A-771-85
A-772-85
Canada Post Corporation, Stuart Cooke, François
Boyer, Yves Dubuc, Jacques Lamarche (Appel-
lants)
v.
Canadian Union of Postal Workers, CUPW: 174
GG 208 (Respondent)
and
Attorney General of Canada (Mis -en-cause)
INDEXED AS: C.U.P.W. v. CANADA POST CORP.
Court of Appeal, Marceau, Hugessen and
Lacombe JJ.—Montréal, November 6; Ottawa,
December 18, 1986.
Practice — Contempt of court — Appeal from dismissal of
application to rescind ex parte show cause order — Applica
tion for show cause order supported by affidavits of postal
workers indicating practice prohibited by arbitral award con
tinuing at three of Canada Post's branches — Application to
rescind on ground affidavits irregular as not associating
appellants with violation of arbitral award — Application
dismissed as second judge not wanting to substitute own view
for that of first Judge — Appeal of individual appellants
allowed; corporate appeal dismissed (Marceau J. dissenting)
— No evidence tying individual appellants to violation of
arbitral award — Application for show cause order under R.
355(4) must comply with procedural requirements of R. 319(2)
— Ex parte order against Canada Post justified based on
prima facie evidence in affidavits of continuation of prohibited
practice — Federal Court Rules, C.R.C., c. 663, RR.
319(1),(2), 330(a) (as am. by SOR/79-58, s. 1), 355(4).
Federal Court jurisdiction — Trial Division — Appeal
from dismissal of application to rescind ex parte show cause
order — Appeal allowed re: individual appellants as affidavits
in support of application for show cause order defective —
Inherent jurisdiction to set aside ex parte order if apparent,
after party adversely affected heard, order should not have
been made — R. 330(a) applying to any ex parte order
including show cause order — Federal Court Rules, C.R.C., c.
663, RR. 319(1),(2), 330(a) (as am. by SOR/79-58, s. 1),
355(4).
Labour relations — Arbitral award filed with Federal Court
— Appeal from dismissal of application to rescind ex parte
show cause order — Affidavits in support showing prima facie
evidence of violation of arbitral award, but not associating
individual appellants with violation — Appeal re: individual
appellants allowed (Marceau J. dissenting) — Order cannot be
based on defective information — Procedural requirements of
R. 319(2) must be complied with Aggrieved party not
limited to raising only additional facts to those presented when
ex parte order made — Appeal dismissed re: Canada Post as
prima facie evidence of continuation of prohibited practice —
Canada Labour Code, R.S.C. 1970, c. L-1, s. 159 (as am. by
S.C. 1977-78, c. 27, s. 57) — Federal Court Rules, C.R.C., c.
663, RR. 319(1),(2), 330(a) (as am. by SOR/79-58, s. 1),
355(4).
This is an appeal from a judgment of the Trial Division
dismissing an application to rescind an order made ex parte
directing the appellants to appear to answer a charge of
contempt of court. The respondent applied for a show cause
order under Rule 355(4) on the ground that the appellants had
not complied with the arbitral award ordering the employer to
cease allowing letter carriers to perform the duties of inside
postal workers. The appellants applied under Rule 330(a) for
the Court to rescind the ex parte order on the ground that the
respondent's application for this order had been irregular. The
appellants did not seek to establish before the Judge sitting in
review facts in addition to those submitted by the respondent to
the Judge who had made the show cause order. They argued
that the supporting affidavits did not establish the facts alleged
in that they did not associate them with the violation of the
arbitral award. The application was dismissed, the second
Judge not being prepared to substitute his view of the evidence
for that of the judge who had granted the order.
Held (Marceau J. dissenting), the appeal of the individual
appellants should be allowed; the appeal of Canada Post Corpo
ration should be dismissed.
Per Lacombe J. (Hugessen J. concurring): There is no
evidence in the affidavits or elsewhere in the record that the
individual appellants were involved in the violation of the
arbitral award. There also was no evidence indicating in what
respect and how they could be held personally responsible for
disobeying the arbitral award. An application for a show cause
order under Rule 355(4) falls within Rule 319(2), which
requires that a motion be supported by an affidavit as to all
facts on which the motion is based that do not appear on the
record. The ex parte order should not have been made against
the individual appellants.
Wilson v. R., cited for the proposition that the Judge sitting
in review can only intervene if additional facts are established
before him, does not apply. That was a criminal case, concern
ing review of a wiretap authorization. Also, a judge hearing an
application for a wiretap authorization has discretion to grant
or deny it, but a judge hearing an application for a show cause
order under Rule 355(4) has no discretion. He must make the
order as required by law, the evidence and the pleadings. When
such an order has been made ex parte a judge hearing an
application to rescind under Rule 330(a) does not have any
discretion to exercise himself. He must grant the remedy based
on either peremptory legal grounds which were not considered
by the judge making the order, or on additional facts raised by
the aggrieved party now that he has an opportunity to be heard.
The law applicable to the review of ex parte show cause orders
remains as it was stated in May & Baker (Canada) Ltd. v. The
"Oak": when an order is made ex parte there is an inherent
jurisdiction in the Court, after the party adversely affected has
been given an opportunity to be heard, if it appears that it
should not have been made, to set it aside. Rule 330(a) applies
to "any order that was made ex parte" including a show cause
order, which under Rule 355(4) may be issued without the
opposing party being heard. Its purpose is to ensure, in accord
ance with the fundamental rule of audi alteram partem, that
the aggrieved party can present all his arguments against the ex
parte order being made. The aggrieved party cannot be limited
to raising only facts additional to those presented when the ex
parte order was made.
