A-701-80
Wayne Perry, Robin Mercer, Vernon Abram
Warkentin, Bruce Norman Nahorny, Normand
Rivest, Patrick Tuppert, Douglas Harold Church,
Brian Alexander Wilson, David E. English, Frede-
rick G. Brock, Robert William Randall and
Gareth Leland Gwilliam (Appellants)
v.
The Queen and Attorney General of Canada
(Respondents)
Court of Appeal, Urie and Ryan JJ. and Kerr
D.J.—Ottawa, May 20 and July 16, 1981.
Prerogative writs — Quia timet injunction — Class action
— Appeal from order of Trial Division granting an interlocu
tory injunction restraining the appellants from engaging in a
strike until the trial of the action — Trial Judge held that if
there was even the slightest chance of the strikes recurring, the
injunction should be granted — Whether Trial Judge erred in
applying too light a burden of proof to be met by plaintiffs —
Whether Trial Judge erred in finding that this is an appropri
ate case for a class action — Whether Trial Judge erred in
granting an injunction when the employer has statutory reme
dies — Appeal dismissed — Public Service Staff Relations
Act, R.S.C. 1970, c. P-35, s. 101.
Appeal from an order of the Trial Division granting an
interlocutory injunction restraining the appellants from engag
ing in a strike until the trial of the action. The action was
brought against the appellants personally and in a representa
tive capacity to restrain them from participating in an unlawful
strike contrary to the Public Service Staff Relations Act. The
Trial Judge held that if there was even the slightest chance of
the strikes recurring, the injunction should be granted. The
appellants submitted that any illegal acts had ceased before the
action was commenced, and that in a quia timet action an
interlocutory injunction can be granted only if there is a strong
probability that the acts to be prohibited will be resumed. The
questions are whether the Trial Judge erred in applying too
light a burden of proof to be met by the plaintiffs; in finding
that this is a proper case for a class action since the bargaining
unit comprised operational and non-operational controllers, and
the events in question were so different that different defences
would be likely; and, in granting an injunction rather than
leaving the employer to the appropriate statutory remedies.
Held, the appeal is dismissed. It is questionable whether
there is a special rule respecting the burden of proof applicable
to quia timet cases. It may be easier to establish that actions
begun, but stopped, will resume unless restrained than to
establish that conduct, not yet started, will commence, but this
is a problem of difficulty of proof rather than of burden of
proof. The Trial Judge held that illegal strike action had
occurred before the action was begun. Considering the conduct
involved, the question appears to be whether, viewed reason
ably, it points to a danger that the acts sought to be restrained
would recur unless enjoined. It has not been established that
the Trial Judge applied an erroneous standard. His reasons
indicate that he considered whether what had happened posed a
danger, not merely an outside possibility, that illegal strike
action might be resumed unless enjoined. As to the question of
whether this is an appropriate action for a class action, it was
not necessary for the Trial Judge to decide this issue finally. It
was for the Trial Judge to decide whether there was a danger
that the operational and non-operational controllers who had
not illegally stopped working or slowed down, as well as the
operational controllers who did, would do so unless restrained;
if not, they should not have been included in the class. And, of
course, it was for him to decide whether there was such a
common interest in the proceeding as to warrant including on
\ the interlocutory motion all of the members of the bargaining
unit in the same class. It is reasonably clear that the Trial
Judge considered the danger that members of the class who had
not actually stopped work or slowed down illegally might do so.
He also considered the submission that members of the class
might have different defences. It has not been proved that the
Trial Judge applied a wrong principle in exercising his discre
tion. As to the final issue, it is clear that the availability of
statutory remedies for illegal strikes is not, in itself, a bar to
interlocutory relief. The Trial Judge properly considered this
submission and there is no reason to question his decision on it.
The Law Society of Upper Canada v. MacNaughton
[1942] O.W.N. 551, agreed with. John v. Rees [1970] Ch.
345, agreed with. Heath Steele Mines Ltd. v. Kelly (1978)
7 C.P.C. 63, distinguished. Duke of Bedford v. Ellis
[1901] A.C. 1, referred to.
