BETWEEN:
Appellant
and
Heard at Montréal, Quebec, on March 13, 2006.
Judgment delivered from the Bench at Montréal, Quebec, on March 13, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: Desjardins J.A.
Docket: A-82-05
Citation: 2006 FCA 116
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
TREVOR JACOBS
Appellant
and
SPORTS INTERACTION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Montréal, Quebec, on March 13, 2006)
[1] This is an appeal of a decision of the Federal Court which granted the respondent's application for judicial review and declared that a decision of an adjudicator appointed under the Canada Labour Code, R.S.C. 1985, c. L-2 was invalid for lack of constitutional jurisdiction (Sports Interaction v. Trevor Jacobs (2005), 268 F.T.R. 218, 2005 FC 123).
[2] Neither the appellant nor the respondent contested the jurisdiction of the adjudicator when they appeared before him.
[3] In its application for judicial review, the respondent alleged that the adjudicator's decision was patently unreasonable. As a further ground, it argued that: "... by virtue of section 88 of the Indian Act, R.S.C. 1985, c. I-5, the adjudicator lacked jurisdiction in the present matter."
[4] The application judge's decision was based upon an analysis of the constitutional jurisdiction over labour relations. An argument based upon section 88 of the Indian Act, such as the present one, inevitably triggers a consideration of the division of powers.
[5] It was consequently inappropriate for the motions judge to pronounce on the constitutional inapplicability of the Canada Labour Code in the absence of the requisite notice under section 57 of the Federal Courts Act (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2004] 3 F.C.R. 436 at paras. 74 to 81 (F.C.A.) per Sharlow J.A., dissenting: the majority did not pronounce on this point; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at paras. 263-264). While this latter case concerns a Charter challenge, the same considerations apply with respect to constitutional questions based upon the division of powers (Halifax Longshoremen's Association, Local 269 v. Offshore Logistics Inc. (2000), 257 N.R. 338 at para. 57 F.C.A.).
[6] In Northern Telecom v. Communications Workers, [1980] 1 S.C.R. 115 at 139-140, Dickson J. (as he then was) stated the following:
I am inclined toward the view that, in the absence of the vital constitutional facts, this Court would be ill-advised to essay to resolve the constitutional issue which lurks in the question upon which leave to appeal has been granted. One must keep in mind that it is not merely the private interests of the two parties before the Court that are involved in a constitutional case. By definition, the interests of two levels of government are also engaged. In this case, the appellant did not apply to the Court, pursuant to Rule 17 of the Supreme Court Rules, for the purpose of having a constitutional question stated. If the appellant had intended to raise a question as to the constitutional applicability of the Canada Labour Code, then the obligation was upon the appellant to assure that the constitutional issue was properly raised. As no constitutional question was stated nor notice served upon the respective Attorneys General, the Court lacks the traditional procedural safeguards that would normally attend such a case and the benefit of interventions by the governments concerned. [Emphasis added]
[7] Counsel for the respondent filed on the morning of the hearing a letter from the Attorney General of Canada indicating that he was served with a copy of the application for judicial review and that he did not intend to appear in the proceedings. The service of a copy of the application for judicial review is not sufficiently explicit notice for the purpose of section 57 of the Federal Courts Act, especially in this case where brief reference, without much explanation, was made to section 88 of the Indian Act as an alternative ground of judicial review. In any event, the provincial Attorneys General were not served with a notice of a constitutional question as required by section 57.
[8] The matter will therefore be referred back to the Federal Court for readjudication. The notice of a constitutional question under section 57 of the Federal Courts Act should be given by the respondent since it is it which invokes section 88 of the Indian Act and, consequently, raises the constitutional question (see also form 69). If necessary, the application judge will then move on to dispose of the other issues raised in the application for judicial review.
[9] This appeal will be allowed with costs, the decision of the motions judge will be quashed and the matter will be referred back to the Federal Court for a new hearing once notice is properly given by the respondent under section 57 of the Federal Courts Act.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-82-05
APPEAL FROM AN ORDER OF JUSTICE TREMBLAY-LAMER OF THE FEDERAL COURT DATED JANUARY 26, 2005, DOCKET NO. T-1411-04.
STYLE OF CAUSE: Trevor Jacobs v. Sports Interaction
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 13, 2006
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
DELIVERED FROM THE BENCH BY: DESJARDINS J.A.
APPEARANCES:
| FOR THE APPELLANT
|
|
| FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec
|
FOR THE APPELLANT
|
|
Dorval, Quebec |
FOR THE RESPONDENT
|