T-2327-76
The Queen in right of Canada (Plaintiff)
v.
James M. Livingston and J. Michael Tonner
(Defendants)
Trial Division, Addy J.—Ottawa, June 18 and 19,
1976.
Aeronautics—Jurisdiction—Injunction--Agreement ratified
between Air Traffic Control Association and plaintiff
Executive of Association purporting to declare ratification
vote invalid Strike vote duly called Executive intending to
call strike if vote favourable Plaintiff seeking to restrain
defendants and controllers from striking—Federal Court Act,
s. 17(4)—Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, ss. 18, 20-22, 92, 96(5), 98(1)(a),(2), 101-104.
An agreement was entered into between the Air Traffic
Control Association and plaintiff, was executed and was rati
fied, though defendants argued that there was not the confir
mation in writing required by section 2 of the Public Service
Staff Relations Act. Subsequently, the executive of the Asso
ciation purported to declare the ratification vote invalid and to
require another vote based solely on the resignation of the
Commissioner appointed to inquire into bilingual air traffic
control. A strike vote was duly and regularly called, and the
executive intended to call a strike within 48 hours. Defendants
claimed that there was every expectation of such a vote.
Plaintiffs sought to restrain defendants and controllers
employed by the Ministry of Transport from striking.
Held, an interlocutory injunction quia timet is granted until
June 28, 1976. As to whether, by reason of powers given the
Public Service Staff Relations Board, the Conciliation Board
and the Chief Adjudicator under the Public Service Staff
Relations Act, this Court has jurisdiction, if the allegations
were established, and defendants were to strike, such action
would be unlawful by virtue of section 101 of the Act, and in
contravention of defendants' general duties as servants of the
Crown. A right of action would lie against them for damages,
and for that reason, injunction would lie. Where a superior
court of legal and equitable jurisdiction has the right to award
damages, it generally possesses the required corollary jurisdic
tion to restrain the occurrence of the acts causing or likely to
cause such damages.
The agreement was in effect from May 31, 1976; there was
written ratification. Even if the executive were empowered to
declare the vote invalid (which power, based solely on an ex
post facto occurrence, totally unrelated to either the procedure
or subject matter of the vote, would be strange and undemo
cratic) it would be inoperative at law in so far as an employer is
concerned, in the face of a signed and ratified agreement, for,
in effect it would be purporting to give the employees' associa
tion the right to unilaterally rescind the contract without
reference to its terms. Thus, the case falls within sections 101
and 102 of the Act. Grave and irreparable harm will be caused
Canadian and foreign travellers and business, and possibly,
Canada's reputation. Conversely, as defendants' reason for
calling the strike was nothing more than concern for public
safety, there is no evidence of any harm being caused them as
controllers; the status quo from a safety standpoint will exist in
any event until sometime after the end of the present agree
ment. Should public safety be endangered, defendants could
only be affected as members of the public. And, air traffic
safety policy is a direct Government responsibility. Finally, the
safety motive is undoubtedly an artificial one; the Association
might well be attempting to do indirectly what it cannot do
directly. Unfortunately for it the safety issue is the responsibili
ty of government.
APPLICATION.
COUNSEL:
A. M. Garneau, M. Kelen and P. Chodos for
plaintiff.
J. P. Nelligan, Q.C., and J. Johnson for
defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Nelligan/Power, Ottawa, for defendants.
The following are the reasons for judgment
delivered orally in English by
ADDY J.: I have carefully reviewed the evidence
presented on behalf of both parties and considered
the law and the arguments submitted by counsel. I
would like at this stage to deal with a preliminary
matter before considering the evidence. This
matter is a question of law which was not men
tioned or argued by counsel before me yesterday
and which nevertheless when I went into the con
siderations affecting this case caused me some
concern. Briefly put, it is whether by reason of the
various powers given the Public Service Staff
Relations Board, the Conciliation Board and the
Chief Adjudicator under the Act, this Court might
be deprived of any jurisdiction it might otherwise
have in this matter—by reason of subsection (4),
section 17 of the Federal Court Act or otherwise.
