Date: 20020610
Docket: T-425-02
Neutral Citation: 2002 FCT 656
BETWEEN:
TELUS MOBILITY
(the "Employer")
and
TELECOMMUNICATIONS WORKERS UNION
(the "Union")
REASONS FOR ORDER
HARGRAVE P.
Since at least 1998 there has been an ongoing labour dispute between Telus Mobility and the Telecommunications Workers Union (the "Union") involving a new system whereby, instead of union members activating new cell phones, that is done electronically with the cell phone sales dealer communicating directly with the Telus Mobility computer system to activate the cell phone without the assistance of union members.
The present proceeding arises out of an 11 March 2002 filing, by the Union, with the Federal Court, pursuant to section 66(1) of the Canada Labour Code, of an 8 February 2002 formal order of an arbitrator, Stephen Kelleher, Q.C. Mr. Kelleher had made a final and binding decision, on 26 June 2001, that Telus Mobility as an employer was in violation of a labour agreement, specifically a letter agreement of 4 December 1992. A challenge as to the jurisdiction of the arbitrator intervened. The formal order issued on 8 February 2002 sets out that:
I HEREBY ORDER THAT:
The Employer is in violation of the Letter of Agreement between the Union and the Employer dated December 4, 1992. I direct that the violation of the Letter of Agreement dated December 4, 1992 by the Employer come to an end; that Remote Dealer Activation (RDA) and Interactive Voice Response (IVR) not be used in such a way that excludes bargaining unit employees; and that TELUS Mobility computer system remain completely under the control of TELUS Mobility and operated only by TELUS Mobility employees.
This is a clear order. It is also a proper order in that Mr. Kelleher does not dictate to Telus Mobility how to run or reorganize its business, for there may be any number of acceptable solutions by which to rectify the violation.
The filing of the arbitrator's order with the Federal Court, pursuant to section 66 of the Canada Labour Code, gives such an order the same force and effect as if it were a judgment of this Court.
The Union now says that Telus Mobility is in breach of the order. The pertinent date of the breach, for the purpose of this motion, which is to move toward a contempt hearing, is not the 11 March 2002 filing date of the order, but rather the bringing of the filed order to the attention of Telus Mobility and those individuals named by the Union in its contempt motion, for personal knowledge of an order is a precondition to a finding of contempt: see for example Bhatnager v. Canada [1990] 2 S.C.R. 217 at 224 - 225.
The 11 March 2002 order was served on counsel for Telus Mobility on 25 March 2002. Service or notice was given to various Officers and Directors of Telus Mobility between 12 and 26 April 2002, either personally, or by posting it to their doors, or in the case of George Cope, a director of Telus Communications Inc. and President and Chief Executive Officer of Telus Mobility, by leaving a copy of it with the General Council for Telus Mobility on 26 April 2002. Here I would note that because of the serious and indeed quasi-criminal dimension of contempt of court, knowledge of the order in question has always been carefully tested. Either personal service of the order, or actual personal knowledge, is a precondition to contempt, with the proviso that knowledge may, on occasion, be inferred from advice to a relevant solicitor: see Bhatnager, supra, at 224 through 226 and particularly the passage from Baxter Travenol Laboratories of Canada Ltd. v. Cutter (Canada) Ltd. [1983] 2 S.C.R. 388 at 396 - 97, quoted in Bhatnager at page 226, in which Mr. Justice Dickson refers to knowledge inferred from the fact that the relevant solicitor was informed.
I am satisfied, both from the direct steps which the Union has taken to bring the order to the attention of those involved and from a 12 April 2002 internal memo to both Telus Communications Inc. and Telus Mobility employees in British Columbia and Alberta that Telus Communications Inc., Telus Mobility and the seven Officers and Directors who are now involved, became appropriately aware of the filed order at least as early as 12 April 2002 and not later than 26 April 2002. This brings us to the present motion.
