T-2486-82
Purolator Courrier Ltée (Petitioner)
v.
Canada Labour Relations Board, Claude H. Foisy,
Jacques Archambault, Nicole Kean, Union des
employés de commerce de Québec, Local 503 and
Carole Madeleine (Respondents)
Trial Division, Walsh J.—Montreal, May 3;
Ottawa, May 12, 1982.
Jurisdiction — Labour relations — Petition to stay execu
tion of order of Canada Labour Relations Board pending
disposition of s. 28 application — Whether, by virtue of
registration of order under s. 123 of Labour Code, order may
be regarded by Trial Division as judgment of Court with result
that Court has jurisdiction to grant stay of proceedings under
s. 50, Federal Court Act and Rule 1909 — Petition granted —
Canada Labour Code, R.S.C. 1970, c. L-1, s. 123, rep. by S.C.
1972, c. 18, s. I; 1977-78, c. 27, s. 43 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 50 — Federal Court Rule
1909.
The respondent, Carole Madeleine, submitted her resignation
to the petitioner contending that she was over-worked and
implying that the petitioner created this situation deliberately
because of her union activities. Some time later, the respondent
tried to withdraw her resignation saying that she had been
depressed when she gave it. The petitioner, however, refused to
allow the withdrawal. In the interim it had relocated the
department in which the respondent had worked from Quebec
City to Montreal and had hired a person to replace her, as well
as a part-time assistant for that person. The respondent brought
"the matter before the Canada Labour Relations Board which,
after considering the evidence, concluded that the respondent's
resignation was forced as a result of her union activities and
was, therefore, equivalent to a discharge. On that basis, it
ordered the petitioner to re-employ the respondent; pay her an
indemnity equal to the salary and benefits she would have
received had she not left her employment; re-transfer the
operations of the department for which she worked to Quebec
City, and to provide her with a part-time assistant. This order
was filed in the Federal Court pursuant to section 123 of the
Canada Labour Code. Pending the hearing of its section 28
application to have the order set aside, the petitioner applied to
the Trial Division for a stay of proceedings on the grounds that
compliance with the order, in advance of the Court of Appeal's
decision on the section 28 application, would, especially if the
petitioner were successful, result in serious prejudice. The
respondents contested the petition both on the question of
jurisdiction and on its merits.
Held, the petition is granted. By virtue of its filing under
section 123 of the Canada Labour Code, the order may be
regarded as a judgment of the Court and the Trial Division has
discretionary power under section 50 of the Federal Court Act
and Rule 1909 to order a stay in respect of proceedings to
which the filing gives rise. The Trial Division does not lose its
jurisdiction to act because, as a mere consequence of the stay,
there is a variation of a term of the order. The case of Nauss et
al. v. Local 269 of the International Longshoremen's Associa
tion, in which the Court of Appeal held that the Trial Division
did not have the jurisdiction to stay an order of the Canada
Labour Relations Board filed under section 123 of the Act, can
be distinguished on the grounds that, in that case, the Trial
Division had not only granted a stay, but had specifically varied
the order. With respect to the merits of the petition, the
petitioner has an arguable case before the Court of Appeal and,
having regard to the circumstances, the balance of convenience
is in favour of granting the stay.
CASES JUDICIALLY CONSIDERED
APPLIED:
Teamsters Union, Local 106, et al. v. Motorways Québec
Limitée et al., [1978] 2 F.C. 351 (T.D.); Communica
tions Workers of Canada v. Bell Canada, [1976] 1 F.C.
282; 64 D.L.R. (3d) 171 (F.C.T.D.); Central Broadcast
ing Company Ltd. v. Canada Labour Relations Board et
al., [1975] F.C. 310 (C.A.).
DISTINGUISHED:
BBM Bureau of Measurement v. Director of Investiga
tion and Research (1982), 69 C.P.R. (2d) 286
(F.C.T.D.); Nauss et al. v. Local 269 of the International
Longshoremen's Association, [1982] 1 F.C. 114; 122
D.L.R. (3d) 573 (F.C.A.).
