Judgments

Decision Information

Decision Content

T-639-88
Canada Post Corporation, Harold Dunstan, Robert Boisvert, Ron Hardowa and Robert Sand ers (Plaintiffs)
v.
Canadian Union of Postal Workers, Letter Carri ers Union of Canada, Canadian Labour Congress, Mediacom and Union Communications (Defen- dants)
INDEXED AS: CANADA POST CORP. V. C. U.P.W.
Trial Division, Rouleau J.—Ottawa, May 10 and 13, 1988.
Federal Court jurisdiction — Trial Division — Defendants publishing advertisements criticizing mail service under Mul- roney Government, purportedly on behalf of Canada Post employees — Action for injunction restraining breach of Canada Post Corporation Act (giving corporate plaintiff right to exclusive use of "Canada Post"), Canada Labour Code and Charter — Alleging statements false and misleading as not representative of sentiments of all Canada Post employees — Action not under federal statutes, but in tort — Federal Court Act, s. 23 requiring claim under Act of Parliament and enu merated head — No express grant of jurisdiction in Act or Code — Question of whether applicable and existing federal law dependent upon determination of whether action relating to better administration of laws of Canada — Canada Labour Code not suggesting matter concerning labour relations — No civil cause of action under Code — Existence of quasi-crimi nal offence in Canada Post Corporation Act to prevent abuse of use of "Canada Post" not creating civil cause of action — No nominate tort based on breach of statutory provision alone — Although operation of Post Office under federal legislation, this matter far removed from movement of mail — Charter, s. 2 alone not foundation for Court's jurisdiction as not federal enactment.
Constitutional law — Charter of Rights — Fundamental freedoms — Allegation freedoms of association and expression abrogated by Unions' publication of advertisements critical of mail service and government on behalf of Canada Post employees — Charter, s. 2 not applicable — Charter protect ing rights of individual against abrogation by state, not rights of Crown employees against abrogation by Unions — Charac terization of party in breach of obligations, not victim, impor tant — Unions not owing duty under Charter — Charter not
applicable in dispute between parties — Charter, s. 2 alone not foundation for Court's jurisdiction as not federal enactment.
Postal service — Canada Post Corporation and non-union ized employees suing unions for publishing advertisements, purportedly on behalf of Canada Post employees, critical of Mulroney Government — Motion to strike as disclosing no reasonable cause of action — Court lacking jurisdiction — Matter to be determined under neither Canada Post Corpora tion Act nor Canada Labour Code — Not question of labour relations in Post Office — Statutory prohibition against unau thorized use of "Canada Post" not creating civil cause of action — Matter far removed from Corporation's duty of moving mail — Unions having no duty to plaintiffs under Charter.
This was a motion to strike the statement of claim as disclosing no reasonable cause of action. The defendants had published advertisements which criticized the mail service under the Mulroney Government on behalf of "your Canada Post employees". The plaintiffs' action was for an injunction restraining continuing breaches of the Canada Labour Code in the form of abuses of the rights and obligations under the Code, and the Canada Post Corporation Act, which grants the Corpo ration exclusive use of the name "Canada Post". The plaintiffs alleged that the advertisements were false and misleading as they did not represent the sentiments of all the employees of Canada Post. Thousands of Canada Post employees are not represented by the defendant Unions. The defendants submit ted that the plaintiffs' complaint sounded in tort and that without a specific assignment of jurisdiction in a federal enact ment, the plaintiffs' claims could not be entertained by this Court. The plaintiffs argued that the relief sought was founded in two federal statutes. The plaintiffs asserted that the Unions did not have the right to represent those individual employees, particularly in the political sphere. They argued that the funda mental freedom of expression of the individual employees, as guaranteed by the Charter, has been abrogated. The issue was whether this action came under federal legislation, or under torts, in which case it could only be brought in the courts of the provinces.
Held, the motion should be allowed.
This matter did not fall to be determined under either the Canada Post Corporation Act or the Canada Labour Code as these statutes do not govern the relationship between the parties with respect to the relief sought. The plaintiffs were not attempting to enforce the provisions of a federal enactment, but to mount a civil action in a Court which does not have jurisdiction to hear the matter.
The Federal Court was created by statute and the conditions under which a matter falls within its jurisdiction must be specifically construed within the terms of the Federal Court Act and any other enactment in which jurisdiction is assigned to it. The jurisdiction of the Federal Court is not as broad as the sphere of legislative competence of the federal government. Between party and party the Federal Court does not have jurisdiction unless a grant thereof is specifically made. The fact
that matters otherwise outside the Court's jurisdiction may be causally intertwined with issues properly before the Federal Court does not warrant an extension of jurisdiction. Where there are multiple parties and multiple causes of action, each party and cause of action must be independently within the jurisdiction of the Court.