While the Federal Court may have an implied, essential or necessary power to deal with contempt, the Federal Court Rules set out the contempt procedure in Rules 466 through 472. These Rules, subject to Rule 468 which does not apply here, contemplate a two-step procedure. The first step, being dealt with now, is a hearing pursuant to Rule 467 which, if the party alleging contempt establishes a prima facie case, leaves the judge or prothonotary no option but to issue an order requiring the person alleged to be in contempt to appear before a judge at a stipulated time and place to hear proof of the act of contempt and to be prepared to answer. Here I will touch upon two procedural matters.
First, while the motion for a show cause order may, under Rule 467(2), be made ex parte, Madam Justice Reed observed, in Nguyen v. Canada (1997) 122 F.T.R. 282 at 290, the giving of notice is to be commended. This is particularly so in that a contempt proceeding is a most serious and extreme procedure and indeed a quasi-criminal matter. Where it will cause no prejudice to the party seeking the show cause order, notice ought to be given. In this instance I directed that notice of this motion be given to counsel for Telus Mobility.
Second, counsel for the Union touched upon but did not press the issue of whether a prothonotary may issue a show cause order. Counsel may have in mind Nintendo of America Inc. v. 798824 Ontario Inc. (1995) 94 F.T.R. 138, which was decided under the old Rules which, depending upon whether one read the operative portion of the Rule conjunctively or disjunctively would, in the first instance, prevent a prothonotary from issuing a show cause order. The 1998 Rules no longer make any reference, in Rule 467, to the involvement of a judge in the issuance of a show cause hearing. Moreover, Rule 50(1)(a) makes it doubly clear that, the right to issue a show cause order not being reserved to a judge in Rule 467, a prothonotary may issue a show cause order. I now turn to some applicable case law dealing with the merits of the motion itself.
In order to obtain a show cause order the applicant must demonstrate a prima facie case of wilful and contumacious contempt of the order in question, that being the standard set by Mr. Justice Muldoon in Imperial Chemical Industries v. Apotex Inc. (1989) 26 F.T.R. 47 at 53. More recently Mr. Justice Pinard, in Chic Optic Inc. v. Hakim Optical Laboratory Ltd. (2001) 13 C.P.R. (4th) 283, at 286, relying upon Imperial Chemical and Frank v. Bottle (1994) 68 F.T.R. 242, in which Associate Chief Justice Jerome issued a show cause order on the basis of wilful and contumacious conduct, set the standard as being a wilful refusal to comply with a court order. In effect the test is that of prima facie wilful disobedience.
A point of contention on the present motion is the part which mens rea plays in contempt, for counsel for Telus Mobility submits there is nothing in the material, since the date of knowledge of the filed order, to show a guilty mind, but rather there is some indication of an attempt to comply. Here I would note that while the test for contempt embodies wilfulness, that element does not automatically equate to a need to establish mens rea. The wilfulness aspect is present only to exclude casual or accidental and unintentional acts of disobedience: see Glazer v. Union Contractors Ltd. (1961) 25 D.L.R. (2d) 653 at 658 and 676, affirmed (1960) 34 W.W.R. 193 (B.C.C.A.). Moreover, attempted compliance and the presence or absence of a guilty mind might better go to the severity of any penalty. However counsel for Telus Mobility goes on to refer Lyons Partnership L.P. v. MacGregor (2001) 186 F.T.R. 241 at 245 in Mr. Justice Lemieux refers to the constituent elements of contempt as including ". . . the required degree of mens rea.". In Lyons Mr. Justice Lemieux does not go on to refer to mens rea. It may well be that Mr. Justice Lemieux had in mind not civil contempt, but rather criminal contempt, in which both actus reus and mens rea must be present: see for example the Fourth Edition of Halsbury, Volume 9(1) at paragraph 405. More specifically, in the case of civil contempt, not withstanding that it has a quasi-criminal aspect to it, mens rea is not an element that must be proven. This was set out by Mr. Justice Teitelbaum in Cartier Inc. v. Cartier Men's Shops Ltd. (1988) 20 F.T.R. 15 at 30 - 31:
[95] Although the evidence required to prove a contempt of court is equivalent to a criminal case and proof must be beyond a reasonable doubt, intention "mens rea", is not an element that must be proven. In the case of Baxter Travenol Laboratories v. Cutter (Canada) Ltd. (1985),
1 C.P.R. (3d) 433, at 440, Mr. Justice Dubé states:
"Barrie and Lowe's Law of Contempt, (2nd Ed. 1983) considers the requirement for mens rea in chapter 13 titled "Civil Contempt". The answer is clearly ‘that it is not necessary to show that the defendant is intentionally contumacious or that he intends to interfere with the administration of justice.'"
