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Supreme Court of Canada

Labour relations—Injunction under s. 99 of the Labour Code—Notice—Where should petition be presented—Labour Code, R.S.Q. 1964, c. 141, s. 99—Old Code of Civil Procedure, art. 957(3), 961—New Code of Civil Procedure, art. 5, 20, 753.

During a strike launched on September 21, 1967, in the public transportation system of the metropolitan area by the employees of the Montreal Transportation Commission, the Attorney General,

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immediately after the appointment of a board of inquiry, presented to the Superior Court in Quebec City a petition based on s. 99 of the Labour Code, asking the Court to grant an order commanding the employees to return to work immediately. The Superior Court granted an injunction ordering an end to the strike until December 31, 1967. The appellants challenged this order in the Court of Appeal because the injunction had been granted without any notice to the appellants and because the petition of the Attorney General should have been presented in the district of Montreal. The Court of Appeal rejected these two grounds. The appellants were granted leave to appeal to this Court.

Held: The appeal should be dismissed, Spence and Pigeon JJ. dissenting.

Per Fauteux, Abbott, Martland, Judson and Ritchie JJ.: The Court of Appeal rightly dismissed the appeal. In granting the injunction which s. 99 of the Labour Code authorizes to forestall or put an end to the danger that the strike would imperil public health and safety, the Superior Court judge is not called upon to determine an issue between parties. The temporary order provided for by the special provisions of s. 99 constitutes an emergency measure. To be efficient and so that the purpose of the legislature may be attained—to prevent public health and safety from being imperiled—implementation of this order must be brought about with celerity, either to prevent an apprehended strike or to put an end to a strike already in progress. The legislature did not prescribe service of the petition of the Attorney General. This is a summary procedure and the exercise of the power conferred upon the judge is not subject to the delays incidental to the service of the petition and other delays pertaining to an eventual contestation.

Per Spence and Pigeon JJ., dissenting: Whether the matter is considered by reference only to the provisions of the Labour Code or the rules of the Code of Civil Procedure are considered also, the judge to whom the petition is submitted cannot grant, without notice, an injunction for the total duration allowed by s. 99 of the Labour Code.

The rule audi alteram partem is not abrogated by the provisions of s. 99. This is not an interim injunction. It cannot be said that the purpose contemplated would be defeated if the injunction can only be granted after notice. To allow the judge to render a final decision without hearing the repre-

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sentatives of the strikers is to give his function a ministerial character instead of that of an impartial and enlightened arbitrator as he must be.

Applying the rules of the old Code of Civil Procedure, a judge could not grant more than an interim injunction without notice.

If art. 753 of the new Code of Procedure applies, the judge cannot grant, without notice, more than a provisional injunction for a period which may not exceed ten days; if the article is not applicable, the new code prohibits an injunction without notice.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a judgment of Dorion C.J.S.C. Appeal dismissed, Spence and Pigeon JJ. dissenting.

Roger Thibaudeau, Q.C., for the appellants.

Maurice Jacques, for the respondent.

The judgment of Fauteux, Abbott, Martland, Judson and Ritchie JJ. was delivered by

FAUTEUX J.—This is an appeal, brought by leave of this Court, from a unanimous decision of the Court of Queen’s Bench (Appeal Side) of the Province of Quebec1.

By that decision, the Court of Appeal dismissed appellants’ appeal from an order issued at Quebec, on October 11, 1967, in the circumstances hereinafter mentioned, by Chief Justice Dorion of the Superior Court, pursuant to s. 99 of the Labour Code, R.S.Q. 1964, c. 141.

The Montreal Transportation Commission, established under 14 George VI, c. 79 and hereinafter designated as “The Commission”, owns and manages a general system of public transportation, for the benefit of the people of the city of Montreal and the metropolitan area. On September 21, 1967, the employees of the Commission, assigned either to transportation, to the Commission’s offices or to the security service, and respectively represented by appellant unions, launched a strike in public transportation in the metropolitan area.

