T-3235-75
Communications Workers of Canada (Applicant)
v.
Bell Canada (Employer)
and
Canadian Telephone Employees Association
(Intervener)
Trial Division, Dubé J.—Montreal, September 29;
Ottawa, October 6, 1975.
Jurisdiction—Labour relations—Motion to stay order
pending appeal—Labour Relations Board ordering employer
to cease prohibition against soliciting union membership—
Employer claiming Board in violation of audi alteram partem
rule—Whether Court has jurisdiction—Federal Court Act, ss.
28, 122 and Rule 1909—Canada Labour Code, R.S.C. 1970, c.
L-1, as am. S.C. 1972, c. 18, ss. 119, 122, 123.
The employer, Bell Canada, applies for a stay of execution of
an order of the Canada Labour Relations Board, ordering the
employer to desist from prohibiting union membership solicita
tion during non-working hours, until judgment has been ren
dered by the Court of Appeal on the employer's section 28
application. The union claims that the employer advised
employees that such solicitation on company premises was
prohibited at all times. The union filed a complaint with the
Board, and the order to desist resulted. The employer, denying
alleged violations of the Canada Labour Code, claims that the
Board failed to comply with the audi alteram partem rule; the
union claims that it needs the protection of the order, and, if
nullified during the section 28 proceedings, its right to conduct
its campaign will be prejudiced. By reason of section 29(1)(a)
of the Canada Labour Relations Board Regulations, further
delays would cause the union to lose evidence of membership
already obtained.
Held, the motion is dismissed. The Court has jurisdiction to
grant such a stay under Rule 1909. However, such jurisdiction
should be exercised only sparingly, and in the clearest cases;
much care and prudence is called for. The onus is on the
applicant to establish more than a balance of convenience. It is
difficult to see that continuance of the order would be unjust,
oppressive or vexatious to the employer, but the delay could be
damaging to the union—perhaps fatal.
Sanders v. The Queen [1970] S.C.R. 109; CJTR Radio
Trois-Rivières Limitée v. Canada Labour Relations
Board (not reported, T-965-75); Wardair Canada Limited
v. Canadian Transport Commission [1973] F.C. 597 and
Weight Watchers International Inc. v. Weight Watchers of
Ontario Ltd. (1972) 25 D.L.R. (3d) 419, applied. Central
Broadcasting Company Limited v. Canada Labour Rela
tions Board (not reported, T-803-75), followed. Empire-
Universal Films Limited v. Rank [1947] O.R. 775; Battle
Creek Toasted Corn Flake Co. Ltd. v. The Kellogg Toast
ed Corn Flake Co. (1923-24) 55 O.L.R. 127 and Talsky v.
Talsky (No.2) (1974) 39 D.L.R. (3d) 516, discussed.
MOTION.
COUNSEL:
A. Golden and P. Cavalluzzo for applicant.
B. Roy and S. Gulden for Bell Canada.
No one for intervener.
G. Henderson, Q.C., for Canada Labour
Relations Board.
SOLICITORS:
Golden, Levinson, Sigurdson, Green, Sprin-
gate & Cavalluzzo, Toronto, for applicant.
Ogilvy, Cope, Porteous, Montgomery,
Renault, Clarke & Kirkpatrick, Montreal,
for Bell Canada.
Sims, Morton, McInerney, Espey & Brady,
Whitby, for intervener.
Gowling & Henderson, Ottawa, for Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
Dust J.: This is a motion on behalf of Bell
Canada, hereinafter called "the employer", for an
order of the Trial Division of the Federal Court
that the execution of the order of the Canada
Labour Relations Board, dated August 22, 1975,
be stayed until final judgment has been rendered
by the Federal Court of Appeal on the employer's
section 28 application against said order. The
order of the Board reads as follows:
Board File: 745-86
IN THE MATTER OF THE
Canada Labour Code
and
Communications Workers of Canada,
Applicant,
and
Bell Canada,
Montreal, Quebec,
Employer,
and
Canadian Telephone Employees
Association,
Intervener.