The three conditions which must be met for the Federal Court to have jurisdiction were set out in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752. The first requirement, that there be a statutory grant of jurisdiction by the federal Parliament, is satisfied if jurisdiction is granted either in the Federal Court Act or in some other federal enactment. The plaintiffs relied on sections 17 and 23 of the Federal Court Act. Section 17 does not apply as it refers only to actions against the Crown eo nomine, and none of the defendants are Crown officers or servants. In order to rely on section 23, the claim must be made under an Act of the Parliament of Canada, and it must come under one of the enumerated heads, i.e. the remedy must relate to a matter coming within "works and undertakings connecting a province with any other province or extending beyond the limits of a province." The fact that a complaint is made against a union representing some workers on a federal undertaking does not give jurisdiction to the Federal Court unless the remedy is contemplated by a federal statute. There is no express grant of jurisdiction in the Canada Post Corporation Act or the Canada Labour Code.
The second requirement is that there be a specific federal enactment expressly dealing with the subject in issue. Federal competence without legislative action is not sufficient. Section 101 of the Constitution Act, 1867 permits Parliament to estab lish Courts "for the better administration of the laws of Cana- da." It was necessary to determine whether the action relates to a better administration of the laws of Canada. The plaintiffs attempted to characterize the Unions' actions as a breach of their obligations under the Canada Labour Code and therefore within the sphere of federal labour relations. However, there is no specific section in the Code to suggest that this matter is a question of labour relations in the Post Office. There was no question of enforceable obligations between a union and its members because none of the plaintiffs were members of the defendant Unions. The Code does not provide any civil cause of action for a union falsely attributing untrue statements to non-members. These allegations clearly sound in tort. The mere recitation of a federal statute does not meet the second require ment of ITO. The plaintiffs also asserted a civil cause of action under subsection 52(2) of the Canada Post Corporation Act (which makes the unauthorized use of the name "Canada Post" or "Post Office" an offence). Sections 52, 54, 55 and 58 cannot be extended to create a civil cause of action. There is no nominate tort based on the breach of a statutory provision alone. A cause of action must exist separate and apart under the law of tort. Without some indication in the Canada Labour Code or the Canada Post Corporation Act that such an action was contemplated in the statute, the breach of any provision of the Acts cannot be presumed to lead to a civil cause of action for the plaintiffs. Furthermore, the only underlying tort would
be defamation which cannot be viewed as necessary for the better administration of the Canada Post Corporation Act.
Nor did this matter fall under Federal Court jurisdiction pursuant to section 13 of the Canada Post Corporation Act, which allows Canada Post to engage employees to carry out the Corporation's business. None of the defendants is employed by Canada Post. This matter is far removed from the orderly movement of mail, which is the Corporation's major responsibility.
The plaintiffs' argument, that the Unions had abrogated their Charter guaranteed freedoms of association and expres sion, had to be rejected. The Charter protections exist to safeguard the rights of the individual against abrogation by the state. It has no application in a dispute between private parties. The plaintiffs did not establish that the Unions were bodies who could' owe them a duty under the Charter. The mere fact that the defendant Unions are certified under the Canada Labour Code in respect of bargaining units other than the one to which the individual plaintiffs belong, does not make this a Charter issue. In any case, the Charter is not "applicable and existing federal law" as it is not an enactment of the federal government.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Broadcasting Act, R.S.C. 1970, c. B-11.
Canada Labour Code, R.S.C. 1970, c. L-2, ss. 136 (as am. by S.C. 1972, c. 18, s. 1), 184 (as enacted idem), 185 (as enacted idem).
Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54, ss. 22(5), 52(2), 54, 55, 58.
Canada Student Loans Act, R.S.C. 1970, c. S-17. 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),(d).
Carriage by Air Act, R.S.C. 1970, c. C-14.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1)].
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 3, 17, 23.
Federal Court Rules, C.R.C., c. 663, R. 419(1)(a). Prairie Grain Advance Payments Act, R.S.C. 1970, c. P-18.
CASES JUDICIALLY CONSIDERED
APPLIED:
ITO—International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; Rasmussen v. Breau, [1986] 2 F.C. 500 (C.A.); Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575 (C.A.);
Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.
DISTINGUISHED:
Lavigne and Ontario Public Service Employees Union et al., Re (1986), 55 O.R. (2d) 449 (H.C.).
CONSIDERED:
Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454 (C.A.); Mid West Television Ltd. v. S.E.D. Systems Inc., [1981] 3 W.W.R. 560 (Sask. Q.B.).
REFERRED TO:
Alda Enterprises Ltd. v. R., [1978] 2 F.C. 106 (T.D.); R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695; McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654; Rhine v. The Queen; Prytula v. The Queen, [1980] 2 S.C.R. 442; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Re Ontario English Catholic Teachers Association et al. and Essex County Roman Catholic School Board (1987), 58 O.R. (2d) 545 (Div. Ct.); Northern Telecom Canada Ltd. et al. v. Communication Workers of Canada et al., [1983] 1 S.C.R. 733; National Association of Broadcast Employees and Technicians v. R., [1980] I F.C. 820 (C.A.).
