A-721-75
C. M. Reardon (Applicant)
v.
The Public Service Staff Relations Board
(Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, May 13 and 17, 1976.
Judicial review—Public Service—Applicant appointed to
new position—Salary adjusted downward after signing of new
collective agreement—Adjudicator dismissing grievance—
Public Service Employment Act, R.S.C. 1970, c. P-32, ss. 8,
10, 11.
Applicant assumed a position at the EN - ENG 5 level
November 4, 1974. Earlier, on October 1, 1974, he had
received an increment to the next higher rate in the EN - ENG
4 scale. On January 14, 1975,a new collective agreement was
signed, setting out pay rates for the EN - ENG 5 level. The
"A" rates were made effective September 23, 1974. For Febru-
ary, applicant was paid at the $22,740 rate, but on March 5,
1975, he was downgraded to $21,776. The Adjudicator dis
missed his grievance. In the agreement of January 1975, article
20.07 provided that "an employee, other than an EN - ENG 1,
and EN - SUR 1 ... shall ... be paid in the (A) and (B) scale
of rates set out in Appendix "A" at the rate shown immediately
below his former rate." Article 20.08 provided that "an
employee, other than one paid at the EN - ENG 1 or EN -
SUR 1 level, who was appointed after September 22, 1974, but
before the date of signing of this Agreement, and was paid a
rate above the minimum ... for the level of his appointment,
shall be paid in the A scale ... at the rate shown immediately
below his former rate effective the date of his apointment,
unless he was otherwise informed in writing prior to his
appointment." Applicant claimed that since he was paid at the
$20,035 rate following his promotion, this is the "former rate"
referred to in article 20.08, and, since the rate shown immedi
ately below is $22,740, that was his proper rate. He was, he
claimed, "an employee other than an EN - ENG 1 or EN -
SUR 1", "appointed ... after September 22, 1974, and before
the signing of the agreement," he was being paid "a rate above
the minimum for the level of his appointment", and he was
entitled to be paid in the A scale of rates "at the rate shown
immediately below his former rate" (the rate at which he was
paid following his appointment). Respondent agreed with the
adjudicator that "appointed" meant "appointed to the bargain
ing unit." Since applicant had belonged to the unit since its
inception, respondent claimed that article 20.08 could not
apply, and article 20.07 would. If so, instead of being paid at
the second increment EN - ENG 5 A scale, he reverted to the
lowest group in that scale.
Held, the decision is set aside and referred back to the
Adjudicator. Dealing first with respondent's last argument,
assuming that the evidence led to the conclusion that the absent
words were intended to be part of the clause, and were errone-
ously excluded, the contract would merely be subject to rectifi
cation. But, it had never been, and the implication would be
that "appointed" alone is ambiguous. Yet it is not difficult to
interpret standing alone, and extrinsic evidence is unneeded.
And, respondent claimed as well that "appointed" plus the
extra words "to the bargaining unit" ought to be interpreted as
applying only to appointments from outside the Public Service,
and not promotions, an interpretation which would require
reading more words into article 20.08 by implication. This was
because, as respondent argued, rates of pay on promotion are
governed by the Public Service Employment Regulations.
Article 20.08, on plain reading, deals, inter alia, with "pro-
motions" since September 22, 1974, assuming that "appointed"
can be said to include those persons who have been promoted
since that date. This would not be the case if the words "to the
bargaining unit from outside the Public Service" were included.
The words "the position to which he is appointed" indicate that
"appointed" refers to the "position", not the "bargaining unit".
Nothing in the agreement indicates that article 20.08 is limited
to persons coming from outside the Service. Sections 8, 10 and
11 of the Public Service Employment Act indicate by use of the
words "from within the Public Service" that when a person
already employed in the Public Service takes a new position
therein, he is "appointed." A promotion is, therefore, an
appointment. Finally, article 20.08 provides for one of the
exceptions (mentioned in article 20.01) which should prevail
over Regulations respecting rates of pay if it conflicts with the
Regulations.