COUNSEL:
J. Bazin for petitioner.
M. Robert and L. Martineau for respondent
Canada Labour Relations Board.
J. Cleveland for respondents Union des
employés de commerce de Québec, Local 503
and Carole Madeleine.
SOLICITORS:
Byers, Casgrain, Montreal, for petitioner.
Robert, Dansereau, Barre & Assoc., Mon-
treal, for respondent Canada Labour Rela
tions Board.
Rivest, Castiglio & Assoc., Montreal, for
respondents Union des employés de commerce
de Québec, Local 503 and Carole Madeleine.
The following are the reasons for order ren
dered in English by
WALSH J.: This is a petition to stay the execu
tion of an order of the Canada Labour Relations
Board while awaiting the decision on a section 28
application by the Court of Appeal.
It was opposed both on the question of jurisdic
tion and on its merits.
The facts as set out in the affidavits submitted
indicate that by a decision of the Canada Labour
Relations Board of January 22, 1982, the employ
er, Purolator Courrier Ltée, was ordered to re-
employ Carole Madeleine "immediately" in her
functions, to pay her an indemnity equivalent to
the salary and other advantages which she would
have received but for her dismissal, to re-transfer
to Quebec the operations of the accounts payable
department of region 518 now being carried out in
Montreal, and to provide her with a part-time
assistant for a minimum of three hours a day to
help her in the work which she was doing at the
time of her dismissal. A section 28 application was
brought to set this decision aside and has not yet
been heard, although counsel advise that the
appeal book is now ready. The decision of the
Canada Labour Relations Board was deposited in
this Court pursuant to section 123 of the Canada
Labour Code, R.S.C. 1970, c. L-1, s. 123, rep. by
S.C. 1972, c. 18, s. 1; 1977-78, c. 27, s. 43. The
employer will contend in the Court of Appeal that
Carole Madeleine was not dismissed but had sub
mitted her resignation and that the Canada
Labour Relations Board has no jurisdiction to
convert a resignation to a dismissal. The order, if
not suspended, would require the employer, in
addition to paying her some $9,200, to engage a
part-time employee and to move a department
from Montreal to Quebec, and if it succeeds in its
appeal all this would have to be reversed, which
would cause serious prejudice. It offers to provide
a guarantee to carry out the decision if confirmed.
The respondents submit two affidavits. That of
the Union representative, Yves Dumont, states
that on June 6, 1981, the local was accredited as a
negotiating unit, Carole Madeleine being the prin
cipal organizer and union delegate from the date
of the petition for accreditation in November 1970
until her "dismissal" on August 27, 1981, and that
subsequently she has continued to take part in the
negotiations. Notice of the negotiations was sent to
the employer on June 15, 1981, and a conciliator
was appointed on February 23, 1982. Four subse
quent meetings have resulted in an impasse. The
affidavit states that if the execution of the order is
stayed the result will be to keep out of the negotia
tions Carole Madeleine, the principal spokesperson
for the Union, at a critical time when it is seeking
an initial collective agreement.
The affidavit of Carole Madeleine sets out the
hardships she is encountering. She received unem
ployment insurance benefits from September 20,
1981, to January 10, 1982, but when, at the begin
ning of February she showed the Commission a
copy of the judgment of the Canada Labour Rela
tions Board, it suspended payments until reim
bursement to it by the employer of the amounts
paid by the Commission to her. She had temporary
employment with the Union as an organizer from
April 5 to the end of April. She has a child and her
husband is only employed part time, and she is
going into debt.
A supplementary affidavit by the employer
states that she has taken part in all the conciliation
hearings in March and April as well as in the
previous negotiations and it has no objection to her
continuing to do so.
