Date: 20070614
Docket: T-2187-06
Citation: 2007 FC 639
Winnipeg, Manitoba, June 14, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GEORGE SMITH and GEORGE
SMITH TRUCKING LIMITED
Plaintiffs
and
THE MINISTER OF LABOUR and
HER MAJESTY THE QUEEN
Defendants
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Defendants move for summary judgment, pursuant to Rule 213 of the Federal
Courts Rules 1998. They say the Plaintiffs action should be dismissed
because there is no genuine issue for trial.
[2]
On
December 12, 2006 the Plaintiffs commenced an action against the Defendants by
way of a statement of claim. They claim the unreasonable seizure of a fork
lift truck in violation of Section 8 of the Canadian Charter of Rights and
Freedoms (the Charter). They claim damages in the amount of $500,000.00.
[3]
George
Smith is an officer, director and the controlling mind of George Smith Trucking
Limited, a federally regulated trucking undertaking subject to the provisions
of the Canada Labour Code. The Plaintiffs, on this motion, were not
represented by counsel.
[4]
In
April of 2004, the Plaintiffs were the subject of enforcement action by
officials of the Labour Standards Branch of Human Resources and Skills
Development Canada (HRSD) after a complaint was received that the fork lift
truck in question, whose original design had been modified, was unsafe.
[5]
After
inspecting the fork lift truck on April 1, 2004, a Direction was issued by an
inspector of Labour Standards Branch (LSB) ordering repairs on the steering
mechanism and a few days later a further Directive was issued stipulating the
fork lift truck must not be used either with the modified fork lift extensions in
place or prior to the steering problem having been rectified. On
April 19, 2004 a further Directive was
issued regarding the bent Mast Rail and the worn Mast Chain on the fork lift
truck. The Direction required the fork lift truck be removed from service
until repaired or properly modified by a qualified engineer.
[6]
None
of these Directives were appealed through the available internal appeal process
nor were they judicially challenged.
[7]
After
discovering the fork lift truck was being used contrary to the Directives, the
LBS sought and obtained on consent [emphasis mine] an injunction issued
by Justice Pinard on June 3, 2004 prohibiting the Plaintiffs from using or
operating the fork lift truck until all Directives were satisfied.
[8]
An
alleged breach of Justice Pinard’s injunction led Justice Heneghan of this
Court on
July 5, 2004 to determine that there had
been a prima facie breach of Justice Pinard’s injunction and to order
that the Plaintiffs must appear before the Court to show cause why they should
not be held in contempt for such violation.
[9]
Before
the contempt hearing took place on January 13, 2005 before my colleague Justice
Beaudry of this Court, the LSB sought and obtained on July 21, 2004 an
interlocutory injunction sequestering the fork lift truck until the contempt
proceedings had been completed.
[10]
The
record indicates the Plaintiffs were served on July 19, 2004 with the motion
record but they did not appear to oppose the order sought. Based on the
material before him Justice Shore was satisfied that any harm to health and
safety caused by the continued use of the fork lift truck would be irreparable
and that the protection of health and safety outweighed the interests of the
Plaintiffs in maintaining possession of the fork lift truck that they had been
ordered not to use or operate.
[11]
Justice
Shore’s order was
not appealed by the Plaintiffs.
[12]
Finally,
on March 21, 2005 Justice Beaudry found the Plaintiff guilty of contempt of
Court in breach of Justice Pinard’s order. He imposed fines and costs and
enabled the fork lift truck to be disposed of if the Plaintiffs have not
complied with the directions within 180 days of his order.
[13]
The
Plaintiffs did not appeal Justice Beaudry’s contempt finding and consequential
fines and disposal order.
[14]
I
agree with counsel for the Defendants the Plaintiffs have not shown there is a
genuine issue for trial flowing from their action. Their action is so doubtful
that it does not deserve consideration by the trier of fact at a future trial.
(See, Granville Shipping Co. v. Pegasus Lines Ltd.
[1996] 2 F.C. 853 (TD) a decision of my
colleague Justice Tremblay-Lamer.
[15]
Clearly,
on the authority of the Supreme Court of Canada’s decision in R. v McKinlay
Transport Ltd. [1990] 1 S.C.R. 627 the seizure of the fork lift truck
cannot be said to be unreasonable. It was authorized by my colleague Justice Shore in a
proceeding in which the Plaintiffs participated.
[16]
At
the hearing this morning Mr. Smith argued on behalf of the Plaintiffs there was
a genuine issue for trial because the Defendants had not established as
required in McKinlay Transport above that Justice Shore’s order was
supported by reasonable and credible grounds established under oath. That
submission has no merit. My colleague had before him the uncontrovened
affidavit of Andrew McKechnie dated July 19, 2004 who recited Justice Pinard’s
consent prohibition order and expressed the fact the fork lift truck was in a
dangerous and hazardous condition and that he was concerned for the safety of
those who operated it and worked around it.
[17]
The
Plaintiffs chose not to cross-examine him nor file opposing affidavits
disputing those facts.
[18]
Yet
at this morning hearing Mr. Smith sought to impugn the seizure order by
adverting to testimony tendered before Justice Howell of the Manitoba
Provincial Court on a charge of violating a provision of the Canada
Labour Code namely the directives mentioned above. Justice Howell held a
trial on the 21st and 22nd of November 2005 well after
the seizure of the fork lift truck. The brunt of the extracts George Smith
referred me to were to show that the LBS never had any proof the fork lift
truck was unsafe. Justice Howell made no finding the fork lift truck was safe
or unsafe. That question was not relevant to the issue he had to decide. He
found the Plaintiffs guilty of not following the LBS directives and fined them
$1,000.00 on each count.
[19]
I
go further. This action cannot be allowed to continue as it constitutes an
impermissible collateral attack on directives of the LSB or orders of this
Court which could have been appealed. The evidence which Mr. Smith tendered
this morning was available when the relevant Court orders were made. As such the
action is frivolous and vexatious and an abuse of this Court process.
JUDGMENT
1. This action
is dismissed with costs fixed at $1,000.00.
“François Lemieux”
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