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
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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
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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.