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.
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.