T-4640-80
The Queen and Attorney General of Canada
(Plaintiffs)
v.
Wayne Perry, Robin Mercer, Vernon Argram
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 in
the Air Traffic Controllers Group Bargaining Unit
(Defendants)
Trial Division, Jerome A.C.J.—Ottawa, August
18 and September 16, 1981.
Practice — Contempt of court — Motion by Crown seeking
an order against defendants to show cause why they should not
be held in contempt of court for refusing to handle air traffic
from and toward the United States — Court earlier granted
order restraining many of the defendants from engaging in a
strike pending case against them — Restraining order resulted
from series of `wild-cat" strikes that threatened air travel —
Refusal, based on safety reasons, resulting from work stop
pages by American air traffic controllers — Whether refusal
by defendants to process United States air traffic on the basis
of safety amounts to contravention of Court's restraining order
— Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s.
2 — Federal Court Rule 355(4).
This is a motion ex parte whereby the Crown seeks an order
to require the defendants to show cause why they should not be
held in contempt of the Court for refusing to handle air traffic
from and toward the United States following work stoppages by
their American counterparts. The Court earlier granted an
interlocutory injunction restraining many of the defendants
from engaging in a strike until their case was determined. The
restraining order which was directed to specific members of the
Canadian Air Traffic Control Association, resulted from a
series of country-wide "wild-cat" strikes which threatened air
travel in Canada. In the original application the work stoppages
were directed to employer-employee grievances, while in this, in
which the leadership of the Association is involved, the concern
is solely for safety. The question is whether refusal by the
defendants to process United States air traffic on the basis of
safety amounts to contravention of the Court's order.
Held, the application is dismissed. The actions of Canadian
air traffic controllers in refusing to process United States air
traffic on the basis of safety considerations may have been
beyond their authority and may very well have rendered them
liable to internal disciplinary measures. They may even fall
within the description of what is included in a strike, as defined
by section 2 of the Public Service Staff Relations Act, but if
they do, it is only in the extreme technical sense of those words.
In every other respect, they are separate and distinct from those
matters which were addressed in the restraining order and
nothing in the evidence serves to draw a connection between
them or to raise any reasonable likelihood of a finding by this
Court that, in acting as they did, these defendants displayed an
attitude of contempt toward the restraining order.
Canada Metal Co. Ltd. v. Canadian Broadcasting Corp.
(No. 2) (1975) 48 D.L.R. (3d) 641, distinguished. Mac-
Millan Bloedel (Alberni) Ltd. v. Swanson (1972) 26
D.L.R. (3d) 641, referred to.
MOTION ex parte.
COUNSEL:
W. Nisbet, Q.C. for applicant the Queen.
J. Nelligan, Q.C. for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
applicant the Queen.
Nelligan/Power, Ottawa, for defendants.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This motion is brought on in
accordance with Rule 355(4) on an ex parte basis.
It arises out of alleged refusals by Canadian air
traffic controllers to handle air traffic from or
toward United States destinations, and seeks an
order requiring the defendants to show cause why
they should not be held in contempt of this Court
for such actions, which are alleged to be in contra
vention of the order of Walsh J., dated October 9,
1980, as follows:
Upon application made on behalf of the Plaintiffs and upon
hearing counsel for the parties: and upon reading the affidavits
submitted on behalf of Plaintiffs and Defendants:
THIS COURT DOTH GRANT an interlocutory injunction restrain
ing 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 Relations Act until the
trial of members of the Air Traffic Controllers Group Bargain
ing Unit by ceasing to work or refusing to work or to continue
to work or by restricting or limiting their output in contraven
tion of clause 101(2)(a) of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35. This Order is subject to the under
taking on behalf of Her Majesty the Queen and the Attorney
General of Canada that the Deputy Attorney General of
Canada will take all necessary steps to facilitate the enforce
ment of this injunction Order.