COUNSEL:
Roy L. Heenan and Thomas Brady for plaintiffs.
Paul B. Kane and Hugh Blakeney for defen dant Canadian Union of Postal Workers. Phillip G. Hunt for defendants Letter Carri ers' Union of Canada and Canadian Labour Congress.
Melvin Rotman for defendant Union Com munications.
SOLICITORS:
Heenan, Blaikie, Montréal for plaintiffs.
Perley-Robertson, Panet, Hill & Mac- Dougall, Ottawa, for defendant Canadian Union of Postal Workers.
Soloway, Wright, Houston, Greenberg, O'Grady & Morin, Ottawa, for defendants Letter Carriers' Union of Canada and Canadian Labour Congress.
Nelligan/Power, Ottawa, for defendant Mediacom.
Rotman, Zagdanski & Tierney, Toronto, for defendant Union Communications.
The following are the reasons for order ren dered in English by
ROULEAU J.: These are my reasons for the order and comments from the Bench made by me on May 10, 1988 in the above-styled action. The defendant, Canadian Union of Postal Workers, assisted by the defendant, Union Communications, appeared before me to argue that the statement of claim should be struck in its entirety pursuant to Rule 419(1)(a) of the Federal Court Rules [C.R.C., c. 663] as disclosing no reasonable cause of action within the jurisdiction of this Court.
The defendants alleged that the complaint of the plaintiffs as outlined in the statement of claim sounded in tort, and that without a specific assign ment of jurisdiction to this Court in either the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], or any other federal enactment, the plaintiffs' claims could not be entertained by this Court. The plaintiffs strongly resisted the motion, arguing principally that the relief that they sought was founded in two federal statutes and that this Court had jurisdiction to issue an injunction to restrain a continuing breach of these statutes. The plaintiffs' counsel indicated that the claim for damages in the statement of claim was merely ancillary to the main claim for an injunction.
As I stated in Court, I am of the opinion that the defendants are correct, and the statement of claim has been struck pursuant to my order of May 10, 1988. As counsel appearing before me spent considerable time and effort in preparing and arguing their clients' cases, I indicated that I would deliver written reasons to explain how I arrived at my conclusion.
In order to fully appreciate the positions of the parties it is necessary to briefly review the state ment of claim, and the facts of this case. I am of course mindful that for the purposes of this motion, all the facts in the statement of claim shall be taken to be true as pleaded.
The plaintiffs in this action are Canada Post Corporation, a Crown Corporation established under the Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54, and four non-unionized employees of Canada Post Corporation ("Canada Post").
The defendants are two trade unions represent ing some of Canada Post's employees, namely The Canadian Union of Postal Workers (cupw) and The Letter Carriers' Union of Canada (Lcuc); the Canadian Labour Congress (cLc), an organization of trade unions with which cupw and LCUC are affiliated, and Mediacom and Union Communica tions, the agents of cupw and Lcuc for the pur poses of the advertising campaign. cupw and LCUC are both trade unions certified as bargaining agents in respect of different bargaining units of Canada Post employees under section 136 of the Canada Labour Code [R.S.C. 1970, c. L-2 (as am. by S.C. 1972, c. 18, s. 1)].
The plaintiffs allege that some 21,000 Canada Post employees are represented by unions other than CUPW or LCUC for collective bargaining pur poses, and 3,500 of this number, like the individual plaintiffs, are not represented by any union at all.
In April 1988, advertisements started to appear in newspapers, on billboards and radio across the country which appeared to criticize the state of the mail service under the Mulroney Government, and in some cases expressed a lack of confidence in the leadership of the Prime Minister. The advertise ments for the most part contained statements such as "CANADA POST, IT CAN DELIVER", "A MES SAGE FROM THE PEOPLE WHO MOVE YOUR MAIL. YOUR CANADA POST EMPLOYEES" or in the French version, "JE VEUX UN GOUVERNEMENT AUQUEL JE PUISSE FAIRE CONFIANCE. BRIAN MUL- RONEY? NON, JAMAIS! UN MESSAGE DES GENS QUI S'OCCUPENT DE VOTRE COURRIER: LES EMPLOYÉS SYNDIQUÉS DE POSTES CANADA". It was admitted that these advertisements originated with CUPW, LCUC and cLc and not with the plaintiff, Canada Post.
The plaintiffs allege that these advertisements are false and misleading in that they do not repre sent the sentiments of either the plaintiffs or all
the employees of Canada Post. At best, they allege, the advertisements only represent the views of some of the leaders of the defendant Unions. The plaintiffs allege that the individual employees of Canada Post have not given any mandate, express or implied to the defendant Unions to represent them in the political sphere, especially the 21,000 employees who are not even members of these Unions.