WHEREAS, a complaint pursuant to Section 187 of the
Canada Labour Code (Part V—Industrial Relations) dated
June 20th, 1975 was filed with the Canada Labour Relations
Board on behalf of the Communications Workers of Canada
alleging inter alia failure by Bell Canada to comply with the
provisions of Section 184(1)(a) and Section 184(3)(e) of the
said Code; and
WHEREAS, the Board has requested and received evidence and
submissions from the parties concerning the policy and direc
tives of the Respondent prohibiting or restricting union activi
ties on company premises; and
WHEREAS, the Board has reviewed the evidence submitted by
the respondent and the written and oral submissions of the
parties.
Now, THEREFORE, the Board finds that the Respondent,
through various directives, has enforced a policy which prohib
its its employees from participation in lawful trade union
activities on company premises during their non-working hours
and that this policy and those directives constitute a violation of
the provisions of Section 184(1)(a) and 184(3)(e) of the
Canada Labour Code (Part V—Industrial Relations).
NOW,. THEREFORE; the Canada Labour Relations Board, pur
suant to Section 189 of the Canada Labour Code, orders the
Respondent to comply with the provisions of Section 184 of the
Code and to cease and desist from prohibiting employees
soliciting other employees to join a trade union or distributing
union literature during the non-working hours of employees.
FURTHER, the Board orders the Respondent to transmit a
copy of the instant order to all the persons in the employ of the
Respondent who are known to have received copies of the
directives on trade union activities which were issued by Mr.
L.C. Godden on June 5, 1975 and by Mr. J. Jacobs on June 11,
1975.
DATED at Ottawa this 22nd day of August 1975 by the
Canada Labour Relations Board.
(signed by)
Hélène LeBel
•
Vice-Chairman
The employer denies the alleged violations of
provisions of the Canada Labour Code and claims
that the Board has violated the fundamental rule
of audi alteram partem by not allowing it the
opportunity to fully present its evidence and that it
would be contrary to the principles of natural
justice to compel it to abide by such a judgment
pending disposition of the appeal.
Communications Workers of Canada, herein-
after called "the union", claims that supervisors of
the employer advised employees affected by the
re-organizing campaign of the union that solicita
tion of trade union membership and distribution of
trade union literature on company premises were
prohibited at all times, including non-working
hours. On June 20, 1975 the union filed a com
plaint with the Board under section 187 of the
Canada Labour Code which led to the aforemen
tioned order. The employer admittedly not having
complied with the order, the union, after the man
datory waiting period, filed on September 16,
1975, said order as a judgment of the Federal
Court of Canada pursuant to section 123 of the
Canada Labour Code.
The union claims it requires the protection of
the order to conduct its campaign for membership.
It says that if the remedial effect of the Board's
order is nullified during the legal proceedings on
the section 28 application to the Federal Court of
Appeal which are likely to extend over the next
few weeks, the right of the union to wage its
membership campaign at a crucial time will have
been irrevocably prejudiced. Under the Code, the
union may apply for certification with respect to
employees in certain bargaining units at any date
after the first day of September 1975, up to the
execution of a new collective agreement. By reason
of the provisions of section 29(1) (a) of the Regula
tions further delays would cause the union to lose
the evidence of membership support already
signed.
It is not for this Court to determine whether or
not the decision of the Board should be reviewed
because of a breach of natural justice, or for its
alleged failure to properly hear the evidence of the
employer, or for other reasons. That matter is
already placed before the Federal Court of Appeal
for its decision.
What must be determined here is whether this
Court has jurisdiction to grant a stay of proceed
ings 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.
Under section 122 of the Code every order of
the Board is final and is not to be reviewed in any
court, except in accordance with section 28 of the
Federal Court Act. The section reads as follows:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with section 28 of the Federal
Court Act.
(2) Subject to subsection (1), no order shall be made, pro
cess entered or proceeding taken in any court, whether by way
of injunction, certiorari, prohibition, quo warranto or other
wise, to question, review, prohibit or restrain the Board in any
of its proceedings under this Part.
Section 28 (1) of the Federal Court Act defines
the jurisdiction of the Federal Court of Appeal
with reference to decisions of federal boards:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
Section 123 of the Code deals with the filing of
orders of the Board with the Federal Court and
the force and effect of such registration:
123. (1) Where a person, employer, employers' organiza
tion, trade union, council of trade unions or employee has failed
to comply with any order or decision of the Board, any person
or organization affected thereby may, after fourteen days from
the date on which the order or decision is made or the date
provided in it for compliance, whichever is the later date, file in
' R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18.
the Federal Court of Canada a copy of the order or decision,
exclusive of the reasons therefor.
(2) On filing in the Federal Court of Canada under subsec
tion (1), an order or decision of the Board shall be registered in
the Court and, when registered, has the same force and effect,
and, subject to section 28 of the Federal Court Act, all proceed
ings may be taken thereon as if the order or decision were a
judgment obtained in that Court.
It is claimed that the Trial Division has no
jurisdiction because section 122 of the Code clear
ly 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. It is submitted that the Union has also
access to another remedy provided by section 119
of the Code. Said section gives the Board the
power to review and amend its own orders:
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.
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 enforce
ment authority and machinery which it lacks.
In Sanders v. The Queen 2 , the circumstances of
the case brought it within the application of sec
tion 682(b) of the Criminal Code which prevents
the removal of the magistrate's order by certiorari.
It was held that the intention of the section is to
preclude the existence of two remedies. Martland
2 [1970] S.C.R. 109.
J. said at page 141:
In my opinion the section was intended to apply, and by its
terms does apply in a situation where, in the absence of the
section, the jurisdiction of the court might have been ques
tioned on certiorari. If the accused has appeared before the
inferior court, and has entered a plea, and if, thereafter, the
court has proceeded to try the issue raised by that plea upon the
merits, then the accused, if he wishes to attempt to set aside the
court's decision, must, if he is given by law a right to appeal,
seek his redress by way of appeal only. The intention of this
section was to preclude the co-existence of two remedies in
those cases to which it applies, and to compel resort to appeal
procedures where they are available.
In a recent decision, CJTR Radio Trois-Riviè-
res Limitée v. Canada Labour Relations Board 3 ,
counsel for the Board raised an objection based on
the Sanders decision (supra) to the effect that
section 122 of the Canada Labour Code annuls the
powers to issue injunctions granted to the Trial
Division by virtue of section 18 of the Federal
Court Act. My brother Addy found it unnecessary
to express any view on the objection as he denied
the application on other grounds.
Another recent decision of the Federal Court
comes much closer to the issue before me. In
Central Broadcasting Company Limited v.
Canada Labour Relations Board 4 , Chief Justice
Jackett, sitting as an ex officio judge of the Trial
Division, stayed the operation of an order of the
Board which he "regarded as a judgment of this
Court by virtue of section 123 of the Canada
Labour Code". It is true that counsel for the
parties acquiesced in the application being dis
posed of on the basis of the argument in the Court
of Appeal by one of the judges of the Federal
Court of Appeal as though he had been sitting in
the Trial Division as an ex officio judge of that
Court, but the Chief Justice needed not their
consent to hold that "the relevant powers of the
Trial Division with reference to a judgment of that
Court are contained in Rule 1909".
3 Court No. T-965-75.
4 Court No. T-803-75.
I am therefore of the opinion that this Court has
jurisdiction to grant a stay of execution of the
order of the Board. There remains to decide if, in
the present circumstances, the stay is justified.
The Court is not bound as a matter of course to
grant a stay of proceedings. The Court is entitled
to use judicial discretion in determining whether a
stay should be ordered. The power to stay should
only be exercised sparingly, and a stay will be
ordered only in the clearest cases.
Jurisprudence has established useful guidelines
in these matters as enunciated in Empire-Univer
sal Films Limited v. Rank s and adopted by my
brother Heald of the Federal Court in Weight
Watchers International Inc. v. Weight Watchers of
Ontario Ltd.':
(1.) A mere balance of convenience is not a sufficient ground
for depriving a plaintiff of the advantages of prosecuting his
action in an English Court if it is otherwise properly brought.
The right of access to the King's Court must not be lightly
refused. (2.) In order to justify a stay two conditions must be
satisfied, one positive and the other negative: (a) the defendant
must satisfy the Court that the continuance of the action would
work an injustice because it would be oppressive or vexatious to
him or would be an abuse of the process of the Court in some
other way; and (b) the stay must not cause an injustice to the
plaintiff. On both the burden of proof is on the defendant.