Matters of contempt of court are of the utmost
seriousness, punishable by substantial fines and
imprisonment and, as an indication of the respect
which this Court demands for its orders, it has
been recent practice to insist upon the undertaking
in the final sentence of the order of Walsh J. This
places the Crown, as applicant for such orders,
under the obligation to institute proceedings
immediately upon notice of alleged contempt, so
that the Crown is acting in the present circum
stances, in accordance with what it perceives to be
its proper obligation. When this application was
filed on an ex parte basis, I immediately granted a
special sitting day of August 11, 1981. The Court
was pleased to note the presence at this hearing of
John P. Nelligan, Q.C., who is presently engaged
as counsel for virtually all the Canadian air traffic
controllers in other proceedings of a similar nature
being carried forward in Montreal, and was
pleased to hear Mr. Nelligan in the capacity of
amicus curiae.
The courts have had, perhaps unhappily, consid
erable experience with matters of this sort, but
much of the jurisprudence is of little assistance
since it relates almost always to a repetition of the
very activity restrained. I have in mind the numer
ous examples of strikes, lock-outs or picketing
commenced or resumed sometimes within hours
following the order and sometimes with public
declarations of hostility for the Court. These, so
obviously, demand an accounting to the Court that
an order to show cause is routinely issued. A
somewhat different example was provided in the
1974 decision of O'Leary J., in the Ontario High
Court, in the Canada Metal Co. Ltd. v. Canadian
Broadcasting Corp. (No. 2) 1 case, which sets out a
very instructive analysis of decisions in matters of
civil contempt, which incorporate many of the
elements normally associated with determinations
of criminal guilt. He states at page 660:
' (1975) 48 D.L.R. (3d) 641.
I am not dealing with an application to enforce a Court
order, but rather an application to punish two of the parties to
this action for an alleged breach by them of the injunction, and
to punish four other persons not parties for having allegedly
conducted themselves so as to obstruct the course of justice by
treating the injunction with contempt by acting in contraven
tion of it. The proceedings before me are criminal or quasi-
criminal in nature and I must, therefore, be satisfied that the
misconduct alleged against the respondents has been estab
lished beyond a reasonable doubt: General Printers Ltd. v.
Thomson et al., [1965] 1 O.R. 81, 46 D.L.R. (2d) 697, per
Haines, J., at pp. 82-3 O.R., pp. 698-9 D.L.R.: "Proceedings of
this nature are of a quasi-criminal nature and must be proven
with the strictness of a criminal charge." In Re Bramblevale
Ltd., [1970] Ch. 128, per Lord Denning, M.R., at p. 137:
A contempt of court is an offence of a criminal character.
A man may be sent to prison for it. It must be satisfactorily
proved. To use the time-honoured phrase, it must be proved
beyond reasonable doubt.
In the final analysis, however, the finding of con
tempt in the Canada Metal Co. Ltd. v. Canadian
Broadcasting Corp. (No. 2), supra, decision
springs from the contents of a broadcast, i.e., the
identical matter to which the Court was addressing
itself in the restraining order. In fact, we need not
go beyond this very order of Walsh J. where the
reasons for judgment address themselves to a
series of unauthorized or wild-cat work stoppages
held at random locations throughout the country
and at irregular intervals, bringing such uncertain
ty to air travel in Canada as to threaten to bring
the system to a halt. In March 1981, upon applica
tion originally before Cattanach J., and later
before me, the sworn material alleged that this
very kind of activity had resumed at Montreal
Airport and show cause orders were granted. The
resulting proceedings for contempt are ongoing
before Addy J. in Montreal.
I should also stress that, were the question
simply whether these air traffic controllers were
exceeding their proper authority in refusing to
handle American traffic so as to be subject to
disciplinary procedures, the matter might be a
good deal simpler. For this reason, I offered the
Crown an early date for the hearing of a contested
application for an order to restrain these actions,
irrespective entirely of any relationship to the
order of Walsh J., but that obviously did not go
forward.
The initiation of proceedings in matters of this
sort on an ex parte basis is entirely proper, but, in
my opinion, there was no justification for attempt
ing to resolve these rather substantial questions in
the absence of formal representation on behalf of
the defendants and, accordingly, I ordered the
matter to stand over until Tuesday, August 18,
1981, at 10 a.m., with notice to the defendants, in
the interim, so that they could instruct counsel. On
the return date, Mr. Nelligan appeared for the
defendants and, although technically, notice had
not been served upon them, he was able to confirm
his participation on behalf of the Association, the
general membership and the majority of the
individually named defendants, which was certain
ly sufficient for the purposes of this kind of prelim
inary determination.
