A-261-77
Grain Handlers Union No. 1 (Appellant)
v.
Grain Workers Union, Local 333, C.L.C., Canadi-
an Labour Congress, Saskatchewan Wheat Pool,
Vancouver, B.C., United Grain Growers Ltd.,
Vancouver, B.C., Burrard Terminals Ltd., Van-
couver, B.C., Pacific Elevators Ltd., Vancouver,
B.C. and Alberta Wheat Pool, Vancouver, B.C.
(Respondents)
Court of Appeal, Jackett C.J.—Ottawa, July 26,
1977.
Practice — Rule 1402(1)(c) — Applicant in Rule 324
application requires transcript for section 28 application —
Board hearing that is subject of application taped but not
transcribed — Whether the Board is responsible for providing
the contemplated transcript, or the applicant — Federal Court
Rules 324, 1402.
This is a Rule 324 procedural application seeking an order
that the Canada Labour Relations Board provide a written
transcript of the verbal testimony given at the hearing for use
in a section 28 application. The Board had no transcript in its
possession and had not given the Registrar notice of that fact.
Applicant argues that Rule 1402 requires the Board to provide
a transcript whether one is extant or merely contemplated,
whereas the Board contends that the applicant must bear the
cost if one does not exist. A consequential order sought is that
the time for filing memoranda of argument be extended so that
the time limit runs from receipt of the transcript by the parties.
Lastly, applicant seeks an order that the Registrar of the
Federal Court prepare and post a notice to the profession as to
the settled interpretation of Rule 1402(1)(c).
Held, the application is dismissed. Rule 1402(3) does not
require the Board to supply material that is part of the case if
such material is "not in its possession or control". Failure to
send a statement informing the Registry of that part of the case
not in its control or possession does not justify the Court's
imposing on the Board the expense of transcribing the evi-
dence—an expense falling on the applicant under the Rules.
The application for consequential order is also refused, but this
dismissal does not prejudice the applicant's right to seek an
order as to what part, if any, of the evidence shall be part of the
case by way of transcript after giving the other parties an
opportunity to put forward views on those parts to be omitted.
The final application is not based on any specific legal au
thority. For the Registry to assume to tell the profession the
effects of the Act and Regulations with respect to any question
on the effect of jurisprudence would be an improper assumption
of the solicitor's responsibilities.
Blagdon v. Public Service Commission [1976] I F.C. 615,
applied.
APPLICATION.
COUNSEL:
G. F. Culhane for appellant.
A. B. Macdonald, Q.C., for respondent Grain
Workers Union, Local 333, C.L.C.
M. W. Wright, Q.C., for respondent Canadian
Labour Congress.
W. R. Mead for respondents Saskatchewan
Wheat Pool, United Grain Growers Ltd., Bur-
rard Terminals Ltd., Pacific Elevators Ltd.,
Alberta Wheat Pool.
L. M. Huart for Canada Labour Relations
Board.
SOLICITORS:
MacQuarrie, Hobkirk, McCurdy, Schuman,
Culhane & van Eijnsbergen, Vancouver, for
appellant.
Alex B. Macdonald, Q.C., Vancouver, for
respondent Grain Workers Union, Local 333,
C.L.C.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondent
Canadian Labour Congress.
Campney & Murphy, Vancouver, for
respondents Saskatchewan Wheat Pool, Van-
couver, B.C., United Grain Growers Ltd.,
Vancouver, B.C., Burrard Terminals Ltd.,
Vancouver, B.C., Pacific Elevators Ltd., Van-
couver, B.C., Alberta Wheat Pool, Vancou-
ver, B.C.
L. M. Huart, Ottawa, for respondent Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a Rule 324' procedural
application with regard to a section 28 application
filed on April 22, 1977.
The section 28 application is to set aside certain
orders of the Canada Labour Relations Board.
(Including more than one order as the subject of a
section 28 application would seem to be contrary
to Rule 1401(1).)
To appreciate the application it is necessary to
have in mind the following rule:
Rule 1402. (1) A section 28 application shall be decided upon
a case that shall consist, subject to paragraph (2), of
(a) the order or decision that is the subject of the application
and any reasons given therefor,
(b) all papers relevant to the matter that are in the posses
sion or control of the tribunal,
(e) a transcript of any verbal testimony given during the
hearing, if any, giving rise to the order or decision that is the
subject of the application,
(d) any affidavits, documentary exhibits or other documents
filed during any such hearing, and
(e) any physical exhibits filed during any such hearing.
