T-3554-79
The Queen in right of Canada and Attorney Gen
eral of Canada (Plaintiffs)
v.
The National Association of Broadcast Employees
and Technicians, Armand Bergeron, Bryon Lowe,
Roch Sarrazin, Ones St, Amour, Jose Lalonde,
Andre Villeneuve, Bernard Maguire, Robert Sey-
chuk, Al Donovan, Richard Jamieson, Jacques
Gilbert, Denis Meloche, Les Peers, Phillip Col-
borne, Rene Paquet, Michel Masse, Paul Thi-
beault (Defendants)
Trial Division, Thurlow A.C.J.—Ottawa, July 21,
1979.
Prerogative writs Interim injunction Labour relations
— Jurisdiction — Jurisdiction not specifically withdrawn
from superior courts by 1977-78 amendment to Canada
Labour Code, and application pursuant to s. 17(4) of Federal
Court Act without limitations comparable to s. 23 — Factors
militating against exercise of jurisdiction — Jurisdiction exer
cised because date on which Canada Labour Relations Board
was prepared to deal with application was too late to prevent
inconvenience and damage of anticipated withdrawal of ser
vices and because anticipated breach advocated by union offi
cials in a way indicating a deliberate purpose to flout the law
— Canada Labour Code, R.S.C. 1970, c. L-1, ss. 180(2), 182
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
17(1),(4), 23.
APPLICATION.
COUNSEL:
E. A. Bowie and L. S. Holland for plaintiffs.
No one appearing for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff the Queen in right of Canada.
No one appearing for defendants.
The following are the reasons for order deliv
ered orally in English by
THURLOW A.C.J.: This is an application for an
interim injunction to restrain violation by the
defendants of subsection 180(2) of the Canada
Labour Code'. At the hearing two of the defend
ants attended but made no representations. In the
course of the hearing, I granted leave to add the
Attorney General of Canada as a plaintiff on filing
his consent thereto subject to any just exception
thereto that might be made within ten days by any
interested party.
In McKinlay Transport Limited v. Goodman 2 I
expressed the opinion that as a result of amend
ments to the Canada Labour Code including the
new section 182 3 this Court does not have jurisdic
tion under section 23 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, 4 to entertain such
an application. The present application is, how
' R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18.
180. ...
(2) No employee shall participate in a strike unless
(a) he is a member of a bargaining unit in respect of
which a notice to bargain collectively has been given under
this Part; and
(b) the requirements of subsection (1) have been met in
respect of the bargaining unit of which he is a member.
2 [19791 1 F.C. 760.
3 S.C. 1977-78, c. 27.
182. Where an employer alleges that a trade union has
declared or authorized a strike, or that employees have
participated, are participating or are likely to participate in a
strike, the effect of which was, is or would be to involve the
participation of an employee in a strike in contravention of
this Part, the employer may apply to the Board for a
declaration that the strike was, is or would be unlawful and
the Board may, after affording the trade union or employees
an opportunity to be heard on the application, make such a
declaration and, if the employer so requests, may make an
order
(a) requiring the trade union to revoke the declaration or
authorization to strike and to give notice of such revoca
tion forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the
strike;
(c) requiring any employee who is participating in the
strike to perform the duties of his employment; and
(d) requiring any trade union, of which any employee with
respect to whom an order is made under paragraph (b) or
(c) is a member, and any officer or representative of that
union, forthwith to give notice of any order made under
paragraph (b) or (c) to any employee to whom it applies.
4 23. The Trial Division has concurrent original jurisdiction
as well between subject and subject as otherwise, in all cases in
which a claim for relief is made or a remedy is sought under an
Act of the Parliament of Canada or otherwise in relation to any
matter coming within any following class of subjects, namely
bills of exchange and promissory notes where the Crown is a
party to the proceedings, aeronautics, and works and undertak
ings connecting a province with any other province or extending
beyond the limits of a province, except to the extent that
jurisdiction has been otherwise specially assigned.
ever, made under subsection 17(4) of the Federal
Court Acts which contains no limitation compa
rable to that in the concluding words of section 23.
In this situation, counsel for the plaintiffs submit
ted that as the Court, previous to the 1977-78
amendment of the Canada Labour Code, had
jurisdiction to enforce subsection 180(2) by injunc
tion and as the amending Act did not specifically
or with clear wording manifest a purpose to with
draw such jurisdiction from the superior courts
this Court still has jurisdiction to enforce subsec
tion 180(2) by injunction. From the point of view
of the bare question of jurisdiction, and without
having heard argument to the contrary, I am
inclined to think the submission is sound.
But, in considering whether the jurisdiction so
left with the Court should be exercised, it seems to
me that the obvious policy of the amendment to
place the enforcement of the provision under the
authority of the Canada Labour Relations Board
and to give it power to issue injunctive relief
broader than that available in superior courts,
militates strongly against interference by the
Court. And, if that be a valid consideration, it
appears to me to apply a fortiori where as in the
present instance, the Board already has before it
an application for relief by injunction in respect of
matters which include the particular matter now
before this Court.
To that is to be added the fact that there is, in
my view, serious doubt as to the right of the
Crown to maintain this proceeding simply as the
principal for whom the Canadian Broadcasting
Corporation acts as agent in matters other than
5 17....
(4) The Trial Division has concurrent original jurisdiction
(a) in proceedings of a civil nature in which the Crown or
the Attorney General of Canada claims relief; and
(b) in proceedings in which relief is sought against any
person for anything done or omitted to be done in the
performance of his duties as an officer or servant of the
Crown.
those referred to in subsection 38(3) of the Broad
casting Act 6.
On the other hand, it has been made to appear
in the material before the Court that the Canada
Labour Relations Board is not prepared to deal
with the application before it, before July 27,
1979, by which time it will be too late to prevent
the inconvenience and damage which the
anticipated withdrawal of services will cause in
respect of the scheduled performances which are
the subject matter of this application.
In addition, there is the fact that on the material
before me, the breach to be anticipated has been
advocated by union officials in such a manner as to
indicate a deliberate purpose to flout the statute.
In these circumstances, and particularly having
regard to the inability of the Canadian Broadcast
ing Corporation to obtain a hearing of the matter
before the Canada Labour Relations Board in time
to obtain any effective relief in respect of the
subject matter of the present application, I think
this must be regarded as so exceptional a case that
the Court should intervene to prevent a flouting of
the law and the denial of any effective remedy.
The order will therefore go restraining the
defendants as prayed until Monday, July 30.
6 R.S.C. 1970, c. B-11.
38....
(3) The Executive Vice-President and the officers and
employees employed by the Corporation pursuant to subsec
tion (2) shall, subject to section 44, be employed on such
terms and conditions and at such rates or remuneration as
the Corporation deems fit and the Executive Vice-President
and such officers and employees are not officers or servants
of Her Majesty.
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.