Affidavits filed by the applicant refer to the
following material facts: that, on August 11, 1981,
William J. Robertson, President of the Canadian
Air Traffic Control Association, made a public
announcement indicating that, due to the evident
safety hazard posed by United States travel and
the reluctance of the Canadian Department of
Transport to cease trans-border operations until
the U.S. traffic control situation was returned to
normal, members of their Association, beginning
the following morning, would no longer process the
handling of flights operating to or from U.S. air
space, except for emergencies; that, in the period
between August 6 and August 10, at several major
Canadian air traffic control centres, supervisory
personnel advised controllers that they were aware
of some intention not to deal with U.S. traffic and
reaffirmed their insistence on the performance of a
full and proper range of duties and asked for the
controllers' assurance to that effect, and also
advised the controllers, in some cases, of the
Department's view that the failure to perform such
duties would be subject to disciplinary actions and
might contravene the order of Walsh J. of October
9, 1980; that the response varied from one centre
to another and from one employee to another, but
generally took the following forms: some made no
positive response and remained equivocal about
their intentions; others indicated that they would
refuse to handle such flights, but in both of these
cases, it is unclear whether these defendants actu
ally did so; others were on duty when refusals to
handle U.S. flights took place, but again, it is
unclear whether these specific defendants actually
refused them, and the final group actually refused
to handle the American traffic while on duty; that,
as a minimum consequence, schedules involving
U.S. traffic were disrupted, with obvious inconve
nience to the travelling public and to the airlines;
that, as a more significant consequence, in the
Gander control area where Canadian controllers
have responsibility for this portion of international
traffic control, emergency measures had to be
instituted even at the threat of abdication of such
responsibilities; that the matter was resolved
during the night hours of August 11-12, and
formed the basis of a joint announcement on
August 12 by the Minister of Transport and Mr.
Robertson, establishing, among other things, spe
cial fact-finding teams to be set up to verify the
incidents allegedly documented by the Canadian
controllers and to monitor similar problems in the
future in order to reassure controllers that the
Canadian and American air traffic systems pro
vide an adequate level of safety.
In cases where the very activity restrained is
resumed within a short time of the order, the act of
disobedience itself is taken to be synonymous with
contempt of court. Here, however, we are so obvi
ously separated in time and circumstances, that
this relationship is no longer automatic. The ear
lier order, although interlocutory in nature, contin
ues to bind many of the defendants in this action,
but, separated as it is from these events by some
eight months, the factual situation more closely
resembles that in MacMillan Bloedel (Alberni)
Ltd. v. Swanson 2 , where the following headnote is
helpful:
In deciding what conduct is enjoined by a restraining order
the order should be read in the light of the reasons for
judgment delivered therewith and where, in the reasons for
judgment, reference is made to a series of work stoppages
committed over a period of time and designed to limit the
2 (1972) 26 D.L.R. (3d) 641.
inventory of the plaintiff to a point where its bargaining
position with the defendants' union would be reduced, an order
restraining, inter alia, "activity that is intended to or does
restrict or limit production or services at the [plaintiff's plant]"
is one which enjoins a variety of related acts together constitut
ing a slow-down intended to limit production. However, where,
at the time of an industry-wide strike in logging in British
Columbia, the defendants refused to go to work not in con
tinuation of the slow-down but rather as a result of a strike of
all the fallers on the coast, held, although the strike may have
been wrongful it was not part of the activity enjoined by the
order, and a motion to commit for contempt should be
dismissed.