(2) Within 10 days of filing the section 28 originating notice,
in the case of the applicant, and within 10 days of being served
with that originating notice, in the case of any other person, an
application in writing, made in accordance with Rule 324, may
be made to vary the contents of the case as fixed by paragraph
(1).
' Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in writ
ing on his behalf or of a consent executed by each other party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with the
copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may
send representations in writing to the Registry and to each
other party or he may file an application in writing for an oral
hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until
the Court is satisfied that all interested parties have had a
reasonable opportunity to make representations either in writ
ing or orally.
(3) Unless the Court otherwise directs, of its own motion or
upon the application of an interested person, the Deputy Attor
ney General of Canada or counsel specially appointed to apply
on behalf of the tribunal, the tribunal shall, forthwith after
receipt of the section 28 originating notice, either
(a) send to the Registry of the Court all the material in the
case as defined by paragraph (1), or, if some part thereof is
not in its possession or control, the part thereof that is in its
possession or control together with a statement of the part of
the case not in its possession or control, or
(b) prepare copies of the material referred to in subpara-
graph (a) that is in its possession or control, except the
physical exhibits, duly arranged in sets and duly certified by
an appropriate officer to be correct, and send 4 copies of
each set to the Registry of the Court together with the
physical exhibits if any and a statement of the part of the
case not in its possession or control, and send one copy of the
copies and such statement to each of the interested persons.
(4) Where the tribunal has sent to the Registry its original
material as contemplated by paragraph (3)(a), the Registry
shall forthwith prepare copies of all the material except the
physical exhibits and shall arrange such material in sets, each
of which shall be indexed and bound in a manner satisfactory to
the Court; and shall send one copy to each of the interested
persons.
(5) In a case where the tribunal advises the Registry that
there is a part of the case that is not in its possession or control,
the Registry shall send to the applicant a copy of the tribunal's
statement and advise him that it is his duty, unless he obtains a
dispensing order of the Court or a judge, to prepare copies of
the material referred to in that statement and send 4 copies
thereof to the Registry and one to each of the interested
persons.
(6) Any order made under paragraph (2) shall contain
incidental directions varying the procedure as contained in this
Rule, if necessary in the circumstances.
It is also expedient at this stage to note that, by a
letter of May 9, 1977, the Legal Advisor to the
Board transmitted certain material to the
Administrator of the Court and that that letter
reads as follows:
I hereby transmit to you the material for the decision of the
above referred section 28 application.
Although the Board issued one Order and had one hearing,
there were two applications for certification before the Board.
Therefore I am transmitting the two files of the Board with
their respective indexes and one set of exhibits applicable to
both files.
and that, by a letter dated June 24, 1977, the
Registry sent a copy of the "Case Book" (five
volumes) to the applicant's solicitor as well as to
the other parties.
The procedural application now under consider
ation was contained in a notice of motion filed on
July 4, 1977, the body of which reads:
TAKE NOTICE that an application will be made to this
Honourable Court on behalf of the Appellant (applicant)
herein, at the Federal Court of Canada, City of Ottawa,
Province of Ontario, FOR AN ORDER that the Canada Labour
Relations Board be directed or ordered by the Court to provide
a transcript of the verbal testimony given at the hearing in this
matter as required by Rule 1402; and for an Order that the
time for providing a memorandum set out in Rule 1403 be
extended so that the period of three weeks shall commence to
run from the date of provision to the applicant and other parties
of the transcript of the evidence at the hearing; and in the
alternative, for an Order that the Canada Labour Relations
Board be directed to furnish to the Registry a transcript of the
verbal testimony at the hearing and the rulings of the Board as
set out in Rule 1402(1) as no statement has been furnished to
the Registry by the said tribunal setting out that such material
is not in its possession; and for an Order that the time for filing
of a memorandum of argument be extended so that the period
of three weeks shall commence to run after the parties and
applicant have received the said transcript, and for a further
Order directing the Registrar of the Federal Court to prepare a
Notice and post the same in Registry Offices for the informa
tion of the profession as to the settled interpretation of Rule
1402(1)(c) if there is any such decision, or if the Court decides
that the Rule does not require production by the appropriate
Federal tribunal of a transcript, whether as tape recordings or
written material and for a further Order directing the Registrar
of the Federal Court to promulgate an internal memorandum
to Registry officials so that persons inquiring as to the proce
dure to be followed in Section 28 appeals will not be misin
formed; and for costs against the Canada Labour Relations
Board on the basis of solicitor and client; Alternatively, for an
Order extending time and varying the case under Rule 1402
and 1403.