APPEAL.
COUNSEL:
C. H. MacLean for appellants.
W. L. Nisbet, Q.C. for respondents.
SOLICITORS:
Nelligan/Power, Ottawa, for appellants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an appeal from an order of the
Trial Division [[1981] 2 F.C. 12] delivered Octo-
ber 9, 1980, granting an interlocutory injunction
restraining the appellants (the defendants below)
and all air traffic controllers employed by the
Government of Canada who are included in the air
traffic controllers group bargaining unit, until the
trial of the action, from engaging in a strike in
concert with other members of the air traffic
controllers group bargaining unit.
The action was commenced by a statement of
claim filed on October 7, 1980. The action was
brought against the appellants "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".
The statement of claim alleges that, commenc
ing on or about September 1, 1980 and on subse
quent occasions up to the commencement of the
action, a number of air traffic controllers at vari
ous locations across Canada, including Vancouver,
Edmonton, Winnipeg, Thunder Bay, Toronto,
Montreal, Moncton and Gander, failed to report
for work at the times they were scheduled to report
or failed to remain at work for the duration of the
periods of time they were scheduled to work. It is
alleged that, as the result of the withdrawal of
these services, "... the direction and control of air
traffic has been disrupted for various periods of
time and up to the present time with consequent
danger to members of the public being transported
by air who have thereby suffered and may contin
ue to suffer hardship, inconvenience and financial
loss in the event that these withdrawals of services
continue."
The statement of claim cites section 101 of the
Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, which, in part, prohibits employees from
participating in a strike where a collective agree
ment is in force.' A collective agreement was in
force when the action was begun.
' Section 101 of the Public Service Staff Relations Act
provides:
101. (1) No employee shall participate in a strike
(a) who is not included in a bargaining unit for which a
The statement of claim seeks an injunction
restraining the defendants from participating in an
unlawful strike of air traffic controllers contrary to
the Public Service Staff Relations Act.
An application was made immediately after the
commencement of the action for an interlocutory
injunction. The order granting the injunction was
made on October 9, 1980. The order is in part in
these terms:
THIS COURT DOTH GRANT an interlocutory injunction
restraining defendants and all the Air Traffic Controllers
employed by the Government of Canada who are included in
the Air Traffic Controllers Group Bargaining Unit and who are
employees for the purposes of the Public Service Staff Rela
tions Act until the trial of this action from engaging in a strike
in concert with other members of the Air Traffic Controllers
Group Bargaining Unit by ceasing to work or refusing to work
or to continue to work or by restricting or limiting their output
in contravention of clause 101(2)(a) of the Public Service Staff
Relations Act, R.S.C. 1970, c. P-35....
The action has not yet been tried.
Counsel for the appellants has submitted that
the learned Trial Judge erred in several respects.
bargaining agent has been certified by the Board,
(b) who is included in a bargaining unit for which the
process for resolution of a dispute is by the referral thereof
to arbitration, or
(c) who is a designated employee.
(2) No employee who is not an employee described in
subsection (1) shall participate in a strike
(a) where a collective agreement applying to the bargain
ing unit in which he is included is in force, or
(b) where no collective agreement applying to the bargain
ing unit in which he is included is in force, unless
(i) a conciliation board for the investigation and con
ciliation of a dispute in respect of that bargaining unit
has been established and seven days have elapsed from
the receipt by the Chairman of the report of the con
ciliation board, or
(ii) a request for the establishment of a conciliation
board for the investigation and conciliation of a dispute
in respect of that bargaining unit has been made in
accordance with this Act and the Chairman has notified
the parties pursuant to section 78 of his intention not to
establish such a board.
1. It was submitted that the Trial Judge erred in
applying too light a burden of proof to be met by
the plaintiffs in order to obtain interlocutory relief
in a quia timet proceeding. In the course of his
reasons, the Trial Judge said [at page 14]: "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."
