T-3348-81
Canadian Broadcasting Corporation (Applicant)
v.
L'Association des réalisateurs (Respondent)
Trial Division, Dubé J.—Montreal, September 21;
Ottawa, October 2, 1981.
Practice — Motion to stay proceedings — Arbitrator
ordered the applicant to cease requiring on-air publicity edi
tors, members of the Canadian Union of Public Employees, to
perform duties relating to the occupation of producer —
Canadian Union of Public Employees applied to Canada
Labour Relations Board to set aside the arbitral award —
Dispute between the Union and the respondent only affects the
applicant indirectly — Supporting affidavit does not allege
that execution of arbitral award would cause injury to the
applicant or not cause injury to the respondent — Motion
dismissed — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
158, 159 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 50 — Federal Court Rule 1909.
Nauss v. Local 269 of the International Longshoremen's
Association [1982] 1 F.C. 114, distinguished.
MOTION.
COUNSEL:
Pierre Sébastien, Q.C. for applicant.
J.-P. Belhumeur for respondent.
SOLICITORS:
Lafleur, Brown, De Grandpré, Montreal, for
applicant.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for respondent.
The following is the English version of the
reasons for judgment rendered by
DUBÉ J.: This is a motion to stay proceedings,
asking the Court to stay any proceeding that may.
result from the failure of the applicant to comply
with an arbitral award made on April 29, 1981,
until a decision is made by the Canada Labour
Relations Board on an application by the Canadi-
an Union of Public Employees dated July 31,
1981.
On August 12, 1981 the applicant received a
notice stating that the Association des réalisateurs
had filed the said award with the Federal Court
and that, if it did not comply with the award, all
proceedings pursuant to a judgment of the Federal
Court would be taken, including proceedings for
contempt of court. This award upheld a grievance
alleging that on-air publicity editors, members of
the Canadian Union of Public Employees, per
formed duties related to the occupation of
producer.
Despite the objections raised by the applicant as
to his jurisdiction, the Arbitrator upheld the griev
ance and ordered the applicant to cease requiring
on-air publicity editors to perform duties relating
to the occupation of producer.
The applicant alleged that it was in an extreme
ly difficult position because, first, it had no real
interest in challenging the award for want of juris
diction, since that interest pertained to the Union
in question, and second, the latter had on July 31,
1981 filed an application pursuant to section 158
of the Canada Labour Code, R.S.C. 1970, c. L-1,
asking that the arbitral award be set aside.
The applicant accordingly alleged that it is in
the interest of justice for all proceedings against it
to be stayed until the Canada Labour Relations
Board has ruled on the aforesaid application by
the Union.
This application by the Union contends that
giving effect to the award would have the result of
altering its certificate of certification, whereas
only the Canada Labour Relations Board has the
power to determine which units can bargain
collectively.
Under the provisions of section 50 of the Feder
al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, the
Court may, in its discretion, stay proceedings in
any cause on the ground that the claim is being
proceeded with in another jurisdiction, or where
for any other reason it is in the interest of justice
that the proceedings be stayed. Rule 1909 of this
Court provides that a party against whom a judg
ment has been given may apply to the Court for a
stay of execution and the Court may grant such
relief as it thinks just. Under section 159 of the
Canada Labour Code, the registration in the Fed
eral Court of an order by an arbitrator gives that
order the same force and effect as if the order were
a judgment obtained in that Court, and all pro
ceedings may be taken thereon. This Court may
therefore stay the execution of the Arbitrator's
order if in its discretion it concludes that the stay
is justified.'
First, the stay should only be used in moderation
and only when there is no doubt that it is appropri
ate. It is well-settled law that an equal balance of
convenience does not justify a stay. In the case at
bar, the applicant must persuade the Court that
execution of the arbitral award would involve
injustice to it and that the stay would not cause
injury to the Association des réalisateurs.
The affidavit in support of the motion for a stay
provides no evidentiary basis for the proposition,
and indeed no allegation, that the execution of the
arbitral award would cause injury to the Canadian
Broadcasting Corporation, or that it would not
cause injury to the Association des réalisateurs.
The affidavit simply states that the [TRANSLA-
TION] "facts stated in this motion are true". The
facts stated in the motion are essentially summa
rized in the first five paragraphs of these reasons
for judgment. The only allegation of injury is
contained in paragraph 4 of the motion:
[TRANSLATION] 4.—As a consequence of the decision of the
Arbitrator Tremblay, applicant finds itself in an extremely
difficult situation: first, it has no real interest in challenging the
arbitral award for want of jurisdiction, as that interest pertains
only to the union or association in question, and second, an
application pursuant to section 158 of the Canada Labour
Code, part V, dated July 31, 1981, has been filed with the
Canada Labour Relations Board by the Canadian Union of
Public Employees asking that the arbitral award be set aside
and that the Board confirm the jurisdiction already held by this
union over on-air publicity editors, the whole as appears from
the attached copy of the said application.
This paragraph accordingly indicates that the
dispute between the two unions only affects the
applicant indirectly. The latter "has no real inter
est". The persons who may be adversely affected
by a stay or the refusal of a stay of the arbitral
award are the members of either union. In other
' In a recent judgment of the Federal Court of Appeal,
Nauss v. Local 269 of the International Longshoremen's Asso
ciation [1982] 1 F.C. 114, it was held that the Trial Division
did not have the authority to stay the execution of an order of
the Canada Labour Relations Board, but the proceeding in
question here is an arbitral award.
words, the members of one union or the other will
be likely to lose income as a result of the outcome
of this case. The applicant may find itself in an
awkward situation pending the eventual decision of
the Canada Labour Relations Board. On the other
hand, if it accepts the award by the Arbitrator, so
long as the award has not been set aside by the
Board, it will not suffer any detriment; at least, it
has not attempted to show what real loss it might
suffer.
In the circumstances, this motion must be dis
missed with costs.
JUDGMENT
The motion is dismissed with costs.'
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