A-56-81
David C. Nauss and Peter H. Roberts (Appel-
lants)
v.
Local 269 of the International Longshoremen's
Association (Respondent)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Halifax, March 27, 1981.
Jurisdiction — Labour relations — Appeal from Trial
Division decision to stay execution of an order of the Canada
Labour Relations Board which had been filed in the Federal
Court — Respondent contends that the order became a judg
ment of the Federal Court for all purposes when it was filed
Whether the Trial Division had the power to stay the order —
Appeal allowed — Canada Labour Code, R.S.C. 1970, c. L- I,
as amended, ss. 119, 122, 123 — Federal Court Rules 1904
and 1909 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28(1)(a).
APPEAL.
COUNSEL:
D. Merlin Nunn, Q.C. and Terry Roane for
appellant David C. Nauss.
G. J. McConnell and John MacPherson for
respondent.
Yves Raic for employer.
W. Wylie Spicer and David Graves for
Canada Labour Relations Board.
SOLICITORS:
Cox, Downie, Nunn & Goodfellow, Halifax,
for appellant David C. Nauss.
Kitz, Matheson, Green & MacIsaac, Halifax,
for respondent.
Ogilvy, Renault, Montreal, for employer.
McInnes, Cooper & Robertson, Halifax, for
Canada Labour Relations Board.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division staying the execution of an
order of the Canada Labour Relations Board.
On November 14, 1980, the Board, following a
complaint by the appellant of an alleged violation
of the Canada Labour Code, R.S.C. 1970, c. L-1,
as amended, rendered a decision directing that the
respondent Union admit the appellant to member
ship. The Board concluded that decision by the
following observation:
The Board expects union compliance with this decision and will
not issue a formal order, but reserves jurisdiction to do so
should it be necessary.
On November 27, 1980, the respondent applied,
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, to have that decision
reviewed and set aside [[1981] 2 F.C. 827].
As, at the end of January 1981, the respondent
had not yet complied with the decision, the Board,
on January 26, 1981, issued a formal order requir
ing compliance with its terms not later than Febru-
ary 4, 1981. On January 29, 1981, a copy of that
order was filed in the Federal Court pursuant to
the provisions of section 123 of the Canada
Labour Code. On February 3, 1981, the respond
ent applied to the Trial Division under Rules
1904(1) and 1909' for an order staying the execu
tion of the order of the Board and varying the time
within which the respondent had to demonstrate to
the Board that it had complied with its order. That
application was granted by the Trial Division. This
appeal is directed against that judgment.
The first question to be resolved is whether the
Trial Division had the power to stay the order of
the Board.
It is the respondent's contention that the Trial
Division had that power since the order of the
Board had been filed in the Federal Court pursu
ant to section 123 of the Code and had thus
' Those Rules read as follows:
Rule 1904. (1) Notwithstanding that a judgment or order
requiring a person to do an act specifies a time within which the
act is to be done, the Court may make an order requiring the
act to be done within another time, being such time after
service of that order, or such other time, as may be specified
therein.
Rule 1909. A party against whom a judgment has been given or
an order made may apply to the Court for a stay of execution
of the judgment or order or other relief against such judgment
or order, and the Court may by order grant such relief, and on
such terms, as it thinks just.
become, by virtue of subsection 123(2), a judg
ment of the Federal Court for all purposes relating
to its execution. In support of that contention,
counsel referred to the decisions rendered in Cen
tral Broadcasting Company Ltd. v. Canada
Labour Relations Board 2 and Communications
Workers of Canada v. Bell Canada' two cases
where the Trial Division of this Court stayed the
execution of orders of the Canada Labour Rela
tions Board. He added that it would be unfair and
abnormal if an order of the Board could be execu
ted as a judgment of the Court but could not be
stayed in the same manner.
It is necessary, in order to appreciate the sound
ness of the respondent's contention, to have in
mind certain provisions of the Canada Labour
Code.
Under section 119, the Board is given the power
to "review, rescind, amend, alter or vary any order
or decision made by it". Subject to that exception,
however, its orders and decisions are specified by
section 122 to be final. That section reads as
follows:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with paragraph 28(1)(a) of the
Federal Court Act.
(2) Except as permitted by subsection (1), no order, decision
or proceeding of the Board made or carried on under or
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of
any court, whether by way of injunction, certiorari, prohibi
tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or
proceeding is beyond the jurisdiction of the Board to make or
carry on or that, in the course of any proceeding, the Board for
any reason exceeded or lost its jurisdiction.
Section 123, on which the respondent relies,
reads thus:
123. (1) The Board shall, on the request in writing of any
person or organization affected by any order or decision of the
Board, file a copy of the order or decision, exclusive of the
2 [1975] F.C. 310.
3 [1976] 1 F.C. 282.
reasons therefor, in the Federal Court of Canada, unless, in the
opinion of the Board,
(a) there is no indication of failure or likelihood of failure to
comply with the order or decision, or
(b) there is other good reason why the filing of the order or
decision in the Federal Court of Canada would serve no
useful purpose.
(2) Where the Board files a copy of any order or decision in
the Federal Court of Canada pursuant to subsection (1); it shall
specify in writing to the Court that the copy of the order or
decision is filed pursuant to subsection (1) and, where the
Board so specifies, the copy of the order or decision shall be
accepted for filing by, and registered in, the Court without
further application or other proceeding; and, when the copy of
the order or decision is registered, the order or decision has the
same force and effect and, subject to this section and section 28
of the Federal Court Act, all proceedings may be taken thereon
by any person or organization affected thereby as if the order
or decision were a judgment obtained in the Court.
In my view, sections 119 and 122 state clearly
that a decision of the Board shall be final and shall
not be varied, reviewed, questioned or restrained
except by the Board itself pursuant to section 119
and by the Federal Court of Appeal in accordance
with paragraph 28(1)(a) of the Federal Court Act.
In view of the clear language of sections 119 and
122, equally clear language would be required, in
my opinion, to confer on the Trial Division the
power to stay the execution of an order of the
Board, particularly in a case like the present one
where the staying of the execution of the Board
implies a variation of that order. I do not find that
clear language in section 123. That section merely
affords a means of execution of the orders of the
Board. Once filed and registered in the Federal
Court pursuant to section 123, an order of the
Board does not become a judgment of the Court
the terms of which the Court could vary under
Rule 1904(1); it remains a decision of the Board
which is still subject to the provisions of sections
119 and 122 and cannot, for that reason, be varied
or restrained by the Trial Division. True, subsec
tion 123(2) prescribes that when the copy of an
order has been filed and registered "all proceed
ings may be taken thereon ... as if the order . . .
were a judgment obtained in the Court." However,
it is clear, in my view, that an application to vary
an order and stay its execution is not a proceeding
taken on that order.
I conclude, therefore, that the Trial Division did
not have the power to make the decision under
attack. For that reason, I would allow the appeal,
set aside the decision of the Trial Division and
dismiss the respondent's application for a stay of
execution. The appellant should be entitled to his
costs in this Court as well as in the Trial Division.
* * *
HEALD J. concurred.
* * *
LE DAIN J. concurred.
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.