A-1363-84
Slaight Communications Inc. (operating as Q107
FM Radio) (Applicant)
v.
Ron Davidson (Respondent)
Court of Appeal, Urie, Stone JJ. and Cowan
D.J.—Toronto, October 4; Ottawa, October 18,
1985.
Practice — Stay of Execution — Application under
Supreme Court Act, s. 70(1)(d) to stay execution of judgment
appealed from and to fix security, and for fiat to stay execu
tion of writ of fi. fa. — Adjudicator ordering payment of
compensation for unjust dismissal and provision of letter of
recommendation — Federal Court of Appeal dismissing s. 28
application to set aside Adjudicator's decision — Leave to
appeal to Supreme Court of Canada granted based on refusal
to set aside portion of order dealing with letter of recommen
dation — Respondent seeking to enforce Adjudicator's order
— "Judgment" in s. 70(1)(d) of Supreme Court Act applying
to any decision by which parties' rights finally disposed of —
Adjudicator's decision 'judgment appealed from" — S.
70(1)(d) exception to general rule for stay of execution, when
judgment appealed from directing payment of money — Por
tion of Adjudicator's decision directing payment of money not
in issue before Supreme Court of Canada — Application
dismissed — Supreme Court Act, R.S.C. 1970, c. S-19, ss. 66
(as am. by R.S.C. 1970 (1st Supp.), c. 44, s. 6), 70(1), 71 (as
am. idem, s. 7) — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28 — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b) — Canada Labour
Code, R.S.C. 1970, c. L-1, s. 61.5(12) (as enacted by S.C.
1977-78, c. 27, s. 21) — Supreme Court Act, R.S.C. 1906, c.
139, s. 40 (as am. by S.C. 1920, c. 32, s. 2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Foundation Co. of Canada Ltd. v. Prince Albert Pulp Co.
Ltd., [1976] 1 S.C.R. 33; (1975), 3 N.R. 581.
CONSIDERED:
Hamilton v. Evans, [1923] S.C.R. 1.
REFERRED TO:
National Bank of Canada v. Retail Clerks' International
Union et al., [1984] 1 S.C.R. 269.
COUNSEL:
Brian A. Grosman, Q.C. for applicant.
Morris Cooper for respondent.
SOLICITORS:
Brian A. Grosman, Q.C., Toronto, for
applicant.
Morris Cooper, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: The applicant seeks an order pursu
ant to paragraph 70(1)(d) of the Supreme Court
Act, R.S.C. 1970, c. S-19, as amended, in the
words of the application "staying execution of the
judgment appealed from and fixing security there-
for", and pursuant to subsection 71(1) of that Act,
for a fiat directed to the Sheriff of the Judicial
District of York (Ontario) staying execution of a
writ of fieri facias issued by the Court at the
behest of the respondent.
The application arises in this manner. The
respondent whose employment was terminated by
the applicant, invoked Part III of the Canada
Labour Code, R.S.C. 1970, c. L-1, as amended,
complaining that he had been unjustly dismissed.
An Adjudicator was appointed and a hearing into
the complaint was held. On November 8, 1984, the
Adjudicator decided the complaint was well found
ed. He ordered that the applicant pay compensa
tion of a fixed amount together with interest at a
fixed rate and costs which he also fixed. He then
ordered:
Under the power given me by paragraph (c) in subsection (9)
of Section 61.5,I further order:
That the employer give the complainant a letter of recommen
dation, with a copy to this adjudicator, certifying that;
(1) Mr. Ron Davidson was employed by Station Q107 from
June, 1980 to January 20, 1984, as a radio time salesman;
(2) That his sales `budget' or quota for 1981 was $248,000 of
which he achieved 97.3 per cent;
(3) That his sales `budget' or quota for 1982 was $343,500 of
which he achieved 100.3 per cent;
(4) That his sales `budget' or quota for 1983 was $402,200 of
which he achieved 114.2 per cent;
(5) That following termination in January, 1984, an adjudica
tor (appointed by the Minister of Labour) after hearing the
evidence and representations of both parties, held that the
termination had been an unjust dismissal.
I further order that any communication to Q107, its manage
ment or staff, whether received by letter, telephone or other
wise, from any person or company inquiring about Mr. Ron
Davidson's employment at Q107 shall be answered exclusively
by sending or delivering a copy of the said letter of
recommendation.
I retain jurisdiction to decide any dispute relating to the
implementation of the above orders if either party requests me
to do so.
On November 22, 1984 in an application to this
Court [ [1985] 1 F.C. 253] made pursuant to
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], the applicant attacked the
Adjudicator's decision and asked that it be
reviewed and set aside. The application was heard
at Toronto on March 25, 1985 by a three-member
panel (Mahoney, Urie and Marceau JJ.) and by a
majority was dismissed. In his dissenting opinion,
Mr. Justice Marceau thought the Adjudicator, by
making the order quoted above, had exceeded his
statutory authority and had contravened para
graph 2(b) of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] guaranteeing freedom of thought, belief,
opinion and expression.