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The public transportation system of the Commission constitutes a “public service” within the meaning of s. 1(4)(n) of the Labour Code, and the right to strike of the employees of this public service is governed by the special provisions of s. 99 of the Labour Code which, at this point, should be quoted:

99. Strikes are prohibited to the employees of a public service unless the association of employees concerned has acquired the right to strike under Section 46 and has given at least eight days’ prior written notice to the Minister of the time when it intends to have recourse to a strike.

Whenever in the opinion of the Lieutenant-Governor in Council a threatened or actual strike in a public service endangers the public health or safety, he may appoint a board of inquiry which shall have the powers of a council of arbitration to inquire into and report upon the dispute, save that it shall not pronounce any decision or make recommendations, but must confine itself to ascertaining the facts in compliance with Sections 69 to 78.

Upon the petition of the Attorney General after the appointment of a board of inquiry, a judge of the Superior Court, if he finds that the strike imperils the public health or safety, may grant such injunction as he deems appropriate to prevent or terminate such strike.

An injunction granted under this section must cease not later than twenty days after the expiry of the delay of sixty days within which the board of inquiry must file its report, and such delay cannot be extended.

This section shall apply to a threatened or actual strike which interferes with the education of a group of students as well as to a strike which endangers or imperils the public health or safety.

This strike, launched, on September 21, 1967, was still in progress on October 10 when, on that day, the Lieutenant-Governor in Council, being of the opinion that this concerted stoppage of work was endangering public health and safety and that there were grounds, pursuant to the provisions of s. 99, to appoint a board of inquiry, passed an Order-in-council under which he ordered, on the recommendation of the Minister of Labour, that a board of inquiry be appointed to inquire into and report upon the dispute between

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the Commission and its employees and, for this purpose, appointed Judge Jacques Bousquet, of the Provincial Court (Montreal).

Immediately after the appointment of this board of inquiry, that is to say, on the following day, October 11, the Attorney General presented, in Quebec City, a petition to Chief Justice Dorion of the Superior Court, in which he alleged the above-mentioned facts and, on the basis of the facts set forth in sworn statements, emanating from the Director of the Police Department, the Director of the Health Department and the Director of the Fire Department of the city of Montreal, declared that in accord with the latter he was of the opinion that this strike imperiled public health and safety in the territory within the jurisdiction of the Commission and asked the Chief Justice to grant an order enjoining the employees of the Commission to return to work immediately, to put an end to this strike during the eighty days following the appointment of the board of inquiry. Not being in a position to know the names and addresses of the 6,000 employees concerned, the Attorney General asked the Chief Justice to prescribe a special mode of service of the order sought and asked him, also, to be dispensed from giving security or, failing this, to fix the amount thereof.

Having examined this petition and the supporting documents, having heard representations from the petitioner’s attorneys and deliberated, Mr. Justice Dorion considered that the truth of the facts alleged in the petition was attested by the annexed affidavits and judging that this strike was paralyzing the public transportation system operated by the Commission, that it imperiled public health and safety in the territory of the city of Montreal and in the whole metropolitan area, granted, as s. 99 authorized him to do, an injunction ordering an end to the strike until December 31, 1967. In addition, the learned Judge prescribed a special mode of service of this order and dispensed the claimant from giving security.

Appellants challenged this order in the Court of Appeal, alleging firstly that it was void because it was issued while they or the strikers had not been summoned and then that the petition of the

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Attorney General should have been presented, not in the district of Quebec but in the district of Montreal where the strike was taking place and where the strikers were domiciled.

The Court of Appeal, composed of Pratte, Taschereau and Owen JJ., dismissed these two grounds for reasons thus expressed by Mr. Justice Pratte.

On the first ground:

[TRANSLATION] The injunction challenged is not one which can be granted under the provisions of the Code of Civil Procedure, for there is no litigation between the Attorney General and the persons referred to in the injunction; it has its source in Section 99 of the Labour Code, which determines conditions for the exercise of the right to apply for it and of the power to grant it. Now, this section does not prescribe service of the Attorney General’s petition, and for good reason. In fact, as it is a measure destined to put an end, at least temporarily, to a situation of fact (legal or not) which, in the opinion of the Executive Council and of a Superior Court judge, constitutes a serious danger to public health and safety, the greatest dispatch is necessary. Therefore, it could hardly be thought that its application should be delayed for the time necessary to serve the petition, especially since the Attorney General is not in a position of knowing the names of persons to whom this service should be made. In these circumstances, to require service of the petition, when the Act does not prescribe it, would most of the time have the effect of transforming into a vain display a measure destined to protect the community efficiently and promptly.