I reviewed the Public Service Staff Relations
Act last evening albeit in a somewhat cursory
fashion due to the urgency of this matter, with this
particular problem in mind. The pertinent sections
appear to be sections 18 and 103 as to the powers
of the Board, sections 98(1)(a), 92 and 96(5) as to
the powers of the Chief Adjudicator. These sec
tions as well as the sections of the Federal Court
Act granting general jurisdiction to this Court
must of course be read in the light of the fact that
this Court does not as in the case of superior
courts of the provinces possess general common
law supervisory powers or any powers that are not
provided by statutes, or any jurisdiction that is not
provided by statute.
Section 18 when taken by itself might appear to
be broad enough to encompass powers of an
injunctive nature but it is trite that a section in any
statute must never be read by itself but in the
context of the whole Act. When read with sections
20, 21 and 22 it cannot, in my view at least, be
taken to encompass the present situation. As to
section 103, although it gives the Board the power
to make a declaratory order it does not give the
right to make an executory order and neither in
this section nor anywhere else in the Act could I
find any power in the Board to enforce such an
order by contempt proceedings or executory pro
ceedings or otherwise.
The provisions of section 104 making a contra
vention of both sections 101 and 102 an offence
punishable on summary conviction by prison or
fine are no substitute for nor can they be taken as
ousting any civil injunctive jurisdiction which
might exist otherwise, as criminal and civil pro
ceedings are different in nature.
As to section 98(1)(a) and 98(2) it appears to
me that any obligations of the defendants in the
case at bar to refrain from striking, if such obliga
tions do exist, would not arise out of the collective
agreement as such in the sense that they are not
directly or indirectly related to its specific provi
sions, but are collateral thereto and would arise
from the mere existence of the agreement irrespec
tive of its terms.
As to the jurisdiction of this Court to hear the
action as instituted by the plaintiff, I find that if
the allegations of fact were established and if the
defendants took a strike action as proposed, such
actions would be unlawful by reason of section 101
and would be in contravention of their general
duties as servants of the Crown and a legal right of
action would lie against them for damages caused
the Crown by reason thereof. For that reason the
equitable remedy of injunction would lie to
restrain such damages. Where a superior court of
both legal and equitable jurisdiction, such as the
Federal Court of Canada possesses the right to
award damages, it generally speaking, possesses
the required corollary jurisdiction of restraining
the occurrence or recurrence of the acts causing or
likely to cause such damages.
In saying this I do consider the fact that in so
far as section 101 is concerned or in other words
the second part of the injunction as claimed, the
relief requested amounts in effect to a mandatory
injunction, since an order to refrain from ceasing
to work is in effect a positive mandatory order to
work. As stated previously the above legal con
siderations, although not argued, did give me some
concern, but I did come to the conclusion that in
the circumstances of this case the Court did have
jurisdiction.
Dealing now with the questions of fact: except
as may be required in order to understand my
reasons, it is not my intention to review the facts
which were ably and extensively referred to and
argued yesterday by counsel. I make, however, the
following findings of fact: an agreement was
entered into between the duly authorized repre
sentatives of the Air Traffic Control Association
on behalf of the members thereof and the repre
sentatives of the plaintiff. This agreement was in
writing and was duly executed by the representa
tives of both parties, subject only to a favourable
ratification vote of the membership of the Associa
tion. This evidence is in fact uncontradicted. The
ratification vote took place and in fact favoured
the ratification. This ratification is not only
referred to in the affidavit submitted on behalf of
the plaintiff, but is also confirmed in the affidavit
of Mr. Livingston, the President of the Association
and one of the defendants herein, which was sworn
to yesterday and filed at the hearing yesterday
afternoon.
In paragraph 13 of this affidavit Mr. Livingston
states and I quote:
Following the vote which was held on May 31st I made a
statement to the press saying that the Canadian Air Traffic
Control Association voted in favour of ratifying Treasury
Board's revised offer of settlement of the contract dispute.
On examining the agreement itself I find at law
that except as to ratification it complies in every
way with the definition of a collective agreement
as contained in section 2 of the Act.
Counsel for the defendants argued that although
there was a vote in favour of the ratification, there
was no confirmation in writing to the plaintiff of
such ratification, and that such confirmation is
required pursuant to the provisions of section 2.
