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A-70-77
Luc Doyon (Applicant)
V.
Public Service Staff Relations Board (Respond- ent)
and
The Queen (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde D.J.—Montreal, May 3; Ottawa, June 17, 1977.
Judicial review — Interpretation of labour agreement clause
— Ambiguity of clause — Introduction of extrinsic evidence
— Whether extrinsic evidence should have been introduced — Agreement between the Treasury Board and the Council of Postal Unions, Postal Operations Group (non supervisory), article 22.10 — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 23 — Federal Court Act, s. 28.
An adjudicator and the Public Service Staff Relations Board, on appeal, decided that extrinsic evidence of the parties' inten tion should be admitted into evidence because of the ambiguity of the clause in the labour agreement being interpreted. The applicant applies for judicial review, arguing that the adjudica tor and the Board erred in law in making their decisions.
Held, the application is allowed. The error committed by the adjudicator and by the Board is that evidence appeared to show that article 22.10 as written did not reflect the common inten tions of the parties. Although the Court always hesitates to give the letter of the written instrument recording a contract prece dence over the common intention of the parties, that is what must be done. If a contract is clear, one cannot attempt to give it a meaning other than the apparent meaning that the parties intended to say something other than what they said. It was argued that this very old rule should not apply to the interpre tation of collective labour agreements, but no argument has been put forward that would justify such a conclusion.
APPLICATION. COUNSEL:
Paul Lesage for applicant.
No one present for respondent.
Jean-Claude Demers for mis -en-cause.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage & Cleary, Montreal, for applicant.
John E. McCormick, Ottawa, for respondent. Deputy Attorney General of Canada for mis -en-cause.
The following is the English version of the reasons for judgment rendered by
PRATFE J.: Applicant has applied to have a decision of the Public Service Staff Relations Board set aside pursuant to section 28 of the Federal Court Act. In this decision the Board, deciding a question of law that had been referred to it in accordance with section 23 of the Public Service Staff Relations Act, affirmed the legality of an arbitral award dismissing a grievance filed by applicant.
Applicant is employed by the Post Office Department. On the evening of July 15, 1974 he was to report for work at 11.30 p.m. and work until eight o'clock the next morning. He felt ill and therefore remained at home. A short time later he felt better and went to work. He arrived one hour and forty-five minutes late, and as a result the employer deducted from his wages. Applicant then filed a grievance claiming that, although he arrived late that day, he was entitled to his full salary under article 22.10(a) of the collective agreement governing his working conditions.
Article 22.10 of the agreement reads as follows:
22.10 Absences for sick leave shall be deducted from accumulated sick leave credits for all normal working days (exclusive of Holidays, as defined in Article 20.01). Where an employee is absent for part of his shift, because of illness, deductions from sick leave credits shall be made in accordance with the following:
(a) six (6) hours or more on duty—no deduction,
(b) two (2) hours or more on duty, but less than six (6)— one-half ( 1 ) day sick leave,
(c) less than two (2) hours on duty—one (1) day sick leave.
The employer dismissed applicant's grievance, claiming that article 22.10(a) applied only to employees whose absence was preceded by at least six hours of work.
The matter was referred to arbitration. At that time the employer presented evidence to establish that article 22.10, as well as the identical clauses in previous collective agreements, had always been interpreted by all parties concerned as having the meaning proposed by the employer. The adjudica tor decided the evidence was admissible because
article 22.10 was unclear and, interpreting the agreement in the light of the facts thus established, he dismissed the grievance.
Applicant referred the question of the legality of this decision to the Public Service Staff Relations Board, claiming that the adjudicator had erred in law by admitting evidence of facts outside the agreement, and as a result distorting its meaning.
The Board held that since article 22.10(a) was unclear, the adjudicator had been right to admit the evidence, and that in the light of this evidence, the adjudicator had correctly interpreted the agreement.
The only question raised by this matter is the admissibility of the evidence on which the adjudicator based his interpretation of the agree ment. It appears to me that if this evidence was legally admitted, it is difficult to dispute the legal ity of the adjudicator's decision, and consequently of the Board's decision, since the facts thus placed in evidence show that it is at least probable that article 22.10 was intended by the parties to the agreement as an indication of how "deductions from sick leave credits" were to be made when an employee was absent owing to illness after working "part of his shift", and not, as the agreement says, "for part of his shift".
The Board very properly observed, as had the adjudicator, that extrinsic evidence cannot be used to interpret a contract unless the contract is unclear; its decision was based on its conclusion that the adjudicator had been right in saying that article 22.10 was unclear. I cannot agree with the Board's opinion on this point. The disputed article of the agreement appears to me to be clear and free of any ambiguity, obscurity or uncertainty. In my opinion, therefore, the adjudicator erred in law in making his decision, since the wording of the agreement was clear and therefore should not have been interpreted.
What seems to me to explain the error commit ted by the adjudicator and by the Board is that the evidence appeared to show that article 22.10 as
written did not reflect the common intention of the parties. One always hesitates to give the letter of the written instrument recording a contract prece dence over the common intention of the parties. Nevertheless, that is what must sometimes be done. On this point reference may be made to the remarks of Lord Simon of Glaisdale in L. Schuler A. G. v. Wickman Machine Tool Sales Ltd. [1974] A.C. 235, (H.L.) at page 263:
There is one general principle of law which is relevant .... This has been frequently stated, but it is most pungently expressed in Norton on Deeds (1906), p. 43, though it applies to all written instruments:
... the question to be answered always is, "What is the meaning of what the parties have said?" not, "What did the parties mean to say?" ... it being a presumption juris et de jure ... that the parties intended to say that which they have said.
It is, of course, always open to a party to claim rectification of an instrument which has failed to express the common intention of the parties; but, so long as the instrument remains unrecti- fled, the rule of construction is as stated by Norton.
If a contract is clear, one cannot attempt to give it a meaning other than its apparent meaning by establishing that the parties intended to say some thing other than what they said. It was argued that this very old rule should not apply to the interpre tation of collective labour agreements, but no argument has been put forward that would justify such a conclusion.
For these reasons I would set aside the Board's decision and refer the matter back to the Board, to be decided on the basis that in the case at bar article 22.10 is clear and consequently cannot be interpreted in the light of evidence that tends to alter its meaning.
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LE DAIN J. concurred.
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HYDE D.J. concurred.
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