On the second ground:

[TRANSLATION] On this point, it must be said that Section 99 of the Labour Code does not contain anything which allows one to say in what judicial district the petition must be presented. Therefore it can well be presumed that the legislator intended to leave the Attorney General free to present his petition in the district of his choice, according to what would seem to him to be most convenient in the circumstances of each case.

If this concerned a dispute between the Attorney General and the strikers, it would not be unreasonable to wish to apply the rules of the Code of Civil Procedure concerning the place of summons. But, as has been seen, this is not the case here. Besides,

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the persons referred to in the petition not being called upon to reply, it concerns them little whether it be presented in Quebec, Montreal or elsewhere.

Mr. Justice Pratte added that he was strongly inclined to think that the order, in this particular case, was not susceptible of being appealed.

I am respectfully in agreement with the reasons given in support of the judgment a quo and with the opinion expressed on the matter of the jurisdiction of the Court of Appeal. Hence, assuming without deciding that the Court of Appeal had jurisdiction, I believe it sufficient to limit myself to some brief observations on the validity of the injunction order.

It is evident that the purpose and sole purpose of the special provisions of s. 99 of the Labour Code is to prevent public health and safety from being imperiled by a strike of employees of a public service. In granting the injunction which this section authorizes to forestall or put an end to this danger, the Superior Court Judge is not called upon to determine an issue between parties. He has nothing to do with the dispute existing between the management and employees of a public service, a dispute the previous reference of which to a board of inquiry, set up by the Lieutenant-Governor in Council, conditions the right of the Attorney General to submit the petition and the Judge’s right to exercise the power conferred to him. So that, in issuing the order provided for by these special provisions to temporarily prevent an apprenhended strike or put an end to a strike already in progress, the Superior Court Judge is only giving effect to the right which is sanctioned by these provisions and which all members of the social community, including the management and employees of the public service concerned, possess in common, that is the right to be protected against the endangering of public health and safety.

This temporary order constitutes an emergency measure. To be efficient and so that the purpose of the Legislature may be attained, implementation of this order must be brought about with celerity, either to prevent an apprehended strike or to put an end to a strike already in progress. The Legislature did not prescribe service of the petition of the Attorney General; it left to the

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Superior Court Judge hearing it the power “to grant such injunction as he deems appropriate to prevent or terminate such strike”. All this implies that we are dealing here with a summary procedure and that the exercise of the power conferred to the Judge is not subject to the delays incidental to the service of the petition and other delays pertaining to an eventual contestation. In Her Majesty the Queen v. Randolph et al[2], respondents questioned, without success, the validity of two interim prohibitory orders provided for by s. 7 of the Post Office Act and issued, in this particular case, with no previous notice to the person concerned. Speaking on behalf of the Court, then composed of seven judges, Chief Justice Cartwright stated, at page 266:

Generally speaking the maxim audi alteram partem has reference to the making of decisions affecting the right of parties which are final in their nature, and this is true also of s. 2(e) of the Canadian Bill of Rights upon which the respondents relied.

And later, on the same page, he added:

The main object of s. 7 is to enable the Postmaster General to take prompt action to prevent the use of the mails for the purpose of defrauding the public or other criminal activity. That purpose might well be defeated if he could take action only after notice and a hearing.

These observations are pertinent in this particular case. I would confirm the unanimous judgment of the Court of Queen’s Bench (Appeal Side) and I would dismiss, with costs, the appeal of appellants before this Court.

The judgment of Spence and Pigeon JJ. was delivered by

PIGEON J. (dissenting)—This appeal is from an injunction which was granted under s. 99 of the Labour Code by the Chief Justice of the Superior Court of the Province of Quebec without any notice to appellants and was upheld by the Court of Appeal[3].

