A-137-84
National Bank of Canada (Appellant)
v.
Rodney Granda (Respondent)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Montreal, March 22; Ottawa, April 19, 1984.
Labour relations — Appeal from Trial Division's dismissal
of motion to stay execution of adjudicator's decision filed with
Court under Code s. 61.5(12) — Decision ordering reinstate
ment of unjustly dismissed employee — Employer appealing
to Court of Appeal — Nauss and Purolator cases holding. (1)
Code s. 123 filing and registration of Board decision does not
give Court power to vary; (2) Trial Division has no power to
stay execution of filed Board decision — Proposition (1)
applicable to adjudicator's order — Cases overruled as to (2)
— Filing not giving decision of Board or adjudicator greater
force than Court judgment — Decision not altered by stay —
Appellant alleging inability to place confidence in respondent
— Proof of hardship to be suffered by appellant on execution
insufficient to establish interests of justice served by staying
presumptively valid decision — Appeal dismissed — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 61.5(9),(10),(11),(12) and
(13) (enacted by S.C. 1977-78, c. 27, s. 21), 119 (rep. and sub.
S.C. 1972, c. 18, s. 1), 122 (rep. and sub. S.C. 1977-78, c. 27, s.
43), 123 (rep. and sub. ibid.) — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 28(1)(a), 50(1)(b).
Jurisdiction — Labour relations — Appeal from Trial
Division's dismissal of motion to stay execution of adjudica
tor's decision filed with Court under Codes. 61.5(12) — Nauss
and Purolator cases holding (1) Code s. 123 filing and regis
tration of Board decision does not give Court power to vary; (2)
Trial Division has no power to stay execution of filed Board
decision — Proposition (1) applicable to adjudicator's order
— Cases overruled as to (2) — Filing not giving decision of
Board or adjudicator greater force than Court judgment —
Appeal dismissed — Canada Labour Code, R.S.C. 1970, c.
L-1, ss. 61.5(10),(11),(12) and (13) (enacted by S.C. 1977-78,
c. 27, s. 21), 122 (rep. and sub. S.C. 1977-78, c. 27, s. 43), 123
(rep. and sub. ibid.) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 50(1)(b).
Practice — Stay of execution — Appeal from Trial Divi
sion's dismissal of motion to stay execution of adjudicator's
decision filed with Court under Labour Code s. 61.5(12) —
Court overruling conclusion in Nauss and Purolator cases that
Trial Division has no power to stay execution of Board deci
sion filed under Code s. 123 — Filing not giving decision of
Board or adjudicator greater force than Court judgment —
Decision not altered by stay — Appeal dismissed — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 61.5(12) and (13)
(enacted by S.C. 1977-78, c. 27, s. 21), 123 (rep. and sub. S.C.
1977-78, c. 27, s. 43) — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 50(1) (b).
The respondent complained, under section 61.5 of the
Canada Labour Code, that he had been unjustly dismissed by
the appellant. Two years after the dismissal, the complaint was
upheld by the adjudicator, who ordered that the respondent be
reinstated, "in a position similar to that held by him at the time
of his dismissal".
The respondent filed the adjudicator's decision with the
Court, in accordance with subsection 61.5(12). The appellant,
having applied to the Court of Appeal to have the decision set
aside, brought a motion in the Trial Division, requesting a
"stay of any proceeding arising out of' the registration. The
motion was dismissed, on the ground that the judgment of the
Court of Appeal in Nauss and Purolator had negatived the
Trial Division's power to grant it. The decision of the Trial
Division was appealed.
Held (Marceau J. dissenting), the appeal should be
dismissed.
Per Pratte J. (Hugessen J. concurring): In the Nauss and
Purolator cases, two conclusions were set forth. The first was
that the filing and consequent registration of a decision of the
Canada Labour Relations Board in the Federal Court pursuant
to section 123 of the Code does not confer on the Court the
power to vary the decision concerned. This conclusion is cor
rect; moreover, there is no reasop why the same rule should not
apply where what is at issue is an adjudicator's order filed
under subsection 61.5(12).