Here is a clear statement, based upon the substantial authorities of Barrie and Lowe on Contempt and upon Baxter Travenol, that while the evidence to prove contempt in a civil context is equivalent to that in a criminal case, mens rea is not an element that must be proven. Mr. Justice Teitelbaum in Cartier was upheld by the Court of Appeal, without comment upon that point, (1990) 111 N.R. 152. However, when the Court of Appeal dealt with Mr. Justice Dubé's decision in Baxter Travenol, (1987) 14 C.P.R. (3d) 449, it specifically referred to the passage quoted by Mr. Justice Teitelbaum in Cartier from the decision of Mr. Justice Dubé, at trial in Baxter Travenol, noting that mens rea was not necessary in the case of civil contempt. The Court of Appeal went on to consider, as an aspect of mens rea, the lack of contumacity, which was discussed at length by Mr. Justice Dubé at the trial level and by Barrie and Lowe on Contempt in dealing with mens rea, noting that non-contumacious conduct can be a mitigating factor when it comes to a penalty: see the Court of Appeal decision at pages 455 and 456. In summary, the present matter involves civil contempt and therefore mens rea is not a factor.
Similarly, counsel for Telus Mobility makes too much of the supposed absence in the present instance of any affront to the dignity of the Court. Certainly, in Deprenyl Research Ltd. v. Canguard Health Technologies Inc. (1992) 41 C.P.R. (3d) 368, referred to by counsel for Telus Mobility, Madam Justice Reed, in denying the contempt motion, commented that a press release neither engaged the order in question nor impaired the dignity and authority of the Court. However, impairing the dignity and authority of the Court is only one of a number of alternate factors bearing on contempt. It is certainly not an essential element. This has been made clear in a number of instances, perhaps most eloquently by Lord Justice Salmon in Morris v. Crown Officer [1970] 2 Q.B. 114 (C.A.) at page 129:
The archaic description of these proceedings as "contempt of court" is in my view unfortunate and misleading. It suggests that they are designed to buttress the dignity of the judges and to protect them from insult. Nothing could be further from the truth. No such protection is needed. The sole purpose of proceedings for contempt is to give our courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented: . . ."
Contempt of court is a power which exists to ensure that justice be done both as to litigants and as to the public. While contempt may involve an attack on the Court, that is just one of many possible forms. In the present instance the lack of impairment of dignity of the Court is not a factor.
Of more relevance is the law relating to the individuals against whom contempt orders are sought. In examining this aspect of the law I must keep in mind that the order of the arbitrator, now filed with the Court, is against Telus Mobility. The Federal Court of Appeal in C.U.P.W. v. Canada Post Corporation [1987] 3 F.C. 654 teaches us that one cannot make a broad claim of contempt against directors, but rather must establish some personal involvement in the dispute: see pages 667 - 668.
