T-4606-80
The Queen and Attorney General of Canada
(Plaintiffs)
v.
R. Rahoman, N. Devine, G. Springett, M. P.
Gravelle, J. M. Stang, S. M. Long, G. Binder and
Reggie Frechette, personally and as representa
tives of all of those persons who are employed by
Her Majesty the Queen in right of Canada in the
Public Service of Canada and who are members of
the Public Service Alliance of Canada except
those who are members of the Clerical and
Regulatory Group who are not designated pursu
ant to section 79 of the Public Service Staff
Relations Act (Defendants)
Trial Division, Walsh J.—Ottawa, October 7 and
8, 1980.
Prerogative writs Interim injunction — Labour relations
Plaintiffs move for an interim injunction enjoining defend
ants, who are members of bargaining units represented by
Public Service Alliance of Canada, and who are subject to
existing collective agreements, from striking illegally in sup
port of the striking clerical and regulatory group — With
drawal of services by defendants could result in irreparable
harm to members of the Canadian public and to the operations
of the Government of Canada Whether the fact that the
Public Service Staff Relations Act provides penalties for
breach of its provisions excludes the issue of an injunction
Motion allowed Public Service Staff Relations Act, R.S.C.
1970, c. P-35, ss. 79, 101(1)(c),(2)(a), 103, 104 — Criminal
Records Act, R.S.C. 1970 (1st Supp.), c. 12, s. 3 — Federal
Court Rule 469(2).
Plaintiffs move for an interim injunction enjoining defend
ants from engaging in an illegal strike. The defendants belong
to bargaining units represented by Public Service Alliance of
Canada (P.S.A.C.) and are presently bound by collective agree
ment. The President of P.S.A.C. requested its members to
honour the picket lines of the striking clerical and regulatory
group. Withdrawal of defendants' services could result in
irreparable harm to members of the Canadian public, and to
the operations of the Government of Canada. The Public
Service Staff Relations Board declared that the strike of all
those bargaining units of its membership except the clerical and
regulatory group was unlawful. Defendants contend that since
the Public Service Staff Relations Act provides penalties for
breach of its provisions, a civil injunction, the infringement of
which would lead to other penalties and hence is a quasi-crimi
nal proceeding, should not be issued. The issue is whether or
not an infringement of section 101 of the Act is a crime, which
excludes the issue of an injunction.
Held, the motion is allowed. The jurisprudence indicates 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. The members of the
bargaining groups participating in an illegal strike are enjoined
from engaging in concerted illegal withdrawal of services with
other members of the groups.
International Brotherhood of Electrical Workers, Local
Union 2085 v. Winnipeg Builders' Exchange [1967]
S.C.R. 628, applied. Local 273, International Longshore-
men's Association v. Maritime Employers' Association
[1979] 1 S.C.R. 120, applied. Robinson v. Adams (1924-
25) 56 O.L.R. 217, referred to. Rubenstein v. Kumer
[1940] O.W.N. 153, referred to. Dallas v. Felek [1934]
O.W.N. 247, referred to. Commission de transport de la
Communauté urbaine de Montréal v. Syndicat du Trans
port de Montréal (C.S.N.) [1974] S.C. 227 reversed
[1977] C.A. 476, distinguished.
MOTION.
COUNSEL:
D. Friesen and D. Kubesh for plaintiffs.
L. M. Joyal, Q.C. for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiffs.
Honeywell, Wotherspoon, Ottawa, for
defendants.
The following are the reasons for order ren
dered in English by
WALSH J.: Plaintiffs move (a) for an interim
injunction enjoining and restraining the persons
who are employed by Her Majesty the Queen in
right of Canada in the Public Service of Canada
and who are members of the Public Service
Alliance of Canada except those who are members
of the clerical and regulatory group who are not
designated pursuant to section 79 of the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35,
from engaging in a strike in contravention of para
graph 101(1)(c) * of the Public Service Staff
Relations Act.
(b) in the alternative for an interlocutory injunc
tion until the trial of this action in the same terms
pursuant to paragraph 469(2) of the Federal
Court Rules.
* This should read 101(2)(a) as it appears in the corrected
order.
(c) in the further alternative for such further order
as to the Court may seem just and expedient.
Permission was given to bring on the hearing on
short notice and some of the named defendants
were served, and defendants were represented by
counsel at the hearing.