APPLICATION for judicial review.
COUNSEL:
J. D. Richard for applicant.
P. T. Mclnenly for respondent.
SOLICITORS:
Gowling and Henderson, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside the decision of J. F. W.
Weatherhill, Adjudicator, made on September 22,
1975, pursuant to section 96 of the Public Service
Staff Relations Act, R.S.C. 1970, c. P-35.
The applicant is a professional engineer
employed by the Ministry of the Solicitor General.
He has been a member of the bargaining unit, the
Engineering and Land Survey Group, Scientific
and Professional Category since it was created in
approximately May of 1968. The applicant com
menced his employment in the EN - ENG 1
classification and progressed through the various
EN - ENG levels. By April, 1974, he was at the
EN - ENG 4 level, earning an annual salary of
$17,706. That salary was payable in accordance
with the collective agreement expiring on Septem-
ber 22, 1974, although it also reflected a special
general increase granted by the employer in the
spring of 1974.
On September 24, 1974, the applicant was
advised by letter of his conditional selection as the
successful candidate for the position of Chief,
Electronics and Telecommunications with the
Canadian Penitentiary Service at Ottawa. The
applicant was subsequently confirmed in this posi
tion which was at the EN - ENG 5 level and he
assumed his new responsibilities on November 4,
1974 at a salary of $20,035 per annum.
On October 1, 1974, prior to assuming his new
duties, the applicant received a periodic increment
to the next higher rate in the EN - ENG 4 scale,
so that his salary at that date was paid at the rate
of $18,454 per annum.
On January 14, 1975, a new collective agree
ment was signed, in which the following pay rates
were set out for the EN - ENG 5 level:
EN - ENG 5
From: $19,186 20,035 20,884 21,733
To: A $21,776 22,740 23,703 24,667
B $23,736 24,787 25,836 26,887
The "A" rates of pay were made effective Septem-
ber 23, 1974. For the month of February 1975, the
applicant was paid at the annual salary rate of
$22,740. However, on March 5, 1975, his annual
salary rate was adjusted downwards to $21,776.
The applicant filed a grievance in which he
requested that his annual salary be restored to the
rate of $22,740, in accordance with the provisions
of article 20.08 of the collective agreement entered
into on January 1975 referred to supra. The
Adjudicator dismissed said grievance and this sec
tion 28 application has resulted in which the appli
cant asks for a reversal of the Adjudicator's
decision.
Articles 20.07 and 20.08 of the collective agree
ment of January, 1975 read as follows:
20.07 An employee, other than an EN-ENG 1 and EN -SUR
1 (sixty dollars ($60) step portion), shall on the relevant
effective dates of adjustments to rates of pay be paid in the (A)
and (B) scales of rates set out in Appendix "A" at the rate
shown immediately below his former rate.
**20.08 An employee, other than one paid at the EN-ENG 1
or EN -SUR 1 ($60 step portion) level, who was appointed after
September 22, 1974 but before the date of signing of this
Agreement, and was paid a rate above the minimum rate for
the level of his appointment, shall be paid in the A scale of
rates at the rate shown immediately below his former rate,
effective the date of his appointment, unless he was otherwise
informed in writing prior to his appointment.
The issue before the Adjudicator was, and in
this Court is, whether article 20.07 or article 20.08
applies to the circumstances of this case. The
applicant submits that since he was paid at the
$20,035 rate following his promotion, this is the
"former rate" referred to in article 20.08 and
accordingly, since the rate shown immediately
below that is $22,740, that is the proper rate
payable to him under the new collective agreement
dated January 14, 1975.