A question was raised at the hearing concerning the applicability, under the circumstances, of

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the rules of the Code of Civil Procedure. Without in any way presuming that they are not applicable, I shall therefore at first leave them out of consideration in order to examine the matter by reference only to the provisions of the Labour Code.

In L’Alliance des Professeurs catholiques de Montréal v. The Labour Relations Board[4], this Court held that the rule audi alteram partem was implicit in a provision of the very act that the Labour Code has replaced. It is true that in enacting the latter the Legislature has inserted in s. 118 an explicit provision specifying the notice to be given in the case contemplated in the judgment I have just cited. This, however, certainly cannot be considered as precluding the application of the general rule for, in the Alliance case, the question specifically considered was whether, from the fact that a notice was expressly required in certain cases, it should be inferred that no notice was necessary in all others. This is what this Court did not agree with, holding on the contrary that a fundamental rule of natural justice is not abrogated in such way.

As against this, reference is made to the decision of this Court in The Queen v. Randolph et al[5] in which the subject-matter was an interim prohibitory order issued under s. 7 of the Post Office Act. In my view, the ratio decidendi of this decision is not at all applicable in the present case and this appears from the following extracts from the reasons (at pages 265 and 266):

There is no doubt that Parliament has the power to abrogate or modify the application of the maxim audi alteram partem. In s. 7 it has not abrogated it. Rather it has provided that before any final prohibitory order is made, the party affected shall have notice and a right to an expeditious hearing and has defined the procedure to be followed. It would, in my opinion, be inconsistent with the scheme of the section to hold that before making an interim order the Postmaster General must hold a hearing. If such a duty existed it would be a duty to notify the party affected of what was alleged against him and to give him a reasonable opportunity to answer.

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If this were done the hearing prescribed by subs. (2) would be an unnecessary repetition. Generally speaking the maxim audi alteram partem has reference to the making of decisions affecting the rights of parties which are final in their nature, and this is true also of s. 2(e) of the Canadian Bill of Rights upon which the respondents relied.

* * *

The main object of s. 7 is to enable the Postmaster General to take prompt action to prevent the use of the mails for the purpose of defrauding the public or other criminal activity. That purpose might well be defeated if he could take action only after notice and a hearing.

It will be noted that in that case this Court had to consider an enactment expressly requiring a notice before a final decision could be made and providing for an interim order before such notice. Such interim order is completely similar to an interim injunction granted in a case of urgency for the short period deemed necessary to give notice and to hear the parties before adjudicating on a petition for an interlocutory or permanent injunction. Such is not the case, here. It is not an interim injunction which has been granted but an injunction for the total duration allowed by the Act.

Furthermore, can it be said in the present case as in Randolph that the purpose contemplated might well be defeated if the injunction can only be granted after notice? Here, the contrary seems obvious. In the first place, it must be noted that before any strike in a “public service” contemplated in s. 99 of the Labour Code, at least eight days’ written notice to the Minister is required. This notice is obviously intended to enable the provincial government to take the action authorized thereafter in this same section before the strike begins, in case any interruption of service whatever appears intolerable. In the case at bar, it was almost three weeks after the strike had actually begun that the government adopted the necessary order‑in-council and applied for an injunction. If the government could wait almost three weeks before deciding to act, how can it be reasonably contended that it could not await a few hours more so as to respect the most fundamental principle of natural justice?

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This is not all. Section 99 of the Labour Code was obviously inspired by similar provisions of the Taft-Hartley Law of the United States where the same keywords are found. In the United States, it is well established that an injunction is never granted under such provisions without prior notice. The notice may be very short. The first hearing may be very brief. An interim injunction may then be granted to allow somewhat more elaborate proceedings to take place, but no injunction is ever issued without notice. That the observance of the rule audi alteram partem might defeat the purpose sought cannot, therefore, be contended. Experience has shown the reverse to be true. It is a fact that injunctions granted without notice are most frequently disobeyed in our labour disputes and this is not hard to explain.