In Battle Creek Toasted Corn Flake Co. Ltd. v.
The Kellogg Toasted Corn Flake Co.', a motion
was made for an order staying proceedings. Mid-
dleton J. had this to say:
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 conveni
ence, with an added factor of the greatest weight, the actual
adjudication that has taken place, and which must be regarded
as primâ facie right.
The statement of Middleton J. was quoted with
5 [1947] O.R. 775.
6 (1972) 25 D.L.R. (3d) 419 at page 426.
7 (1923-24) 55 O.L.R. 127 at page 132.
approval in Talsky v. Talsky (No. 2) 8 where it was
held that a judge of the High Court has an inher
ent jurisdiction to control the processes of the
Court, to stay executions of an order of that Court
pending further appeal in order that an appellant,
if successful may not be deprived of his victory by
reason of the disappearance of the subject-matter
of the litigation or by reason of other circum
stances rendering the ultimate result nugatory.
My brother Walsh held that prohibition did not
lie in Wardair Canada Limited v. Canadian
Transport Commission 9 and, while finding that
the applicant was seeking to use a writ of prohibi
tion to stay the execution of a judgment under
review, commented as follows:
What the applicant is seeking to do is to use a writ of
prohibition to obtain a stay of execution of a judgment which is
under review and appeal because there is no procedure in the
Rules of this Court for such a stay. The absence of such Rule
would not be sufficient ground for abusing the use of a preroga
tive writ whether it be prohibition or injunction. I might add
that even if a Rule permitting such a stay of execution did
exist, an order under such a Rule is always subject to the
discretion of the tribunal from whom it is sought. There are
cases when it would evidently be very wrongful to proceed with
a hearing when the matter is under appeal or review, such as
when the very jurisdiction of the inferior tribunal is attacked,
but there are also cases when it might be equally wrongful to
halt all proceedings in the inferior tribunal every time an
appeal is brought or a review sought of some incidental decision
during the course of the proceedings before such inferior tri
bunal. If this were done proceedings might be halted almost
indefinitely by a series of appeals from minor decisions to the
great prejudice of the parties wishing to proceed with the
hearing. It is always a matter of discretion therefore whether a
hearing should be suspended or not.
So jurisprudence would dictate that much care
and prudence be exercised in the granting of a stay
of proceedings in these matters. The onus is on the
applicant to establish to the satisfaction of the
Court that there is more than a balance of con
venience. The employer must satisfy the Court
that the continuance of the order of the Board
would work an injustice on him because it would
be oppressive or vexatious to him and that the stay
would not cause an injustice to the union.
s (1974) 39 D.L.R. (3d) 516.
9 [1973] F.C. 597 at page 603.
It is very difficult to see where a continuance of
the order would be unjust, or oppressive, or vexa
tious to the employer.
The order makes a twofold demand upon the
employer: firstly to comply with the provisions of
section 184 of the Code, that is to cease and desist
from prohibiting employees soliciting other
employees to join a trade union or distributing
union literature during the non-working hours of
employees, and secondly to transmit a copy of the
instant order to all persons who have already
received contrary directives from the employer.
Surely there can be nothing unjust, oppressive, or
vexatious to the employer in the continuance of
such an order pending the decision of the Court of
Appeal on the section 28 application.
But to the union the delay can be damaging,
perhaps fatal, as the campaign for certification is
being pursued and time is of the essence as stated
earlier. The situation is not unlike the plight of a
duly licensed hunter who is denied entry into the
forest as the hunting season is underway.
It is the role of the Board, not the Court, to
determine what can best insure industrial peace
and to make orders to implement the principles of
the Canada Labour Code. The Board has decided
that the matter is sufficiently urgent to warrant an
"instant" order for immediate execution, then a
staying of the execution of said order could
adversely affect the other party. So the onus is that
much stronger for the applicant to show that a
stay would cause no injury to the other party.
The applicant has not satisfied me that holding
the execution of the Board's order would not cause
an injustice to the union.
ORDER
The motion for an order to stay the order of the
Canada Labour Relations Board is dismissed with
costs.
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.