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T-3524-75
The Public Service Alliance of Canada, Local 660, Radio-Television Division, and The Public Ser vice Alliance of Canada, Radio-Television Divi sion (Production Group) (Applicants)
v.
The Canadian - Broadcasting Corporation
(Respondent)
and
Arbitrator Pierre N. Dufresne, ès-qualité, Mont- real, District of Montreal (Mis -en-cause)
Trial Division, Addy J.—Montreal, November 3; Ottawa, November 14, 1975.
Crown—Motion to quash and set aside writ of fieri facias— CBC property seized following registration of arbitrator's decision—Whether CBC property immune from seizure— Whether writ of fieri facias cannot be issued because arbitra tor's decision does not mention fixed amount—Canada Labour Code, R.S.C. 1970, c. L-1, s. 159—Broadcasting Act, R.S.C. 1970, c. B-11, ss. 38(3), 40(1),(3)—Federal Court Act, ss. 56(5), 57(3).
Following registration in this Court of an arbitrator's deci sion under the Canada Labour Code, a seizure of respondent's property was effected as authorized by a writ of fieri facias, issued on production of an affidavit showing $880,880 as owing under the decision. Respondent claims (1) that its property is Crown property, and immune from seizure, and a writ of fieri facias cannot validly be issued against it, and (2) that as the decision mentions no fixed amount, such a writ cannot be issued thereunder.
Held, quashing the seizure and prohibiting any executory proceeding, the writ was void ab initio. (1) Corporations acting solely as delegates or agents of the Crown enjoy the same immunities and prerogatives as the Crown. The CBC is such a corporation. Further, by statute, CBC property is considered Crown property. While it was argued that section 159(2) of the Canada Labour Code creates an exception to the rule, and renders Crown property subject to seizure, such an interpreta tion would mean that registration would not have the "same effect" as a judgment, but one much wider, creating an execu- tory right against the Crown, whereas the effect of any judg ment against the Crown can only be declaratory. This principle has been codified in section 56(5) of the Federal Court Act. It has long been established that the Crown can only lose its prerogatives under an Act which contains a clear and concise statement to that effect, and, an Act to which a party attempts to ascribe such a result must be interpreted in favour of the Crown and against the party alleging that it has renounced its prerogatives. Therefore, section 159 does not derogate from Crown prerogatives pertaining to an ordinary judgment. (2) It has always been clear that for a writ of fieri facial to be issued,
the judgment must specify the amount, or it must be ascertain able without additional proof. This is not so here; thus, even if it were possible to issue a writ of fieri facias against respond ent, it would not be by virtue of the arbitrator's decision.
MOTION. COUNSEL:
P. Cutler and P. Langlois for applicants. J. Ouellet for respondent.
SOLICITORS:
Cutler, Langlois and Castiglio, Montreal, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
ADDY J.: The present case involves a motion by the Canadian Broadcasting Corporation to set aside and quash a writ of fieri facias issued by the Registrar of this Court in Montreal against the property of the Canadian Broadcasting Corpora tion.
On October 28, 1975, the Public Service Alliance of Canada, Local 660, and the Public Service Alliance of Canada (hereinafter referred to as "the Alliance"), pursuant to section 159 of the Canada Labour Code', filed in the registry of the Federal Court in Montreal a decision of the Arbitrator, dated the 25th of March, 1975, and signed in accordance with the Canada Labour Code in an arbitration between the parties. Section 159(2) reads as follows:
159. (2) On filing in the Federal Court of Canada under subsection (1), an order or decision of an arbitrator or arbitra tion board shall be registered in the Court and, when regis tered, has the same force and effect, and all proceedings may be taken thereon, as if the order or decision were a judgment obtained in the Court. [The underlining is mine.]
Following registration of the decision, the Alliance filed an affidavit stating that, according to the decision of the Arbitrator, the amount owing was approximately $880,880. At the request of the Union, the Registrar issued the writ of fieri
S.C. 1972, c. 18.
facias when this affidavit was produced. A bailiff subsequently carried out a seizure of the property of the Canadian Broadcasting Corporation as authorized by this writ.
The Canadian Broadcasting Corporation is basing this motion on two main arguments: (1) that the property of the Canadian Broadcasting Corporation is Crown property and, since the Crown cannot be the subject of an executory judg ment all of its property is immune from seizure, and an executory writ of fieri facias cannot be validly issued against it; (2) that the arbitrator's decision does not mention any fixed amount as being payable and, consequently, a writ of fieri facias cannot be issued under the authority of such a document.
It seems clear that corporations that are, in the performance of their duties, acting solely as dele gates or agents of the Crown enjoy as such the same prerogatives and immunities as the Crown itself (see Lortie v. The Public Service Alliance of Canada 2 ; Caron v. Canadian Broadcasting Corporation 3 ; The Canadian Broadcasting Corpo ration v. The Attorney-General for Ontario 4 ; and Formea Chemicals Limited v. Polymer Corpora tion Limited 5 ).
