T-6041-79
Hugh Wagner on his own behalf and on behalf of
certain members of Grain Services Union (C.L.C.)
and Grain Services Union (C.L.C.) (Plaintiffs)
v.
Manitoba Pool Elevators Ltd. (Defendant)
Trial Division, Grant D.J. — Winnipeg, December
20, 1979 and February 23, 1980.
Jurisdiction — Labour relations — Prerogative writs —
Injunction — Defendant unilaterally changed the status of
several members of the plaintiff Union to management, thus
removing them from the bargaining unit — Plaintiffs filed a
grievance with the defendant, which was rejected — Plaintiffs
commenced proceedings for relief before the Canada Labour
Relations Board, as well as an application in this Court for
interim injunctions — Collective agreement provided for arbi
tration in the event of a dispute over the interpretation of the
agreement —, Whether this Court has jurisdiction to hear the
application — Application dismissed for want of jurisdiction
— Canada Labour Code, R.S.C. 1970, c. L-1, as amended by
S.C. 1972, c. 18, s. 155 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 23.
Motion for interim injunctions restraining the defendant
from continuing to effect technological changes and unilateral
changes in the terms and conditions of employment of certain
members of the plaintiff Union pending the outcome of various
proceedings before the Canada Labour Relations Board. The
defendant changed the designation of fifteen larger country
elevators to service centres. As a result of this reorganization,
each service centre would have a manager who would be
employed under a formal contract with the defendant, and who
would be a part of management, and outside the scope of the
collective bargaining agreement. Previously, the head man was
the elevator manager, who was a member of the bargaining
unit and of the plaintiff Union. The defendant advised the
Union of the proposed changes, but did not negotiate the
changes with the Union. The Union claimed that changes of the
kind proposed could not validly be instituted without collective
bargaining and filed a grievance, which the defendant rejected.
The Union subsequently filed with the Canada Labour Rela
tions Board a complaint of unfair labour practices, and also
applied to the Board for an order requiring the defendant to
comply with the provisions of the Canada Labour Code or for
an order granting leave to serve on the defendant a notice to
commence collective bargaining. The plaintiffs then com
menced these proceedings, in which the issue is whether or not
the Federal Court of Canada has jurisdiction to deal with the
motion. The collective agreement provides for arbitration in the
event of a dispute between the parties over the meaning or
alleged violation of the agreement.
Held, the application is dismissed. In the present case there is
no provision in the Federal Court Act expressly granting
jurisdiction to the Trial Division of the Court. The only section
of the Act that confers on the Trial Division jurisdiction to
issue injunctions is section 18, but since Manitoba Pool Eleva
tors Ltd. is not a federal board, commission or tribunal, section
18 has no application. Judicial dicta indicate that the meaning
of section 23 is that jurisdiction is given to the Trial Division,
concurrently with provincial courts, between subject and sub
ject as well as in cases where the Crown is involved, where a
claim is made or a remedy is sought under an Act of Parlia
ment, and in addition where the claim relates to any of the
listed subject matters, whether brought under an Act of Parlia
ment or not. Since it is the Canada Labour Code that gives the
collective agreement legal binding force, and since it is an Act
of Parliament, all of the claims may be said to be made under
an Act of Parliament. This Court lacks jurisdiction to deal with
this motion, based on the concluding words of section 23, which
remove the jurisdiction of the Trial Division in cases where
"jurisdiction has been otherwise specially assigned" as in this
case where the collective agreement provides for arbitration in
the event of a dispute between the parties over the meaning or
alleged violation of the agreement, together with the greatly
widened jurisdiction that was given to the Canada Labour
Relations Board by S.C. 1977-78, c. 27.
Okanagan Helicopters Ltd. v. Canadian Pacific Ltd.
[1974] 1 F.C. 465, distinguished. Canadian Pacific Ltd. v.
United Transportation Union [1979] 1 F.C. 609, applied.
McKinlay Transport Ltd. v. Goodman [1979] 1 F.C. 760,
applied.
MOTION.
COUNSEL:
Gwen Randall for plaintiffs.
Walter L. Ritchie, Q.C. and William D.
Hamilton for defendant.
SOLICITORS:
Goldenberg, Taylor, Randall, Buckwold &
Halstead, Saskatoon, for plaintiffs.
