T-639-88
Canada Post Corporation, Harold Dunstan,
Robert Boisvert, Ron Hardowa and Robert Sand
ers (Plaintiffs)
v.
Canadian Union of Postal Workers, Letter Carri
ers Union of Canada, Canadian Labour Congress,
Mediacom and Union Communications (Defen-
dants)
INDEXED AS: CANADA POST CORP. V. C. U.P.W.
Trial Division, Rouleau J.—Ottawa, May 10 and
13, 1988.
Federal Court jurisdiction — Trial Division — Defendants
publishing advertisements criticizing mail service under Mul-
roney Government, purportedly on behalf of Canada Post
employees — Action for injunction restraining breach of
Canada Post Corporation Act (giving corporate plaintiff right
to exclusive use of "Canada Post"), Canada Labour Code and
Charter — Alleging statements false and misleading as not
representative of sentiments of all Canada Post employees —
Action not under federal statutes, but in tort — Federal Court
Act, s. 23 requiring claim under Act of Parliament and enu
merated head — No express grant of jurisdiction in Act or
Code — Question of whether applicable and existing federal
law dependent upon determination of whether action relating
to better administration of laws of Canada — Canada Labour
Code not suggesting matter concerning labour relations — No
civil cause of action under Code — Existence of quasi-crimi
nal offence in Canada Post Corporation Act to prevent abuse
of use of "Canada Post" not creating civil cause of action —
No nominate tort based on breach of statutory provision alone
— Although operation of Post Office under federal legislation,
this matter far removed from movement of mail — Charter, s.
2 alone not foundation for Court's jurisdiction as not federal
enactment.
Constitutional law — Charter of Rights — Fundamental
freedoms — Allegation freedoms of association and expression
abrogated by Unions' publication of advertisements critical of
mail service and government on behalf of Canada Post
employees — Charter, s. 2 not applicable — Charter protect
ing rights of individual against abrogation by state, not rights
of Crown employees against abrogation by Unions — Charac
terization of party in breach of obligations, not victim, impor
tant — Unions not owing duty under Charter — Charter not
applicable in dispute between parties — Charter, s. 2 alone not
foundation for Court's jurisdiction as not federal enactment.
Postal service — Canada Post Corporation and non-union
ized employees suing unions for publishing advertisements,
purportedly on behalf of Canada Post employees, critical of
Mulroney Government — Motion to strike as disclosing no
reasonable cause of action — Court lacking jurisdiction —
Matter to be determined under neither Canada Post Corpora
tion Act nor Canada Labour Code — Not question of labour
relations in Post Office — Statutory prohibition against unau
thorized use of "Canada Post" not creating civil cause of
action — Matter far removed from Corporation's duty of
moving mail — Unions having no duty to plaintiffs under
Charter.
This was a motion to strike the statement of claim as
disclosing no reasonable cause of action. The defendants had
published advertisements which criticized the mail service
under the Mulroney Government on behalf of "your Canada
Post employees". The plaintiffs' action was for an injunction
restraining continuing breaches of the Canada Labour Code in
the form of abuses of the rights and obligations under the Code,
and the Canada Post Corporation Act, which grants the Corpo
ration exclusive use of the name "Canada Post". The plaintiffs
alleged that the advertisements were false and misleading as
they did not represent the sentiments of all the employees of
Canada Post. Thousands of Canada Post employees are not
represented by the defendant Unions. The defendants submit
ted that the plaintiffs' complaint sounded in tort and that
without a specific assignment of jurisdiction in a federal enact
ment, the plaintiffs' claims could not be entertained by this
Court. The plaintiffs argued that the relief sought was founded
in two federal statutes. The plaintiffs asserted that the Unions
did not have the right to represent those individual employees,
particularly in the political sphere. They argued that the funda
mental freedom of expression of the individual employees, as
guaranteed by the Charter, has been abrogated. The issue was
whether this action came under federal legislation, or under
torts, in which case it could only be brought in the courts of the
provinces.
Held, the motion should be allowed.
This matter did not fall to be determined under either the
Canada Post Corporation Act or the Canada Labour Code as
these statutes do not govern the relationship between the
parties with respect to the relief sought. The plaintiffs were not
attempting to enforce the provisions of a federal enactment, but
to mount a civil action in a Court which does not have
jurisdiction to hear the matter.
The Federal Court was created by statute and the conditions
under which a matter falls within its jurisdiction must be
specifically construed within the terms of the Federal Court
Act and any other enactment in which jurisdiction is assigned
to it. The jurisdiction of the Federal Court is not as broad as
the sphere of legislative competence of the federal government.
Between party and party the Federal Court does not have
jurisdiction unless a grant thereof is specifically made. The fact
that matters otherwise outside the Court's jurisdiction may be
causally intertwined with issues properly before the Federal
Court does not warrant an extension of jurisdiction. Where
there are multiple parties and multiple causes of action, each
party and cause of action must be independently within the
jurisdiction of the Court.