It is also conceded by counsel that Walsh J.
could not possibly have had in contemplation these
events which relate to work stoppages in the
United States, which are themselves of recent
origin. Furthermore, the order of Walsh J. was
intentionally directed to specific members of the
Association and not the Association leadership,
because the supporting material made it clear that
the strikes to be restrained arose from actions
against the will of the executive, whereas, in the
present circumstances, leadership is allegedly the
prime mover. This is not to say that one is more or
less serious than the other, only that they are
different. On that same point, it is noteworthy that
the only possible allegation against Mr. Robertson
is for encouraging or counselling the membership
to strike, since he is personally not in a position to
participate in a strike. The earlier order, of course,
does not specifically restrain such activity. In the
original application, the work stoppages were
directed to employer-employee grievances. Here,
the concern expressed is solely for safety, and
although the genuineness of that concern is stren
uously disputed by the Crown, there is not the
slightest suggestion that the resolution brings
about either advantage to the workers or conces
sion by management. In the earlier order, the
alleged strikes were taking place because people
failed to appear for work, whereas, in the present
circumstances, all defendants appeared for work
and all were prepared to deal with a part of their
regular obligations in the normal way.
On what basis, then, could this Court be reason
ably expected to conclude that these events are
related to the earlier order of Walsh J. in such a
direct way as to constitute, not just technical
disobedience, but in addition, that attitude of defi
ance and public disrespect which has consistently
been found to be an element of contempt of court?
I believe we struck the essence of the matter when
counsel for the Crown suggested that I should take
judicial notice that the sole intention of the
defendants was to create a gesture of support for
their American counterparts and that any refer
ence to safety was, to use his own words, a "paper-
thin façade". I place this at the very essence of the
matter because, obviously, my conclusion about
the attitude of the defendants would be quite
different were I to so find, but I must reject
summarily any suggestion that I could reach a
conclusion of such fundamental importance on the
basis of judicial notice. I am, of course, able to
resolve this matter only on the evidence before me,
and, not only is there no evidence to support the
Crown's contention, but every document filed
seems to deny it. The announcement by the Presi
dent of the Canadian Air Traffic Control Associa
tion was clearly and specifically related to safety;
in each and every affidavit before me, the reason
offered by employees for refusal of any sort related
to safety; in due course, the resolution of the
matter reached by the Minister and by the Presi
dent of the Association, dealt with safety and set
up a joint committee to verify the hazards of the
past and to monitor those of the future; the Ameri-
can situation continues long after the Canadian
one has been resolved and there is no evidence
that, at any time, there was a solitary public
utterance by either group that these activities by
the Canadian controllers were a strategic gesture
of support for their U.S. counterparts.
This is a preliminary proceeding and, on the
basis of the respect which the Court must demand
for its orders, there is a temptation to grant the
order requested and to leave the resolution of these
questions for the ultimate trial. On the other hand,
that action would launch a number of quasi-crimi
nal prosecutions in which findings of contempt can
follow only after proof beyond a reasonable doubt
against each defendant, and I believe the Court
has the responsibility to carefully assess the real
likelihood of such findings before such orders are
issued. The order of Walsh J. restrains many of
these defendants from engaging in a strike, as
contemplated by the language of section 2 of the
Public Service Staff Relations Act', in particular
the following portion:
"strike" includes a cessation of work or a refusal to work or to
continue to work by employees in combination or in concert
or in accordance with a common understanding, or a slow
down or other concerted activity on the part of employees
designed to restrict or limit output;
The actions of Canadian air traffic controllers in
refusing to process U.S. air traffic on the basis of
safety considerations may have been beyond their
authority and may very well have rendered them
liable to internal disciplinary measures. They may
even fall within the above description of what is
included in a strike, but if they do, it is, in my
opinion, only in the extreme technical sense of
those words. In every other respect, they are sepa
rate and distinct from those matters which were
addressed in the order of Walsh J. and nothing in
the evidence before me serves to draw a connection
between them or to raise, in my opinion, any
reasonable likelihood of a finding by this Court
that, in acting as they did, these defendants dis
played an attitude of contempt toward the order of
Walsh J. Accordingly, I decline to issue an order
compelling these defendants to show cause why
they should not be held in contempt of this Court.
ORDER
This application is dismissed. The defendants
are entitled to costs.
3 R.S.C. 1970, c. P-35.
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.