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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.
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