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T-6041-79
Hugh Wagner on his own behalf and on behalf of certain members of Grain Services Union (C.L.C.) and Grain Services Union (C.L.C.) (Plaintiffs)
v.
Manitoba Pool Elevators Ltd. (Defendant)
Trial Division, Grant D.J. — Winnipeg, December 20, 1979 and February 23, 1980.
Jurisdiction — Labour relations — Prerogative writs — Injunction — Defendant unilaterally changed the status of several members of the plaintiff Union to management, thus removing them from the bargaining unit — Plaintiffs filed a grievance with the defendant, which was rejected — Plaintiffs commenced proceedings for relief before the Canada Labour Relations Board, as well as an application in this Court for interim injunctions — Collective agreement provided for arbi tration in the event of a dispute over the interpretation of the agreement —, Whether this Court has jurisdiction to hear the application — Application dismissed for want of jurisdiction — Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C. 1972, c. 18, s. 155 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 23.
Motion for interim injunctions restraining the defendant from continuing to effect technological changes and unilateral changes in the terms and conditions of employment of certain members of the plaintiff Union pending the outcome of various proceedings before the Canada Labour Relations Board. The defendant changed the designation of fifteen larger country elevators to service centres. As a result of this reorganization, each service centre would have a manager who would be employed under a formal contract with the defendant, and who would be a part of management, and outside the scope of the collective bargaining agreement. Previously, the head man was the elevator manager, who was a member of the bargaining unit and of the plaintiff Union. The defendant advised the Union of the proposed changes, but did not negotiate the changes with the Union. The Union claimed that changes of the kind proposed could not validly be instituted without collective bargaining and filed a grievance, which the defendant rejected. The Union subsequently filed with the Canada Labour Rela tions Board a complaint of unfair labour practices, and also applied to the Board for an order requiring the defendant to comply with the provisions of the Canada Labour Code or for an order granting leave to serve on the defendant a notice to commence collective bargaining. The plaintiffs then com menced these proceedings, in which the issue is whether or not the Federal Court of Canada has jurisdiction to deal with the motion. The collective agreement provides for arbitration in the event of a dispute between the parties over the meaning or alleged violation of the agreement.
Held, the application is dismissed. In the present case there is no provision in the Federal Court Act expressly granting
jurisdiction to the Trial Division of the Court. The only section of the Act that confers on the Trial Division jurisdiction to issue injunctions is section 18, but since Manitoba Pool Eleva tors Ltd. is not a federal board, commission or tribunal, section 18 has no application. Judicial dicta indicate that the meaning of section 23 is that jurisdiction is given to the Trial Division, concurrently with provincial courts, between subject and sub ject as well as in cases where the Crown is involved, where a claim is made or a remedy is sought under an Act of Parlia ment, and in addition where the claim relates to any of the listed subject matters, whether brought under an Act of Parlia ment or not. Since it is the Canada Labour Code that gives the collective agreement legal binding force, and since it is an Act of Parliament, all of the claims may be said to be made under an Act of Parliament. This Court lacks jurisdiction to deal with this motion, based on the concluding words of section 23, which remove the jurisdiction of the Trial Division in cases where "jurisdiction has been otherwise specially assigned" as in this case where the collective agreement provides for arbitration in the event of a dispute between the parties over the meaning or alleged violation of the agreement, together with the greatly widened jurisdiction that was given to the Canada Labour Relations Board by S.C. 1977-78, c. 27.
Okanagan Helicopters Ltd. v. Canadian Pacific Ltd. [1974] 1 F.C. 465, distinguished. Canadian Pacific Ltd. v. United Transportation Union [1979] 1 F.C. 609, applied. McKinlay Transport Ltd. v. Goodman [1979] 1 F.C. 760, applied.
MOTION.
COUNSEL:
Gwen Randall for plaintiffs.
Walter L. Ritchie, Q.C. and William D.
Hamilton for defendant.
SOLICITORS:
Goldenberg, Taylor, Randall, Buckwold & Halstead, Saskatoon, for plaintiffs. Thompson, Dorfman, Sweatman, Winnipeg, for defendant.