Less acceptable is the second proposition, which was that the
Trial Division has no power to order a stay of execution with
respect to a duly filed decision of the Board. When a decision is
filed in the Court, under either section 123 or subsection
61.5(12), it is invested with the same force and effect, for
purposes of execution, that it would have possessed if it had
been rendered by the Court; however, filing does not impart to
a decision, either of the Board or of an adjudicator, greater
force than a decison of the Court would have. Consequently,
given that a court decision may be subjected to an order staying
execution, the same should be true of an adjudicator's decision
or a decision of the Board. This result does not conflict with the
first conclusion discussed above, for the ordering of a stay does
not alter the decision involved.
The Nauss and Purolator cases were therefore decided incor
rectly, insofar as the second proposition is concerned. Applica
tion of that rule would likely lead to serious hardship, and so it
should not be followed.
Accordingly, the Trial Judge did have jurisdiction to grant
the stay requested by the appellant.
Nevertheless, he was right not to do so. In a case of this kind,
the Court may stay proceedings if it appears that to stay them
would be in the interests of justice. The only proof before the
Court that execution of the order at issue might cause the
appellant to suffer harm consisted of an affidavit in which it
was stated that because the appellant can no longer place
confidence in its former employee (i.e., the respondent), execu
tion would cause it serious hardship. This evidence is insuffi
cient to establish that it is in the interests of justice to stay
execution of a decision which, until the contrary has been
proven, must be considered valid.
Per Marceau J. (dissenting): The fundamental propositions
advanced in Nauss and Purolator were: (1) that section 123 is
intended to provide a means of executing decisions of the
Board, neither the purpose nor the effect of the provision being
to transform such decisions into decisions of the Court; and (2)
that Board decisions must be regarded as final. These proposi
tions do entail the conclusion that the Trial Division is without
power to alter a decision of the Board, either directly or—by
means of a stay order—indirectly. Furthermore, analogous
rules apply where the decision in question is one made by an
adjudicator. The basic propositions, though, do not necessarily
imply the complete want of jurisdiction which the Trial Judge
inferred. They need not be taken as completely denying the
Trial Division the power temporarily to withhold the assistance
of the Court's forced-execution proceedings, in respect of a
decision of the Board or of an adjudicator.
Nor should this additional restriction on the Court's author
ity be found to exist. The execution proceedings to which filing
and registration (prima fade) give access remain proceedings
of the Court. The Court must, and does, retain control of them.
Language clearer than that of the present Code would be
required in order to warrant the conclusion that Parliament
intended the Court to perform the function of execution but to
do so blindly and passively, without there being any possibility
of recourse to the powers conferred by section 50 of the Federal
Court Act, even for the purpose of safeguarding and maintain
ing the Court's own jurisdiction.
The Trial Division should have the power to grant a tempo
rary stay of execution where two conditions are met. First, the
judge must be satisfied that immediate execution is likely to
detract from the effectiveness of any finding of invalidity which
the Court of Appeal might later make in regard to the particu
lar decision. Secondly, there must be no likelihood that the stay
will affect the possibility of future execution.
These two conditions are fulfilled in the case at bar. If the
appellant were forced to re-employ the respondent and to place
him in a senior position, while it is engaged in proceedings
against him, in which it is attempting to establish its complete
loss of confidence in him, there would likely be serious adverse
effects upon the operation of the appellant—effects not suscept
ible of adequate repair. However, delaying the respondent's
return to his job for a few additional weeks, with more than two
years having already elapsed, will not cause the respondent any
non-compensable injury.
CASES JUDICIALLY CONSIDERED
APPLIED:
Talsky v. Talsky (No. 2) (1974), 39 D.L.R. (3d) 516
(Ont. C.A.); Battle Creek Toasted Corn Flake Co. Ltd.
v. Kellogg Toasted Corn Flake Co. (1924), 55 O.L.R.
127 (131) (H.C.—Chambers).
