ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-65373
DATE: 20151117
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: By written submissions
costs endorsement
Beaudoin J.
[1] This labour dispute has been outstanding since August 2015, and I have already issued two injunctions in this matter.
[2] The Defendants, (“Unifor”), brought a motion seeking an order either that the picketers be permitted to use instruments to create noise up to a set maximum, or that they be moved closer to the arrivals door of the airport. The Defendants were not successful in obtaining the relief sought, although I did vacate trespass notices that had been issued by the Plaintiff, and I relocated the picketers to a more visible area.
[3] The Defendants argue that costs should be borne by the respective parties since the result of the motion was, at worst, mixed. They underline that the result could not have been obtained had they not brought the motion. Although there was a finding of credibility in respect of one of their affiants, the moving parties argue that this finding should not have a bearing on the outcome of the case to such an extent that it would justify a costs order against them.
[4] The Plaintiff, (“OMCIAA”), argues that it had to incur significant legal costs and that the result of the motion was more favourable to itself than to the Defendants. Moreover, the Plaintiff stresses that the Defendant, Harry Ghadban, admitted to lying in his affidavit filed in support of the motion. The Plaintiff seeks costs against the Moving Parties and against Mr. Ghadban personally.
[5] OMCIAA submits that my order recognized the legitimacy of its concerns about safety and security and the inappropriateness of the actions of Unifor’s members. It stresses its security obligations as being of critical importance in responding to the motion. In view of the unique evidentiary requirements involved in injunction proceedings, OMCIAA was required to offer first-hand evidence in response to the motion from nine individuals with regard to the impact of the Defendants’ actions.
[6] Upon receipt of the materials in support of the motion, OMCIAA determined that the affidavit of Harry Ghadban contained false statements in respect of material facts. Mr. Ghadban was invited to reconsider his affidavit and he refused. As a result, the Plaintiff was forced to cross-examine Mr. Ghadban on his affidavit. He continued to affirm the truthfulness of the statement under oath until confronted with video evidence which proved that the statements were false.
[7] The Plaintiff argues that Mr. Ghadban’s false statement constitutes contempt of this Court’s processes and may bring the administration of justice into disrepute if not appropriately addressed.
[8] After receiving the court’s endorsement, the Defendants refused to consent to a draft order giving effect to my intentions. OMCIAA had to bring an appointment to settle the order which confirmed that its understanding of my endorsement was correct.
[9] I found that Defendants sought to rely on any ambiguities in my endorsement in order to avoid any limitations imposed by the injunction that might interfere with OMCIAA’s operations. The Plaintiff had to incur additional costs in order to settle the order.
[10] While the Plaintiff argues that it would have reasonably sought an award of costs on a substantial indemnity basis, it seeks costs only on a partial indemnity basis in the amount of $15,850 for fees plus HST, and $1790.78 in disbursements. The Plaintiff seeks a further $1000 for the costs of preparing these submissions and a further $1000 for its additional costs for its attendance on October 22, 2015 to settle the order. They also seek an order that Mr. Ghadban be personally liable for a portion of these costs.
Conclusion
[11] There was an element of ambiguity in the original injunction which permitted the Defendants to make noise support of their picketing activities at the airport. The only restriction was against amplified sound. Regrettably, union members took advantage of that ambiguity by creating excessive noise which I found to be a nuisance. Specifically, some union members had brought empty 45 gallon drums to the site and other metal instruments to create noise. Some picketers destroyed metal railings that were used to contain and define the picketing area, and used the rods from those railings to pound their manufactured drums. The noise reached an unacceptable level and interfered with the airport authority’s ability to communicate and carry out its security obligations. For these reasons, the OMCIAA had issued trespass notices against a number of named officers of Unifor. The Defendants had not taken advantage of the other opportunities that have been given to them pursuant to the injunction in order to communicate their position to users of the Ottawa airport.
[12] While it may have been appropriate for the Defendants to seek some clarity by bringing the motion, nothing excuses Mr. Ghadban from providing false evidence to the court; particularly after the Plaintiff gave him an opportunity to reconsider his affidavit.
[13] The Defendant’s conduct cannot be excused or condoned. While this may have been an appropriate case to award a portion of the costs against Mr. Ghadban personally, I decline to do so in this instance. Unifor will have to bear the consequences of the actions of one of its representatives.
[14] My intention in relocating picketers to a more visible location was clear. Namely, that the area containing 20 picketers would simply be moved to the grassy area opposite the departures exits. Once again, the Defendants maintained that there was an ambiguity, that there were no longer any limits on the number of picketers that would be allowed nor was there any contained area. As a result, the Plaintiff had to seek an appointment to settle the order.
[15] For these reasons, the Plaintiff is entitled to its costs of the motion which I assess in the amount of $10,000 plus HST and disbursements as claimed. OMCIAA is further entitled to the amount of $1000 for its costs on the appearance to settle the order. These amounts are payable forthwith.
Mr. Justice Robert N. Beaudoin
Released: November 17, 2015
COURT FILE NO.: 15-65373
DATE: 20151117
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)
costs endorsement
Beaudoin J.
Released: November 17, 2015