The following are the reasons for judgment rendered in English by
SMITH D.J.: This is a motion for interim injunc tions restraining the defendant from
(a) continuing to effect, unlawfully, a technological change, pending the hearing and determination by the Canada Labour Relations Board of an application filed by the Plain tiff Union pursuant to Sections 150-154 of the Canada Labour Code, R.S.C. ch.L-1,
(b) unlawfully continuing to effect unilateral changes in the terms and conditions of employment of certain members of the Plaintiff Union, pending the hearing and determination
by the Canada Labour Relations Board of a complaint of Unfair Labour Practices filed by the Union pursuant to Sections 136(1)(a), 184(1)(a), 184(3)(b), 184(3)(e) and 186 of The Canada Labour Code,
(c) unlawfully continuing to effect technological and unilat eral changes in the terms and conditions of employment of certain members of the Union, pending the hearing and determination by The Canada Labour Relations Board of an Application filed by the Union pursuant to Sections 110(1) and 121 of The Canada Labour Code,
(d) in the alternative, continuing to effect unilateral changes in the terms and conditions of employment of certain mem bers of the Union, pending the hearing and determination of a Grievance filed by the Union and an Employee pursuant to the provisions of the Collective Bargaining Agreement in force between the parties hereto.
From the terms of the present application it appears that prior to the filing of the notice four different proceedings had been launched by the plaintiffs, three of them to be dealt with by the Canada Labour Relations Board, the fourth being a grievance under the collective bargaining agree ment. The situation which led to these several proceedings and the present motion arose as follows.
In the summer of 1979 the defendant decided to reorganize its larger country elevators and to change their designation from "elevator" to "ser- vice centre". To qualify for the change to "service centre" designation an elevator must have had a total per year of 1,250,000 units of grain (bushels) purchases and farm supply sales ($1 = 1 unit), of which at least 350,000 units must be farm supply sales. Fifteen country elevators had qualified under this requirement.
Each service centre was to have, as its head man, a service centre manager, who was to have an assistant service centre manager. Prior to this pro posed change, the head man was the elevator manager, who was a member of the bargaining unit and of the plaintiff Union. Under the reorgan ization the service centre manager was to be employed under a formal contract between himself and the defendant. His functions were to be altered and extended in a number of ways. For example he was to have the authority to hire his assistant service centre manager. The defendant claims that under this reorganization the service centre manager will be part of management, and outside the scope of the collective bargaining agreement. Being of this opinion the defendant did
not negotiate with or have any discussions with the Union concerning the changes it intended to make. It did, however, write Mr. Garth Stephenson, Pres ident of the Union on July 26, 1979 and again on September 17, 1979.
The letter of September 17 (Exhibit "C" to the affidavit of Hugh Wagner), outlined the require ments for a station to become a service centre, named the 15 stations that had qualified for the new designation and, in the following paragraphs, dealt with the positions of "service centre manag er" and "assistant service centre manager":
The Manager of these Centres will be a new position and will be called a "Service Centre Manager" and will report to the Region Manager. The Service Centre Manager will be a con tract position and will be out-of-scope. Present Elevator Managers at these locations will be given the first opportunity to accept the Service Centre Manager position.
Each Service Centre will be provided with an Assistant Manag er. Since this is a new position and is proposed to be in-scope it is understood that the terms of employment will be negotiated with the Grain Services Union. Assistant Managers will per form functions similar to those performed by the Elevator Manager prior to the Service Centre being established. A position description for the Assistant Elevator Manager is attached.
In my letter of July 26 I indicated that we would be prepared to negotiate any matters requiring negotiation as a result of these changes. As it will be our intention to implement these changes effective November 1, 1979 it would be desirable if possible to negotiate the terms of the Assistant Managers salaries prior to that time. Accordingly I am requesting that Mr. Doull and Mr. Wagner make the necessary arrangements for the Negotiating Committees to meet for this purpose.
