier 5-day sus pension which precipitated the September 28 strike being rescinded. Grievances may be submit ted about these suspensions.
It would not be useful, nor does time permit, to go into all the affidavits submitted. Fortunately the dissension seems to have quietened for the moment. On the other hand it certainly cannot be said that all the issues giving rise to the conflict, especially in Montreal and Toronto, have been finally and definitely resolved. There may be merit in the contentions of the air traffic controllers, and what may be excessive delays in furnishing proper equipment or dealing with issues raised may have greatly frustrated them, but their motive for strik ing, whether valid or not, cannot justify them in breaking the law and their contract by doing so.
What is especially significant is that during the withdrawals of services in September members acted against the advice of their union. Mr. Aubry, Vice-President of the Canadian Air Traffic Con-
trol Association refers to a "spontaneous tempo rary withdrawal of services". While he states that at present "no withdrawal of services is planned or is likely to occur" it is clear that the union is unable to control some of its members. While these may be relatively few and the great majority are law-abiding, the latter may have to suffer the inconvenience of an injunction to insure that the transgressors or would-be transgressors do not engage in further withdrawals of service during the existence of the contract. Events have proven beyond the slightest doubt that the failure to report for work, or deliberate slow-down of rela tively few members acting in concert can com pletely disrupt air services.
Defendants' counsel queries why plaintiffs did not first proceed under the provisions of section 103 of the Public Service Staff Relations Act for a declaration of illegality by the Public Service Staff Relations Board. The answer given to this was that it was unnecessary to have a hearing to determine that the "wild-cat strikes" of air traffic controllers were illegal, and as was pointed out in other cases the delays in enforcing penalties which are in any event probably inadequate would make this proce dure useless, especially since what is sought is a quia timet injunction. Moreover in the Public Ser vice Alliance case there was some negotiating impact in such a finding. It is admitted that it has been determined by jurisprudence that the exist ence of that statute does not deprive the Court of jurisdiction over these proceedings. Finally defend ants' counsel raised the issue of laches, stating that these proceedings should have been brought immediately after September 28. The simple answer to this is that there is at least some indica tion that problems still occurred at least at Dorval Airport as recently as October 7.
An injunction will therefore issue with the terms however being modified so as to prohibit with drawal of services in concert with other members of the Canadian Air Traffic Control Association.
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