Supreme Court of Canada
Steinberg’s Limitée v. Comité Paritaire de
l’alimentation au détail, Région de Montréal et al., [1968] S.C.R. 163
Date: 1967-12-18
Steinberg’s Limitée
Applicant;
and
Comité Paritaire De
L’alimentation Au Détail, Région De Montréal Respondent;
and
Steinberg’s
Employees Association, Retail Clerks International Union, Local 486 Mis‑En‑Cause;
and
The Attorney
General for The Province Of Quebec Mis-En-Cause.
1967: November 27; December 18.
Present: Cartwright C.J. and Fauteux,
Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.
MOTION FOR STAY OF EXECUTION OF INJUNCTION
Jurisdiction—Supreme Court of
Canada—Injunction—Stay of execution pending appeal—Whether it should be
granted—Supreme Court Act, R.S.C. 1952, c. 259, s. 44.
[Page 164]
The trial judge had refused to grant an
injunction, the effect of which was to compel the appellant company to abide by
the terms of a decree providing, among other things, for the closing of retail
food stores on certain days and during certain hours. The Court of Appeal
directed that the injunction should issue. The appellant company inscribed an
appeal to this Court from that judgment and, after having unsuccessfully
applied to the Court of Appeal for a stay of execution, applied to this Court for
an order staying the operation of the injunction.
Held: The
application for a stay of execution should be dismissed.
Assuming, without deciding, that this Court
had jurisdiction to grant the stay of execution, and assuming that, should its
appeal be successful, the appellant company would have no legal means to
recover the monies which it had lost, the stay of execution ought not to be
granted in the circumstances of this case as otherwise the appellant company
would have an unfair advantage over its competitors.
Juridiction—Cour suprême du
Canada—Injonction—Suspension durant l’appel—Doit-elle être accordée—Loi sur la
Cour suprême, S.R.C. 1952, c. 259, art. 44.
Le juge de. première instance a refusé
d’accorder une injonction dont l’effet aurait été de contraindre la compagnie
appelante à se conformer aux termes d’un décret ordonnant, entre autres choses,
la fermeture des établissements commerciaux où se fait la vente au détail de
produits alimentaires, à certains jours et durant certaines heures. La Cour d’Appel
a ordonné que l’injonction soit émise. La compagnie appelante a inscrit un
appel devant cette Cour de ce jugement et, la suspension de l’injonction lui
ayant été refusée par la Cour d’Appel, elle a présenté à cette Cour une requête
pour faire suspendre la mise en vigueur de l’injonction.
Arrêt: La
requête pour suspendre l’injonction doit être rejetée.
Assumant, sans le décider, que cette Cour a
juridiction pour accorder la suspension de l’injonction, et assumant que si la
compagnie appelante réussit dans son appel elle n’aura aucun moyen légal pour
se faire rembourser les argents qu’elle aura perdus, la suspension de
l’injonction ne doit pas être accordée dans les circonstances de cette cause
parce qu’autrement la compagnie appelante obtiendrait un avantage injuste sur
ses concurrents.
REQUÊTE pour suspendre une injonction durant
l’appel. Requête rejetée.
APPLICATION for a stay of execution of an
injunction pending the appeal. Application dismissed.
C.A. Geoffrion, Q.C., and P. Lamontagne,
for the applicant.
C. Tellier, for the Comité Paritaire.
L.E. Bélanger, Q.C., for the Attorney
General of Quebec.
[Page 165]
Pierre Langlois, for the Employees
Association.
The judgment of the Court was delivered by
THE CHIEF JUSTICE:—This is an application for an
Order staying the operation of an Injunction granted by the Court of Queen’s
Bench (Appeal Side), the effect of which, so far as the applicant is concerned,
is to compel it to close its stores except during the hours of
1.00 p.m. to 6.00 p.m. on Mondays
9.00 a.m. to 6.00 p.m. on Tuesdays and
Wednesdays
9.00 a.m. to 9.00 p.m. on Thursdays and Fridays
9.00 a.m. to 5.00 p.m. on Saturdays.
The application was argued on November 27 and
28, 1967, and judgment was reserved. On December 18, 1967, judgment was given as follows:
The Court is unanimously of opinion that
this application should be dismissed. It is ordered that the appeal be set down
for the sittings of the Court commencing on January 23, 1968 and that the
hearing of the appeal be expedited. The motion is dismissed and the costs of
the motion are reserved to be dealt with by the Court which hears the appeal.
Reasons for judgment will be delivered at a later date.
