A-546-81
The Queen and the Attorney General of Canada
(Appellants) (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
(Respondents) (Defendants)
Court of Appeal, Pratte, Heald and Urie JJ.—
Ottawa, March 3 and 18, 1982.
Practice — Contempt of court — Appeal from decision
dismissing an application for a show cause order — Respond
ents breached an interlocutory injunction by refusing to pro
vide air traffic control services for flights bound for or coming
from the United States in order to protect the public safety —
Trial Judge dismissed the application being of opinion that the
Court would be unlikely to find the controllers guilty of
contempt — Whether the Court has jurisdiction pursuant to s.
27 of the Federal Court Act to hear the appeal — Whether
Trial Judge erred in dismissing the application — Appeal
allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 2, 27(1) — Public Service Staff Relations Act, R.S.C. 1970,
c. P-35, s. 2 — Federal Court Rule 355(4).
Appeal from a decision of the Trial Division dismissing an
application made under Rule 355(4) for an order that a group
of air traffic controllers show cause why they should not be
found guilty of contempt of court for having breached an
interlocutory injunction. The controllers breached an interlocu
tory injunction by refusing to perform part of their normal
duties. They refused to provide normal air traffic control
services to flights bound for or coming from the United States.
The controllers justified their actions by their concern for the
safety of the public. The Trial Judge dismissed the application
because he felt that the Court would not be likely to find the
controllers guilty of contempt. The respondents argued that no
appeal lies from the decision not to issue a show cause order
because such a decision is neither a final nor an interlocutory
judgment within the meaning of section 27 of the Federal
Court Act. The respondents submit that it is a decision which
does not make an adjudication on any point and which is of the
same nature as a ruling on evidence and a show cause order.
The first issue is whether the Court has jurisdiction to entertain
the appeal. The second issue is whether the Trial Judge erred in
dismissing the application for a show cause order.
Held, the appeal is allowed. The refusal to issue a show cause
order cannot be compared to the granting of such an order or to
a ruling on evidence. Those orders or rulings do not adjudicate
on anything. The same cannot be said of an order such as the
one under attack which finally determines either that the
respondents were not in contempt or that they do not deserve to
be punished for what they have done. An order of that kind is a
judgment which is appealable under subsection 27(1) of the
Federal Court Act. The Judge refused to issue the show cause
order because he was of the opinion that if the order were
issued, the Court would not be likely to find the controllers
guilty of contempt. This decision is ill founded. The Trial
Judge's duty was to determine whether the affidavit evidence
established, prima facie, that the persons or some of the
persons mentioned in the notice of motion had breached the
injunction. If the evidence established a prima facie breach of
the injunction, the Judge had to issue the show cause order
sought unless the evidence showed clearly that the violation of
the injunction was so unimportant or had taken place in such
circumstances that it be absolutely certain that it did not
deserve to be punished. The evidence discloses a prima facie
case of contempt of court. The injunction was expressed in
general terms and cannot be considered as referring only to the
strikes that would take place in circumstances similar to those
which existed when the injunction was pronounced. The affida
vit evidence shows that at least some of the persons mentioned
engaged in a strike by limiting their output. The controllers
explained their conduct by their concern for the safety of the
public. That explanation is irrelevant at this stage of the
proceedings.
Saint John Shipbuilding & Dry Dock Co. Ltd. v. Kings-
land Maritime Corp. [1979] 1 F.C. 523, referred to. R. v.
United Fishermen and Allied Workers' Union (1967) 60
W.W.R. 370, referred to.
APPEAL.
COUNSEL:
W. L. Nisbet, Q.C. for appellants (plaintiffs).
J. P. Nelligan, Q.C. for respondents (defend-
ants).
SOLICITORS:
Deputy Attorney General of Canada for
appellants (plaintiffs).
Nelligan/Power, Ottawa, for respondents
(defendants).
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from a decision of
the Trial Division [[1982] 1 F.C. 719] dismissing
an application made under Rule 355(4) for an
order that a group of air controllers employed by
the Federal Government appear before the Court
and show cause why they should not be found
guilty of contempt of court for having breached an
interlocutory injunction granted by Mr. Justice
Walsh on October 9, 1980.
The respondents, as well as the other persons
that the appellants wish to cite for contempt, are
employed as air controllers by the Government of
Canada. They are part of a bargaining unit known
as the Air Traffic Controllers Group for which the
Canadian Air Traffic Controllers Association is
the certified bargaining agent.
