T-803-75
International Brotherhood of Electrical Workers,
Local Union, No. 529 (Applicant)
v.
Central Broadcasting Company Ltd. (Respondent)
Trial Division, Cattanach J.—Saskatoon, Septem-
ber 8 and 9; Ottawa, September 29, 1976.
Practice—Motion seeking enforcement of order of Canada
Labour Relations Board pursuant to s. 123 of Canada Labour
Code—Whether application supported by adequate affidavit
evidence—Whether viva voce evidence permissible—Whether
Board's order properly filed and sufficiently precise to be
enforceable—Canada Labour Code, R.S.C. 1970, c. L-1 as
amended, ss. 122, 123, 184 and 189—Supreme Court Act, s.
53—Supreme Court Rules, 41 and 42—Federal Court Act, s.
28—Federal Court Rules, 319, 332(5), 337, 1903, 1904 and
1905(4).
Applicant seeks to have the Canada Labour Relations Board
order filed and registered nunc pro tunc with the Federal Court
pursuant to section 123 of the Canada Labour Code, if it
appears necessary due to the fact that a previous registration
and filing of the order was a nullity. Applicant further seeks to
have the employees referred to in the Board's order reinstated
and requests leave: to issue a writ of sequestration against the
property of the respondent and its president, to have an order of
committal against the respondent's president and to be allowed
to call witnesses at the hearing of this motion. Applicant
further objects to respondent's objections being heard.
Respondent claims, inter alia that there has been no failure on
its part to comply with the Board's order.
Held, the motion is dismissed in its entirety. (1) The filing
and registration of the order of the Board, not questioned
previously, is a nullity. (2) The application to have the order
filed now is denied because there is insufficient evidence that
the order has not been complied with and the respondents have
not been given the opportunity to make their full answer and
defence. (3) The application that the Court should amend the
order of the Board by fixing a time within which it should be
complied with is denied in view of the restrictions imposed by
section 122(2) of the Canada Labour Code. (4) Leave to issue
a writ of sequestration and an order for the committal of the
respondent's president are denied because there is no order of
the Board filed and registered as an order of this Court to
enforce; the order is in any event conditional and the conditions
have not been fulfilled and the order is so inexplicit in other
respects that it cannot be determined what has been ordered or
whether there has been a failure to comply. (5) The applicant
should have supported his notice of motion with affidavits
disclosing all the relevant facts. (6) The copy of the order
served on the respondent and its president was not endorsed as
required by Rule 1905(4).
Public Service Alliance of Canada v. Canadian Broad
casting Corporation [1976] 2 F.C. 151; Jackson v. Fish-
er's Foils Ltd. [1944] 1 All E.R. 421 and Iberian Trust,
Limited v. Founders Trust and Investment Company,
Limited [1932] 2 K.B. 87, applied.
APPLICATION.
COUNSEL:
D. K. MacPherson, Q.C., for applicant.
G. Taylor, Q.C., for respondent.
SOLICITORS:
MacPherson, Leslie & Tyerman, Regina, for
applicant.
Goldenberg, Taylor & Tallis, Saskatoon, for
respondent.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is a motion by the appli
cant seeking orders set forth in the notice of
motion, or such of them as to this Court may seem
just.
The relief sought can best be exemplified by
reproduction of the body of the notice of motion
which reads:
1. THAT the Order of the Canada Labour Relations Board
dated the 19th day of February, 1975, whereby the said Board
in the matter of a Complaint by the Applicant, ordered the
Respondent, Central Broadcasting Company Ltd., to reinstate
in its employment the following employees, namely:
[Here follow the names of 21 employees which I have not
reproduced.]
as in the said order more particularly set forth, and which said
order was filed and registered in this Honourable Court on the
12th day of March, 1975, be filed and registered with this
Honourable Court pursuant to this application, if the same be
so required;
2. Requiring the Respondents to reinstate in the employment
of the Respondent, Central Broadcasting Company Ltd., in the
same positions they occupied prior to their dismissals on
December 2, 1974, at the same rate of pay, with the same
privileges, and with any additional pay or privileges which
would have been accrued to them had they not been dismissed,
the employees ordered to be so reinstated by an Order of the
Canada Labour Relations Board dated the 19th day of Febru-
ary, 1975, on or before such date as to this Honourable Court
shall appear just;
3. Granting leave to the Applicant to issue a Writ of Seques
tration against the property of the Respondent, Central Broad
casting Company Ltd., and the Respondent, Edward Arthur
Rawlinson, President of the Respondent, Central Broadcasting
Company Ltd.;
4. Granting leave to the Applicant for an order of committal
against the Respondent, Edward Arthur Rawlinson, President
of the Respondent, Central Broadcasting Company Ltd.;
5. Granting leave that witnesses be called to testify in open
court with respect to the relief sought in this matter;
6. Such further and other order or relief as the nature of the
case may require, and this Honourable Court allow;
7. Costs.
It is also expedient to reproduce the body of the
order of the Canada Labour Relations Board
dated February 19, 1975. The names of the 21
employees in this order coincide with those set
forth in the notice of motion.
