Date: 19980623
Docket: T-1013-98
OTTAWA, ONTARIO, Tuesday, this 23rd day of June, 1998
PRESENT: THE HONOURABLE MADAME JUSTICE McGILLIS
BETWEEN:
NAV CANADA
Applicant
- and -
CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
Respondent
ORDER
The motion for a stay of the Order of the Canada Labour Relations Board, issued on March 29, 1998 and filed with the Court by Order dated May 17, 1998, pursuant to section 23 of the Canada Labour Code, is dismissed on the basis that subsection 28(3) of theFederal Court Act deprives the Trial Division of jurisdiction to entertain this matter. There is no order as to costs.
_________________________
Judge
Date: 19980623
Docket: T-1013-98
BETWEEN:
NAV CANADA
Applicant
- and -
CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario
on Tuesday, June 23, 1998]
McGILLIS, J.
[1] Counsel for the Canadian Air Traffic Control Association ("Association") has applied for an interlocutory order staying the Order of the Canada Labour Relations Board issued on March 29, 1998 and filed with the Court, pursuant to section 23 of the Canada Labour Code, R.S.C. 1985, c.L-2, by the further Order of the Canada Labour Relations Board dated May 17, 1998.
[2] There is presently outstanding in the Federal Court of Appeal an application for judicial review instituted by the Association, in which it seeks to quash the Order of the Canada Labour Relations Board dated May 17, 1998, which filed with the Court the previous Order issued on March 29, 1998.
[3] At the outset of the proceedings, I questioned whether subsection 28(3) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, deprived the Trial Division of jurisdiction to issue the stay requested in this matter.
[4] Paragraph 28(1)(h) of the Federal Court Act accords jurisdiction to the Court of Appeal to hear and determine an application for judicial review made in respect of the Canada Labour Relations Board. Subsection 28(3) of the Federal Court Act deprives the Trial Division of jurisdiction to entertain certain proceedings in the following terms:
| 28(3) Where the Court of Appeal has jurisdiction to hear and determine any matter, the Trial Division has no jurisdiction to entertain any proceeding in respect of the same matter. |
|
28(3) La Section de première instance ne peut être saisie des questions qui relèvent de la Cour d'appel.
|
Prior to its amendment in 1990, subsection 28(3) had provided as follows:[1]
| 28(3) Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order. |
|
28(3) Lorsque, en vertu du présent article, la Cour d'appel a compétence pour entendre et juger une demande d'examen et d'annulation d'une décision ou ordonnance, la Division de première instance est sans compétence pour connaître de toute procédure relative à cette décision ou ordonnance. |
[5] By virtue of paragraph 28(1)(h), of the Federal Court Act, the Court of Appeal has sole jurisdiction to entertain the application for judicial review challenging the Order of the Canada Labour Relations Board issued on May 17, 1998, under section 23 of the Canada Labour Code. As a result, the question to be determined is whether the present motion for a stay is a "...proceeding in respect of the same matter" which is pending in the Court of Appeal, within the meaning of subsection 28(3) of the Federal Court Act.
[6] Counsel for the Association submitted that the Trial Division had jurisdiction to order the relief sought on the basis that the motion for a stay related to a different decision than that which has been challenged in the judicial review application pending in the Court of Appeal. He further submitted that the legislative provision in subsection 28(3) of the Federal Court Act, which deprives the Trial Division of jurisdiction, is narrower than its predecessor.
[7] In order to determine whether the jurisdictional exclusion in subsection 28(3) of the Federal Court Act applies in the present matter, the two applications pending in the Court must be examined.
[8] The application for judicial review, filed by the Association in the Court of Appeal on June 5, 1998, seeks to quash the Order of the Canada Labour Relations Board, issued on May 17, 1998, pursuant to section 23 of the Canada Labour Code, on the basis that the principles of natural justice were breached.