AND TAKE NOTICE that in support of this application will be
read the Affidavit of Gerard F. Culhane, sworn the 30th day of
June A.D. 1977 and filed, and the pleadings and proceedings
had and taken herein.
The body of the affidavit referred to in the
notice of motion reads as follows:
1. That I am Counsel for the Appellant (Applicant) herein and
as such have personal knowledge of the matters hereinafter
deposed to except where stated to be on information and belief
and where so stated I verily believe the same to be true.
2. That I did, on the 29th of June, A.D. 1977, receive in my
office from the Federal Court of Canada, a copy of the case
book, volumes 1 to 5, in this appeal. The case book does not
include any transcript of verbal testimony given during the
hearing, although the hearing covered approximately four days.
3. That on the 29th of June, A.D. 1977 I telephoned John E.
Clegg, the Deputy Clerk of Process of the Federal Court of
Canada at Ottawa, and was informed by the said Mr. Clegg,
and verily believe that the interpretation made by the Canada
Labour Board of Rule 1402 of the Federal Court of Canada (as
stated in amending Order number 5) is that the Canada
Labour Board does not have to furnish to the Registry of the
Federal Court of Appeal a transcript of the verbal testimony
given at a hearing of a Federal tribunal from which appeal is
made under Section 28 of the Federal Court Act, unless a
transcript is then in existence.
4. That I know from personal observation during the course of
the hearing in this matter, that the proceedings before the
Canada Labour Board in the hearing were recorded electroni
cally by tape recorder.
5. That I am informed by a telephone call to the offices of the
Canada Labour Relations Board which I made on the 19th of
April, A.D. 1977, for the purpose of ordering a transcript of the
evidence of a portion of the hearing, and verily believe, that the
tape recordings of hearings are sent directly from the Canada
Labour Relations Board offices in Vancouver, B.C. to Ottawa,
forthwith after a hearing, and I accordingly conclude and verily
believe that the tapes of the hearing in this matter have been in
the possession of the Canada Labour Relations Board at
Ottawa since a period of a few days after the hearing in this
matter.
6. That under the Rules of the Federal Court of Canada (as
amended by amending Order number 5) and in particular Rule
1402(3), the Canada Labour Relations Board as the tribunal in
this matter, had a duty to either forward a transcript of the
verbal testimony in the hearing or else provide the Registry of
the Federal Court with a statement of what part of the case,
such as the transcript, which was not in its possession or
control. I am further informed by Rule 1402(5) and verily
believe, that in the case where such tribunal had advised the
Registry that there was a part of the case that was not in its
possession or control, the Registry is required by law to send to
the applicant a copy of the tribunal's statement and advise the
applicant that it is his duty, unless he obtains a dispensing
Order of the Court or a Judge, to prepare copies of the material
referred to in such statement. To the date of receipt of the case
from the Registry of the Federal Court, I have not received, nor
has my client, as I am informed by my client's officer and
verily believe, nor has my office received any such copy of a
statement by the Canada Labour Relations Board setting out
that it does not have a transcript, nor has there been received
any communication from the Federal Court of Canada Regis
try at Ottawa or elsewhere, indicating any such statement has
been received whatsoever.
7. That I am now informed by the Registry of the Federal
Court in Vancouver, B.C. and verily believe, that if I wish to
make alteration in the case as it is provided, I must make an
application under Rule 1402(2). This Rule states that within
ten (10) days of filing the Section 28 Originating Notice in the
case of the applicant, an application in writing may be made in
accordance with Rule 324 to vary the contents of the case as
fixed by paragraph 1.
8. That as Counsel for the applicant Grain Handlers Union
No. 1, I received as delivered by hand, the decision of the
Canada Labour Relations Board in this matter, on the 12th of
April, A.D. 1977. On the 19th of April, A.D. 1977 I telephoned
the Canada Labour Relations Board to order a transcript off
evidence of a portion of the hearing, for the purposes of an
appeal, having received instructions on that said day. On the
22nd of April, A.D. 1977, I did file at the Registry of the
Federal Court of Canada in Vancouver, B.C., an Originating
Notice under Section 28 of the Federal Court Act. At the same
time I was prepared to file an application for directions under
Rule 1403 and 1402 of the Federal Court Rules and had
prepared in that regard a Notice of Motion and Affidavit in
support. The original copies of the said application and my
Affidavit in support are attached hereto and marked Exhibits
"A" and "B" respectively to this my Affidavit.
