Sayegh (Re), docket T-1444-97

T-1444-97

In the matter of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended,

AND in the matter of a payment order issued on April 3, 1997 to Magdi Sayegh, 105 rue de la Source, Saint-Nicholas, Quebec G7A 2S7, director of Aviation Leclerc Inc., pursuant to subsection 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended and concerning Mr. Ronald Bissonnette,

AND in the matter of the filing in the Federal Court of the said payment order pursuant to subsection 251.15(1) of the Canada Labour Code,

ELIZABETH THE SECOND, by the grace of God, Queen of the United Kingdom, Canada and her other kingdoms and territories, Head of the Commonwealth, Defender of the Faith

REASONS FOR ORDER

NADON J:

     On October 2, 1997 in Québec, I heard a motion presented by the applicant for revocation of a judgment of this Court. At the end of the hearing, I dismissed the motion and advised counsel that reasons would soon be rendered.

     The relevant facts may be summarized as follows. The applicant was a director of Aviation Leclerc Inc. The company made an assignment for the benefit of its creditors on March 17, 1997. Following a complaint filed by Ronald Bissonnette, a former employee of the company, Jean-Marc Juteau, an inspector with Human Resources Development Canada (Human Resources Canada) wrote to the company on March 21, 1997 informing it of the complaint and providing it with the particulars of the claim. In his letter, Mr. Juteau gave the company until April 4, 1997 to send him its reply concerning Mr. Bissonnette"s complaint. Mr. Juteau"s letter concludes as follows:

[Translation] I would like to point out to you that failure to answer on your part may result in the issuance of a payment order based on the complainant"s claim and the ensuing procedure. You will find attached hereto our information leaflet in this regard.

     Since the company failed to reply within the allotted time, a payment order was issued by Mr. Juteau to a director of the company on April 3, 1997. The payment order was served on the applicant on April 25, 1997. The text of the order reads as follows:

[Translation]

WHEREAS the employer AVIATION LECLERC INC., AÉROPORT INTERNATIONAL JEAN-LESAGE, 710 - 7IÈME AVE - HANGAR # 7, STE-FOY, QUÉBEC, hereinafter referred to as the "employer", has failed to pay Mr. Ronald Bissonnette the wages or other compensation to which the employee is entitled under Part III of the Canada Labour Code , in the amount of $4,819.77;

WHEREAS the recovery of this debt from the employer is impossible or unlikely;

WHEREAS you held the position of director with this employer during the period in which the amount of the claim specified above originated; and

WHEREAS section 251.18 of the Canada Labour Code stipulates that:

"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

(a) the entitlement arose during the particular director's incumbency; and

(b) recovery of the amount from the corporation is impossible or unlikely.

YOU ARE BOUND to pay forthwith, by certified cheque or postal money order, the amount of $4,819.77 to the Receiver General of Canada. This payment should be delivered in person or sent by mail to the undersigned inspector.

If you wish to appeal this payment order, you should do so by writing to the minister of Labour within fifteen (15) days after service. To be heard, your appeal motion must be accompanied by a certified cheque or postal money order payable to the Receiver General of Canada in the amount indicated in the payment order. This sum will be kept in a trust account until the appeal is decided by an independent referee. Your appeal motion should be addressed to the Minister of Labour, c/o Regional Director, HRDC - Labour, 1441 rue Saint-Urbain, 8th Floor, Montréal, Quebec H2X 2M6.

     The applicant did not appeal the payment order within 15 days after service, as prescribed by subsection 251.11(1) of the Canada Labour Code (the Code). On July 3, 1997, the payment order rendered under subsection 251.1(1) of the Code was filed in the Registry of this Court by a representative of Human Resources Canada, on behalf of the Minister of Labour, for purposes of registration. Pursuant to subsection 251.15(3) of the Code, the registration of the payment order by the Federal Court confers on this order the value of a judgment of the Court. Section 251.15 reads as follows:

251.15 (1) [Enforcement of orders] Any person who is affected by a payment order issued under subsection 251.1(1) or a referee's order made under subsection 251.12(4), or the Minister on the request of any such person, may, after fifteen days after the day on which the order is made, or after the day provided in the order for compliance, whichever is the later, file in the Federal Court

(a) a copy of the payment order; or

(b) a copy of the referee's order, exclusive of the reasons therefor.

(2) [Idem] After the expiration of the fifteen day period specified in an order to a debtor of the employer made under subsection 251.13(1), the regional director may file a copy of the order in the Federal Court.

(3) [Registration of orders] 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.

     The applicant, relying on Rule 5 of the Federal Court Rules,¹ is seeking the revocation of the judgment under article 482 of the Quebec Code of Civil Procedure (the C.C.P.). In my opinion, this motion cannot succeed.

     Article 482 of the C.C.P. states:

482. A party condemned by default to appear or to plead may, if he was prevented from filing his defence by surprise, by fraud or by any other reason considered sufficient, request that the judgment be revoked and that the action be dismissed.

The motion, addressed to the court which rendered the judgment, must contain not only the grounds for revocation of judgment, but also the grounds of defence to the action.

     This article allows a party who is being sued in the Quebec courts and is condemned by default to appear or to plead to request that the judgment be revoked. In the case at bar it is unnecessary, in my opinion, to rely on Rule 5 since Rule 439(3) of the Federal Court Rules allows the Court to rescind any judgment obtained by default against a party. Rule 439(3) states:

439. (3) The Court may, on such terms as seem just, set aside or vary any judgment given under Rules 432 to 438.

