C.A. No. 106641
NOVA SCOTIA COURT OF APPEAL
Cite as: S.R. McKay & Sons Ltd. v. Unnamed Persons, 1994 NSCA 140
Hallett, Roscoe and Pugsley, JJ.A.
BETWEEN:
S.R. McKAY & SONS LIMITED ) Robert G. Grant
) for the Appellant
Appellant )
)
- and - )
) Gary J. Corsano and
) Gerald B. MacDonald
) for the Respondents
UNNAMED PERSONS )
)
Respondents )
) Reinhold Endres and
- and - ) Louise Walsh Poirier
)
THE ATTORNEY GENERAL OF ) Appeal Heard:
NOVA SCOTIA ) July 15, 1994
)
Intervenor )
) Judgment Delivered:
) July 15, 1994
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THE COURT: Appeal allowed; injunction granted per oral reasons for judgment of Hallett, J.A.; Roscoe and Pugsley, JJ.A. concurring.
HALLETT, J.A.
This is an appeal from a decision of a judge of the Supreme Court of Nova Scotia refusing the appellant's application for an interim injunction. The facts are set forth in the decision and need not be repeated in detail except to say that the learned trial judge found that approximately fifty protestors prevented employees of the appellant and a sub-contractor from gaining access to a construction site. He made findings that the protestors intimidated and threatened these employees. The appellant had entered into a contact with the Province of Nova Scotia to build a bridge; it was to be completed by November 30th, 1994. The protestors' tactics have held up construction for approximately a month. The respondents were unemployed unionized construction workers who were protesting the use of non union personnel by the appellant, a non unionized company. The learned judge found the appellant acted "beyond reproach". He also found:
It is clear that the Applicants' employees would not have been permitted access without substantial risk to their personal safety.
The trial judge found there was a substantial issue to be tried between the parties and that the appellant could not likely recover a judgment from the respondents for any economic loss that might be suffered by the appellant by reason of the delays caused by the protest. The trial judge found that the balance of convenience so-called favoured the granting of the injunction. Despite these findings he held that the situation was one in which the RCMP ought to have acted as they are required to maintain public order. He was of the opinion that the policy of the RCMP that it will not intervene in a labour/management dispute without a court order is of questionable validity particularly where the parties are not contractually linked as in this case. He went on to state:
It may be good public relations for the police to cloak themselves with a court order, but what are the long-term implications of the policy? There are several.
First, it tells those who wish to defy the law to achieve their immediate goals, that they do not have to worry about the police. A lawbreaker is more likely to desist when he/she faces probable immediate arrest and detention. These situations are invariably well publicized when police refuse to act -- the implicit message is that it is okay to break the law.
Secondly, the rights of the party trying to go about his/her lawful business are suspended. The unfairness of that situation should be readily apparent. The innocent party may suffer severe or irreparable economic loss or even physical injury simply because he attempts to do that which is perfectly legitimate. That is a totally unacceptable state of affairs in a civilized community.
I am sure that the refusal of the RCMP to act was not perceived by the Applicant as an expression of police neutralizing. By refusing to act, the RCMP effectively sided with the protestors. (The last two sentences were omitted from the in-court oral.)
Third, unnecessary resort to the injunction jeopardizes the perception that the Court is impartial. Disobedience of an injunction normally results in a proceeding for contempt of court.
In our opinion the learned judge erred in refusing to grant the injunction; the error is apparent in the third reason he stated for refusing. It was clearly necessary for the appellant to resort to the court to seek an injunction as the RCMP was not prepared to "disrupt the protest." The appellant was entitled to look to the courts for relief which should have been granted given the learned judge's findings of fact. It is of no comfort to the appellant that the learned judge was of the opinion that the RCMP ought to have acted.
The learned judge was concerned that the court "be dragged into the arena" and possibly be perceived as less than impartial. If that is the perception so be it; people are entitled to hold unreasonable perceptions if they choose. The courts are constantly dragged into the arena so to speak whether the courts like it or not. In our opinion the granting of an injunction in circumstances such as existed in this case does not "compromise the courts' impartiality" so long as the law to which the findings of fact are applied justify the granting of the civil relief sought. In this case, based on the learned judge's findings of fact, the granting of an injunction to prevent these unnamed persons from interfering with the appellant's right to access the construction sites is just and convenient. The refusal to grant the injunction has a resulted in a patent injustice to the appellant. The appeal ought to be allowed as to hold otherwise would be to turn the court's back on the lawful interests of the appellant.
We will grant the injunction in the form presented by counsel as amended by the Court and attached to this decision. Costs of the initial hearing and this appeal shall be in the cause.
Hallett, J.A.
Concurred in:
Roscoe, J.A.
Pugsley, J.A.
C.A. No. 106641
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
S.R. McKAY & SONS LIMITED
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
UNNAMED PERSONS )
) HALLETT, J.A.
)
Respondent )
)
- and - )
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THE ATTORNEY GENERAL )
OF NOVA SCOTIA )
)
Intervenor )