On or about September 17, 1979, the defendant called the managers of the 15 stations to a meeting to be held on September 20 to inform them about how the reorganization would affect them and their positions. On the same day the plaintiff Union wrote the general manager of the defend ant, (Exhibit "D" to Wagner's affidavit), object ing to the defendant making changes of the kind proposed, without the Union being "involved in receiving and discussion of any proposals for changes in remuneration and other conditions of work" of these 15 men. The Union clearly took the stand that changes of the kind proposed could not validly be instituted without collective bargaining with the Union's bargaining committee in attend ance.
The letter requested cancellation of the planned meeting without the Union's bargaining committee being present.
The meeting called for September 20 was held on that date, apparently with all 15 of the manag ers present, but with no representation by the Union's bargaining committee. At the meeting a form of contract entitled "Management Contract" was presented to each of the 15, who were to signify their acceptance on or before October 12, 1979.
On October 8 the Union wrote the defendant's General Manager (Exhibit "E" to Wagner's affidavit), stating its position as follows:
By Section 136(1)(a) of The Canada Labour Code, this Union has exclusive authority to bargain collectively on behalf of the 15 Country Elevator Managers present at the meeting on September 20, 1979.
This letter is to advise you that the Union, by virtue of the exclusive powers vested in it by The Canada Labour Code, herewith rejects the purported "MANAGEMENT CONTRACT". The Union further requires that you cease and desist forthwith from any attempts to negotiate individually with any of the above-named Country Elevator Managers.
On October 9 a grievance was filed on behalf of Garth Stephenson and the Union, claiming breaches of the collective agreement. On October 23 the defendant rejected the grievance on the ground that the issues raised did not constitute a grievance under the current collective agreement. (See Exhibit "M" to Wagner's affidavit.)
On October 15, 1979 the defendant's General Manager replied to the Union's letter of October 8. (See Exhibit "G" to Wagner's affidavit.) The defendant's position is clearly stated in the second paragraph of this exhibit:
My letters of July 26 and September 17 to Mr. Garth Stephenson, President of the Union, copies of which were sent to you, clearly outline the Company's intentions respecting the establishment of Service Centres at 15 locations in Manitoba. The purpose of the meeting with the Managers on September 20 was in no way related to collective bargaining in a Labour Relations sense, but was for the purpose of outlining the Company's plans for re-organization at these locations and also for the purpose of offering these Managers first opportunity to apply for the new positions of Service Centre Managers.
On October 24, 1979 the plaintiff Union filed with the Canada Labour Relations Board a com-
plaint of unfair labour practices against the defendant (see Exhibit "I" to Wagner's affidavit).
On October 30, 1979 the plaintiff Union made an application to the Canada Labour Relations Board for an order or orders under section 121 of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended by S.C. 1972, c. 18 requiring the defend ant to comply with the provisions of sections 110(1), 136(1) (a) and 154 of the Code, and alter natively for an order under section 152(1) of the Code granting leave to the Union to serve on the defendant a notice to commence collective bargaining.
On November 5, 1979, Hugh Wagner, on his own behalf and on behalf of certain members of the Union, commenced an action against the defendant in the Trial Division of this Court, claiming essentially the same relief as is being sought in the several proceedings already begun.
On December 7, 1979 the Canada Labour Rela tions Board, in response to a telex from the Union, dated December 6, 1979, advised the parties by telex that the matters on its files concerning the Union and the defendant would be placed before the Board, at which time a determination would be made concerning the question of a hearing into those matters, and determination of date and loca tion if the Board deemed a hearing was necessary.
No date was stated in the telex for the Board meeting at which it would make its determination.
The plaintiffs then launched the present motion, which was heard on December 20, 1979.