WHEREAS the Canada Labour Relations Board has received
a complaint of unfair labour practices laid by the complainant
on behalf of a group of employees pursuant to Section 187(1)
of the Canada Labour Code (Part V—Industrial Relations)
against the Employer, Central Broadcasting Company Limited,
for alleged violations of the provisions of Section 184(3)(a)(i)
of the Code;
AND WHEREAS the Board, following investigation and the
holding of a hearing, found that the employees were dismissed
by the Employer in violation of the provisions of Section
184(3)(a)(i) of the Code, except for Gerry Georget, Janice
Primeau and Don Hayduk whose complaints were rejected;
NOW THEREFORE, the Canada Labour Relations Board pur
suant to Section 189 of the Canada Labour Code orders that
the Employer, Central Broadcasting Company Limited, comply
with the provisions of Section 184 of the Code and more
particularly that
(i) under Section 189(b)(i) the Employer reinstate the
employees listed hereunder in the same positions they
occupied prior to their dismissals on December 2, 1974, at
the same rate of pay, with the same privileges, and with any
additional pay or privileges which would have accrued to
them had they not been dismissed; and
(ii) under Section 189(b)(ii) the Employer pay to former
employees listed hereunder as compensation a sum of money
equivalent to the remuneration that would, but for the failure
of the Employer to comply with the provisions of Section
184, have been paid to them from December 9, 1974, to the
date of reinstatement.
The employees reinstated are:
[Again the names of the 21 employees are not reproduced.]
The Board further rules that said compensation to be paid to
the complainants as above listed will not be dealt with as to
quantum by the Board but should obviously be less any pay
ment in lieu of notice made at the time of the dismissal and less
any other deductions which are normally required by law or
otherwise arise out of employment with this Employer.
The Board reserves the right to adjudicate on the quantum in
case of failure of the parties to come to an agreement upon one
or both parties making a further application to the Board to
that effect.
ISSUED at Ottawa this 19th day of February 1975, by the
Canada Labour Relations Board.
This order of the Canada Labour Relations
Board was filed and registered in the Saskatoon
Registry Office of this Court on March 12, 1975. I
have no doubt that such order was presented uni
laterally for filing on behalf of the applicant herein
pursuant to section 123 of the Canada Labour
Code (R.S.C. 1970, c. L-1, as amended by S.C.
1972, c. 18).
Section 123 reads:
123. (1) Where a person, employer, employers' organiza
tion, trade union, council of trade unions or employee has failed
to comply with any order or decision of the Board, any person
or organization affected thereby may, after fourteen days from
the date on which the order or decision is made or the date
provided in it for compliance, whichever is the later date, file in
the Federal Court of Canada a copy of the order or decision,
exclusive of the reasons therefor.
(2) On filing in the Federal Court of Canada under subsec
tion (1), an order or decision of the Board shall be registered in
the Court and, when registered, has the same force and effect,
and, subject to section 28 of the Federal Court Act, all proceed
ings may be taken thereon as if the order or decision were a
judgment obtained in that Court.
The legislative intent is abundantly clear in
subsection (2) of section 123. It is that when an
order of the Board has been registered it shall have
the same force and effect as if the order of the
Board had been an order of this Court for purposes
of enforcement and that all processes available for
the enforcement of an order of this Court are
equally available for the enforcement of an order
of the Board when it has been registered as con
templated by the section.
Section 123 is ranged with section 122 under the
heading "Review and Enforcement of Orders". In
my view a heading such as this is not to be treated
as if it were a marginal note or merely for the
purpose of classifying the enactments. In my opin
ion it constitutes an important part of the statute
itself and may be read, not only as explaining the
sections which follow, as a preamble may be read,
but as a better key to the construction of the
sections which follow than might be afforded by a
mere preamble.
It is for this reason added to the language of the
section that I conclude that section 123(2) was
inserted in the statute for the purpose of providing
for the enforcing of orders of the Board by the
processes of this Court, no similar means being
provided in the Canada Labour Code for the
Board to enforce its orders. That is the obligation
thrust upon this Court by section 123(2). That
being so, the orders of the Board must be cast in
the precise language as are orders of the judges of
this Court and must be so framed as to be capable
of enforcement by the normal processes of this
Court.
In Public Service Alliance of Canada v.
Canadian Broadcasting Corporation' my brother
Walsh granted a petition to strike out the registra
tion of an arbitration award purporting to be
registered with this Court under section 159 of the
Canada Labour Code.
Except for minor differences in the language in
section 123 and section 159 dictated by the neces
sity of the subject matter (as, for example, in each
subsection (2) of the sections the use of the words
"of an arbitrator or arbitration board" in section
159, and the use of the words "of the Board" in
section 123) the language in each section is identi
cal. That being so, the decision of Mr. Justice
Walsh is an equally authoritative interpretation of
section 123 as it is of section 159.
Mr. Justice Walsh held that for the registration
of an order to be valid it must be registered
pursuant to a notice of motion served on the
opposite party and supported by affidavits estab
lishing the condition precedent in subsection (1) of
section 159 that the decision or order has not been
complied with and the adverse party has been
afforded the opportunity to file affidavits in reply.
This was not done and accordingly Walsh J. struck
the registration as invalid.
It was this decision which inspired the relief
sought in paragraph 1 of the notice of motion that
the order of the Board dated February 19, 1975,
filed and registered on March 12, 1975, should be
registered pursuant to the request in the present
notice of motion. Further, counsel for the appli
cant orally supplemented the request in the notice
with the request that the order be registered nunc
pro tunc, that is, with retrospective effect to
March 12, 1975.
' [1976] 2 F.C. 151.
The cause from which this motion ensues has
been the subject of litigation.
Following the issuance of the order of the Board
on February 19, 1975, Central Broadcasting Com
pany Ltd., the respondent herein, on February 21,
1975, applied under section 28 of the Federal
Court Act to the Appeal Division to review and set
aside the order of the Board.
On March 5, 1975, the respondent herein moved
for a stay of any proceedings for the enforcement
of the order of the Board.