Section 40(1) of the Broadcasting Act 6 reads as follows:
40. (1) Except as provided in subsection (3) of section 38, the Corporation is, for all purposes of this Act, an agent of Her Majesty, and its powers under this Act may be exercised only as an agent of Her Majesty.
It is therefore clear that the Canadian Broad casting Corporation is merely an agent of the Crown and can act in this capacity only. Section 38(3) of the aforesaid Act reads as follows:
38. (3) The Executive Vice-President and the officers and employees employed by the Corporation pursuant to subsection (2) shall, subject to section 44, be employed on such terms and conditions and at such rates of remuneration as the Corpora tion deems fit and the Executive Vice-President and such
2 Unreported judgment of Aronovitch J. of the Superior Court of the Province of Quebec, delivered on August 28, 1972, No. 05-006196-72, pages 12 and 13.
[1957] S.C. 279.
4 [1959] S.C.R. 188. [1968] S.C.R. 754. 6 S.C. 1967-68, c. 25.
officers and employees are not officers or servants of He] Majesty.
This section does not deal with either the nature of the function of the Canadian Broadcasting Corpo ration itself, and applies only to the status of employees, specifying that the status of employee: of the Corporation does not confer upon suet employees the privileges, duties or character of Crown employees.
For greater certainty, despite the fact that, as t general rule, property held by an organization whose sole function is to act as an agent of the Crown, is considered property of the Crown and not of the agent, section 40(3) clearly makes spe cific provision for this in the case of the Canadiar Broadcasting Corporation. The section reads a: follows:
40. (3) Property acquired by the Corporation is the propert3 of Her Majesty and title thereto may be vested in the name o1 Her Majesty or in the name of the Corporation.
Notwithstanding the general principle providing for immunity of the Crown against any executor) judgment, and notwithstanding subsections 40(1) and 40(3) of the Broadcasting Act, counsel for the Alliance argues that section 159(2) of the Canadc Labour Code, and especially the words "... and all proceedings may be taken thereon," create ar exception to the general rule and render Crowr property subject to seizure in such a case. In order to apply such a meaning to these words, it would be necessary to disregard completely the preceding part of the text, particularly the word "same" in the expression "... when registered, has the same force and effect ... as if [it] were a judgment obtained in the Court." It follows that counsel fot the Alliance is not asking that the registration have the same effect as a judgment, but a much wider effect and a broader scope, creating an executory right against the Crown, whereas the effect of any judgment against it can only be declaratory. This principle has not only always been recognized by the general law, but was codi fied by section 56(5) of the Federal Court Acl which reads as follows:
56. (5) No execution shall issue on a judgment given by the Court against the Crown.
Moreover, section 57(3) of the Federal Court Act provides that any money awarded against the Crown in any proceeding shall be paid out of the Consolidated Revenue Fund and Federal Court Rule 1800 provides for a mechanism whereby the judgment is forwarded by the registry to the Deputy Attorney General of Canada.
With regard to the interpretation that counsel for the Alliance is attempting to attribute to sec tion 159 of the Canada Labour Code, it has long been established in case law that the Crown can only lose its prerogatives under an Act which contains a clear and precise statement to that effect, and that any Act to which a party attempts to ascribe such a result must be interpreted in favour of the Crown and against whoever alleges that it has renounced its prerogatives. Therefore, I have no hesitation in concluding that section 159 of the Canada Labour Code does not derogate from the prerogatives of the Crown pertaining to an ordinary judgment and that, in the case at bar, a writ of fieri facias cannot be validly issued against it.
With respect to the second submission of coun sel for the Canadian Broadcasting Corporation, it has always been clear that for a writ of fieri facias to be issued pursuant to a judgment of any court, the judgment must specify the amount or all the figures required to compute the final amount, and it must be possible to arrive at the amount on the basis of information provided in the judgment, without any additional proof being required to determine the amount to be specified in the writ of fieri facias. This condition does not apply in the case at bar since the Arbitrator's decision does not specify an amount and because the amount had to be determined on an approximate basis pursuant to an affidavit by an officer of the Alliance, and is not based on specific figures contained in the Arbitrator's report. It is therefore clear that, even if it were possible to issue a writ of fieri facias against the Crown or against the property held by the Canadian Broadcasting Corporation on behalf of the Crown, such a writ could not be issued by virtue of the Arbitrator's decision registered in the Federal Court by the Alliance on October 28, 1975.
For these reasons, I find that the writ of fieri facias issued in the case at bar was void ab initio, I
quash any seizure made under the authority of this writ and prohibit any executory proceeding in this case.
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