Basic is the proposition that where a company is found to be in contempt, aiding abetting officers and directors may also be found in contempt: see for example Dimatt Investments Inc. v. Presidio Clothing Inc. (1993) 48 C.P.R. (3d) 46 at 47, 49 and 50 through 52, a decision recently followed by Mr. Justice Dubé in Manufacturers Life Insurance Co. v. Guaranteed Estate Bond Corporation, an unreported 8 February 2000 decision. Another aspect of this proposition is that directors and officers may not be punished for the contempt of their corporation, where the conduct giving rise to the contempt occurred not only without their fault, but where they did everything possible to ensure that the order at issue was respected: see Long Shong Pictures (H.K.) Ltd. v. NTC Entertainment Ltd. (2000) 6 C.P.R. (4th) 509 (F.C.T.D.) at 515 and following. In Long Shong Pictures the order was against the defendant company, however the plaintiff relied upon the fact that the individual against who a finding of contempt was sought was the sole Ontario director and officer of the defendant company. Mr. Justice O'Keefe relied upon a passage from Canada Metal Co. Ltd. v. Canadian Broadcasting Corporation (No. 2) (1975) 48 D.L.R. (3d) 641 (Ont. H.C.) at 660 - 661 for the proposition that, while officers and directors may be committed for contempt when they have taken a passive role or perhaps when a presumption arises that an officer or director did or failed to do something giving rise to the breach, generally it must be demonstrated that the officer or director aided and abetted the contempt:
The applicants have submitted that where a corporation violates an injunction, the directors and officers of the corporation can be held in contempt of Court and can be attached or otherwise punished for the contempt, without any proof that the particular directors or officers proceeded against did or failed to do anything that was responsible for the said violation. I am unable to agree with that submission. I am not saying that before an officer or director can be committed for a contempt committed by the corporation that it must be shown that the officer aided or abetted the contempt. It may well be that the director or officer could be held in contempt, even though his role in the matter was purely passive: see Biba Ltd. v. Stratford Investments Ltd., [1972] 3 All E.R. 1041, and Glazer v. Union Contractors Ltd. and Thornton (1961), 129 C.C.C. 150, 26 D.L.R. (2d) 349. Further, the violation of the injunction may give rise in some cases to a presumption that the director or officer did or failed to do something that caused the breach, and may put that officer or director on his defence. Where, however, it is clear on the evidence that the director or officer did all he could to ensure that the injunction would be abided by and, where the breach occurred without fault on the part of the director or officer, then I am unable to see how that director or officer can be punished for contempt of Court. [Canada Metal at 660 - 661, varied as to a different aspect by the Ontario Court of Appeal (1976) 59 D.L.R. (4th) 430]
The concept of the passive director or officer, or of the director or officer who failed to do something which gave rise to the breach, was a key point in the ongoing saga of Glazer v. Union Contractors Ltd. (1961) 26 D.L.R. (2d) 349, a decision of the B.C. Court of Appeal. There Mr. Justice O'Halloran rejected the concept that because a director had done nothing, he did not wilfully disobey the order of the court. Rather, the director ought to have done whatever he could in order to comply with the court order in question: see pages 352 and 353.
The gist of the Canada Metal, the Long Shong Pictures and the Glazer cases is that individuals, as officers and directors of a company which has been held in contempt, may not be held in contempt merely because they hold such positions, but rather there must be either an aiding and abetting, a standing idly by, or a failure to take steps which failure was causative of the breach. Conversely, where an officer or a director does what she or he can to avoid the breach, yet the breach occurred without fault on the part of the officer or director, there can be no individual liability for contempt.
There are a number of entities against which the Union seeks a show cause order for contempt and to which to apply the above general propositions. The entities are Telus Mobility, Telus Communications Inc. and the seven officers and directors.
Telus Mobility
The Union's case against Telus Mobility is that, in the face of the order determining a violation of their labour agreement, by reason of the automated cell phone validation system, Telus Mobility has to date failed to rectify the problem. The Union's position is that while there may be a complex long term solution, perhaps involving the creation of a buffer in the automated system, a solution which Telus Mobility says it may be able to install as soon as early July, there is a simple, short term and immediate means of compliance. Here the Union refers to a memorandum circulated by Telus Mobility on 28 February 2002 to all of its cell phone dealers. The memorandum sets out three options for validation of cell phones: first, a Web connection; second, an activations voice menu system; and third, a call to a union member at Telus Mobility. The memo suggests the use of the Web. The Union points out that all that is needed in order that Telus Mobility do its immediate best to comply would be a direction to dealers to telephone a union activations representative.