Thompson, Dorfman, Sweatman, Winnipeg,
for defendant.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is a motion for interim injunc
tions restraining the defendant from
(a) continuing to effect, unlawfully, a technological change,
pending the hearing and determination by the Canada
Labour Relations Board of an application filed by the Plain
tiff Union pursuant to Sections 150-154 of the Canada
Labour Code, R.S.C. ch.L-1,
(b) unlawfully continuing to effect unilateral changes in the
terms and conditions of employment of certain members of
the Plaintiff Union, pending the hearing and determination
by the Canada Labour Relations Board of a complaint of
Unfair Labour Practices filed by the Union pursuant to
Sections 136(1)(a), 184(1)(a), 184(3)(b), 184(3)(e) and 186
of The Canada Labour Code,
(c) unlawfully continuing to effect technological and unilat
eral changes in the terms and conditions of employment of
certain members of the Union, pending the hearing and
determination by The Canada Labour Relations Board of an
Application filed by the Union pursuant to Sections 110(1)
and 121 of The Canada Labour Code,
(d) in the alternative, continuing to effect unilateral changes
in the terms and conditions of employment of certain mem
bers of the Union, pending the hearing and determination of
a Grievance filed by the Union and an Employee pursuant to
the provisions of the Collective Bargaining Agreement in
force between the parties hereto.
From the terms of the present application it
appears that prior to the filing of the notice four
different proceedings had been launched by the
plaintiffs, three of them to be dealt with by the
Canada Labour Relations Board, the fourth being
a grievance under the collective bargaining agree
ment. The situation which led to these several
proceedings and the present motion arose as
follows.
In the summer of 1979 the defendant decided to
reorganize its larger country elevators and to
change their designation from "elevator" to "ser-
vice centre". To qualify for the change to "service
centre" designation an elevator must have had a
total per year of 1,250,000 units of grain (bushels)
purchases and farm supply sales ($1 = 1 unit), of
which at least 350,000 units must be farm supply
sales. Fifteen country elevators had qualified
under this requirement.
Each service centre was to have, as its head
man, a service centre manager, who was to have an
assistant service centre manager. Prior to this pro
posed change, the head man was the elevator
manager, who was a member of the bargaining
unit and of the plaintiff Union. Under the reorgan
ization the service centre manager was to be
employed under a formal contract between himself
and the defendant. His functions were to be
altered and extended in a number of ways. For
example he was to have the authority to hire his
assistant service centre manager. The defendant
claims that under this reorganization the service
centre manager will be part of management, and
outside the scope of the collective bargaining
agreement. Being of this opinion the defendant did
not negotiate with or have any discussions with the
Union concerning the changes it intended to make.
It did, however, write Mr. Garth Stephenson, Pres
ident of the Union on July 26, 1979 and again on
September 17, 1979.
The letter of September 17 (Exhibit "C" to the
affidavit of Hugh Wagner), outlined the require
ments for a station to become a service centre,
named the 15 stations that had qualified for the
new designation and, in the following paragraphs,
dealt with the positions of "service centre manag
er" and "assistant service centre manager":
The Manager of these Centres will be a new position and will
be called a "Service Centre Manager" and will report to the
Region Manager. The Service Centre Manager will be a con
tract position and will be out-of-scope. Present Elevator
Managers at these locations will be given the first opportunity
to accept the Service Centre Manager position.
Each Service Centre will be provided with an Assistant Manag
er. Since this is a new position and is proposed to be in-scope it
is understood that the terms of employment will be negotiated
with the Grain Services Union. Assistant Managers will per
form functions similar to those performed by the Elevator
Manager prior to the Service Centre being established. A
position description for the Assistant Elevator Manager is
attached.
In my letter of July 26 I indicated that we would be prepared to
negotiate any matters requiring negotiation as a result of these
changes. As it will be our intention to implement these changes
effective November 1, 1979 it would be desirable if possible to
negotiate the terms of the Assistant Managers salaries prior to
that time. Accordingly I am requesting that Mr. Doull and Mr.
Wagner make the necessary arrangements for the Negotiating
Committees to meet for this purpose.
On or about September 17, 1979, the defendant
called the managers of the 15 stations to a meeting
to be held on September 20 to inform them about
how the reorganization would affect them and
their positions. On the same day the plaintiff
Union wrote the general manager of the defend
ant, (Exhibit "D" to Wagner's affidavit), object
ing to the defendant making changes of the kind
proposed, without the Union being "involved in
receiving and discussion of any proposals for
changes in remuneration and other conditions of
work" of these 15 men. The Union clearly took the
stand that changes of the kind proposed could not
validly be instituted without collective bargaining
with the Union's bargaining committee in attend
ance.
