A-429-77
Administrator under the Anti-Inflation Act
(Applicant)
v.
Ontario Secondary School Teachers' Federation,
District 34 (Respondent)
Court of Appeal, Pratte and Ryan JJ. and
MacKay D.J.—Toronto, December 8, 1977.
Judicial review — Anti-Inflation Act — Administrator a
party before Anti-Inflation Appeal Tribunal — Administra
tor's order set aside by Tribunal — Status of Administrator to
launch application — Administrator directly affected, within
meaning of s. 28(2) of the Federal Court Act.
Judicial review — Labour relations — Anti-Inflation
Guidelines, s. 49(2)(a) — Increment subject to employer's
withholding payment if services for year "less than satisfacto
ry" — Misconstruction to interpret as "shall only be paid if
the employee to whom it is payable has improved or added to
the skills or knowledge required" — Error in law — Section
28 application allowed Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28 — Anti-Inflation Guidelines, SORI
76-1 as amended, s. 49(2)(a).
APPLICATION for judicial review.
COUNSEL:
Duff Friesen for applicant.
M. A. Green for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Golden, Levinson, Toronto, for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: We are all of the view that this
section 28 application must succeed.
As we have already indicated, we are of opinion,
contrary to what was argued by counsel for the
respondent, that the Administrator had the status
to launch this section 28 application. The provi
sions of the Anti-Inflation Act make clear that the
Administrator was a party before the Anti-Infla
tion Appeal Tribunal and, as the order he had
made was set aside by a decision of that Tribunal,
he was, in our view, "directly affected" by that
decision within the meaning of section 28(2) of the
Federal Court Act.
The only point of substance raised by this
application is whether the increment payable
under article 7.04 of the collective agreement
meets the requirements of section 49(2)(a) of the
Anti-Inflation Guidelines. In our view, it does not.
Under article 7.04 of the collective agreement a
teacher is entitled to the annual increment subject
to the right of the Board of Education under
article 7.03 to withhold its payment if the services
of the teacher for the year have been "less tha
satisfactory". In our view, it is a misconstructio
of those provisions amounting to an error of law t
say, as the Appeal Tribunal has said, that they
mean that the annual increment, as required by
section 49(2)(a) of the Guidelines, "shall only be
paid if the employee to whom it is payable has
improved or added to the skills or knowledgq
required" in the performance of his duties.
For those reasons, the application will b
allowed, the decision of the Appeal Tribunal wile
be set aside and the matter will be referred back to
the Appeal Tribunal for disposition on the basis,
that the annual increment provided for in article
7.04 of the collective agreement between the
respondent and the Essex County Board of Educa
tion does not meet the requirements of paragraph
49(2)(a) of the Anti-Inflation Guidelines.
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.