On October 7, 1980, the appellants sued the
respondents in their personal capacities as well as
the representatives of all the other employees in
the Air Traffic Controllers Group Bargaining
Unit. The appellants alleged that, commencing on
September 1, 1980, the respondents and other
members of the bargaining unit had participated
in illegal strikes at various locations across
Canada; they claimed the issuance of a permanent
injunction restraining the respondents from par
ticipating in unlawful strikes.
Immediately after having commenced their
action, the appellants applied for an interlocutory
injunction. At that time, all the air controllers
were back at work but as all the issues and griev
ances that had occasioned the strikes had not yet
been entirely resolved, it was feared that there
might be other strikes which could seriously dis
rupt air traffic in the country. Mr. Justice Walsh
granted the interlocutory injunction applied for by
the appellants. The operative part of his order read
as follows:
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. This Order is subject to
the undertaking 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.
The respondents appealed from that order.
Their appeal was dismissed by a judgment of this
Court pronounced on July 16, 1981 [[1982] 1 F.C.
624].
The appellants' action has not yet been tried.
The interlocutory injunction pronounced by Mr.
Justice Walsh was, therefore, still in force when,
on August 11, 1981, the appellants made the
application which was rejected by the decision
under appeal. By that application, made pursuant
to Rule 355(4), the appellants sought an order
requiring some 150 air controllers named in a
schedule attached to the notice of motion to
appear before the Court and show cause why they
should not be found guilty of contempt of court for
having breached the interlocutory injunction
granted by Mr. Justice Walsh on October 9, 1980.
That application was supported by affidavits
establishing that at least certain of the air control
lers mentioned in the schedule had refused to
perform part of their normal duties when, follow
ing directives given by the executive of their Asso
ciation on August 9, 1981, they had refused to
provide normal air traffic control services to flights
bound for or coming from the United States.
Those affidavits also established that the air con
trollers had acted in that fashion notwithstanding
that they had previously received a written warn
ing from their employer that they would violate
the injunction pronounced by Mr. Justice Walsh if
they complied with the instructions of their Asso
ciation. The affidavits showed, in addition, that the
executive of the Canadian Air Traffic Controllers
Association justified its position by its concern for
the safety of air traffic in Canada which was
allegedly imperiled by the poor quality of the
services then provided in the United States by the
American air controllers who had been hired to
replace the regular air controllers who had been on
strike since the beginning of August.
The first question to be resolved is whether the
Court has jurisdiction to entertain this appeal.
Counsel for the respondents argued that no appeal
lies from the dismissal of an application for a show
cause order under Rule 355. He referred to sub
section 27(1) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, a provision which deter
mines the limits of the appellate jurisdiction of this
Court, and to the definition of the phrase "final
judgment" contained in section 2:
27. (1) An appeal lies to the Federal Court of Appeal from
any
(a) final judgment,
(b) judgment on a question of law determined before trial, or
(c) interlocutory judgment,
of the Trial Division.
2. In this Act
"final judgment" means any judgment or other decision that
determines in whole or in part any substantive right of any of
the parties in controversy in any judicial proceeding;
Counsel for the respondents said that the deci
sion not to issue a show cause order is neither an
interlocutory nor a final judgment. It is a decision,
said he, which does not make an adjudication on
any point and which is of the same nature as a
ruling on evidence and a show cause order which
have both been held not to be appealable.'
This argument must, in my view, be rejected.
The refusal to issue a show cause order under Rule
355(4) cannot be compared to the granting of such
an order or to a ruling on evidence. Those orders
or rulings do not adjudicate on anything. The same
thing cannot be said of an order such as the one
under attack which finally determines either that
the respondents were not in contempt or, in any
event, that they do not deserve to be punished for
what they have done. An order of that kind is, in
my opinion, a judgment which is appealable under
subsection 27(1) of the Federal Court Act. As the
appellants have commenced their appeal within
the time limit prescribed for interlocutory judg
ments, it is not necessary to determine whether the
decision that they are attacking is an interlocutory
or final judgment.
' Saint John Shipbuilding & Dry Dock Co. Ltd. v. Kingsland
Maritime Corp. [1979] 1 F.C. 523; Regina v. United Fisher
men and Allied Workers' Union (1967) 60 W.W.R. 370.
The Judge of first instance refused to issue the
show cause order sought by the appellants because,
as I understand his reasons, he was of opinion, on
the basis of the affidavit evidence before him, that
if the show cause order were issued, the Court
would not be likely to find the air controllers guilty
of contempt. That opinion of the learned Judge
was based on the following considerations:
A. The injunction pronounced by Mr. Justice
Walsh, while expressed in general terms, must
be read in the light of his reasons for judgment.