Telus Mobility agrees that the present system which it uses to activate cell phones cuts out union employees. However it submits that there is no prima facie case for contempt, relying upon various propositions. I have already shown the failures, at law, in the submissions of Telus Mobility as to both mens rea and the lack of impingement on the dignity of the Court. As I pointed out the order is not vague, but rather as specific as it can be, without telling Telus Mobility what system it ought to use or how to organize its business.
Telus Mobility goes on to submit that there were negotiations to try to solve the problem. Those negotiations seem to have come to an end by 25 March 2002. At best those negotiations would estop the Union from claiming contempt going back before that date.
Telus Mobility urges that they are in the process of compliance. While that is not an answer to contempt, it may well go to mitigation of any penalty.
Telus Mobility says that the present use of the automated system is not an easy one to correct merely as to activating cell phones, for the system has other aspects, but requires that a buffer be designed and installed. They are working on the problem and thus are in the process of compliance. Here Telus Mobility are attempting to comply and thus say that there is no breach. I do not follow this argument for not only is there a prima facie breach at this point, but also Telus Mobility has failed to take the immediate step of directing its dealers to call a union activations representative, rather than to use the Web or the activations voice menu system.
While the Union will not necessarily succeed at the second stage of this proceeding, when it will face the burden of proof of contempt to a criminal law standard, the Union has certainly, at this first stage, demonstrated a prima facie case for contempt against Telus Mobility.
Telus Communications Inc.
The Union's position, that Telus Communications Inc., which is neither a party to this litigation nor referred to in the order of Mr. Kelleher, is in contempt, is based on the assertion that Telus Mobility is a subsidiary of Telus Communications Inc. This is the affidavit evidence of Hope Cumming, business agent for the Union:
2. TELUS Mobility is a division of TELUS Communications Inc. (the "Company") and is party to a collective agreement with the Telecommunications Workers Union (the "TWU").
This position is bolstered by the fact that a Canadian Industrial Relations Board decision of 19 December 2001 refers, at page 15, to Telus Mobility as a division of Telus Communications Inc., there in the context of determining a bargaining unit. I do not place any weight on an interlock of boards between Telus Communications Inc. and Telus Mobility, specifically that of George Cope, an Officer of Telus Communications Inc. and the President and Chief Executive Officer of Telus Mobility.
To the contrary, counsel for Telus Communications Inc. submits that Telus Mobility is the name under which Tele-Mobile Inc. operates and indeed that Telus Mobility is a trademark for Tele-Mobile Inc. Tele-Mobile Inc. is said to be the owner of a Canada-wide cellular telephone service operation. Here counsel for Telus Communications Inc. refers to the 21 May 2002 B.C. Supreme Court decision of Mr. Justice Paris in Tele-Mobile Inc. v. Telecommunications Workers Union, Docket L013351, Vancouver Registry. In that decision Mr. Justice Paris sets out that Tele-Mobile Inc. owns the cellular telephone system. However that decision does not establish the relationship of Telus Mobility to anyone.
Ms. Cumming has not been tested on her affidavit, for there is no cross-examination on affidavits at this point, even when notice of an otherwise ex parte application for a show cause order has been given: see Imperial Chemical (supra) at page 48. Therefore it may be that the Union will be unable to establish, when it brings to bear all of its evidence at the second stage of this proceeding, that Telus Mobility is a subsidiary of Telus Communications Inc., however the Union has established a prima facie case for the connection of the unincorporated Telus Mobility with Telus Communications Inc. In coming to this conclusion I have taken a prima facie case to mean one for which there is sufficient evidence that, in the absence of adequate contrary evidence, it is taken as proven.