The agreement reads as follows and again I quote:
Subject to the ratification by the membership, the collective
agreement between the parties dated August 22, 1974, subject
to the express provisions set out below shall be deemed to have
continued in force until May 31, 1976, and shall be renewed
June 1, 1976, amended by substituting the clauses agreed upon
between the parties as set out below:
And the clauses are set out below.
The duly executed contract itself provides in
writing, as I have just read, only that it is subject
to ratification by the membership and such ratifi
cation has in fact occurred. The express condition
outlined in the contract has been fulfilled and I am
not of the view that in such circumstances, the law,
and more particularly section 2 of the Act,
requires in addition that the employer be advised
in writing of the ratification.
In any event, even if the fact of ratification must
be communicated in writing I experience no dif
ficulty in finding that the letter of the 11th of June
1976 from the defendant Livingston as President
of the Association to Mr. P. V. Dawson as repre
sentative of the employees does constitute such
written notification. The letter states in part and
again I quote from the second paragraph:
Since the ratification vote announced on May 31, 1976 was
based among other things on Mr. John Keenan's appointment
as the Commissioner of Inquiry, and Mr. Keenan has since
resigned that appointment, the CATCA National Council has
declared that vote invalid.
I can attribute no other reasonable interpretation
to the meaning of that paragraph but that the
ratification vote of the 31st of May 1976 in fact
approved and ratified—did in fact approve and
ratify the contract. In any event, both parties had
apparently in their evidence supplied the same
interpretation as Mr. Livingston himself in para
graph 13 which I have just quoted stated and I
repeat again that he made a statement to the press
to the effect that the Association had, and I quote:
... voted in favour of ratifying the Treasury Board's revised
offer of settlement.
It is to be noted also that the statement was made
to the press and obviously for the purpose of
publication not only to the plaintiff but to the
public at large. Since the letter refers to the state
ment made to the press on that day it incorporates
the statement itself by reference. It is also interest
ing to note that what the defendant Livingston
referred to in yesterday's affidavit as the "Treas-
ury Board's revised offer of settlement" was in fact
the actual agreement executed on behalf of both
parties and not a mere offer of settlement.
I therefore find that the agreement was in full
force and effect from the 31st of May 1976.
The evidence also shows that, when the agree
ment was executed and ratified, neither the ques
tion of the existence of the special commission nor
the nomination of Mr. Keenan was made a term or
condition of either the agreement or of the ratifi
cation vote. The executive of the Association after
Mr. Keenan's resignation as Commissioner pur
ported to declare the ratification vote invalid and
to require another vote on the question of ratifica
tion. Contrary to the argument advanced by coun
sel for the defendants the grounds of such a decla
ration of invalidity were not any irregularity in the
voting or in any matter leading up to the vote
itself, nor any alleged previous action or misrepre
sentation of any representative of the plaintiff, but
the sole grounds are clearly and simply and
unequivocally stated as being the resignation of
Mr. Keenan, an event which happened some seven
days after ratification, i.e. after the ratification
vote was announced. There is not the slightest
suggestion in the evidence that the plaintiff was in
any way instrumental in bringing about this
resignation.
As to the power of the National Council or
executive of the Association to declare the vote
invalid as it purported to do at its meeting of the
7th of June, no authority was quoted from the
rules or by-laws of the Association purporting to
grant such a power. In so far as the Association
itself is concerned, it would be strange indeed if
any such authority did exist which would allow its
executive to declare a vote which is in all respects
a proper one, as invalid on the sole basis of an
occurrence ex post facto, totally unrelated to
either the procedure at the time of the vote or the
subject matter of the vote. However, if such a
power did exist in the executive, and I would like
to repeat that it would be a very strange and
glaringly undemocratic one, by by-law or other
wise, it would be completely inoperative at law in
so far as an employer is concerned where, as in the
present case, a collective agreement has been
signed and duly ratified, for it would in effect be
purporting to give the employees' association the
right to unilaterally and without reference to the
terms of a legal contract, rescind that contract.
The case therefore falls squarely within the provi
sions of sections 101 and 102 of the Act.
The following facts are also clear and undisput
ed: one, a strike vote has been duly and regularly
called and the results will be announced around
noon today. Two, if the vote is favourable to a
strike it is the firm intention of the executive to
call a strike within 48 hours or possibly earlier.
Three, according to the defendants there is every
expectation that the vote will overwhelmingly
favour a strike.