OVERRULED:
Nauss et al. v. Local 269 of the International Longshore-
men's Association, [1982] 1 F.C. 114 (C.A.); Union des
employés de commerce, local 503 et al. v. Purolator
Courrier Ltée, [1983] 2 F.C. 344 (C.A.).
COUNSEL:
J. A. Coleman and J.-A. Nadeau for
appellant.
G. Monette for respondent.
SOLICITORS:
Ogilvy, Renault, Montreal, for appellant.
Monette, Clerk, Barakett, Levesque, Bourque
& Pedneault, Montreal, for respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The National Bank of Canada is
appealing from a judgment of the Trial Division
[dated January 9, 1984, T-2921-83, not yet report
ed] which dismissed its motion for a stay in the
execution of a decision by an adjudicator, which
had been filed in the Court pursuant to subsection
61.5(12) of the Canada Labour Code [R.S.C.
1970, c. L-1 (s. 61.5 enacted by S.C. 1977-78, c.
27, s. 21)]. 1
This decision was made by an adjudicator after
a complaint by respondent, pursuant to section
61.5 of the Code, that he had been unjustly dis
missed by appellant. The adjudicator upheld
respondent's complaint: he admitted that respond
ent had acted in an irregular manner, but found
that his actions were not serious enough to justify
dismissal. The adjudicator accordingly ordered
that respondent be reinstated [TRANSLATION] "in
a position similar to that held by him at the time
' This subsection reads as follows
61.5...
(12) Any person affected by an order of an adjudicator under
subsection (9), or the Minister on the request of any such
person, may, after fourteen days from the date on which the
order is made, or the date provided in it for compliance,
whichever is the later date, file in the Federal Court of Canada
a copy of the order, exclusive of the reasons therefor.
of his dismissal"; he further stated that respondent
was entitled to compensation for the financial loss
resulting from his dismissal up to August 9, 1982,
but he made no order in this regard, reserving the
right to do so later if the parties did not agree on
the matter.
Respondent filed this decision in the Registry of
the Court pursuant to subsection 61.5(12) of the
Code. 2 . In accordance with section 28 of the Fed
eral Court Act [R.S.C. 1970 (2nd Supp.), c. 10],
applicant filed an originating notice asking that
this order be set aside. Applicant then filed in the
Trial Division a motion asking the Court to stay
execution of the decision. Appellant did not wish
to be required to re-employ respondent so long as
the Court had not ruled on the validity of the
decision. This stay motion was dismissed by the
judgment a quo on the sole ground that the Trial
Division, following the decisions of this Court in
Nauss' and Purolator, ° did not have the power to
grant it. In those two cases the Court held that the
filing of a decision of the Canada Labour Rela
tions Board with the Registry of the Court pursu
ant to section 123 of the Canada Labour Code
[rep. and sub. S.C. 1977-78, c. 27, s. 43], a
provision similar to subsection 61.5(12), did not
confer on the Trial Division the power to stay
execution of that decision.
Counsel for the appellant invited the Court not
to follow these precedents. He pointed out that
Nauss and Purolator related to decisions of the
Canada Labour Relations Board, whereas this is
an order of an adjudicator. While a Board deci
sion, he argued, is always open to review (section
119 [rep. and sub. S.C. 1972, c. 18, s.1]) and may
not be filed in the Registry of the Court without
2 Subsection 61.5(12) authorizes the filing not of decisions of
an adjudicator but of "orders" made by the adjudicator pursu
ant to subsection 61.5(9): in other words, the only effect of
filing the award in the case at bar was to give effect to the
reinstatement order it contained.
' Nauss et al. v. Local 269 of the International Longshore-
men's Association, [1982] 1 F.C. 114 (C.A.).
Union des employés de commerce, local 503 et al. v.
Purolator Courrier Ltée, [1983] 2 F.C. 344 (C.A.), case no.
A-399-82, a decision of October 15, 1982.
the Board's approval (subsection 123(1)), an order
of an adjudicator cannot be altered after it has
been made and may be filed in the Registry by
"any person affected" without any control. In the
submission of counsel for the appellant, this means
that if Nauss and Purolator are applied to orders
of an adjudicator, there would be no authority
which could stay their implementation. He argued
that this unacceptable result means the Court
should either refuse to apply Nauss and Purolator
to orders of an adjudicator or rule that these cases
should not be followed.
