Sunday, 18 October 2015

Airport Safety Trumps Workers’ Right to Bang the Drums of Protest

An airport is not an office building. While airports are a place of work for many, they carry with them their own set of safety issues and concerns. In cases where employees work at airports, how should the court balance those safety interests against the constitutional right of workers to organize?

That question was at the heart of a motion heard in Ottawa on October 13, 2015, concerning the long-standing argument between Unifor (on behalf of an association of taxi-cab drivers) and the Ottawa McDonald Cartier International Airport Authority ("OMCIAA").

In his reasons for decision, released as Ottawa MacDonald Cartier International Airport Authority v Madi, 2015 ONSC 6336, Ontario Superior Court Justice Robert Beaudoin held that the airport’s safety issues were paramount.

Facts

Getting to the airport is never fun. The task has become even more complicated in Ottawa as an ongoing dispute between the taxi drivers union, the taxi company, the airport, and the City has caused drivers, from time-to-time to cut off access to the airport.

In addition to occasionally blocking access, such protesters have apparently been loud. Such loudness has apparently also been an issue for the airport authority.

In response to the airport's concerns, on August 14, 2015, Justice Beaudoin granted an injunction against the Defendants, i.e Unifor et al, in which, among other things, His Honour ordered that:

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.

As explained by Justice Beaudoin in his more recent reasons for decision, the cause of the airport authority’s concern was essentially this: The Airport Authority has emphasized the peculiar security and safety responsibilities that are present at all times during its operations. At the original hearing, there was evidence that the noise levels were interfering with the Authority’s ability to communicate and impeding its emergency response capacity. This led to the restriction against amplified sound. 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 the Authority’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 the Authority’s employees and contractors.

In attempting to balance the interests of the two parties, Justice Beaudoin noted the following evidence:

This is not just another office building. The evidence of 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.

Decision

In deciding to restrict the union’s right to make noise, Justice Beaudoin wrote the following:

[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] 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

[18] My Order dated August 14, 2015 is varied as follows…

[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.

Commentary

Airports are funny places. They are where our loved ones come to us and they are where we go when we want to get away to some other place. In many ways airports are happy places; or at least they are a place of promise of happiness. At the same time however, most people hate airports. Airports are also incredibly serious places. At airports, security is paramount.

It is no surprise then that when allegations are made that a labour protest is interfering with airport security and operations, that such concerns will trump even legitimate labour rights.

What is more, as Justice Beaudoin’s comments about the “sad history” of the dispute demonstrate, this is not a protest in which the benefit of the doubt can be given.

Balancing the interests between unionized workers and everyone else is never easy. But, from time-to-time, lines must be drawn and sides chosen. In this case, knowing the Ottawa airport as one does, the decision appears to be correct.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

To subscribe to Labour Pains enter your email address:

Delivered by FeedBurner

--

As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



No comments:

Post a Comment