Date: 20010827
Docket: T-792-00
Neutral citation: 2001 FCT 951
BETWEEN:
EXPRESS HÂVRE ST-PIERRE LTÉE
Plaintiff - respondent
- and -
DENIS LEBLANC
Defendant - applicant
- and -
ROBERT DEBLOIS
Defendant - mis-en-cause
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.
[1] This is a motion seeking enforcement by equivalence of the decision by the adjudicator François G. Fortier on March 16, 1999, allowing the complaint of unjust dismissal filed by the applicant Denis Leblanc pursuant to s. 240 of the Canada Labour Code, R.S.C. 1985, c. L-2 ("the Code").
[2] In particular, the applicant is seeking enforcement by equivalence of the reinstatement order, namely, a determination of the amounts owed him by the respondent employers Express Hâvre St-Pierre Ltée for not complying with the reinstatement order.
FACTS
[3] The plaintiff was employed by the respondent as a driver until May 8, 1997, the date on which he was dismissed. The plaintiff subsequently filed a complaint for unjust dismissal which was held to be valid by the adjudicator Fortier on March 16, 1999.
[4] In particular, the adjudicator Fortier quashed the applicant's dismissal, substituted for the dismissal a suspension of one month until June 7, 1997, directed that he be reinstated and directed the respondent to pay the applicant the salary he had lost from June 7, 1997 until the date he was reinstated. The adjudicator Fortier reserved jurisdiction to determine the amounts due in the event that there was any disagreement between the parties on this point.
[5] The applicant's position of driver was abolished on or about April 1, 1999 as the result of a reorganization of the respondent company. The applicant filed a new complaint of unjust dismissal on June 21, 1999.
[6] The parties could not agree on the amounts owed the applicant. They accordingly appeared again before the adjudicator Fortier, who on August 18, 1999 rendered a decision setting the quantum of damages for the period between June 7, 1997 and April 1, 1999, that is up to the date covered by the new complaint of unjust dismissal. The respondent paid the amounts determined by the adjudicator Fortier on September 16, 1999.
[7] The new complaint of unjust dismissal was heard on February 16, 2000 by the adjudicator Robert Deblois. In his decision dated April 17, 2000 the adjudicator Deblois concluded that the applicant had been a victim of unjust dismissal and so directed that the applicant be paid compensation.
[8] The respondent filed an application for judicial review of the adjudicator Deblois' decision and this was allowed by Rouleau J. on June 20, 2001 on the ground that the adjudicator Deblois had no jurisdiction to consider the matter and the applicant could have sought execution by equivalent of the adjudicator Fortier's order. Rouleau J. said the following:
[TRANSLATION]
36 In the case at bar the adjudicator's first order was filed on June 3, 1999 (p. 112 of defendant's record), so that the defendant could have exercised this forced execution remedy in the Federal Court. He could have asked that the order be implemented in kind or by the equivalent, but did not do so.
37 This has unfortunate consequences for the defendant. The second adjudicator's decision must be completely quashed even though it appears that it was correct, at least as regards the assessment of the evidence and the merits of the case. Allowing the instant application for judicial review will have the effect of returning the matter to this Court, which will hear a new proceeding for forced execution. It is very likely that the result will ultimately be the same.
38 Accordingly, the second adjudicator [Deblois] did not have jurisdiction to hear the matter. I should add at once that many errors occurred in this case, both on the part of the decision-makers and on the part of the parties, so that the defendant should not have to suffer from paying costs because of the proceeding mistakenly brought before the second adjudicator [Deblois] and in this Court.
39 As the decision of the adjudicator François G. Fortier was filed in the Registry of the Federal Court and that order has the effect of a judgment, I allow the defendant Denis Leblanc until October 1, 2001 to proceed with his compulsory enforcement remedy and authorize the plaintiff to take no action against the defendant Denis Leblanc until judgment is rendered by this Court on his forced execution proceeding.
[9] The applicant therefore filed the motion at bar for enforcement by equivalence of the adjudicator Fortier's decision made on March 16, 1999.
ARGUMENTS
Applicant
[10] In view of the reasons set out in the judgment of Rouleau J., the applicant wishes to have the adjudicator Fortier's decision of March 16, 1999 enforced so he can obtain the same result as the adjudicator Deblois gave him on hearing the second unjust dismissal complaint.
[11] In a very clear case like the one at bar, where it appears that the respondent alleged that it abolished the applicant's position to avoid complying with the adjudicator Fortier's decision ordering his reinstatement, the applicant submitted that the Court could order the respondent to carry out the adjudicator Fortier's decision by equivalence, namely, to pay the applicant the equivalent of the salary lost, under the provisions regarding enforcement of orders contained in the Federal Court Rules, SOR/98-106 ("the Rules").