Although a show cause order is only a simple summons, a
valid summons cannot be based on a defective information. The
individual appellants did not have to await their appearance on
a defective summons to challenge in court evidence which the
respondent had not presented when it was issued. They were
entitled to have the order lifted immediately.
However, the ex parte order against Canada Post was justi
fied. The affidavits contained prima facie evidence that the
prohibited practice was continuing at three of Canada Post's
branches. This evidence was clear enough to justify the Trial
Judge making the show cause order to summon the appellant to
appear. The appellant can present its defence arguments at the
hearing on the merits. On an application for a show cause
order, a judge need only be satisfied that the evidence con
tained in the affidavits in support of the application is sufficient
to authorize the making of the order: Baxter Travenol
Laboratories Inc. v. Cutter (Canada) Ltd. (1985), 56 N.R. 282
(F.C.A.).
Per Marceau J. (dissenting): The decision of the first Judge
is not at issue. The appeal concerns the decision of the second
Judge and whether he erred by refusing to put himself in the
place of the first Judge.
Rule 330 confirms the power to rescind an ex parte decision,
but gives no indication as to what such rescission consists of
and no information as to the circumstances in which it may
occur. However, it does provide that the original decision is not
replaced, but is superceded, leaving intact all the effects which
it has produced to date. The power in Rule 330 is not a power
of appeal. The power of review in cases where the Court has
had to make a decision ex parte derives from the common law.
It is inherent in the Court's jurisdiction, arising out of necessi
ty. Such power is necessary only to deal with a case in which
the Court has acted on the basis of misleading or incomplete
information, as otherwise an appeal would be made on the
record. Since the decision in May & Baker, McIntyre J. in
Wilson v. R. approved the statement in Gulf Islands Naviga
tion that in any case it would not ordinarily be the function of a
judge other than the one making the initial decision ex parte to
assume the power of reviewing it. Although Wilson involved a
criminal matter, the statements approved had been made in a
civil proceeding and were intended to summarize what the
courts have consistently held in civil matters. The Trial Judge
did not have the power to sit in appeal from the decision of the
first Judge. However, assuming that he did have such power,
the fact that the Judge could have acted on the application does
not mean that he was required to act. If his refusal to exercise
his power is based on valid grounds and not likely to cause a
denial of justice by finally denying litigants a remedy to which
they are entitled, the right to make that refusal cannot be
denied. That is the situation here. The valid reason was his
reluctance to place himself in his brother Judge's position and
act as an appellate judge, a situation to be avoided as far as
possible. The appellants wil have the opportunity to explain the
situation at the time of their appearance. The other solution is
an appeal. A judge has the discretion to deny an application
solely because in his opinion some other proceeding would have
been preferable: Rex v. Kennedy, a Metropolitan Magistrate
(1902), 86 L.T. Rep. 753 (H.C.).
CASES JUDICIALLY CONSIDERED
APPLIED:
May & Baker (Canada) Ltd. v. The "Oak", [1979] 1
F.C. 401; (1978), 89 D.L.R. (3d) 692 (C.A.); Baxter
Travenol Laboratories Inc. v. Cutter (Canada) Ltd.
(1985), 56 N.R. 282 (F.C.A.).
DISTINGUISHED:
Wilson v. R., [1983] 2 S.C.R. 594; [1984] 1 W.W.R.
481; (1984), 51 N.R. 321.
REFERRED TO:
Kukan v. Minister of Manpower & Immigration, [1974]
1 F.C. 12; (1974), 1 N.R. 445 (C.A.); R. v. Perry, [1982]
2 F.C. 519; (1982), 133 D.L.R. (3d) 703 (C.A.); Gulf
Islands Navigation Ltd. v. Seafarers Internat'l Union of
North America (1959), 18 D.L.R. (2d) 625; (1959), 28
W.W.R. 517 (B.C.C.A.); Rex v. Kennedy, a Metropoli
tan Magistrate (1902), 86 L.T. Rep. 753 (H.C.).
COUNSEL:
R. Luc Beaulieu for appellants.
Olivier Després for respondent.
SOLICITORS:
Ogilvy, Renault, Montréal, for appellants.
Trudel, Nadeau, Lesage, Cleary, Larivière et
Associés, Montréal, for respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J. (dissenting): I regret, but I cannot
concur in the view of Lacombe J. I do not think
that the judge of first instance [judgment dated
September 23, 1985, T-1015-1016-85] made an
error which can be a basis for intervention by this
Court. My brother judge suggests that the appeal
be allowed in part; on the contrary, I am unable to
disagree, if not with the wording of the judgment a
quo, at least with its substance, and I would refuse
to intervene. That being so, I must with respect
explain my reservations regarding his analysis and
attempt to defend my own.
