T-456-97
MONTRÉAL, QUEBEC, THE 5TH DAY OF JUNE, 1997
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
AUTOCAR CONNAISSEUR INC.,
Applicant
AND
ME JEAN-PAUL LALANCETTE, C.R.I.
-and-
DANIEL POMERLEAU
-and-
DANIEL MERCIER
-and-
ALAIN MARCIL
-and-
NORMAND OUELLETTE,
Respondents
ORDER
This motion is dismissed.
Certified true translation
Christiane Delon
T-456-97
BETWEEN:
AUTOCAR CONNAISSEUR INC.,
Applicant
AND
ME JEAN-PAUL LALANCETTE, C.R.I.
-and-
DANIEL POMERLEAU
-and-
DANIEL MERCIER
-and-
ALAIN MARCIL
-and-
NORMAND OUELLETTE,
Respondents
REASONS FOR ORDER
RICHARD MORNEAU,
PROTHONOTARY:
The applicant has moved under section 18.2 of the Federal Court Act (the Act) for a stay of execution of an arbitration award rendered under the aegis of the Canada Labour Code. For greater certainty, and no doubt motivated by the wording used by the federal authorities administratively involved in this case, the applicant is also seeking a stay of the arbitration proceedings under paragraph 50(1)(b) of the Act.
Context of the motion
On March 17, 1997, the applicant filed in the Registry of this Court an application for judicial review of an arbitration award upholding a payment order that the applicant pay the respondents close to $40,000 on a claim for unpaid overtime and statutory holiday pay.
Analysis
It is trite law that the remedies sought in the motion in question are subject to the analysis summarized as follows by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at 334:
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Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. |
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Even on the assumption that, for the purposes of this review, the various errors of law and jurisdiction raised in the applicant"s notice of motion establish that it has raised a serious question to be tried, it does not appear to me that the evidence submitted by the applicant establishes that the payment of the various sums referred to in the arbitration award would cause it irreparable harm.
Indeed, the only allegation submitted as evidence is much too general in nature for the Court to draw such a conclusion. This allegation reads as follows:
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6. If Autocar Connaisseur Inc. pays these sums to the respondents, it will suffer irreparable harm since it is to be feared that the proceedings to recover the sums paid out will be extremely onerous, if not futile; |
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Furthermore, this allegation is contained in an affidavit taken out by the solicitor who pleaded this motion on behalf of the applicant.
That, as counsel for the respondents pointed out, is an unacceptable practice. In my opinion, the said allegation is thereby emptied of whatever weight, if any, it might otherwise have.
As the second step in the Metropolitan Stores test has not been taken, it is unnecessary to examine the third step in the analysis, the balancing of the actual inconveniences.
For these reasons, any stay of the arbitration award, in so far as that is at issue here, must likewise be rejected.
This motion will therefore be dismissed, with costs to follow.
However, during the argument on this motion, and while the Court was preparing to hear the submissions by respondents" counsel, a lawyer for the Attorney General of Canada (the A.G.) arose and sought on behalf of the A.G. to address the Court, apparently to support the dismissal of this motion.
It ought to be noted at this point that the A.G. is neither an applicant nor a respondent in this matter and at no time requested the right to intervene in the hearing through an application under Rule 1611 of the Federal Court Rules (the Rules).
In fact, counsel for the A.G. was quick to state at the hearing that the A.G., by reason of his traditional role, did not have to request leave to intervene in order to be able to address the Court. This status, he argued, is reflected in the wording of subsection 18.1(1) of the Act and of Rule 1611. It is necessary, therefore, to refer to these provisions.
Subsection 18.1(1) reads as follows:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.