On March 17, 1975, the Chief Justice, after
first transferring the application on March 13,
1975, to the Trial Division where jurisdiction lay 2 ,
in his capacity as an ex officio judge of the Trial
Division granted an order staying the proceedings
on the undertaking of the respondent herein to pay
to the 21 persons named in the order of the Board
the salaries and other benefits on the same basis as
were being paid to them immediately before the
termination of their employment on December 2,
1974 (except that none of the employees shall
attend at the place of employment or otherwise
carry on the duties of the position in which the
employee was reinstated by the order of the Board
unless requested to do so by the respondent
herein), from the period commencing on March
14, 1975, and ending when the Federal Court of
Appeal disposes of the section 28 application in
respect of the order of the Board. It was further
provided in the undertaking that an employee
would not be entitled to payment by the respond
ent herein in respect of any period during which
the employee was employed by a person other than
the respondent herein.
The application under section 28 of the Federal
Court Act was dismissed by the Court of Appeal
on May 14, 1975 3 .
On that same day the respondent applied for
continuation of the stay of proceedings. Mr. Jus
tice Pratte granted that order on that day subject
to the continuation of the undertaking above men
tioned and, for the material purpose of this motion,
until an appeal from the decision of the Court of
2 [1975] F.C. 310.
3 [1975] F.C. 314.
Appeal to the Supreme Court of Canada was
disposed of by the Supreme Court of Canada.
The Court of Appeal refused leave to appeal but
leave to appeal was granted on application to the
Supreme Court of Canada.
On June 29, 1976, Mr. Justice de Grandpré
delivered the unanimous decision of the Supreme
Court dismissing the appeal.
Since, in accordance with the order of Mr.
Justice Pratte, the stay of execution terminated on
the disposition of the matter by the Supreme
Court of Canada, I accordingly inquired of counsel
as to when the judgment of the Supreme Court
was certified by the Registrar to the appropriate
officer of the court of original jurisdiction in
accordance with section 53 of the Supreme Court
Act 4 . I made that inquiry because such certifica
tion, in my view, represented the effective disposi
tion of the matter by the Supreme Court and then
terminated the stay of proceedings and because
such information was not available in the material
before me as it should have been.
At this point counsel for the respondent ten
dered (and I accepted) an affidavit of their Ottawa
agent which established that on August 25, 1976,
the Ottawa agent attended at the office of the
Registrar of the Supreme Court and thereupon
witnessed and participated in the settlement of the
judgment of the Supreme Court in this matter
pursuant to Rules 41 and 42 of the Supreme Court
of Canada. This affiant also swore that a search of
the records of the Federal Court disclosed that the
judgment of the Supreme Court of Canada as
settled on August 25, 1976, had been certified by
the Registrar to the proper officer of the Federal
Court of Canada, Appeal Division, on that same
day.
I have no doubt whatsoever that counsel for the
respondent had obtained this affidavit in anticipa
tion of an objection which he subsequently made.
Apropos preliminary objections to the grant of
the motion, which were eight in number, counsel
for the respondent announced that he proposed to
4 R.S.C. 1970, c. S-19.
make them. Counsel for the applicant objected to
those objections to the motion being made by the
respondent on the ground that the respondent had
not filed a notice of motion to dismiss the appli
cant's motion and accordingly the applicant had
no prior knowledge of the objections and therefore
was unable to prepare to meet the objections.
In my opinion the objection so made on behalf
of the applicant is wholly untenable. An applica
tion by way of motion is in no way akin to the trial
of a cause of action which is based on antecedent
pleadings. This is the applicant's motion which is
required by Rule 319 to be supported by affidavit
as to all facts on which the motion is based not
appearing on the record. The adverse party may
file an affidavit in reply and that affidavit too is to
be directed to facts. That is all that an adverse
party is required to do and he need not file an
affidavit in reply unless he considers it expedient
to do so.
This being the applicant's motion it is patently
obvious that the applicant must be prepared to
support the validity of his motion and to refute all
attacks on its validity. After all since the applicant
brought the motion it follows that he must have
been convinced of its propriety and should be
prepared to anticipate and refute likely attacks on
the propriety of his conviction.
I rejected the applicant's objection to the
respondent making preliminary objections to the
motion and I permitted the respondent to do so.
In retrospection and on further reflection I
adhere to my original rejection of the applicant's
objection in this respect and I am convinced of the
correctness of that rejection.
The hearing of the motion extended over two
full days and I might interject that even then
because of the peculiar circumstances prevailing
the motion was not completely heard. The prelim
inary objections were made by counsel for the
respondent during the afternoon of the first day.
The hearing was continued on the next ensuing
day so counsel for the applicant was apprised of
the preliminary objections and had ample time to
consider and make his reply thereto.
The first preliminary objection on behalf of the
respondent was that the application was premature
in that the stay of proceedings did not terminate
until August 25, 1976 (rather than June 29, 1976)
and the notice of motion is dated August 16, 1976,
filed on August 19, 1976, and was served on the
respondent on August 24, 1976, and Edward
Arthur Rawlinson, the president of the respondent,
which is a corporation, on the same day. All of the
aforementioned dates are prior to the certification
of the judgment of the Supreme Court on August
25, 1976, and the stay of proceedings was still
operative.
The notice of motion was made returnable in
Saskatoon, Saskatchewan, on September 3, 1976.
The motion was first fixed for hearing at that
place and on that date but the date was subse
quently changed to September 8, 1976, and was
heard on that later date.
There is no merit to that preliminary objection
and it must be rejected. The effective date of a
motion is the date of the hearing thereof and not
the date that the notice of motion bears. The date
that the hearing of the motion was begun was
September 8, 1976, which is subsequent to August
25, 1976.