To appreciate the consequences in law which the plaintiffs allege flow from these facts, it is neces sary to reproduce in full paragraphs 18 to 30 of the statement of claim:
18. As appears from the Act, the use of the words "Canada Post" is restricted to Canada Post Corporation and it is an offence to place the words "Canada Post" on anything without the written consent of the Corporation;
19. Canada Post has never consented to the use of its name on any of the advertisements referred to;
20. The Defendants Mediacom and Union Communications have participated in the mischief outlined above in allow ing messages to be publicized that they knew or should have known were factually untrue and are at best propa ganda, and, more particularly, in allowing advertisements to be seen and heard which purportedly represent the political views of the Plaintiff Canada Post and/or the employees of Canada Post rather than the political views of the Defendants C.u.P.w., L.C.U.C. or the C.L.C.:
21. Under the Canada Labour Code, all employees in the bargaining units represented by the Defendants C.u.P.w. and L.c.u.c. are obliged to be represented by those organi zations for collective bargaining purposes, whether they wish it or not, and are thus deprived of the right to bargain individually. However, they are deprived of none of their individual political rights, nor can these be usurped by the Defendants C.U.P.W., L.c.u.C. or C.L.c.;
22. The Defendants C.u.P.w. and L.c.u.c. purport, in the purely political advertising referred to in paragraphs 6 to 15 hereof, to represent the political views of all the employees of the Plaintiff Canada Post not merely those whom they represent for purposes of collective bargaining;
23. The Defendants C.u.P.w. and L.c.u.c. have abrogated the fundamental freedom of expression and freedom of con science of the individual employees of the Plaintiff Canada Post in purporting to speak politically in their names, a right that the Defendants do not and cannot constitutional ly have without a specific individual mandate to that effect from each individual employee whom they purport to represent politically;
24. The texts used in the advertising campaign are likely to mislead, have misled and will mislead members of the public into believing that the said texts represent the views
of the Plaintiff Canada Post and/or of the Plaintiff Canada Post's employees;
25. It is submitted that the Plaintiff Canada Post has suffered, is suffering and will continue to suffer damage to its reputation from an imputation of a course of conduct on the part of its employees which is incompatible with their duties as employees of a Crown Corporation;
26. The misrepresentation in the advertisement that the mes sage comes from the Plaintiff Canada Post and/or the employees of Canada Post causes serious and irreparable prejudice to the Corporation and is fundamentally detri mental to the Corporation and is fundamentally detrimen tal to the Corporation's role of providing postal service to all Canadians, and its own freedom of speech. The Defen dants are not entitled to use the names of Canada Post Corporation or of Canada Post Corporation employees to embarass the Corporation both politically and in the public eye;
27. It is submitted that in view of the facts set out in paragraphs 1 to 20 hereof, the action of the Defendants c.u.P.w. and L.c.u.c. constitutes an abuse of the right conferred upon them by the CanadaLabour Code and the Act to represent certain employees of the Plaintiff Canada Post for collective bargaining purposes;
28. It is further submitted that the Plaintiffs suffer prejudice in that the advertisements misrepresent the political posi tion of the employees of the Plaintiff Canada Post;
29. The Defendants c.u.P.w. and L.c.u.c. in the newspaper, billboard and radio advertisements are representing that the employees on whose behalf these Defendants are pur porting to act are in breach of the fundamental duty of loyalty called for by their employment and are engaged in a course of conduct incompatible with their duties as employees of a Crown Corporation;
30. It is further submitted that no effective remedy exists other than by way of injunction for the wrongs suffered and being suffered and damages incurred and being incurred by the Plaintiffs as set out in paragraphs 20 to 28 hereof;
At first blush, from the manner in which this pleading is drafted, one could conclude that the remedy sought by the plaintiffs was in respect of something akin to defamation with an appropriate relief in damages. The plaintiffs naturally enough vehemently denied this proposition and chose to characterize their action very differently.
In fact, the corporate plaintiff alleges that the relief sought is based on their right to the exclusive use of the name "Canada Post" accorded to the Corporation under the Canada Post Corporation Act; as well as the abuses committed by the defendant Unions of their rights and obligations under the Canada Labour Code. On behalf of the individual plaintiffs it is alleged that they are
harmed by the actions of the defendant Unions acting in breach of the Canada Labour Code, and more seriously that the fundamental freedoms of these individuals under the Canadian Charter of Rights and Freedoms being Part I of the Consti tution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] have been abrogated.
In sum, it must be determined whether the matters alleged by the plaintiffs fall under the Canada Labour Code, the Canada Post, Corpora tion Act and the Canadian Charter of Rights and Freedoms, or under tort law. The latter action, presumably being something akin to defamation, could only be brought in the courts of the prov inces, something which counsel for the plaintiffs did not seriously contest.
A solution must be found by a characterization of the causes of action asserted by the plaintiffs and an analysis of them in the light of the jurispru dence relating to the jurisdiction of this Court.