Reasons are now being delivered.
The judge of first instance held that the
Injunction should be refused on the ground that articles 3.02, 3.05, 3.06 and
3.07 of Section III of the Decree Respecting the Retail Food Trade published
in the Quebec Official Gazette of May 15, 1965, were beyond the powers
conferred on the Lieutenant-Governor in Council by the Collective Agreement
Act, that they were not severable and that consequently the Decree was ultra
vires in toto.
The Court of Queen’s Bench (Appeal Side) held by
a majority that the Order in question was valid and directed that the
Injunction should issue. Tremblay C.J.P.Q., with whom Salvas J. agreed,
dissenting, was of opinion that the Decree was invalid for reasons expressed
differently from those of the judge of first instance.
In support of the application for a stay it was
argued that compliance with the Order will cause a loss to the applicant of
approximately $10,000 a week and that if this Court, when the appeal is heard
on the merits, should allow the appeal, there would be no way in which the
applicant could recover the monies which it had lost. For
[Page 166]
the purposes of this application I will assume,
without deciding, that the applicant is right in its submission that such a
loss could not be recovered; this would seem to follow from the judgment of
Fauteux J. speaking for the Court in La Ville Saint-Laurent v. Marien, particularly at p. 586.
Counsel for the respondent objected to the
granting of the Order sought on three grounds.
First, it was contended that the main appeal of
the applicant is not properly before this Court as (i) it does not appear that
more than $10,000 is involved in the appeal and (ii) an order for an Injunction
made in the Province of Quebec is an order made in the exercise of judicial
discretion within the meaning of s. 44 of the Supreme Court Act which
deprives the Court of jurisdiction. As to (i), the uncontradicted affidavit
evidence filed on behalf of the applicant states that the loss which it will
suffer if the injunction is maintained will greatly exceed $10,000. As to (ii),
it is my view that the order sought to be appealed was not one made in the
exercise of judicial discretion within the meaning of s. 44. The order is
not attacked on the ground that any discretion was wrongly exercised but on the
ground that the Decree under which it purported to be made was invalid.
However, all the Members of the Court were of opinion that, if leave to appeal
were necessary because otherwise the appeal would not lie by reason of the
terms of s. 44, the case was one in which leave to appeal should be
granted nunc pro tunc if it were applied for Mr. Bélanger, on being
asked by the Court, said that he would have no objection to leave being
granted. Mr. Geoffrion applied for leave and leave to appeal nunc pro
tunc was granted. Further consideration has brought me to the view
that such leave was unnecessary.
The second objection raised by the respondent is
that this Court has no jurisdiction to grant the stay asked for, that if
jurisdiction to grant such a stay exists it is in either the Court of Queen’s
Bench (Appeal Side) or in the Superior Court. In this case an application for a
stay was made to the Court of Queen’s Bench but that Court in a unanimous
judgment ruled that it had no power to grant a stay pending the disposition of
the appeal to this Court.
[Page 167]
The question whether the Court of Queen’s Bench
was right in so deciding is not before us and I express no opinion in regard to
it,
The question whether this Court has jurisdiction
to grant the stay asked for was fully and ably argued but it becomes
unnecessary to express an opinion upon it, because, assuming without deciding
that we have jurisdiction, it is the view of all the Members of the Court that
the stay ought not to be granted.
The third ground on which counsel for the
respondent objected to the granting of the order was that in all the
circumstances of the case the Court ought not to grant a stay. I agree with
this submission. It is true that if the appellant’s appeal is successful it
will have suffered a financial loss for which, as indicated above, I am assuming
that it will have no legal redress; on the other hand, if its appeal should
fail the granting of the stay would have brought about the result that it would
have obtained an unfair advantage over all of its competitors in the area
covered by the Decree who have seen fit to obey the order which the judgment of
the Court of Queen’s Bench now in appeal has held to be valid. Balancing these
two possibilities against each other I am of opinion that the stay should be
refused.
These are my reasons for disposing of the
application as was done on December 18, 1967.
Application dismissed.
Attorneys for the applicant: Geoffrion
& Prud’homme, Montreal.
Attorneys for the Comité Paritaire:
Blain, Piche, Bergeron, Godbout & Emery, Montreal.
Attorneys for the Attorney-General of Quebec: Ahern, Bélanger, de Brabant &
Nuss, Montreal.
Attorneys for the Employees Association:
Cutler, Lamer, Bellemare, Robert, Desaulniers, Proulx & Sylvestre, Montreal.
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