77-T-610
Régis Tardif (Applicant) (Complainant)
v.
Verreault Navigation Inc. (Respondent)
Trial Division, Marceau J.—Montreal, August 15;
Ottawa, August 23, 1977.
Practice — Application to file order of Canada Labour
Relations Board pursuant to Canada Labour Code, s. 123 —
Supporting affidavit not clearly and directly establishing
respondent's failure or refusal to comply with order — Order
too vague and imprecise for enforcement — Requirements of
Rule 332 not met — Canada Labour Code, R.S.C. 1970, c.
L-1, s. 123 — Federal Court Rule 332.
This is an application to obtain permission to file an order of
the Canada Labour Relations Board in the Court, pursuant to
section 123 of the Canada Labour Code.
Held, the application is dismissed. The supporting affidavit
does not meet the requirements of Rule 332. It does not clearly
and directly establish the failure or refusal of the respondent to
comply with the content of the order which applicant wishes to
have filed. The Board's order is too vague, uncertain, imprecise
and ambiguous to be capable of enforcement. This order, to
have the force and scope of judgment of the Court, must be
supplemented, made more specific, and expressed in unques
tionable and unequivocal terms.
International Association of Longshoremen, Local 375 v.
Association of Maritime Employers (1975) 52 D.L.R.
(3d) 293, followed. International Brotherhood of Electri
cal Workers, Local Union No. 529 v. Central Broadcasting
Co. Ltd. [1977] 2 F.C. 78, followed.
APPLICATION.
COUNSEL:
J. Déry for complainant.
R. Chartier for respondent.
SOLICITORS:
Ahern, Nuss & Drymer, Montreal, for
complainant.
Langlois, Drouin, Roy, Fréchette & Gau-
dreau, Quebec, for respondent.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: This is an application to obtain
permission to file in this Court, for registration
herein, an order of the Canada Labour Relations
Board made on July 15, 1977. The application is
made pursuant to the provisions of section 123 of
the Canada Labour Code, R.S.C. 1970, c. L-1, as
amended by S.C. 1972, c. 18, which states:
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
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.
Filed in support of the application is the affida
vit of one of the counsel for the applicant (who is
described in the heading as the "complainant", no
doubt because that was his title before the Canada
Labour Relations Board). A reading of the allega
tions of fact in the said affidavit will allow the
Court to immediately place certain facts in their
context and will also facilitate the discussion I
intend to pursue. Counsel for the complainant
stated in the affidavit:
[TRANSLATION] (1) I am one of the counsel for the
complainant;
(2) Complainant filed a complaint with the Canada Labour
Relations Board pursuant to section 187(1) of the Canada
Labour Code (Part V—Industrial Relations), alleging a breach
of the provisions of section 184(3)(a)(î) of the same Code,
namely that the employer-respondent refused to employ com
plainant because the latter became a member of the Seafarers'
International Union of Canada;
(3) Further to a hearing which took place from June 21 to 23,
1977, the Canada Labour Relations Board handed down a
decision on July 15, 1977, ordering inter alia that complainant
be immediately reinstated in the position he occupied at the end
of the 1976 shipping season; a copy of the order is appended
hereto as Exhibit P-1;
(4) We are informed by Mr. André Bansept, an officer of the
Seafarers' International Union of Canada, and we believe, that
the employer-respondent persists in his refusal to rehire com
plainant, contrary to the provisions of the said decision;
(5) This decision should be filed and registered in the Federal
Court so that, when registered, it may have the same force and
effect, and all proceedings may be taken thereon, as if the order
or decision were a judgment obtained in that Court.