2. It was submitted that the Trial Judge erred in
finding that this is a proper case for a class action
against the persons included in the class represent
ed by the named defendants. It was submitted
that, having in mind that the, bargaining unit
comprised both operational and non-operational
controllers, the defences available to each of these
groups would be significantly different, and, at any
rate, that the events in question, at the various
locations involved, were so different that different
defences would be likely.
3. It was also submitted that the Public Service
Staff Relations Act provides remedies for dealing
with illegal strikes and the Trial Judge erred in
granting an injunction rather than leaving the
employer to the appropriate statutory remedies.
These are the issues on this appeal.
I
The events in respect of which this action was
brought occurred at Dorval, at Toronto, and then,
generally, at airports in the localities mentioned in
the statement of claim.
There are some differences over details in the
various affidavits submitted, but it is possible to
describe the events with fair accuracy.
Events at Dorval
At Dorval, on September 1, 1980, most if not all
of the air traffic controllers employed in the con
trol tower failed to report as scheduled during the
day and evening shifts. This resulted in delays and
disruption of traffic.
On October 2, 1980, control position No. 2 had
to be closed to permit replacement of temporary
by permanent equipment. This control position
had been recommended by the Commission on
Bilingual Air Traffic Control Services. The air
traffic controllers in the tower took the position
that they could not control traffic safely on a
bilingual basis unless air traffic was restricted.
Management disagreed. After consultations be
tween the union and management, it was agreed
that formal restrictions of traffic volume were
necessary, but not to the extent initially requested
by the air traffic controllers. From the 3rd to the
6th of October, 1980, all air traffic controllers
employed at the tower reported as scheduled. They
were asked by their supervisors whether they were
prepared to control bilingually. They refused to do
so unless there was a formal restriction on the
volume of traffic, a restriction which they contend
ed was necessary. They were advised that, as they
were not prepared to perform their prescribed
duties, they were to leave their place of work. The
consultations which were in progress concluded on
October 6 at about 11 p.m. Air traffic controllers
reported as scheduled and agreed to provide air
traffic control bilingually on the basis that traffic
volume would be restricted in the manner proposed
by management during the consultations.
As I understood her, counsel for the appellants
submitted that, according to the Manual of Opera
tions, all operational controllers have the right to
restrict the amount of traffic they handle at a
location in order to provide a safe operation. She
also submitted that the controllers at Dorval were
of the opinion that they would be unable to control
safely the full volume of traffic bilingually unless
the second airport control position was in place. I
take it that her suggestion was that this might well
constitute a defence to an allegation that the con
trollers at Dorval had engaged in an illegal strike.
There appears to be some difference between
the parties as to whether the October 6 settlement
at Dorval resulted in a complete cessation of slow
down action on the part of controllers. Counsel for
the appellants submitted that there was such a
cessation. Mr. Morell, Acting Director of Air
Traffic Control at the time, in his affidavit, how
ever, says that he had been informed that during
the evening shift at the Dorval control tower on
October 7, 1980, disruption of flights had occurred
because the controllers on duty restricted the
volume of traffic in a manner that was more severe
than was required by the restrictions agreed to
during the consultations ending on October 6.
Events at Toronto
The Toronto Air Traffic Services facility
employs about 130 air traffic controllers. These
controllers provide air traffic control services to
aircraft flying in and out of Toronto International
Airport.
For some time there has been disagreement on
whether the classification of air traffic control
positions at the facility should be raised. Appar
ently, on September 4, 1980, the controllers were
told that an improvement in the level of classifica
tion would require a change in classification stand
ards, and that this would take about twelve
months. I take it that, as a result, on September 5
at about 7 a.m. some sixteen of the twenty-seven
controllers on duty left their work and gathered in
the lunchroom. The position taken by them was
that they were holding a study session. As a result,
flights governed by the Instrument Flight Rules
were curtailed, causing disruption in schedules.
On September 5 at about 5:30 p.m. the air
traffic controllers at the facility refused to handle
any more aircraft. They proceeded to hold another
study session which lasted from about 6 p.m. until
about 7:30 p.m., when they returned to work. As a
result, all flights governed by Instrument Flight
Rules were curtailed causing disruption in
schedules during that period.