An application for leave to appeal against the
judgment of this Court was heard by the Supreme
Court of Canada on June 25, 1985 and leave was
granted on July 31, 1985. This Court's refusal to
set aside and refer back to the Adjudicator the
portion of his order quoted above formed the basis
of that application. This is made clear from the
application itself. Additionally, during the hearing
of this application counsel for the applicant
conceded that this was so.
The present application was launched shortly
after the granting of leave. Earlier, the respondent
had taken steps to enforce the Adjudicator's order.
On May 21, 1985 he filed that order in the Court
pursuant to subsection 61.5(12) [as enacted by
S.C. 1977-78, c. 27, s. 21] of the Canada Labour
Code and later, on June 10, 1985, he obtained a
writ of fieri facias directed to the Sheriff of the
Judicial District of York to enforce payment of the
compensation, interest and costs awarded by the
Adjudicator. By arrangement between the parties,
execution was deferred until the leave application
could be disposed of by the Supreme Court of
Canada. Subsequently, the applicant proposed an
extension of these arrangements, with necessary
variation, until the Supreme Court finally disposes
of the appeal launched by notice dated August 12,
1985. The respondent rejects this proposal, wishing
instead to have payment of the award without
further delay.
Subsection 70(1) and section 71 [as am. by
R.S.C. 1970 (1st Supp.), c. 44, s. 7] of the
Supreme Court of Canada Act read:
70. (1) Upon filing and serving the notice of appeal and
depositing security as required by section 66, execution shall be
stayed in the original cause, except that
(a) where the judgment appealed from directs an assignment
or delivery of documents or personal property, the execution
of the judgment shall not be stayed until the things directed
to be assigned or delivered have been brought into court, or
placed in the custody of such officer or receiver as the court
appoints, nor until security has been given to the satisfaction
of the court appealed from, or of a judge thereof, in such sum
as the court or judge directs, that the appellant will obey the
order or judgment of the Supreme Court;
(b) where the judgment appealed from directs the execution
of a conveyance or any other instrument, the execution of the
judgment shall not be stayed until the instrument has been
executed and deposited with the proper officer of the court
appealed from, to abide the order or judgment of the
Supreme Court;
(c) where the judgment appealed from directs the sale or
delivery of possession of real property, chattels real or
immovables, the execution of the judgment shall not be
stayed until security has been entered into to the satisfaction
of the court appealed from, or a judge thereof, and in such
amount as the last mentioned court or judge directs, that
during the possession of the property by the appellant he will
not commit, or suffer to be committed, any waste on the
property, and that if the judgment is affirmed, he will pay
the value of the use and occupation of the property from the
time the appeal is brought until delivery of possession there
of, and also, if the judgment is for the sale of property and
the payment of a deficiency arising upon the sale, that the
appellant will pay the deficiency; and
(d) where the judgment appealed from directs the payment
of money, either as a debt or for damages or costs, the
execution of the judgment shall not be stayed until the
appellant has given security to the satisfaction of the court
appealed from, or of a judge thereof, that if the judgment or
any part thereof is affirmed, the appellant will pay the
amount thereby directed to be paid, or the part thereof as to
which the judgment is affirmed, if it is affirmed only as to
part, and all damages awarded against the appellant on such
appeal.
71. (1) When security has been deposited, given or entered
into as required by sections 66 and 70, any judge of the court
appealed from may issue his fiat to the sheriff, to whom any
execution on the judgment has issued, to stay the execution,
and the execution shall be thereby stayed whether a levy has
been made under it or not.
(2) Where the court appealed from is a court of appeal, and
execution has been already stayed in the case, the stay of
execution continues without any new fiat, until the decision of
the appeal by the Supreme Court.
The applicant contends that the forms of relief
sought may be granted under paragraph 70(1)(d)
and subsection 71(1). As for paragraph 70(1) (d),
it is argued, this Court has only to concern itself
with the amount and form of the "security" and to
make an order accordingly. As for subsection
71(1), a fiat staying execution of the writ of fi. fa.,
it is said, should be issued by us more or less
automatically after the security is approved while
the appeal is pending final disposition in the
Supreme Court of Canada.
These arguments seek to distinguish the staying
of execution "in the original cause" referred to in
the opening words of subsection 70(1) from the
"judgment appealed from" mentioned in the suc
ceeding paragraphs including paragraph (d). Put
simply, the argument here is that "the original
cause" in the context of this case refers to the
proceedings before the Adjudicator while "the
judgment appealed from" refers to the judgment
of this Court rendered April 23, 1985. As that
judgment dismissed the section 28 application with
"costs", it is urged that we have only to approve
the form and amount of the security to be given
for those costs under paragraph (d).
