A-486-79
The National Association of Broadcast Employees
and Technicians, Armand Bergeron, Byron 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 (Appellants) (Defendants)
v.
The Queen in right of Canada and Attorney Gen
eral of Canada (Respondents) (Plaintiffs)
Court of Appeal, Pratte and Heald JJ. and Kerr
D.J.—Ottawa, November 13 and 20, 1979.
Jurisdiction — Labour relations — Prerogative writs —
Injunction — Appeal from Trial Division's decision to grant
an interim injunction enjoining appellants from violating s.
180(2) of the Canada Labour Code — Whether or not Trial
Division had jurisdiction to grant injunction — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 180(2), 182 as amended
by S.C. 1972, c. 18, s. 1 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 17(4), 23.
This is an appeal from an order of the Trial Division granting
an application for an interim injunction and enjoining appel
lants from violating section 180(2) of the Canada Labour
Code. Respondent the Queen sought the injunction, alleging
that it was seriously apprehended that operations of the CBC
would be disrupted by an illegal strike by some of its
employees. Appellants' only ground of appeal is that the Trial
Division was without jurisdiction in the matter. It is argued
that section 182 of the Canada Labour Code granted exclusive
jurisdiction to grant an injunction to prevent a violation of
section 180 of the Code to the Canada Labour Relations Board
and that no provision in the Federal Court Act or elsewhere
gives the Trial Division jurisdiction in the circumstances of this
case.
Held, the appeal is allowed.
Per Pratte J.: In amending the Canada Labour Code and
enacting section 182, Parliament did not confer an exclusive
jurisdiction on the Canada Labour Relations Board. Nothing in
section 182 indicates the clear intention of Parliament to take
the jurisdiction away from those Courts who exercised it. The
Trial Division lacked jurisdiction in this case, even though
section 17(4) read in isolation supports it, because section 17(4)
is modified by the language of section 23. As the only alterna
tive to an action between subject and subject is an action
between a public authority and a subject, the phrase in section
23 "as well between subject and subject as otherwise" means
"between subject and subject as well as between Her Majesty
or the Attorney General or another public authority and a
subject". It follows that in all the cases specified in section 23,
even those where the Crown (or the Attorney General) is
plaintiff or defendant, the jurisdiction of the Court is subject to
the limitation expressed in the last part of that section—
"except to the extent that jurisdiction has been otherwise
specially assigned". When the Crown is plaintiff or defendant,
section 23 has the effect, not of increasing the jurisdiction of
the Court, but of limiting the wide jurisdiction conferred on it
by section 17(1) and (4). Respondents' action, based on section
180 of the Canada Labour Code, was of a kind described in
section 23, and the jurisdiction to grant an injunction to prevent
a violation of section 180 is specially assigned to the Canada
Labour Relations Board where the application is made by the
employer. Although the applicants were Her Majesty and the
Attorney General, it is apparent from the statement of claim
that the respondents were merely acting on behalf of the
employer, Canadian Broadcasting Corporation.
Per Kerr D.J.: As the Attorney General was not acting in his
own right as guardian of the legal rights of the public this
decision should not be construed as implying that the Trial
Division does not have jurisdiction to grant, on an application
of the Attorney General acting as such a guardian, an injunc
tion against a threatened violation of section 180 of the Canada
Labour Code where there is no other remedy available in time
to prevent serious harm to the public.
APPEAL.
COUNSEL:
M. W. Wright, Q.C. for appellants (defend-
ants).
E. A. Bowie and L. S. Holland for respond
ents (plaintiffs).
G. Henderson, Q. C. for Canada Labour Rela
tions Board.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for appellants
(defendants).
Deputy Attorney General of Canada for
respondents (plaintiffs).
Gowling c& Henderson, Ottawa, for Canada
Labour Relations Board.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an appeal from an order of
the Trial Division [[1980] 1 F.C. 716] granting an
application for an interim injunction made by the
respondents and enjoining the appellants from
violating section 180(2) of the Canada Labour
Code, R.S.C. 1970, c. L-1 as amended by S.C.
1972, c. 18, s. 1.'
On July 20, 1979, Her Majesty the Queen in
right of Canada commenced an action in the Trial
Division and filed a statement of claim alleging, in
short, that it was seriously apprehended that the
operations of the Canadian Broadcasting Corpora
tion would be disrupted by an illegal strike of some
of its employees. The statement of claim concluded
as follows:
12. The Deputy Attorney General on behalf of the Canadian
Broadcasting Corporation claims as follows:
a) an injunction restraining the Defendants and any other
person having notice of the Order of this Court from par
ticipating in an unlawful strike of technicians employed by
the Canadian Broadcasting Corporation and from counsel
ling, aiding or conspiring with one another to participate in a
said strike and other injunctive relief that the Court deems
just; and
b) an interim judgement in the above terms.
On July 21, 1979, pursuant to an order of the
Associate Chief Justice, the Attorney General of
Canada was added as a plaintiff in the action.
On July 21, the respondents (plaintiffs in the
Court below) presented an application for an
interim injunction restraining the defendants
(appellants in this Court) from violating section
180 of the Canada Labour Code. This application
was granted by an order of the Associate Chief
Justice. It is against that order that this appeal is
directed.
The appellants' only ground of appeal is that the
Trial Division had no jurisdiction in the matter.
