T-3280-78
McKinlay Transport Limited (Plaintiff)
v.
Joseph Goodman, John Dovak, Garry DeBeau,
Larry Ballah, Robin Jones, Charles Ballah and
Vittorio Griffi (Defendants)
Trial Division, Thurlow A.C.J.—Ottawa, July 25
and 27, 1978.
Jurisdiction — Labour relations — Practice — Application
for continuation of ex parte interim injunction and for inter
locutory injunction — Illegal strike by employees — Applica
tion based on alleged breach of s. 180(2) of Canada Labour
Code — Whether or not Court has jurisdiction to grant
interlocutory injunction, and if it has jurisdiction, whether or
not Court would exercise discretion to grant it — 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. 2, 23.
This is an application for an order continuing an ex parte
interim injunction and for an interlocutory injunction until the
trial or final disposition of this action. An illegal strike by
plaintiffs employees is or was in progress when the ex parte
interim injunction was ended. The plaintiffs claim is based on
the alleged violation of subsection 180(2) of the Canada
Labour Code, and on the underlying common law on which the
Code is grafted.
Held, the application is dismissed. The relief sought is not
available in this Court. In so far as its case is based on common
law principles as opposed to the Code, the matter is concluded
in Quebec North Shore Paper Co. v. Canadian Pacific Ltd. The
concluding words of section 23 of the Federal Court Act apply
to the situation created by section 182 of the Canada Labour
Code as a whole, which assigns to the Canada Labour Rela
tions Board jurisdiction inter alia to enjoin employees from
participating in a strike. Even if the Court were wrong in
concluding that it is without jurisdiction, it would exercise its
discretion to refuse to grant the injunction. Even though the
extensive amendments to the Canada Labour Code do not
specifically purport to withdraw from the superior courts juris
diction to issue injunctions in respect of conduct arising out of
labour disputes, the Court can and ought to take into account
in exercising its discretion that Parliament has shown its dispo
sition that such matters be dealt with by the Board on the
principles which it applies in the search for achievement of the
objectives of the legislation rather than by the courts. Further,
there is nothing before the Court to show that prompt and
effective relief is not obtainable by the plaintiff in proceedings
before the Canada Labour Relations Board.
Quebec North Shore Paper Co. v. Canadian Pacific Ltd.
[1977] 2 S.C.R. 1054, applied.
ACTION.
COUNSEL:
Claude Thomson, Q.C. and Mrs. L. Price for
plaintiff.
H. F. Caley for defendant Joseph Goodman.
No one appearing for the other defendants.
SOLICITORS:
Campbell, Godfrey & Lewtas, Toronto, for
plaintiff.
Caley & Wray, Toronto, for defendant Joseph
Goodman.
The following are the reasons for order ren
dered in English by
THURLOW A.C.J.: This is an application for an
order continuing an interim injunction, granted on
July 20, 1978, on an ex parte application, and for
an interlocutory injunction until the trial or other
final disposition of this action:
(a) restraining the defendants and each of them and any
person acting under their instructions or in concert with them
or any other person from declaring, authorising, counselling,
aiding or engaging in or conspiring with others to bring about
or continue an unlawful strike with respect to the employ
ment of employees of the plaintiffs [sic] in combination or in
concert or in accordance with a common understanding;
(b) restraining the defendants and each of them and any
person acting under their instructions or in concert with them
or any other person from
(i) watching, besetting or picketing or attempting to
watch, beset or picket at or in the vicinity of the Canadian
Customs Compound on Walnut Street, in Fort Erie,
Ontario, or any of the terminals operated by the plaintiff
in Ontario; and
(ii) interfering with the servants, agents, employees or
suppliers of the plaintiffs [sic] or any other persons seeking
peaceful entrance to or exit from said premises by the use
of force, threats, intimidation, coercion or any other
manner or means;
(iii) ordering, aiding, abetting, counselling or encouraging
in any manner whatsoever, either directly or indirectly any
person to commit the acts aforesaid or any of them; ...
That an illegal strike is or was in progress when
the ex parte injunction was granted was not dis-
puted. Nor was it disputed that the defendants
participated in it or that they were employees of
the plaintiff. Counsel appeared for the Teamsters
Union, Local 879, to which notice of this applica
tion had been given as directed by the interim
order, and for the defendant Goodman and took
the position that the Court was without jurisdic
tion to entertain the action or to grant interlocuto
ry relief therein. None of the other defendants
appeared or was represented though all but the
defendant Griffi had been served.
The plaintiff's claim as pleaded is based on
alleged violation of subsection 180(2)' of the
Canada Labour Code 2 and on breach of a term of
a collective agreement providing that there should
be no strike for any reason by the employees
during the term of the agreement. At the hearing
the breach of the collective agreement was aban
doned as a basis for an interlocutory injunction.
Counsel for the plaintiff founded his submissions
on subsection 180(2) and what he referred to as
the underlying common law on which the Code has
been grafted. In so far as his case is founded on
common law principles as opposed to the provi
sions of the Code itself, I am of the opinion that
the matter is concluded against him by the judg
ment of the Supreme Court in Quebec North
Shore Paper Co. v. Canadian Pacific Ltd. 3 If the
Code were not in existence, the only law applicable
under which he could claim relief in respect of
tortious conduct by illegal striking, besetting or
picketing of the plaintiff's undertaking, as I see it,
would be the law of the Province of Ontario.
I should note at this point that, if the present
matter fell to be decided merely on a balance of
convenience, I would think the balance was heavily
in favour of the plaintiff. The plaintiff has suffered
and is likely to suffer severe and not readily esti-
' Subsection 180(2) reads:
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 R.S.C. 1970, c. L-1.
3 [1977] 2 S.C.R. 1054.
mable damage as a result of the stoppage of its
operation while the defendants, so far as appears,
would suffer no damages at all if restrained until
the trial of the action. But I do not think the
application can or should be dealt with on that
basis. The remedy of injunction is always discre
tionary and, where on the case presented there is
serious reason to doubt the Court's jurisdiction to
entertain the action, the discretion may, in my
opinion, be exercised in favour of refusing an
injunction.
More especially is this so where, as in the
present instance, if the plaintiff has a cause of
action in any superior court for damages and an
injunction in respect of illegal striking and illegal
picketing and illegally causing work stoppage, such
action can be pursued in the Supreme Court of
Ontario, and where there is also a further avenue
for relief including injunction by proceedings
before the Canada Labour Relations Board under
the provisions of the Canada Labour Code. For as
I view the matter, not only is the only law of
Canada on which the plaintiff can rely in this
Court the Canada Labour Code, but the only
provision of the Code on which a fairly arguable
case for an injunction can be sustained is subsec
tion 180(2) which simply prohibits an employee
from participating in an illegal strike and does not
necessarily cover or prohibit watching or picketing
or besetting save in so far as such actions are
themselves part of an employee's participation in
the strike. In this aspect, whether or not this Court
has jurisdiction may well depend on facts which
have yet to be explored.
There is a further consideration that appears to
me to bear on whether or not the discretion should
be exercised to grant an interlocutory injunction
even if the Court has jurisdiction to entertain the
action and the application and the case for an
injunction is otherwise made out. Parliament has
recently enacted extensive amendments to the
Canada Labour Code which, in my view, demon
strate that the purpose was to vest in the Canada
Labour Relations Board extensive and far reach
ing powers to deal with labour relations in the
works and undertakings to which the statute
applies including the granting of injunctions
enjoining employees from participating in strikes,
and the making of orders requiring employees to
perform the duties of their employment—a power
not exercised by a Court of equity. Not only has
the Board been vested with powers more extensive
and particular than those of the courts in such
situations but the area in which the Board's deci
sions are open to attack and review has been
narrowed by the amendments. The power previ
ously reserved to the Minister of authorizing pros
ecution for violation of the Act has also been
vested in the Board. In the face of these provisions,
even though the legislation does not specifically
purport to withdraw from the superior courts juris
diction to issue injunctions in respect of conduct
arising out of labour disputes, it seems to me that
the Court can and ought to take into account in
exercising its discretion that Parliament has shown
its disposition that such matters be dealt with by
the Board on the principles which it applies in the
search for achievement of the objects of the legis
lation rather than by the courts. It is perhaps
unnecessary to add that court injunctions have not
been notoriously successful as a device for achiev
ing harmonious labour relations or for resolving
labour disputes.
A further aspect of the matter with respect to
the exercise of discretion is that there is nothing
before me to show that prompt and effective relief
is not obtainable by the plaintiff in appropriate
proceedings therefor before the Canada Labour
Relations Board.
I turn now to the question whether the Court
has jurisdiction to entertain the action. I may say
that I am attracted by the submission that on the
statute as amended the principle of Barraclough v.