The letter requested cancellation of the planned
meeting without the Union's bargaining committee
being present.
The meeting called for September 20 was held
on that date, apparently with all 15 of the manag
ers present, but with no representation by the
Union's bargaining committee. At the meeting a
form of contract entitled "Management Contract"
was presented to each of the 15, who were to
signify their acceptance on or before October 12,
1979.
On October 8 the Union wrote the defendant's
General Manager (Exhibit "E" to Wagner's
affidavit), stating its position as follows:
By Section 136(1)(a) of The Canada Labour Code, this Union
has exclusive authority to bargain collectively on behalf of the
15 Country Elevator Managers present at the meeting on
September 20, 1979.
This letter is to advise you that the Union, by virtue of the
exclusive powers vested in it by The Canada Labour Code,
herewith rejects the purported "MANAGEMENT CONTRACT".
The Union further requires that you cease and desist forthwith
from any attempts to negotiate individually with any of the
above-named Country Elevator Managers.
On October 9 a grievance was filed on behalf of
Garth Stephenson and the Union, claiming
breaches of the collective agreement. On October
23 the defendant rejected the grievance on the
ground that the issues raised did not constitute a
grievance under the current collective agreement.
(See Exhibit "M" to Wagner's affidavit.)
On October 15, 1979 the defendant's General
Manager replied to the Union's letter of October
8. (See Exhibit "G" to Wagner's affidavit.) The
defendant's position is clearly stated in the second
paragraph of this exhibit:
My letters of July 26 and September 17 to Mr. Garth
Stephenson, President of the Union, copies of which were sent
to you, clearly outline the Company's intentions respecting the
establishment of Service Centres at 15 locations in Manitoba.
The purpose of the meeting with the Managers on September
20 was in no way related to collective bargaining in a Labour
Relations sense, but was for the purpose of outlining the
Company's plans for re-organization at these locations and also
for the purpose of offering these Managers first opportunity to
apply for the new positions of Service Centre Managers.
On October 24, 1979 the plaintiff Union filed
with the Canada Labour Relations Board a com-
plaint of unfair labour practices against the
defendant (see Exhibit "I" to Wagner's affidavit).
On October 30, 1979 the plaintiff Union made
an application to the Canada Labour Relations
Board for an order or orders under section 121 of
the Canada Labour Code, R.S.C. 1970, c. L-1, as
amended by S.C. 1972, c. 18 requiring the defend
ant to comply with the provisions of sections
110(1), 136(1) (a) and 154 of the Code, and alter
natively for an order under section 152(1) of the
Code granting leave to the Union to serve on the
defendant a notice to commence collective
bargaining.
On November 5, 1979, Hugh Wagner, on his
own behalf and on behalf of certain members of
the Union, commenced an action against the
defendant in the Trial Division of this Court,
claiming essentially the same relief as is being
sought in the several proceedings already begun.
On December 7, 1979 the Canada Labour Rela
tions Board, in response to a telex from the Union,
dated December 6, 1979, advised the parties by
telex that the matters on its files concerning the
Union and the defendant would be placed before
the Board, at which time a determination would be
made concerning the question of a hearing into
those matters, and determination of date and loca
tion if the Board deemed a hearing was necessary.
No date was stated in the telex for the Board
meeting at which it would make its determination.
The plaintiffs then launched the present motion,
which was heard on December 20, 1979.
Counsel for the defendant submitted a strong
argument to the effect that this Court has no
jurisdiction to deal with the motion. He began
with the universally accepted statement that the
Federal Court of Canada is a purely statutory
Court. As such, unlike the common law and equity
courts of England and the superior courts of the
Canadian provinces (except possibly Quebec), it
has no inherent jurisdiction, but derives its juris
diction entirely from statute, primarily the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10. He
then cited in support of his argument, the decisions
and the reasons therefor in the following cases:
Okanagan Helicopters Ltd. v. Canadian Pacific
Limited [1974] 1 F.C. 465, a decision of Mahoney
J., in the Trial Division of this Court. Canadian
Pacific Ltd. v. United Transportation Union
[1979] 1 F.C. 609, a decision of the Federal Court
of Appeal. McKinlay Transport Limited v. Good-
man reported in [1979] 1 F.C. 760, a decision of
Thurlow A.C.J. (as he then was) in the Trial
Division of this Court.
