VIA Rail Canada Inc. v. Cairns, 2003 FCA 308, [2004] 1 F.C.R. D-12


VIA Rail Canada Inc. v. Cairns


2003 FCA 308, Rothstein J.A.


7 pp.

Motion for interim stay of CIRB decision pending hearing to stay that decision pending judicial review thereof-- Preliminary objection to Federal Court's jurisdiction to decide interim stay application, based on Canada Labour Code, s. 22 strong privative clause--That provision not ousting Court's jurisdiction to decide applications for judicial review under Federal Court Act, s. 18.1(4)(a), (b) or (c), nor, therefore, Court's jurisdiction to grant stay, or interim stay, pending judicial review--If Board without jurisdiction to have made decision under review, fact may be ongoing process not saving decision by precluding Court from dealing with it--Code, s. 22(2) not limiting Court's consideration of any aspect of Federal Court Act, s. 18.1(4)(a) as pertaining to Board's decisions--On judicial review, Court must determine standard of review according to pragmatic, functional analysis (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982); however, on stay application, Court not deciding judicial review, does not engage in pragmatic, functional analysis of standard of review --On application for stay, applicant must establish serious issue, irreparable harm, balance of convenience--Arguments about effect on seniority rights, labour strife, unrecoverable costs possibly incurred by VIA, possible disruption of schedules not establishing harm sufficient to justify interim stay--Therefore, application for interim stay dismissed-- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5)--Canada Labour Code, R.S.C., 1985, c. L-2, s. 22 (as am. by S.C. 1990, c. 8, s. 56; 1998, c. 26, s. 9).