They say that the exclusive jurisdiction to grant an
injunction to prevent a violation of section 180 of
the Canada Labour Code belongs to the Canada
Labour Relations Board by virtue of section 182 of
that Code. And they add that, in any event, there
is no provision in the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, or elsewhere in the stat
utes, giving the Trial Division jurisdiction to pro
' That provision reads as follows:
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.
nounce an injunction in the circumstances of this
case.
Section 182 of the Canada Labour Code was
enacted in 1978 [S.C. 1977-78, c. 27, s. 64]. It
reads as follows:
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
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.
It is the appellants' contention that, in amending
the Code and enacting section 182, Parliament
conferred an exclusive jurisdiction on the Canada
Labour Relations Board. I cannot accept that
view. Until the enactment of that provision in
1978, the jurisdiction to restrain illegal strikes by
way of injunction was vested, if not perhaps in the
Federal Court, in the Superior Courts of the prov
inces. I see nothing in the language of section 182
which indicates the clear intention of Parliament
to take that jurisdiction away and, in my view, "It
would require ... the clearest expression or
implication in order to oust the jurisdiction of the
ordinary Courts of the country ...". 2
The sole question to be resolved is, therefore,
whether the Federal Court Act contains any provi
sion supporting the jurisdiction of the Trial Divi
sion in this matter. Counsel for the respondents
answers that question in the affirmative. The juris
t Per Lord Shaw of Dunfermline in Toronto Railway Com
pany v. Corporation of the City of Toronto [19201 A.C. 455 at
page 461.
diction of the Trial Division in this case, he says,
flows from section 17(4) of the Federal Court Act
under which:
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; ...
True, the Supreme Court of Canada has decided
that section 17(4) was validly enacted only inas
much as it conferred jurisdiction on the Court
when the Crown's action was founded on existing
federal law. 3 However, said counsel, the applicable
federal law in this case is to be found in section
180 of the Canada Labour Code.
In my opinion, it is not necessary to determine
whether the respondents' action is founded on
existing federal law because even if I assume the
correctness of the respondents' view on this point, I
am nevertheless of opinion that the Trial Division
lacked jurisdiction in this case. For the purposes of
the discussion, I am therefore ready to concede
that section 17(4), read by itself and in isolation,
would support the jurisdiction of the Court. How
ever, section 17(4) must not be read alone and its
effect, in my view, is modified by the language of
section 23. °
Section 23 provides that, in certain specified
cases, the "Trial Division has concurrent original
jurisdiction as well between subject and subject as
otherwise ... except to the extent that jurisdiction
has been otherwise specially assigned." In my
opinion, as the only alternative to an action be
tween subject and subject is an action between a
public authority and a subject, the phrase "as well
between subject and subject as otherwise" means
3 See McNamara Construction (Western) Limited v. The
Queen [1977] 2 S.C.R. 654.
4 Section 23 of the Federal Court Act reads as follows:
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 undertakings 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.
"between subject and subject as well as between
Her Majesty or the Attorney General or another
public authority and a subject". It follows that in
all the cases specified in section 23, even those
where the Crown (or the Attorney General) is
plaintiff or defendant, the jurisdiction of the Court
is subject to the limitation expressed in the last
part of that section ("except to the extent that
jurisdiction has been otherwise specially
assigned"). That is to say that when the Crown is
plaintiff or defendant, section 23 has the effect,
not of increasing the jurisdiction of the Court, but
of limiting the wide jurisdiction conferred on it by
section 17(1) and (4).
Assuming, as I do, that the respondents' action
was founded on section 180 of the Canada Labour
Code, I have no difficulty in reaching the conclu
sion that their action was of a kind described in
section 23 since it clearly related to a matter
coming within one of the subjects enumerated in
that section, namely "works and undertakings con
necting a province with any other province or
extending beyond the limits of a province". That
being so, I cannot escape the further conclusion
that the Trial Division had jurisdiction in the
matter "except to the extent that jurisdiction has
been otherwise specially assigned."
The jurisdiction to grant an injunction to pre
vent the violation of section 180 of the Canada
Labour Code is specially assigned to the Canada
Labour Relations Board by section 182 in all the
cases where the application for the injunction is
made by the employer. Can it be said that the
Board did not have jurisdiction in the present case
in view of the fact that the applicants for the
injunction were Her Majesty and the Attorney
General? I do not think so. It is apparent from the
statement of claim that the Crown and the Attor
ney General were merely acting on behalf of the
Canadian Broadcasting Corporation; this is not a
case where the Attorney General was acting in his
own right as the representative of the public inter
est. It was, for that reason, a case where the
jurisdiction was specially assigned to the Canada
Labour Relations Board and where, consequently,
the Trial Division had no jurisdiction.
For those reasons, I would allow the appeal and
set aside the order of the Trial Division.
* *
HEALD J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
KERR D.J.: I agree with the reasons for judg
ment given by Mr. Justice Pratte.
I will add, perhaps unnecessarily, the following
cautionary words. As the Attorney General was
not, in our opinion, acting in this case in his own
right as guardian of the legal rights of the public
the decision being here given should in no way be
construed as implying that the Trial Division does
not have jurisdiction to grant, on an application of
the Attorney General acting as such guardian, an
injunction against a threatened violation of section
180 of the Canada Labour Code in circumstances
where there is no other available remedy to deal
with the matter in time to prevent serious harm to
the public.
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.