Events at other locations
On September 28, a large number of air traffic
controllers failed to report for duty as scheduled at
various air traffic control units across the country.
As a consequence, most commercial and scheduled
flights governed by Instrument Flight Rules did
not operate within Canada or within certain
adjoining air space.
The events which occurred on September 28
appear to have happened as the result of a man
agement directive given to the Toronto controllers
on September 25. The directive was to the effect
that a controller, suspected of working at less than
his full capacity, would receive an automatic five-
day suspension and would be discharged if he
questioned the imposition of the penalty. It was
submitted that controllers throughout the bargain
ing unit believed that the added stress caused by
working under this directive would have an adverse
effect on air traffic safety. The directive was
rescinded before the hearing of the injunction
application.
—o—
The Trial Judge made certain findings, which I
will mention at this point. He found [at page 15]
that there was sufficient evidence "... to indicate
that these were not individual decisions, but deci
sions made in concert with and after discussion
with other union members."
He found [at page 17] that "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."
He also found [at page 15] that "In the present
case the striking members did not act on recom
mendations of union officers but quite the
contrary...".
I would also note this finding [at page 16]: "...
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."
II
The interlocutory injunction issued in this case
is an order enjoining a strike prohibited by a
particular statutory provision specified in the order
itself. The order is thus directed against illegal
strike action precisely defined. The strike prohib
ited by the order is one which could in no circum
stances be legal. The order does not in its terms
prevent the defendants from exercising any legal
right they may have.
It is important to note, however, that an injunc
tion will not issue to prevent a person from doing
an illegal act unless there is at least some likeli
hood that he would do it if not restrained. All of us
are bound to obey the law. That is no reason,
however, to subject individuals to the possibility of
contempt proceedings, in addition to the penalties
prescribed by the law itself, unless there is good
cause for doing so.
In this case, counsel for the appellants submitted
that the Trial Judge erred in that he directed
himself to the effect that the appellants should be
enjoined if there was the slightest chance that they
would repeat the illegal acts which he found they
had already done. It was submitted that whatever
illegal acts had been done had ceased before the
action was commenced. The submission then was
that in a quia timet action an interlocutory injunc
tion can be granted only if there is a strong
probability that the acts to be prohibited will
actually be resumed. There is language in some of
the cases to this effect, though the phrasing has
tended to vary in describing the required degree of
likelihood of action being commenced or resumed.
In The Law Society of Upper Canada v.
MacNaughton 2 Chief Justice Rose stated the test
in this way at page 551:
... to warrant the Court in granting an injunction it must be
reasonably satisfied that there is an intention on the part of the
defendant to do the acts sought to be restrained, or at least,
that there is probable ground for believing that, unless the
injunction be granted, there is danger of such acts being done;
and that it is not a sufficient ground for granting an injunction
that, if there be no such intention, it will do the defendant no
harm.
Actually, I question whether there is a special
rule respecting burden of proof applicable to quia
timet cases. In no case would an interlocutory
injunction be granted, it seems to me, if there were
no real chance that the acts sought to be prohib
ited would be done or continued unless restrained.
Where the conduct sought to be restrained is in
progress when the action is begun, not much, if
anything, more would be needed to found a con
clusion that, unless restrained, the conduct would
continue. If the actions sought to be restrained
have not begun, it may well be more difficult to
prove that they will begin if not restrained. This
2 [1942] O.W.N. 551.
may depend, for example, on whether there have
been threats or warnings. It may be easier to
establish that actions begun, but stopped, will
resume unless restrained than to establish that
conduct, not yet started, will commence. The prob
lems are in truth problems of difficulty of proof
rather than of burden of proof. And at any rate,
this is not a case which I would describe as a pure
quia timet case. The Trial Judge held, on the
material before him, that illegal strike action had
occurred before the action was begun. Considering
the conduct involved in the present case, the ques
tion really appears to me to be whether, viewed
reasonably, it points to a danger that the acts
sought to be restrained would recur unless
enjoined.