Plaintiffs' application was supported by three
affidavits. That of Sandra Helen Kendall Budd
who states that in 1978 she was a staff relations
officer in the Department of Veterans Affairs and
as such familiar with problems arising from a
strike of the nursing group of the Professional
Institute of the Public Service which provided
nursing services inter alia in veterans hospitals and
penitentiaries. Problems arose when members of
various other groups represented by the Public
Service Alliance of Canada did not cross the picket
lines of the nursing group, thereby precipitating an
illegal strike, which disrupted patient care, endan
gering the health and safety of patients. The
affidavit states that the Public Service Alliance of
Canada continues to represent the bargaining units
involved in the said illegal strike which units are
bound by collective agreements currently in effect
and that the named defendants are members of the
data processing group, a bargaining unit represent
ed by the said Public Service Alliance and present
ly bound by a collective agreement.
•
An affidavit of Hubert McShane, Director of
Collective Bargaining for the Treasury Board
which represents Her Majesty the Queen, the
employer of all persons employed in the Public
Service of Canada, states that on October 3, 1980,
shortly after 11:00 p.m. he saw Andrew I. Stewart
whom he personally knows to be President of the
said Public Service Alliance of Canada on a televi
sion news broadcast on C.T.V. channel 7 in
Ottawa issuing a statement at a press conference
held earlier that day in the course of which he
said:
I have no alternative today but to request all members of the
Public Service Alliance of Canada as of midnight on Sunday to
honour the clerks' picket lines and to give all possible support to
the clerks to secure a fair settlement to this dispute.
This affidavit also refers to the 1978 illegal
strike of members of the P.S.A.C. employed in
veterans hospitals including orderlies and kitchen
staff as a result of which patients were for some
time left unattended and without meals. It states
that on occasion of prior illegal strikes of the
P.S.A.C., members have honoured their contracts
when called upon by members of the national
executive to do so, and that therefore he has
reason to believe that when called upon to breach
their contracts they will do so.
The affidavit of Eric Anthony Bowie, Director
of the Civil Litigation Branch of the Department
of Justice states that he has read these affidavits
and has also been informed by other officers of the
Treasury Board including its Secretary that the
potential consequences of a withdrawal of defend
ants' services would include the disruption of vital
services which would affect the safety of air and
marine traffic throughout Canada, the health and
care of patients in hospitals operated by the
Department of Veterans Affairs and the security
of the federal penitentiary system, and the prepa
ration and distribution of cheques for old age
pensioners, welfare recipients and unemployment
insurance recipients, all of which would cause
irreparable harm to members of the Canadian
public and to operations of the Government of
Canada.
Furthermore the Public Service Staff Relations
Board at a hearing on Saturday, October 4, 1980,
made a declaration pursuant to section 103 of the
Public Service Staff Relations Act to the effect
that the Public Service Alliance of Canada had
authorized a strike of all of those bargaining units
in its membership, other than the clerical and
regulatory group, which would be unlawful as
being contrary to the provisions of section 101 of
the Public Service Staff Relations Act.
The affidavit further states that in none of the
radio newscasts to which he listened on Sunday,
October 5, was there any retraction of Mr.
Andrew Stewart's statement of October 3, nor any
such retraction by any other officer of the Alliance
respecting the 40 bargaining units of the Alliance
which were the subject of the order of the Public
Service Staff Relations Board to honour their con
tracts. He therefore has reason to believe that not
only have a substantial number of employees,
members of the Alliance who are not in a legal
position to strike, already withheld their services
for several days but there is reason to fear that
they will do so during the next several days.
Two further affidavits were produced at the
opening of the hearing by plaintiffs and a brief
adjournment was taken to enable the Court and
defendants' counsel to examine them. One by
Keith Mattson, Manager of Safety and Security,
Transport Canada at Toronto International Air
port states that inter alia he supervises the work of
the airport emergency services (fire fighters). On
the evening of October 5, 1980 he learned that
there might be a withdrawal of services by the fire
fighters' morning shift, so at 7:00 a.m. October 6,
he visited the fire hall and told the night shift that
in that event they would be required to remain on
duty and that any attempt to withdraw services
would contravene the Public Service Staff Rela
tions Act. The 8:00 a.m. shift failed to report for
duty and at 9:30 a.m. he attended a local restau
rant where he learned they were congregated and
spoke to Dennis Fortin, the Crew Chief. They have
a collective agreement running from June 24, 1980
to January 3, 1982. Mr. Fortin allegedly said that
a picketer had stopped them from entering and
Mr. Mattson advised him that there was another
unpicketed entrance, and moreover that an escort
would be available. Mr. Fortin advised that the
group had decided not to report for duty. The
night shift which had been advised to remain on
duty departed at 8:00 a.m. On the same day
certain other members of airport staff including
air field maintenance, electrical staff and telecom
munications staff failed to report, but it was the
absence of the fire fighters which forced the air
port to close.
