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.
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.