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T-3524-75
The Public Service Alliance of Canada, Local 660 and The Public Service Alliance of Canada (Petitioners)
v.
The Canadian Broadcasting Corporation (Respondent)
and
Arbitrator Pierre N. Dufresne, is goal, (Mis -en-cause)
Trial Division, Walsh J.—Montreal, December 2. 1975.
Labour relations—Practice—Petitioner contending respond ent has not complied with arbitration award Award regis tered without prior notice—Respondent not given opportunity to deny non-compliance before registration Canada Labour Code, R.S.C. 1970, c. L-1, as am. S.C. 1972, c. 18, ss. 159(1),(2) Federal Court Rules 319, 321.
Respondent moves to annul and strike the registration of an arbitration award registered October 8, 1975, because notice of motion was only served on respondent October 9, 1975. Peti tioners claim that under section 159(2) of the Canada Labou, Code no prior notice is necessary for registration, and that once registered, proceedings may be taken as if it were a Court judgment.
Held, the motion is granted. Section 159(2) must be read with section 159(1) which provides for the filing of such a decision after 14 days for registration in the Court where the arbitrator's order has not been complied with. This condition must be met before filing for registration can be made. While petitioners' motion to register was accompanied by an affidavit setting out the facts as per Rule 319 (i.e. non-compliance), nc details were given, nor was the motion served on respondent before registration to allow denial. This is contrary to Rule 321 and the audi alteram partem rule. Establishment of non-com pliance with the award is the sine qua non of registration. While an award should speak for itself, it is for the Trial Judgc to decide whether his decision as to whether the award has not been complied with can be made based on only the affidavits. or after hearing evidence.
PETITION to annul and strike the registration or October 8, 1975 of an arbitration award renderec on May 25, 1975 by Mr. Pierre N. Dufresne.
COUNSEL:
G. Castiglio and P. Langlois for petitioners.
J. Duellet for respondent. SOLICITORS:
Cutler, Langlois and Castiglio, Montreal, for petitioners.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
WALSH J.: The arbitration award in the above matter was registered in this Court on October 8, 1975 pursuant to section 159 of the Canada Labour Code (R.S.C. 1970 c. L-1 as replaced by S.C. 1972 c. 18) although notice of motion to register same and issue a writ of fieri facias was only served on respondent on October 9, 1975. The writ of fieri facias was found to be null ab initio by judgment of Mr. Justice Addy dated November 14, 1975 who also forbade any execution proceed ings in this matter. However the issue was not raised before him of the invalidity of the registra tion as a result of same having been made without service of notice of motion on the respondent so as to give it the opportunity to contest same. Petition er invokes section 159(2) of the Canada Labour Code, arguing that the decision of the Arbitrator can be registered in the Court without any prior notice and when so registered has the same force and effect and all proceedings may be taken there on, as if the order or decision were a judgment obtained in the Court. However this subsection cannot be read without reference to subsection (1) of section 159 which provides for the filing of such a decision after 14 days for registration in the Court "Where any person or organization has failed to comply with any order or decision of an arbitrator or arbitration board". This is a condi tion which must be fulfilled before such a filing for registration can be made and subsection (2) merely sets out the effect of such a registration. Rule 321 of the Federal Court Rules clearly pro vides that unless otherwise authorized to be made ex parte motions must be served on the opposite parties at least 2 clear days before the hearing, unless this is dispensed with. Rule 319 requires that the motion shall be supported by an affidavit setting out all the facts on which the motion is based that do not appear from the record, and that the adverse party may file an affidavit in reply,
and that by leave of the Court a witness may be called to testify in relation to an issue of fact raised by an application.
While petitioner's motion for inter alia, the registration of the arbitration award was accom panied by an affidavit setting out that respondent has not complied entirely with the arbitration award, no details were given as to which conditions were not complied with, and more important it was not served on the opposite party before the regis tration was effected so as to give the respondent the opportunity to deny, as it does, that the award was not complied with. This is contrary to Federal Court Rule 321 and to the basic principle of equity audi alteram partem. The establishment that the arbitration award has not been complied with is a condition sine qua non of its registration in this Court.
It was brought out during the argument that respondent contends that the award only affects its employees in the Province of Quebec and it is not denied that it has complied with it with respect to these employees, whereas petitioners contend that the award is applicable to the classification of all employees of respondent affected by it in Canada. This issue must eventually be decided and respond ent, in support of its contentions would like to have evidence of witnesses heard to establish the inten tions of the Arbitrator as to the extent of the award. I would seriously doubt the advisability of this. An award should speak for itself and if there is doubt there may be some provision by virtue of which it may be referred back to the arbitrator for clarification. It would be highly unusual to call witnesses to attempt to explain what was intended to be the scope of an award especially since section 159(1) in providing for the filing of a copy of the award in the Federal Court for registration states "exclusive of the reasons therefor". It will however be up to the judge hearing the motion if same is presented again, after due service, to decide whether his decision as to whether the award has not been complied with, and hence can be regis tered should be made on the basis of affidavits alone, or after hearing evidence.
ORDER
Respondent's motion to annul and strike the registration in this Court on October 8, 1975 of the arbitration award dated March 25, 1975 is granted with costs, without prejudice to the right of petitioners to present same again for registra tion by means of a motion supported by a proper affidavit or affidavits indicating how and to what extent the award has not been complied with, to be heard after service on respondent and an opportu nity for it to reply thereto. In view of the fact that the matter is of some urgency and a delay to allow this order and the reasons therefor to be issued simultaneously in both official languages pursuant to the Official Languages Act would result in injustice or hardship it is being issued in the first instance in English and will thereafter as soon as possible be issued in French.
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