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Mario Paradis (Appellant)
v.
Verreault Navigation Inc. (Respondent)
and
Canada Labour Relations Board (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, March 17; Ottawa, March 22, 1978.
Practice — Application to file order of Canada Labour Relations Board under s. 123 of Canada Labour Code — Application dismissed by Trial Division — Whether or not order and supporting material need be reviewed by judge prior to registration and filing — Canada Labour Code, R.S.C. 1970, c. L-/, s. 123 — Federal Court Rule 2(/)(h).
This appeal is from a judgment of the Trial Division dismiss ing appellant's application for leave to file with the Court, in accordance with section 123 of the Canada Labour Code, a copy of decision delivered by the Canada Labour Relations Board.
Held, the appeal is allowed. It is not necessary to obtain leave from the Court to file a copy of a Board decision under section 123 for a document is filed in the Court by being filed in the Registry (see Rule 2(1)(h)). Although section 123 prescribes certain conditions to be met on filing, it does not imply that filing must be preceded by a judgment toconfirm the existence of such circumstances. The official in charge of the Registry, however, must be satisfied that the decision may be filed under section 123—by supporting affidavit, for exam ple. If a creditor, after a decision has been filed and registered, forces execution of the decision or has the other party penalized for non-compliance in accordance with section 123(2), the Court might then be called upon to decide whether the decision was carried out, or if it was not, whether this failure was excusable.
APPEAL. COUNSEL:
Joseph R. Nuss, Q.C., and Gary H. Waxman
for appellant.
Rémi Chartier for respondent.
No one present for mis -en-cause.
SOLICITORS:
Ahern, Nuss & Drymer, Montreal, for appellant.
Langlois, Drouin, Roy, Fréchette & Gau- dreau, Quebec, for respondent.
Canada Labour Relations Board, Ottawa, for mis -en-cause.
The following is the English version of the reasons for decision rendered by
PRATTE J.: This appeal is from a judgment of the Trial Division dismissing appellant's applica tion for leave to file with the Court, in accordance with section 123 of the Canada Labour Code', a copy of the decision delivered by the Canada Labour Relations Board on July 15, 1977.
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 subsec tion (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 proceed ings may be taken thereon as if the order or decision were a judgment obtained in that Court.
On January 15, 1977, the Board found in favour of a complaint made by appellant against respond ent and held that respondent had committed a breach of section 184(3)(a)(î) of the Code 2 by refusing to continue to employ appellant, and ordered appellant to be reinstated in his former duties. The order made by the Board reads as follows:
R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18.
2 This provision reads as follows:
184... .
(3) No employer and no person acting on behalf of an
employer shall
(a) refuse to employ or to continue to employ any person
or otherwise discriminate against any person in regard to
employment or any term or condition of employment,
because the person
(i) is a member of a trade union,
NOW, THEREFORE, the Canada Labour Relations Board hereby:
(1) orders, pursuant to section 189 of the Canada Labour Code, the respondent, Verreault Navigation Inc., to reinstate forthwith Mario Paradis in the same position he occupied at the end of the 1976 shipping season, without loss of the wages which he would have received or of the rights and privileges which he would have enjoyed, had the respondent not failed to comply with the provisions of the Canada Labour Code, (Part V—Industrial Relations); and
(2) reserves, with the consent of the parties, its jurisdiction to determine the amount of compensation payable pursuant to the provisions of Section 189(b)(ii) of the Canada Labour Code, in the event that the parties are unable to come to an agreement thereon.
It was a copy of this decision that appellant wished to file in the Court in accordance with section 123. The reason that he believed it was necessary to ask the Trial Division for leave to do so was that it had recently been held that a decision of the Board could not be filed, pursuant to section 123, unless leave to do so had previously been granted by the Court upon application served upon the opposing party and supported by an affidavit establishing the existence of the condi tions required by section 123(1) for the filing of such a decision.' The Trial Judge dismissed appel lant's application because, on the basis of the same law, he felt that appellant had failed to prove the existence of these conditions.
In deciding this appeal it is not necessary to examine and assess the reasons for the impugned judgment. It appears to me that appellant's application should have been dismissed for a reason other than those cited by the Trial Judge. In my view, a person who wishes to file a copy of a Board decision in accordance with section 123 does not have to obtain leave from the Court to do so. Appellant's application should therefore have been dismissed because it was unnecessary.
Section 123 provides that under the conditions which it specifies a decision of the Board may be filed in the Court. A document is filed in the Court by being filed in the Registry (see Rule 2(1)(h)). There is no need for the judge to intervene. It is
3 International Brotherhood of Electrical Workers, Local Union No. 529 v. Central Broadcasting Company Ltd. [ 1977] 2 F.C. 78 (Cattanach J.); also the decision of Walsh J. in Public Service Alliance of Canada, Local 660 v. Canadian Broadcast ing Corporation [1976] 2 F.C. 151.
true that according to section 123 the document cannot be filed unless certain conditions exist. In my view, however, this requirement does not imply that the filing must be preceded by a judgment confirming the existence of such circumstances. A person who wishes to file a decision of the Board must, of course, satisfy the official in charge of the Registry that the decision may, in fact, be filed under section 123 (for example by producing an affidavit to prove the existence of the circum stances described in that section). The official will then make the purely administrative decision whether to accept the document or not.
The simple fact of filing a decision of the Board in the Court does not in itself appear to be fraught with consequences. I see no reason to make it subject to a prior judgment by the Court. If after filing a decision in the Court and having it regis tered, a creditor then avails himself of section 123(2) either to force execution of the decision or to have the other party penalized for failing to comply with it, the Court might then be called upon to decide whether the decision was carried out, and if it was not, whether this failure was excusable. It is at that time, and not before, that these questions should be decided.
For these reasons, I would dismiss the appeal without costs.
LE DAIN J.: I concur.
HYDE D.J.: I concur.
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