Page: 31
Arbitrator Sullivan concludes “the Employer was in
contravention of the statutory overtime hours of work per
week,” that the “Canada Labour Code has been violated,” and
then orders that the “Employer cease and desist from
violating the Code.” Specific findings have been made based on
the evidence and specific future conduct has been ordered.
Whether the Respondent’s future conduct is consistent with the
Order is readily ascertainable by reference to the Code.
[47] The Order, when read within the context of the decision as
a whole, as it must be, is clear, precise, and specific (Warman v
Tremaine, 2011 FCA 297 at para 57). The Order does not suffer
from a lack of precision that would prevent the Respondent from
taking the action required to comply or to explain a failure to
comply in the course of a contempt proceeding (Telus at para 39).
[48] I am also not convinced that consideration of the alleged
contempt would require the Court to look beyond the Arbitration
Award or to consider new circumstances. In pursuing civil
contempt an Applicant must satisfy a high evidentiary burden to
succeed. It is trite to note that this requires presenting evidence to
establish the Respondent’s non-compliance with an order. In doing
so an Applicant may seek to place evidence before the Court that
goes beyond that relevant to non-compliance, but these are
evidentiary matters relating to relevance that are to be addressed in
the course of the evidentiary hearing. This possibility does not
render an otherwise enforceable order unenforceable.
[49] The Respondent further argues that failure of the Award to
specify a timeline for compliance should result in the Court
refusing to enforce the Award. The Respondent relies on Telus in
submitting that the courts have routinely refused to enforce orders
or awards in this circumstance (at para 43).
[50] A specific time for compliance was not provided for
in Telus. The Court held that this left open two possible
interpretations, that the Order was immediately applicable and
therefore incapable of being complied with or that it was to be
complied with within a reasonable time. The Court then proceeded
to consider whether there had been timely compliance with the
Order based on the evidence.
[51] The failure to specify a timeline for compliance in this
instance may prove to be a reason not to enforce the Order.
However, Telus does not teach that a contempt proceeding should
fail simply on the basis that a time for compliance has not been