In Nauss and Purolator the Court held, first,
that the registration of a Board decision in the
Registry of the Court did not confer on the Court
the power to vary that decision. This finding
appears to be correct, and I do not see why it
should not apply to orders of an adjudicator filed
pursuant to subsection 61.5(12) as well as to deci
sions of the Board. Nauss and Purolator also held
that the Trial Division does not have the power to
order a stay in execution of a Board decision filed
under section 123. It is this latter ruling which was
challenged by counsel for the appellant.
When a decision is filed in the Registry of the
Court under subsection 61.5(12) or section 123, it
acquires the same executory force as if it had been
rendered by the Court. This means that it is
subject to forced execution just as a Court judg
ment would be. However, filing does not give
decisions of an adjudicator or of the Board more
force than a decision of the Court would have. A
decision of the Court can be the subject of a stay
order. Logically, the same should be true of deci
sions which are placed by sections 61.5 and 123 of
the Canada Labour Code on the same footing as
decisions of the Court. The fact that the Court
does not have the power to vary those decisions
does not invalidate this conclusion, since in order
ing a stay in the execution of a decision by the
Board or by an adjudicator the Court changes
nothing in that decision, but merely directs that
the failure to comply with it so long as the stay is
in effect shall not be a basis for forced-execution
proceedings in the Court. In so doing the Court is
only exercising, in accordance with paragraph
50(1)(b) of the Federal Court Act its power to
stay proceedings when it seems proper to do so.
I therefore see that Nauss and Purolator were
wrongly decided. It is all the more embarrassing
for me to have to say this as I myself rendered
these two decisions for the Court; but as applica
tion of the rule stated in those two cases seems
likely to lead to serious hardship, I think it should
now be said that those two cases ought not to be
followed insofar as they held that the Trial Divi
sion does not have the power to order a stay in the
execution of a decision filed in the Registry of the
Court under section 123 of the Canada Labour
Code.
I am accordingly of the view that the Trial
Judge had jurisdiction to grant the stay requested
by appellant. The question remains as to whether
he ought to have done so.
The principle that must guide the Court in a
case of this kind is very tersely stated in section 50
of the Federal Court Act, under which the Court
may stay the proceedings in any matter when it
appears that doing so "is in the interest of justice".
For a further clarification of this rule reference
may be had to the decision of Arnup J.A. of the
Ontario Court of Appeal in Talsky v. Talsky (No.
2) (1974), 39 D.L.R. (3d) 516. There the Court
had before it an application for a stay of a decision
of the Ontario Court of Appeal which was being
appealed to the Supreme Court of Canada. It
referred to what Middleton J. had said on the
same point in Battle Creek Toasted Corn Flake
Co. Ltd. v. Kellogg Toasted Corn Flake Co.
(1924), 55 O.L.R. 127 (131) (H.C.—Chambers).
Arnup J.A. first cited [at page 522 D.L.R.] the
following passage from the decision of Middleton
J. [at page 132 O.L.R.]:
In all cases in which the stay will impose little suffering upon
the respondent, and this can be compensated by payment of
actual damages which admit of easy and substantially accurate
computation, and in which on the other hand grievous loss and
irremediable harm will be done the appellant if the stay is
refused, the operation of the judgment ought to be stayed. The
principle then is the same as that applied in the case of an
application for an interim injunction—the balance of conve
nience, with an added factor of the greatest weight, the actual
adjudication that has taken place, and which must be regarded
as prima facie right.
Arnup J.A. went on to observe [at page 522]:
Middleton, J., then proceeded to discuss a number of the
English cases in which the question of granting or refusing a
stay had been considered and I think [...j that they hold, in
general, that the Court exercises the power in order to prevent
a situation arising where an appellant wins in the ultimate
Court but finds following his victory that in the meantime
either the subject-matter of the lawsuit has disappeared or he
has been required to make a payment which he cannot recover
back, or in some other way the litigation and its ultimate result
has been rendered nugatory.