These reasons show that he granted the injunc
tion because he feared that the air traffic con
trollers might refuse to work in the future in
order to press their grievances against their
employer. The circumstances which prompted
the appellants to seek a show cause order were
entirely different: the air controllers had not
refused to work, they had merely refused to
perform certain of their duties; they had done
so, not by reason of any grievance against their
employer, but, rather, according to what they
had said, by reason of their concern for safety.
Those differences between the two situations led
the Judge to formulate the following question
[at pages 725-726]:
On what basis, then, could this Court be reasonably
expected to conclude that these events are related to the
earlier order of Walsh J. in such a direct way as to consti
tute, not just technical disobedience, but in addition, that
attitude of defiance and public disrespect which has consist
ently been found to be an element of contempt of court?
B. From the evidence before him, the learned
Judge inferred that the refusal of the air con
trollers to perform part of their duties had been
dictated solely by their concern for safety rather
than by their intention to support the strike of
the American controllers.
C. The learned Judge conceded that the action
of the air controllers might have constituted a
strike within the meaning of section 2 of the
Public Service Staff Relations Act, R.S.C.
1970, c. P-35, 2 which was prohibited by the
injunction of Mr. Justice Walsh. He added,
however, that these actions constituted a mere
technical violation of the injunction.
From those considerations, the learned Judge
concluded that there was no likelihood that the
Court, in the event a show cause order were issued,
would find that in acting as they did the air
controllers had "displayed an attitude of contempt
toward the order of Walsh J." He accordingly
declined to issue the show cause order and dis
missed the application.
This decision is, in my view, ill founded. The
Judge below did not have to determine whether the
air controllers had displayed "an attitude of defi
ance and public disrespect" towards the injunction
previously pronounced by Mr. Justice Walsh. He
did not have, either, to try and anticipate what
would be the ultimate judgment of the Court if the
show cause order were issued. His duty was to
determine whether the affidavit evidence filed in
support of the application for a show cause order
established, prima fade, that the persons or some
of the persons mentioned in Schedule A to the
notice of motion had breached the injunction pro
nounced by Mr. Justice Walsh. If the evidence
established a prima facie breach of the injunction,
the Judge had to issue the show cause order sought
unless the evidence showed clearly that the viola
tion of the injunction was so unimportant or had
taken place in such circumstances that it be abso
lutely certain that it did not deserve to be
punished.
Here, there is not the slightest doubt that the
evidence discloses a prima facie case of contempt
of court. The injunction pronounced by Mr. Jus
tice Walsh restrained the air controllers "from
engaging in a strike in concert with other members
of the Air Traffic Controllers Group Bargaining
Unit by ceasing to work ... or by restricting or
limiting their output . ..". This injunction was
2 That definition reads as follows:
2....
"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;
expressed in general terms and cannot be con
sidered as referring only to the strikes that would
take place in circumstances similar to those which
existed when the injunction was pronounced. The
affidavit evidence filed in support of the applica
tion shows clearly that at least some of the persons
mentioned in Schedule A to the notice of motion,
on the advice of the executive of their Association,
engaged in a strike by limiting their output. This,
they did advisedly, after having been warned that
their proposed course of conduct would constitute
a violation of the injunction. In those circum
stances, I do not see how their conduct can be said
to constitute a mere technical breach of the injunc
tion. True, the evidence discloses that the air
controllers explained their conduct by their con
cern for the safety of the public. However, that
explanation may or may not be true; it is impos
sible to say at this preliminary stage of the pro
ceedings. Moreover, assuming it to be true, it
would be relevant if the Court were called to assess
the penalty to be imposed on those found guilty of
contempt; it is entirely irrelevant at this stage of
the proceedings since the controllers' concern for
safety certainly did not excuse them from obeying
the injunction.
For those reasons, I would allow the appeal with
costs in this Court and in the Trial Division, I
would set aside the decision of first instance dis
missing the appellants' application and refer the
matter back to the Trial Division in order that it
be decided on the basis that show cause orders
must issue against all the persons mentioned in
Schedule A to the appellants' notice of motion
who, according to the affidavit evidence filed in
support of the motion, either refused to normally
perform their functions as air controllers or incited
air controllers to refuse to perform all their
functions.
HEALD J.: I agree.
URIE J.: I agree.
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.