I would like to say, at the outset, that the problem of the jurisdiction of the Federal Court is not principally a constitutional law problem requiring a determination of competing provincial and federal interests for its resolution. Regardless of one's personal vision of the possible role of a Federal Court as providing a cross-Canada forum, it must be remembered that this Court, as current ly constituted, is a statutory one, and the condi tions under which a matter falls within its jurisdic tion must be strictly construed within the terms of its founding statute, and any other enactment in which jurisdiction is assigned to it.
Once this threshold requirement is met, a closer examination of the cause of action before the Court may reveal that the federal government, in legislating with respect to the particular subject- matter at hand, has acted beyond its constitutional mandate pursuant to the separation of powers in the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)]. This is
however a different question, and not one which arises from the case before me.
It must also be emphasized that the jurisdiction of the Federal Court is not as broad as the sphere of legislative competence of the federal govern ment. Failure to distinguish between the two can lead to an assumption of jurisdiction by this Court, where no jurisdiction exists.
The major source of this Court's jurisdiction is
of course the Federal Court Act. As the Court of Appeal noted in its recent decision, Varnam v. Canada (Minister of National Health and Wel fare), [1988] 2 F.C. 454, the language of the Act is very precise, and, especially in matters between party and party, the Court does not have jurisdic tion unless a grant thereof is specifically made.
The stringent requirements to be met are ref lected in the Varnam case (supra); the Court held that the jurisdiction of the Federal Court cannot be extended based on the convenience of the par ties. The Court stated at page 463 of the decision:
I indicated earlier that it was with regret that I had conclud ed that Marshall was wrongly decided. That regret does not flow from any desire to expand this Court's jurisdiction. Rather it has its source in a concern for the unenviable situation of the litigant who may, in some circumstances, find himself obliged to sue in two courts. That concern was well expressed by Reed J. in Marshall. It was most eloquently stated by Collier J. in Pacific Western Airlines, supra, where he described the situa tion [at page 490] as "lamentable". For my part however, while sharing those views, I can only echo the words of the Chief Justice in Saltfish, supra [at page 513]:
... the convenience or advantage, if any, to be obtained is not a reason for extending the jurisdiction of the Court beyond its statutory limits.
Furthermore, the Court held that the fact that matters otherwise outside the Court's jurisdiction may be causally intertwined with issues properly before the Federal Court, does not warrant an extension of jurisdiction. Under the same reason ing, it has also been held that in the case of multiple parties and multiple causes of action it is essential that each party and cause of action be independently within the jurisdiction of the Court (Aida Enterprises Ltd. v. R., [1978] 2 F.C. 106 (T.D.); R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695).
The most recent Supreme Court of Canada decision on the question of the Federal Court's jurisdiction is that of ITO—International Termi nal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752. Mr. Justice McIntyre held, at page 766 of the judgment, that a matter is properly brought before the Federal Court where the following three conditions are met:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be a "law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867.
I intend to deal with each of the three ITO requirements in turn, and in so doing, review the authorities on which the parties relied in support of their clients' respective positions.
1. There must be a statutory grant of jurisdiction by the federal Parliament
This requirement is satisfied if there is jurisdic tion given to the Federal Court either in the Federal Court Act, or in some other federal enactment.
The sections of the Federal Court Act on which the plaintiffs relied in their factum were sections 17 and 23, although in oral argument, counsel for the plaintiffs conceded that only section 23 could give this Court jurisdiction. There is no question that subsections 17(1) to (3) are of no assistance as they speak only to instances where relief is sought against the Crown.
Subsection 17(4) reads:
17....
(4) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of his duties as an officer or servant of the Crown.
In Rasmussen v. Breau, [[1986] 2 F.C. 500] (the Saltfish case), the Federal Court of Appeal held that section 17 of the Federal Court Act only refers to actions against the Crown eo nomine and
that the section did not include an action by or against a Crown agency such as the Canadian Saltfish Corporation. None of the defendants are Crown officers or servants, and in my view, section 17 does not therefore give jurisdiction to this Court.
Section 23 reads:
23. The Trial Division has concurrent original jurisdiction as well between subject and subject as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of the Parliament of Canada or otherwise in relation to any matter coming within any following class of subjects, namely bills of exchange and promissory notes where the Crown is a party to the proceedings, aeronautics, and works and undertak ings connecting a province with any other province or extending beyond the limits of a province, except to the extent that jurisdiction has been otherwise specially assigned.
The import of section 23 was explored in the case of Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575 (C.A.), where the Court allowed the bringing of an action with respect to the loss of some goods carried by the defendant, only because the rights and obligations of the parties under the contract of carriage fell to be determined under the Carriage by Air Act [R.S.C. 1970, c. C-14], a statutory re-enactment of the Hague Rules. Mr. Justice Pratte stated, at page 577 of his judgment:
Under that section [23], two conditions must be met in order for a claim to be within the jurisdiction of the Court:
(1) the claim must be made "under an Act of the Parliament of Canada or otherwise"; and
(2) it must relate to a matter coming within any of the classes of subjects specified in the latter part of the section.