Respondent
[12] In the respondent's submission the applicant is trying to revive the decision by the adjudicator Deblois which was quashed by Rouleau J. and use the disposition of that decision to enforce a reinstatement order which he waived in favour of other court proceedings.
[13] The respondent noted, first, that all the legal proceedings brought by the applicant in connection with his second unjust dismissal complaint are subsequent to the filing of the adjudicator Fortier's decision made on March 16, 1999 in the Registry of this Court.
[14] The respondent then argued that the applicant waived the reinstatement order of March 16, 1999 for all legal purposes by filing a second unjust dismissal complaint and so deliberately limiting the adjudicator Fortier's jurisdiction.
[15] Further, in the respondent's submission the fact that the second unjust dismissal complaint was quashed cannot revive the right to reinstatement which the applicant voluntarily waived in fact and by legal acts.
[16] The respondent further argued that the enforcement by equivalence sought by the applicant could have been obtained by applying to the adjudicator Fortier at the proper time pursuant to s. 242 (4)(c) of the Code.
[17] The respondent pointed out that it had completely satisfied the decision of the adjudicator Fortier, who exercised his jurisdiction fully in the circumstances imposed and chosen by the applicant after filing his second unjust dismissal complaint, and no other proceedings could be initiated on this basis.
[18] Further, counsel for the applicant confirmed beyond question, in a letter dated September 30, 1999 to counsel for the respondent, that all money owed as the result of the decisions of the adjudicator Fortier on March 16 and August 18, 1999 had been duly paid.
POINT AT ISSUE
Can the Court order enforcement by equivalence of the adjudicator Fortier's decision on March 16, 1999?
ANALYSIS
[19] The adjudicator Fortier's decision of March 16 ,1999 was filed in the Federal Court Registry and this order has the effect of a judgment. In the case at bar, it provided for the reinstatement of the applicant and the payment of compensation for the period between June 7, 1997 and his reinstatement.
[20] The provisions relating to the enforcement of an order of a federal tribunal are contained in ss. 423 et seq. of the Rules. In particular, s. 431(b) of the Rules provides the following:
| 431 Where a person does not comply with an order to perform an act, without prejudice to the powers of the Court to punish the person for contempt, on motion, the Court may order that
. . . . .
(b) the non-complying person pay the costs incurred in the performance of the act, ascertained in such a manner as the Court may direct, and that a writ of execution be issued against the non-complying person for those costs.
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431 Si une personne ne se conforme pas à l'ordonnance exigeant l'accomplissement d'un acte, la Cour peut, sur requête, sans préjudice de son pouvoir de la punir pour outrage au tribunal, ordonner:
. . . . .
b) que le contrevenant assume les frais de l'accomplissement de l'acte, déterminés de la manière ordonnée par la Cour, et qu'un bref d'exécution soit délivré contre lui pour le montant de ces frais et les dépens.
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[21] As regards the compensation, since the parties could not agree on the amounts owed the applicant they went back before the adjudicator Fortier, who on August 18, 1999 rendered a decision setting the quantum of damages for the period between June 7, 1997 and April 1, 1999, the date mentioned in the new unjust dismissal complaint.
[22] Although the respondent paid the money determined by the adjudicator, it did not comply with the reinstatement order. Contrary to what the respondent argued in this regard, the filing of a second unjust dismissal complaint by the applicant cannot be regarded as a waiver of the reinstatement order, which was still valid.
[23] The Federal Court is a court of equity. It is a well-settled rule of equity that any right is accompanied by a remedy. When the latter is not available, it is the judge's duty to provide one. Consequently, I consider that in the case at bar the Court can order the enforcement by equivalence of the reinstatement order contained in the adjudicator Fortier's decision on March 16, 1999, calculation of the compensation being the only means of enforcing this part of the adjudicator's decision.
[24] Since the parties submitted no evidence and made no submission on the damages relating to the respondent's refusal to observe the reinstatement order, the Court must proceed by specially managed proceeding to determine the compensation.
ORDER
[25] The motion for enforcement by equivalence of the adjudicator Fortier's decision of March 16, 1999 is allowed and a judge will be appointed to determine the compensation by a specially managed proceeding: the whole with costs.
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Danièle Tremblay-Lamer
JUDGE
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OTTAWA, ONTARIO
August 27, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-792-00
STYLE OF CAUSE: Express Hâvre St-Pierre Ltée
-and-
Robert Leblois and Denis Leblanc
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: August 17, 2001
REASONS FOR ORDER AND ORDER BY: TREMBLAY-LAMER J.
DATED: August 27, 2001
APPEARANCES:
Jean-François LaForge FOR THE PLAINTIFF
Laval Dallaire FOR THE DEFENDANTS
SOLICITORS OF RECORD:
LaForge, Barbeau FOR THE PLAINTIFF
Québec, Quebec
Heenan, Blaikie, Aubut FOR THE DEFENDANTS
Québec, Quebec
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