The three conditions which must be met for the Federal
Court to have jurisdiction were set out in ITO—International
Terminal Operators Ltd. v. Miida Electronics Inc. et al.,
[1986] 1 S.C.R. 752. The first requirement, that there be a
statutory grant of jurisdiction by the federal Parliament, is
satisfied if jurisdiction is granted either in the Federal Court
Act or in some other federal enactment. The plaintiffs relied on
sections 17 and 23 of the Federal Court Act. Section 17 does
not apply as it refers only to actions against the Crown eo
nomine, and none of the defendants are Crown officers or
servants. In order to rely on section 23, the claim must be made
under an Act of the Parliament of Canada, and it must come
under one of the enumerated heads, i.e. the remedy must relate
to a matter coming within "works and undertakings connecting
a province with any other province or extending beyond the
limits of a province." The fact that a complaint is made against
a union representing some workers on a federal undertaking
does not give jurisdiction to the Federal Court unless the
remedy is contemplated by a federal statute. There is no
express grant of jurisdiction in the Canada Post Corporation
Act or the Canada Labour Code.
The second requirement is that there be a specific federal
enactment expressly dealing with the subject in issue. Federal
competence without legislative action is not sufficient. Section
101 of the Constitution Act, 1867 permits Parliament to estab
lish Courts "for the better administration of the laws of Cana-
da." It was necessary to determine whether the action relates to
a better administration of the laws of Canada. The plaintiffs
attempted to characterize the Unions' actions as a breach of
their obligations under the Canada Labour Code and therefore
within the sphere of federal labour relations. However, there is
no specific section in the Code to suggest that this matter is a
question of labour relations in the Post Office. There was no
question of enforceable obligations between a union and its
members because none of the plaintiffs were members of the
defendant Unions. The Code does not provide any civil cause of
action for a union falsely attributing untrue statements to
non-members. These allegations clearly sound in tort. The mere
recitation of a federal statute does not meet the second require
ment of ITO. The plaintiffs also asserted a civil cause of action
under subsection 52(2) of the Canada Post Corporation Act
(which makes the unauthorized use of the name "Canada Post"
or "Post Office" an offence). Sections 52, 54, 55 and 58 cannot
be extended to create a civil cause of action. There is no
nominate tort based on the breach of a statutory provision
alone. A cause of action must exist separate and apart under
the law of tort. Without some indication in the Canada Labour
Code or the Canada Post Corporation Act that such an action
was contemplated in the statute, the breach of any provision of
the Acts cannot be presumed to lead to a civil cause of action
for the plaintiffs. Furthermore, the only underlying tort would
be defamation which cannot be viewed as necessary for the
better administration of the Canada Post Corporation Act.
Nor did this matter fall under Federal Court jurisdiction
pursuant to section 13 of the Canada Post Corporation Act,
which allows Canada Post to engage employees to carry out the
Corporation's business. None of the defendants is employed by
Canada Post. This matter is far removed from the orderly
movement of mail, which is the Corporation's major
responsibility.
The plaintiffs' argument, that the Unions had abrogated
their Charter guaranteed freedoms of association and expres
sion, had to be rejected. The Charter protections exist to
safeguard the rights of the individual against abrogation by the
state. It has no application in a dispute between private parties.
The plaintiffs did not establish that the Unions were bodies who
could' owe them a duty under the Charter. The mere fact that
the defendant Unions are certified under the Canada Labour
Code in respect of bargaining units other than the one to which
the individual plaintiffs belong, does not make this a Charter
issue. In any case, the Charter is not "applicable and existing
federal law" as it is not an enactment of the federal
government.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Broadcasting Act, R.S.C. 1970, c. B-11.
Canada Labour Code, R.S.C. 1970, c. L-2, ss. 136 (as
am. by S.C. 1972, c. 18, s. 1), 184 (as enacted idem),
185 (as enacted idem).
Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54,
ss. 22(5), 52(2), 54, 55, 58.
Canada Student Loans Act, R.S.C. 1970, c. S-17.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 2(b),(d).
Carriage by Air Act, R.S.C. 1970, c. C-14.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5 (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1)].
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 3,
17, 23.
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a).
Prairie Grain Advance Payments Act, R.S.C. 1970, c.
P-18.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida
Electronics Inc. et al., [1986] 1 S.C.R. 752; Rasmussen
v. Breau, [1986] 2 F.C. 500 (C.A.); Bensol Customs
Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575 (C.A.);
Quebec North Shore Paper Co. et al. v. Canadian Pacific
Ltd. et al., [1977] 2 S.C.R. 1054; R. in right of Canada
v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.
DISTINGUISHED:
Lavigne and Ontario Public Service Employees Union et
al., Re (1986), 55 O.R. (2d) 449 (H.C.).
CONSIDERED:
Varnam v. Canada (Minister of National Health and
Welfare), [1988] 2 F.C. 454 (C.A.); Mid West Television
Ltd. v. S.E.D. Systems Inc., [1981] 3 W.W.R. 560 (Sask.
Q.B.).
REFERRED TO:
Alda Enterprises Ltd. v. R., [1978] 2 F.C. 106 (T.D.); R.
v. Thomas Fuller Construction Co. (1958) Ltd. et al.,
[1980] 1 S.C.R. 695; McNamara Construction (Western)
Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; Rhine v.