Therefore, the cause of action on which the plaintiffs are relying must come under one of the enumerated heads, i.e. the remedy must relate to a matter coming within "works and undertakings connecting a province with any other province or extending beyond the limits of a province". Can the mere fact that a complaint is made against a union representing some workers on a federal undertaking be considered sufficient to give juris diction to the Federal Court? I do not think it can, unless the remedy claimed by the plaintiffs is contemplated in a federal statute such as the Canada Post Corporation Act or the Canada Labour Code the two federal enactments upon which the plaintiffs rely.
My preliminary review of the Canada Post Cor poration Act and the Canada Labour Code do not reveal an express grant of jurisdiction. In fact, subsection 22(5) of the former statute specifically provides that the Corporation may sue or be sued in the Court that has jurisdiction over the subject- matter of the suit. The section reads:
22....
(5) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Corporation on behalf of Her Majesty, whether in its name or in the name of Her Majesty, may be brought or taken by or against the Corporation in the name of the Corporation in any court that would have jurisdiction if the Corporation were not an agent of Her Majesty.
As to the Canada Labour Code, jurisdiction is specifically assigned to the Canada Labour Rela tions Board in respect of a number of matters addressed in the Code. Even if the matter relates to one of the areas that is listed in section 23, jurisdiction is lost if it is specifically assigned to another tribunal.
The plaintiffs cannot hence claim an express statutory assignment of jurisdiction to the Federal Court unless it is clear that the plaintiffs' cause of action comes under either of these statutes or is part of the federal common law dealing with a work or undertaking described in section 23.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction
Even where there is a general assignment of jurisdiction to the Federal Court which might encompass the relief sought by the plaintiffs, the second requirement of the ITO test must still be satisfied. There must be a specific federal enact ment expressly dealing with the subject in issue, and federal competence without legislative action is not sufficient e.g. Quebec North Shore Paper Co. et al. v. Canadian Pacific Ltd. et al., [1977] 2 S.C.R. 1054; McNamara Construction (Western) Ltd. et al. v. The Queen, [1977] 2 S.C.R. 654. As Chief Justice Laskin stated, at page 1057 of the Quebec North Shore case:
Section 23 must be assessed initially under the terms of s. 101 of the British North America Act because it is that provision which alone authorizes the Parliament of Canada to establish Courts of original and appellate jurisdiction in addi tion to authorizing the establishment of this Court. Section 101 reads as follows:
101. The Parliament of Canada may, notwithstanding any thing in this Act, from Time to Time, provide for the Constitu tion, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any addition al Courts for the better Administration of the Laws of Canada.
The relevant words, for the purposes of the present case, are "administration of the laws of Canada". When s. 23 of the Federal Court Act speaks of a claim for relief or a remedy "under an Act of the Parliament of Canada or otherwise", it cannot be given a construction that would take it beyond the scope of the expression "administration of the laws of Canada" in s. 101.
Chief Justice Laskin continued, at pages 1065- 1066 of the decision:
It is also well to note that s. 101 does not speak of the establishment of Courts in respect of matters within federal legislative competence but of Courts "for the better administra tion of the laws of Canada". The word "administration" is as telling as the plural words "laws", and they carry, in my opinion, the requirement that there be applicable and existing federal law, whether under statute or regulation or common law, as in the case of the Crown, upon which the jurisdiction of the Federal Court can be exercised. Section 23 requires that the claim for relief be sought under such law.
In my view, most of the jurisprudence cited by both counsel illustrates the principles laid out in the Quebec North Shore case at work, and serves to introduce important modifications which do not however constitute an extension of the jurisdiction of this Court. I understand for example that the case need not solely concern a federal statute e.g. Bensol Customs Brokers Ltd. v. Air Canada, [1979] 2 F.C. 575 (C.A.), where the common law principle of subrogation was employed in a case where a contract governed by the Carriage by Air Act was under dispute. However, the rights and obligations of the parties must be founded on federal law, and owe their existence to the legisla tive enactment under consideration e.g. Rhine v. The Queen; Prytula v. The Queen, [ 1980] 2 S.C.R. 442, a duo of cases in which actions on a debt under the Prairie Grain Advance Payments Act [R.S.C. 1970, c. P-18] and the Canada Stu dent Loans Act [R.S.C. 1970, c. S-17] were found to be within the jurisdiction of the Federal Court.
Once an examination of the question is under taken of whether or not the action before the Court is one which relates to a better administra tion of the laws of Canada, in my view, the issue becomes very clear. I therefore must review the claims of the plaintiffs in the light of this consideration.
Where do the rights and obligations of the parties arise in this case? The plaintiffs argue that as the defendant Unions are certified as bargain ing agents under the Canada Labour Code, all their rights and obligations fall to be determined under the statute and that this vests the Court with jurisdiction over every activity in which the Unions engage. I do not think that this is an accurate reflection of the situation of the defendant Unions, because in my view, the jurisdiction of the Court must arise out of the provisions of the Canada Labour Code itself, and not through the legal character of the unions.