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Since, the A.G. argues, this subsection provides that the A.G. may make any application for judicial review, it follows a fortiori that the A.G. may intervene in any application for judicial review without further formality and, in particular, without the need to request intervenor status under Rule 1611. In the written arguments submitted at the Court"s request, counsel for the A.G. adheres to this view of things. Here are the relevant paragraphs from his submissions:
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6. The Attorney General of Canada respectfully submits that by the combined effect of section 5 of the Department of Justice Act and section 18.1 of the Federal Court Act, he has the strictest [sic] right to intervene in any applications for judicial review in which he believes the public interest requires his intervention; |
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7. The Attorney General of Canada further submits that this strict right of intervention cannot be limited by a procedural rule that would subject this right to prior leave of the Court; |
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8. The Attorney General of Canada concedes, however, that the Court has the right to control the terms and conditions of the Attorney General of Canada"s intervention; ... |
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16. There remains the issue of the public interest. In regard to this issue, the Attorney General of Canada submits that the Court has no right to judge whether the intervention of the Attorney General of Canada is or is not consistent with the public interest; ... |
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21. Since the right of the Attorney General of Canada to intervene in a judicial review matter is a result of the combined effect of section 5 of the Department of Justice Act and section 18.1 of the Federal Court Act, Rule 1611 of the Federal Court Rules cannot have the effect of limiting this right in any way; |
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I do not share this position. Subsection 18.1(1) of the Act addresses the A.G."s role solely as an applicant in order to ensure, presumably, that the public interest is defended in circumstances in which no other party is seeking to appear as an applicant. Even as an applicant, the A.G. is not exempted under the Act from the Rules applicable to any judicial review applicant. To my way of thinking, the purpose of subsection 18.1(1) of the Act is not to control the role or status of the A.G. in the context of an application for judicial review wherever he has chosen not to be an applicant. Furthermore, section 5 of the Department of Justice Act is of no assistance in this matter.
As to Rule 1611, its first paragraph " the relevant one for us " reads as follows:
| Rule 1611. (1) Any person who wishes to intervene in the hearing of an application for judicial review, including the federal board, commission or other tribunal in respect of whose decision the application has been made, must file a notice of application for leave to intervene and serve a copy of it on all the parties.
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Règle 1611. (1) Quiconque, y compris l'office fédéral dont la décision fait l'objet de la demande de contrôle judiciaire, désire intervenir à l'audition d'une demande de contrôle judiciaire dépose un avis de demande d'autorisation d'intervenir et en signifie copie aux parties.
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[emphasis added]
The A.G. argues that since he is differentiated from the word "anyone" [quiconque ] in subsection 18.1(1) of the Act, it necessarily follows that when Rule 1611(1) is introduced by the same or similar expression, "Any person" [quiconque ], the A.G. is not covered by that expression and accordingly the institution of an "intervention" under Rule 1611 is not necessarily applicable to him. He is therefore free to appear in court at any time, without prior notice, as he attempted to do in the context of the present motion, and to proceed to address the court.
I am likewise unable to agree in any way with this approach to the matter.
In my opinion, the A.G."s approach finds no support in the scheme of Rule 1611(1). This subrule, in its introductory words, is as inclusive as can be. As I understand it, the drafters of the Rules went to some length to prescribe a single system of participation for all who are neither applicants nor respondents. They even went to the trouble of stipulating that the rule covered federal boards, commissions or other tribunals which traditionally have a limited role in matters involving judicial review of their decisions. In my opinion, Rule 1611(1) is fully applicable to the A.G. and the latter must therefore submit to it when he wishes to address the court in any application for judicial review in which he is not already a recognized party or intervenor. Of course, the traditional role held by the A.G. could induce this Court to accord him intervenor status more readily and more often than not. However, I see nothing in the oral and written submissions by the A.G. that exempts him from the necessity to seek leave to intervene under Rule 1611.
Furthermore, it is apparent to me that, through his present approach, the A.G. is seeking to elude the lessons of Syndicat des journalistes de Radio-Canada (CSN) v. Canadian Broadcasting Corporation (an unreported judgment of this Court dated September 27, 1996, file no. T-502-96, upheld on appeal by the Honourable Mr. Justice Pinard on January 17, 1997).