First, however, we should agree on what is at
issue. A Judge of the Trial Division, hearing an
application to initiate a contempt of court proceed
ing, in September 1985 issued an order directing
the appellants to appear on a given date to hear
proof of the acts alleged against them and to urge
any grounds of defence they might have. The
application, made under Rule 355(4) [Federal
Court Rules, C.R.C., c. 663], had not been served,
and the judge accordingly had to make his decision
ex parte. When they learned of the proceedings
initiated against them the appellants concluded
that the affidavit evidence submitted in support of
the application was insufficient to provide a valid
basis for the order and they decided to challenge
it. It was open to them to proceed by appeal (and
they in fact prudently took the necessary steps to
ensure that the eventual possibility of an appeal
remained open should their choice of proceeding
prove to be ill-advised), but they thought it prefer
able first to make use of the option which
appeared to be offered by Rule 330 [as am. by
SOR/79-58, s. 1], which is worth reproducing
again in view of its importance for the ensuing
discussion:
Rule 330. The Court may rescind
(a) any order that was made ex parte, or
(b) any order that was made in the absence of a party who
had failed to appear through accident or mistake or by
reason of insufficient notice of the application;
but no such rescission will affect the validity or character of
anything done or not done before the rescinding order was
made except to the extent that the Court, in its discretion, by
rescission order expressly provides.
The appellants accordingly filed an application
asking the Court to rescind the order to appear,
relying on Rule 330. The application came before
a Judge other than the one who had made the
order. The Judge considered the application, but
seeing that the appellants were not proposing to
add to the facts presented to the first Judge (they
had not even filed a substantial affidavit) but were
simply arguing that, solely on the basis of the facts
duly attested under oath, the order should not have
been made, he refused to intervene. The Judge
chose his words poorly in briefly explaining his
refusal, but I think it will readily be admitted that
his real reasoning was clear enough: he did not
want to determine the appositeness of the
approach taken by his brother Judge and simply
substitute his own reaction for that of the latter.'
This Court has before it a challenge against the
decision dismissing the application submitted pur
suant to Rule 330—and nothing more.
I feel this point needs to be emphasized. The
decision of the first Judge itself is not at issue. It
seems clear that the deficiencies in the application
submitted by the respondents to initiate the con
tempt of court proceedings are due to clumsiness
in the preparation and wording rather than to any
other cause, but in any case no one doubts that
issuing the order was fully justified solely on the
basis of the facts attested under oath. If the appeal
at bar concerned the decision of the first Judge, it
would I think present no problem; but that is not
the case. The appeal concerns the decision of the
second Judge and the question it presents is
straightforward: by simply refusing to put himself
in place of the first Judge and assess the propriety
of his brother's reaction so as to affirm or reverse
the action taken by him, did the second Judge
commit an error which must be corrected by this
Court?
' The reasons of Lacombe J. contain the three paragraphs of
the judgment, but I should like to note the second in particular:
[TRANSLATION] As further this is a matter in which the
Court does not intend to substitute its own view of the
evidence for that of the judge who initially made the order,
as the latter relied on the application, the affidavits and the
record before him;
Once the real issue has been thus identified, it
can immediately be seen what is necessary for the
appeal to succeed. It is clear that this Court cannot
disapprove the refusal of the second Judge to
intervene in the decision of the first except to the
extent that it can say, first, that the second Judge
in fact had the power to intervene as he was being
asked to do, and second, that in the circumstances
he could not refuse to do so. Let us therefore
examine the validity of each of these two
statements.
1—Did the second Judge have the power to
intervene as he was being asked to do?
Thinking that Rule 330 has solved the problem
is failing to see the matter as it really is. Rule 330
confirms, for the Federal Court sitting at first
instance, the existence of the power given to any
court of law to rescind a decision it may have
made ex parte, a power which clearly does not
exist in the case of an ordinary decision, which is
meant to be final. However, it gives no indication
as to what such rescission consists of and no
information as to the circumstances in which it
may occur or who may impose it for the Court.
To begin with, it should be noted that though
the word "annulation" in the French version is
ambiguous, the word "rescind" in the English
version is more precise and more meaningful: it is
not synonymous with "set aside". It will also be
noted that the Rule speaks not of a decision which
replaces the one initially rendered, but of one
which simply supersedes it, leaving intact all the
effects which it has produced to date. I consider
that the words used to describe the power reserved
in Rule 330 are not consistent with the idea of
simply repeating the operation performed by the
first Judge so as to determine its validity, and that
the effect attached to the rescission order, which is
simply superimposed with consequences for the
future, is not consistent with the retroactive effect
of a purely remedial decision like that of a court of
appeal. I would add that, in my opinion, it is
entirely understandable that this power mentioned
in Rule 330 is not in the nature of a power of
appeal. First it is necessary to inquire whence this
power is derived, as it clearly does not have its
source in the Rule itself: the principle that once it
has rendered its decision a court is functus officio
and powerless to reverse itself is too fundamental
to be overturned simply by means of a rule of
practice; the Rule undoubtedly serves only to con
firm the existence of the power. It is in fact a
power which has never been conferred by legisla
tion, but which all the common law courts have
long held to be inherent in their jurisdiction (see
the historical review made of the power by Smith
J. in the British Columbia Court of Appeal judg
ment in Gulf Islands Navigation Ltd. v. Seafarers
Internat'l Union of North America (1959), 18
D.L.R. (2d) 625; (1959), 28 W.W.R. 517). An
inherent power is one which arises out of necessity.