9. That as is set out in my said Affidavit in support sworn the
22nd of April, A.D. 1977, under item 3 at page 3 of the
Affidavit, I did set out the appropriate material constituting a
case, including a transcript of the entire hearing. I did swear in
the said Affidavit and verily believe, that as to the preparation
of copies of the material, I was informed and verily believe that
the transcript would be attended to by the Federal Court of
Canada offices in Ottawa. I did swear such facts at that time
because I had so been informed and verily believed, by the
officers of the Registry of the Federal Court in Vancouver,
B.C., who informed me that it was not necessary to make an
application such as I contemplated for directions, as under the
Rule 1402 of the Federal Court Rules as amended, the tran
script would be attended to by the Canada Labour Relations
Board and automatically, without need of further application
by the applicant, and in due course a case book including the
transcript of the evidence would accordingly be produced.
10. That on receiving such advice from the Federal Court
Registry, I did not file the application set out as Exhibits
herein, and accordingly, the period off ten days for filing an
application to vary as set out in Rule 1402 as amended, passed
by with no action by the applicant in that regard. I also
telephoned the Canada Labour Relations Board to cancel my
request for a transcript of a portion of the evidence as a result
of the information that I had received from the Registry of the
Federal Court.
11. That I verily believe, based upon a telephone conversation I
had with a Clerk of the Canada Labour Relations Board in
Vancouver, B.C., that my request for a transcript had already
been telexed to Ottawa and it would be necessary to telex to
Ottawa again to cancel it, at the time that I did so cancel.
12. That in my conversation with Mr. Clegg, the Deputy Clerk
off Process of the Federal Court in Ottawa on the 29th of June,
A.D. 1977, (at a telephone bill cost to the applicant of $17.00),
I was informed by Mr. Clegg and verily believe, that there was
no reported case with respect to the matter of the transcript,
but there was an unreported decision or comment within a
decision by the Federal Court off Appeal, in which "transcript"
was interpreted to mean a written script and that this was the
basis off the practice of the Canada Labour Relations Board.
Mr. Clegg, further informed me and I verily believe, that this
problem had occurred on a number of occasions since 1975, and
that the Federal Registry was not happy with the situation, as
he informed me and I verily believe. I asked Mr. Clegg if there
was any notice or informative bulletin or note prepared by the
Registry for reading by the profession and posted up in the
offices of any local Registry of the Federal Court. Mr. Clegg
said, and I verily believe, that there was not. I asked Mr. Clegg
if there was any internal memorandum or information com
municated from the offices of the Federal Court Registry in
Ottawa to other Registry offices across the country, such as
Vancouver, B.C., as this matter was evidently a trap into which
others had fallen. Mr. Clegg informed me, and I verily believe,
that there was no such internal memorandum.
13. That I did on Monday, the 25th of April, A.D. 1977, at or
near the hour of 12:30 o'clock in the afternoon, personally serve
the tribunal herein, namely the Canada Labour Relations
Board, with a true copy of the Originating Notice under
Section 28 of the Federal Court Act.
14. That this matter involves an appeal from a decision of the
Labour Relations Board which, in effect, refused certification
to an applicant in an existing and defined bargaining unit
which had a 96% support in the bargaining unit. As the result
of a decision, a trade Union other than the applicant is certi
fied. The applicant, which has a small number of members, is
accordingly under great financial pressure in the attempt to
pursue its case to appeal. The longer the time between the
decision and the decision on appeal, the more severely are the
rights of my client, Grain Handlers Union No. 1, prejudiced in
respect of their rights. Recently the trade Union which was
certified in the place of the applicant, negotiated a Collective
Agreement which provided that the company would pay money
in lieu of dues to the certified trade Union. As a result of this
position in this now extant new contract, the ability of my client
to pursue its rights is even more severely diminished in terms of
finance, all of which I am informed by my client and verily
believe. The actions of the Canada Labour Relations Board in
failing to provide a transcript as set out by the Federal Court
Rules, by way of delaying the time of the appeal coming on for
hearing, prejudices my client's rights. I verily believe, based
upon the facts set out in this my Affidavit, that the Canada
Labour Relations Board, its officers, or servants, concerned
with this matter, had notice of the appeal within the period of
ten days for application to vary set out in Rule 1402(2) and had
specific knowledge that a number of other applicants had fallen
into the trap set up by the interpretation referred to me by Mr.
Clegg.
15. That I am further informed by the failure of the Federal
Court Registry to forward any notice or advice under Rule
1402(5), and verily believe, with respect to a statement which
was lawfully required from the Canada Labour Relations
Board, that no such statement has been filed to this date and
that the Canada Labour Relations Board is in wilful defiance
of its obligations under the Federal Court Rules accordingly.