From a reading of the decision of the Canada
Labour Relations Board it is evident that Carole
Madeleine did submit her resignation on August
27, 1981, contending that she was overworked and
implying that the employer was doing this deliber
ately. She underwent medical treatment for her
nerves and on September 9 attempted to withdraw
her resignation saying she was depressed when she
gave it. Meanwhile, the employer had transferred
the work of her accounts payable department from
Quebec to Montreal (she resides in Quebec) and
arranged for someone else to do it, also hiring a
part-time assistant to aid her. It is on these facts
that the Board apparently concluded that her
resignation was forced as a result of her union
activities, and was equivalent to a discharge. This
is a matter for the Court of Appeal to decide on its
merits on the section 28 application. Certainly the
order of the Board goes very far, however, in
interfering with what, in normal circumstances,
are clearly management prerogatives, namely, the
transfer of a department of its business from one
city to another, and in ordering it to hire an
assistant to help her with what she claims was an
excessive workload.
On the question of jurisdiction extensive juris
prudence was referred to. The recent judgment of
Addy J. in the case of BBM Bureau of Measure
ment v. Director of Investigation and Research
(1982), 69 C.P.R. (2d) 286 (F.C.T.D.), must be
distinguished because it dealt with a decision of
the Restrictive Trade Practices Commission under
Part IV of the Combines Investigation Act, R.S.C.
1970, c. C-23. The stay was refused because the
Federal Court had no jurisdiction as there is no
provision for registration of such a decision in this
Court. The judgment stated at page 288:
Where provision is made for the registration in the Federal
Court of Canada of an order of another tribunal or board and
where it is stated that, once registered, the order will for all
purposes have the same force and effect as a judgment or order
of this Court, then, it might well be argued in the absence of
any privative clause, that, from the date of such registration,
the Trial Division acquires a power to stay execution of the
order.
In the case of Teamsters Union, Local 106, et
al. v. Motorways Québec Limitée et al., [1978] 2
F.C. 351 (T.D.), Marceau J. states at page 354:
However, under the authority of section 50 of its enabling
Act or of Rule 1909 of the General Rules and Orders, the
Court has the power to order a stay of the proceedings to which
the filing and registration of the order could give rise. I believe
that this discretionary power should be exercised as requested
by the respondent company.
In the case of Communications Workers of
Canada v. Bell Canada, [ 1976] 1 F.C. 282; 64
D.L.R. (3d) 171 (F.C.T.D.), Dubé J. states at
page 286 [Federal Court Reports]:
What must be determined here is whether this Court has
jurisdiction to grant a stay of proceedings of an order of the
Board duly filed as a judgment of this Court and in the
affirmative whether a stay of proceedings is justified.
After quoting sections 122 and 123 of the
Canada Labour Code as they read at that time
(the amended sections have no significant effect on
his reasoning), and section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, he states at
page 287 [Federal Court Reports]:
It is claimed that the Trial Division has no jurisdiction
because section 122 of the Code clearly stipulates that the
decision of the Board is final and shall not be questioned or
reviewed by any Court, except in accordance with section 28 of
the Federal Court Act. Therefore the Union would have to seek
its remedy before the Court of Appeal.
He then states:
The relevant powers of the Trial Division with reference to a
judgment of that Court are found in Rule 1909 of our Court:
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.
It is argued that the powers of Rule 1909 cannot be invoked
here because of the privitive aspect of section 122 of the Code
and that the sole purpose of registering orders of the Board
with the Federal Court is to provide the Board with the
enforcement authority and machinery which it lacks.
At page 288 [Federal Court Reports] he refers to
a judgment of Jackett C.J. in Central Broadcast
ing Company Ltd. v. Canada Labour Relations
Board et al., [1975] F.C. 310 (C.A.) in which it is
stated at page 312:
While this application was, in effect, an application to stay
the Board's order, it is common ground that that order has been
filed in the Trial Division under section 123 of the Canada
Labour Code and that this motion should be treated as an
application to stay the order regarded as a judgment obtained
in the Court by virtue of section 123.