However there remain for consideration seven
other preliminary objections made by counsel for
the respondent to the notice. By their nature it
follows that in some instances there is considerable
overlapping and in those instances the objections
cannot be conveniently segregated and dealt with
separately and seriatim. Important amongst those
objections is the submission that the affidavits in
support of the motion do not disclose all the facts
upon which the motion is based. From the context
of the affidavits this is patently so. Five of the
affidavits filed are those of the employees and
those affidavits follow a consistent pattern. The
affiants swear that the respondent, at the instiga
tion of its president, has refused and continued to
refuse to reinstate the employees in accordance
with the Board's order. That statement is followed,
in the same paragraph, by the statement that such
refusal was expressed in numerous ways and on
numerous occasions. In the next ensuing para
graph the affiant swears that she attempted to
obtain reinstatement of her employment on numer
ous occasions without success and the paragraph
continues to say that the manner of refusal
involves numerous occasions and incidents which
cannot adequately be put forth in an affidavit.
To me it is abundantly clear that the respondent
is entitled to know the numerous occasions and
incidents upon which the affiants rely to substanti
ate the allegations that the respondent has refused
to reinstate the employees in compliance with the
Board's order.
In so saying I do not overlook the further state
ment in that paragraph of the affidavit put for
ward in support of the applicant's request that the
affiants should be permitted to testify in open
court with respect to those allegations of numerous
occasions and incidents.
In paragraph 5 of the notice of motion leave was
requested that witnesses be allowed to testify in
open court. The paragraph does not indicate with
certainty what witnesses should be allowed to be
called even though I expect that the witnesses
would be and should be limited to the affiants
whose affidavits were filed in support of the
motion.
By virtue of Rule 319, the rule is that the
allegations of fact upon which a motion is based
shall be by affidavit. That a witness may be called
to testify in open court in relation to an issue of
fact raised in the application, is the exception. The
exception is granted only by leave when special
reason is shown.
Counsel for the applicant cannot assume that
such leave will be granted or that the reason
advanced therefor will be considered "special" so
as to justify an exception being made to the gener
al rule.
In my view the mere fact that an application is
contemplated for leave to introduce viva voce evi
dence does not absolve the affiant from the obliga
tion to disclose all the facts on which the applica
tion is based in the affidavit, and particularly so
since the respondent is entitled to know these facts
and must not be left to conjecture, as is the present
case. Neither do I think, because the incidences of
refusal are numerous, that an affiant is relieved
thereby from disclosing them if those facts are to
be relied upon, as is obviously the case here, nor do
I think it is beyond the ingenuity of competent
counsel, as counsel for the applicant is, to draft a
complete affidavit.
Counsel for the respondent, during the course of
the hearing, advised that he wished to cross-exam
ine the affiants on their affidavits. That is his right
and that right should have been exercised prior to
the hearing in order that the hearing might be
concluded. Counsel for the respondent was under
the misapprehension that an application for leave
to cross-examine the person making an affidavit
must first be made to the court. That is not so
although it may be so in some other jurisdictions
(perhaps in Saskatchewan). Under Rule 332(5) all
that need be done is to take out an appointment
before a person agreed upon between the parties
and if necessary a subpoena may be obtained to
enforce the attendance of the person to be
cross-examined.
In the hope that the hearing might be concluded
without further delay, I indicated that I might give
consideration to permitting the affiants to be
called to testify in open court which would afford
counsel for the respondent the opportunity of
cross-examining. That hope proved abortive in that
counsel for the respondent indicated that he would
require time after he had completed his cross-
examination to consider the information elicited
and to prepare affidavits in reply thereto. This is
his right and it was evident to me that no saving in
time could be effected. Accordingly it was not
necessary for me to determine if this circumstance
might be considered to be a "special reason".
In all antecedent litigation, first before the Trial
Division in moving for and extending a stay of
proceedings, secondly, on the section 28 applica
tion before the Appeal Division, and lastly on the
appeal of that decision to the Supreme Court of
Canada, the question of the validity of the filing
and registration of the Board's order under section
123 of the Canada Labour Code was not raised as
an issue and that was not before any of those
Courts so that question was not decided.
Counsel for the respondent, because of the posi
tion that he had taken in this antecedent litigation,
which was simply an acceptance of the validity of
the filing and registration of the Board's order,
was prepared to admit that, for the purposes of
this motion, the filing and registration of the order
of the Board in the Federal Court was proper.
Counsel for the applicant was not prepared to
accept this admission and was adamant that the
request in paragraph 1 of the notice of motion that
the order of the Board be filed in this Court
pursuant to the motion therefor be considered and
he added verbally with retroactive effect.
Certain rights have accrued to the parties as a
consequence of the filing and registration of the
order of the Board on March 12, 1975, which may
have been a nullity and in view of the desirability
of preserving these rights I would therefore
decline, on this motion, to accept the Board's order
for filing and registration with retroactive effect to
March 12, 1975, and if after due consideration of
the matter I should conclude that, on the basis of
authorities, I must accept the Board's order for
filing and registration then I would only do so with
effect from September 8, 1976.
The only authoritative decision on the conditions
precedent to the filing of an order under sections
123 or 159 of the Canada Labour Code of which I
am aware is that of my brother Walsh in Public
Service Alliance of Canada v. Canadian Broad
casting Corporation (supra). Mr. Justice Walsh
has held that those conditions are that it must be
established that the employer had failed to comply
with the order of the Board and that the applica
tion for filing shall be made by way of notice of
motion served on the opposite party together with
the affidavits setting forth all the facts establishing
failure to comply with the Board's order to which
the adverse party may reply by affidavit.
I think I am bound to approach this matter in
the same way as the similar problem was
approached by Mr. Justice Walsh until such time,
if any, as a different course is indicated by a
higher court. When I say bound, I do not mean
that I am bound by any strict rule of stare decisis
but by my own view as to the desirability of having
this Court follow a consistent course as far as
possible. That being so, the original filing and
registration of the Board's order in the Registry of
this Court on March 12, 1975, was a nullity. I am
therefore now invited in paragraph 1 of the notice
of motion to file a copy of the order of the Board.
