Date: 19990310
Docket: T-1219-98
MONTRÉAL, QUEBEC, MARCH 10, 1999
Before: RICHARD MORNEAU, PROTHONOTARY
| IN RE the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, |
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IN RE a payment order issued on December 12, 1997 to Raymond Laliberté, 5405 avenue Trudeau, Saint-Hyacinthe, Quebec J2S 7W9, director of Transport Damaco International Ltée, pursuant to s. 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, and relating to Pierre Beauregard et al., |
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IN RE the filing of the said payment order in the Federal Court pursuant to s. 251.15(1) of the Canada Labour Code, |
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Judgment debtor.
ORDER
This motion to stay by the judgment debtor is dismissed with costs.
Richard Morneau
Prothonotary
Certified true translation
Bernard Olivier, LL. B.
Date: 19990310
Docket: T-1219-98
| IN RE the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, |
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IN RE a payment order issued on December 12, 1997 to Raymond Laliberté, 5405 avenue Trudeau, Saint-Hyacinthe, Quebec J2S 7W9, director of Transport Damaco International Ltée, pursuant to s. 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, and relating to Pierre Beauregard et al., |
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IN RE the filing of the said payment order in the Federal Court pursuant to s. 251.15(1) of the Canada Labour Code, |
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Judgment debtor.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] This is a motion by the judgment debtor Raymond Laliberté ("the debtor") to obtain a stay of interim garnishment orders made on November 25 and December 16, 1998 and a stay of registration of a payment order registered in this Court on June 16, 1998. This motion by the debtor was made pursuant to Rule 398 of the Federal Court Rules (1998) ("the Rules"). The relevant portion of that rule reads as follows:
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398. (1) On the motion of a person against whom an order has been made, |
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(a) where the order has not been appealed, the division of the Court that made the order may order that it be stayed . . . |
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Facts
[2] On July 21, 1997 Mario Desrosiers, a labour relations officer, Human Resources Development Canada, sent a notice of claim to the debtor in the amount of $210,069.47 seeking payment by a director of the employer of the employees' salaries based on s. 251.18 of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended ("the Code").
[3] On December 12, 1997 a payment order ("the payment order") was issued by Mario Desrosiers as an inspector against the debtor pursuant to s. 251.18 of the Code.
[4] On December 30, 1997 the debtor appealed the payment order pursuant to s. 251.11(1) of the Code.
[5] The debtor alleged that at the time it was impossible for him to obtain the funds needed for the deposit required in order to appeal.
[6] On February 9, 1998 the appeal was dismissed on the ground that it did not meet the requirements of s. 251.11(2) of the Code, namely that the debtor had not paid the Minister the amount indicated in the payment order as a deposit.
[7] On June 16, 1998 the payment order was registered in this Court, as permitted by s. 251.15(3) of the Code.
[8] The various relevant sections of the Code read as follows:
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251.1 (1) Where an inspector finds that an employer has not paid an employee wages or other amounts to which the employee is entitled under this Part, the inspector may issue a written payment order to the employer, or, subject to section 251.18, to a director of a corporation referred to in that section, ordering the employer or director to pay the amount in question, and the inspector shall send a copy of any such payment order to the employee at the employee's latest known address. |
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251.11 (1) A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice. |
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(2) An employer or a director of a corporation may not appeal from a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director's liability under section 251.18. |
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251.15 (3) On the filing of a copy of an order in the Federal Court under subsection (1) or (2), the order 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 were a judgment obtained in that Court. |
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251.18 Directors of a corporation are jointly and severally liable for wages and other amounts to which an employee is entitled under this Part, to a maximum amount equivalent to six months' wages, to the extent that |
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(a) the entitlement arose during the particular director's incumbency; and |
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(b) recovery of the amount from the corporation is impossible or unlikely. |
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[9] As the payment order was registered in this Court the debtor's judgment creditors on November 25 and December 16, 1998 obtained various interim garnishment orders against the garnishees who were considered to owe money to the debtor ("the orders").
Analysis
[10] The debtor is now seeking to have registration of the payment order and the orders stayed on the ground that on March 4, 1999 he filed an action in this Court seeking to have ss. 251.11(2) and 251.18 of the Code declared ultra vires and contrary to the Charter ("the debtor's non-constitutionality motion"). Of course, this non-constitutionality motion by the debtor is also asking the Court to quash the decisions of the federal board made pursuant to those sections, namely the payment order and the Minister's decision to dismiss the appeal filed against the payment order.