Brown 4 applies and that, as Parliament has, by the
same statute in which it has given whatever right,
if any, the plaintiff may have to an injunction in
the circumstances, conferred on the Canada
Labour Relations Board the jurisdiction to enforce
that right, the only recourse open to the plaintiff
for the relief sought is that provided for by the
statute, that is to say, recourse to the Board. But I
do not decide the matter on that ground. I prefer
to decide it on the narrower ground that the relief
4 [1897] A.C. 615.
sought is not available in this Court.
Section 23 of the Federal Court Act on which
the plaintiff relied as establishing jurisdiction in
this Court provides:
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.
"Relief" is defined in section 2 as including
. every species of relief whether by way of damages, payment
of money, injunction, declaration, restitution of an incorporeal
right, return of land or chattels or otherwise;
The concluding words of section 23, "except to
the extent that jurisdiction has been otherwise
specially assigned", were recently considered and
applied by the Court of Appeal in Canadian
Pacific Limited v. United Transportation Unions
in holding that the Trial Division did not have
jurisdiction under the section by reason of section
155 of the Canada Labour Code and an arbitra
tion agreement for the settlement of disputes be
tween the parties. Ryan J. with whom Heald and
Urie JJ. concurred said [at pages 625-627]:
There is a final submission by the appellant. This is the
submission that, assuming the subject matter of the action is
one that falls within the scope of the Canadian Railway
Arbitration Agreement, the jurisdiction of the Trial Division is
not ousted by the provision of the Arbitration Agreement for
final settlement.
With reference to this submission, I would start by referring
to Clause 13 of the Canadian Railway Arbitration Agreement
which provides that a decision of the Arbitrator shall be final
and binding. I refer next to section 155 of the Canada Labour
Code, which is in these terms:
155. (1) Every collective agreement shall contain a provi
sion for final settlement without stoppage of work, by arbi
tration or otherwise, of all differences between the parties to
or employees bound by the collective agreement, concerning
its interpretation, application, administration or alleged
violation.
5 [1979] 1 F.C. 609.
(2) Where a collective agreement does not contain a
provision for final settlement as required by subsection (1),
the Board shall, on application by either party to the collec
tive agreement, by order, furnish a provision for final settle
ment, and a provision so furnished shall be deemed to be a
term of the collective agreement and binding on the parties
to and all employees bound by the collective agreement.
Section 155 establishes a system for the final settlement,
without stoppage of work, of disputes arising under collective
agreements. Every collective agreement must contain a provi
sion for final settlement of the types of differences specified in
subsection (1). The parties to an agreement are thus under a
duty to provide for such final settlement by arbitration or by
some other means. If they fail to fulfil this duty (possibly by a
good faith failure to select a method), the Board itself is to
make the provision on the application of either party, and the
provision so determined becomes part of the collective agree
ment. It is within this context that the effect of the closing
words of section 23 of the Federal Court Act must be deter
mined. And it is my view that in this case the selection, by the
parties, of arbitration as the means of final settlement did
constitute a special assignment of jurisdiction to determine the
issues posed by the present action.
It is true that the parties might have chosen another method;
it is also true that they might have failed to choose a method
and, accordingly, the Canada Labour Relations Board might
have had to furnish a provision for final settlement on applica
tion by a party. I, of course, recognize that the duty of the
Board to furnish such a provision arises only when one of the
parties makes an application. Subsection 155(1) does, however,
itself require that every collective agreement shall provide a
method for final settlement without stoppage of work, and the
parties to the agreement have chosen arbitration as that
method. It is not necessary to speculate on what the situation
would have been if they had not done so.
No other case was cited, and I am not aware of
any, in which the concluding words of section 23 of
the Federal Court Act have been considered or
applied but it seems to me that, if they apply to the
situation created by section 155 of the Canada
Labour Code in imposing, in effect, arbitration as
the means of settling disputes between parties to
collective agreements, they also apply to the situa
tion created by the new section 182 6 in the context
of the Code as a whole, which assigns to the
Canada Labour Relations Board jurisdiction inter
6 182. Where an employer alleges that a trade union has
declared or authorized a strike, or that employees have par
ticipated, 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
alia to enjoin employees from participating in a
strike. I am accordingly of the opinion that the
Court does not have jurisdiction to entertain the
plaintiffs claim for an injunction or to grant the
interlocutory relief which the plaintiff seeks.
It follows that the application must be dismissed
but I should add that, if I am wrong in concluding
that the Court is without jurisdiction, I would
nevertheless, for the reasons given, exercise the
discretion of the Court to refuse the injunction.
ORDER
The application is dismissed with costs.
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 revocation
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.
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.