Date: 20020118
Docket: T-2124-01
Neutral Citation: 2002 FCT 62
BETWEEN:
MS. HOURIA SENOUS
Applicant
AND
MR. BERNARD FONTAINE
and
MR. LAURENT DELBARRE
and
MR. BORIS DUBOILLE
and
MR. DARIO PERETTO
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for an interim order to stay or suspend execution measures resulting from the decision rendered November 6, 2001 by Human Resources Development Canada Labour Directorate dismissing an appeal in relation to four payment orders issued October 12, 2001 against Ms. Houria Senous, the applicant.
BRIEF REVIEW OF THE FACTS
[2] The applicant received four payment orders dated October 12, 2001 as a director of the company Centre international de formation aéronautique de Mirabel (CIFAM) Inc.
[3] The applicant appealed these four payment orders under subsection 251.11(1) of the Canada Labour Code.
[4] However, she did not comply with section 251.11(2) of the Canada Labour Code and did not deposit with the Minister of Labour the amounts covered by the four payment orders in question.
[5] On November 6, 2001, Ms. Lucette St-Jacques, an inspector with the Labour Directorate at Human Resources Development Canada, informed the applicant that the appeal motion could not be accepted since it failed to meet the conditions set out in subsection 251.11(2).
[6] Subsequently, the four persons who were creditors of these payment orders asked the Minister to register the said payment orders with the Registry of the Federal Court.
[7] As of today, the payment orders have not yet been registered with the Federal Court under subsection 251.15(3) of the Canada Labour Code.
[8] On December 3, 2001, the applicant filed an application for judicial review seeking to have the decision rendered on November 6, 2001 set aside. In her application, the applicant challenges in particular the validity, applicability and effect of sections 251.11(2) and 251.18 of the Canada Labour Code.
ANALYSIS
[9] It is important to begin by noting that the validity of the four payment orders is not disputed as such; the applicant emphasizes rather that the decision of November 6, 2001 prevents her from being able to adequately present her appeal as she is unable to deposit the amounts covered by the four payment orders with the Minister.
[10] The applicant considers that the requirements imposed by section 251.11(2) of the Code are exorbitant and should consequently be declared unconstitutional.
[11] Finally, she suggests that the Court stay the payment orders pending a decision by the Federal Court on the constitutional validity of the impugned provisions.
[12] It is worth noting that the notice under section 57 of the Federal Court Act in regard to the constitutionality of the impugned legislation was not given. This issue will of course not be discussed in my decision, but will be by the judge who will have to decide the issue on the merits; the applicant's counsel has assured the court that the notice under section 57 of the Federal Court Act will be given in accordance with the law.
[13] I must now examine whether the applicant meets the requirements laid down by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, i.e. the existence of a serious issue to be tried, the existence of irreparable harm and the fact that the balance of convenience might favour the applicant.
[14] The parties debated at some length whether the constitutional validity of section 251.11(2) of the Canada Labour Code might constitute a serious issue to be tried.
[15] Assuming, without deciding, that there is a serious question to be tried, and solely for the purpose of analysis, the court will examine whether there is an irreparable harm.
[16] I must say that the evidence in this regard was not conclusive. The applicant's precarious health, her financial difficulties, and the fact that she is on social assistance do not in any event constitute irreparable harm, in my opinion.
[17] Still less can the applicant's opinion of the supposedly better-off financial situation of the four respondents previously in her employment constitute a valid cause.
[18] The provisions under Part III of the Canada Labour Code were established for the benefit of employees and not for the benefit of the directors of insolvent firms, as the respondents' counsel correctly noted.
[19] The applicant argues that the personal property subject to seizure might be sold at a price lower than its actual value, which would result in harm that can never be monetarily compensated should the applicant be successful in her judicial review proceeding.
[20] The applicant also informed the Court that she acknowledged owing a portion of the sums claimed, although she did not explain how she expected to be able to pay this debt.
[21] I can only conclude that the applicant's claims in regard to her irreparable harm are simply vague and speculative.
[22] In Laliberté (Re), [1999] F.C.J. No. 501 (F.C.T.D.), Madam Justice Tremblay-Lamer stated, at paragraph 10:
In any event, the jurisprudence has established that the evidence as to irreparable harm must be clear and not speculative.
[23] The third component of the test consists of determining in whose favour the balance of convenience tilts.
[24] After all is said and done, the applicant is seeking to stay the application of the legislation that authorizes the recovery of a debt established by Part III of the Canada Labour Code.
[25] These are specific provisions of the legislation that allow the registration of payment orders and the seizure of property under those orders.
[26] I have no hesitation in concluding that it is not in the interests of justice to stay the payment orders and the potential executions as provided by the Act.
[27] To act along those lines would without a doubt have a major impact on the recovery system, and there is no justification for that.
[28] Again, Tremblay-Lamer J. stated in her Laliberté (Re) decision, supra:
[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 [Gaétan Délisle v. Attorney General of Canada (February 20, 1997), T-258-97 (F.C.T.D.)], 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. [Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110]
[29] In short, the applicant has failed to persuade me that she would suffer irreparable harm if the stay were not granted or that the balance of convenience might lean in her favour. I have no hesitation in concluding that the balance of convenience leans in favour of the respondents.
[30] For all these reasons, this motion for a stay is dismissed, with costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
January 18, 2002
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-2124-01
STYLE: MS. HOURIA SENOUS
v.
MR. BERNARD FONTAINE
and
MR. LAURENT DELBARRE
and
MR. BORIS DUBOILLE
and
MR. DARIO PERETTO
and
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 14, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATE OF REASONS AND ORDER: JANUARY 18, 2002.
APPEARANCES:
RONALD RODRIGUE FOR THE APPLICANT
RAYMOND PICHÉ FOR THE RESPONDENTS
SOLICITORS OF RECORD:
RONALD RODRIGUE FOR THE APPLICANT
SAINT-JÉRÔME, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA