Date: 20031125
Docket: A-456-03
Citation: 2003 FCA 447
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
UCCO-SACC-CSN
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CORRECTIONAL SERVICE CANADA
and
TREASURY BOARD CANADA, LABOUR RELATIONS
DIVISION
Respondents
Written application heard without appearance by parties.
Order made at Ottawa, Ontario, on November 25, 2003.
REASONS FOR ORDER: PELLETIER J.A.
Date: 20031125
Docket: A-456-03
Citation: 2003 FCA 447
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
UCCO-SACC-CSN
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CORRECTIONAL SERVICE CANADA
and
TREASURY BOARD CANADA, LABOUR RELATIONS
DIVISION
Respondents
REASONS FOR ORDER
PELLETIER J.A.
[1] The Court has before it an application by the appellant for an interim and interlocutory injunction. This application is in connection with an appeal from a Federal Court judgment holding that the Court lacked jurisdiction to issue an injunction to the Public Service Staff Relations Board.
[2] The appellant is the bargaining agent for certain employees of Correctional Service Canada, an employer represented by the Treasury Board for bargaining purposes. The 18 months of bargaining have produced no result. In the course of the bargaining the appellant filed a complaint with the Board, alleging that the respondents had not complied with certain provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the Act). The appellant sought from the Board an interim order that the respondents should cease the activities giving rise to the complaint even before the Board ruled on the substance of the complaint.
[3] The Board had reservations about making the interim order, but undertook to hear the complaint as quickly as possible. The hearing of the complaint was set down for August 25, 2003. At the hearing, the appellant renewed its application for an interim order, but the Board member responsible for hearing the complaint did not rule on the Board's jurisdiction to make an interim order of the kind sought by the appellant.
[4] The appellant, considering that the Board had refused to act, filed a statement of claim in the Federal Court Trial Division in which the conclusions sought were essentially the same as those raised before the Board, except that a permanent rather than interim injunction was now in question. Additionally, the appellant reserved the right to claim damages with interest and exemplary damages as a consequence of the respondents' unlawful activities. The statement of claim was not made against the Board: it was addressed to the respondents.
[5] Following the filing of the statement of claim the appellant filed an application for an interim and interlocutory injunction. On its own motion, the Court raised the question of the Trial Division's jurisdiction to make the order sought, since the Federal Court of Appeal has exclusive jurisdiction over any application for judicial review of the Board. The hearing of the application was adjourned to allow the parties to consider the matter and file supplementary memorandums.
[6] When the application was heard, it was dismissed on the ground [TRANSLATION] "that it is the Court of Appeal's function to hear any interlocutory application involving the federal boards listed in section 28" of the Federal Court Act, R.S.C 1985, c. F-7. That judgment has been appealed, and as part of that appeal the appellant has continued its application for an interim and interlocutory injunction.
[7] The rules governing the issuance of interlocutory injunctions are set out in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, at paragraph 41:
- there must be a serious question to be tried;
- the applicant must show that it will suffer irreparable harm if the application for an injunction is denied;
- the balance of convenience must favour the applicant.
[8] There is a serious question to be tried here. It is not the question of whether this Court has jurisdiction to decide whether there were unfair practices, as the respondents suggest. The serious question is the question on appeal, namely whether the Federal Court was right to conclude that it lacked jurisdiction to make an interlocutory order against the Board in response to the statement of claim filed by the appellant.
[9] As regards irreparable harm, the transcript of the hearing of August 25, 2003, showed that the Board had agreed to decide the merits of the complaints filed by the appellant. The hearing of the evidence was to begin on August 26. There are two possibilities: either the appellant agreed to present its evidence or it refused to do so. In the former case, if the Board agreed that the appellant was right, it could make the necessary orders to rectify the conditions complained of by the appellant. In the latter case, the refusal to take the opportunity of resolving the dispute on the merits is inconsistent with a genuine fear of irreparable harm. In either case, this Court's intervention is not warranted.
[10] That conclusion is in itself a sufficient basis for dismissing the application for an injunction.
[11] The application for an injunction is dismissed with costs.
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"J.D. Denis Pelletier"
J.A.
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-456-03
STYLE OF CAUSE: UCCO-SACC-CSN
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CORRECTIONAL SERVICE CANADA
and
TREASURY BOARD CANADA, LABOUR RELATIONS DIVISION
Respondents
WRITTEN APPLICATION CONSIDERED WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER: PELLETIER J.A.
DATE OF REASONS: November 25, 2003
WRITTEN SUBMISSIONS BY:
Maurice Laplante for the appellant
Jennifer Champagne for the respondents
SOLICITORS OF RECORD:
Maurice Laplante for the appellant
Montréal, Quebec
Morris Rosenberg for the respondents
Deputy Attorney General of Canada
Montréal, Quebec
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