Why is it necessary for a Court to have a power of
review in cases where, by exception, it has had to
make a decision ex parte? In my opinion, it can
only be because, as the case was not presented
contradictorily, the Court may have acted on the
basis of an abbreviated or partial view of the
factual situation it had to consider. It would be
contrary to the very notion of justice if, in such a
case, the decision remained final, and this would
be true if the Court had no power of rescission,
since an appeal would be made on the record as it
stood and so would be of no assistance. However, I
see no such necessity otherwise. Why should an
appeal proceeding not still be the only means
available for determining the strict legality of a
judge's decision, in the case of a decision ex parte
or any other? Are the requirements of the audi
alteram partem principle (assuming that they have
anything to do with the case of a decision which it
has been determined in advance may and even
must be taken ex parte), to the extent that they
merely imply a right to make representations on
the law, not sufficiently satisfied by an appeal
procedure? In short, the power is necessary to deal
with the case in which the Court has acted on the
basis of misleading or incomplete information, as
this is essential for the sound administration of
justice; but it certainly is not necessary otherwise.
In any case, what I find it quite impossible to
agree with is that, simply on the basis of a rule of
practice, a judge of a court of law can be given the
function of challenging and the power of reversing
the appraisal of the action taken by another judge
on the same level as himself. I realize that in May
& Baker (Canada) Ltd. v. The "Oak", [1979] 1
F.C. 401; (1978), 89 D.L.R. (3d) 692 (C.A.), this
Court did not seek to limit the application of Rule
330 to cases in which a party not present at the
first decision wanted to submit additional facts;
but I would point out that the Court did not say in
that case whether the anticipated review would be
by the same judge; and even more important is the
fact that, since the decision in May & Baker, there
has been the approval given by McIntyre J. in
Wilson v. R., [1983] 2 S.C.R. 594; [1984] 1
W.W.R. 481, to the statements made by Smith J.
in Gulf Islands Navigation Ltd., cited above, that
in any case it would not ordinarily be the function
of a judge other than one making the initial deci
sion ex parte to assume the power of reviewing it.
It was pointed out that Wilson was a decision in a
criminal matter, but in any event the statements
approved had been made in a civil proceeding and
moreover were intended to summarize what the
courts have consistently held in civil matters.
I am thus inclined to think, with respect for the
contrary view of my brother, that the Trial Judge
did not have power to sit in appeal from the
decision of the first Judge. 2 However, let us go
further and assume that he had such a power: as
we have seen, the success of the appeal would not
be thereby assured, as the fact that the Judge
could have acted on the application would not
suffice to enable the Court to disapprove his inac-
tion—there must have been a requirement that he
act. Let us therefore look more closely at this
second condition.
2 It is interesting to note for purposes of comparison that, in
Quebec civil law, the revocation of a judgment at the request of
one of the parties is possible only when that party would have
been present but was prevented from doing so for good cause,
or in certain exceptional situations where the court may have
acted on the basis of partial information and no other remedy
exists. The two articles of the Code of Civil Procedure of
Québec read as follows:
482. A party condemned by default to appear or to plead
may, if he was prevented from filing his defence by surprise,
by fraud or by any other reason considered sufficient, request
that the judgment be revoked and that the action be
dismissed.
The motion, addressed to the court which rendered the
judgment, must contain not only the grounds for revocation
of judgment, but also the grounds of defence to the action.
483. Likewise, where there is no other useful recourse
against a judgment, the court which rendered it may revoke
it at the request of one of the parties, in the following cases:
(Continued on next page)
2—If the second Judge had the power to inter
vene, was he required to do so?
Here again the starting-point has to be the
simplistic observation that Rule 330 recognizes the
existence of a power but does not give anyone the
right to ensure that it is exercised. It does not say
that a party who is in a particular situation can
obtain a particular remedy. In fact, as I have
suggested, the assumption that such a power was
necessary and therefore inherent was due to the
needs of the administration of justice, as the courts
quickly recognized that without it they might be in
danger of making erroneous decisions and leaving
the aggrieved party without a remedy, thus
making themselves responsible for simple denials
of justice. This in my view is the measure of the
duty on the judge to use it.
It should not be forgotten that it is the discre
tion of the second Judge which is at issue here, not
of the first. As I have said, no one disputes that the
first Judge did not have the discretion to make an
order based solely on the evidence presented by the
affidavits as drafted; there was a discrepancy,
which he might well have asked counsel to correct
but which he undoubtedly did not notice. I accord
ingly agree that part of the show cause order is
(Continued from previous page)
(1) When the procedure prescribed has not been followed
and the resulting nullity has not been covered;
(2) When the judgment has decided beyond the conclu
sions, or when it has failed to rule on one of the essential
grounds of the suit;
(3) When, in the case of a minor or interdicted person, no
valid defence has been produced;
(4) When judgment has been rendered upon an unauthor
ized consent or tender subsequently disavowed;
(5) When judgment has been rendered upon documents
whose falsity has only been discovered afterwards, or follow
ing fraud of the adverse party;
(6) When, since the judgment, decisive documents have
been discovered whose production had been prevented by a
circumstance of irresistible force or because of the act of the
adverse party;
(7) When, since the judgment, new evidence has been
discovered and it appears that:
(a) if it had been brought forward in time, the decision
would probably have been different;
(b) it was known neither to the party nor to his attorney or
agent and
(c) it could not, with all reasonable diligence, have been
discovered in time.