In the Okanagan Helicopters case the claim was
for damages for damage occasioned to the plain
tiffs helicopter when its rotor was struck by the
engine of a freight train belonging to the defend
ant. At the time of the collision the helicopter was
stationary on the ground alongside the railway
track on which the freight train was moving. The
helicopter's rotor was turning, in preparation for
take-off. The learned Judge decided that the Court
had jurisdiction by virtue of section 23 of the
Federal Court Act, which reads, in part:
23. The Trial Division has concurrent original jurisdiction as
well between subject and subject as otherwise, in all cases in
which a claim for relief is made or a remedy is sought under an
Act of the Parliament of Canada or otherwise in relation to any
matter coming within any following class of subjects, namely
... aeronautics ....
The Judge was satisfied that the word "aeronau-
tics" in the section embraced the whole field of
aeronautics and that the circumstances clearly
brought the matter within the scope of "aeronau-
tics" as that term was used in the section. There
was thus a direct grant of jurisdiction by the
section to the Trial Division of the Court.
In the present case there is no provision in the
Federal Court Act expressly granting to the Trial
Division of the Court jurisdiction to issue injunc
tions with reference to grievances, claims of unfair
labour practices or the interpretation, application
or violation of a term or terms of a collective
bargaining agreement. In fact the only section of
the Act that confers on the Trial Division jurisdic
tion to issue injunctions is section 18, which gives
the Trial Division exclusive original jurisdiction to
issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo
warranto (the extraordinary writs) against any
federal board, commission or other tribunal. Since
Manitoba Pool Elevators Ltd. is not a federal
board, commission or tribunal, section 18 has no
application in the present case.
Section 23 of the Federal Court Act needs
further consideration. For this purpose I quote the
section in full:
23. The Trial Division has concurrent original jurisdiction as
well between subject and subject as otherwise, in all cases in
which a claim for relief is made or a remedy is sought under an
Act of the Parliament of Canada or otherwise in relation to any
matter coming within any following class of subjects, namely
bills of exchange and promissory notes where the Crown is a
party to the proceedings, aeronautics, and works and undertak
ings connecting a province with any other province or extending
beyond the limits of a province, except to the extent that
jurisdiction has been otherwise specially assigned.
Read by itself the meaning of this section is not
clear. It is capable of being read as meaning that
its operation is restricted to matters coming within
any of the listed subjects, viz.: bills of exchange
and promissory notes where the Crown is a party
to the proceedings, aeronautics, and works and
undertakings connecting a province with any other
province or extending beyond the limits of a prov
ince. On this interpretation, in such matters, and
no others, jurisdiction is given, and it is given not
only in matters in which the Crown or a Crown
Agency is involved but also in matters between
subject and subject, whether the claim for relief is
made or the remedy is sought under an Act of
Parliament or rests on some other foundation. To
my mind this would not be an illogical meaning of
the section. However, judicial dicta in several cases
indicate that the correct meaning is that jurisdic
tion is given to the Trial Division, concurrently
with provincial courts, between subject and subject
as well as in cases where the Crown is involved,
where a claim for relief is made or a remedy is
sought under an Act of Parliament, and in addi
tion where the claim relates to any of the listed
subject matters, whether brought under an Act of
Parliament or not. This is my understanding of the
expressions used in those cases.
The several proceedings begun by the plaintiffs,
none of which had progressed significantly at the
date of the hearing of this motion, all relate to
claims based on the collective agreement between
the Union and the defendant or on rights vested in
the Union and its members who are employees of
the defendant, under the Canada Labour Code or
on alleged breaches of such rights. None of these is
mentioned in section 23. However, since it is the
Canada Labour Code alone that gives the collec
tive agreement legal binding force, and since it is
an Act of Parliament, all of the claims may be said
to be made under an Act of Parliament.
Notwithstanding what has been said in the
preceding two paragraphs, I am of the opinion that
this Court lacks jurisdiction to deal with this
motion. My opinion is founded on the concluding
words of the section, together with the greatly
widened jurisdiction that was given to the Canada
Labour Relations Board by S.C. 1977-78, c. 27. I
repeat the concluding words of section 23 of the
Federal Court Act:
... except to the extent that jurisdiction has been otherwise
specially assigned.
For judicial authority for this opinion I refer to
Canadian Pacific Ltd. v. United Transportation
Union, and McKinlay Transport Limited v. Good-
man, both cited supra. As noted supra, the
Canadian Pacific Ltd. v. United Transportation
Union case was a decision of the Federal Court of
Appeal, and McKinlay Transport case was a deci
sion of Thurlow A.C.J. (as he then was), in the
Trial Division of this Court. The McKinlay case
was decided about four months after the decision
in the Canadian Pacific case.