The initial attack upon the Adjudicator's deci
sion (as it had to be) took the form of an applica
tion to this Court for judicial review pursuant to
section 28 of the Federal Court Act. While the
appeal now pending in the Supreme Court of
Canada, technically speaking, is taken from this
Court, in reality it seeks to get rid of the above-
quoted portion of the Adjudicator's decision
though not the entire decision. It seems to me that
the word "judgment" in paragraph (d) is intended
to apply to any decision by which the rights of the
parties are finally disposed of and that it includes
the Adjudicator's decision or order even though it
does not carry the description "judgment". I can
see no reason why the phrase "judgment appealed
from" should be construed so narrowly as to
exclude that decision.' It was attacked in this
Court on the section 28 application. It was the
focus of the argument addressed to the Supreme
Court of Canada upon the leave application and it
will remain so at the hearing of that appeal. That
Court, if it were so minded, could (as it did in
National Bank of Canada v. Retail Clerks' Inter
national Union et al., [1984] 1 S.C.R. 269) vary
the Adjudicator's decision and order, instead of
referring the matter back to this Court with
directions.
In my judgment, the Adjudicator's decision may
fairly be viewed as the "judgment appealed from"
so that, if its direction for "the payment of money"
were in issue before the Supreme Court of Canada
in the pending appeal, this Court would have
power under paragraph 70(1)(d) to settle the
amount and form of the security as therein author
ized. But as I have already indicated, only the
above-quoted portion of the Adjudicator's decision
and order is under attack in that appeal. The
remainder, directing the payment of money, stands
untouched and unquestioned.
Regard must be had to the statutory scheme
disclosed by subsection 70(1) and section 71. Each
individual paragraph of subsection 70(1) requires,
inter alia, the giving of security pending disposi
tion of an appeal to the Supreme Court of Canada.
As these paragraphs are each introduced by the
words "except that", they are clearly intended as
exceptions to the general rule found in the opening
' Compare Hamilton v. Evans, [1923] S.C.R. 1 where, in
deciding whether an appeal lay to the Supreme Court of
Canada, that Court agreed with counsel's submission that the
"judgment" referred to in the phrase "the judgment to be
appealed from" in section 40 of the Supreme Court Act, R.S.C.
1906, c. 139 (as am. by S.C. 1920, c. 32, s. 2) was the judgment
of the Trial Division rather than of the Court of Appeal from
which the appeal was being brought.
words of subsection 70(1). By those words, the
filing and serving of notice of appeal and deposit
ing of the security required by subsection 66(1) [as
am. by R.S.C. 1970 (1st Supp.), c. 44, s. 6] of the
statute 2 results in a stay of execution in the origi
nal cause unless an exception applies. The statu
tory scheme was explained by the Supreme Court
of Canada itself in Foundation Co. of Canada Ltd.
v. Prince Albert Pulp Co. Ltd., [1976] 1 S.C.R.
33; (1975), 3 N.R. 581 where at pages 37-38
S.C.R.; 584-585 N.R. Martland J., speaking for
the full Court, said:
The scheme established by ss. 70 and 71 appears to me to be
this. By virtue of s. 70, when notice of appeal has been filed and
served and the security required by s. 66 has been deposited,
execution in the original cause is stayed, but, in the instances
described in paras. (a) to (d) inclusive, there are additional
requirements in order to make the statutory stay of execution
effective. These paragraphs concern:
(a) appeal from a judgment which directs an assignment or
delivery of documents or personal property;
(b) appeal from a judgment which directs the execution of a
conveyance or other instrument;
(c) appeal from a judgment which directs the sale or delivery
of real property, chattels real or immovables;
(d) appeal from a judgment which directs the payment of
money, either as a debt or for damages or costs.
Section 71(1) empowers a judge of the Court from which an
appeal has been taken, if execution has been issued, to issue a
fiat to the sheriff to stay the execution.
Section 71(2) provides for the situation in which the appeal
is from a Court of Appeal and execution has already been
stayed. In such case the stay of execution continues without any
new fiat from the Court of Appeal, until the decision of the
appeal in this Court. (My emphasis.)
In the circumstances, as the portion of the
Adjudicator's decision directing the payment of
money is no longer in issue, we are unable to
approve security under paragraph 70(1)(d) so as
2 66. (1) An appeal shall be brought by
(a) serving a notice of appeal on all parties directly affected,
and
(b) depositing with the Registrar security to the value of five
hundred dollars that the appellant will effectually prosecute
the appeal and pay such costs and damages as may be
awarded against him by the Supreme Court,
within the time prescribed by section 64 or allowed under
section 65.
to bring about a stay of execution of that aspect of
the decision or, indeed, of the entire decision as the
applicant seeks. This Court's power in this regard
is confined to what is conferred by paragraph (d).
It follows as well that, in the circumstances, we are
not authorized to issue a fiat under subsection
71(1) staying execution of the writ of fieri facial
of June 10, 1985.
For the foregoing reasons I would dismiss this
application with costs.
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
COWAN D.J.: I concur in the reasons for judg
ment of Mr. Justice Stone.
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.