As to the balance of convenience, which is a
matter which must also be considered even at this
stage of the proceedings, grave and irreparable
harm will be caused the members of the general
public in Canada and to many businesses who rely
on air transport as well as to foreigners travelling
in Canada and foreign businesses dealing with
Canadians. Harm will also be caused to the repu
tation of Canada, or might possibly be caused to
the reputation of Canada in the field of air trans
portation due to these factors and due also, among
other things, to the responsibility assumed by this
country in the control of the air traffic in the
Western Atlantic air space.
On the other hand, since the only reason for the
intended strike has been repeatedly declared to be
a concern for public safety and nothing else,
according to the evidence before me, should such a
situation in fact exist there is no evidence whatso
ever of any harm being caused the defendants in
their capacity or employment as air traffic con
trollers. There is also uncontradicted evidence that
the status quo from a safety standpoint will exist in
any event, or might very well exist in any event
until sometime after the term of the present collec
tive agreement has expired. It seems very clear
that even should their worst fears be realized and
the safety of the public in fact be endangered, they
could not be affected except as members of the
general public. The policy regarding general safety
in air traffic in this country is the direct responsi
bility of government.
It is therefore clear on the evidence submitted
before me that the plaintiff has on the facts and
the law established a prima facie right to the relief
claimed in the notice of motion.
Injunction, however, being a discretionary power
and equitable remedy, it has often been stated that
a party seeking this remedy must come into the
Court with its hands clean. Such is undoubtedly
the case here in so far as the evidence before me is
concerned. But in deciding on the equities between
the parties and in coming to the conclusion wheth
er the jurisdiction which I now feel I have, should
in fact be exercised, the question of the motives
and the true intentions of both parties might be of
some relevance, including to some extent the
motives and intentions of the defendants. Safety
for the public has been announced as the sole
reason for the proposed strike, all other factors
having been settled satisfactorily. When one con
siders the bald fact of the status quo undertaking
on behalf of Government which exists at the
present time, it is very difficult, to say the least,
for me to accept that the sole motive of all of the
members of the Association favouring this strike
vote at the present time and risking the possible
loss of employment and of regular pay for what
might turn out to be an extended period, that the
sole motive is their altruistic concern for the safety
of the public who might be landing in Quebec
some one year hence.
This is without the slightest doubt in my mind
an artificial motive as it would be completely
illogical to act in this manner for the very obvious
reason I have given. When one considers the vital
position of Quebec in the manner of trans-Canada
as well as intercontinental air traffic, it is evident
that a much more logical and cogent motive would
be the fear of loss of opportunities for advance
ment for unilingual controllers. It seems equally
obvious that the Official Languages Act would
prove an insurmountable obstacle for any such
motive to be invoked, and that the Association
might well be attempting to do indirectly what it
cannot do directly, but unfortunately for it the
question of safety, as I stated before, that is, the
policy regarding public safety as such is not their
responsibility, but the responsibility of Govern
ment.
It is obvious from my remarks that I am grant
ing the injunction and its duration will be con
sidered in view of what Mr. Nelligan stated yester
day, the fact that he wanted further opportunity to
present other evidence at a later date to prepare
his case more fully and to argue his points. I will,
of course, treat this order as an interim one and
give the defendants the right to cross-examine, if
they so desire, under the affidavits submitted by
the plaintiff or to offer or submit other evidence at
another time before this Tribunal.
There is one more matter I would like to deal
with and it was also of concern to me, but I
overcame that concern in reading the statement,
the undertaking submitted by counsel on behalf of
the Crown. It has been, unfortunately, in this
country for some years the habit of government,
and I am not only referring to the federal govern
ment, but the municipal governments and the pro
vincial governments, to constantly and perhaps
without thinking too much of the consequences,
rush to the tribunals for relief by injunctive proce
dures and then if the injunction is disregarded to
do nothing about it. That accomplishes absolutely
nothing but to bring into disrepute the courts and
tribunals concerned and make members of the
general public believe that a court order is some
thing that as a matter of course can be disregard
ed. Fortunately it seems that this particular trend
has been and is being stopped, both by executive
action and by repeated admonitions of the courts.