The Queen; Prytula v. The Queen, [1980] 2 S.C.R. 442;
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573;
Re Ontario English Catholic Teachers Association et al.
and Essex County Roman Catholic School Board
(1987), 58 O.R. (2d) 545 (Div. Ct.); Northern Telecom
Canada Ltd. et al. v. Communication Workers of Canada
et al., [1983] 1 S.C.R. 733; National Association of
Broadcast Employees and Technicians v. R., [1980] I
F.C. 820 (C.A.).
COUNSEL:
Roy L. Heenan and Thomas Brady for
plaintiffs.
Paul B. Kane and Hugh Blakeney for defen
dant Canadian Union of Postal Workers.
Phillip G. Hunt for defendants Letter Carri
ers' Union of Canada and Canadian Labour
Congress.
Melvin Rotman for defendant Union Com
munications.
SOLICITORS:
Heenan, Blaikie, Montréal for plaintiffs.
Perley-Robertson, Panet, Hill & Mac-
Dougall, Ottawa, for defendant Canadian
Union of Postal Workers.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for defendants
Letter Carriers' Union of Canada and
Canadian Labour Congress.
Nelligan/Power, Ottawa, for defendant
Mediacom.
Rotman, Zagdanski & Tierney, Toronto, for
defendant Union Communications.
The following are the reasons for order ren
dered in English by
ROULEAU J.: These are my reasons for the order
and comments from the Bench made by me on
May 10, 1988 in the above-styled action. The
defendant, Canadian Union of Postal Workers,
assisted by the defendant, Union Communications,
appeared before me to argue that the statement of
claim should be struck in its entirety pursuant to
Rule 419(1)(a) of the Federal Court Rules
[C.R.C., c. 663] as disclosing no reasonable cause
of action within the jurisdiction of this Court.
The defendants alleged that the complaint of the
plaintiffs as outlined in the statement of claim
sounded in tort, and that without a specific assign
ment of jurisdiction to this Court in either the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10], or any other federal enactment, the plaintiffs'
claims could not be entertained by this Court. The
plaintiffs strongly resisted the motion, arguing
principally that the relief that they sought was
founded in two federal statutes and that this Court
had jurisdiction to issue an injunction to restrain a
continuing breach of these statutes. The plaintiffs'
counsel indicated that the claim for damages in
the statement of claim was merely ancillary to the
main claim for an injunction.
As I stated in Court, I am of the opinion that
the defendants are correct, and the statement of
claim has been struck pursuant to my order of
May 10, 1988. As counsel appearing before me
spent considerable time and effort in preparing
and arguing their clients' cases, I indicated that I
would deliver written reasons to explain how I
arrived at my conclusion.
In order to fully appreciate the positions of the
parties it is necessary to briefly review the state
ment of claim, and the facts of this case. I am of
course mindful that for the purposes of this
motion, all the facts in the statement of claim shall
be taken to be true as pleaded.
The plaintiffs in this action are Canada Post
Corporation, a Crown Corporation established
under the Canada Post Corporation Act, S.C.
1980-81-82-83, c. 54, and four non-unionized
employees of Canada Post Corporation ("Canada
Post").
The defendants are two trade unions represent
ing some of Canada Post's employees, namely The
Canadian Union of Postal Workers (cupw) and
The Letter Carriers' Union of Canada (Lcuc); the
Canadian Labour Congress (cLc), an organization
of trade unions with which cupw and LCUC are
affiliated, and Mediacom and Union Communica
tions, the agents of cupw and Lcuc for the pur
poses of the advertising campaign. cupw and
LCUC are both trade unions certified as bargaining
agents in respect of different bargaining units of
Canada Post employees under section 136 of the
Canada Labour Code [R.S.C. 1970, c. L-2 (as am.
by S.C. 1972, c. 18, s. 1)].
The plaintiffs allege that some 21,000 Canada
Post employees are represented by unions other
than CUPW or LCUC for collective bargaining pur
poses, and 3,500 of this number, like the individual
plaintiffs, are not represented by any union at all.
In April 1988, advertisements started to appear
in newspapers, on billboards and radio across the
country which appeared to criticize the state of the
mail service under the Mulroney Government, and
in some cases expressed a lack of confidence in the
leadership of the Prime Minister. The advertise
ments for the most part contained statements such
as "CANADA POST, IT CAN DELIVER", "A MES
SAGE FROM THE PEOPLE WHO MOVE YOUR MAIL.
YOUR CANADA POST EMPLOYEES" or in the
French version, "JE VEUX UN GOUVERNEMENT
AUQUEL JE PUISSE FAIRE CONFIANCE. BRIAN MUL-
RONEY? NON, JAMAIS! UN MESSAGE DES GENS QUI
S'OCCUPENT DE VOTRE COURRIER: LES EMPLOYÉS
SYNDIQUÉS DE POSTES CANADA". It was admitted
that these advertisements originated with CUPW,
LCUC and cLc and not with the plaintiff, Canada
Post.
The plaintiffs allege that these advertisements
are false and misleading in that they do not repre
sent the sentiments of either the plaintiffs or all
the employees of Canada Post. At best, they
allege, the advertisements only represent the views
of some of the leaders of the defendant Unions.
The plaintiffs allege that the individual employees
of Canada Post have not given any mandate,
express or implied to the defendant Unions to
represent them in the political sphere, especially
the 21,000 employees who are not even members
of these Unions.