With these considerations in mind, can it be said
that, in exercising his discretion, the Trial Judge
erred in applying an incorrect burden of proof? If
the words complained of stood in isolation, it
might well be that they would indicate error; but
they do not stand alone. For one thing, they follow
immediately upon words describing the unpleasant
consequences of disruptions in air traffic caused by
illegal strikes. This may well have resulted in the
use of a somewhat exaggerated expression.
It must be kept in mind that the Trial Judge was
dealing with an interlocutory application requiring
immediate decision one way or the other. It seems
to me that his reasons ought to be read with this in
mind and on the assumption that he was proceed
ing on a proper legal basis unless it can be shown
that he was not.
There is indication elsewhere in his reasons that
the Trial Judge did address his mind to the issue of
the chance of renewed strike action in a more
measured way. In a passage from his reasons
quoted in the appellants' memorandum, the Trial
Judge referred [at pages 14-15] to the past con
duct of the defendants as not being in issue ".. .
save to indicate the probability of recurrences of
such illegal conduct by the named defendants or
other members of the bargaining unit ...". His use
of the word "probability" is significant.
The Trial Judge also referred and obviously
gave weight to the circumstance that in withdraw
ing their services in September employees had
acted against the advice of their Union. He also
noted [at page 16] that "... 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." He referred to Mr.
Morell's affidavit which spoke of events occurring
late in the evening of October 7, conduct apparent
ly designed to restrict the volume of traffic.
Reading his reasons as a whole, I have not been
persuaded that the Trial Judge applied an errone
ous standard. His reasons indicate that he con
sidered whether what had happened posed a
danger, not merely an outside possibility, that
illegal strike action might be resumed unless
enjoined. I cannot say there were no reasonable
grounds for concluding there was such a danger.
III
Counsel for the appellants also submitted that
the action is one which cannot be brought against
the named defendants as representatives of all the
members of the bargaining unit. The action, in its
representative aspect, was brought under Rule
1711. Paragraphs (1) and (2) of this Rule are as
follows:
Rule 1711. (1) Where numerous persons have the same interest
in any proceeding, the proceeding may be begun, and, unless
the Court otherwise orders, continued, by or against any one or
more of them as representing all or as representing all except
one or more of them.
(2) At any stage of a proceeding under this Rule, the Court
may, on the application of the plaintiff, and on such terms, if
any, as it thinks fit, appoint any one or more of the defendants
or other persons as representing whom the defendants are sued
to represent all, or all except one or more, of those persons in
the proceeding; and where, in exercise of the power conferred
by this paragraph, the Court appoints a person not named as a
defendant, it shall make an order adding that person as a
defendant.
The common interest among the members of the
group seems to be that, by virtue of the certifica
tion of the Union, they are represented by the
same bargaining agent, and that all are subject to
the duty imposed by section 101 of the Public
Service Staff Relations Act not to strike during
the currency of the collective agreement. There is
also the issue, common to all the members of the
group, whether there was a danger that they would
resort to strike action if they were not enjoined.
Counsel for the appellants submitted that there
are substantial differences in the defences which
would be available both to non-operational con
trollers and to operational controllers who did not
engage in strike action on the one hand and, on the
other, operational controllers who did strike. There
would also, it was said, be differences among those
who did stop work at Dorval, Toronto, and else
where. The differences, it was submitted, would be
sufficient to render it improper to include all of the
members of the bargaining unit in the same class.
Counsel for the respondents relied on the back
ground to the events which had occurred at
Dorval, then at Toronto, and finally at locations
elsewhere in Canada. He submitted that these
events were evidence of a pattern of conduct from
which it could be inferred that there was a likeli
hood that any or all members of the bargaining
unit might engage in further stoppages or slow
downs unless restrained. Counsel also submitted
that for relevant purposes there was no significant
difference between operational and non-operation
al members of the bargaining unit. He submitted
that under the collective agreement non-operation
al employees could be transferred to operational
jobs from time to time, and this had been done.