The Code has a clearly defined area of applica tion. If any problems arise out of the collective agreement between the corporate plaintiff and the Unions, then I have no doubt that they fall to be determined under the Canada Labour Code. The Code has in itself a complete scheme for dealing with such a dispute, and the matter must be determined by the Canada Labour Relations Board. If either the union, the union members or the employer feels that any party has breached any of the prohibitions laid out in sections 184 [as enacted by S.C. 1972, c. 18, s. 1] or 185 [as enacted idem] of the Code, the remedy is to lay a complaint with the Board. If the obligations fall outside the Code and yet are still a problem of labour relations, the Supreme Court of Canada has indicated that the parties must rely on the common law to determine their respective rights and obligations (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573).
As an important aside, I note that in the Dol phin Delivery case, the appellant Unions were also federally certified bargaining agents under the Canada Labour Code, and the matter came to the Supreme Court of Canada from the British Columbia Court of Appeal. Contrary to the argu ment made by the plaintiffs, the Union thus certi-
fied suffered no disability in appearing before the provincial Courts.
The plaintiffs have attempted to characterize the defendant Unions' actions as a breach of the Unions' obligations under the Canada Labour Code and hence a matter within the sphere of federal labour relations. Despite the recitation of the Code, the plaintiffs were not able to point to any specific section in the Code or any single authority that would suggest that the matter before me was a question of labour relations in the Post Office. There is no doubt that as between a union and its members all manner of enforceable obligations arise, however none of the plaintiffs were members of the defendant unions. I cannot however accept that in these circumstances that the Corporation can come into this Court purport ing to speak for the membership of curve and Lcuc, and claim that there is a labour relations matter to be adjudicated.
The Canada Labour Code does not provide any civil cause of action in the manner in which this action is framed. The question is not whether the defendant Unions have improperly attempted to represent the individual plaintiffs in labour rela tions but rather that the defendants have falsely attributed untrue statements to the plaintiffs and have thereby caused them harm; these allegations clearly sound in tort, terms such as mischief appear in the statement of claim and these are not matters which fall to be determined under any federal statute, or are nourished thereby. The mere recitation of a federal statute does not meet the second requirement of ITO.
The plaintiffs have also alleged a civil cause of action based on a provision of the Canada Post Corporation Act which reads as follows:
52....
(2) Every person commits an offence who, without the written consent of the Corporation, places on any thing any word or mark suggesting that the thing:
a) has been duly authorized or approved by the Corporation;
b) is used in the business of the Corporation; or
c) is of a kind similar or identical to any thing used in the business of the Corporation.
Section 54 of the Act states:
54. Every person who contravenes any provision of this Act or the regulations or who commits an offence under any of sections 42 to 53
(a) is guilty of an indictable offence and is liable to imprison ment for five years; or
(b) is guilty of an offence punishable on summary conviction.
Section 55 further refers to evidence which may be called in any prosecution based on section 58.
In my view, these sections describe a quasi- criminal offence which exists solely to prevent persons from holding themselves out as agents of Canada Post by using the name "Canada Post" or "Post Office". I cannot accept the assertion of the plaintiffs that these sections of a purely punitive nature are a sound basis for the Court to extend its jurisdiction and hear the plaintiffs' civil suit with no clear grant of jurisdiction.
Is it open to me to presume that these sections enacted by Parliament contemplated both criminal prosecution and civil proceedings with respect to the activity prohibited in the sections of the Act cited above? Furthermore, can I find that a civil suit can be sustained under these sections and intertwine the reach of such activity and find within it a broader meaning than can be found in the express provisions of the Act? I suggest that the plaintiff is asking me to adopt an interpreta tion that the wording of the Act does not bear. As I see it, these sections are included in the Act for the purpose of prohibiting third parties from deceiving the public into thinking that mail deliv ery has been entrusted to entities other than Canada Post. How can I be persuaded to extend even further the meaning of these sections, not only to create a civil action, but to interpret them to include the prohibition of political propaganda? I do not believe that I can. The only relief contem plated by Parliament in the enactment of this provision is the laying of informations, and pros ecution in the Provincial Courts.
Counsel for the defendants directed my atten tion to the case of Mid West Television Ltd. v.
S.E.D. Systems Inc., [1981] 3 W.W.R. 560 (Sask. Q.B.). Mr. Justice Noble made it clear that in his view, where the Broadcasting Act [R.S.C. 1970, c. B-11] provided for the criminal offence, of broad casting without a licence, no civil cause of action was thereby created in favour of anyone injured by the breach.