The respondent submits, on the other hand, that
article 20.07 and not article 20.08 applies in this
case. The Adjudicator agreed with the respond
ent's contention and stated at pages 4 and 5 of his
reasons:
It is clear to me, however, that article 20.07 applies in the
grievor's case. He was at all material times an "employee"
(that is, by article 2.01(f), a member of the bargaining unit),
other than an EN-ENG 1 or EN -SUR 1. Article 20.08 deals
with the special case of persons "appointed" after September
22, 1974. There is, perhaps, some difficulty over the meaning of
the term "appointed" as it is used in article 20.08, although in
my view it should be read in this context as meaning "appoint-
ed to the bargaining unit". This would be in my view simply
from a reading of the collective agreement as it stands, but it is
confirmed by extrinsic consideration. Such considerations are
properly admitted in this case since, as I find, the term
"appointed" as it is used in article 20.08 is ambiguous. The
evidence is that in their negotiations the parties in fact agreed
to the employer's proposal that the material portions of article
20.08 read "appointment to the bargaining unit" but that the
qualifying words were omitted in error when the agreement was
printed.
Even without this evidence of the parties' intention, it may be
observed that, under the governing legislation and regulations,
a person can be granted a salary above the minimum rate only
where he is appointed from outside the public service. This
explains the exception set out at the end of article 20.08: it
contemplates the situation where a person is appointed from
outside the public service, at a rate higher than the minimum
rate, but with the understanding that that person will not then
have the benefit of the retroactive wage increase which may be
in the course of negotiation. This was not the sort of situation in
which the grievor was involved.
On his promotion, as has been indicated, the grievor received
a rate above the minimum shown for his level. This was, as will
be noted, an effect of the requirement of his receiving an
increase of at least one annual increment upon his promotion,
and it did not, in my view, have the effect of bringing him
within the scope of article 20.08.
Counsel for the applicant argued that article
20.07 of the agreement is a general provision
applicable to all members of the bargaining unit
while article 20.08 provides an exception to the
general rule in cases which fall within its specific
terms. It was his contention that the circumstances
in which his client found himself on the day the
new agreement retroactively came into force, viz.
September 23, 1974, brought him squarely within
its terms because (a) he was an employee other
than one paid at EN - ENG 1 or EN - SUR 1 rate;
(b) he was appointed to his present position after
September 22, 1974 and before the signing of the
agreement; (c) he was being paid at a rate above
the minimum rate for the level of his appointment;
and (d) he was entitled to be paid in the A scale of
rates at the rate immediately below his former rate
(i.e. the rate at which he was paid following his
appointment) since he had received no written
notification prior to his appointment that this was
not the rate applicable to him.
On the other hand, counsel for the respondent
urged the Court to read the word "appointed" as
"appointed to the bargaining unit", as did the
Adjudicator, and referred to certain evidence
adduced at the adjudication that this was the
meaning that the parties intended to attribute to
the word. Since the applicant had been a member
of the bargaining unit since it came into existence
in 1968, in his submission article 20.08 could not,
therefore, be applicable to the applicant and
article 20.07 would apply. If that were so then, by
what might be termed to be the traditional, but
complicated way, in which retroactivity provisions
were said to have been applied, it meant that,
instead of being paid at the second incremental
EN - ENG 5 A scale of rates he reverted to the
lowest incremental group in that scale.
If that argument were to prevail, assuming the
evidence that was led necessitated the conclusion
that the absent words were intended by the parties
to be part of the article and were excluded in error,
it would merely mean that the agreement was
subject to rectification. But it was conceded that it
had never been rectified. That being so the addi
tion of the words "to the bargaining unit" follow
ing the word "appointed" in article 20.08, must
rest on the assumption that in some way the word
"appointed", standing by itself, is ambiguous. In
my view, there is no difficulty in interpreting it
without the additional words and thus there is no
necessity to consider extrinsic evidence to assist in
its interpretation. Furthermore, when pressed,
counsel also contended that the word "appointed",
together with the additional words to which I have
alluded, ought to be interpreted as being appli
cable only to persons appointed from outside the
Public Service and not those promoted from within
the Service, an interpretation which would require
that more words be read into article 20.08 by
implication. His reason for this suggestion, as I
understood it, was because, he submitted, the rates
of pay on promotion are governed by the Public
Service Terms and Conditions of Employment
Regulations.'