For a complete study of an application to revoke, reference may
be made to J. Anctil, "La rétractation de jugement à la
demande d'une partie" (1973), 4 R.D.U.S. 119.
subject to intervention, and that the individuals
concerned are entitled to have it set aside; but I do
not see how this automatically places the second
Judge under a duty to act. If his refusal to exercise
his power is based on valid grounds and not likely
to cause a denial of justice by finally denying
litigants a remedy to which they are entitled, I do
not see on what basis the right to make that
refusal, and even its legitimacy, can be denied. In
my opinion, that is true in the case at bar. As for a
valid reason, as we have seen essentially this was
his reluctance to place himself in his brother
Judge's position and act as an appellate Judge
toward him, a situation which, if it is not legally
unacceptable as I have suggested, is at the very
least to be avoided so far as possible. So far as the
absence of a denial of justice is concerned, the
Judge speaks of the opportunity the appellants will
have to explain the situation at the time of their
appearance, which is perfectly true as regards the
determination of their position with the Canada
Post Corporation and their function in relation to
the acts alleged, but I admit covers only the aspect
of equity and not pure law, leaving aside the
question of the legality of the very making of the
order. However, the solution is ready to hand: it is
of course an appeal. The courts have already held
that a judge has the discretion to deny an applica
tion solely on the ground that in his opinion some
other proceeding was preferable (Rex v. Kennedy,
a Metropolitan Magistrate (1902), 86 L.T. Rep.
753 (H.C.)). The legitimacy of the refusal by the
Judge in the case at bar seems to me for more easy
to recognize.
Those are the reasons which—I say so with
respect for those who take a different view—
prevent me from agreeing that this Court can
question the legality and legitimacy of the decision
at present before it. I realize that in practice
allowing the appeal will only give the appellants
the result which they could obtain by proceeding
with their appeal against the show cause order; but
I think there is much more here than a question of
procedure: there is a question of jurisdiction and
principle the solution of which may have conse
quences for the future. This is why I have made a
point of setting out my opinion.
I would dismiss the appeal with costs.
* * *
The following is the English version of the
reasons for judgment rendered by
LACOMBE J.: This is an appeal from a judgment
of the Trial Division, which dismissed the applica
tion by the appellants to rescind an order made ex
parte directing them to appear to answer a charge
of contempt of court.
On April 12, 1985 an arbitral award was made
in favour of the respondent; it filed the award with
the Federal Court of Canada on May 14, 1985,
pursuant to section 159 of the Canada Labour
Code, R.S.C. 1970, c. L-1 [as am. by S.C. 1977-
78, c. 27, s. 57], and served the notice of its filing
on the appellant on May 21, 1985.
The arbitral award allowed the grievance which
the respondent had filed against the appellant
under the postal workers' collective agreement. It
concluded as follows:
The grievance is therefore granted as follows:
— the employer may not entrust to letter carriers the duties
of collecting mail from the sortation frames by letter carrier
route; take the sorted mail from the pigeon holes in the racks
to rolling stock (carts, tubs) or transfer this material from
the primary sortation section to designated locations without
infringing the postal worker job descriptions and their collec
tive agreement;
— we order the employer to cease the practice mentioned in
the preceding paragraph.
On June 17, 1985 the respondent filed an
application for a show cause order under Rule
355(4), 3 on the ground that the appellants had not
complied with the arbitral award.
Rule 355. .. .
(4) No one may be condemned for contempt of court com
mitted out of the presence of the judge, unless he has been
served with a show cause order ordering him to appear before
the Court, on the day and at the hour fixed to hear proof of the
acts with which he is charged and to urge any grounds of
defence that he may have. The show cause order issued by the
judge of his own motion or on application must be served
personally, unless for valid reasons another mode of service is
authorized. The application for the issuance of the show cause
order may be presented without its being necessary to have it
served.
On July 11, 1985 the order was made ex parte.
On September 12, 1985 the appellants in turn
applied under Rule 330(a) 4 for the Court to
rescind the ex parte order on the ground that the
respondent's application for this order was
irregular.
On September 23, 1985 the Court, presided over
by a Judge other than the one who had made the
ex parte order, dismissed the application by the
appellants to rescind, for short reasons which
should be reproduced in full:
As the Court is not persuaded that the respondents would
have presented additional facts if they had been heard before
the order sought to be rescinded;
As further this is a matter in which the Court does not intend
to substitute its own view of the evidence for that of the judge
who initially made the order, as the latter relied on the applica
tion, the affidavits and the record before him;
Whereas the respondents will have an opportunity to chal
lenge the applicant's evidence at the hearing on the contempt of
court;
The application is dismissed with costs.
It was common ground that the appellants did
not establish or seek to establish before the Judge
sitting in review facts additional to those which the
respondent had itself submitted to the Judge who
made the show cause order.
In its application for a show cause order the
respondent stated that the appellant, through the
other appellants in their capacity as officers
responsible for its labour relations and its person
nel, and the latter acting in their personal capacity
and hence outside the scope of their duties, had
disregarded the prohibition in the arbitral award
against entrusting to persons other than postal
workers duties belonging to the latter under their
collective agreement, in that certain mail handling
operations were continuing to be done in the
manner prohibited by the arbitral award at three
named branches of the appellant in the city of
Montréal.