What is involved here is an interlocutory motion
brought on very short notice; the class action issue
was raised by the defendants at this preliminary
stage and not by way of motion under paragraph
(1) of Rule 1711. It was not necessary, nor would
it in my view have been possible at this point, for
the Trial Judge to decide this particular issue
finally. It was for the Trial Judge, on the inter
locutory application, to decide whether, on the
material before him, reasonably considered, there
was a danger that the operational and non-opera
tional controllers who had not illegally stopped
working or slowed down, as well as the operational
controllers who did, would do so unless restrained;
if not, they should not have been included in the
class. And, of course, it was for him to decide
whether, in the light of what the affidavit evidence
disclosed at that stage, there was such a common
interest in the proceeding as to warrant including
on the interlocutory motion all of the members of
the bargaining unit in the same class.
It is reasonably clear that the Trial Judge con
sidered the danger that members of the class who
had not actually stopped work or slowed down
illegally might do so. He also considered the sub
mission that members of the class might have
significantly different defences, a relevant factor in
the class action issue. His reference to Heath
Steele Mines Ltd. v. Kelly' is admittedly not clear.
I have not, however, been convinced that he
applied a wrong principle in exercising his discre
tion by granting an interlocutory injunction in
respect of the class or that the material before him
could not support his exercise of discretion in this
respect. The issue raised by counsel is a difficult
one in the circumstances of this case. But, absent
error in law, it was an issue for the Trial Judge.
It might not be out of the way to refer to what
Mr. Justice Megarry said about class actions in
John v. Rees 4 . He referred to and quoted what he
called the classic statement made by Lord Mac-
naghten with reference to representative actions in
The Duke of Bedford v. Ellis'. He then proceeded,
at page 370, to say:
This seems to me to make it plain that the rule is to be
treated as being not a rigid matter of principle but a flexible
tool of convenience in the administration of justice.
A bit later he continued:
5 (1978) 7 C.P.C. 63. This was an appeal to the New
Brunswick Court of Appeal from an order of a Trial Judge
setting aside a representation order. It was not, as I understand
it, an appeal from an interlocutory injunction.
4 [ 1970] Ch. 345.
5 [1901] A.C. 1.
The approach also seems to be consistent with the language of
R.S.C., Ord. 15, r. 12 (1). This provides that
Where numerous persons have the same interest in any
proceedings, ... the proceedings may be begun, and, unless
the court otherwise orders, continued, by or against any one
or more of them as representing all or as representing all
except one or more of them.
By r. 12 (3)-(6), ample provision is made for protecting those
who, being bound by a judgment against a person sued on their
behalf, nevertheless wish to dispute personal liability. The
language is thus wide and permissive in its scope; yet it provides
adequate safeguards for the substance. I would therefore be
slow to apply the rule in any strict or rigorous sense: and I find
nothing in the various passages cited to me from Daniell's
Chancery Practice, 8th ed. (1914), which makes me modify this
view.
Paragraphs (3) to (6) of Federal Court Rule
1711 are similar to paragraphs (3) to (6) of the
English Ord. 15, r. 12.
The John v. Rees case did, of course, involve a
plaintiff class action and differed significantly in
its facts. I nonetheless find the passages I have
quoted helpful as indicating that the Rule should
not be applied "in a strict and rigorous sense".
IV
I will now consider the final issue. This involves
deciding whether, having in mind that there are
remedies for illegal strikes available under the
Public Service Staff Relations Act, the Trial
Judge erred in failing to dismiss the interlocutory
application. It is clear that the availability of such
remedies is not, in itself, a bar to interlocutory
relief. Counsel for the appellants did not question
this. Her submission, as I understood it, was that
the Trial Judge gave insufficient weight to the
availability of these remedies. I am of the view the
Trial Judge properly considered this submission
and I see no reason to question his decision on it.
V
I would dismiss the appeal with costs.
* * *
URIE J.: I concur.
* * *
KERR D.J.: I concur.
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.