Counsel for the defendant submitted a strong argument to the effect that this Court has no jurisdiction to deal with the motion. He began with the universally accepted statement that the Federal Court of Canada is a purely statutory Court. As such, unlike the common law and equity courts of England and the superior courts of the Canadian provinces (except possibly Quebec), it has no inherent jurisdiction, but derives its juris diction entirely from statute, primarily the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. He then cited in support of his argument, the decisions and the reasons therefor in the following cases: Okanagan Helicopters Ltd. v. Canadian Pacific
Limited [1974] 1 F.C. 465, a decision of Mahoney J., in the Trial Division of this Court. Canadian Pacific Ltd. v. United Transportation Union [1979] 1 F.C. 609, a decision of the Federal Court of Appeal. McKinlay Transport Limited v. Good- man reported in [1979] 1 F.C. 760, a decision of Thurlow A.C.J. (as he then was) in the Trial Division of this Court.
In the Okanagan Helicopters case the claim was for damages for damage occasioned to the plain tiffs helicopter when its rotor was struck by the engine of a freight train belonging to the defend ant. At the time of the collision the helicopter was stationary on the ground alongside the railway track on which the freight train was moving. The helicopter's rotor was turning, in preparation for take-off. The learned Judge decided that the Court had jurisdiction by virtue of section 23 of the Federal Court Act, which reads, in part:
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 ... aeronautics ....
The Judge was satisfied that the word "aeronau- tics" in the section embraced the whole field of aeronautics and that the circumstances clearly brought the matter within the scope of "aeronau- tics" as that term was used in the section. There was thus a direct grant of jurisdiction by the section to the Trial Division of the Court.
In the present case there is no provision in the Federal Court Act expressly granting to the Trial Division of the Court jurisdiction to issue injunc tions with reference to grievances, claims of unfair labour practices or the interpretation, application or violation of a term or terms of a collective bargaining agreement. In fact the only section of the Act that confers on the Trial Division jurisdic tion to issue injunctions is section 18, which gives the Trial Division exclusive original jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto (the extraordinary writs) against any federal board, commission or other tribunal. Since Manitoba Pool Elevators Ltd. is not a federal board, commission or tribunal, section 18 has no application in the present case.
Section 23 of the Federal Court Act needs further consideration. For this purpose I quote the section in full:
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.
Read by itself the meaning of this section is not clear. It is capable of being read as meaning that its operation is restricted to matters coming within any of the listed subjects, viz.: 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 prov ince. On this interpretation, in such matters, and no others, jurisdiction is given, and it is given not only in matters in which the Crown or a Crown Agency is involved but also in matters between subject and subject, whether the claim for relief is made or the remedy is sought under an Act of Parliament or rests on some other foundation. To my mind this would not be an illogical meaning of the section. However, judicial dicta in several cases indicate that the correct meaning is that jurisdic tion is given to the Trial Division, concurrently with provincial courts, between subject and subject as well as in cases where the Crown is involved, where a claim for relief is made or a remedy is sought under an Act of Parliament, and in addi tion where the claim relates to any of the listed subject matters, whether brought under an Act of Parliament or not. This is my understanding of the expressions used in those cases.
The several proceedings begun by the plaintiffs, none of which had progressed significantly at the date of the hearing of this motion, all relate to claims based on the collective agreement between the Union and the defendant or on rights vested in the Union and its members who are employees of the defendant, under the Canada Labour Code or on alleged breaches of such rights. None of these is mentioned in section 23. However, since it is the Canada Labour Code alone that gives the collec tive agreement legal binding force, and since it is
an Act of Parliament, all of the claims may be said to be made under an Act of Parliament.
Notwithstanding what has been said in the preceding two paragraphs, I am of the opinion that this Court lacks jurisdiction to deal with this motion. My opinion is founded on the concluding words of the section, together with the greatly widened jurisdiction that was given to the Canada Labour Relations Board by S.C. 1977-78, c. 27. I repeat the concluding words of section 23 of the Federal Court Act:
... except to the extent that jurisdiction has been otherwise specially assigned.
For judicial authority for this opinion I refer to Canadian Pacific Ltd. v. United Transportation Union, and McKinlay Transport Limited v. Good- man, both cited supra. As noted supra, the Canadian Pacific Ltd. v. United Transportation Union case was a decision of the Federal Court of Appeal, and McKinlay Transport case was a deci sion of Thurlow A.C.J. (as he then was), in the Trial Division of this Court. The McKinlay case was decided about four months after the decision in the Canadian Pacific case.
