A-399-82
Union des employés de commerce, local 503 and
Carole Madeleine (Appellants)
v.
Purolator Courrier Ltée (Respondent)
and
Canada Labour Relations Board (Mis -en-cause)
Court of Appeal, Pratte, Ryan JJ. and Lalande
D.J.—Montreal, October 12 and 15, 1982.
Labour relations — No jurisdiction in Trial Division to stay
execution of order of Canada Labour Relations Board filed
and registered in Federal Court under s. 123 of Canada
Labour Code — Appeal allowed — Canada Labour Code,
R.S.C. 1970, c. L-1, s. 123 (rep. and sub. S.C. 1977-78, c. 27,
s. 43) — Federal Court Rules, C.R.C., c. 663, RR. 1904(1),
1909.
Jurisdiction — Labour relations — Order of Canada
Labour Relations Board filed and registered in Federal Court
under s. 123 of Canada Labour Code — Board order cannot be
varied or stayed by Trial Division under Federal Court Rules
1904(1) or 1909 — Appeal allowed — Canada Labour Code,
R.S.C. 1970, c. L-1, s. 123 (rep. and sub. S.C. 1977-78, c. 27,
s. 43) — Federal Court Rules, C.R.C., c. 663, RR. 1904(1),
1909.
CASE JUDICIALLY CONSIDERED
FOLLOWED:
Nauss et al. v. Local 269 of the International Longshore-
men's Association, [1982] 1 F.C. 114 (C.A.).
COUNSEL:
Janet Cleveland for appellants.
Barry Singer and Jean Bazin for respondent.
Luc Martineau and Michel Robert for
mis -en-cause.
SOLICITORS:
Rivest, Castiglio, Castiglio, LeBel &
Schmidt, Montreal, for appellants.
Byers, Casgrain, Montreal, for respondent.
Robert, Dansereau, Barre, Marchessault &
• Lauzon, Montreal, for mis -en-cause.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: This is an appeal from a decision of
the Trial Division [[1983] 1 F.C. 472] ordering
that execution of an order of the Canada Labour
Relations Board be stayed until the Federal Court
of Appeal rules on the application to have that
order set aside.
The order of the Board in question had been
filed and registered in the Federal Court under
section 123 of the Canada Labour Code [R.S.C.
1970, c. L-1 (rep. and sub. S.C. 1977-78, c. 27, s.
43)].' The operative part reads as follows:
[TRANSLATION] CONSEQUENTLY, the Board hereby orders
that Purolator Courrier Ltée reinstate Carole Madeleine in her
duties with the rights, benefits and privileges she enjoyed at the
time of her discharge;
AND FURTHERMORE, that Purolator Courrier Ltée pay Mrs.
Madeleine compensation equivalent to the salary and other
benefits she would have received, had it not been for her
unlawful discharge, between the time of the said discharge and
the time of her reinstatement;
AND FURTHERMORE, that Purolator Courrier Ltée transfer
back to Quebec City the operations of the accounts payable
department for region 518, which are at present being carried
out in Montreal, and assign to Mrs. Madeleine a regular
part-time employee (minimum of 3 hours per day) as an
assistant;
AND FURTHERMORE, that Purolator Courrier Ltée comply
immediately with the terms of this order.
' This section reads as follows:
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 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 proceed
ings may be taken thereon by any person or organization
affected thereby as if the order or decision were a judgment,
obtained in the Court.
The decision a quo, rendered on the motion of
respondent Purolator Courrier Ltée, ordered that
execution of this order of the Board be stayed. The
operative part of this decision reads as follows [at
pages 479-480]:
The carrying out of the decision of January 22, 1982 of the
Canada Labour Relations Board herein is stayed until the
decision of the Federal Court of Appeal is rendered on the
section 28 application made by petitioner herein, on the follow
ing conditions:
(1) The petitioner shall deposit with the Federal Court of
Canada within one week of this order the sum of
$10,000.00 to be held in an interest bearing account to
guarantee the carrying out of the financial part of the
order if the section 28 application is dismissed.
(2) The petitioner shall allow Carole Madeleine to contin
ue to participate on behalf of the Union in any further
negotiations or conciliation hearings.
Costs in the event of the section 28 application.
It seems to us that this decision cannot be
reconciled with the decision in Nauss et al. v.
Local 269 of the International Longshoremen's
Association, [1982] 1 F.C. 114 (C.A.), where we
decided that the filing of an order of the Board
pursuant to section 123 of the Canada Labour
Code did not confer on the Trial Division either
the power to vary the terms of that order under
Rule 1904(1) [Federal Court Rules, C.R.C., c.
663] or the power to stay its execution under Rule
1909. It is true that the Trial Judge stated that the
case at bar could be distinguished from Nauss in
that in the later case the Trial Division had
expressly varied the Board's order. This distinction
appears to us to be unfounded.
Nauss is a recent decision of this Court, and we
were not shown that it was erroneous. It must
consequently be followed.
For these reasons the appeal will be allowed
with costs, the decision a quo will be set aside and
the application for a stay of execution by respond
ent will be dismissed with costs.
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.