Judgments

Decision Information

Decision Content

A-56-81
David C. Nauss and Peter H. Roberts (Appel- lants)
v.
Local 269 of the International Longshoremen's Association (Respondent)
Court of Appeal, Pratte, Heald and Le Dain JJ.— Halifax, March 27, 1981.
Jurisdiction — Labour relations — Appeal from Trial Division decision to stay execution of an order of the Canada Labour Relations Board which had been filed in the Federal Court — Respondent contends that the order became a judg ment of the Federal Court for all purposes when it was filed Whether the Trial Division had the power to stay the order — Appeal allowed — Canada Labour Code, R.S.C. 1970, c. L- I, as amended, ss. 119, 122, 123 — Federal Court Rules 1904 and 1909 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a).
APPEAL. COUNSEL:
D. Merlin Nunn, Q.C. and Terry Roane for
appellant David C. Nauss.
G. J. McConnell and John MacPherson for
respondent.
Yves Raic for employer.
W. Wylie Spicer and David Graves for
Canada Labour Relations Board.
SOLICITORS:
Cox, Downie, Nunn & Goodfellow, Halifax, for appellant David C. Nauss.
Kitz, Matheson, Green & MacIsaac, Halifax, for respondent.
Ogilvy, Renault, Montreal, for employer. McInnes, Cooper & Robertson, Halifax, for Canada Labour Relations Board.
The following are the reasons for judgment delivered orally in English by
PRATTE J.: This is an appeal from a judgment of the Trial Division staying the execution of an order of the Canada Labour Relations Board.
On November 14, 1980, the Board, following a complaint by the appellant of an alleged violation
of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended, rendered a decision directing that the respondent Union admit the appellant to member ship. The Board concluded that decision by the following observation:
The Board expects union compliance with this decision and will not issue a formal order, but reserves jurisdiction to do so should it be necessary.
On November 27, 1980, the respondent applied, under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to have that decision reviewed and set aside [[1981] 2 F.C. 827].
As, at the end of January 1981, the respondent had not yet complied with the decision, the Board, on January 26, 1981, issued a formal order requir ing compliance with its terms not later than Febru- ary 4, 1981. On January 29, 1981, a copy of that order was filed in the Federal Court pursuant to the provisions of section 123 of the Canada Labour Code. On February 3, 1981, the respond ent applied to the Trial Division under Rules 1904(1) and 1909' for an order staying the execu tion of the order of the Board and varying the time within which the respondent had to demonstrate to the Board that it had complied with its order. That application was granted by the Trial Division. This appeal is directed against that judgment.
The first question to be resolved is whether the Trial Division had the power to stay the order of the Board.
It is the respondent's contention that the Trial Division had that power since the order of the Board had been filed in the Federal Court pursu ant to section 123 of the Code and had thus
' Those Rules read as follows:
Rule 1904. (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court may make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.
Rule 1909. A party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief against such judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.
become, by virtue of subsection 123(2), a judg ment of the Federal Court for all purposes relating to its execution. In support of that contention, counsel referred to the decisions rendered in Cen tral Broadcasting Company Ltd. v. Canada Labour Relations Board 2 and Communications Workers of Canada v. Bell Canada' two cases where the Trial Division of this Court stayed the execution of orders of the Canada Labour Rela tions Board. He added that it would be unfair and abnormal if an order of the Board could be execu ted as a judgment of the Court but could not be stayed in the same manner.
It is necessary, in order to appreciate the sound ness of the respondent's contention, to have in mind certain provisions of the Canada Labour Code.
Under section 119, the Board is given the power to "review, rescind, amend, alter or vary any order or decision made by it". Subject to that exception, however, its orders and decisions are specified by section 122 to be final. That section reads as follows:
122. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with paragraph 28(1)(a) of the Federal Court Act.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibi tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.
Section 123, on which the respondent relies, reads thus:
123. (1) The Board shall, on the request in writing of any person or organization affected by any order or decision of the Board, file a copy of the order or decision, exclusive of the
2 [1975] F.C. 310.
3 [1976] 1 F.C. 282.
reasons therefor, in the Federal Court of Canada, unless, in the opinion of the Board,
(a) there is no indication of failure or likelihood of failure to comply with the order or decision, or
(b) there is other good reason why the filing of the order or decision in the Federal Court of Canada would serve no useful purpose.
(2) Where the Board files a copy of any order or decision in the Federal Court of Canada pursuant to subsection (1); it shall specify in writing to the Court that the copy of the order or decision is filed pursuant to subsection (1) and, where the Board so specifies, the copy of the order or decision shall be accepted for filing by, and registered in, the Court without further application or other proceeding; and, when the copy of the order or decision is registered, the order or decision has the same force and effect and, subject to this section and section 28 of the Federal Court Act, all proceedings may be taken thereon by any person or organization affected thereby as if the order or decision were a judgment obtained in the Court.
In my view, sections 119 and 122 state clearly that a decision of the Board shall be final and shall not be varied, reviewed, questioned or restrained except by the Board itself pursuant to section 119 and by the Federal Court of Appeal in accordance with paragraph 28(1)(a) of the Federal Court Act.
In view of the clear language of sections 119 and 122, equally clear language would be required, in my opinion, to confer on the Trial Division the power to stay the execution of an order of the Board, particularly in a case like the present one where the staying of the execution of the Board implies a variation of that order. I do not find that clear language in section 123. That section merely affords a means of execution of the orders of the Board. Once filed and registered in the Federal Court pursuant to section 123, an order of the Board does not become a judgment of the Court the terms of which the Court could vary under Rule 1904(1); it remains a decision of the Board which is still subject to the provisions of sections 119 and 122 and cannot, for that reason, be varied or restrained by the Trial Division. True, subsec tion 123(2) prescribes that when the copy of an order has been filed and registered "all proceed ings may be taken thereon ... as if the order . . . were a judgment obtained in the Court." However, it is clear, in my view, that an application to vary an order and stay its execution is not a proceeding taken on that order.
I conclude, therefore, that the Trial Division did not have the power to make the decision under attack. For that reason, I would allow the appeal, set aside the decision of the Trial Division and dismiss the respondent's application for a stay of execution. The appellant should be entitled to his costs in this Court as well as in the Trial Division.
* * *
HEALD J. concurred.
* * *
LE DAIN J. concurred.
 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.