[9] The motion for a stay, filed by the Association in the Trial Division on June 18, 1998, seeks the following relief:
THE MOTION IS FOR an order staying the Order of the Canada Labour Relations Board issued by Richard I. Hornung, Q.C., Vice-Chairman, on March 29, 1998 (Board File No. 18669-C), filed with the Federal Court on May 17, 1998 (Court File No. T-1013-98), pursuant to section 23 of the Canada Labour Code, R.S.C. 1985, c. L-2, pending the hearing of an application for judicial review filed by the Respondent in the Federal Court of Appeal (Court File No. A-367-98) with respect to the Order of the Canada Labour Relations Board directing that the Order of March 29th be filed with the Court.
[10] The grounds advanced in support of the motion for a stay are as follows:
THE GROUNDS OF THE MOTION ARE:
1. Section 50 of the Federal Court Act, R.S.C. 1985, c. F-7.
2. Rule 398(1).
3. The Respondent is seeking judicial review of the Order of the Canada Labour Relations Board, dated May 17, 1998 (Board File No. 18669-C), directing that an earlier Order of the Board, dated March 29, 1998 (Board Order no. 18669-C) be filed with the Federal Court, which filing took place on May 17, 1998.
4. Pursuant to section 23 of the Canada Labour Code, the Order, once registered, has the same force and effect as a judgment obtained in the Federal Court and proceedings can be taken thereon as if the Order were a judgment of this Honourable Court.
5. The Respondent has a strong arguable case for setting aside the Board's Order directing that the Order of March 29, 1998 be filed with the Federal Court.
4.[sic] The Respondent and its members will suffer irreparable harm if the Board's Order, now an Order of this Honourable Court, is enforced.
5.[sic] Enforcement of the Order filed with the Federal Court would pose a threat to air safety in Canada.
[11] In my opinion, an examination of the substance of the motion for a stay establishes unequivocally that it is a proceeding "... in respect of the same matter" which is pending in the Court of Appeal. In particular, paragraphs 3, 4 and 5 of the grounds advanced in support of the motion indicate the inextricable factual link between the two proceedings. Indeed, counsel for the Association fairly and properly conceded during argument that the motion for a stay was "...related to the issues before the Court of Appeal." In the circumstances, subsection 28(3) of the Federal Court Act deprives the Trial Division of jurisdiction to entertain the present motion for a stay.
[12] Prior to concluding this matter, I wish to indicate that, in my opinion, the present wording of subsection 28(3) of the Federal Court Act is broader in its scope of application than the terms of its predecessor section. Furthermore, the French version of the present subsection 28(3) is drafted in very broad language.
[13] I also wish to comment briefly on the decision National Bank of Canada v. Granda, [1984] 2 F.C. 249 (F.C.A.), in which the Federal Court of Appeal concluded that the Trial Division had the power to stay the execution of a decision filed in the Court under the predecessor to section 23 of the Canada Labour Code. In particular, I note that the decision was rendered prior to the amendment of subsection 28(3) of the Federal Court Act, which expanded the scope of the jurisdictional limitation on the Trial Division. In the circumstances, I am satisfied that the rationale underlying that decision is no longer applicable.
[14] The motion for a stay of the Order of the Canada Labour Relations Board, issued on March 29, 1998 and filed with the Court by Order dated May 17, 1998, is therefore dismissed on the basis that subsection 28(3) of the Federal Court Act deprives the Trial Division of jurisdiction to entertain this matter. There is no order as to costs.
OTTAWA ___________________________
June 23, 1998 Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1013-98
STYLE OF CAUSE: NAV CANADA v. CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 23, 1998
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE MCGILLIS
| DATED: June 23, 1998 |
|
| APPEARANCES |
|
| Mr. John A. Coleman |
FOR APPLICANT |
| Mr. Sean McGee |
FOR RESPONDENT |
| SOLICITORS OF RECORD: |
|
| Ogilvy Renault |
FOR APPLICANT |
| Ottawa, Ontario |
|
| Nelligan Power |
FOR RESPONDENT |
| Ottawa, Ontario |
|