[11] Although the debtor's latter proceeding is not squarely before me in connection with his motion under Rule 398, I must nevertheless make a preliminary ruling on its validity since the instant stay is sought in accordance with that proceeding. Further, such an assessment of validity is the first stage that an applicant must go through in seeking a stay such as the one at bar. As the Supreme Court pointed out 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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[12] The debtor's non-constitutionality motion is quite clearly a simple motion, not an application for judicial review made pursuant to s. 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7 ("the Act"). It seems to me that instead of simply filing his non-constitutionality motion, relying on s. 18.1 of the Act and Rule 399, the debtor should have made an application for judicial review, since he is challenging the constitutionality of legislation and the implementation of that legislation by a federal board.
[13] Counsel for the debtor argued before me that since the payment order was registered in this Court the compulsory execution process available in this Court had now been started and it followed that the debtor only needed to cite Rule 399 to provide a valid basis in law for his claims of non-constitutionality. The relevant portion of that rule reads as follows:
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399. (1) On motion, the Court may set aside or vary an order that was made |
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(b) in the absence of a party who failed to appear by accident or mistake or by reason of insufficient notice of the proceeding, |
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if the party against whom the order is made discloses a prima facie case why the order should not have been made. |
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[14] I cannot see how it can be argued that either of the foregoing paragraphs comes into the case. Registration of the payment order does not imply that an order was made ex parte. Such registration is done simply by application to the Registry, and there is no need for a motion and no requirement of an order approving the registration application. Further, Rule 399 is clearly an insufficient basis for the entire apparatus of non-constitutionality submitted by the debtor. Finally, Rule 399 does not contemplate the possibility of challenges to legislation.
[15] The debtor should thus have approached his constitutional challenge by an application for judicial review. As the debtor is beyond the deadline for doing this on either of the decisions in question, whether the payment order of December 12, 1997 or the Minister's decision to dismiss the debtor's appeal on February 9, 1998, the debtor should, if he intends to follow the same course, apply to a judge of this Court for an extension of the deadline mentioned in s. 18.1(2) of the Act. That section reads as follows:
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18.1 (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
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[16] In view of the defects that may be noted in the debtor's non-constitutionality motion, I cannot consider that his motion for a stay under Rule 398 has passed the first stage of establishing that there is a serious question. This motion will accordingly be dismissed with costs.
[17] I also do not consider that ss. 24 and 52 of the Charter or this Court's inherent jurisdiction are of any assistance to the debtor in avoiding the aforementioned requirements.
[18] In view of the preceding reasons I do not feel that there is any basis for granting counsel for the debtor's oral motion and allowing the latter, on a provisional basis while he files his application for judicial review, the stays sought by him. In my opinion, this is an interim order which a judge of this Court might be willing to consider pursuant to an application under s. 18.2 of the Act.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
March 10, 1999
Certified true translation
Bernard Olivier, LL. B.
Federal Court of Canada
Trial Division
Date: 19990310
Docket: T-1219-98
IN RE the Canada Labour Code, R.S.C. 1985, c. L-2, as amended,
and
IN RE a payment order issued on December 12, 1997 to Raymond Laliberté, 5405 avenue Trudeau, Saint-Hyacinthe, Quebec J2S 7W9, director of Transport Damaco International Ltée, pursuant to s. 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, and relating to Pierre Beauregard et al.,
IN RE the filing of the said payment order in the Federal Court pursuant to s. 251.15(1) of the Canada Labour Code,
Judgment debtor.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE NO.: T-1219-98 |
| STYLE OF CAUSE: IN RE The Canada Labour Code, R.S.C. 1985, c. L-2, as |
| IN RE a payment order issued on December 12, 1997 to Raymond Laliberté, 5405 avenue Trudeau, Saint-Hyacinthe, Quebec J2S 7W9, director of Transport Damaco International Ltée, pursuant to s. 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, and relating to Pierre Beauregard et al., |
| IN RE the filing of the said payment order in the Federal Court pursuant to s. 251.15(1) of the Canada Labour Code, |
Judgment debtor.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: March 8, 1999 |
| REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY |
| DATE OF REASONS FOR ORDER: March 10, 1999 |
APPEARANCES:
Christian Immer for the judgment debtor
Sébastien Richemont
Christian Lamoureux for the judgment creditors
Stéphane Paquette
SOLICITORS OF RECORD:
Woods & Associés for the judgment debtor
Montréal, Quebec
Paquette & Lamoureux for the judgment creditors
Montréal, Quebec
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