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A-486-79
The National Association of Broadcast Employees and Technicians, Armand Bergeron, Byron 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 (Appellants) (Defendants)
v.
The Queen in right of Canada and Attorney Gen eral of Canada (Respondents) (Plaintiffs)
Court of Appeal, Pratte and Heald JJ. and Kerr D.J.—Ottawa, November 13 and 20, 1979.
Jurisdiction — Labour relations — Prerogative writs — Injunction — Appeal from Trial Division's decision to grant an interim injunction enjoining appellants from violating s. 180(2) of the Canada Labour Code — Whether or not Trial Division had jurisdiction to grant injunction — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 180(2), 182 as amended by S.C. 1972, c. 18, s. 1 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 17(4), 23.
This is an appeal from an order of the Trial Division granting an application for an interim injunction and enjoining appel lants from violating section 180(2) of the Canada Labour Code. Respondent the Queen sought the injunction, alleging that it was seriously apprehended that operations of the CBC would be disrupted by an illegal strike by some of its employees. Appellants' only ground of appeal is that the Trial Division was without jurisdiction in the matter. It is argued that section 182 of the Canada Labour Code granted exclusive jurisdiction to grant an injunction to prevent a violation of section 180 of the Code to the Canada Labour Relations Board and that no provision in the Federal Court Act or elsewhere gives the Trial Division jurisdiction in the circumstances of this case.
Held, the appeal is allowed.
Per Pratte J.: In amending the Canada Labour Code and enacting section 182, Parliament did not confer an exclusive jurisdiction on the Canada Labour Relations Board. Nothing in section 182 indicates the clear intention of Parliament to take the jurisdiction away from those Courts who exercised it. The Trial Division lacked jurisdiction in this case, even though section 17(4) read in isolation supports it, because section 17(4) is modified by the language of section 23. As the only alterna tive to an action between subject and subject is an action between a public authority and a subject, the phrase in section 23 "as well between subject and subject as otherwise" means "between subject and subject as well as between Her Majesty or the Attorney General or another public authority and a subject". It follows that in all the cases specified in section 23,
even those where the Crown (or the Attorney General) is plaintiff or defendant, the jurisdiction of the Court is subject to the limitation expressed in the last part of that section— "except to the extent that jurisdiction has been otherwise specially assigned". When the Crown is plaintiff or defendant, section 23 has the effect, not of increasing the jurisdiction of the Court, but of limiting the wide jurisdiction conferred on it by section 17(1) and (4). Respondents' action, based on section 180 of the Canada Labour Code, was of a kind described in section 23, and the jurisdiction to grant an injunction to prevent a violation of section 180 is specially assigned to the Canada Labour Relations Board where the application is made by the employer. Although the applicants were Her Majesty and the Attorney General, it is apparent from the statement of claim that the respondents were merely acting on behalf of the employer, Canadian Broadcasting Corporation.
Per Kerr D.J.: As the Attorney General was not acting in his own right as guardian of the legal rights of the public this decision should not be construed as implying that the Trial Division does not have jurisdiction to grant, on an application of the Attorney General acting as such a guardian, an injunc tion against a threatened violation of section 180 of the Canada Labour Code where there is no other remedy available in time to prevent serious harm to the public.
APPEAL. COUNSEL:
M. W. Wright, Q.C. for appellants (defend- ants).
E. A. Bowie and L. S. Holland for respond ents (plaintiffs).
G. Henderson, Q. C. for Canada Labour Rela tions Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for appellants (defendants).
Deputy Attorney General of Canada for respondents (plaintiffs).
Gowling c& Henderson, Ottawa, for Canada Labour Relations Board.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is an appeal from an order of the Trial Division [[1980] 1 F.C. 716] granting an application for an interim injunction made by the respondents and enjoining the appellants from violating section 180(2) of the Canada Labour Code, R.S.C. 1970, c. L-1 as amended by S.C.
1972, c. 18, s. 1.'
On July 20, 1979, Her Majesty the Queen in right of Canada commenced an action in the Trial Division and filed a statement of claim alleging, in short, that it was seriously apprehended that the operations of the Canadian Broadcasting Corpora tion would be disrupted by an illegal strike of some of its employees. The statement of claim concluded as follows:
12. The Deputy Attorney General on behalf of the Canadian Broadcasting Corporation claims as follows:
a) an injunction restraining the Defendants and any other person having notice of the Order of this Court from par ticipating in an unlawful strike of technicians employed by the Canadian Broadcasting Corporation and from counsel ling, aiding or conspiring with one another to participate in a said strike and other injunctive relief that the Court deems just; and
b) an interim judgement in the above terms.
On July 21, 1979, pursuant to an order of the Associate Chief Justice, the Attorney General of Canada was added as a plaintiff in the action.
On July 21, the respondents (plaintiffs in the Court below) presented an application for an interim injunction restraining the defendants (appellants in this Court) from violating section 180 of the Canada Labour Code. This application was granted by an order of the Associate Chief Justice. It is against that order that this appeal is directed.