The affidavit of George Donald Fraser, Plant
Manager of the Gateway Postal Facility in Missis-
sauga which handles 49% of Canada's mail includ
ing the greater part of international mail states
that of 2,900 people employed there, 120 are
clerks, members of the P.S.A.C. and 282 are main
tenance craftsmen, members of the P.S.A.C. (gen-
eral labour and trades group (G.L. & T.)). Of the
22 members of G.L. & T. scheduled to report at
23:30 hours on October 5, 1980, only 6 reported of
whom 3 left at 04:00 before completion of their
shift. Their functions include starting all mech
anized parcel sorting equipment and surveying the
operation of it. Prior to 23:30 hours on October 6
the power had been shut off by a member of the
prior shift, Pacific Burke, and there were insuffi
cient G.L. & T. members to reactivate it. On the
morning shift on October 6, 1980, 37 G.L. & T.
members were required to report but only 4 did so.
As a result bulk mail cannot be handled and there
are already 37 heavy duty tractor trailers fully
loaded in the yard, and about 50 more expected
daily from which mail cannot be brought into the
plant. Various named officers of the G.L. & T.
group and members of it are on the picket line. As
a result the plant has had to be closed although it
could operate if even 12 tradesmen reported for
duty.
Defendants submitted no proof and in fact do
not deny that members of other units of the Public
Service Alliance of Canada are engaging in illegal
sympathy strikes in support of the members of the
clerical and regulatory group who are legally on
strike. Their sole argument is a technical legal one,
based on the fact that since the Public Service
Staff Relations Act provides penalties for breach
of its provisions, a civil injunction should not be
issued, the infringement of which would lead to
other penalties and hence is a quasi-criminal pro
ceeding. Reliance was placed on the old cases of
Robinson v. Adams (1924-25) 56 O.L.R. 217
which held at page 224 "The equitable jurisdiction
of a civil court cannot properly be invoked to
suppress crime", the case of Rubenstein v. Kumer
[1940] O.W.N. 153, and the case of Dallas v.
Felek [1934] O.W.N. 247 which followed the
Robinson case.
Defendants' counsel submitted that section 104
of the Public Service Staff Relations Act refers to
any contravention of section 101 as an "offence"
punishable on summary conviction and he equates
this to a crime, and refers to section 3 of the
Criminal Records Act, R.S.C. 1970 (1st Supp.), c.
12 which states, "A person who has been convicted
of an offence under an Act of the Parliament of
Canada or a regulation made thereunder may
make application for a pardon in respect of that
offence" as indicating that a criminal record is
created and that therefore an infringement of sec
tion 101 is a crime.
In the case of Commission de transport de la
Communauté urbaine de Montréal v. Syndicat du
Transport de Montréal (C.S.N.) [1974] S.C. 227
which dealt with the imposition of penalties for
defiance of an injunction ordering a return to work
Chief Justice Deschênes, after reviewing jurispru
dence, concluded that this constituted criminal
contempt as distinct from civil contempt and that
provisions of Quebec civil law could not be extend
ed to criminal matters as unconstitutional. He
therefore declared that he was without jurisdiction
to apply penalties to enforce the injunction. This
judgment was however unanimously reversed by
the Quebec Court of Appeal in a judgment report
ed in [1977] C.A. 476 which held that the Supe
rior Court has an inherent jurisdiction to hear
applications for contempt for defiance of orders it
has rendered in civil matters, even if this has a
certain criminal connotation, and that the applica
tion for contempt forms part of the civil nature of
the proceedings from which it arose. In the present
case, since the injunction is being issued by the
Federal Court there is no constitutional issue, and
I would be most reluctant to find that, as defend
ants argue, because penalties have been imposed
for illegal withdrawal of services in the Public
Service Staff Relations Act, this excludes the use
of the more expeditious and effective remedy of an
injunction, especially since, as counsel for defend
ants admits, the penalties imposable under the said
Act are very moderate. It is unlikely that in
present conditions they have any strong deterrent
effect to prevent illegal conduct.
