T-3524-75
The Public Service Alliance of Canada, Local 660
and The Public Service Alliance of Canada
(Petitioners)
v.
The Canadian Broadcasting Corporation
(Respondent)
and
Arbitrator Pierre N. Dufresne, is goal,
(Mis -en-cause)
Trial Division, Walsh J.—Montreal, December 2.
1975.
Labour relations—Practice—Petitioner contending respond
ent has not complied with arbitration award Award regis
tered without prior notice—Respondent not given opportunity
to deny non-compliance before registration Canada Labour
Code, R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18, ss.
159(1),(2) Federal Court Rules 319, 321.
Respondent moves to annul and strike the registration of an
arbitration award registered October 8, 1975, because notice of
motion was only served on respondent October 9, 1975. Peti
tioners claim that under section 159(2) of the Canada Labou,
Code no prior notice is necessary for registration, and that once
registered, proceedings may be taken as if it were a Court
judgment.
Held, the motion is granted. Section 159(2) must be read
with section 159(1) which provides for the filing of such a
decision after 14 days for registration in the Court where the
arbitrator's order has not been complied with. This condition
must be met before filing for registration can be made. While
petitioners' motion to register was accompanied by an affidavit
setting out the facts as per Rule 319 (i.e. non-compliance), nc
details were given, nor was the motion served on respondent
before registration to allow denial. This is contrary to Rule 321
and the audi alteram partem rule. Establishment of non-com
pliance with the award is the sine qua non of registration.
While an award should speak for itself, it is for the Trial Judgc
to decide whether his decision as to whether the award has not
been complied with can be made based on only the affidavits.
or after hearing evidence.
PETITION to annul and strike the registration or
October 8, 1975 of an arbitration award renderec
on May 25, 1975 by Mr. Pierre N. Dufresne.
COUNSEL:
G. Castiglio and P. Langlois for petitioners.
J. Duellet for respondent.
SOLICITORS:
Cutler, Langlois and Castiglio, Montreal, for
petitioners.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: The arbitration award in the above
matter was registered in this Court on October 8,
1975 pursuant to section 159 of the Canada
Labour Code (R.S.C. 1970 c. L-1 as replaced by
S.C. 1972 c. 18) although notice of motion to
register same and issue a writ of fieri facias was
only served on respondent on October 9, 1975. The
writ of fieri facias was found to be null ab initio
by judgment of Mr. Justice Addy dated November
14, 1975 who also forbade any execution proceed
ings in this matter. However the issue was not
raised before him of the invalidity of the registra
tion as a result of same having been made without
service of notice of motion on the respondent so as
to give it the opportunity to contest same. Petition
er invokes section 159(2) of the Canada Labour
Code, arguing that the decision of the Arbitrator
can be registered in the Court without any prior
notice and when so registered has the same force
and effect and all proceedings may be taken there
on, as if the order or decision were a judgment
obtained in the Court. However this subsection
cannot be read without reference to subsection (1)
of section 159 which provides for the filing of such
a decision after 14 days for registration in the
Court "Where any person or organization has
failed to comply with any order or decision of an
arbitrator or arbitration board". This is a condi
tion which must be fulfilled before such a filing for
registration can be made and subsection (2)
merely sets out the effect of such a registration.
Rule 321 of the Federal Court Rules clearly pro
vides that unless otherwise authorized to be made
ex parte motions must be served on the opposite
parties at least 2 clear days before the hearing,
unless this is dispensed with. Rule 319 requires
that the motion shall be supported by an affidavit
setting out all the facts on which the motion is
based that do not appear from the record, and that
the adverse party may file an affidavit in reply,
and that by leave of the Court a witness may be
called to testify in relation to an issue of fact
raised by an application.
While petitioner's motion for inter alia, the
registration of the arbitration award was accom
panied by an affidavit setting out that respondent
has not complied entirely with the arbitration
award, no details were given as to which conditions
were not complied with, and more important it was
not served on the opposite party before the regis
tration was effected so as to give the respondent
the opportunity to deny, as it does, that the award
was not complied with. This is contrary to Federal
Court Rule 321 and to the basic principle of equity
audi alteram partem. The establishment that the
arbitration award has not been complied with is a
condition sine qua non of its registration in this
Court.
It was brought out during the argument that
respondent contends that the award only affects its
employees in the Province of Quebec and it is not
denied that it has complied with it with respect to
these employees, whereas petitioners contend that
the award is applicable to the classification of all
employees of respondent affected by it in Canada.
This issue must eventually be decided and respond
ent, in support of its contentions would like to have
evidence of witnesses heard to establish the inten
tions of the Arbitrator as to the extent of the
award. I would seriously doubt the advisability of
this. An award should speak for itself and if there
is doubt there may be some provision by virtue of
which it may be referred back to the arbitrator for
clarification. It would be highly unusual to call
witnesses to attempt to explain what was intended
to be the scope of an award especially since section
159(1) in providing for the filing of a copy of the
award in the Federal Court for registration states
"exclusive of the reasons therefor". It will however
be up to the judge hearing the motion if same is
presented again, after due service, to decide
whether his decision as to whether the award has
not been complied with, and hence can be regis
tered should be made on the basis of affidavits
alone, or after hearing evidence.
ORDER
Respondent's motion to annul and strike the
registration in this Court on October 8, 1975 of
the arbitration award dated March 25, 1975 is
granted with costs, without prejudice to the right
of petitioners to present same again for registra
tion by means of a motion supported by a proper
affidavit or affidavits indicating how and to what
extent the award has not been complied with, to be
heard after service on respondent and an opportu
nity for it to reply thereto. In view of the fact that
the matter is of some urgency and a delay to allow
this order and the reasons therefor to be issued
simultaneously in both official languages pursuant
to the Official Languages Act would result in
injustice or hardship it is being issued in the first
instance in English and will thereafter as soon as
possible be issued in French.
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.