In that case, it was held that the A.G. could not insert himself as a mis en cause in the context of an application for judicial review and that any participation by him " as by any other person " had to be as an applicant, a respondent or a recognized intervenor. More precisely, here is what was stated in that case:
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In my opinion, the requirements listed in Rule 1604 constitute the true starting point for any intervention that the Attorney General of Canada or the federal board, commission or other tribunal might wish to make. Rule 1611 comes into effect as a follow-up to Rule 1604, and provides that any person, including the federal board, commission or other tribunal, who wishes to participate in the review proceeding shall apply by motion to obtain intervenor status and shall intervene on such terms and conditions as are determined by the Court. |
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What the Attorney General of Canada is seeking in all good faith to give force of law to through motions such as this one is an institution within Rules 1600 et seq. that I would characterize as "half-way" between the situation of a person who is interested within the meaning of the Rules but has no intention of pursuing the matter and a similar person who, through a motion, requests intervenor status. |
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Counsel for the Attorney General of Canada stated during argument that very often the federal board, commission or other tribunal and the Attorney General of Canada cannot determine on the basis of the documents with which they are served under Rule 1604 whether or not they ought to intervene (within the meaning of Rule 1611). |
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This possibility of being retained in the style as mis en cause, he said, allows the Attorney General of Canada and the federal board, commission or other tribunal to receive copies of the various documents and proceedings emanating from the main parties in the case, or even from the Registry of this Court, as the application for judicial review proceeds. This practice, in turn, allows the federal board, commission or other tribunal and the Attorney General to understand and follow more readily the evolution of the issues in an application and possibly to make a decision, at some point, to apply for intervenor status under Rule 1611. |
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It is understandable that the Attorney General would want such mis en cause status, if only for the administrative convenience it gives him in any application for judicial review in which he is initially included as mis en cause or where he manages to become one by applying for it. He may then follow the evolution of a case without further monitoring or moves by his counsel. |
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This may be a desirable result. However, this half-way institution is not provided for by the rules now governing judicial review in this Court. I in fact think, as I stated earlier, that the scheme of Rules 1604 and 1611 rejects such an institution in that they require the Attorney General and the federal board, commission or other tribunal to make their own bed " that is, intervene or not intervene " on the basis of the documents that must be served under these Rules. |
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Although the institution of the mis en cause was not an issue before the Court of Appeal in Frank Bernard, I think that the following remarks by Décary J.A., at page 461, indicate that in terms of Part V.1 of the Rules, all of the persons interested in an argument can appear therein only as intervenors if they are unable to be applicants or respondents: |
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The procedure set out in the new Rules for permitting an intervention by a tribunal which is not a proper party in the circumstances, is fairly simple. Since the notice of motion identifies the tribunal in respect of which the application is made and sets out the grounds intended to be argued (Rule 1602(2)(d) and (e)) and since the applicant serves on the tribunal the notice of motion as well as his affidavits (Rules 1604(1)(b)), the tribunal is given ample and early opportunity to determine whether it will want to participate in the proceedings. Should it so determine, it will seek status as intervenor under Rule 1611. Where a tribunal has been erroneously named as respondent, it will have no status as respondent and will not be allowed to participate in the proceedings unless it obtains leave under Rule 1611 to participate as intervenor. It may be useful to note that Rule 1619(1) [as enacted by SOR/92-43, s. 19] allows the Court, at any time, to waive compliance with all or part of Rule 1611. |
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Part V.1 of the Rules defines in clear terms who is a respondent and who can be an intervenor. The drafters made sure that Rule 1611 would apply to tribunals by adding specific words to that effect. |
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There is therefore no way that the Attorney General of Canada can address the Court without first requesting and obtaining intervenor status. Rule 1611(2) allows the Court to re-shape any intervention. Thus the A.G. is not directed to a vehicle with an inflexible and definitely over broad framework for many of the issues that might be of concern to him.
That is why, on May 26, 1997, I refused counsel for the A.G. the right to address the Court. In doing so, I did not deny him the right to bring an application for intervention within the meaning of Rule 1611.
If the A.G. intends to appeal this decision, he should, in my opinion and in all logic, request and obtain intervenor status pursuant to Rule 1611, subject of course to the right of any intervenor to appeal a decision.
Montréal, Quebec
June 5, 1997
Certified true translation
Christiane Delon
Federal Court of Canada
File No. T-456-97
BETWEEN:
AUTOCAR CONNAISSEUR INC.,
Applicant
- and -
ME JEAN-PAUL LALANCETTE, C.R.I.
-and-
DANIEL POMERLEAU
-and-
DANIEL MERCIER
-and-
ALAIN MARCIL
-and-
NORMAND OUELLETTE,
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: AUTOCAR CONNAISSEUR INC., |
- and -
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ME JEAN-PAUL LALANCETTE, C.R.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 26, 1997 |
| REASONS FOR ORDER BY: Richard Morneau, Prothonotary |
APPEARANCES:
| Normand Laurendeau for the applicant |
| François Garneau for the respondents, Daniel Pomerleau, Daniel Mercier, |
| Alain Marcil and Normand Ouellette |
| Raymond Piché for the Attorney General of Canada |
- 2 -
SOLICITORS OF RECORD:
| Normand Laurendeau for the applicant |
Guy & Gilbert
Montréal, Quebec
| François Garneau for the respondents, Daniel Pomerleau, Daniel Mercier, |
| Desjardins, Ducharme, Stein, Monast Alain Marcil and Normand Ouellette |
Montréal, Quebec
| Claude Lauzon for the respondent, Jean-Paul Lalancette |
Lauzon et Poulin
Saint-Jean-sur-Richelieu, Quebec
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