That there has been failure to comply with the
Board's order is vigorously disputed by the
respondent. As I have previously indicated above,
the purpose of filing and registration of an order of
the Canada Labour Relations Board in the Federal
Court is for the purpose of enforcement by the
processes of this Court. In fact that is being sought
in paragraphs 3 and 4 of the notice of motion. By
those paragraphs a writ of sequestration is sought
sequestrating the property of the respondent and
Mr. Rawlinson, the president of the respondent
corporation, and an order for the committal of Mr.
Rawlinson.
When a writ of sequestration and an order for
committal is sought, quite frankly I think that it is
most desirable that the order being sought to be so
enforced should specifically set forth the time
within which something which is ordered to be
done must be done. In so saying, I do not imply
that an order can never be enforced by sequestra
tion and committal because a time is not men
tioned. That would depend on the circumstances of
the particular case. However, in the present case,
the fixing of a time for compliance should have
been done in the order.
This counsel for the applicant recognizes
because in paragraph 2 of the notice of motion I
am requested to fix a time for compliance with the
Board's order. At the very least, if the Board
intended its order to be complied with forthwith, it
might have used the word forthwith. Since no time
limit was specified, I would assume that the Board
must have meant compliance with its order forth
with. Even if an order is to be complied with
forthwith that word must be construed in the
context of the order, the object of the order and
the surrounding circumstances, and in view of
these considerations forthwith must be taken to
mean within a reasonable time with those con
siderations in mind.
However all those considerations aside, what I
am being asked to do is tamper with the order of
the Board and this I do not think that I have the
authority to do.
Section 122 of the Canada Labour Code reads:
122. (1) Subject to this Part, every order or decision of the
Board is final and shall not be questioned or reviewed in any
court, except in accordance with section 28 of the Federal
Court Act.
(2) Subject to subsection (1), no order shall be made, pro
cess entered or proceeding taken in any court, whether by way
of injunction, certiorari, prohibition, quo warranto or other
wise, to question, review, prohibit or restrain the Board in any
of its proceedings under this Part.
Under subsection (1) the order of the Board is
final and shall not be questioned or reviewed in
any court except in accordance with section 28 of
the Federal Court Act. Subsection (2) is a priva-
tive provision precluding resort to the prerogative
writs and remedies of like nature. Therefore there
is no appeal from an order of the Board. There
being no appeal, it follows that I cannot give the
order that the Board ought to have given.
Section 28 of the Federal Court Act does not
provide for an appeal from a federal board, com
mission or other tribunal to the Court of Appeal.
What the section does is to confer jurisdiction on
the Court of Appeal "to review and set aside" an
order. In the course of its review the Court of
Appeal may indicate to the tribunal what ought to
have been done and refer the matter back to the
tribunal for implementation. To me the Court of
Appeal does not appear to have been given the
jurisdiction to amend or vary an order of a federal
tribunal. It has jurisdiction to review and set aside
such orders. Certainly the Trial Division does not
have the authority to amend an order of the
Canada Labour Relations Board.
I do not overlook the fact that by virtue of
section 123(2) of the Canada Labour Code when
an order of the Board is registered it has the same
force and effect, and all proceedings may be taken
thereon, as if the order were a judgment obtained
in this Court. I have previously concluded that this
is for the purpose of the enforcement of the
Board's order.
Counsel for the applicant, in moving to fix a
time for compliance with the order, first takes the
position that on registration the Board's order
becomes an order of this Court and then invokes
Rule 1904 which reads:
Rule 1904. (1) Notwithstanding that a judgment or order
requiring a person to do an act specifies a time within which the
act is to be done, the Court may make an order requiring the
act to be done within another time, being such time after
service of that order, or such other time, as may be specified
therein.
(2) Where a judgment or order requiring a person to do an
act does not specify a time within which the act is to be done,
the Court may subsequently make an order requiring the act to
be done within such time after service of that order, or such
other time, as may be specified therein.
The complete answer to this request lies in the
fact that no order of the Board has been validly
filed and registered in this Court.
The issue of the validity of the filing and regis
tration of the Board's order on March 12, 1975, is
before me. It is raised by paragraph 1 of the notice
of motion, the pertinent extract from which I
repeat here for convenience and emphasis "which
said order was filed and registered in this Honour
able Court on the 12th day of March 1975, be
filed and registered with this Honourable Court
pursuant to this application, if the same be so
required".
By reason of the decision of Mr. Justice Walsh
to which reference has been made above the filing
and registration of the order on March 12, 1975,
was a nullity. Therefore it becomes necessary to
consider the application to file the order of the
Board in that, in the language of paragraph 1, "the
same be so required". For the reasons previously
given and shall subsequently give I decline to file
the order from which it follows that there is no
order of the Board filed and registered in this
Court and accordingly no order of this Court to
correct. Even if there were, I would not specify a
time within which to comply with the order. When
the Board's order is filed and registered with this
Court it is for the purpose of enforcement by the
processes of this Court. Viewed realistically, even
when filed and registered in this Court the order
remains the order of the Board. Because the order
of the Board is final and not subject to question or
review by any court, except in accordance with
section 28 of the Federal Court Act, it is not the
function of a judge of the Trial Division to amend
the order of the Board to make that order enforce
able. The order of the Board, even when filed and
registered under section 123, remains inviolate.
That, in my view, is the clear intention of Parlia
ment as expressed in section 122 of the Canada
Labour Code. In my view, the proper forum in
which to amend an order of the Board is the Board
itself and I expressed that view, to which I still
adhere, on several occasions to counsel for the
applicant during the course of the hearing of the
motion. It is not the function of the Trial Division
to anticipate what the Board may have meant as
expressed in its order and to substitute what it
thinks the Board may have meant to do, but did
not do, by amending the Board's order according
ly. To do so would be to usurp the function of the
Board.