If I apply these considerations to the case at bar,
I think it is clear that appellant was not entitled to
the stay it was requesting. The only proof in the
record of any harm that might be suffered by
appellant if it had to execute the adjudicator's
order consisted of an affidavit of its counsel stating
that execution of the adjudicator's order would
cause appellant serious hardship because it can no
longer place confidence in its former employee. In
my view, it cannot be said on the basis of this
evidence that it is in the interests of justice to stay
execution of a decision which, until there is proof
to the contrary, must be considered valid.
I would dismiss the appeal with costs.
HUGESSEN J.: I concur.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J. (dissenting): The circumstances
surrounding this appeal from a judgment of the
Trial Division are quite straightforward, and may
be examined forthwith.
On November 10, 1983 an adjudicator, acting
pursuant to Part III of the Canada Labour Code,
made an order in which he found that appellant
had wrongly dismissed respondent two years ear
lier and directed it to reinstate the latter as a
member of its full-time staff, and to compensate
him for the loss of salary he had suffered. In
accordance with section 28 of the Federal Court
Act, appellant then challenged the validity of this
decision by the adjudicator in the Federal Court of
Appeal. However, when it learned shortly thereaf
ter that the decision had been filed in the Registry
of the Trial Division, and so registered—which
under subsection 61.5(13) of the Code gave it the
executory force of a judgment of the Court—and
at the same time was put on notice by respondent
to comply with the directions of the adjudicator
without delay, appellant applied to the Trial Divi
sion to have the filing of the decision invalidated,
or at least, for a "stay of any proceeding arising
out of" the registration to be imposed and to have
effect until the decision is finally affirmed, if that
happens. The Judge hearing the motion summarily
dismissed it on the ground that the two appellate
judgments, Nauss et al. v. Local 269 of the Inter
national Longshoremen's Association, [1982] 1
F.C. 114 (C.A.), and Union des employés de
commerce, local 503 et al. v. Purolator Courrier
Ltée, [1983] 2 F.C. 344 (C.A.) (case no.
A-399-82, a decision of October 15, 1982), denied
him any jurisdiction to respond to it. It is this
decision which is before the Court: appellant main
tains that the Judge erred on the motion for a stay,
that he had jurisdiction to grant it and should have
done so, and it asks the Court to intervene. 5
I consider that this appeal is valid and should
succeed. In my view, first, Nauss and Purolator do
not necessarily lead to the conclusion of a total
lack of jurisdiction deduced from them by the
Trial Judge, and this conclusion is one which, both
in terms of principle and of practical convenience,
should be rejected; and second, appellant's applica
tion should have been given favourable considera
tion in the circumstances of the case at bar.
1. There is no doubt that certain passages of the
short reasons rendered in support of Nauss and
Purolator do appear to give a very wide ambit to
the findings of a lack of jurisdiction made there.
Nevertheless, I consider that the fundamental pro
s Since its inscription in appeal appellant has entered in the
record of the application to set aside under section 28 a motion
to stay in the same terms as that made in the Trial Division.
Accordingly, the question of whether this Court has jurisdiction
to order a stay of execution of a decision made under the
Canada Labour Code, whether in its Trial Division or in the
Court of Appeal, is squarely presented. For the moment, how
ever, only the Trial Division is in question.
positions put forward by the appellate Judges in
those cases do not lead to conclusions of indefinite
extent. As I understand them, these propositions
are as follows: (a) section 123 of Part V of the
Canada Labour Code is intended to provide a
means of making decisions of the Canada Labour
Relations Board enforceable, and neither its pur
pose nor effect is to transform these decisions into
decisions of this Court; (b) section 119 and 122
[rep. and sub. S.C. 1977-78, c. 27, s-43] of this
Part of the Code clearly indicate that Board deci
sions should be regarded as final and may not be
questioned or reviewed in any court, except within
the specified limits (that is, in accordance with
paragraph 28(1)(a) of the Federal Court Act).
