T-7705-82
D. A. Berarducci (Applicant)
v.
Canadian Pacific Limited (C.F. Rail) (Respond-
ent)
Trial Division, Collier J.—Vancouver, January 17
and 18, 1983.
Labour relations — Jurisdiction of Court to hear motion for
order determining amounts of compensation payable by
respondent based on order of Arbitrator made pursuant to s.
155 of Canada Labour Code — Arbitrator granted order in
favour of applicant which called, in part, for payment of
compensation for loss of earnings resulting from applicant's
dismissal by employer but not including monetary calculation
for such compensation — Disagreement arose between appli
cant and employer as to exact amount of compensation
Adjudicator refused to reconsider award on grounds he was
functus — Applicant then filed order in Federal Court pursu
ant to s. 159 of the Code which provides order so filed and
registered has same force and effect, and all proceedings may
be taken thereon as if order were judgment of Court —
Applicant contending Court has jurisdiction to determine
amount of compensation because "all proceedings" include
any proceedings necessary to make order of Arbitrator
enforceable — Motion dismissed S. 159(2) only gives
Federal Court power to hold enforcement proceedings on what
is already coherent judgment Further, R. 337(5) of no
assistance as it does not give Court power to refer matter back
to Arbitrator for further determination Canada Labour
Code, R.S.C. 1970, c. L-1, s. 155 (as am. by S.C. 1972, c. 18, s.
1; 1977-78, c. 27, s. 52), s. 159 (as am. idem, s. 57) Federal
Court Rule 337(5).
COUNSEL:
Glen Ewan for applicant.
N. D. Mullins, Q.C. for respondent.
SOLICITORS:
Pope & Ewan, Golden, B.C., for applicant.
Legal Department, Canadian Pacific Limited,
Vancouver, for respondent.
The following are the reasons for order ren
dered in English by
COLLIER J.: The applicant Berarducci brings a
motion asking the Court to determine the amount
of compensation payable by the respondent,
Canadian Pacific Limited, flowing from a decision
by an Arbitrator. That decision was made pursu
ant to section 155 of the Canada Labour Code,
R.S.C. 1970, c. L-1, as am. by S.C. 1972, c. 18, s.
1; 1977-78, c. 27, s. 52.
The applicant had been employed by the rail
road as a conductor. On January 13, 1981, follow
ing a dispute with his employer, he was dismissed.
The matter was taken to arbitration under the
provisions of the collective agreement and section
155 of the Canada Labour Code. The Arbitrator,
J. W. Weatherill, made an award dated September
3, 1982. The formal portion of the Arbitrator's
order or decision was as follows:
For the foregoing reasons, the grievance is allowed in part. It is
my award that the discharge of the grievor be set aside, and
that he be reinstated in employment forthwith without loss of
seniority or other benefits, and with compensation for loss of
earnings for the period from and after January 13, 1981. The
grievor's disciplinary record should show a total of forty demer
its, assessed as of the date of his actual reinstatement.
As can be seen, the Arbitrator did not make a
monetary calculation of the applicant's loss of
earnings. He probably felt the parties could arrive,
without difficulty, at the amount owing.
A disagreement has, however, arisen between
the applicant and the employer as to the calcula
tion of the amount. I am told the applicant
endeavoured to have the matter referred back to
the Arbitrator for determination; the Arbitrator
refused on the grounds he was functus.
The applicant then filed in this Court the order
or decision of the Arbitrator. That was done pur
suant to section 159 of the Canada Labour Code,
R.S.C. 1970, c. L-1, s. 159, as am. by S.C. 1972, c.
18, s. 1; 1977-78, c. 27, s. 57. I set it out:
159. (I) Any person or organization affected by any order or
decision of an arbitrator or arbitration board may, after four
teen 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 an arbitrator or arbitration
board shall be registered in the Court and, when registered, 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.
I now turn to the precise relief requested of this
Court by the applicant. It is as follows:
... that the amount of compensation payable by the Defendant
to the Plaintiff be determined at $33,569.71 plus interest from
January 19, 1982 and costs and that that sum be payable
forthwith to the Plaintiff.
The applicant relies on subsection 159(2). His
counsel contends the words "all proceedings",
include any proceedings necessary to make the
order or the decision of the Arbitrator enforceable.
What is proposed here is to have this Court hear
evidence as to how the applicant's compensation is
to be calculated.
In my view, subsection 159(2) does not clothe
the Federal Court with the jurisdiction asserted on
behalf of the applicant. Arbitrator Weatherill's
order, by reason of the filing in the Court, has the
same force and effect as the judgment of the
Court. The proceedings that may be taken on the
judgment are, as I view the matter, enforcement
proceedings. But first there must be a coherent
judgment to enforce.
This Court cannot provide that coherence. Rule
337(5) does not, to my mind, provide any assist
ance. That Rule enables the Court as "constituted
at the time of the pronouncement" to reconsider,
on certain grounds, the terms of the formal order.
It does not, as I see it, permit a judge of this Court
to hear evidence and, in effect, vary, or elaborate
on the formal pronouncement of the Arbitrator.
Nor does it empower this Court to refer the matter
back to the Arbitrator for further determination.
The net result is this Court is powerless to assist
the applicant. It may be the applicant is without
any legal remedy. If that is the case, then the fault
should probably be corrected by appropriate
amendments to the appropriate legislation.
A simple, practical solution in this particular
case would, to my mind, be for the parties to agree
to refer the matter back to the Arbitrator and for
him, on a consent basis, to make the appropriate
determination as to the dollar amount of compen
sation payable. The appropriate decision can then
be filed. Enforcement, or execution proceedings
could then, if necessary, be taken.
ORDER
UPON motion filed December 20, 1982, on
behalf of D. A. Berarducci, for an order pursuant
to Rule 321 "that the amount of compensation
payable by the Defendant to the Plaintiff be deter
mined at $33,569.71 plus interest from January
19, 1982 and costs and that that sum be payable
forthwith to the Plaintiff".
ORDER
The motion is dismissed.
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.