If a Judge of the Trial Division is authorized to
do so, even to the extent set forth in Rule 1904,
then the Rule would be ultra vires, but it is a
cardinal rule of legal interpretation that a Rule
will not be given a construction which would
render it ultra vires if there is a construction
available by which the Rule is intra vires. That
latter construction is simply that Rule 1904 is not
applicable to orders such as the order of the Board
in this matter.
Rule 337 permits of a procedure analogous to
the procedure which I suggest should be followed
in this instance. Under Rule 337, when the terms
of a judgment have been settled and pronounced,
either party may move to have the terms of the
pronouncement reconsidered on the ground that
some matter that should have been dealt with has
been overlooked or accidentally omitted. Obvious
ly, since the word reconsider is used, that reconsid
eration can better be done by the judge who made
the pronouncement and that is the practice consist
ently followed in this Court unless it is impossible
to do so. By this analogy it is the Board that
should amend its own order.
For the foregoing reasons I refuse the relief
sought in paragraph 2 of the notice of motion.
Counsel for the applicant stated that he had
expected to advance and support only the relief
sought in paragraphs 1 and 2 of the notice of
motion, that is, that the order of the Board should
be filed pursuant to the motion therefor and that
the order of the Board should be amended to fix a
time within which the Board's order shall be com
plied with. He did so on the basis of the introduc
tory words to the notice of motion. These words
request that counsel be heard for grant of the
orders enumerated in the body of the notice or
such of them as to this Honourable Court may
seem just. This language does not mean that all
matters raised in the notice of motion shall not be
dealt with but only that such of the orders as are
requested that are substantiated will be granted.
In paragraph 3 of the notice of motion leave to
issue a writ of sequestration against the property
of the respondent and Edward Rawlinson was
sought, and in paragraph 4 for an order of com
mittal of Mr. Rawlinson.
I can see no justification whatsoever for the
expectation of counsel for the applicant that only
the relief sought in paragraphs 1 and 2 would be
considered unless that expectation is tantamount
to an admission that the filing and registration of
the order of the Board on March 12, 1975, was a
nullity and that the failure of the Board to fix a
time for compliance with its order was a deficiency
that must be cured before the order could be
enforced. Such admissions were not forthcoming.
That they were not is reasonable because the relief
so sought therein might have been granted as
counsel for the applicant considered it should.
I also invited counsel for the applicant to aban
don the relief sought in paragraphs 3 and 4 of the
motion if he considered that relief to be premature
and abortive without the relief sought in para
graphs 1 and 2 first being granted. That invitation
was not accepted and need not have been for the
reason indicated immediately above.
Accordingly the relief sought in paragraphs 3
and 4, that is, leave to issue a writ of sequestration
against the property of the respondent, Central
Broadcasting Company Ltd. and Edward Arthur
Rawlinson and for an order for the committal of
Edward Arthur Rawlinson must be considered and
I can see no reason for counsel for the applicant
not so expecting.
In all antecedent litigation of which mention has
been made above, the parties named in the style of
cause were Central Broadcasting Company Ltd.
and International Brotherhood of Electrical Work
ers, Local No. 529. The Canada Labour Relations
Board was also a party in many instances. Mr.
Justice de Grandpré in his reasons for judgment
dismissing an appeal from the decision of the
Federal Court of Appeal observed that the Board
filed a lengthy factum but since the jurisdiction of
the Board had not been challenged it was the
unanimous view of the Supreme Court that the
Board had no standing to appear and counsel for
the Board was not invited to speak. Assuming the
same to have been the case below, it would follow
that the Board had no status to appear before
those courts either.
Mr. Rawlinson was never a party to any antece
dent litigation. He is referred to in the affidavit of
Mr. Gerecke as having been a respondent before
the Supreme Court. That is not so. Mr. Rawlinson
is named as a respondent only in the style of cause
in the present notice of motion. I doubt if he is
properly so named but nothing turns on this inac
curacy if it be an inaccuracy. He was not a party
before the Board and the Board's order was not
directed to him.
Mr. Rawlinson is brought into the present notice
of motion by virtue of Rule 1903 which reads:
Rule 1903. (1) Where
(a) a person required by a judgment or order to do an act
within a time specified in the judgment or order refuses or
neglects to do it within that time or, as the case may be,
within that time as extended or abridged under these Rules;
or
(b) a person disobeys a judgment or order requiring him to
abstain from doing an act,
then, subject to the provisions of these Rules, the judgment or
order may be enforced by one or more of the following means,
that is to say,
(i) with the leave of the Court, a writ of sequestration
against the property of that person,
(ii) where that person is a body corporate, with the leave
of the Court, a writ of sequestration against the property
of any director or other officer of the body,
(iii) except where it is an order for payment of a debt or
other obligation, with the leave of the Court, an order of
committal against that person or, where that person is a
body corporate, against any such officer.
By delving through the affidavit of Mr. Gerecke
I found sufficient incidental allegations to con
clude that the respondent is a corporation and that
Mr. Rawlinson is the president of that corporation
but I would have much preferred a specific affida
vit by an affiant who had knowledge of the facts to
so establish.
Throughout these reasons I have consistently
and exclusively referred to Central Broadcasting
Company Ltd. as "the respondent" and where
mention is made of Mr. Rawlinson I have referred
to him by name and not as a "respondent".
In my view the order of the Board is so vague,
uncertain, imprecise, ambiguous and inexplicit as
not to be capable of enforcement.