16. That if it is the case that there is any decision of the
Federal Court in support of the position described to me by Mr.
Clegg which I have referred to, I verily believe that my client's
case has been severely prejudiced, despite my diligent efforts in
this regard, due to the failure of the Federal Court to advise the
profession by notice posted in Registries, or at least to provide
its Registry offices in Vancouver, B.C. and elsewhere with an
internal memorandum or explanation of the problems set out in
this Affidavit, so that a solicitor attempting to protect his
client's interests by making due inquiry would find out such
interpretation on inquiring at the Registry as I have set out.
17. That I am informed by reading the legislation of the
amendments to the Federal Court Act, and verily believe, that
the effect of the change in the procedure between the old Rule
1402 and 1403, is to make more efficacious to the appellant in
appealing a decision of a Federal tribunal, his access to the
Court of Appeal and the speed at which he may obtain a
hearing date. But as I am informed by the position I have just
learned of, and verily believe, even if an applicant demonstrates
diligence in making an appeal from the hearing or decision of
the Canada Labour Relations Board, he will be positively
misinformed by the Registrar of the Federal Court and may
have his rights prejudiced due to delay as a result of the
Canada Labour Relations Board neither providing a transcript
nor transmission of that statement referred to in Rule 1402(3).
18. That I make this Affidavit in support of an application to
the Court that the Canada Labour Relations Board be directed
or ordered by the Court to provide a transcript of the verbal
testimony given at the hearing in this matter as required by
Rule 1402, and for a further Order that the time for providing
a memorandum set out in Rule 1403 be extended so that the
period of three weeks shall commence to run from the date of
provision to the applicant and other parties of the transcript of
the evidence at the hearing.
19. That in the alternative, I make this Affidavit in support of
an application to the Court for an Order that the Canada
Labour Relations Board be directed to furnish to the Registry a
transcript of the verbal testimony at the hearing and the rulings
of the Board as set out in Rule 1402(1) as no statement has
been furnished to the Registry by the said tribunal setting out
that such material is not in its possession, and for a further
Order that the time for filing of a memorandum of argument
be extended so that the period of three weeks shall commence
to run after the parties and applicant have received the said
transcript, and for a further Order directing the Registrar of
the Federal Court to prepare a Notice and post the same in
Registry Offices for the information of the profession as to the
settled interpretation of Rule 1402(1)(c) if there is any such
decision, or if the Court decides that the Rule does not require
production by the appropriate Federal tribunal of a transcript,
whether as tape recordings or written material and for a further
Order directing the Registrar of the Federal Court to promul
gate an internal memorandum to Registry officials so that
persons inquiring as to the procedure to be followed in Section
28 appeals will not be misinformed'.
2 The proposed application referred to in paragraph 8 seems
to refer to the pre-1974 Rules.
The other parties have had an opportunity to
answer the procedural application, but, with refer
ence to the orders sought, I need only refer to the
letter from the Legal Advisor to the Board, which
reads, in part:
Written Representations
.The Canada Labour Relations Board still does not consider
that it has any obligation under Federal Court Rules to prepare
a transcript from the recordings in its possession.
However, the Board would be willing to make these record
ings available and would not oppose an Order of this Honour
able Court to that effect on the condition that the Applicant be
directed to pay the cost of transcribing the recordings.
Accordingly, if an Order is to be issued, we respectfully
suggest that it contain the following provision:
That the Canada Labour Relations Board prepare a tran
script from the recordings and that all costs thus incurred be
borne by the Applicant.
As evidenced in the case of Blagdon vs The Public Service
Commission et al [1976] 1 F.C. 615 (C.A.), it is for the
Applicant to put before the Court the evidence upon which it
intends to rely in support of its case and accordingly they
should bear the cost of the transcript when it is felt necessary
for the decision of the case.
By letter dated July 18, 1977, the solicitor for
the applicant has replied as follows:
We are responding to the letter delivered to yourselves by the
Canada Labour Relations Board. We are not aware whether it
is appropriate for Counsel to respond to a submission on a
matter to be heard without the participation of Counsel
involved personally, nor are we sure that it is appropriate to
respond to the Administrator of the Federal Court by letter.
However, we wish it to be understood by the Court, on behalf
of our clients, that we do not agree to the proposal contained in
the Canada Labour Relations Board's letter. In fact we are
astonished that the Labour Relations . Board has not even
responded to the allegation contained in this writer's Affidavit
now before the Court, that the Labour Relations Board failed
to advise the Registrar of what part of the case was not in its
possession or control. It is this precise failure, which this
writer's Affidavit sets out at some length, which has caused a
great delay in this case.