To appreciate the consequences in law which the
plaintiffs allege flow from these facts, it is neces
sary to reproduce in full paragraphs 18 to 30 of the
statement of claim:
18. As appears from the Act, the use of the words "Canada
Post" is restricted to Canada Post Corporation and it is an
offence to place the words "Canada Post" on anything
without the written consent of the Corporation;
19. Canada Post has never consented to the use of its name on
any of the advertisements referred to;
20. The Defendants Mediacom and Union Communications
have participated in the mischief outlined above in allow
ing messages to be publicized that they knew or should
have known were factually untrue and are at best propa
ganda, and, more particularly, in allowing advertisements
to be seen and heard which purportedly represent the
political views of the Plaintiff Canada Post and/or the
employees of Canada Post rather than the political views
of the Defendants C.u.P.w., L.C.U.C. or the C.L.C.:
21. Under the Canada Labour Code, all employees in the
bargaining units represented by the Defendants C.u.P.w.
and L.c.u.c. are obliged to be represented by those organi
zations for collective bargaining purposes, whether they
wish it or not, and are thus deprived of the right to bargain
individually. However, they are deprived of none of their
individual political rights, nor can these be usurped by the
Defendants C.U.P.W., L.c.u.C. or C.L.c.;
22. The Defendants C.u.P.w. and L.c.u.c. purport, in the
purely political advertising referred to in paragraphs 6 to
15 hereof, to represent the political views of all the
employees of the Plaintiff Canada Post not merely those
whom they represent for purposes of collective bargaining;
23. The Defendants C.u.P.w. and L.c.u.c. have abrogated the
fundamental freedom of expression and freedom of con
science of the individual employees of the Plaintiff Canada
Post in purporting to speak politically in their names, a
right that the Defendants do not and cannot constitutional
ly have without a specific individual mandate to that effect
from each individual employee whom they purport to
represent politically;
24. The texts used in the advertising campaign are likely to
mislead, have misled and will mislead members of the
public into believing that the said texts represent the views
of the Plaintiff Canada Post and/or of the Plaintiff Canada
Post's employees;
25. It is submitted that the Plaintiff Canada Post has suffered,
is suffering and will continue to suffer damage to its
reputation from an imputation of a course of conduct on
the part of its employees which is incompatible with their
duties as employees of a Crown Corporation;
26. The misrepresentation in the advertisement that the mes
sage comes from the Plaintiff Canada Post and/or the
employees of Canada Post causes serious and irreparable
prejudice to the Corporation and is fundamentally detri
mental to the Corporation and is fundamentally detrimen
tal to the Corporation's role of providing postal service to
all Canadians, and its own freedom of speech. The Defen
dants are not entitled to use the names of Canada Post
Corporation or of Canada Post Corporation employees to
embarass the Corporation both politically and in the public
eye;
27. It is submitted that in view of the facts set out in
paragraphs 1 to 20 hereof, the action of the Defendants
c.u.P.w. and L.c.u.c. constitutes an abuse of the right
conferred upon them by the CanadaLabour Code and the
Act to represent certain employees of the Plaintiff Canada
Post for collective bargaining purposes;
28. It is further submitted that the Plaintiffs suffer prejudice
in that the advertisements misrepresent the political posi
tion of the employees of the Plaintiff Canada Post;
29. The Defendants c.u.P.w. and L.c.u.c. in the newspaper,
billboard and radio advertisements are representing that
the employees on whose behalf these Defendants are pur
porting to act are in breach of the fundamental duty of
loyalty called for by their employment and are engaged in
a course of conduct incompatible with their duties as
employees of a Crown Corporation;
30. It is further submitted that no effective remedy exists
other than by way of injunction for the wrongs suffered
and being suffered and damages incurred and being
incurred by the Plaintiffs as set out in paragraphs 20 to 28
hereof;
At first blush, from the manner in which this
pleading is drafted, one could conclude that the
remedy sought by the plaintiffs was in respect of
something akin to defamation with an appropriate
relief in damages. The plaintiffs naturally enough
vehemently denied this proposition and chose to
characterize their action very differently.
In fact, the corporate plaintiff alleges that the
relief sought is based on their right to the exclusive
use of the name "Canada Post" accorded to the
Corporation under the Canada Post Corporation
Act; as well as the abuses committed by the
defendant Unions of their rights and obligations
under the Canada Labour Code. On behalf of the
individual plaintiffs it is alleged that they are
harmed by the actions of the defendant Unions
acting in breach of the Canada Labour Code, and
more seriously that the fundamental freedoms of
these individuals under the Canadian Charter of
Rights and Freedoms being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] have been abrogated.
In sum, it must be determined whether the
matters alleged by the plaintiffs fall under the
Canada Labour Code, the Canada Post, Corpora
tion Act and the Canadian Charter of Rights and
Freedoms, or under tort law. The latter action,
presumably being something akin to defamation,
could only be brought in the courts of the prov
inces, something which counsel for the plaintiffs
did not seriously contest.
A solution must be found by a characterization
of the causes of action asserted by the plaintiffs
and an analysis of them in the light of the jurispru
dence relating to the jurisdiction of this Court.
