T-3524-75
The Public Service Alliance of Canada, Local 660,
Radio-Television Division, and The Public Ser
vice Alliance of Canada, Radio-Television Divi
sion (Production Group) (Applicants)
v.
The Canadian - Broadcasting Corporation
(Respondent)
and
Arbitrator Pierre N. Dufresne, ès-qualité, Mont-
real, District of Montreal (Mis -en-cause)
Trial Division, Addy J.—Montreal, November 3;
Ottawa, November 14, 1975.
Crown—Motion to quash and set aside writ of fieri facias—
CBC property seized following registration of arbitrator's
decision—Whether CBC property immune from seizure—
Whether writ of fieri facias cannot be issued because arbitra
tor's decision does not mention fixed amount—Canada Labour
Code, R.S.C. 1970, c. L-1, s. 159—Broadcasting Act, R.S.C.
1970, c. B-11, ss. 38(3), 40(1),(3)—Federal Court Act, ss.
56(5), 57(3).
Following registration in this Court of an arbitrator's deci
sion under the Canada Labour Code, a seizure of respondent's
property was effected as authorized by a writ of fieri facias,
issued on production of an affidavit showing $880,880 as owing
under the decision. Respondent claims (1) that its property is
Crown property, and immune from seizure, and a writ of fieri
facias cannot validly be issued against it, and (2) that as the
decision mentions no fixed amount, such a writ cannot be
issued thereunder.
Held, quashing the seizure and prohibiting any executory
proceeding, the writ was void ab initio. (1) Corporations acting
solely as delegates or agents of the Crown enjoy the same
immunities and prerogatives as the Crown. The CBC is such a
corporation. Further, by statute, CBC property is considered
Crown property. While it was argued that section 159(2) of the
Canada Labour Code creates an exception to the rule, and
renders Crown property subject to seizure, such an interpreta
tion would mean that registration would not have the "same
effect" as a judgment, but one much wider, creating an execu-
tory right against the Crown, whereas the effect of any judg
ment against the Crown can only be declaratory. This principle
has been codified in section 56(5) of the Federal Court Act. It
has long been established that the Crown can only lose its
prerogatives under an Act which contains a clear and concise
statement to that effect, and, an Act to which a party attempts
to ascribe such a result must be interpreted in favour of the
Crown and against the party alleging that it has renounced its
prerogatives. Therefore, section 159 does not derogate from
Crown prerogatives pertaining to an ordinary judgment. (2) It
has always been clear that for a writ of fieri facial to be issued,
the judgment must specify the amount, or it must be ascertain
able without additional proof. This is not so here; thus, even if
it were possible to issue a writ of fieri facias against respond
ent, it would not be by virtue of the arbitrator's decision.
MOTION.
COUNSEL:
P. Cutler and P. Langlois for applicants.
J. Ouellet for respondent.
SOLICITORS:
Cutler, Langlois and Castiglio, Montreal, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
ADDY J.: The present case involves a motion by
the Canadian Broadcasting Corporation to set
aside and quash a writ of fieri facias issued by the
Registrar of this Court in Montreal against the
property of the Canadian Broadcasting Corpora
tion.
On October 28, 1975, the Public Service
Alliance of Canada, Local 660, and the Public
Service Alliance of Canada (hereinafter referred
to as "the Alliance"), pursuant to section 159 of
the Canada Labour Code', filed in the registry of
the Federal Court in Montreal a decision of the
Arbitrator, dated the 25th of March, 1975, and
signed in accordance with the Canada Labour
Code in an arbitration between the parties. Section
159(2) reads as follows:
159. (2) On filing in the Federal Court of Canada under
subsection (1), an order or decision of an arbitrator or arbitra
tion board shall be registered in the Court and, when regis
tered, has the same force and effect, and all proceedings may
be taken thereon, as if the order or decision were a judgment
obtained in the Court. [The underlining is mine.]
Following registration of the decision, the
Alliance filed an affidavit stating that, according
to the decision of the Arbitrator, the amount
owing was approximately $880,880. At the request
of the Union, the Registrar issued the writ of fieri
S.C. 1972, c. 18.
facias when this affidavit was produced. A bailiff
subsequently carried out a seizure of the property
of the Canadian Broadcasting Corporation as
authorized by this writ.
The Canadian Broadcasting Corporation is
basing this motion on two main arguments: (1)
that the property of the Canadian Broadcasting
Corporation is Crown property and, since the
Crown cannot be the subject of an executory judg
ment all of its property is immune from seizure,
and an executory writ of fieri facias cannot be
validly issued against it; (2) that the arbitrator's
decision does not mention any fixed amount as
being payable and, consequently, a writ of fieri
facias cannot be issued under the authority of such
a document.
It seems clear that corporations that are, in the
performance of their duties, acting solely as dele
gates or agents of the Crown enjoy as such the
same prerogatives and immunities as the Crown
itself (see Lortie v. The Public Service Alliance of
Canada 2 ; Caron v. Canadian Broadcasting
Corporation 3 ; The Canadian Broadcasting Corpo
ration v. The Attorney-General for Ontario 4 ; and
Formea Chemicals Limited v. Polymer Corpora
tion Limited 5 ).