Rule 330. The Court may rescind
(a) any order that was made ex parte, or
but no such rescission will affect the validity or character of
anything done or not done before the rescinding order was
made except to the extent that the Court, in its discretion, by
the rescinding order expressly provides.
The respondent's application was supported by a
sworn statement by three postal workers employed
at one or the other of three of the appellant's
branches from May 21 to June 13, 1985. Two
affidavits simply said in identical language that
during this period "the duties of collecting mail
from the sortation frames by letter carrier route
were performed by persons other than postal work
ers, namely letter carriers" at two of the branches.
For the other branch, the last affidavit adopted
word for word the first conclusion of the arbitral
award, saying that the duties described therein had
been assigned "to persons other than postal work
ers, namely letter carriers".
In their application to rescind and their appeal
to this Court, the appellants took the position that
these affidavits did not establish the facts alleged
by the respondent in its application for an order, in
that they in no way associated them with the
violation of the arbitral award complained of and,
as the application was irregular, it could not in law
be the basis for an ex parte order.
I consider that these arguments are only partly
valid: they apply only in the case of the appellants
Cooke, Boyer, Dubuc and Lamarche but not to the
appellant Canada Post Corporation.
The postal worker's affidavits make no reference
to any of these four individual appellants. Addi
tionally, the arbitral award, the notice of filing of
which in the Federal Court was not even served on
them, makes no reference to their having been
involved in this labour dispute between the appel
lant and the respondent in any way. There is
therefore not a scintilla of evidence in the affidavit
or elsewhere in the record that the appellants
Cooke, Boyer, Dubuc and Lamarche, whether per
sonally or in their capacity as employees of the
appellant, were involved directly or indirectly in
the violation of the arbitral award. Still less was
there any evidence, even indirect and however
tenuous, indicating in what respect and how they
could be held personally responsible for disobeying
the arbitral award, which the respondent alleged
occurred at the three branches of the appellant
between May 24 and June 13, 1985. As the affida
vits said absolutely nothing about them, it was not
even established in evidence that they performed
the duties of labour relations and personnel offi
cers as the respondent's application alleged, or
indeed that they worked for the appellant during
the period in question.
Rule 319(1) 5 provides that any application
made "to the Court, a judge or a prothonotary ...
shall be made by motion", and Rule 319(2) 6
requires that "A motion shall be supported by
affidavit as to all the facts on which the motion is
based that do not appear from the record", other
wise it will be denied: Kukan v. Minister of Man
power & Immigration, [1974] 1 F.C. 12; (1974), 1
N.R. 445 (C.A.).
An application for a show cause order under
Rule 355(4), like any other application, falls
within the procedural requirements of Rule
319(2). This is all the more true in the case of a
contempt of court, which is a matter of strict
law—strictissimi juris—at all stages of the pro
ceeding, since it involves the freedom of the
individual and may eventually lead to a term of
imprisonment: Rule 355(2).'
It follows that the ex parte order should not
have been made against the appellants Cooke,
Boyer, Dubuc and Lamarche.
Even then, the respondent argued, the judge
sitting in review could not rescind it because he
can only intervene under Rule 330(a) if additional
facts are established before him, and he according
ly had no discretion to decide in any other manner
5 Rule 319 (1) Where any application is authorized to be
made to the Court, a judge or a prothonotary, it shall be made
by motion.
6 Rule 319. .. .
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record, which affidavit shall be filed; and an adverse party may
file an affidavit in reply.
Rule 355. ...
(2) Except where otherwise provided, anyone who is guilty
of contempt of court is liable to a fine, which in the case of an
individual shall not exceed $5,000, or to imprisonment for a
period not exceeding one year. Imprisonment, and in the case of
a corporation a fine, for refusal to obey any process or order
may be repeatedly inflicted until the person condemned obeys.
than his brother had done, on the record as it stood
when the show cause order was made.
The respondent supported this argument by a
passage from the judgment of McIntyre J. of the
Supreme Court of Canada in Wilson v. R., [1983]
2 S.C.R. 594; (1984), 51 N.R. 321, which also
seems to have been relied on by the Trial Judge.
In Wilson v. R., McIntyre J. wrote, at pages 608
S.C.R.; 336 N.R.:
The exigencies of court administration, as well as death or
illness of the authorizing judge, do not always make it practical
or possible to apply for a review to the same judge who made
the order. There is support for the proposition that another
judge of the same court can review an ex parte order. See, for
example, Bidder v. Bridges (1884), 26 Ch.D. 1 (C.A.), and
Boyle v. Sacker (1888), 39 Ch.D. 249 (C.A.) In the case of
Gulf Islands Navigation Ltd. v. Seafarers' International Union
(1959), 18 D.L.R. (2d) 625 (B.C.C.A.), Smith J.A. said, at
pp. 626-27:
After considering the cases, which are neither as conclusive
nor as consistent as they might be, I am of opinion that the
weight of authority supports the following propositions as to
one Judge's dealings with another Judge's ex parte order: (1)
He has power to discharge the order or dissolve the injunc
tion; (2) he ought not to exercise this power, but ought to
refer the motion to the first Judge, except in special circum
stances, e.g., where he acts by consent or by leave of the first
Judge, or where the first Judge is not available to hear the
motion; (3) if the second Judge hears the motion, he should
hear it de novo as to both the law and facts involved.
