Date: 19990416
Docket: T-1219-98
OTTAWA, ONTARIO, APRIL 16, 1999
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
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 December 12, 1997,
to Raymond Laliberté, 5405, avenue Trudeau, Saint-Hyacinthe, Quebec, J2S 7W9,
director of Transport Damaco International Ltée.,
under subsection 251.1(1) of the Canada Labour Code,
R.S.C., 1985, c. L-2, as amended, with
respect to Pierre Beauregard et al.
-and-
IN THE MATTER OF the filing in the Federal Court of the said payment order
under subsection 251.15(1) of the Canada Labour Code
AGAINST
RAYMOND LALIBERTÉ
Judgment debtor
AND
ATTORNEY GENERAL OF CANADA
Intervener
ORDER
| The motion for a stay of the measures of execution is dismissed. |
Danièle Tremblay-Lamer
Judge
Certified true translation
M. Iveson
Date: 19990416
Docket: T-1219-98
Between:
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 December 12, 1997,
to Raymond Laliberté, 5405, avenue Trudeau, Saint-Hyacinthe, Quebec, J2S 7W9,
director of Transport Damaco International Ltée.,
under subsection 251.1(1) of the Canada Labour Code,
R.S.C., 1985, c. L-2, as amended, with
respect to Pierre Beauregard et al.
-and-
AND IN THE MATTER OF the filing in the Federal Court of the said payment order
under subsection 251.15(1) of the Canada Labour Code
AGAINST
RAYMOND LALIBERTÉ
Judgment debtor
AND
ATTORNEY GENERAL OF CANADA
Intervener
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] The judgment debtor is asking the Court to stay all measures of execution which may be taken against him as a result of the registration of the payment order while the issue of the constitutionality of the wage recovery system is decided by the Court.
[2] The applicable three-part test in cases such as this is from RJR"MacDonald,1 and includes a serious question, irreparable harm and the balance of convenience. Even if we accept that there is a serious question to be tried, without making a final determination on this issue, the motion to stay still cannot succeed because the judgment debtor has not persuaded me that the balance of convenience tips in his favour.
[3] Part III of the Canada Labour Code2 has established an administrative scheme to compel employers and their directors to pay wages and other amounts they owe to their employees. It is therefore under Part III of the Code that Mr. Laliberté faces measures of execution as a de jure director. Mr. Laliberté is therefore challenging the constitutionality of sections 251.11(2) and 251.18, for which he seeks a declaratory judgment.
[4] The judgment debtor is in no way arguing that the amounts are not owed to the employees, but rather that they should be paid by the de facto directors rather than by the judgment debtor, a de jure director.
[5] However, if the requested stay were granted, the employees involved would have to wait until a final decision was issued on the constitutionality of the statutory provisions in order to receive the amounts to which they are entitled.
[6] In addition, the impact of such a decision would extend beyond the judgment debtor"s immediate personal situation, as there would be no reason not to stay all payment orders which have been and will be issued to all other judgment debtors pending a decision on this issue.
[7] As I stated in Delisle,3 I once again find that the public interest does not justify paralyzing an existing legislative scheme on the sole ground that it might eventually be declared unconstitutional.4
[8] As for irreparable harm, although my decision is based on the balance of convenience, I must say that the evidence on the record on this issue is not conclusive.
[9] In fact, the judgment debtor is claiming that he may be facing examinations on his property and possible seizure. However, this is a hypothetical argument as there is no evidence he owns property. In addition, as in Côté v. Smith,5 we must consider the possibility that one of the respondents may decide to execute a seizure of property against the other director.
[10] In any event, the jurisprudence has established that the evidence as to irreparable harm must be clear and not speculative.6
[11] There is no such evidence in the instant case.
[12] Accordingly, the motion for a stay of the measures of execution is dismissed.
Danièle Tremblay-Lamer
Judge
OTTAWA, ONTARIO
April 16, 1999.
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1219-98
| STYLE OF CAUSE: 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 December 12, 1997, to Raymond Laliberté, 5405, avenue Trudeau, Saint-Hyacinthe, Quebec, J2S 7W9, director of Transport Damaco International Ltée., under subsection 251.1(1) of the Canada Labour Code, R.S.C., 1985, c. L-2, as amended, with respect to Pierre Beauregard et al. |
| -and- |
| IN THE MATTER OF the filing in the Federal Court of the said payment order under subsection 251.15(1) of the Canada Labour Code |
| AGAINST |
| RAYMOND LALIBERTÉ |
Judgment debtor
| AND |
| ATTORNEY GENERAL OF CANADA |
| Intervener |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 12, 1999
REASONS FOR ORDER BY: The Honourable Madam Justice Tremblay-Lamer
DATED: April 16, 1999
APPEARANCES:
Christian Lamoureux
Stéphane Paquette for the judgment creditors
Christian Immer
Sébastien Richemont for the judgment debtor
Raymond Piché for the intervener
SOLICITORS OF RECORD:
Paquette & Lamoureux
Montréal, Quebec for the judgment creditors
Woods & Associés
Montréal, Quebec for the judgment debtor
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the intervener
__________________1 RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
3 Gaétan Délisle v. Attorney General of Canada (February 20, 1997), T-258-97 (F.C.T.D.).
4 Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.
5 Côté v. Smith (April 7, 1998), T-587-98 (F.C.T.D.).
6 Centre Ice Ltd. v. National Hockey League (1994), 53 C.P.R. (3d) 34 at p. 52 (F.C.A.).