One must not lose sight of the fact that, in a case like this, we are not faced with an illegal work stoppage or with a trade union resorting to violence or other illegalities. In this case, the court dealing with the application for an injunction was faced with the case of trade unions that were out on a strike the legality of which was unchallenged and were, consequently, using their right. The Attorney General’s petition was nothing less than an application for the expropriation of this right in the general interest, albeit temporary, it was nonetheless an expropriation that was sought and a most important one because it would have the effect of seriously altering the balance of economic forces on which depends the outcome of all labour disputes.

It is true that it is the public authority who required the injunction, considering it necessary that the employees of Montreal’s public transportation undertaking should, in the general interest, submit to the expropriation of their right to strike for nearly three months. But the Legislature did not want that the government’s decision should be final. It ordered that the injunction be granted only if a Judge of the Superior Court “finds that the strike imperils the public health or safety”. To allow the Judge who has to deal with such a request to render a final decision without hearing the representatives of the strikers

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is, in my opinion, to give his function a ministerial character instead of that of an impartial and enlightened arbitrator as he must be.

If the rules of the Code of Civil Procedure are considered, the same conclusion is reached. The Code of Civil Procedure which was in force at the time the Labour Code was enacted provided in para. 3 of art. 957, for the granting of injunctions on petition “if at the time the plaintiff has no other recourse to exercise than an injunction” (provision enacted by 2-3 Eliz. II, c. 27, sec. 11). Then art. 961 read as follows:

961. In cases of urgent necessity the judge may grant an interlocutory injunction without notice.

In all other cases he must require notice to be given to the opposite party in whatever manner he deems proper; but he may, in that event, grant an interim injunction, to remain in force during the time therein specified.

It will be seen that, applying the rules of the old Code of Procedure to the remedy contemplated in s. 99 of the Labour Code, a judge could not grant more than an interim injunction without notice.

Has this situation been changed by the Code of Procedure of 1965? I do not think so. It is true that the provision for the granting of an injunction on petition without the institution of an action is not to be found therein. But there is in art. 20 the following:

20. Whenever this Code contains no provision for exercising any right, any proceeding may be adopted which is not inconsistent with this Code or with some other provision of law.

In ascertaining what is not “inconsistent” with the other rules of this Code art. 5 must be considered:

5. No judicial demand can be adjudicated upon unless the party against whom it is made has been heard or duly summoned.

Under the heading “Injunctions”, instead of the former art. 961, the following is to be found:

753. The application for an interlocutory injunction must be made to the court, by written motion, supported by an affidavit affirming the truth of the facts alleged, and served upon the opposite party

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with a notice of the day when it will be presented. In case of urgency, a judge may nevertheless grant it provisionally before it has been served, but for a period which may not, in any case, exceed ten days.

* * *

With respect to the provisions of the new Code of Procedure, it seems clear to me that if, as I am inclined to think should be done without however so deciding, the rules thereof are applied to the injunction contemplated in the Labour Code, the judge to whom the petition is submitted cannot grant, without notice, more than a provisional injunction for a period which may not exceed ten days. If art. 753 is considered as not applicable in such circumstances, the conclusion must be that the new Code prohibits an injunction without notice.

For those reasons, I would allow the appeal and reverse the judgment of the Court of Appeal with costs against respondent in both Courts. Concerning the judgment of the Superior Court, in view of the fact that the time during which the injunction could be in force has long since expired, I would merely direct that the judgment rendered by the Chief Justice be set aside.

Appeal dismissed with costs, SPENCE and PIGEON JJ. dissenting.

Solicitors for the appellants: Germain, Thibaudeau & Lesage, Quebec.

Solicitors for the respondent: Prévost, Flynn, Rivard, Jacques, Cimon, Lessard & Lemay, Quebec.

 



[1] [1968] Que. Q.B. 593.

[2] [1966] S.C.R. 260, 56 D.L.R. (2d) 283.

[3] [1968] Que. Q.B. 593.

[4] [1953] 2 S.C.R. 140, 107 C.C.C. 183.

[5] [1966] S.C.R. 260, 56 D.L.R. (2d) 283.

 

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