I would accept these words in the case of review of a wiretap
authorization with one reservation. The reviewing judge must
not substitute his discretion for that of the authorizing judge.
Only if the facts upon which the authorization was granted are
found to be different from the facts proved on the ex parte
review should the authorization be disturbed. It is my opinion
that, in view of the silence on this subject in the Criminal Code
and the confusion thereby created, the practice above-described
should be adopted.
With respect, Wilson v. R. does not apply in the
case at bar. First, that was a criminal and not a
civil case. In that case the accused was tried on
charges of illegal gambling before a Judge of the
Manitoba Provincial Court. The Crown's case was
based exclusively on evidence obtained by wiretap
ping under four authorizations granted by judges
of the Manitoba Court of Queen's Bench. The
Trial Judge acquitted the accused because he said
the wiretap was unlawful and the evidence so
obtained inadmissible, as the four authorizations
given in this regard did not meet the conditions
imposed by law. The Manitoba Court of Appeal
quashed this judgment and ordered a new trial.
What the Supreme Court principally held in that
case, affirming the Manitoba Court of Appeal,
was that wiretap authorizations cannot be disputed
in an indirect or collateral manner by the Trial
Judge, especially where the latter exercises juris
diction at a level below that of the judges who
authorized the wiretap. Any application for review
of a wiretap authorization must be made to the
court which granted it, in the proper form and at
the proper time, which means that it cannot be
made at the time of the trial of the accused.
Moreover, a judge hearing an application for a
wiretap authorization has discretion to grant or
deny it and another judge who has to review the
decision cannot substitute his own discretion for
that of his brother judge: for him to do so he must
have different facts before him from those put
forward at the time of the initial authorization.
Seen in this light McIntyre J.'s comments are
readily understandable: to make up for the lack of
provisions on the matter in the Criminal Code, he
adopted the civil law rules dealing with the review
of ex parte orders and applied them to the review
of criminal law wiretap authorizations with one
limitation, relating to the discretion of judges to
grant or deny applications for wiretap authoriza
tions.
However, that is not true of contempt of court
proceedings. A judge has no discretion to grant or
deny an application for a show cause order made
under Rule 355(4). He must make the order as
required by the law, the evidence and the plead-
ings, and in the event of error his decision can be
appealed to this Court: R. v. Perry, [ 1982] 2 F.C.
519; (1982), 133 D.L.R. (3d) 703 (C.A.).
Nor, conversely, when such an order has been
made ex parte, does a judge hearing an application
to rescind under Rule 330(a) have any discretion
to exercise himself, just as he does not have to
observe the non-existent discretion of the other
judge who made the ex parte order. He must grant
the remedy and rescind the ex parte order, either
on peremptory legal grounds which were not con
sidered by the judge making it because the
aggrieved party, as it had not been heard at that
time, was unable to bring them before him, or on
account of additional facts which the aggrieved
party is raising now that he has an opportunity to
be heard.
It therefore appears that the view of McIntyre J.
in Wilson v. R. changed nothing in the civil rules
governing the review of ex parte orders and made
no change to the way in which Rule 330(a) is to be
applied. The law on this point continues to be as it
was decisively stated by the former Chief Justice
of this Court in May & Baker (Canada) Ltd. v.
The "Oak", [1979] 1 F.C. 401 (C.A.). In that
case, two extensions of time to serve the statement
of claim were granted ex parte by two Judges of
the Trial Division. An application to set aside the
service was submitted to the Judge who had grant
ed the second extension "on the grounds that the
extensions of time for service ... were granted
without sufficient reason". This Court set aside the
Trial Division judgment which had dismissed the
application to set aside because it was of the view
[at page 404], unlike the Trial Judge, that "The
material filed in support of the two orders extend
ing time does not reveal any facts that ... disclose
`sufficient reason' ". After recalling the general
rule that a judgment can only be reviewed on
appeal, Jackett C.J. wrote, at page 405:
When, however, an order is made ex parte, in my view, in the
absence of something to the contrary, there is an inherent
jurisdiction in the Court, after the party adversely affected has
been given an opportunity to be heard, if it then appears that
the ex parte order or judgment should not have been made,
(a) to set aside the ex parte order or judgment as of the time
when the order setting aside is made, and
It follows, in my view, that, in such a case, the party aggrieved
is entitled, upon an application to set aside an ex parte order, to
obtain such relief, and that the appellant, as such an aggrieved
party, should have been granted such relief by the judgment
that is the subject matter of this appeal. [My emphasis.]
In a note at the bottom of the page, he added the
following:
By ex parte order or judgment I refer to one where the party
adversely affected was not given an opportunity to respond.
When the Court reviews the matter it will do so after consider
ing either
(a) further evidence offered by such party, or
(b) representations made by him,
or both.
Rule 330(a) is general in application. It applies
in the same way and without limitation to "any
order that was made ex parte"; there is no excep
tion for a show cause order, which under Rule
355(4) in fine may be issued without the opposing
party being heard. Its very purpose is to ensure, in
accordance with the fundamental rule of audi
alteram partem, that the aggrieved party gets a
full hearing before the Court and can present to it
all his arguments against the ex parte order being
made. It is accordingly clear that the aggrieved
party cannot be limited to raising only facts addi
tional to those presented when the ex parte order
was made, on the ground for example that the
judge hearing the application to set aside is not the
same one as the one who made the order. If that
were so, the aggrieved party would obtain only a
half measure of justice and his right to be fully
heard would depend on the make-up of the par
ticular Court hearing his application to set aside.