As a result of certain decisions and I believe to
some extent as a result of one from my brother,
Mr. Justice Cattanach, counsel representing gov
ernments have, in certain cases, furnished under
takings. I read the following undertaking which I
did take into consideration because in granting an
injunction a court must always consider whether
its order will be futile or whether it will be used by
the person requesting it.
The undertaking reads as follows:
An application is to be made on behalf of Her Majesty the
Queen on June 18, 1976, under Rule 469 of the Federal Court
Rules and General Orders to obtain an interlocutory injunction
to restrain the above-named Defendants and Air Traffic Con
trollers employed with the Ministry of Transport from with
drawing their services in contravention of section 101(2)(a) of
the Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
This will serve as a formal undertaking that, should the
Court see fit to grant the requested interlocutory injunction,
that the Deputy Attorney General of Canada on behalf of Her
Majesty will take all necessary steps to facilitate the enforce
ment of the said injunctive order.
With those considerations in mind I grant the
substantive portion of the motion. I will, however,
amend the substantive part of a motion to
include—I see it has been included. Now, I have a
suggestion to make to counsel and since this
matter seems to be of great importance and great
urgency I am suggesting to Mr. Nelligan and I
don't know whether it meets with his approval or
not, but instead of having another hearing on this
matter within 10 days, that we have the trial
within 10 days. We can set June 28th for the trial
of this action and we can, if counsel consent,
consider the affidavits submitted as the pleadings,
make an order dispensing with examination for
discovery or other discovery and get on with the
case. Otherwise, of course, if this injunction is
adjourned to a further hearing of an interlocutory
motion to continue it until trial, it will mean an
extra proceeding and I don't think from what has
been stated to me so far that the facts would be so
difficult. It will be mostly a question of law that
will be argued, I believe.
Do you wish some time to consider that?
MR. NELLIGAN: I suggested that very same
thing and I have a statement of defence here and I
can serve it and the pleadings are then complete
and I am prepared to go forward on the 28th of
June.
HIS LORDSHIP: That is fine. Do you consent to
that, Mr. Garneau?
MR. GARNEAU: Yes, I would, My Lord.
HIS LORDSHIP: Then this injunction which I will
read in open court to make sure that there is no
misunderstanding as to its terms shall be in full
force and effect subject to any further order of this
Court until 10:30 a.m. on the 28th of June. That is
not this coming Monday but is a week from
Monday.
The operative parts of the injunction which
takes effect immediately is as follows:
THIS COURT DOTH GRANT AN INTERLOCUTO
RY INJUNCTION quia timet enjoining and
restraining the defendants and each of them and
their agents, servants and representatives or any
person or persons acting under their instructions
or any of them or anyone having knowledge of
this order from the date of this order until the
trial of this action from instructing,
counselling ..
and I wonder about the trial of this action, and
perhaps I should take that out, Mr. Nelligan. It
will be until a further order—until 10:30 a.m. on
the 28th or any further order of this Court.
MR. NELLIGAN: Very well, My Lord.
HIS LORDSHIP: ... counselling or advising Air
Traffic Controllers employed with the Ministry of
Transport who are subject to a collective agree
ment dated May 28, 1976, from withdrawing their
services in contravention of section 101(2)(a) of
the Public Service Staff Relations Act, R.S.C.
1970, c. P-35.
AND THIS COURT DOTH GRANT AN INTER
LOCUTORY INJUNCTION quia timet enjoining and
restraining the defendants and any Air Traffic
Controllers employed with the Ministry of Trans
port who are subject to a collective agreement
dated May 28, 1976, and who have knowledge of
this Order from withdrawing their services in con-
travention of section 101(2)(a) of the Public Ser
vice Staff Relations Act.
Is there any question about the text of this, Mr.
Nelligan?
MR. NELLIGAN: In view of the fact that my
friend has given me the advance draft copy, My
Lord, I have made the amendment with regard to
the date, and I can assure Your Lordship that we
have the text and we can obtain the formal text in
due course from the Registrar and it is not neces
sary to serve it on anyone here today.
HIS LORDSHIP: Then at the suggestion of coun
sel for the defendants, who is showing his usual
co-operation with the Court, there will be an order
exempting service of this order on both defendants;
is that correct?
MR. NELLIGAN: Yes, My Lord, they are both in
Court.
HIS LORDSHIP: Thank you.
—Adjournment.
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.