The decision of the Federal Court of Appeal in
Canadian Pacific Ltd. v. United Transportation
Union was unanimous. It was delivered by Ryan J.
At page 619 Ryan J. said:
I am of opinion that, for purposes of section 23 of the
Federal Court Act, the claims in this action were claims
brought under a statute of the Parliament of Canada because
they were brought in respect of collective agreements deriving
their legal character from the Canada Labour Code. The action
is, as well, an action involving the administration of a law of
Canada, the Code.
These words apply equally to the present case.
Ryan J. dealt with the question I am now con
sidering, namely, whether the jurisdiction of the
Trial Division was ousted by the provision of the
arbitration agreement affecting the parties for
final settlement. In that case the arbitration agree
ment provided that a decision of the arbitrator was
final and binding. Also, in that case, as in this, the
terms of section 155 of the Canada Labour Code,
required consideration. At the time of the decision
in the Canadian Pacific case, subsection (1) of
section 155 was in the same terms as it is today. It
reads:
155. (I) Every collective agreement shall contain a provi
sion for final settlement without stoppage of work, by arbitra
tion or otherwise, of all differences between the parties to or
employees bound by the collective agreement, concerning its
interpretation, application, administration or alleged violation.
Subsection (2), as now worded, is in stronger
terms than were contained in the subsection at the
time Ryan J. was speaking. At that time the
subsection read:
155....
(2) Where a collective agreement does not contain a provi
sion for final settlement as required by subsection (1), the
Board shall, on application by either party to the collective
agreement, by order, furnish a provision for final settlement,
and a provision so furnished shall be deemed to be a term of the
collective agreement and binding on the parties to and all
employees bound by the collective agreement.
Concerning the effect of section 155, Ryan J.
said, at p. 626:
Section 155 establishes a system for the final settlement,
without stoppage of work, of disputes arising under collective
agreements. Every collective agreement must contain a provi
sion for final settlement of the types of differences specified in
subsection (1). The parties to an agreement are thus under a
duty to provide for such final settlement by arbitration or by
some other means. If they fail to fulfil this duty (possibly by a
good faith failure to select a method), the Board itself is to
make the provision on the application of either party, and the
provision so determined becomes part of the collective agree
ment. It is within this context that the effect of the closing
words of section 23 of the Federal Court Act must be deter
mined. And it is my view that in this case the selection, by the
parties, of arbitration as the means of final settlement did
constitute a special assignment of jurisdiction to determine the
issues posed by the present action.
It is clear that the acceptance, by the parties, of
arbitration as the method of final settlement was
the decisive factor leading to Ryan J.'s decision
that the jurisdiction of the Trial Division had been
ousted.
In the present case the collective agreement
provides in Article 7:01:
In the case of any dispute arising between the parties regarding
the meaning or alleged violation of this Agreement which the
parties are unable to settle between themselves, the matter may
be referred to a Board of Arbitration ....
While the words are "may be referred", I think
it is clear that the intention is that the matter "will
be referred to a Board of Arbitration", because no
other method of settlement is proposed. In any
event the present subsection (2) of section 155 of
the Canada Labour Code clearly indicates that
arbitration is the method to be followed. It reads:
155... .
(2) Where any difference arises between parties to a collec
tive agreement and
(a) the collective agreement does not contain a provision for
final settlement of the difference as required by subsection
(l),or
(b) the collective agreement contains a provision for final
settlement of the difference by an arbitration board and
either party fails to name its nominee to the board in
accordance with the collective agreement,
the difference shall, notwithstanding any provision of the col
lective agreement, be submitted by the parties for final
settlement
(e) to an arbitrator selected by the parties, or
(d) where the parties are unable to agree on the selection of
an arbitrator and either party makes a written request to the
Minister to appoint an arbitrator, to an arbitrator appointed
by the Minister after such inquiry, if any, as the Minister
considers necessary.
In the present case the Union filed a grievance
and subsequently furnished to the defendant the
name of its nominee for a board of arbitration.
The defendant maintained that the grievance
claimed did not come within the provisions of the
collective agreement, and so far as the record goes,
has taken no steps under the grievance procedure
and has not named anyone as its nominee for a
board of arbitration. It appears that the defendant
takes the position that the grievance is not arbi-
trable, because, in its view, it is outside the provi
sions of the collective agreement. I note here that
under section 157(c) an arbitrator or arbitration
board "has power to determine any question as to
whether a matter referred to him or it is
arbitrable."