The decision of the Federal Court of Appeal in Canadian Pacific Ltd. v. United Transportation Union was unanimous. It was delivered by Ryan J.
At page 619 Ryan J. said:
I am of opinion that, for purposes of section 23 of the Federal Court Act, the claims in this action were claims brought under a statute of the Parliament of Canada because they were brought in respect of collective agreements deriving their legal character from the Canada Labour Code. The action is, as well, an action involving the administration of a law of Canada, the Code.
These words apply equally to the present case.
Ryan J. dealt with the question I am now con sidering, namely, whether the jurisdiction of the Trial Division was ousted by the provision of the arbitration agreement affecting the parties for final settlement. In that case the arbitration agree ment provided that a decision of the arbitrator was final and binding. Also, in that case, as in this, the terms of section 155 of the Canada Labour Code, required consideration. At the time of the decision
in the Canadian Pacific case, subsection (1) of section 155 was in the same terms as it is today. It reads:
155. (I) Every collective agreement shall contain a provi sion for final settlement without stoppage of work, by arbitra tion or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged violation.
Subsection (2), as now worded, is in stronger terms than were contained in the subsection at the time Ryan J. was speaking. At that time the subsection read:
155....
(2) Where a collective agreement does not contain a provi sion for final settlement as required by subsection (1), the Board shall, on application by either party to the collective agreement, by order, furnish a provision for final settlement, and a provision so furnished shall be deemed to be a term of the collective agreement and binding on the parties to and all employees bound by the collective agreement.
Concerning the effect of section 155, Ryan J. said, at p. 626:
Section 155 establishes a system for the final settlement, without stoppage of work, of disputes arising under collective agreements. Every collective agreement must contain a provi sion for final settlement of the types of differences specified in subsection (1). The parties to an agreement are thus under a duty to provide for such final settlement by arbitration or by some other means. If they fail to fulfil this duty (possibly by a good faith failure to select a method), the Board itself is to make the provision on the application of either party, and the provision so determined becomes part of the collective agree ment. It is within this context that the effect of the closing words of section 23 of the Federal Court Act must be deter mined. And it is my view that in this case the selection, by the parties, of arbitration as the means of final settlement did constitute a special assignment of jurisdiction to determine the issues posed by the present action.
It is clear that the acceptance, by the parties, of arbitration as the method of final settlement was the decisive factor leading to Ryan J.'s decision that the jurisdiction of the Trial Division had been ousted.
In the present case the collective agreement provides in Article 7:01:
In the case of any dispute arising between the parties regarding the meaning or alleged violation of this Agreement which the parties are unable to settle between themselves, the matter may be referred to a Board of Arbitration ....
While the words are "may be referred", I think it is clear that the intention is that the matter "will be referred to a Board of Arbitration", because no other method of settlement is proposed. In any event the present subsection (2) of section 155 of the Canada Labour Code clearly indicates that arbitration is the method to be followed. It reads:
155... .
(2) Where any difference arises between parties to a collec tive agreement and
(a) the collective agreement does not contain a provision for final settlement of the difference as required by subsection (l),or
(b) the collective agreement contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement,
the difference shall, notwithstanding any provision of the col lective agreement, be submitted by the parties for final settlement
(e) to an arbitrator selected by the parties, or
(d) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.
In the present case the Union filed a grievance and subsequently furnished to the defendant the name of its nominee for a board of arbitration. The defendant maintained that the grievance claimed did not come within the provisions of the collective agreement, and so far as the record goes, has taken no steps under the grievance procedure and has not named anyone as its nominee for a board of arbitration. It appears that the defendant takes the position that the grievance is not arbi- trable, because, in its view, it is outside the provi sions of the collective agreement. I note here that under section 157(c) an arbitrator or arbitration board "has power to determine any question as to whether a matter referred to him or it is arbitrable."