In this particular case the applicant (appellant) had a lawyer
acting for them and now find themselves deceived despite that
lawyer's best efforts to ascertain the proper procedure and
requirements of the Statute of the Court. Part of those require
ments was a legal duty on the Canada Labour Relations Board
which they have failed to discharge.
Reading the legislation indicates an intention in Parliament
that a transcript should be prepared and delivered by the
Canada Labour Relations Board, which is the tribunal in this
particular case.
This writer is frankly outraged that the Canada Labour
Relations Board not only plays the game of a private litigant,
which is not appropriate to an administrative agency of the
Federal government, but also wilfully fails to discharge its legal
obligations under the Rules of Court and does not even have an
answer to make when this is put against them. This is a scandal
which we ask the Federal Court of Appeal to set right. In the
first place, the legislation intends, and we seek that the Federal
Court of Appeal should direct, that the tribunal appealed from
provide a transcript. Secondly, the legislation does intend, and
we seek that the Federal Court of Appeal should so direct, that
appeals of the nature of the present case should be expedited
and the appellants assisted. The legislation does not suggest
that the appeal should be delayed and the appellant frustrated
by the administrative treachery of a Federal tribunal.
These are strong words, but we urge the Court to consider
them fully. To put the matter rhetorically to the Court, upon
what basis of law or of equity should a respondent agency of
the Federal government be allowed to frustrate the intention of
the legislation, arrogantly avoid its legal duties and when
tested, put in front of an appellant a further obstacle in the way
of cost of transcript. We have learned now that this is a game
that the Canada Labour Relations Board has been playing for
several years and we say that this is an outrageous scandal. We
say further that our client does not have the funds to provide a
transcript of the entire proceedings, any more than it would
have the funds to provide for Volumes 1 to 5 of the case now
delivered, a great deal of which consists of a compilation of
irrelevant correspondence of a purely routine kind. Surely it
would test the credibility of any ordinary person approaching
the forums of justice in this country to be responsible for the
compilation which consisted in large part of routine letters
occupying three or four pages due to the length of the style of
cause, two entire copies of the decision of the Labour Board, as
the original tribunal, and large amounts of trivia that would
never be raised by the appellant. This writer originally ordered
from the Canada Labour Relations Board a transcript of a
portion of the evidence at the hearing, which would have been
the foundation of an appeal, addressed to issues of breach of
natural justice. We now have five Volumes of stuff, most of
which is hopelessly and almost contemptuously beside all points
that might reasonably be raised.
Now we hear the solicitor acting for the Canada Labour
Relations Board proposing that in obvious evasion of its legal
duty to provide a transcript, the applicant be required to
produce a transcript of the entire proceedings at its cost to
compound the production and demonstration before the Court
of expensive, but useless material.
We would address the Court that this is a scenario right out
of the novels of Franz Kafka, where the irrelevant becomes an
object of compulsive attention and that which is relevant to the
cause of inquiry into issues requiring the intention of the Court,
is lost by procedural effect.
No lawyer is a stranger to the consequence of procedure
where it occasionally produces unexpected and perhaps unin-
tended consequences. I am sure no lawyer and no Judge is a
stranger to these processes even producing absurdity in the eyes
of the layman.
Here, however, there is an intention to frustrate a Statute
persistently carried on by a Federal tribunal. Its solicitor now
puts forward a position that frankly frustrates an appellant
after it has delayed him. Who could imagine a surer way to
exhaust appellants to the Federal Court by delay and cost. We
say this is a violent and contemptuous abuse of process and we
ask the Court to deal with it on that basis.
Not wishing to be misunderstood, we say on behalf of our
clients that they have no ability to pay for an entire transcript
and have no intention of ordering the same. The Court will be
aware from this writer's original Affidavit that the writer's
original application for a transcript was not based upon a
transcript of the entire proceedings, but of a portion thereof
which in this writer's opinion, was relevant to a cause of appeal.
I recognize that there is some ambiguity as to
whether the words in Rule 1402(1) (c) "if any"
refer to "transcript" or "verbal evidence given at
the hearing" so that, if there were such evidence
but no transcript has been made of it
(a) on the one view, an order under Rule
1402(2) is required to make a contemplated
"transcript" a part of the case on which the
section 28 application is to be decided, 3 and
(b) on the other view, a transcript has to be
prepared in order that the case as prescribed by
Rule 1402(1) is complete unless an order is
made under Rule 1402(2) varying the contents
of the case by excepting the "transcript"
therefrom.
