T-8337-82
Andrea Vergis and Jantine Mitrovic-Bann
(Applicants)
v.
Canada Labour Relations Board, General Aviation
Services Ltd. and International Association of
Machinists and Aerospace Workers, Local 2413
(Respondents)
Trial Division, Collier J.—Toronto, September 21;
Ottawa, November 1, 1982.
Jurisdiction — Trial Division — Labour relations —
Application for stay of execution of orders of Canada Labour
Relations Board, for order preserving employment rights of
employees and for negative and mandatory injunctions pre
venting lay-off or termination of employees until judicial
proceedings under s. 122 of Canada Labour Code and s. 28 of
Federal Court Act challenging Board's orders completed —
Applicants contending that combined effect of s. 24(1) of
Canadian Charter of Rights and Freedoms and ss. 17, 18, 25,
and 26 of Federal Court Act, which prescribe scope of Trial
Division's jurisdiction, is to clothe Court with power to deal
with present application — Applicants further contending that
if s. 122 of Canada Labour Code restricts Trial Division's
jurisdiction in the matter, it is rendered ultra vires or inopera
tive by Charter — Application dismissed — S. 122 of Code
providing for s. 28 review by Appeal Division — S. 122 not
ultra vires — Appeal Division may have power to stay Board's
orders — 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. 24(1) — Canada Labour Code,
R.S.C. 1970, c. L-1, s. 122, rep. by S.C. 1972, c. 18, s. 1;
1977-78, c. 27, s. 43 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 17, 18, 25, 26, 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Nauss et al. v. Local 269 of the International Longshore-
men's Association, [1982] 1 F.C. 114 (C.A.); Union des
employés de commerce, Local 503 et al. v. Purolator
Courrier Ltée, Federal Court, A-399-82, judgment dated
October 15, 1982 (not yet reported); reversing [1983] 1
F.C. 472 (T.D.).
COUNSEL:
William S. Challis for applicants.
Ian Scott, Q.C. and Ross Wells for respond
ent Canada Labour Relations Board.
Naomi Duguid for respondent International
Association of Machinists and Aerospace
Workers, Local 2413.
D. I. Wakely for respondent General Aviation
Services Ltd.
SOLICITORS:
McKeown, Yoerger, Spearing, Toronto, for
applicants.
Cameron, Brewin & Scott, Toronto, for
respondent Canada Labour Relations Board.
Sack, Charney, Goldblatt & Mitchell,
Toronto, for respondent International Asso
ciation of Machinists and Aerospace Workers,
Local 2413.
Winkler, Filion & Wakely, Toronto, for
respondent General Aviation Services Ltd.
The following are the reasons for judgment
rendered in English by
COLLIER J.: On November 1, 1982, at Toronto,
I gave oral reasons in this matter. A court reporter
was not present. The following are, in writing, the
reasons I gave.
The applicants have brought, in the Trial Divi
sion of this Court, what is said to be an originating
application under subsection 24(1) of the Canadi-
an Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.).
They complain their rights to freedom of con
tract and of gainful employment have been violat
ed by two decisions made by the Canada Labour
Relations Board in July and August of this year
[i.e. 1982]. Those orders arose out of proceedings
before the Board between the applicants' employ
er, General Aviation Services Ltd. and Local 2413
of the International Association of Machinists and
Aerospace Workers. The Board's orders have not,
as of this date, been filed in the Trial Division of
this Court.
This application is brought on behalf of the two
named applicants and certain other employees, not
named. As I understand it, there may be 118
persons in the same, or similar situation as the two
named applicants. The applicants assert the carry
ing out and enforcement of the Board's orders will
have serious effects on their seniority rights, their
job security, and, in many cases, their continued
employment with their employer. The applicants
say the Board's orders were made without notice
of a hearing to them and they were given no
opportunity to be heard or to present their case.
The Board's orders are the subject of a number
of proceedings, pursuant to section 122 of the
Canada Labour Code, R.S.C. 1970, c. L-1, as rep.
by S.C. 1972, c. 18, s. 1; 1977-78, c. 27, s. 43, and
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, in the Appeal Division of this
Court. The applicant Vergis is a member of a
group of employees who have brought section 28
proceedings. If there was indeed a denial of natu
ral justice, by the Board, then the remedies fall
within section 28, and are dispensed by the Court
of Appeal.
The purpose of the application before me is to
obtain the following relief:
(a) to stay execution of the Canada Labour
Code orders;
(b) to preserve the employment rights of the
affected employees until the outcome of judicial
proceedings in respect of the Board's orders;
(c) injunctive relief, both negative and mandato
ry in nature, against the employer and the
Union, preventing lay-off or termination of any
of the affected employees, until judicial proceed
ings have been completed.
At the threshold of this matter, is whether the
Trial Division of this Court has jurisdiction to
grant the relief sought.
The Federal Court of Appeal has said in Nauss
et al. v. Local 269 of the International Longshore-
men's Association, [1982] 1 F.C. 114, that the
Trial Division of this Court has no jurisdiction to
grant a stay of execution of Canada Labour Rela-
tions Board orders. The Nauss decision was in
March 1981, before the coming into effect of the
Constitution Act, 1982. The Court of Appeal re
affirmed its position, very recently, on October 15,
1982, in Montreal: see Union des employés de
commerce, Local 503 et al. v. Purolator Courrier
Ltée, A-399-82 [not yet reported, judgment dated
October 15, 1982], where it set aside a stay of
execution of a Board order given by Walsh J. of
the Trial Division [[1983] 1 F.C. 472].
I do not know, one way or the other, whether
any argument, based on the Charter, was made in
the Purolator case.
Counsel for the applicants contended before me,
that the combined effect of subsection 24(1) of the
Charter and sections 17, 18, 25 and 26 of the
Federal Court Act, clothes the Trial Division with
jurisdiction to entertain the present application
and to grant the remedies sought. If, it is argued,
section 122 of the Canada Labour Code restricts,
or purports to intrude on the right of review or of
jurisdiction in this Court, then it is, because of the
new Charter, inoperative or ultra vires.
I cannot subscribe to the applicants' submis
sions.
The jurisdiction for attack on the Board's deci
sion is found in section 122 of the Canada Labour
Code. It permits section 28 review by the Appeal
Division. I am not persuaded section 122 of the
Canada Labour Code is ultra vires or inoperative.
In any event, it might well be sustainable under
the exception provision found in section I of the
Charter. I express no concluded opinion.
It may be the Appeal Divison has jurisdiction,
once section 28 proceedings are launched, to stay
Board orders, or to otherwise preserve the status
quo pending the determination of the section 28
proceedings. I express no opinion on the point. I
am not aware of any written Appeal Division
decision, reported or unreported, in which it has
been definitively said the Court of Appeal has no
such jurisdiction.
But I am satisfied the Trial Division has no
jurisdiction to entertain the type of application
presently brought. I find nothing in the Charter,
when applied to sections 17, 18, 25 and 26 of the
Federal Court Act, creating any jurisdiction in this
Division.
I have sympathy for the applicants. Their posi
tions may well be adversely affected before the
pending judicial proceedings have been deter
mined.
But sympathy cannot clothe me with jurisdic
tion.
The application is dismissed. If the applicants
have a remedy, it must, to my mind, be found
elsewhere than in the Trial Division of this Court:
perhaps, in some other court, or some other
tribunal.
The respondents appearing are entitled to the
costs of this application.
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.