     For the purposes of this application, it is unnecessary, in any event, to distinguish between article 482 C.C.P and Rule 439(3).

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     The applicant advances two arguments in support of his motion. First, he explains why he did not follow through on the payment order issued against him. He says that when he received the payment order he forwarded it to the trustee "[Translation ] sincerely believing that he was the one to whom this claim should have been sent and that it was his responsibility to deal with it since, if a former employee of the company had a valid wage claim, there were sufficient assets in the bankruptcy to pay his claim in full". Second, the applicant states that he has a good defence to Mr. Bissonnette"s claim. Mr. Bissonnette, he says, left the company voluntarily on November 2, 1996 and accordingly he is not entitled to a holiday period. The applicant submits that the inspector should have dismissed Mr. Bissonnette"s claim pursuant to subsection 251.1(2) of the Code.

     It is clear from the applicant"s argument that he is vigorously challenging the merits of Mr. Bissonnette"s claim. It is also clear that he wants to obtain a revocation of the judgment so as to be able to challenge this claim in the Federal Court. In my opinion, that is not possible since this Court has no jurisdiction as to the issue of the validity of Mr. Bissonnette"s claim. Section 251.1 of the Code assigns such jurisdiction to an inspector, who is to determine whether the complaint filed by an employee has merit. Subsections 251.1(1) and (2) of the Code provide:

251.1 (1) [Payment order] 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.

(2) [Where complaint unfounded] Where an inspector concludes that a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part is unfounded, the inspector shall so notify the complainant in writing.

     Subsection 251.11(1) of the Code, furthermore, provides that anyone who is affected by a payment order may appeal the inspector's decision to the Minister within fifteen days after service of the order. The Minister shall forthwith, under subsection 251.12(1), appoint a referee to hear and adjudicate the appeal. Subsection 251.12(6) states that the referee"s order is final and shall not be questioned or reviewed in any court. Subsection 251.12(7) prohibits any recourse to the extraordinary remedies.

     It is clear, therefore, from the relevant provisions of the Code that there is no appeal from a referee"s decision. Furthermore, it is not certain that the referee"s decision can be challenged by way of judicial review. In any event, it is undeniable that this Court has no jurisdiction to determine the merits of an employee"s claim.

     It seems obvious to me that the judgment the applicant is seeking to have revoked, namely the registration of the payment order under subsection 251.15(3) of the Code, which gives the order the same force and effect as a judgment of this Court, cannot be revoked on the grounds relied on by the applicant. Insofar as the process prescribed by the Code in regard to payment orders has been followed " namely, service on the party concerned, and the expiration of the period prescribed in subsection 251.11(1), 15 days after service of the payment order " and no appeal against this payment order has been filed, the registration giving the order the same force and effect as a judgment cannot be revoked.

     The purpose of registration of the payment order is to allow its execution. Unfortunately for the applicant, the appeal period has expired and he cannot obtain an extension of the time for appeal since the Code does not allow for an extension. Counsel for the applicant argued that his client would be wronged if the motion for revocation were not allowed, since he had not had an opportunity to be heard. In my opinion, there is no merit in this submission since the applicant received a copy of the payment order issued against him and was notified that he had 15 days in which to appeal this order. He did not do so. That is why the applicant finds himself with a payment order that has become enforceable against him. In view of the clear provisions in the Code, I am unable to grant the revocation requested by the applicant.

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     For these reasons, the motion has been dismissed.

Marc Nadon

J.

Vancouver, British Columbia

October 16, 1997.

Certified true translation

Christiane Delon

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE NO.              T-1444-97

STYLE:              In the matter of the Canada Labour Code , R.S.C. 1985, c. L-2, as amended,

AND in the matter of a payment order issued on April 3, 1997 to Magdi Sayegh, 105 rue de la Source, Saint-Nicholas, Quebec G7A 2S7, director of Aviation Leclerc Inc., pursuant to subsection 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended and concerning Mr. Ronald Bissonnette,

AND in the matter of the filing in the Federal Court of the said payment order pursuant to subsection 251.15(1) of the Canada Labour Code,

ELIZABETH THE SECOND, by the grace of God, Queen of the United Kingdom, Canada and her other kingdoms and territories, Head of the Commonwealth, Defender of the Faith

PLACE OF HEARING:      Québec, Quebec

REASONS FOR ORDER OF NADON J.

DATED:              October 16, 1997

APPEARANCES:

Ronald Bissonnette                  for the applicant

Louis M. Lavoie                  for the respondent

Raymond Piché                  for the intervenor

SOLICITORS OF RECORD:

Ronald Bissonnette

1489 rue Buffon

Ste-Foy, Quebec

G2E 4B2                      for the applicant

Louis M. Lavoie

19 rue Louis-Hébert

Loretteville, Quebec

G2A 2T3                      for the respondent

Federal Department of Justice

Complexe Guy-Favreau

200 ouest, boul. René-Lévesque

Tour est, 9e étage

Montréal, Quebec

H2Z 1X4                      for the intervenor

__________________

¹      Rule 5 states:
         In any proceeding in the Court where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada or by any general rule or order of the Court (except this Rule), the practice and procedure shall be determined by the Court (either on a preliminary motion for directions, or after the event if no such motion has been made) for the particular matter by analogy              (a) to the other provisions of these Rules, or              (b) to the practice and procedure in force for similar proceedings in the courts of that province to which the subject matter of the proceedings most particularly relates,          whichever is, in the opinion of the Court, most appropriate in the circumstances.