I turn now to the McKinlay Transport Limited v. Goodman case. This was an application to the Federal Court (Trial Division) by the plaintiff for an order continuing an interim injunction restrain ing its employees from participating in an unlawful strike and from picketing its premises. Thurlow A.C.J. (as he then was), after stating that the only law of Canada on which the plaintiff can rely in this Court is the Canada Labour Code, and refer-
ring to the Court having a discretion whether or not to grant an interlocutory injunction, even where the Court has jurisdiction to entertain the action and the case for an injunction is otherwise made out, went on to examine whether the Court had jurisdiction in that particular case. He quoted extensively from the judgment of the Federal Court of Appeal in Canadian Pacific Ltd. v. United Transportation Union, and then said at pp. 766-767:
No other case was cited, and I am not aware of any, in which the concluding words of section 23 of the Federal Court Act have been considered or applied but it seems to me that, if they apply to the situation created by section 155 of the Canada Labour Code in imposing, in effect, arbitration as the means of settling disputes between parties to collective agreements, they also apply to the situation created by the new section 182 in the context of the Code as a whole, which assigns to the Canada Labour Relations Board jurisdiction inter alia to enjoin employees from participating in a strike. I am accordingly of the opinion that the Court does not have jurisdiction to enter tain the plaintiffs claim for an injunction or to grant the interlocutory relief which the plaintiff seeks.
The present case is not as strong as were the two I have just been discussing. However, I have come to the conclusion, not without doubt, that the concluding words of section 23 of the Federal Court Act apply to the circumstances under review here, and that the jurisdiction of the Federal Court has been ousted thereby.
The matter of the Court's discretion requires consideration, particularly if my view of the law is erroneous. This question was well considered by Thurlow A.C.J. (as he then was) in the McKinlay Transport case, where he said, at pp. 763-764:
Parliament has recently enacted extensive amendments to the Canada Labour Code which, in my view, demonstrate that the purpose was to vest in the Canada Labour Relations Board extensive and far reaching powers to deal with labour relations in the works and undertakings to which the statute applies including the granting of injunctions enjoining employees from participating in strikes, and the making of orders requiring employees to perform the duties of their employment—a power not exercised by a Court of equity. Not only has the Board been vested with powers more extensive and particular than those of the courts in such situations but the area in which the Board's decisions are open to attack and review has been narrowed by the amendments. The power previously reserved to the Minister of authorizing prosecution for violation of the Act has also been vested in the Board. In the face of these provisions, even though
the legislation does not specifically purport to withdraw from the superior courts jurisdiction to issue injunctions in respect of conduct arising out of labour disputes, it seems to me that the Court can and ought to take into account in exercising its discretion that Parliament has shown its disposition that such matters be dealt with by the Board on the principles which it applies in the search for achievement of the objects of the legislation rather than by the courts. It is perhaps unnecessary to add that court injunctions have not been notoriously success ful as a device for achieving harmonious labour relations or for resolving labour disputes.
I am in full agreement with the views so well expressed by Associate Chief Justice Thurlow (as he then was). If my opinion on the law had been different I still would not have felt this was a proper case in which to exercise my discretion in favour of the plaintiffs.
My decision, of course, has no effect on any of the other proceedings that have been begun by the plaintiffs. I have taken much longer than I had expected to deal with this application, but I do not think the delay has prejudiced the plaintiffs' cause materially. At the date of the hearing, December 20, 1979, all but one of the 15 country elevator managers affected by the defendant's reorganiza tion plan had accepted the defendant's offer to become service centre managers, with the changed functions and terms and method of remuneration proposed. According to the affidavit of J. K. Wilson, dated December 20, 1979, the fifteenth man, Garth Stephenson, was also apparently ready and about to accept the defendant's offer.
It is clear to my mind that the Union believes the situation involves a serious question concerning its rights under the collective agreement, particu larly its right to be consulted, and to represent any of its members to whom the employer makes pro posals that will affect their status, functions and remuneration and take them out of the bargaining unit. It is to be hoped that a reasonable solution of this question will result from the proceedings now pending.
The application is rejected.
The costs of this motion will be costs in the cause.
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