Judgments

Decision Information

Decision Content

T-8251-82
National Association of Broadcast Employees and Technicians (NABET) (Applicant)
v.
Inland Broadcasters and Twin Cities Radio Ltd. (Respondent)
Trial Division, Marceau J.—Vancouver, Novem- ber 8 and 9, 1982.
Labour relations — Motion for order pursuant to R. 1909 that arbitration award filed in Court pursuant to s. 159(1) of Canada Labour Code be stayed — Whether Trial Division has power to stay order — Motion denied — Nauss et al. v. Local 269 International Longshoremen's Association, wherein it was held that Trial Division did not have power to stay order of Labour Relations Board filed under s. 123 of Code because that section merely affords means of executing orders of Board and does not have effect of making such orders, orders of Court, applies — Here, s. 159, which provides for filing of arbitration award in Court, is essentially identical to s. 123 Further, s. 156 makes it clear Parliament intended decisions of arbitrator to be even more final and unquestionable than that of Board which by virtue of ss. 119 and 122 are final and cannot be varied, reviewed, questioned or restrained except as formally authorized — Order sought is beyond power of Court — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 119 (as am. by S.C. 1972, c. 18, s. 1), 122, 123 (as am. idem; S.C. 1977-78, c. 27, s. 43), 156 (as am. idem, s. 53), 159 (as am. idem, s. 57) — Federal Court Rule 1909.
CASE JUDICIALLY CONSIDERED
APPLIED:
Nauss et al. v. Local 269 of the International Longshore- men's Association, [1982] 1 F.C. 114 (C.A.).
COUNSEL:
I. Donald for applicant. M. Hunter for respondent.
SOLICITORS:
Rankin & Company, Vancouver, for appli cant.
Russell & DuMoulin, Vancouver, for respondent.
The following are the reasons for order ren dered in English by
MARCEAU J.: This motion seeks an order "pur- suant to Rule 1909, that the arbitration award of Clive McKee dated September 28, 1982 and filed in this Court pursuant to sub-section 159(1) of the Canada Labour Code on or about October 20, 1982 be stayed until further order of the Court, or until the outcome of proceedings taken in the Supreme Court of British Columbia to set aside the said arbitration award."
In the case of Nauss et al. v. Local 269 of the International Longshoremen's Association, [ 1982] 1 F.C. 114 (C.A.), the Federal Court of Appeal ruled that the Trial Division of this Court did not have the power to stay an order of the Canada Labour Relations Board filed in the Court pursu ant to section 123' of the Canada Labour Code, R.S.C. 1970, c. L-1. The decision, as I understand it, is based on two fundamental propositions: first, section 123 of the Code merely affords a means of execution of the orders of the Board, it does not have the effect of making these orders, orders of the Court; second, sections 119 and 122 of the Code 2 make it clear that the decisions of the Board are to be final and cannot be varied, reviewed,
' 123. (1) The Board shall, on the request in writing of any person or organization affected by any order or decision of the Board, file a copy of the order or decision, exclusive of the reasons therefor, in the Federal Court of Canada, unless, in the opinion of the Board,
(a) there is no indication of failure or likelihood of failure to comply with the order or decision, or
(b) there is other good reason why the filing of the order or decision in the Federal Court of Canada would serve no useful purpose.
2 119. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any applica tion before making an order in respect of the application.
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 paragraph 28(1)(a) of the Federal Court Act.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or
(Continued on next page)
questioned or restrained except as formally author ized. It followed that the Trial Division could not assume the power to stay the order of the Board as if it was its own order (as contemplated by Rule 1909), nor could it do so by relying on any specific provision of the law.
In my view, that decision is clearly applicable here. Section 159 of the Code', which provides for the filing in the Court of an arbitration award, is essentially identical with section 123, and there is no doubt, in view of section 156 4 , that Parliament intended the decision of the arbitrator to be even more "final" and "unquestionable" than that of
(Continued from previous page)
purporting to be made or carried on under this Part shall be
(a) questioned, reviewed, prohibited or restrained, or
(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibi tion, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.
' 159. (1) Any person or organization affected by any order or decision of an arbitrator or arbitration board 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 an arbitrator or arbitration board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order or decision were a judgment obtained in the Court.
156. (1) Every order or decision of an arbitrator or arbitra tion board is final and shall not be questioned or reviewed by any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of his or its proceedings under this Part.
the Board. The conclusion may be considered more regrettable here than it was in the Nauss case, since it really comes to denying any possibility of obtaining a stay of an arbitration award. It is obvious to me, however, that the mere fact that the conclusion may be particularly regrettable cannot provide a valid basis for refusing to apply a reason ing imposed by the Court of Appeal and, in any event, it certainly cannot support the exercise by this statutory Court of a power which has not been conferred upon it.
The order sought is beyond the power of the Court. The motion cannot be entertained.
ORDER
The motion is denied with 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.