Article 20.08 is an article which was inserted in
the parties' collective agreement for the first time
in the present agreement, having as its effective
date September 23, 1974. In my view, on a plain
reading it deals, inter alia, with persons who have
' While I do not wish it to be taken to ascribe to that
submission, for the reason which I shall shortly give, it is
interesting to note that section 65 of the Regulations, in
referring to what constitutes a "promotion", refers to the
maximum pay applicable "to the position to which that person
is appointed", thus adding some weight to the argument for the
broader interpretation of "appointed" than that contended for
by the respondent.
been "promoted" since September 22, 1974,
assuming that the word "appointed" can be said to
include those persons who have received promo
tions since that date.
That would not be the case if the words "to the
bargaining unit from outside the public service"
were to be included in the article following the
word "appointed" as was urged by the respondent.
As I observed above that interpretation could only
be adopted if the word "appointed" in its context
is ambiguous. I do not think that it is, either
ascribing to it its ordinary, plain meaning (which
might include, I 'suppose, "appointed to the bar
gaining unit", but not exclusively that meaning) or
the meaning to be ascribed to it in the context of
the agreement as a whole. To find the latter
meaning one need look no further than to article
20.02, reading as follows:
20.02 An employee is entitled to be paid for services rendered
at:
(a) the pay specified in Appendix "A" for the classification
of the position to which he is appointed if the classification
coincides with that prescribed in his certificate of
appointment,
or
(b) the pay specified in Appendix "A" for the classification
prescribed in his certificate of appointment, if that classifica
tion and the classification of the position to which he is
appointed do not coincide. [The emphasis is mine.]
The words "the position to which he is appoint
ed" cogently indicate, in my opinion, that the word
"appointed" in the agreement refers to "the posi
tion", not "the bargaining unit". Moreover, nei
ther this article nor any other in the agreement
give any indication whatever that article 20.08 is
limited to those persons coming in from outside the
Service.
Does the word "appointed" in article 20.08
refer, inter alia, to those employees who have been
promoted? I believe that it does, without question.
Sections 8, 10 and 11 2 of the Public Service
Employment Act, which Act governs all employ
ment in the Public Service, clearly indicate by use
of the words "from within the Public Service" that
when a person who is already an employee in the
Public Service takes a new position in the Service,
he is "appointed" to that position. Logic dictates,
then, that an employee who is "promoted" to a
new position, is "appointed" to that new position.
The only unanswered submission of counsel for
the respondent, then, relates to his contention that
the Public Service Employment Regulations are
applicable when, as in this case, there is a collec
tive agreement in existence. The short answer to
that contention is provided by reference to article
20.01 which reads as follows:
Except as provided in the following clauses of this Article, the
existing terms and conditions governing the application of pay
to employees are not affected by this Agreement. [The empha
sis is mine.]
Article 20.08 provides for one of the exceptions
and should prevail over the regulations in respect
of rates of pay on promotion issued by the Trea
sury Board if it is in conflict with those regula
tions, particularly when it is noted that the Trea
sury Board is the employer-party to the
agreement. To hold otherwise would be to make a
mockery of the collective bargaining process.
2 8. Except as provided in this Act, the Commission has the
exclusive right and authority to make appointments to or from
within the Public Service of persons for whose appointment
there is no authority in or under any other Act of Parliament.
1966-67, c. 71, s. 8.
10. Appointments to or from within the Public Service shall
be based on selection according to merit, as determined by the
Commission, and shall be made by the Commission, at the
request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish
the merit of candidates as the Commission considers is in the
best interests of the Public Service. 1966-67, c. 71,s. 10.
11. Appointments shall be made from within the Public
Service except where, in the opinion of the Commission, it is
not in the best interests of the Public Service to do so. 1966-67,
c. 71, s. 11.
Accordingly, I would set aside the decision of
the Adjudicator and refer the matter back to him
for disposition in accordance with these reasons.
HEALD J.: I concur.
* * *
RYAN J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.