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T-3554-79
The Queen in right of Canada and Attorney Gen eral of Canada (Plaintiffs)
v.
The National Association of Broadcast Employees and Technicians, Armand Bergeron, Bryon Lowe, Roch Sarrazin, Ones St, Amour, Jose Lalonde, Andre Villeneuve, Bernard Maguire, Robert Sey- chuk, Al Donovan, Richard Jamieson, Jacques Gilbert, Denis Meloche, Les Peers, Phillip Col- borne, Rene Paquet, Michel Masse, Paul Thi- beault (Defendants)
Trial Division, Thurlow A.C.J.—Ottawa, July 21, 1979.
Prerogative writs Interim injunction Labour relations
— Jurisdiction — Jurisdiction not specifically withdrawn from superior courts by 1977-78 amendment to Canada Labour Code, and application pursuant to s. 17(4) of Federal Court Act without limitations comparable to s. 23 — Factors militating against exercise of jurisdiction — Jurisdiction exer cised because date on which Canada Labour Relations Board was prepared to deal with application was too late to prevent inconvenience and damage of anticipated withdrawal of ser vices and because anticipated breach advocated by union offi cials in a way indicating a deliberate purpose to flout the law
— Canada Labour Code, R.S.C. 1970, c. L-1, ss. 180(2), 182
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 17(1),(4), 23.
APPLICATION. COUNSEL:
E. A. Bowie and L. S. Holland for plaintiffs.
No one appearing for defendants. SOLICITORS:
Deputy Attorney General of Canada for
plaintiff the Queen in right of Canada.
No one appearing for defendants.
The following are the reasons for order deliv ered orally in English by
THURLOW A.C.J.: This is an application for an interim injunction to restrain violation by the defendants of subsection 180(2) of the Canada
Labour Code'. At the hearing two of the defend ants attended but made no representations. In the course of the hearing, I granted leave to add the Attorney General of Canada as a plaintiff on filing his consent thereto subject to any just exception
thereto that might be made within ten days by any interested party.
In McKinlay Transport Limited v. Goodman 2 I expressed the opinion that as a result of amend ments to the Canada Labour Code including the
new section 182 3 this Court does not have jurisdic tion under section 23 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, 4 to entertain such an application. The present application is, how
' R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18.
180. ...
(2) No employee shall participate in a strike unless
(a) he is a member of a bargaining unit in respect of which a notice to bargain collectively has been given under this Part; and
(b) the requirements of subsection (1) have been met in respect of the bargaining unit of which he is a member.
2 [19791 1 F.C. 760.
3 S.C. 1977-78, c. 27.
182. Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful and the Board may, after affording the trade union or employees an opportunity to be heard on the application, make such a declaration and, if the employer so requests, may make an order
(a) requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revoca tion forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the strike;
(c) requiring any employee who is participating in the strike to perform the duties of his employment; and
(d) requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or
(c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies.
4 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.
ever, made under subsection 17(4) of the Federal Court Acts which contains no limitation compa rable to that in the concluding words of section 23. In this situation, counsel for the plaintiffs submit ted that as the Court, previous to the 1977-78 amendment of the Canada Labour Code, had jurisdiction to enforce subsection 180(2) by injunc tion and as the amending Act did not specifically or with clear wording manifest a purpose to with draw such jurisdiction from the superior courts this Court still has jurisdiction to enforce subsec tion 180(2) by injunction. From the point of view of the bare question of jurisdiction, and without having heard argument to the contrary, I am inclined to think the submission is sound.
But, in considering whether the jurisdiction so left with the Court should be exercised, it seems to me that the obvious policy of the amendment to place the enforcement of the provision under the authority of the Canada Labour Relations Board and to give it power to issue injunctive relief broader than that available in superior courts, militates strongly against interference by the Court. And, if that be a valid consideration, it appears to me to apply a fortiori where as in the present instance, the Board already has before it an application for relief by injunction in respect of matters which include the particular matter now before this Court.
To that is to be added the fact that there is, in my view, serious doubt as to the right of the Crown to maintain this proceeding simply as the principal for whom the Canadian Broadcasting Corporation acts as agent in matters other than
5 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.
those referred to in subsection 38(3) of the Broad casting Act 6.
On the other hand, it has been made to appear in the material before the Court that the Canada Labour Relations Board is not prepared to deal with the application before it, before July 27, 1979, by which time it will be too late to prevent the inconvenience and damage which the anticipated withdrawal of services will cause in respect of the scheduled performances which are the subject matter of this application.
In addition, there is the fact that on the material before me, the breach to be anticipated has been advocated by union officials in such a manner as to indicate a deliberate purpose to flout the statute.
In these circumstances, and particularly having regard to the inability of the Canadian Broadcast ing Corporation to obtain a hearing of the matter before the Canada Labour Relations Board in time to obtain any effective relief in respect of the subject matter of the present application, I think this must be regarded as so exceptional a case that the Court should intervene to prevent a flouting of the law and the denial of any effective remedy.
The order will therefore go restraining the defendants as prayed until Monday, July 30.
6 R.S.C. 1970, c. B-11.
38....
(3) The Executive Vice-President and the officers and employees employed by the Corporation pursuant to subsec tion (2) shall, subject to section 44, be employed on such terms and conditions and at such rates or remuneration as the Corporation deems fit and the Executive Vice-President and such officers and employees are not officers or servants of Her Majesty.
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