A-94-75
Central Broadcasting Company Ltd. (Applicant)
v.
Canada Labour Relations Board and International
Brotherhood of Electrical Workers, Local Union
No. 529 (Respondents)
Court of Appeal, Jackett C.J. and Pratte and Urie
JJ.—Ottawa, March 13, 1975.
Practice—Canada Labour Relations Board ordering appli
cant to reinstate employees and pay compensation—Applica-
tion for stay of execution pending disposition of s. 28 applica-
tion—Whether s. 28 originating notice must set out grounds or
relevant facts—Canada Labour Code, R.S.C. 1970, c. L-1 s.
189(b)(1) and (ii)—Federal Court Act, ss. 26(1) and 28
Federal Court Rules 1402, 1403 and 359.
The Canada Labour Relations Board ordered the applicant
to reinstate and pay compensation to certain employees under
section 189 of the Canada Labour Code. Applicant applied for
a stay of execution pending disposition of a section 28 applica
tion regarding the order which it had initiated. Respondent
maintained that, because the originating notice did not disclose
the grounds or relevant facts upon which the application would
be based, there was no valid section 28 application before the
Court.
Held, transferring the application to the Trial Division under
Rule 359, there is no requirement that a section 28 originating
notice set out the grounds or relevant facts. This is done by a
Rule 1403 memorandum, and if the facts disclosed by the Rule
1402 case do not support the application, it will be dismissed.
An interlocutory application in a section 28 matter must be
supported by affidavits establishing the relevant facts, unless
the facts are otherwise put before the Court under Rules
317(4) and 319-331. However, the Board's order was filed in
the Trial Division, and, as it is regarded as a judgment of that
Court under section 123 of the Canada Labour Code, by virtue
of section 26 of the Federal Court Act, it must be regarded as
within that Court's jurisdiction. But the application should not
be defeated simply because it was brought in the wrong
Division.
APPLICATION for stay of execution.
COUNSEL:
D. K. MacPherson, Q.C., for applicant.
J. Baigent for Canada Labour Relations
Board.
G. Taylor, Q.C., for International Brother
hood of Electrical Workers, Local Union No.
529.
SOLICITORS:
MacPherson, Leslie and Tyerman, Regina,
for applicant.
Gibbons, Rosenbloom, Baigent and Ger-
maine, Vancouver, for Canada Labour Rela
tions Board.
Goldenberg, Taylor and Tallis, Saskatoon,
for International Brotherhood of Electrical
Workers, Local Union No. 529.
The following are the reasons for judgment
delivered orally by
JACKETT C.J.: This is an application to the
Federal Court of Appeal for a stay of execution,
pending disposition of a section 28 application, of
a Canada Labour Relations Board order whereby
it was ordered that the applicant comply with the
provisions of section 184 of the Canada Labour
Code and more particularly that
(i) under section 189(b)(i) the applicant rein
state the employees listed therein 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 addition
al pay or privileges which would have accrued to
them had they not been dismissed; and
(ii) under section 189(b)(ii) the applicant pay
to the former employees listed as compensation
a sum of money equivalent to the remuneration
that would, but for the failure of the applicant
to comply with the provisions of section 184,
have been paid to them from December 9, 1974,
to the date of reinstatement.
The respondent Union took a preliminary objec
tion that, because the originating notice did not
disclose the grounds upon which the Court would
be moved to set aside the Board's order, there was
no valid section 28 application before the Court. I
am of the view that this objection must be reject
ed. There is no requirement in the Federal Court
Act, or the Rules of this Court, requiring that a
' Counsel for the Union, on whose application the Canada
Labour Relations Board made the order in question, indicated
to the Court that he represented the interests of the employees
referred to in that order.
section 28 originating notice set out the grounds or
relevant facts upon which the application is to be
based. An applicant must disclose his grounds in
his Rule 1403 memorandum and, if the facts
disclosed by the Rule 1402 case do not support the
application, it will be dismissed either because the
Court has no jurisdiction or because there is no
valid ground to set the order aside. On the other
hand, of course, an interlocutory application in a
section 28 matter, like any other interlocutory
application to the Court, must be supported by
affidavits establishing the relevant facts unless
those facts are put before the Court by consent or
in some other manner acceptable in the circum
stances of the particular case. See Rule 317(4) and
Rules 319 to 331.
While this application was, in effect, an applica
tion to stay the Board's order, it is common ground
that that order has been filed in the Trial Division
under section 123 of the Canada Labour Code 2
and that this motion should be treated as an
application to stay the order regarded as a judg
ment obtained in the Court by virtue of section
123.
In my view, by virtue of section 26 of the
'Section 123 reads as follows:
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
subsection (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 proceedings may be taken thereon as if the
order or decision were a judgment obtained in that Court.
Federal Court Act,' as a judgment so constituted
by virtue of section 123 of the Canada Labour
Code, it must be regarded as within the jurisdic
tion of the Trial Division. However, the applica
tion for a stay should not be defeated by virtue
only of the fact that it was launched in the wrong
Division of the Court, and, by virtue of Rule 359, 4
I am, contemporaneously, making an order that it
be transferred to the Trial Division.
As the matter was argued before us on the
merits, with the acquiescence of the parties, I
shall, in due course, deal with the application, as
an ex officio judge of the Trial Division, if it
becomes necessary to do so.
* * *
PRATTE J. concurred.
* * *
URIE J. concurred.
3 Section 26(1) reads as follows:
26. (1) The Trial Division has original jurisdiction in
respect of any matter, not allocated specifically to the Court
of Appeal, in respect of which jurisdiction has been conferred
by any Act of the Parliament of Canada on the Federal
Court, whether referred to by its new name or its former
name.
° Rule 359 reads as follows:
Rule 359. The Chief Justice, or another judge designated by
him for the purpose, may, if it appears just to do so having
due regard to the interests of all parties, order that a matter
that has been commenced in one Division be transferred to
the other Division, and may give incidental directions for the
further conduct of the matter.
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.