I would also like to add that in my opinion, the case of R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 clearly illus trates that there is no nominate tort based on the breach of a statutory provision alone, but rather that a cause of action must exist separate and apart under the law of tort. Without some indica tion in the Canada Labour Code or the Canada Post Corporation Act that such an action was contemplated in the statute, the breach of any provision of the Acts cannot be presumed to lead to a civil cause of action for the plaintiffs. Further more, in my view, the only underlying tort which could possibly exist in this case is that of defama tion, or something comparable in the Quebec Civil Code [Civil Code of Lower Canada], which cannot be viewed by this Court as necessary to the better administration of the Canada Post Corporation Act.
Counsel for the plaintiffs further argues that section 13 of the Canada Post Corporation Act which allows Canada Post to engage employees for the purpose of carrying out the Corporation's busi ness, brings this matter under Federal Court juris diction. None of the defendants are in fact employees of Canada Post, and I fail to see how this section avails the plaintiffs. This argument was part of counsel's overall submission that as the corporate plaintiff is charged with the operation of the Post Office under a federal enactment, that anything that it does falls under the ambit of this statute and into the jurisdiction of the Federal Court. This may be true to some extent, but where the matter in issue is based on the publication of statements that the plaintiffs feel are false or misleading and harmful to their reputation and are being wrongfully attributed to them due to the prohibited, use of the name "Canada Post", the matter is far removed from the question of the
orderly movement of mail, which is the Corpora tion's major responsibility.
Finally, the plaintiffs allege that the defendant Unions have abrogated the freedoms of association and expression enjoyed by the plaintiffs under paragraphs 2(b) and (d) of the Canadian Charter of Rights and Freedoms. I can find no fault with the plaintiffs' submission that these freedoms include the right not to associate, or to remain silent on any particular issue. I do not however agree with his conception of the application of the Charter to his case.
In an argument which I can only characterize as extraordinary, counsel for the plaintiffs alleged that the reason why the individual plaintiffs enjoy the protection of the Charter is that they are employed by a Crown Corporation. In my view, this argument is absolutely not tenable. The Charter protections exist to provide a safeguard for the rights of the individual against abrogation by the state and its emanations. The Charter obligations arise based on the character of the party in breach of these obligations, and not on the character of the victim.
In order to show that the Charter applies, the plaintiffs must first illustrate that the Unions are in fact bodies who could owe a duty to the plain tiffs under the Charter. No facts have been plead ed which would allow me to conclude that this is a situation as occurred in the case of Lavigne and Ontario Public Service Employees Union et al., Re (1986), 55 O.R. (2d) 449 (H.C.), where such a duty was found. Absent any lien [link] between the state and the victim such as in Lavigne (where a government emanation had approbated a "man- datory check-off' clause in a collective agreement which governed the terms of employment of Mr. Lavigne), the Charter has no application in what must be viewed as a dispute between private par ties. (See also Re Ontario English Catholic Teachers Association et al. and Essex County Roman Catholic School Board (1987), 58 O.R. (2d) 545 (Div. Ct.).)
The mere fact that the defendant Unions are certified under the Canada Labour Code in respect
of bargaining units other than the one to which the individual plaintiffs belong, does not make this a Charter issue.
Even if the plaintiffs were able to meet this threshold test, it has been held that the Charter is not "existing and applicable federal law", as it is not an enactment of the federal government (Northern Telecom Canada Ltd. et al. v. Com munication Workers of Canada et al., [1983] 1 S.C.R. 733). Therefore, a bare declaration of inva lidity of a federal statute, when not allied to another cause of action cannot be issued by the Federal Court. After the comments made by coun sel for the plaintiffs during argument with respect to the application of the Charter, I feel that it is necessary to add, if any doubt exists, that the Federal Court will not hesitate to give full force and effect to the Charter rights of litigants when it has the jurisdiction to do so.
Counsel for the plaintiffs also appeared to feel that my analysis of this matter indicated a doubt as to the power of the Federal Court to issue an injunction. Its power to do so is beyond question, but only where the Court is seized with the adjudi cation of a matter within its jurisdiction. Section 3 of the Federal Court Act clearly does not counte nance the issuance of an injunction in vacuo; injunctive relief is an adjunct to the power of the Court to dispose of a matter within its jurisdiction (National Association of Broadcast Employees and Technicians v. R., [1980] 1 F.C. 820 (C.A.)).
In summary, this matter does not fall to be determined under either the Canada Post Corpo ration Act or the Canada Labour Code, the latter statutes do not govern the relationship between the parties with respect to the claims alleged. The plaintiffs are not attempting to enforce the provi sions of any federal enactment, they are attempt ing to mount a civil action in a Court which does not have jurisdiction to hear the matter.
For these reasons, I therefore find that the statement of claim does not disclose any cause of action that is within the jurisdiction of this Court, on behalf of either the corporate plaintiff Canada
Post Corporation or the individual plaintiffs. The statement of claim must therefore be struck in its entirety pursuant to Rule 419(1)(a) of the Federal Court Rules...
The defendants cupw and Union Communica tions are entitled to their costs.
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