Winnipeg, Manitoba, June 14, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
SMITH TRUCKING LIMITED
and
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Defendants move for summary judgment, pursuant to Rule 213 of the Federal Courts Rules 1998. They say the Plaintiffs action should be dismissed because there is no genuine issue for trial.
[2] On December 12, 2006 the Plaintiffs commenced an action against the Defendants by way of a statement of claim. They claim the unreasonable seizure of a fork lift truck in violation of Section 8 of the Canadian Charter of Rights and Freedoms (the Charter). They claim damages in the amount of $500,000.00.
[3] George Smith is an officer, director and the controlling mind of George Smith Trucking Limited, a federally regulated trucking undertaking subject to the provisions of the Canada Labour Code. The Plaintiffs, on this motion, were not represented by counsel.
[4] In April of 2004, the Plaintiffs were the subject of enforcement action by officials of the Labour Standards Branch of Human Resources and Skills Development Canada (HRSD) after a complaint was received that the fork lift truck in question, whose original design had been modified, was unsafe.
[5] After inspecting the fork lift truck on April 1, 2004, a Direction was issued by an inspector of Labour Standards Branch (LSB) ordering repairs on the steering mechanism and a few days later a further Directive was issued stipulating the fork lift truck must not be used either with the modified fork lift extensions in place or prior to the steering problem having been rectified. On
April 19, 2004 a further Directive was issued regarding the bent Mast Rail and the worn Mast Chain on the fork lift truck. The Direction required the fork lift truck be removed from service until repaired or properly modified by a qualified engineer.
[6] None of these Directives were appealed through the available internal appeal process nor were they judicially challenged.
[7] After discovering the fork lift truck was being used contrary to the Directives, the LBS sought and obtained on consent [emphasis mine] an injunction issued by Justice Pinard on June 3, 2004 prohibiting the Plaintiffs from using or operating the fork lift truck until all Directives were satisfied.
[8] An alleged breach of Justice Pinard’s injunction led Justice Heneghan of this Court on
July 5, 2004 to determine that there had been a prima facie breach of Justice Pinard’s injunction and to order that the Plaintiffs must appear before the Court to show cause why they should not be held in contempt for such violation.
[9] Before the contempt hearing took place on January 13, 2005 before my colleague Justice Beaudry of this Court, the LSB sought and obtained on July 21, 2004 an interlocutory injunction sequestering the fork lift truck until the contempt proceedings had been completed.
[10] The record indicates the Plaintiffs were served on July 19, 2004 with the motion record but they did not appear to oppose the order sought. Based on the material before him Justice Shore was satisfied that any harm to health and safety caused by the continued use of the fork lift truck would be irreparable and that the protection of health and safety outweighed the interests of the Plaintiffs in maintaining possession of the fork lift truck that they had been ordered not to use or operate.
[11] Justice Shore’s order was not appealed by the Plaintiffs.
[12] Finally, on March 21, 2005 Justice Beaudry found the Plaintiff guilty of contempt of Court in breach of Justice Pinard’s order. He imposed fines and costs and enabled the fork lift truck to be disposed of if the Plaintiffs have not complied with the directions within 180 days of his order.
[13] The Plaintiffs did not appeal Justice Beaudry’s contempt finding and consequential fines and disposal order.
[14] I agree with counsel for the Defendants the Plaintiffs have not shown there is a genuine issue for trial flowing from their action. Their action is so doubtful that it does not deserve consideration by the trier of fact at a future trial. (See, Granville Shipping Co. v. Pegasus Lines Ltd.
[1996] 2 F.C. 853 (TD) a decision of my colleague Justice Tremblay-Lamer.
[15] Clearly, on the authority of the Supreme Court of Canada’s decision in R. v McKinlay Transport Ltd. [1990] 1 S.C.R. 627 the seizure of the fork lift truck cannot be said to be unreasonable. It was authorized by my colleague Justice Shore in a proceeding in which the Plaintiffs participated.
[16] At the hearing this morning Mr. Smith argued on behalf of the Plaintiffs there was a genuine issue for trial because the Defendants had not established as required in McKinlay Transport above that Justice Shore’s order was supported by reasonable and credible grounds established under oath. That submission has no merit. My colleague had before him the uncontrovened affidavit of Andrew McKechnie dated July 19, 2004 who recited Justice Pinard’s consent prohibition order and expressed the fact the fork lift truck was in a dangerous and hazardous condition and that he was concerned for the safety of those who operated it and worked around it.
[17] The Plaintiffs chose not to cross-examine him nor file opposing affidavits disputing those facts.
[18] Yet at this morning hearing Mr. Smith sought to impugn the seizure order by adverting to testimony tendered before Justice Howell of the Manitoba Provincial Court on a charge of violating a provision of the Canada Labour Code namely the directives mentioned above. Justice Howell held a trial on the 21st and 22nd of November 2005 well after the seizure of the fork lift truck. The brunt of the extracts George Smith referred me to were to show that the LBS never had any proof the fork lift truck was unsafe. Justice Howell made no finding the fork lift truck was safe or unsafe. That question was not relevant to the issue he had to decide. He found the Plaintiffs guilty of not following the LBS directives and fined them $1,000.00 on each count.
[19] I go further. This action cannot be allowed to continue as it constitutes an impermissible collateral attack on directives of the LSB or orders of this Court which could have been appealed. The evidence which Mr. Smith tendered this morning was available when the relevant Court orders were made. As such the action is frivolous and vexatious and an abuse of this Court process.
JUDGMENT
1. This action is dismissed with costs fixed at $1,000.00.
“François Lemieux”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2187-06
STYLE OF CAUSE: George Smith and George Smith Trucking Limited v. The Minister of Labour and Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: June 14, 2007
REASONS FOR JUDGMENT: LEMIEUX J.
APPEARANCES:
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George Smith Winnipeg, Manitoba
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ON HIS OWN BEHALF
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Jeff Dodgson Department of Justice
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SOLICITORS OF RECORD:
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George Smith Winnipeg, Manitoba
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John H. Sims, Q.C. Deputy Attorney General of Canada
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