ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-65373
DATE: October 14, 2015
BETWEEN:
OTTAWA MACDONALD CARTIER INTERNATIONAL AIRPORT AUTHORITY
Plaintiff
(Responding Party)
– and –
ABED MADI, HASSAN KARAM, FARAN TALLA, AMRIKH SINGH, ROY NIOJA and HARRY GHADBAN on their own behalf and on behalf of THE MEMBERSHIP OF UNIFOR LOCAL 1688
Defendants
(Moving Parties)
Porter Heffernan/Amy Arcand, for the Plaintiff/Responding Party)
Sean McGee/Alison McEwen, for the Defendants/Moving Parties
HEARD: October 13, 2015
endorsement
Beaudoin J.
[1] The Defendants (also referred to as “Unifor”) bring this motion seeking to clarify or vary my Order dated August 14, 2015. On that date, I granted an injunction against the Defendants and at paragraph 10, I restrained the Defendants from restricting access to the Airport premises at any time.
[2] Paragraph 13 provided:
There shall be no electronic amplification devices used to generate noise, including but not limited to, car horns, air horns, megaphones, sirens, or other devices of a similar nature.
[3] There was a further injunction hearing on September 23, 2015 relating to events taking place on the Airport Parkway. It was apparent by that time that the Defendants had moved their blockade from the Airport premises to the City of Ottawa access roads leading to the Airport. The issue was the meaning of my Order that restrained the Defendants from restricting access to the Airport premises at any time. Prior to the hearing, Unifor and the City of Ottawa were able to reach an agreed resolution of the matters at issue. As a result, a motion by the Plaintiff (the Ottawa McDonald Cartier International Airport Authority (“OMCIAA”) seeking similar relief was adjourned.
[4] At the original injunction hearing on September 23, and again on the return of this motion, OMCIAA has emphasized the peculiar security and safety responsibilities that are present at all times during its operations. Paragraph 13 of my Order was an attempt to balance between the Defendants’ rights as picketers and the property rights of the Plaintiff. At that time, there was evidence that the noise levels were interfering with OMCIAA’s ability to communicate and impeding its emergency response capacity. This led to the restriction against amplified sound.
[5] Now there is clear evidence that members of the Defendant union have engaged in loud drumming activities that have, at times, interfered with many forms of communication used by OMCIAA’s security teams such as radios, cell phones and verbal communications. There is also evidence that the noise levels generated by the drumming present occupational health and safety concerns for OMCIAA’s employees and contractors.
[6] As a result, OMCIAA has issued trespass notices to a number of individuals. The issuance of those notices triggered this motion.
[7] In support of their motion, Unifor provided the affidavit of Harry Ghadban, its Eastern Ontario Director. He was cross-examined on that affidavit and he admitted that the statements he made at paragraph 26 were not truthful. He did not take the noise level readings as he had claimed. This admission seriously undermines the credibility of his other statements.
[8] It is clear from his evidence that Unifor felt the need to make noise to draw attention to their situation since its members have been restricted in their place of protest to the southern portion of the median that separates the passenger terminal building and the Airport parkade.
[9] It is also clear from the evidence that the union has not taken advantage of other forms of communication that are permitted by the existing injunction. Unifor members have vandalized city property in order to create noise making instruments. To be clear, this activity is not condoned by Unifor, but these incidents demonstrate Unifor’s inability to effectively monitor the situation.
[10] I heard evidence with respect to the applicable City of Ottawa bylaws as they relate to allowable noise levels. I am satisfied that it would be very difficult to enforce the provisions of those bylaws since the allowable decibel noise levels are far below the noise levels recorded at the Airport even during normal operations.
[11] I also had the benefit of the evidence of the allowable noise levels pursuant to the applicable federal and provincial Occupational Health and Safety Guidelines.
[12] While these are helpful, they do not address the particular security concerns that exist at the Airport. This is not just another office building. The evidence of James Armstrong, the Director of Security and Emergency Management at OMCIAA is that loud noises, demonstrations, and large gatherings of people within the vicinity of the Airport impair the Airport’s ability to meet its statutory and operational obligations. They distract security resources including both video surveillance and in-person live resources. In an emergency of any kind, announcements must be made and heard. That loud noises are permitted in the vicinity of the Airport creates a risk that they will be drowned out. These concerns are further detailed in Mr. Armstrong’s affidavit.
[13] As set out by the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, protesting, including picketing, by labour groups and trade unions is a fundamental freedom protected by section 2 of the Canadian Charter of Rights and Freedoms and freedom of expression is particularly critical in the labour context. The Supreme Court held that (secondary) picketing is generally lawful unless tortious or criminal conduct is involved. This wrongful action model best balances the interests at stake and provides a rational test for limiting picketing.
[14] In this case, there is clear evidence that the noise level created by the Defendants is creating a nuisance which interferes with the Airport’s operations and threatens the health and safety of OMCIAA staff and its contractors. This is more than a simple annoyance as Unifor suggests. Some of the picketers have themselves taken to wearing headphones to protect themselves from the sound of their own drumming. I am satisfied that the Defendants have created noise at levels far beyond the normal ambient levels that exist even in the busy environment of the Airport.
[15] The Defendants have offered to use non-metallic instruments in making any noise to call attention to their protest. They have offered a protocol with respect to setting the maximum noise levels and for the monitoring of the same. This proposal becomes problematic since any sudden increase in the noise levels could interfere with any immediate response to an emergency. The sad history of this labour dispute discloses that the Defendants have relied on any imprecise language in the August 14th Order to avoid any limitations imposed by the injunction to further their attempts to interfere with the OMCIAA’s operations. Clear language is required.
[16] In my view, the only practical and enforceable solution would be to relocate the protesters to the grassy area immediately in front of the parkade building. This would provide the picketers with increased visibility to all persons exiting the arrival area of the Airport and they can communicate their message without the need for any instruments of any kind. This avoids any need to monitor noise level; provides clarity for all concerned, and allows for relatively easy enforcement. Unifor’s request to be relocated to the center portion of the median presents too many risks given the history this dispute and this was rejected by me on August 14, 2015
[17] Accordingly, the trespass notices issued to Harry Ghadban, Michelle Arruda, Douglas Aitchison, Joshua Coles and Ron Gerard are to be withdrawn.
[18] My Order dated August 14, 2015 is varied as follows:
[19] Paragraph 4 should be replaced with the following language: Picketers shall be permitted on the grassy area of on the east side of the parkade building between the two entrances to the parkade more particularly identified by XXX on the attached sketch (Appendix A) of the Airport premises.
[20] Paragraph 13 shall now read: Unifor and its members, officers, and supporters will not make noise on the Airport premises using drums or improvised percussive devices or any other instruments or any noise amplification devices.
[21] The parties may provide their written submissions on costs as follows: The moving party within 10 days; the responding party, ten days thereafter.
Mr. Justice Robert N. Beaudoin
Released: October 14, 2015
COURT FILE NO.: 15-65373
DATE: October 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OTTAWA MACDONALD CARTIER INTERNATIONAL AIRPORT AUTHORITY
Plaintiff
(Responding Party)
– and –
ABED MADI, HASSAN KARAM, FARAN TALLA, AMRIKH SINGH, ROY NIOJA and HARRY GHADBAN on their own behalf and on behalf of THE MEMBERSHIP OF UNIFOR LOCAL 1688
Defendants
(Moving Parties)
endorsement
Beaudoin J.
Released: October 14, 2015