The appellate Judges applied these fundamental
propositions so as to deny the Trial Division the
power to alter a decision of the Board, either
directly by ad hoc order or indirectly by a stay
order. It must be recognized that the two proposi
tions put forward lead to the conclusion stated,
just as it must be admitted that corresponding
propositions apply in the case of adjudicator's
decisions pursuant to Part III of the Code, since
subsections 61.5(10),(11),(12) and (13 ), which
govern these decisions by an adjudicator, are
essentially to the same effect as sections 119, 122
and 123 so far as Board decisions are concerned.
However, these propositions do not necessarily
lead to denying the Trial Division's power to tem
porarily refuse to lend its forced-execution pro
ceeding to a decision of the Board or an adjudica
tor, provided the delay which is likely to result
from such a temporary refusal does not have the
effect of substantially altering the decision or of
making its eventual execution doubtful.
Why is it necessary to go this far? In providing
that filing and registration in the Registry give the
decision of an adjudicator the same force and
effect as a judgment of the Court, the statute
clearly intends to make the forced-execution pro
ceedings by which the Court exercises its powers of
constraint applicable to orders made by the
adjudicator, but these proceedings remain proceed
ings of the Court over which it must and in fact
does retain control: it is not the Board or the
adjudicator which compels execution of the deci
sion, it is the Court. I think there would have to be
clearer language than that of the present statute to
indicate that Parliament intended to confer the
function of execution on this Court while asking it
to exercise that function blindly and passively,
with no scope for appeal to the powers conferred
(though in general terms) by section 50 of its
enabling Act, even in order to safeguard and main
tain its own jurisdiction.
The latter observation indicates, I believe, where
the dividing line should be drawn, so as both to
give effect to the intent of Parliament to make
decisions of the Board and of adjudicators final,
and not to strip the Court of all power of supervis
ing its own special proceedings, which exist essen
tially for its own purposes. I think it is only right
that, in its Trial Division, the Court should have
the power to temporarily refuse to lend its aid to
compel the immediate execution of a decision, if it
appears that such immediate forced execution
would have the effect of making pointless, illusory
or only partially effective the power of reviewing
and supervising legality which is exercised by the
Court of Appeal.
If the Trial Division is thus granted the power to
temporarily refuse its aid to the forced execution
of a decision of an adjudicator registered in its
Registry, the validity of which has been challenged
under section 28, I consider, with respect for those
who do not share my view, that in the case at bar
this power should have been exercised.
I have just indicated what I feel are the limits of
this power of the trial judge and the reasons which
may prompt its exercise. Two conditions seem
essential: first, that the judge be satisfied that
immediate execution is likely to impair the effec
tiveness of the eventual finding of invalidity which
the Court of Appeal might make; and second, that
a stay of execution not be likely to affect the
possibility of future execution of the decision. In
my view, these two conditions are met here. Forc
ing appellant to reinstate respondent in its employ
immediately and to place him again in a senior
position of responsibility while it is at the same
time engaged in proceedings against him, seeking
to establish that it has completely lost confidence
in him, would I think be likely to have serious
repercussions for its operations which no judgment
of a court could adequately repair. On the other
hand, delaying respondent's return to his job for a
few additional weeks, after over two years, will
cause him no injury which payment of the salary
which he has lost in the meantime cannot repair.
Accordingly, I would set aside the decision of
the Trial Judge and, making the decision he ought
to have made, I would direct that no forced-execu
tion proceeding be issued in respect of the decision
of the adjudicator registered on December 13,
1983, so long as the application to set aside made
against that decision under section 28 has not been
finally decided, or a trial judge has not terminated
this stay order by giving effect to a motion in this
regard based on the occurrence of new facts. How
ever, I would make the implementation of this stay
order subject to the filing by appellant in the
record of the Court of a written undertaking that,
if the decision is affirmed, it will pay respondent
without delay what he would have been entitled to
if he had been reinstated in his position
immediately.
I would not award costs in the proceedings
leading to this order to either of the two parties.
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.