The appellants' only ground of appeal is that the Trial Division had no jurisdiction in the matter. They say that the exclusive jurisdiction to grant an injunction to prevent a violation of section 180 of the Canada Labour Code belongs to the Canada Labour Relations Board by virtue of section 182 of that Code. And they add that, in any event, there is no provision in the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, or elsewhere in the stat utes, giving the Trial Division jurisdiction to pro
' That provision reads as follows:
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.
nounce an injunction in the circumstances of this case.
Section 182 of the Canada Labour Code was enacted in 1978 [S.C. 1977-78, c. 27, s. 64]. It reads as follows:
182. Where an employer alleges that a trade union has declared or authorized a strike, or that employees have par ticipated, 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 revocation 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.
It is the appellants' contention that, in amending the Code and enacting section 182, Parliament conferred an exclusive jurisdiction on the Canada Labour Relations Board. I cannot accept that view. Until the enactment of that provision in 1978, the jurisdiction to restrain illegal strikes by way of injunction was vested, if not perhaps in the Federal Court, in the Superior Courts of the prov inces. I see nothing in the language of section 182 which indicates the clear intention of Parliament to take that jurisdiction away and, in my view, "It would require ... the clearest expression or implication in order to oust the jurisdiction of the ordinary Courts of the country ...". 2
The sole question to be resolved is, therefore, whether the Federal Court Act contains any provi sion supporting the jurisdiction of the Trial Divi sion in this matter. Counsel for the respondents answers that question in the affirmative. The juris
t Per Lord Shaw of Dunfermline in Toronto Railway Com pany v. Corporation of the City of Toronto [19201 A.C. 455 at page 461.
diction of the Trial Division in this case, he says, flows from section 17(4) of the Federal Court Act under which:
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; ...
True, the Supreme Court of Canada has decided that section 17(4) was validly enacted only inas much as it conferred jurisdiction on the Court when the Crown's action was founded on existing federal law. 3 However, said counsel, the applicable federal law in this case is to be found in section 180 of the Canada Labour Code.
In my opinion, it is not necessary to determine whether the respondents' action is founded on existing federal law because even if I assume the correctness of the respondents' view on this point, I am nevertheless of opinion that the Trial Division lacked jurisdiction in this case. For the purposes of the discussion, I am therefore ready to concede that section 17(4), read by itself and in isolation, would support the jurisdiction of the Court. How ever, section 17(4) must not be read alone and its effect, in my view, is modified by the language of section 23. °
Section 23 provides that, in certain specified cases, the "Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise ... except to the extent that jurisdiction has been otherwise specially assigned." In my opinion, as the only alternative to an action be tween subject and subject is an action between a public authority and a subject, the phrase "as well between subject and subject as otherwise" means
3 See McNamara Construction (Western) Limited v. The Queen [1977] 2 S.C.R. 654.
4 Section 23 of the Federal Court Act reads as follows:
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 undertakings 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.
"between subject and subject as well as between Her Majesty or the Attorney General or another public authority and a subject". It follows that in all the cases specified in section 23, even those where the Crown (or the Attorney General) is plaintiff or defendant, the jurisdiction of the Court is subject to the limitation expressed in the last part of that section ("except to the extent that jurisdiction has been otherwise specially assigned"). That is to say that when the Crown is plaintiff or defendant, section 23 has the effect, not of increasing the jurisdiction of the Court, but of limiting the wide jurisdiction conferred on it by section 17(1) and (4).
Assuming, as I do, that the respondents' action was founded on section 180 of the Canada Labour Code, I have no difficulty in reaching the conclu sion that their action was of a kind described in section 23 since it clearly related to a matter coming within one of the subjects enumerated in that section, namely "works and undertakings con necting a province with any other province or extending beyond the limits of a province". That being so, I cannot escape the further conclusion that the Trial Division had jurisdiction in the matter "except to the extent that jurisdiction has been otherwise specially assigned."
The jurisdiction to grant an injunction to pre vent the violation of section 180 of the Canada Labour Code is specially assigned to the Canada Labour Relations Board by section 182 in all the cases where the application for the injunction is made by the employer. Can it be said that the Board did not have jurisdiction in the present case in view of the fact that the applicants for the injunction were Her Majesty and the Attorney General? I do not think so. It is apparent from the statement of claim that the Crown and the Attor ney General were merely acting on behalf of the Canadian Broadcasting Corporation; this is not a case where the Attorney General was acting in his own right as the representative of the public inter est. It was, for that reason, a case where the jurisdiction was specially assigned to the Canada Labour Relations Board and where, consequently, the Trial Division had no jurisdiction.
For those reasons, I would allow the appeal and set aside the order of the Trial Division.
* *
HEALD J.: I concur.
* * *
The following are the reasons for judgment rendered in English by
KERR D.J.: I agree with the reasons for judg ment given by Mr. Justice Pratte.
I will add, perhaps unnecessarily, the following cautionary words. As the Attorney General was not, in our opinion, acting in this case in his own right as guardian of the legal rights of the public the decision being here given should in no way be construed as implying that the Trial Division does not have jurisdiction to grant, on an application of the Attorney General acting as such guardian, an injunction against a threatened violation of section 180 of the Canada Labour Code in circumstances where there is no other available remedy to deal with the matter in time to prevent serious harm to the public.
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