In view of such ambiguity, I would, to avoid
difficulty, be prepared to consider a Rule 1402(2)
order to make a "transcript" prepared after the
event a part of the Case. However, this is not an
application for such an order. (An order making a
transcript of a part only of the evidence would not,
of course, be made without hearing the other
parties as to whether it would be fair to look at
such part by itself.)
The first order sought by this application is an
order directing the Board to provide a transcript.
With reference to such an application, I am of the
The time for such an order may, of course, be extended
under Rule 3(1)(c) or (d).
view that Rule 1402(3) does not require the Board
to supply material that is part of the Case if such
material is "not in its possession or control". In
this connection, I subscribe to the views expressed
in Blagdon v. Public Service Commission 4 by
Thurlow J. (with which views Pratte J. and Kerr
D.J. agreed) at pages 619 and 620, where he said:
The position, as I see it, is that in proceedings under section
28 of the Federal Court Act it is for an applicant to put before
this Court the facts upon which he relies to raise and sustain his
grounds of attack on a tribunal's decision. For that purpose, if .a
transcript exists of the proceedings of a tribunal the applicant is
entitled to prove it before the Court and thus make it evidence
of what transpired before the tribunal. Moreover, if the tri
bunal has caused its proceedings to be recorded and has in its
possession a transcript of them, on an application being made
under section 28 to review its decision, the tribunal is required
by Rule 1402 to include such transcript in the material to be
forwarded to the Registry. There is, however, no statutory or
other legal obligation, of which I am aware, upon the Public
Service Commission to have a verbatim record made of the
proceedings of its appeal boards, whether by shorthand report
ing or by mechanical or electronic means. (I express no opinion
as to whether, if a verbatim record of some sort is not kept,
there is an obligation on a public service appeal board to make
handwritten notes of the material and representations put
before it at its inquiry and to include such notes in the material
forwarded under Rule 1402. Some such obligation may con
ceivably exist but the point does not arise and was not argued in
the present case.) Even where a shorthand note has been taken
or mechanical or electronic means of recording has been
employed it does not follow that the Commission is obliged,
merely because a section 28 application has been made for
review of the appeal board's decision, to incur the expense of
producing a transcript, from such notes or recordings. On the
other hand an applicant's right to put the contents of such notes
or recordings before the Court as evidence cannot be frustrated
by a refusal by the tribunal either to prepare and return to the
Court a transcript or to make the notes or recordings, available
for the production of a transcript. The applicant is entitled, as I
see it, to invoke the aid of the Court in an appropriate case to
have such notes or records produced and transcribed at his
expense for use at the hearing. (See Senior v. Holdworth
[1975] 2 W.L.R. 987.)
The applicant appears, however, to base its
application, in part at least, on the contention that
the transcript was made part of the Case by Rule
1402(1)(c) and that the Board, therefore, failed to
comply with the requirement in Rule 1402(3)(a)
that it send a statement to the Registry of the part
of the Case not in its possession or control with the
result that a copy of such statement was not
4 [1976] 1 F.C. 615.
supplied to it under Rule 1402(5). 5 I fail to see
how such a failure would justify the Court in
imposing on the Board the expense of transcribing
the evidence, which expense under the Rules falls
on the applicant. It may well be that the Board
should have made a statement concerning the non
existence of a transcript in its possession or control
(and of the existence of tapes from which a tran
script might be prepared) in which event the appli
cant would have been entitled to rely on the
Board's failure to do so for relief from any result
ing delay in its carrying out of what is required of
it by the Rules. However, I can see no justification
in such a failure for imposing on the Board the
expense of transcribing the evidence. This is not to
say that there would not be some other sanction if
there was a refusal on the part of a tribunal to
comply with a direction from the Court that it
carry out something required by the Rules.
The application for an order directing the Board
to provide a transcript will, therefore, be refused.
It follows that the application for a consequential
order extending the time for filing a memorandum
under Rule 1403 will also be refused. Such dismis
sal will not, of course, prejudice the applicant's
right to seek an order as to what part, if any, of the
evidence shall be part of the Case by way of a
transcript thereof after giving the other parties an
opportunity to put forward their views on any
proposal that a part thereof be omitted. 6 The
applicant may, of course, apply for an order as
contemplated by Blagdon if it encounters difficul
ty in arranging with the Board for the transcript
required.
The final application is for an order directing
the "Registrar of the Federal Court" to prepare
and post a memorandum for the information of the
profession. This must also, in my view, be refused.