Section 40(1) of the Broadcasting Act 6 reads as
follows:
40. (1) Except as provided in subsection (3) of section 38,
the Corporation is, for all purposes of this Act, an agent of Her
Majesty, and its powers under this Act may be exercised only
as an agent of Her Majesty.
It is therefore clear that the Canadian Broad
casting Corporation is merely an agent of the
Crown and can act in this capacity only. Section
38(3) of the aforesaid Act reads as follows:
38. (3) The Executive Vice-President and the officers and
employees employed by the Corporation pursuant to subsection
(2) shall, subject to section 44, be employed on such terms and
conditions and at such rates of remuneration as the Corpora
tion deems fit and the Executive Vice-President and such
2 Unreported judgment of Aronovitch J. of the Superior
Court of the Province of Quebec, delivered on August 28, 1972,
No. 05-006196-72, pages 12 and 13.
[1957] S.C. 279.
4 [1959] S.C.R. 188.
[1968] S.C.R. 754.
6 S.C. 1967-68, c. 25.
officers and employees are not officers or servants of He]
Majesty.
This section does not deal with either the nature of
the function of the Canadian Broadcasting Corpo
ration itself, and applies only to the status of
employees, specifying that the status of employee:
of the Corporation does not confer upon suet
employees the privileges, duties or character of
Crown employees.
For greater certainty, despite the fact that, as t
general rule, property held by an organization
whose sole function is to act as an agent of the
Crown, is considered property of the Crown and
not of the agent, section 40(3) clearly makes spe
cific provision for this in the case of the Canadiar
Broadcasting Corporation. The section reads a:
follows:
40. (3) Property acquired by the Corporation is the propert3
of Her Majesty and title thereto may be vested in the name o1
Her Majesty or in the name of the Corporation.
Notwithstanding the general principle providing
for immunity of the Crown against any executor)
judgment, and notwithstanding subsections 40(1)
and 40(3) of the Broadcasting Act, counsel for the
Alliance argues that section 159(2) of the Canadc
Labour Code, and especially the words "... and all
proceedings may be taken thereon," create ar
exception to the general rule and render Crowr
property subject to seizure in such a case. In order
to apply such a meaning to these words, it would
be necessary to disregard completely the preceding
part of the text, particularly the word "same" in
the expression "... when registered, has the same
force and effect ... as if [it] were a judgment
obtained in the Court." It follows that counsel fot
the Alliance is not asking that the registration
have the same effect as a judgment, but a much
wider effect and a broader scope, creating an
executory right against the Crown, whereas the
effect of any judgment against it can only be
declaratory. This principle has not only always
been recognized by the general law, but was codi
fied by section 56(5) of the Federal Court Acl
which reads as follows:
56. (5) No execution shall issue on a judgment given by the
Court against the Crown.
Moreover, section 57(3) of the Federal Court
Act provides that any money awarded against the
Crown in any proceeding shall be paid out of the
Consolidated Revenue Fund and Federal Court
Rule 1800 provides for a mechanism whereby the
judgment is forwarded by the registry to the
Deputy Attorney General of Canada.
With regard to the interpretation that counsel
for the Alliance is attempting to attribute to sec
tion 159 of the Canada Labour Code, it has long
been established in case law that the Crown can
only lose its prerogatives under an Act which
contains a clear and precise statement to that
effect, and that any Act to which a party attempts
to ascribe such a result must be interpreted in
favour of the Crown and against whoever alleges
that it has renounced its prerogatives. Therefore, I
have no hesitation in concluding that section 159
of the Canada Labour Code does not derogate
from the prerogatives of the Crown pertaining to
an ordinary judgment and that, in the case at bar,
a writ of fieri facias cannot be validly issued
against it.
With respect to the second submission of coun
sel for the Canadian Broadcasting Corporation, it
has always been clear that for a writ of fieri facias
to be issued pursuant to a judgment of any court,
the judgment must specify the amount or all the
figures required to compute the final amount, and
it must be possible to arrive at the amount on the
basis of information provided in the judgment,
without any additional proof being required to
determine the amount to be specified in the writ of
fieri facias. This condition does not apply in the
case at bar since the Arbitrator's decision does not
specify an amount and because the amount had to
be determined on an approximate basis pursuant
to an affidavit by an officer of the Alliance, and is
not based on specific figures contained in the
Arbitrator's report. It is therefore clear that, even
if it were possible to issue a writ of fieri facias
against the Crown or against the property held by
the Canadian Broadcasting Corporation on behalf
of the Crown, such a writ could not be issued by
virtue of the Arbitrator's decision registered in the
Federal Court by the Alliance on October 28,
1975.
For these reasons, I find that the writ of fieri
facias issued in the case at bar was void ab initio, I
quash any seizure made under the authority of this
writ and prohibit any executory proceeding in this
case.
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