Some doubt has been cast on these decisions by
a judgment of the Court of Appeal in the case of
Nauss et al. v. Local 269 of the International
Longshoremen's Association, [1982] 1 F.C. 114;
122 D.L.R. (3d) 573 (F.C.A.) which held that the
Trial Division had no power to stay the order of
the Canada Labour Relations Board. It discussed
the decisions in the Central Broadcasting Com
pany Ltd. and the Communications Workers of
Canada v. Bell Canada cases and does not agree
with them. A close reading of the judgment indi
cates, however, that the Trial Division had not
merely suspended the execution of the order but
had varied it. At page 117 [Federal Court
Reports] the judgment reads:
In my view, sections 119 and 122 [rep. and sub. S.C.
1977-78, c. 27, s. 43] 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 para
graph 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, subsection 123(2) prescribes that when the copy
of an order has been filed and registered "all proceedings 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. [Emphasis mine.]
In that case a date for execution of the order
had been specified and the Trial Division set
another date, which was a variation of the order.
The respondents argue that in the present case,
where the order was to be carried out "immediate-
ly", any stay is equivalent to a variation of the
order. This is not quite the same, however,
although the distinction may be a fine one, as the
actual variation of the time set for carrying out the
order is merely a consequence of the stay and not a
specific variation of the order. This is all the more
so since the order of January 28, 1982 has not yet
been carried out so the "immediate" compliance
has not taken place, and in the meantime, there
has been the section 28 appeal.
I conclude, therefore, that the Nauss case can
be distinguished and that the Trial Court has
jurisdiction, at its discretion, to grant the stay.
On the merits of the stay, and weighing the
balance of convenience, it appears to be in favour
of granting the stay. Undoubtedly Carole Made-
leine is suffering some privation, which can per
haps be alleviated by the Union. For the employer
to move back to Quebec a division already trans
ferred to Montreal and employ a part-time assist
ant to help Carole Madeleine with her work in
Quebec would certainly impose severe hardship on
the employer, especially if, in the event it should
succeed in its section 28 application, it would then
have to again undo all this and discharge the
temporary employee and attempt to receive reim
bursement from Carole Madeleine of the amounts
paid.
The employer, the petitioner herein, has an
arguable case before the Court of Appeal, espe
cially in view of the letter of resignation of Carole
Madeleine, and the very far-reaching terms of the
order going far beyond a mere direction for her
reinstatement and reimbursement for losses. I take
note of the offer of the employer to furnish secu
rity and its undertaking that Carole Madeleine
may continue to participate in any further negotia
tions or conciliation hearings notwithstanding that
she is no longer employed by the company.
ORDER
The carrying out of the decision of January 22,
1982 of the Canada Labour Relations Board
herein is stayed until the decision of the Federal
Court of Appeal is rendered on the section 28
application made by petitioner herein, on the fol
lowing conditions:
(1) The petitioner shall deposit with the Federal
Court of Canada within one week of this order
the sum of $10,000.00 to be held in an interest
bearing account to guarantee the carrying out of
the financial part of the order if the section 28
application is dismissed.
(2) The petitioner shall allow Carole Madeleine
to continue to participate on behalf of the Union
in any further negotiations or conciliation
hearings.
Costs in the event of the section 28 application.
ADDENDUM
Sections 119, 122, and 123 of the Canada
Labour Code read as follows:
119. The Board may review, rescind, amend, alter or vary
any order or decision made by it, and may rehear any applica
tion before making an order in respect of the application.
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.
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
reasons therefor, in the Federal Court of Canaja, 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.
Section 50 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, reads:
50. (1) The Court may, in its discretion, stay proceedings in
any cause or matter,
(a) on the ground that the claim is being proceeded with in
another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice
that the proceedings be stayed.
(2) The Court shall, on the application of the Attorney
General of Canada, stay proceedings in any cause or matter in
respect of a claim against the Crown if it appears that the
claimant has an action or proceeding in respect of the same
claim pending in any other court against some person who, at
the time when the cause of action alleged in such action or
proceeding arose, was, in respect thereof, acting so as to engage
the liability of the Crown.
(3) Any stay ordered under this section may subsequently be
lifted in the discretion of the Court.
Rule 1909 of the Federal Court Rules is quoted
(supra).
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.