It is not based on any specified legal au-
5 Out of an abundance of caution, I suggest that, in cases of
doubt, such a declaration should be made and acted upon under
Rules 1402(3)(a) and 1402(5), respectively, in the future.
6 Based on past experience, my own view is that such an
order should not be made until the "transcript" is in existence
and the parties have had an opportunity to make their submis
sions thereon.
thority and is, in my experience, a novel applica
tion. The officers of the Registry are encouraged
to be as helpful as possible to the profession and, in
particular, to bring to the attention of a solicitor,
in any particular case, a statutory provision, a rule,
or a decision of the Court that may, as it seems to
them, bear on the matter in hand and of which the
solicitor may not be aware. The fact that this
"service" is offered does not, however, relieve a
solicitor of the professional responsibility owed by
him to his client to ascertain the legal rules gov
erning the procedure in his case and apply them
correctly to the circumstances of his case. (What
the Registry does is merely an "aid" to the solici
tor in the carrying out of this responsibility.) Fur
thermore, an "internal memorandum" to Registry
officials as to what response should be made to
requests by solicitors for aid would be impractical
unless it were merely a prohibition against doing
any more than their legal duty requires, in which
event it would unduly impede solicitors in obtain
ing what help may be available to them. Registry
officers, who are laymen, must, in my view, be
encouraged to answer questions concerning prac
tice and procedure to the best of their respective
abilities. Solicitors, who have the ultimate profes
sional responsibility, for which they have appropri
ate training and experience before being admitted
to the Bar, will of course, I am sure, act upon their
own professional views duly arrived at after con
sidering all matters that have relevance to the
problem in hand.' For the Registry to assume to
tell the profession what the effect of the Act and
Regulations is with reference to any question or
the effect of the jurisprudence with regard thereto
would be an improper assumption of the solicitors'
responsibilities.
Finally, it might be helpful if I refer to the
memorandum filed with reference to this inter
locutory application on behalf of the respondent,
' It is a different matter if a solicitor has a complaint that a
particular Registry officer has wilfully misled him. Such a
complaint should be made to the Administrator with all neces
sary particulars and, if so made, will be appropriately dealt
with. Such a complaint is not, however, as such, a proper
subject matter for an application to the Court. In any event, no
basis for such a complaint is furnished by the material support-,
ing this application. If the statements contained in paragraph 9
and elsewhere in the supporting affidavit are intended to be
such a complaint, these should be properly particularized and
the complaint made in the proper way.
Grain Workers Union, Local 333, C.L.C. The
body of that memorandum reads:
While this Respondent has no objection to a transcript of
testimony and argument heard before the Canada Labour
Board being part of the case before this Honourable Court, per
se, or to extensions of time, per se, we must object to an
appellant filing an application under Section 28/2 of the Act
without then or later setting out the grounds of appeal. All the
Appellant did in his Originating Summons of April 22, 1977
was to borrow as his "'grounds" the general words of Section
28/2, with some rearrangement. How natural justice was
violated, what errors of law occurred, or what facts were
capriciously found, he either does not know or will not say.
How then can the Court make a decision as to the contents of
the Case? How can the Respondents object to this or that
material as being irrelevant, not legally admissible, or simply a
needless expense to the taxpayer?
How can the Respondents take a position under Rule
1402(2) in these circumstances?
While the Appellant in his Affidavit speaks of "falling into
the trap set up by the interpretation referred to me by Mr.
Clegg", and suggests that parties "will be positively misin
formed by the Registrar of the Federal Court", this Respond
ent says that the Appellant himself appears to be [on] a fishing
expedition.
In the case of Benoit et al v. The Public Service Commission
of Canada et al., [1973] F.C. 962 (C.A.); CCH Dominion
Report Service 1974 (60-307), an application was made for
extension of the initial ten-day period. It was dismissed on the
ground that the application was not accompanied by evidence
to show that the applicant had an arguable case. By analogy,
this Respondent submits that the Court and the Respondents
are placed in a difficult position due to the failure of the
Appellant to specify his grounds of objection.
The Federal Court Rules do not, as I read them,
contemplate that the section 28 application set out
the grounds on which the application is made. The
Rules do require the applicant to file and serve a
memorandum "of the points to be argued by him"
(Rule 1403); and the practice is to confine the
applicant to his memorandum subject to the possi
bility that he may be permitted to amend it on
terms as to adjournment and costs thrown away
that will protect the other parties.
For the aforesaid reasons, the procedural
application of which notice is given by the notice
of motion filed on April 22, 1977, will be
dismissed.
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.