A writ of sequestration is directed to no less
than four commissioners directing them or any two
or three of them to enter upon and take possession
of all the real and personal estate of the respond
ent, and Mr. Rawlinson in this instance, to collect,
receive and keep all revenue from that real and
personal estate and keep both that revenue and
property under sequestration until the respondent
(and Mr. Rawlinson) shall have complied with the
order and purged their contempt. In this instance
that contempt can only be cleared by compliance
with the Board's order and by payment of what
ever amount the Board may have ordered to be
paid. It goes without saying that where the Board's
order is for the payment of a debt or other obliga
tion there shall be no order for committal.
The Board has ordered that the respondent shall
comply with section 184 of the Canada Labour
Code which, amongst other things, generally pro
vides that no employer shall refuse to employ or
continue to employ any person on the ground that
that person is a member of a trade union. This is
incorporation by reference. The order then more
particularly proceeds to state that the respondent
shall reinstate the employees named in the order in
the same positions they occupied prior to their
dismissals on December 2, 1974, at the same rate
of pay, with the same privileges and with any
additional pay and privileges which may have
accrued to them had they not been dismissed and
that the employer shall pay to these employees a
sum of money equal to the money they would have
received during the interval between December 9,
1974, and the date of their reinstatement.
In the penultimate paragraph of the order the
Board ruled that it would not fix the quantum of
the amount to be paid and in the concluding
paragraph the Board reserved the right to fix the
quantum in the event of the failure of the parties
to come to an agreement on the amount on the
application of one or both of the parties. Had there
been an agreement between the parties as to the
amounts to be paid and to whom, that agreement
should have been filed and registered as supple
mentary to the Board's order and should have been
made a part of the Board's order. This has not
been done.
During the hearing I was assured by counsel
that no agreement was reached between the parties
and that neither party applied to the Board to fix
the amount despite the open invitation of the
Board to do so. It was the presence of those
paragraphs in the Board's order added to the
reasons given above that inspired my gratuitous
suggestion repeatedly made to counsel for the
applicant to seek amendment of the Board's order
from the Board.
The order on its face is not a final order and not
being a final order it is not susceptible of enforce
ment by the processes of this Court for that pur
pose. The order is merely a conditional order,
those conditions being that the parties agree upon
the "quantum" to be paid and failing that agree
ment the amount would be fixed by the Board.
Neither of those conditions have been fulfilled and
that being so the Board's order remains in a state
of limbo.
As has been previously pointed out, no time has
been fixed by the Board in its order as to when the
unascertained amounts shall be paid. That is
understandable because the amount had not been
settled and until settled, which was a condition of
the order, it does not appear meet to fix a time for
payment.
The Board also ordered that the respondent
shall reinstate the employees named in the order.
Under section 189(b)(i) of the Canada Labour
Code the Board may require an employer to rein
state a former employee dismissed contrary to
section 184(3)(a) thereof. This the Board has done
but again no time has been fixed in the order for
compliance therewith by the employer. At the very
highest, the order is susceptible of meaning that
reinstatement shall be forthwith. If that be so, then
forthwith means within a reasonable time and the
question then arises as to whom shall determine
what is a reasonable time. The employer's inter
pretation of what is a reasonable time may differ
vastly from an employee's version thereof. In my
view all possibility of conflicting interpretations
could and should have been removed by the Board
by the simple expedient of fixing a time for com
pliance in its order which in its view was
reasonable.
The word "reinstate" has received judicial inter
pretation in a similar context by Humphreys J. in
Jackson v. Fisher's Foils Ltd. 5 He adopted the
words of the Lord Justice-Clerk, Lord Cooper,
who in dealing with the meaning of the word
"reinstate" said:
The natural and primary meaning of "to reinstate" as
applied to a man who has been dismissed (ex hypothesi without
justification) is to replace him in the position from which he
was dismissed, and so to restore the status quo ante the
dismissal.
This is what the Board has done in its order and
it has named the employees to be reinstated. How
ever, what the Board has failed to do is to indicate
to what positions the respective employees are to
be reinstated. That is what has been done in
similar orders I have seen. During the course of
the hearing I put forward the case where the
employee maintains that he was dismissed from
the position of general manager whereas the
employer maintains that he was dismissed from
the position of office boy. Who then is to resolve
the dispute? Is it the commissioners who would be
directed to hold the respondent's property until
compliance with the Board's order? Is it the gaoler
into whose custody Mr. Rawlinson would be com
mitted until he had cleared his contempt by com
pliance with the Board's order? Is it a judge of the
Trial Division of the Federal Court of Canada who
would be obliged to embark upon an inquiry to
ascertain the facts in the event of a dispute arising,
5 [1944] 1 All E.R. 421.
the nature of which is in the example I have given
and the likelihood of such a dispute arising is not
remote? These are rhetorical questions, the
answers to which must be in the negative. Obvi
ously it is the function of the Board to preclude
such a dispute as to facts arising subsequent to its
order by specifying the positions to which the
employees are to be reinstated in its order as it has
listed the employees who are to be reinstated and
the evidence to do so must have been available to
the Board on its inquiry.
If this Court is to punish a person for not
carrying out an order of the Board, which, by
virtue of section 123 of the Canada Labour Code,
becomes an order of this Court for the purpose of
enforcement when filed and registered, that order
must direct what is to be done in clear and unam
biguous terms and this, for the reasons I have
given, the Board has failed to do.
The decision of Mr. Justice Walsh in Public
Service Alliance of Canada v. Canadian Broad
casting Corporation (supra) makes eminent
common sense. If this Court is to enforce an order
of the Canada Labour Relations Board as its own
order then the Court must have control over the
order of the Board which is to be filed and conse
quently registered. That control is present in a
limited extent in subsection (1) of section 123 of
the Canada Labour Code which provides that
failure to comply with an order of the Board must
be established before the order is filed. If the
Board's order is imprecise, as this order is, then it
is impossible to establish non-compliance there
with and the order must be rejected for filing.