I would like to say, at the outset, that the
problem of the jurisdiction of the Federal Court is
not principally a constitutional law problem
requiring a determination of competing provincial
and federal interests for its resolution. Regardless
of one's personal vision of the possible role of a
Federal Court as providing a cross-Canada forum,
it must be remembered that this Court, as current
ly constituted, is a statutory one, and the condi
tions under which a matter falls within its jurisdic
tion must be strictly construed within the terms of
its founding statute, and any other enactment in
which jurisdiction is assigned to it.
Once this threshold requirement is met, a closer
examination of the cause of action before the
Court may reveal that the federal government, in
legislating with respect to the particular subject-
matter at hand, has acted beyond its constitutional
mandate pursuant to the separation of powers in
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5 (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)]. This is
however a different question, and not one which
arises from the case before me.
It must also be emphasized that the jurisdiction
of the Federal Court is not as broad as the sphere
of legislative competence of the federal govern
ment. Failure to distinguish between the two can
lead to an assumption of jurisdiction by this Court,
where no jurisdiction exists.
The major source of this Court's jurisdiction is
of course the Federal Court Act. As the Court of
Appeal noted in its recent decision, Varnam v.
Canada (Minister of National Health and Wel
fare), [1988] 2 F.C. 454, the language of the Act
is very precise, and, especially in matters between
party and party, the Court does not have jurisdic
tion unless a grant thereof is specifically made.
The stringent requirements to be met are ref
lected in the Varnam case (supra); the Court held
that the jurisdiction of the Federal Court cannot
be extended based on the convenience of the par
ties. The Court stated at page 463 of the decision:
I indicated earlier that it was with regret that I had conclud
ed that Marshall was wrongly decided. That regret does not
flow from any desire to expand this Court's jurisdiction. Rather
it has its source in a concern for the unenviable situation of the
litigant who may, in some circumstances, find himself obliged
to sue in two courts. That concern was well expressed by Reed
J. in Marshall. It was most eloquently stated by Collier J. in
Pacific Western Airlines, supra, where he described the situa
tion [at page 490] as "lamentable". For my part however, while
sharing those views, I can only echo the words of the Chief
Justice in Saltfish, supra [at page 513]:
... the convenience or advantage, if any, to be obtained is
not a reason for extending the jurisdiction of the Court
beyond its statutory limits.
Furthermore, the Court held that the fact that
matters otherwise outside the Court's jurisdiction
may be causally intertwined with issues properly
before the Federal Court, does not warrant an
extension of jurisdiction. Under the same reason
ing, it has also been held that in the case of
multiple parties and multiple causes of action it is
essential that each party and cause of action be
independently within the jurisdiction of the Court
(Aida Enterprises Ltd. v. R., [1978] 2 F.C. 106
(T.D.); R. v. Thomas Fuller Construction Co.
(1958) Ltd. et al., [1980] 1 S.C.R. 695).
The most recent Supreme Court of Canada
decision on the question of the Federal Court's
jurisdiction is that of ITO—International Termi
nal Operators Ltd. v. Miida Electronics Inc. et al.,
[1986] 1 S.C.R. 752. Mr. Justice McIntyre held,
at page 766 of the judgment, that a matter is
properly brought before the Federal Court where
the following three conditions are met:
1. There must be a statutory grant of jurisdiction by the federal
Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction.
3. The law on which the case is based must be a "law of
Canada" as the phrase is used in s. 101 of the Constitution Act,
1867.
I intend to deal with each of the three ITO
requirements in turn, and in so doing, review the
authorities on which the parties relied in support
of their clients' respective positions.
1. There must be a statutory grant of jurisdiction by the
federal Parliament
This requirement is satisfied if there is jurisdic
tion given to the Federal Court either in the
Federal Court Act, or in some other federal
enactment.
The sections of the Federal Court Act on which
the plaintiffs relied in their factum were sections
17 and 23, although in oral argument, counsel for
the plaintiffs conceded that only section 23 could
give this Court jurisdiction. There is no question
that subsections 17(1) to (3) are of no assistance
as they speak only to instances where relief is
sought against the Crown.
Subsection 17(4) reads:
17....
(4) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the
Attorney General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person
for anything done or omitted to be done in the performance of
his duties as an officer or servant of the Crown.
In Rasmussen v. Breau, [[1986] 2 F.C. 500]
(the Saltfish case), the Federal Court of Appeal
held that section 17 of the Federal Court Act only
refers to actions against the Crown eo nomine and
that the section did not include an action by or
against a Crown agency such as the Canadian
Saltfish Corporation. None of the defendants are
Crown officers or servants, and in my view, section
17 does not therefore give jurisdiction to this
Court.
Section 23 reads:
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.
The import of section 23 was explored in the
case of Bensol Customs Brokers Ltd. v. Air
Canada, [1979] 2 F.C. 575 (C.A.), where the
Court allowed the bringing of an action with
respect to the loss of some goods carried by the
defendant, only because the rights and obligations
of the parties under the contract of carriage fell to
be determined under the Carriage by Air Act
[R.S.C. 1970, c. C-14], a statutory re-enactment
of the Hague Rules. Mr. Justice Pratte stated, at
page 577 of his judgment:
Under that section [23], two conditions must be met in order
for a claim to be within the jurisdiction of the Court:
(1) the claim must be made "under an Act of the Parliament
of Canada or otherwise"; and
(2) it must relate to a matter coming within any of the
classes of subjects specified in the latter part of the section.