In this instance part of the Union's prima facie case must also establish that there is in fact a prima facie case for contempt against Telus Communications Inc., the parent of the unincorporated subsidiary, Telus Mobility. As I have found, there is a prima facie case against Telus Mobility. Telus Mobility has its own executive: there is no evidence that it is hampered or supervised in the making of day-to-day decisions. I therefore proceed on the basis that Telus Communications Inc., being aware of the nature of the order, may not be punished for contempt committed by the subsidiary, where the conduct of that subsidiary, Telus Mobility, occurred without the fault of Telus Communications Inc. and with Telus Communications Inc. in turn doing everything reasonably to be expected and possible, given the relationship between Telus Mobility and Telus Communications Inc., to ensure the order was respected. The Union either served or brought the order to the attention of Messrs. Canfield, Entwistle, Harris and Triffo, all of whom are Directors of Telus Communications Inc. The Union has established that George Cope, President and Chief Executive Officer of Telus Mobility, is a director of Telus Communications Inc. and that Robert McFarlane appears on both the company search list of Officer and Directors of Telus Communications Inc. and on the organizational chart for Telus Mobility: both of these individuals were aware of the order. The Union has also produced an internal memo of 12 April 2002, going to all Telus and Telus Mobility employees. The reference to Telus refers to Telus Communications Inc., taking this abbreviation as common knowledge from the form of telephone bill issued to subscribers in British Columbia. That memo went to all employees in British Columbia and Alberta. The memo indicates that Telus Mobility was aware not only of the order, the effect of the order and the nature of the default, but also that the Union had stated that it would file charges of contempt. The memo goes on to refer to negotiations with the Union (although, despite an ongoing and somewhat acrimonious exchange of correspondence, negotiations had been abandoned by about 25 March 2002), to a pending judicial review of the order (which was decided against Telus Mobility) and to an intention to obtain a stay (which was never applied for). Finally, there is a paragraph in the memo indicating that Telus Mobility has been actively implementing the order. Telus Communications Inc., through its personnel, would be aware of all of this. However, such awareness does not necessarily mean contempt on the part of Telus Communications Inc.
Taking into consideration the evidence of the Union, the fact that Telus Mobility has directing minds of its own and that the labour agreement and order are between Telus Mobility and the Union, I do not find that the Union has established prima facie fault on the part of Telus Communications Inc., or that Telus Communications Inc. failed to do something which was possible and reasonable to avoid the default for, after all, Telus Communications Inc., as a parent, has every expectation that its subsidiary, Telus Mobility, would deal properly with its own day-to-day operating matters. In summary, there is not a prima facie case of contempt against Telus Communications Inc. I now turn to the position of the individuals.
Show Cause Order Against the Named Individuals
As I have already pointed out, the Canada Post Corporation, Long Shong Pictures, Canada Metal and Glazer decisions establish that merely being an officer or director of a company which is in contempt does not attract a finding of prima facie contempt. Rather, there must be an aiding and abetting, a standing idly by, or a failure to act, where it is possible to do so, so as to avoid the contempt.
Among the named individuals, against whom the Union seeks a show cause order for contempt, are Messrs. Entwistle, Butler, Triffo, Harris and Canfield. Those individuals are Directors of Telus Communications Inc., but are not said to have any employment with or responsibility within Telus Mobility. There is no prima facie case against them for, even if they did nothing they, as merely Directors and Officers of the parent company, had no responsibility for or authority over the day-to-day operation of Telus Mobility and surely could rely upon Telus Mobility executives to do what was proper.
The position of Messrs. Cope and Wells is different from that of the five Telus Communications Inc. directors. Mr. Cope is the President and Chief Executive Officer of Telus Mobility and Mr. Wells an Executive Vice-President of Telus Mobility. From the material Mr. Wells appears to have had day-to-day conduct of this dispute with the Union and authority as to compliance with the order. Mr. Wells also advised the dealers, by memo of 28 February 2002, to use a Web connection to activate new cell phones: this occurred before Mr. Kelleher's order was filed with the Court and thus is not directly relevant to the contempt, but it does illustrate that Mr. Wells had the ability to direct use of the Web, cutting out union members and breaking the arbitrator's order, by directing dealers away from using union members to activate new cell phones. This shows that Mr. Wells also had the ability to direct dealers to call an "activation representative", a union member, to activate cell phones: the Union submits all that needed to be done to comply with the order as filed with the Court was to issue a memo to dealers to that effect, a quick and easy method of compliance. The submission to the contrary is that the Union wishes to take a retrograde step, but that is something which was for Mr. Kelleher to consider when he construed the labour agreement. Telus Mobility submits that they are working toward compliance: that is a plea which goes to mitigation of any penalty, not to undercut a prima facie case of contempt.