Further, if a writ of sequestration were to issue,
I am required to prescribe the conditions when the
commissioners to whom the writ is directed may
release the property under sequestration and when
the contempt has been cleared. I cannot prescribe
what is required to be done to ensure compliance
with the order when the original order is vague
and uncertain in that respect.
Further, it is impossible to show that a person is
in contempt of an order if the order is ambiguous
as to what the person is to do. If an order for the
committal of Mr. Rawlinson is to issue, I am
obliged to state in that order the contempt he has
committed. This I cannot do on the ambiguous
order as I am requested to do. Still further, the
order of committal is to the effect that the
respondent is to be committed to prison to be there
imprisoned until further order. That further order
is normally made when the respondent has cleared
his contempt by compliance with the order he is in
breach of. As I have said, I cannot commit for
contempt when I cannot ascertain the contempt
and neither can I prescribe when a contempt which
is not ascertained has been cured.
The order of the Board when served upon the
respondent herein and Mr. Rawlinson was not
endorsed as required by Rule 1905(4). In my view
the failure to so endorse the copy of the order is
fatal thereto.
It was held by Luxmoore J. in Iberian Trust,
Limited v. Founders Trust and Investment Com
pany, Limited 6 that an order could not be enforced
by attachment of the directors of a company
because the copy of the order served upon them
was not endorsed with a memorandum as to the
penal consequences of disobedience as required by
a rule of court similar to Rule 1905(4).
I cannot refrain from saying that the members
of the Canada Labour Relations Board, knowing
that an order or decision given by them may be
filed and registered with this Court and when that
is done their order or decision has the same effect
as a judgment of this Court for enforcement pur
poses, must exercise great care to ensure that the
order or decision given by them is framed in
precise, unconditional and unambiguous terms so
as to be capable of enforcement, and if they did
not know how to do this, then it is incumbent upon
them to seek instruction how to do so.
In exculpation of the Board it may be that the
Board, knowing that its order was conditional,
never intended that its order should be presented
for filing until the conditions it prescribed had
been fulfilled after which the Board may have
intended to give a precise, unconditional order. If
that is what was intended by the Board, and that is
6 [1932] 2 K.B. 87.
mere conjecture on my part, then the order of the
Board should have included a caveat to that effect
which the order did not.
The order of the Board issued on February 19,
1975, is, nevertheless, an order or decision of the
Board within section 123 of the Canada Labour
Code and, as such, was susceptible of being ten
dered for filing and subsequent registration as it
was, and, in my opinion, improperly accepted for
filing and registration.
Due to the inordinate length of these reasons,
the inevitable overlap in many instances and the
necessity of dealing with incidental matters aris
ing, it is expedient that my conclusions leading to
the disposition of the motion be set forth in sum
mary form. Those conclusions are as follows:
1. The issue as to the validity of the filing and
registration of the order of the Board dated
February 19, 1975, in the Saskatoon Registry
Office on March 12, 1975, is before me;
2. On the basis of the decision of Mr. Justice
Walsh in Public Service Alliance of Canada v.
Canadian Broadcasting Corporation the filing
of that order and subsequent registration is a
nullity;
3. The application in paragraph 1 of the notice
of motion that the order of the Board be now
filed pursuant to section 123 of the Canada
Labour Code must be denied because I am not
satisfied on the affidavits in support of that
application that the order has not been complied
with by the respondent and Mr. Rawlinson. On
the other hand, the respondent and Mr. Rawlin-
son contend that the order of the Board has been
complied with by them. They have been preclud
ed by the peculiar circumstances applicable
from cross-examining the affiants on their sup
porting affidavits and accordingly have not been
able to make their full answer and defence to
the application. Until that opportunity has been
afforded to the respondent and Mr. Rawlinson
the motion cannot be concluded and should not
have been brought on for hearing until this had
been done;
4. The application in paragraph 2 of the notice
of motion that this Court should amend, in
effect, the order of the Board by fixing a time
within which the order of the Board shall be
complied with is denied because I do not think I
have the authority to do so for the reasons
expressed;
5. The application for leave to issue a writ of
sequestration against the property of the
respondent and Mr. Rawlinson is denied
because (a) there is no order of the Board filed
and registered as an order of this Court to
enforce, (b) in any event the order of the Board
is conditional and the conditions have not been
fulfilled in that sums certain to be paid are not
fixed by agreement between the parties or by
the Board, and, (c) the order of the Board is so
inexplicit in other respects that it cannot be
determined what has been ordered to be done
and a fortiori whether there has been a failure
to comply with what order;
6. It is for the reasons in paragraph 5(b) and
(c) immediately above that, added to the rea
sons in paragraph 3 above, I decline to accept
the order of the Board for filing as requested in
paragraph 1 of the notice of motion because
failure to comply with the Board's order cannot
be ascertained;
7. An order for the committal of Mr. Rawlinson
is denied for the like reasons that leave to issue
writs of sequestration is denied;
8. It was not necessary to decide if special
reason existed upon which to grant leave to call
witnesses to testify in open court but that such
leave was asked does not absolve the applicant
from supporting the notice of motion with
affidavits disclosing all the facts on which the
motion is based in accordance with Rule 319;
and
9. The copy of the order of the Board served on
the respondent and Mr. Rawlinson was not
endorsed with a memorandum as to the conse
quences of disobedience as required by Rule
1905(4) and that is fatal to the enforcement of
the Board's order.
The motion is therefore dismissed in its entirety.
The respondent and Mr. Rawlinson shall be en
titled to their taxable costs on a party and party
basis in any event payable forthwith. Because their
respective defences to the motion were substantial-
ly similar and the preparation is applicable to
both, the preparation of which was made and
argued by one counsel, there shall be but one bill
of costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.