Therefore, the cause of action on which the
plaintiffs are relying must come under one of the
enumerated heads, i.e. the remedy must relate to a
matter coming within "works and undertakings
connecting a province with any other province or
extending beyond the limits of a province". Can
the mere fact that a complaint is made against a
union representing some workers on a federal
undertaking be considered sufficient to give juris
diction to the Federal Court? I do not think it can,
unless the remedy claimed by the plaintiffs is
contemplated in a federal statute such as the
Canada Post Corporation Act or the Canada
Labour Code the two federal enactments upon
which the plaintiffs rely.
My preliminary review of the Canada Post Cor
poration Act and the Canada Labour Code do not
reveal an express grant of jurisdiction. In fact,
subsection 22(5) of the former statute specifically
provides that the Corporation may sue or be sued
in the Court that has jurisdiction over the subject-
matter of the suit. The section reads:
22....
(5) Actions, suits or other legal proceedings in respect of any
right or obligation acquired or incurred by the Corporation on
behalf of Her Majesty, whether in its name or in the name of
Her Majesty, may be brought or taken by or against the
Corporation in the name of the Corporation in any court that
would have jurisdiction if the Corporation were not an agent of
Her Majesty.
As to the Canada Labour Code, jurisdiction is
specifically assigned to the Canada Labour Rela
tions Board in respect of a number of matters
addressed in the Code. Even if the matter relates
to one of the areas that is listed in section 23,
jurisdiction is lost if it is specifically assigned to
another tribunal.
The plaintiffs cannot hence claim an express
statutory assignment of jurisdiction to the Federal
Court unless it is clear that the plaintiffs' cause of
action comes under either of these statutes or is
part of the federal common law dealing with a
work or undertaking described in section 23.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes
the statutory grant of jurisdiction
Even where there is a general assignment of
jurisdiction to the Federal Court which might
encompass the relief sought by the plaintiffs, the
second requirement of the ITO test must still be
satisfied. There must be a specific federal enact
ment expressly dealing with the subject in issue,
and federal competence without legislative action
is not sufficient e.g. Quebec North Shore Paper
Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2
S.C.R. 1054; McNamara Construction (Western)
Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654. As
Chief Justice Laskin stated, at page 1057 of the
Quebec North Shore case:
Section 23 must be assessed initially under the terms of s.
101 of the British North America Act because it is that
provision which alone authorizes the Parliament of Canada to
establish Courts of original and appellate jurisdiction in addi
tion to authorizing the establishment of this Court. Section 101
reads as follows:
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time, provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
The relevant words, for the purposes of the present case, are
"administration of the laws of Canada". When s. 23 of the
Federal Court Act speaks of a claim for relief or a remedy
"under an Act of the Parliament of Canada or otherwise", it
cannot be given a construction that would take it beyond the
scope of the expression "administration of the laws of Canada"
in s. 101.
Chief Justice Laskin continued, at pages 1065-
1066 of the decision:
It is also well to note that s. 101 does not speak of the
establishment of Courts in respect of matters within federal
legislative competence but of Courts "for the better administra
tion of the laws of Canada". The word "administration" is as
telling as the plural words "laws", and they carry, in my
opinion, the requirement that there be applicable and existing
federal law, whether under statute or regulation or common
law, as in the case of the Crown, upon which the jurisdiction of
the Federal Court can be exercised. Section 23 requires that the
claim for relief be sought under such law.
In my view, most of the jurisprudence cited by
both counsel illustrates the principles laid out in
the Quebec North Shore case at work, and serves
to introduce important modifications which do not
however constitute an extension of the jurisdiction
of this Court. I understand for example that the
case need not solely concern a federal statute e.g.
Bensol Customs Brokers Ltd. v. Air Canada,
[1979] 2 F.C. 575 (C.A.), where the common law
principle of subrogation was employed in a case
where a contract governed by the Carriage by Air
Act was under dispute. However, the rights and
obligations of the parties must be founded on
federal law, and owe their existence to the legisla
tive enactment under consideration e.g. Rhine v.
The Queen; Prytula v. The Queen, [ 1980] 2
S.C.R. 442, a duo of cases in which actions on a
debt under the Prairie Grain Advance Payments
Act [R.S.C. 1970, c. P-18] and the Canada Stu
dent Loans Act [R.S.C. 1970, c. S-17] were found
to be within the jurisdiction of the Federal Court.
Once an examination of the question is under
taken of whether or not the action before the
Court is one which relates to a better administra
tion of the laws of Canada, in my view, the issue
becomes very clear. I therefore must review the
claims of the plaintiffs in the light of this
consideration.
Where do the rights and obligations of the
parties arise in this case? The plaintiffs argue that
as the defendant Unions are certified as bargain
ing agents under the Canada Labour Code, all
their rights and obligations fall to be determined
under the statute and that this vests the Court with
jurisdiction over every activity in which the Unions
engage. I do not think that this is an accurate
reflection of the situation of the defendant Unions,
because in my view, the jurisdiction of the Court
must arise out of the provisions of the Canada
Labour Code itself, and not through the legal
character of the unions.