In order to complete the statement of facts, I
need only reproduce the order, exclusive of the
reasons therefor, that complainant is seeking to
have filed and registered. It reads as follows:
NOW, THEREFORE, the Canada Labour Relations Board
hereby:
(1) orders, pursuant to Section 189 of the Canada Labour
Code, the respondent, Verreault Navigation Inc., to reinstate
forthwith Régis Tardif in the same position he occupied at the
end of the 1976 shipping season, without loss of the wages
which he would have received or of the rights and privileges
which he would have enjoyed, had the respondent not failed to
comply with the provisions of the Canada Labour Code, (Part
V—Industrial Relations); and
(2) reserves, with the consent of the parties, its jurisdiction
to determine the amount of compensation payable pursuant to
the provisions of Section 189(b)(ii) of the Canada Labour
Code, in the event that the parties are unable to come to an
agreement thereon.
ISSUED at Vancouver this 15th day of July 1977 by the
Canada Labour Relations Board.
(sgd)
Chairman
(Marc Lapointe, Q.C.)
The facts of the situation are now clear, and the
situation must be analyzed. The first step which
must be taken is to consider the nature of the
application, in order to be able to define the role
which the Court is called upon to play with respect
to it. Two recent decisions of this Court, supported
by long and carefully prepared reasons, are very
precise in this respect and must, in my view, be
followed. They are a decision of my brother Walsh
J. in International Association of Longshoremen,
Local 375 v. Association of Maritime Employers,
reported in (1975) 52 D.L.R. (3d) 293, and
another subsequent decision of my brother Cat-
tanach J. in International Brotherhood of Electri
cal Workers, Local Union No. 529 v. Central
Broadcasting Company Ltd. [ 1977] 2 F.C. 78.
The first conclusion to be drawn from these
decisions is that an application of the type in the
case at bar cannot be considered an incidental or
routine application made solely as a formality. The
consequences which the Act attaches to the filing
and registration of an order, namely giving the
order "the same force and effect ... as if the order
or decision were a judgment obtained in that
Court", are too serious and fundamental for that
to be the case. The application is one of an intro
ductory nature, which must be made and support-
ed in accordance with the rules of practice of this
Court, one of which is Rule 332 which requires
that the facts attested by affidavit be limited to
those of which the deponent has had personal
knowledge.
The second conclusion which emerges from the
aforementioned decisions is that the Court is
required to play a specific role when faced with an
application of the type involved in the case at bar.
It is not, of course, the responsibility of the Court
to verify the validity of the order or to amend or
supplement the terms. Its primary responsibility is
to ensure that all the prior conditions required by
the Act for filing and registration are present, and
especially that the person concerned failed or refu
sed to comply with the content of the order. It
must then check whether the order, as formulated,
is liable to have the same effect as a judgment
obtained in this Court, and consequently to give
rise to enforceable and coercive measures to which
any judgment of this Court may give rise.
These conclusions, which I said I drew from the
decisions of my brother Judges and which seem to
me quite rational and obvious, oblige me to rule
that the application before me at present is not
admissible. It is clear that the affidavit filed in
support of it does not meet the requirements of
Rule 332 of the Federal Court Rules, and in
particular does not establish clearly and directly
the failure or refusal of respondent to comply with
the content of the order which applicant wishes to
have filed. In my view, it is also equally clear that
the order of the Board—which does not specify, as
regards its actual implementation, the time limit
within which the employee must be reinstated, and
contains a "rider" (the second part of the conclu
sions) which remains conditional on an agreement
and open to re-examination—is too vague, uncer
tain, imprecise and ambiguous to be capable of
enforcement. It will be noted that I have repro
duced the very words used by Cattanach J. in the
aforementioned decision, in which the order that
applicant wished to have filed was worded in the
same way as the one in the case at bar. I do not see
how this order of the Canada Labour Relations
Board can have the force and scope of a judgment
obtained in this Court without first being supple
mented, made more specific, and expressed in
unquestionable and unequivocal terms.
I have no choice but to refuse this application
for filing and registration. The application will
therefore be dismissed. However, in view of the
circumstances, it will be dismissed without costs.
ORDER
The application is dismissed without 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.