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A-389-84
National Bank of Canada (Appellant)
v.
Rodney Granda (Respondent)
Court of Appeal, Pratte, Marceau and Hugessen JJ.—Montreal, March 22, 1984.
Jurisdiction Appeal from Trial Judge's dismissal of application to vacate seizure for want of jurisdiction Funds seized in execution of Adjudicator's decision awarding unliquidated compensation and filed pursuant to s. 61.5(12) of the Code Appeal allowed Trial Judge having jurisdic tion to supervise proceedings in execution of Adjudicator's decision filed pursuant to s. 61.5(12) Adjudicator's decision not subject to forced execution since amount of compensation not determined Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as am. by S.C. 1977-78, c. 27, s. 21).
Labour relations Adjudicator directing reinstatement and compensation Decision filed in Federal Court under Code s. 61.5(12) Writ of fieri facias obtained Amount seized by bailiff Federal Court Trial Division dismissing application to vacate seizure for want of jurisdiction Court of Appeal holding Trial Division having jurisdiction to supervise pro ceedings in execution of Adjudicator's decision filed with Court Adjudicator's decision on compensation not subject to forced execution as amount not determined Seizure in accordance with wrongful writ of fieri facias void Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as am. by S.C. 1977-78, c. 27, s. 21).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Nauss et al. v. Local 269 of the International Longshore- men's Association, [1982] 1 F.C. 114 (C.A.); Union des employés de commerce, local 503 et al. v. Purolator Courrier Ltée, [1983] 2 F.C. 344 (C.A.).
COUNSEL:
John Coleman and Jacques Nadeau for
appellant.
Guy Monette for respondent.
SOLICITORS:
Ogilvy, Renault, Montreal, for appellant. Monette, Clerk, Barakett, Lévesque, Bourque & Pedneault, Montreal, for respondent.
The following is the English version of the reasons for judgment of the Court delivered orally by
PRATTE J.: This appeal is from a judgment of the Trial Division [judgment dated March 5, 1984, T-2921-83], which dismissed an application by appellant to vacate a seizure made pursuant to a decision of an Adjudicator which was filed with the Court in accordance with subsection 61.5(12) of the Canada Labour Code [R.S.C. 1970, c. L-1, as am. by S.C. 1977-78, c. 27, s. 21].
The Adjudicator's decision in question was made after respondent complained that he had been unfairly dismissed by appellant. In it, the Adjudicator directed appellant to reinstate respondent in a position similar to that held by him at the time of his dismissal; the Adjudicator further stated that appellant should compensate respondent for the period [TRANSLATION] "run- ning from the date of the dismissal to August 9, 1982". The Adjudicator did not liquidate the amount of this compensation in his decision: he simply said that, pursuant to what was agreed at the hearing, he reserved [TRANSLATION] "his jurisdiction to decide any disagreement regarding establishment of this compensation".
Respondent filed this decision with the Registry of the Court pursuant to subsection 61.5(12) of the Code. He subsequently obtained a writ of fieri facias authorizing any bailiff to collect the sum of $28,650 from the property of appellant in execu tion of the decision. Some days later, the bailiff went to appellant's premises and obtained the sum of $28,650.
Appellant then filed in the Trial Division an application to vacate this seizure. The Trial Judge dismissed this application solely on the ground that he did not have jurisdiction to allow it.
In our view this judgment is incorrect. We con sider that the Trial Division has jurisdiction to supervise proceedings in execution of an Adjudica tor's decision filed pursuant to subsection 61.5(12) of the Code, just as it may supervise the forced execution of its own decisions. The decisions ren dered by this Court in Nauss et al. v. Local 269 of the International Longshoremen's Association,
[ 1982] 1 F.C. 114 (C.A.) and Union des employés de commerce, local 503 et al. v. Purolator Courri- er Ltée, [1983] 2 F.C. 344 (C.A.) have no applica tion here: those decisions concern the power to stay the execution of decisions made pursuant to the Canada Labour Code, whereas the case at bar concerns the power to supervise proceedings in execution originating with the Court itself.
The Trial Division accordingly had the power to allow appellant's application: and indeed, it should have allowed it. It is quite clear that the part of the Adjudicator's decision regarding the payment of monetary compensation to respondent was not sub ject to forced execution, since it did not determine the amount of that compensation. Accordingly, the writ of fieri facias which was executed in the case at bar should not have been issued and the seizure should not have been made.
For these reasons, the appeal will be allowed, the decision a quo will be set aside and the Court finds that the writ of fieri facias issued in the case at bar was wrongful and the seizure made in accordance with that writ was void. Appellant will be entitled to its costs at first instance and on appeal.
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