The Code has a clearly defined area of applica
tion. If any problems arise out of the collective
agreement between the corporate plaintiff and the
Unions, then I have no doubt that they fall to be
determined under the Canada Labour Code. The
Code has in itself a complete scheme for dealing
with such a dispute, and the matter must be
determined by the Canada Labour Relations
Board. If either the union, the union members or
the employer feels that any party has breached any
of the prohibitions laid out in sections 184 [as
enacted by S.C. 1972, c. 18, s. 1] or 185 [as
enacted idem] of the Code, the remedy is to lay a
complaint with the Board. If the obligations fall
outside the Code and yet are still a problem of
labour relations, the Supreme Court of Canada
has indicated that the parties must rely on the
common law to determine their respective rights
and obligations (RWDSU v. Dolphin Delivery
Ltd., [1986] 2 S.C.R. 573).
As an important aside, I note that in the Dol
phin Delivery case, the appellant Unions were also
federally certified bargaining agents under the
Canada Labour Code, and the matter came to the
Supreme Court of Canada from the British
Columbia Court of Appeal. Contrary to the argu
ment made by the plaintiffs, the Union thus certi-
fied suffered no disability in appearing before the
provincial Courts.
The plaintiffs have attempted to characterize
the defendant Unions' actions as a breach of the
Unions' obligations under the Canada Labour
Code and hence a matter within the sphere of
federal labour relations. Despite the recitation of
the Code, the plaintiffs were not able to point to
any specific section in the Code or any single
authority that would suggest that the matter
before me was a question of labour relations in the
Post Office. There is no doubt that as between a
union and its members all manner of enforceable
obligations arise, however none of the plaintiffs
were members of the defendant unions. I cannot
however accept that in these circumstances that
the Corporation can come into this Court purport
ing to speak for the membership of curve and
Lcuc, and claim that there is a labour relations
matter to be adjudicated.
The Canada Labour Code does not provide any
civil cause of action in the manner in which this
action is framed. The question is not whether the
defendant Unions have improperly attempted to
represent the individual plaintiffs in labour rela
tions but rather that the defendants have falsely
attributed untrue statements to the plaintiffs and
have thereby caused them harm; these allegations
clearly sound in tort, terms such as mischief
appear in the statement of claim and these are not
matters which fall to be determined under any
federal statute, or are nourished thereby. The mere
recitation of a federal statute does not meet the
second requirement of ITO.
The plaintiffs have also alleged a civil cause of
action based on a provision of the Canada Post
Corporation Act which reads as follows:
52....
(2) Every person commits an offence who, without the
written consent of the Corporation, places on any thing any
word or mark suggesting that the thing:
a) has been duly authorized or approved by the Corporation;
b) is used in the business of the Corporation; or
c) is of a kind similar or identical to any thing used in the
business of the Corporation.
Section 54 of the Act states:
54. Every person who contravenes any provision of this Act
or the regulations or who commits an offence under any of
sections 42 to 53
(a) is guilty of an indictable offence and is liable to imprison
ment for five years; or
(b) is guilty of an offence punishable on summary conviction.
Section 55 further refers to evidence which may be
called in any prosecution based on section 58.
In my view, these sections describe a quasi-
criminal offence which exists solely to prevent
persons from holding themselves out as agents of
Canada Post by using the name "Canada Post" or
"Post Office". I cannot accept the assertion of the
plaintiffs that these sections of a purely punitive
nature are a sound basis for the Court to extend its
jurisdiction and hear the plaintiffs' civil suit with
no clear grant of jurisdiction.
Is it open to me to presume that these sections
enacted by Parliament contemplated both criminal
prosecution and civil proceedings with respect to
the activity prohibited in the sections of the Act
cited above? Furthermore, can I find that a civil
suit can be sustained under these sections and
intertwine the reach of such activity and find
within it a broader meaning than can be found in
the express provisions of the Act? I suggest that
the plaintiff is asking me to adopt an interpreta
tion that the wording of the Act does not bear. As
I see it, these sections are included in the Act for
the purpose of prohibiting third parties from
deceiving the public into thinking that mail deliv
ery has been entrusted to entities other than
Canada Post. How can I be persuaded to extend
even further the meaning of these sections, not
only to create a civil action, but to interpret them
to include the prohibition of political propaganda?
I do not believe that I can. The only relief contem
plated by Parliament in the enactment of this
provision is the laying of informations, and pros
ecution in the Provincial Courts.
Counsel for the defendants directed my atten
tion to the case of Mid West Television Ltd. v.
S.E.D. Systems Inc., [1981] 3 W.W.R. 560 (Sask.
Q.B.). Mr. Justice Noble made it clear that in his
view, where the Broadcasting Act [R.S.C. 1970, c.
B-11] provided for the criminal offence, of broad
casting without a licence, no civil cause of action
was thereby created in favour of anyone injured by
the breach.