I turn now to the McKinlay Transport Limited
v. Goodman case. This was an application to the
Federal Court (Trial Division) by the plaintiff for
an order continuing an interim injunction restrain
ing its employees from participating in an unlawful
strike and from picketing its premises. Thurlow
A.C.J. (as he then was), after stating that the only
law of Canada on which the plaintiff can rely in
this Court is the Canada Labour Code, and refer-
ring to the Court having a discretion whether or
not to grant an interlocutory injunction, even
where the Court has jurisdiction to entertain the
action and the case for an injunction is otherwise
made out, went on to examine whether the Court
had jurisdiction in that particular case. He quoted
extensively from the judgment of the Federal
Court of Appeal in Canadian Pacific Ltd. v.
United Transportation Union, and then said at pp.
766-767:
No other case was cited, and I am not aware of any, in which
the concluding words of section 23 of the Federal Court Act
have been considered or applied but it seems to me that, if they
apply to the situation created by section 155 of the Canada
Labour Code in imposing, in effect, arbitration as the means of
settling disputes between parties to collective agreements, they
also apply to the situation created by the new section 182 in the
context of the Code as a whole, which assigns to the Canada
Labour Relations Board jurisdiction inter alia to enjoin
employees from participating in a strike. I am accordingly of
the opinion that the Court does not have jurisdiction to enter
tain the plaintiffs claim for an injunction or to grant the
interlocutory relief which the plaintiff seeks.
The present case is not as strong as were the two
I have just been discussing. However, I have come
to the conclusion, not without doubt, that the
concluding words of section 23 of the Federal
Court Act apply to the circumstances under review
here, and that the jurisdiction of the Federal Court
has been ousted thereby.
The matter of the Court's discretion requires
consideration, particularly if my view of the law is
erroneous. This question was well considered by
Thurlow A.C.J. (as he then was) in the McKinlay
Transport case, where he said, at pp. 763-764:
Parliament has recently enacted extensive amendments to the
Canada Labour Code which, in my view, demonstrate that the
purpose was to vest in the Canada Labour Relations Board
extensive and far reaching powers to deal with labour relations
in the works and undertakings to which the statute applies
including the granting of injunctions enjoining employees from
participating in strikes, and the making of orders requiring
employees to perform the duties of their employment—a power
not exercised by a Court of equity. Not only has the Board been
vested with powers more extensive and particular than those of
the courts in such situations but the area in which the Board's
decisions are open to attack and review has been narrowed by
the amendments. The power previously reserved to the Minister
of authorizing prosecution for violation of the Act has also been
vested in the Board. In the face of these provisions, even though
the legislation does not specifically purport to withdraw from
the superior courts jurisdiction to issue injunctions in respect of
conduct arising out of labour disputes, it seems to me that the
Court can and ought to take into account in exercising its
discretion that Parliament has shown its disposition that such
matters be dealt with by the Board on the principles which it
applies in the search for achievement of the objects of the
legislation rather than by the courts. It is perhaps unnecessary
to add that court injunctions have not been notoriously success
ful as a device for achieving harmonious labour relations or for
resolving labour disputes.
I am in full agreement with the views so well
expressed by Associate Chief Justice Thurlow (as
he then was). If my opinion on the law had been
different I still would not have felt this was a
proper case in which to exercise my discretion in
favour of the plaintiffs.
My decision, of course, has no effect on any of
the other proceedings that have been begun by the
plaintiffs. I have taken much longer than I had
expected to deal with this application, but I do not
think the delay has prejudiced the plaintiffs' cause
materially. At the date of the hearing, December
20, 1979, all but one of the 15 country elevator
managers affected by the defendant's reorganiza
tion plan had accepted the defendant's offer to
become service centre managers, with the changed
functions and terms and method of remuneration
proposed. According to the affidavit of J. K.
Wilson, dated December 20, 1979, the fifteenth
man, Garth Stephenson, was also apparently ready
and about to accept the defendant's offer.
It is clear to my mind that the Union believes
the situation involves a serious question concerning
its rights under the collective agreement, particu
larly its right to be consulted, and to represent any
of its members to whom the employer makes pro
posals that will affect their status, functions and
remuneration and take them out of the bargaining
unit. It is to be hoped that a reasonable solution of
this question will result from the proceedings now
pending.
The application is rejected.
The costs of this motion will be costs in the
cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.