Date: 20020322
Docket: T-378-02
Neutral Citation: 2002 FCT 325
Montréal, Quebec, March 22, 2002
Present: Mr. Richard Morneau, Prothonotary
Dispute affecting the Canada Labour Code, R.S.C. 1985,
c. L-2 as amended
BETWEEN:
INSTITUT AÉRONAUTIQUE DE LA CAPITALE
Applicant
and
PASCAL BANDEVILLE
Respondent
Motion by the Institut Aéronautique de la Capitale to stay the execution of the decision of the adjudicator Ms. Huguette Gagnon rendered on January 31, 2002 until final judgment is rendered in relation to the judicial review of that decision in docket T-317-02.
REASONS FOR ORDER AND ORDER
[1] Counsel for both parties agreed that this application for a stay should be examined in accordance with the three-pronged test in Manitoba (A.G.) v. Metropolitan Stores Ltd. et al., [1987] 1 S.C.R. 110. Consequently, the moving party, in this case the employer, must establish that there is a sufficient colour of right to justify its application for judicial review, that it will suffer irreparable harm if the stay is not granted and that the balance of convenience leans in its favour.
[2] I assume -- solely for the purposes of ruling on this motion -- that the moving party has a serious question or a defendable cause to be tried in its application for judicial review. As to the second test that the moving party must satisfy, having read the affidavit filed by the moving party and heard the submissions of both parties, I am of the opinion that it has not established, in the evidence produced, that it would suffer irreparable harm if the stay were not granted, that is, if we were to allow the goods seized from the employer to be sold before the adjudication on the merits of the application for judicial review.
[3] In fact, it emerges that this sale would take place given the employer's lack of liquid assets to pay the sum in the adjudication award: $35,966.15 with interest at 6% since February 15, 2001. But this apparent lack of liquid assets was alleged only generally in Mr. Boulanger's affidavit and was of course not supported by financial statements or balance sheets that would likely demonstrate it. The employer has therefore failed to persuade me of this lack of liquid assets. The sale of the seized property could therefore be avoided by the employer.
[4] Secondly, it emerges from the uncontradicted evidence submitted by the complainant that the employer's business has sufficient assets in movable and immovable property to obtain financing that could obtain the liquid assets that are sought.
[5] Finally, even if there is a sale, I strongly doubt the evidence submitted that such a sale, in view of the amount at stake, would involve the sale of goods in sufficient number to paralyze the employer's activities or force the closure of its aviation business for an indefinite period.
[6] On the other hand, the fear that the complainant might be unable to repay an immediate payment -- owing to the sale of seized property and the complainant's possible failure on the merits of the application for judicial review filed by the employer -- is not, in my opinion, a factor in the circumstances of the case that must be assessed in order to determine whether irreparable harm would be occasioned to the employer. Just in case, and should such an hypothesis have to be considered, it has not been established that it was reasonable to fear that the complainant might not be able to repay the amount of the adjudication award in the medium or long term should the judicial review turn out to the advantage of the employer.
[7] Since I am of the opinion that the employer has not satisfied the test of irreparable harm, it is not necessary to examine the third test, the preponderance of convenience. However, I would like to add that if I had done so, I would have been inclined to rule in favour of the complainant, given the damages he identified in his affidavit submitted in opposition to this motion.
[8] This motion to stay, which I have assessed pursuant to section 18.2 of the Federal Court Act and Rule 398(1)(b) of the Federal Court Rules, 1998 is dismissed with costs.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020322
Docket: T-378-02
Between:
INSTITUT AÉRONAUTIQUE DE LA CAPITALE
Applicant
and
PASCAL BANDEVILLE
Respondent
REASONS FOR ORDER
AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-378-02
STYLE: INSTITUT AÉRONAUTIQUE DE LA CAPITALE
Applicant
and
PASCAL BANDEVILLE
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 18, 2002
REASONS FOR ORDER OF Mr. RICHARD MORNEAU, PROTHONOTARY
DATED: March 22, 2002
APPEARANCES:
Jean-Christian Drolet for the applicant
Stéphane Galibois for the respondent
SOLICITORS OF RECORD:
O'Brien, Advocates for the applicant
Québec, Quebec
Daignault et associés for the respondent
Québec, Quebec
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