I would also like to add that in my opinion, the
case of R. in right of Canada v. Saskatchewan
Wheat Pool, [1983] 1 S.C.R. 205 clearly illus
trates that there is no nominate tort based on the
breach of a statutory provision alone, but rather
that a cause of action must exist separate and
apart under the law of tort. Without some indica
tion in the Canada Labour Code or the Canada
Post Corporation Act that such an action was
contemplated in the statute, the breach of any
provision of the Acts cannot be presumed to lead
to a civil cause of action for the plaintiffs. Further
more, in my view, the only underlying tort which
could possibly exist in this case is that of defama
tion, or something comparable in the Quebec Civil
Code [Civil Code of Lower Canada], which cannot
be viewed by this Court as necessary to the better
administration of the Canada Post Corporation
Act.
Counsel for the plaintiffs further argues that
section 13 of the Canada Post Corporation Act
which allows Canada Post to engage employees for
the purpose of carrying out the Corporation's busi
ness, brings this matter under Federal Court juris
diction. None of the defendants are in fact
employees of Canada Post, and I fail to see how
this section avails the plaintiffs. This argument
was part of counsel's overall submission that as the
corporate plaintiff is charged with the operation of
the Post Office under a federal enactment, that
anything that it does falls under the ambit of this
statute and into the jurisdiction of the Federal
Court. This may be true to some extent, but where
the matter in issue is based on the publication of
statements that the plaintiffs feel are false or
misleading and harmful to their reputation and are
being wrongfully attributed to them due to the
prohibited, use of the name "Canada Post", the
matter is far removed from the question of the
orderly movement of mail, which is the Corpora
tion's major responsibility.
Finally, the plaintiffs allege that the defendant
Unions have abrogated the freedoms of association
and expression enjoyed by the plaintiffs under
paragraphs 2(b) and (d) of the Canadian Charter
of Rights and Freedoms. I can find no fault with
the plaintiffs' submission that these freedoms
include the right not to associate, or to remain
silent on any particular issue. I do not however
agree with his conception of the application of the
Charter to his case.
In an argument which I can only characterize as
extraordinary, counsel for the plaintiffs alleged
that the reason why the individual plaintiffs enjoy
the protection of the Charter is that they are
employed by a Crown Corporation. In my view,
this argument is absolutely not tenable. The
Charter protections exist to provide a safeguard
for the rights of the individual against abrogation
by the state and its emanations. The Charter
obligations arise based on the character of the
party in breach of these obligations, and not on the
character of the victim.
In order to show that the Charter applies, the
plaintiffs must first illustrate that the Unions are
in fact bodies who could owe a duty to the plain
tiffs under the Charter. No facts have been plead
ed which would allow me to conclude that this is a
situation as occurred in the case of Lavigne and
Ontario Public Service Employees Union et al., Re
(1986), 55 O.R. (2d) 449 (H.C.), where such a
duty was found. Absent any lien [link] between
the state and the victim such as in Lavigne (where
a government emanation had approbated a "man-
datory check-off' clause in a collective agreement
which governed the terms of employment of Mr.
Lavigne), the Charter has no application in what
must be viewed as a dispute between private par
ties. (See also Re Ontario English Catholic
Teachers Association et al. and Essex County
Roman Catholic School Board (1987), 58 O.R.
(2d) 545 (Div. Ct.).)
The mere fact that the defendant Unions are
certified under the Canada Labour Code in respect
of bargaining units other than the one to which the
individual plaintiffs belong, does not make this a
Charter issue.
Even if the plaintiffs were able to meet this
threshold test, it has been held that the Charter is
not "existing and applicable federal law", as it is
not an enactment of the federal government
(Northern Telecom Canada Ltd. et al. v. Com
munication Workers of Canada et al., [1983] 1
S.C.R. 733). Therefore, a bare declaration of inva
lidity of a federal statute, when not allied to
another cause of action cannot be issued by the
Federal Court. After the comments made by coun
sel for the plaintiffs during argument with respect
to the application of the Charter, I feel that it is
necessary to add, if any doubt exists, that the
Federal Court will not hesitate to give full force
and effect to the Charter rights of litigants when it
has the jurisdiction to do so.
Counsel for the plaintiffs also appeared to feel
that my analysis of this matter indicated a doubt
as to the power of the Federal Court to issue an
injunction. Its power to do so is beyond question,
but only where the Court is seized with the adjudi
cation of a matter within its jurisdiction. Section 3
of the Federal Court Act clearly does not counte
nance the issuance of an injunction in vacuo;
injunctive relief is an adjunct to the power of the
Court to dispose of a matter within its jurisdiction
(National Association of Broadcast Employees
and Technicians v. R., [1980] 1 F.C. 820 (C.A.)).
In summary, this matter does not fall to be
determined under either the Canada Post Corpo
ration Act or the Canada Labour Code, the latter
statutes do not govern the relationship between the
parties with respect to the claims alleged. The
plaintiffs are not attempting to enforce the provi
sions of any federal enactment, they are attempt
ing to mount a civil action in a Court which does
not have jurisdiction to hear the matter.
For these reasons, I therefore find that the
statement of claim does not disclose any cause of
action that is within the jurisdiction of this Court,
on behalf of either the corporate plaintiff Canada
Post Corporation or the individual plaintiffs. The
statement of claim must therefore be struck in its
entirety pursuant to Rule 419(1)(a) of the Federal
Court Rules...
The defendants cupw and Union Communica
tions are entitled to their costs.
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