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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.
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