Mr. Wells did not do all that he might reasonably have done either initially to avoid the breach or subsequently to rectify the breach by means of a memo to dealers immediately that Mr. Kelleher's order was filed with the Court. This does not necessarily lead to a conclusion that Mr. Wells actively aided and abetting Telus Mobility, but it certainly establishes a prima facie case for contempt within the principles referred to in Long Shong Pictures (supra) and Canada Metal Co. (supra), and idle standing by and a failing to act in a reasonable way, in an area in which he had de facto authority, which lead to the breach. There is a prima facie case for contempt against Mr. Wells.
As I noted earlier, the courts have resisted the idea that directors and officers are automatically in contempt when their company violates an order. However the Union goes farther: as I understand it the Union submits that because Mr. Cope stood by and did nothing to prevent or rectify the breach, a show cause order ought to issue against him. Certainly Mr. Cope was the President and Chief Executive Officer of Telus, but to say, without more, that because he did nothing ought to result in a show cause order against him goes too far. Not only is this akin to saying that an officer or a director automatically shares his or her company's contempt, but also, the Union fails to establish what Mr. Cope might have done in exercise of the role that he played in Telus Mobility. This concept of an action, or lack of an action, arising out of the usual or de facto role played by an officer or a director in his or her company, was central in Mr. Justice O'Halloran's decision in Glazer (supra). There is nothing in the evidence of the Union which establishes the role, if any, played in the present instance by Mr. Cope. I can find no indication in the Union's evidence of any aiding and abetting of Mr. Cope. The Union has not established a prima facie case that a show cause order ought to issue against Mr. Cope.
CONCLUSION
The standard which must be established in order to obtain a show cause order, leading to a hearing to deal with the merits of a claim of contempt, that of a prima facie case, is not a high standard. Neither ought a show cause order be easily given, for to have to defend against a claim of contempt is a very serious matter which may have ramifications far beyond any penalty imposed by the Court. Having said this I can also sympathize with the frustration of the Union, which has an order, but nothing to show for it.
The Union has established prima facie cases against Telus Mobility and David Wells, but not against Telus Communications Inc. or the other named officers and directors.
Costs will be in the cause. However, on this motion for a show cause order there will be no costs for or against any of those who became involved, but are not parties.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
10 June 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-425-02
STYLE OF CAUSE: Telus Mobility v. Telecommunications Workers Union
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 3, 2002
REASONS FOR ORDER: HARGRAVE P.
DATED: June 10, 2002
APPEARANCES:
Mr. Israel Chafetz
FOR TELUS MOBILITY
Mr. Donald Richards
FOR TELUS COMMUNICATIONS INC.
Mr. Patrick Lewis
FOR INDIVIDUALS MESSRS. BUTTLER & TRIFFO
Mr. Morley Shorrt
FOR TELECOMMUNICATIONS WORKERS UNION
SOLICITORS OF RECORD:
Taylor Jordan Chafetz
Vancouver, British Columbia
FOR TELUS MOBILITY (the "Employer")
Farris, Vaughan, Wills & Murphy
Vancouver, British Columbia
FOR TELUS COMMUNICATIONS INC.
Sugden, McFee & Roos
Vancouver, British Columbia
FOR INDIVIDUALS MESSRS. BUTTLER & TRIFFO
Shortt, Moore & Arsenault
Vancouver, British Columbia
FOR TELECOMMUNICATIONS WORKERS UNION (the "Union")