Rule 330(a) and the decided cases make no such
distinctions. There is no reason why the rules
stated by this Court in May & Baker (Canada)
Ltd. v. The "Oak", supra, should not apply to the
review of show cause orders made ex parte in a
contempt of court proceeding.
It follows from all of this, to return to the facts
of the case at bar, that the appellants Cooke,
Boyer, Dubuc and Lamarche were strictly entitled
to be discharged in the preliminary stages of the
contempt of court proceeding brought against
them by the respondent. To do this, they only
needed to show its fundamental defect, namely the
total absence of evidence against them in the
affidavits submitted in support of the proceeding.
The Trial Judge should have rescinded their sum
mons, as he was not asked to substitute his view of
the evidence for that of the Judge who had made
the ex parte order. What he was actually required
to do was to rule that such evidence did not exist,
and that therefore their summons for contempt of
court was invalid.
The Trial Judge equally could not refuse to
grant their application to rescind on the further
ground that, in any case, they would have an
opportunity to challenge the respondent's evidence
at the later stage of the hearing on the merits of its
application for contempt of court. For such a
reasoning to be valid, once again the affidavit or
affidavits filed in support of an application for a
show cause order must contain some evidence that
the contempt of court alleged in the application
was committed. Though the latter is similar to an
information, and the order is only a simple sum
mons, it is still well established that a valid sum
mons cannot be based on a defective information.
The appellants Cooke, Boyer, Dubuc and Lamar-
che did not have to await their appearance on a
defective summons to challenge in court evidence
which the respondent had not presented when it
was issued. They were entitled, in raising this
peremptory argument in their application to
rescind, to have the order made against them ex
parte lifted immediately in limine.
However, is the same true with regard to the
appellant Canada Post Corporation? At the hear
ing, its counsel put forward the following clever
proposition. In its application for an order, the
respondent alleged that it committed the contempt
of court at issue through the other appellants,
whereas the affidavits filed in support of the
application in no way implicated the latter in the
violation of the arbitral award. Consequently, and
by a converse, if not ab absurdo, application of the
rule qui facit per alium facit per se, the appellant
argued that it could not be charged with contempt
of court which it was only said to have committed
through intermediaries, if the latter have to be
discharged for lack of evidence against them at
this preliminary stage of the proceedings.
Though at first sight attractive, this argument
does not stand up to scrutiny. It could not be
sustained without imposing a much too byzantine
construction on the respondent's application and
its supporting affidavit. As we have seen, the
application alleged that persons other than postal
workers had performed the postal workers' duties,
in breach of the arbitral award, "at the `R',
St-Michel and Ahuntsic branches of the Canada
Post Corporation, respectively located at 7115
boulevard St-Laurent ..." and so on (my empha
sis). Each of the deponents stated in his affidavit
that he was a postal worker employed by the
appellant, and in particular at one of the branches
mentioned in the application, and that while there,
during the period from May 24 to June 13, 1985
when he worked there, he saw certain of the
operations to which the arbitral award applied
being done by persons other than postal workers,
namely letter carriers. There was accordingly
prima facie evidence that the practice which the
arbitral award had directed the employer to cease
was still continuing at three of its branches.
Whether this was the result of intervention by
the other appellants or occurred for some other
reason hardly mattered so far as the making of the
show cause order was concerned. A specific ma
terial fact which affected the appellant in some
way, if not directly, had been established in the
affidavits of the postal workers submitted in sup
port of the respondent's application: the prohibi
tion contained in the arbitral award had not been
observed in three of its establishments. There was
accordingly prima facie evidence that the arbitral
award had been disobeyed, and this was submitted
to the Judge making the show cause order for his
consideration. This evidence was clear enough to
allow him, in view of the allegations of the
respondent's application, to tie it to the personal
responsibility of the appellant and to justify him in
summoning the latter to appear and eventually
answer to the Court on the matter. It is at the later
stage, at the hearing on the merits, that the appel
lant will be able to present its defence arguments
in an effort to avoid liability, possibly including
the one now being made in its appeal. On an
application for a show cause order, a judge needs
only to be satisfied that the evidence contained in
the affidavits filed in support of the application is
sufficient to authorize the making of the order:
Baxter Travenol Laboratories Inc. v. Cutter
(Canada) Ltd. (1985), 56 N.R. 282 (F.C.A.), at
page 288.
In the case at bar, this evidence existed against
the appellant and justified an ex parte order being
made against it. Accordingly, the application to
rescind was properly dismissed by the Trial Judge.
To conclude, the appeal should only be allowed
in part. I would therefore allow the appeal of the
appellants Cooke, Boyer, Dubuc and Lamarche
and dismiss that of the appellant Canada Post
Corporation; I would reverse in part the judgment
of the Trial Division and I would rescind the ex
parte show cause order made against the appel
lants Cooke, Boyer, Dubuc and Lamarche and
allow it against the appellant Canada Post Corpo
ration, and dismiss its application to rescind.
Since the result is divided in this Court as it
should have been in the Trial Division, there is no
basis for awarding costs to any of the parties on
appeal or at trial.
HUGESSEN J.: I concur.
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.