Nevertheless the jurisprudence of the Ontario
Court of Appeal in the Robinson and Dallas cases
(supra) would be persuasive were it not for certain
subsequent Supreme Court jurisprudence. In the
case of International Brotherhood of Electrical
Workers, Local Union 2085 v. Winnipeg Builders'
Exchange [1967] S.C.R. 628, the matter in issue
was an application for an injunction arising out of
a section of the Manitoba The Labour Relations
Act seeking to order striking employees to return
to work, the strike being contrary to section
22(1)(b) of that Act and to their collective agree
ment. Chief Justice Cartwright stated at pages
640-641:
In my view the purposes of the Labour Relations Act would
be in large measure defeated if the Court were to say that it is
powerless to restrain the continuation of a strike engaged in
direct violation of the terms of a collective agreement binding
on the striking employees and in breach of the express provi
sions of the Act. The ratio of such decisions as Lumley v.
Wagner, supra, does not, in my opinion, require us so to hold.
There is a real difference between saying to one individual that
he must go on working for another individual and saying to a
group bound by a collective agreement that they must not take
concerted action to break this contract and to disobey the
statute law of the province. Undoubtedly, as Freedman J.A.
points out, an effect of the order which has been upheld by the
Court of Appeal in the case at bar was to require the striking
employees to return to work. In my opinion that constituted no
error in law; to hold otherwise would be to render illusory the
protection afforded to the parties by a collective agreement and
by the statute. It is true that an employer whose operations are
brought to a standstill by an illegal strike or a union whose
employees are rendered idle by an illegal lockout may bring an
action for damages or seek to invoke the penal provisions of the
Labour Relations Act but the inevitable delay in reaching a
final adjudication in such procedures would have the result that
any really effective remedy was denied to the injured party.
See also Local 273, International Longshoremen's
Association v. Maritime Employers' Association
[1979] 1 S.C.R. 120, the headnote of which at
page 121 reads in part:
Refusal to cross the picket line of another union cannot be a
strike unless it falls within the definition of "strike". Parlia
ment has adopted an objective definition of "strike" the ele
ments of which are a cessation of work "in combination", in
"concert" "in accordance with a common understanding". The
motive is of no import, as long as there is a cessation of work
pursuant to a common understanding. Here the definition is in
substance the same in the contracts as in the statute. The
common understanding may be considered as resulting from
the very union solidarity which forbids the crossing of picket
lines.
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 proceedings 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 engag
ing in concerted illegal withdrawal of services with
other members of the groups. There is ample
evidence to indicate that this has taken place and
that the decisions were not made on an individual
basis but on the recommendations of union
officers.
Certain fundamental principles bear reiterating
since they go far beyond the issues raised in the
present industrial dispute.
The first and by far the most important is the
necessity for all persons or groups of persons to be
guided by the rule of law. If it were not for the
rule of law, civilization, as we know it, would
perish and we would revert to savagery and the
law of the jungle.
No person or group of persons acting in concert
has any right whatsoever to refuse to obey the law,
or to contend that because he or they consider the
law unjust or repressive they are not bound by it
and will not obey it. To admit such a proposition
would be to revert to a state of anarchy with every
man or woman deciding for himself or herself
what is right or wrong. The doctrine that "might is
right" must be energetically rejected by every
right-thinking person. It was the basis of Hitler's
self-justification for invading countries helpless to
defend themselves, and is the basis on which all
dictatorships and oppressive regimes operate, and
should never be tolerated.
Laws are made by Parliament in our system and
can only be amended or repealed by Parliament.
The courts of the country are obliged to apply
them and not to enter into any consideration of
whether they are good or bad laws.
As a corollary it follows that a rigid distinction
must be made between legal and illegal strikes,
and even during a legal strike, illegal conduct of
the striking group cannot be tolerated and exces
sive picketing, intimidation or violence can always
properly be restrained by injunctions. Illegal
strikes of bargaining groups during the existence
of a valid collective agreement can also be so
restrained, and certainly any inciting by members
of a group engaged in a legal strike, of members of
other bargaining units to engage in an illegal strike
and hence to break the law cannot be condoned,
nor can the inciting of members of a bargaining
unit legally on strike, but who themselves are
obliged to continue work, being designated
employees pursuant, in the present case, to section
79 of the Public Service Staff Relations Act be
permitted in contravention of the law.
Whatever may be the strong feelings of other
bargaining units of the Public Service Alliance of
Canada of the justice of the cause of the members
of the clerical and regulatory group who are legal
ly on strike, this does not give them the right to
participate in a supporting strike, despite the find
ing of the Public Service Staff Relations Board
that such a strike would be illegal, and they can
properly be restrained from doing so by injunction,
which will therefore be issued.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.