A-410-78
Canadian Union of Professional and Technical
Employees—Aircraft Operations Group (Appli-
cant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Urie and Ryan
JJ.—Ottawa, November 15 and 17, 1978.
Judicial review — Application to set aside decision of
Anti-Inflation Appeal Tribunal dismissing appeal from
Administrator's order — Order limiting applicant's maximum
average increase to $2,400, pursuant to s. 44(1) of the Guide
lines — Prior to hearing by Appeal Tribunal, retroactive
legislative change affecting definition of "compensation plan"
— Appeal Tribunal dismissed appeal — Whether or not
Appeal Tribunal erred in law, even if legislative changes would
otherwise support its decision — Whether or not the revised
definition of "compensation plan" framed to apply to the
circumstances of the case — Anti-Inflation Guidelines, SORT
76-1, ss. 43, 44 — An Act to amend the Anti-Inflation Act
and guidelines, S.C. 1977-78, c. 26, s. 7 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
In a section 28 application to set aside the Anti-Inflation
Appeal Tribunal's dismissal of an order of the Administrator
made in 1976, the Court decided that the unilateral action of
the Treasury Board increasing rates of pay of members of the
bargaining unit resulted in a new compensation plan within the
meaning of section 44(1)(a)(ii) of the Anti-Inflation Act. The
Appeal Tribunal referred the matter back to the Administrator
with appropriate directions. The Administrator, on February
13, 1978, made the order now attacked on the ground that it
would not be consistent with the objectives of the Act to vary
his 1976 order limiting the applicant's maximum average
increase to $2,400. Before the appeal from this latest order was
heard by the Appeal Tribunal, retroactive legislation defined
the term "compensation plan" to include provisions established
unilaterally by an employer. The Appeal Tribunal dismissed
the appeal from this latest order on the ground that, by virtue
of the 1978 legislation, section 44(1)(a) was to be regarded as
not having been satisfied notwithstanding this Court's earlier
decision. Applicant contends that the Appeal Tribunal erred in
law, even if the legislative change would otherwise support the
Appeal Tribunal's decision. Applicant's second objection is that
the revised definition is so framed as to apply to the circum
stances of this case.
Held, the application is dismissed. This Court's judgment of
October 28, 1977, required that the matter be disposed of on
the basis that, on the facts of the particular matter, the
requirements of section 44(1)(a) of the Guidelines, as they
were at that time, had been complied with. Those requirements
were the requirements of section 44(1)(a) when read with the
definition of "compensation plan" as it then existed. When the
matter came before the Appeal Tribunal, the requirements of
section 44(1)(a), as applicable to the period in question, had
become, in law, something different—i.e., the requirements of
that provision when read with the definition in section 7 of the
1978 statute—and this Court's judgment of 1977 cannot be
read as having decided that, on the facts of the particular
matter, such requirements had been complied with. The second
objection is not established. The question is one of fact as well
as of law and the Court is not persuaded that the Appeal
Tribunal, which had jurisdiction in fact as well as in law, erred
in law in finding that there was established prior to October 14,
1975 a new compensation plan within the meaning of the
amended definition.
APPLICATION for judicial review.
COUNSEL:
J. P. Nelligan, Q.C. and Catherine MacLean
for applicant.
J. P. Malette for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of the Anti-Inflation Appeal
Tribunal dismissing an appeal from an order of the
Administrator under the Anti-Inflation Act, S.C.
1974-75-76, c. 75, dated February 13, 1978, that
an order made by him on July 27, 1976, and
referred back to him for reconsideration as a result
of a judgment of this Court,' stands unchanged.
The Administrator's order of July 27, 1976, was
to the effect that the maximum permissible rate of
increase in average compensation for the Aircraft
' [1978] 2 F.C. 284.
Operations Group for certain "Guideline Years"
was $2,400 per year by virtue of section 43(1)(b)
of the "Guidelines", SOR/76-1, established under
the Act. 2
What had to be decided on the section 28
application to set aside the dismissal by the Appeal
Tribunal of the appeal from the Administrator's
1976 order is set out in the reasons delivered in
this Court as follows [[1978] 2 F.C. 284 at pages
285-287]:
It is common ground that the Administrator's order was
right unless he erred in holding that section 44(1) was not
applicable in the particular case. The question raised by this
section 28 application is whether the Appeal Tribunal erred in
law in not holding that that subsection was applicable in so far
as it reads as follows:
44. (1) Where a group
(a) in respect of which
(i) a compensation plan entered into or established on
or before January 1, 1974, expired prior to October 14,
1975, and
(ii) a new compensation plan was not entered into or
established prior to October 14, 1975, ...
the employer may in a guideline year increase the total
amount of the compensation of all the employees in the
group, by an amount that is not greater than the sum of
(c) the amount permitted under subsection 43(1), and
(d) such further amount as is consistent with the objec
tives of the Act.
There is no dispute about the following facts:
1. on or before January 1, 1974, the applicant, as certified
bargaining agent for the bargaining unit, entered into a collec
tive agreement with the Treasury Board for a term expiring
July 27, 1975; and
2. no collective agreement, as such, was entered into by the
parties, prior to October 14, 1975, to replace such collective
agreement.
It follows that the conditions precedent set out in section
44(1)(a) to the application of section 44(1) had been satisfied
unless a "new compensation plan", within the meaning of
2 The relevant part of section 43(1) reads as follows:
43. (1) Subject to subsection (2) and section 44, an
employer shall not in any guideline year increase the total
compensation of all the employees in a group, in relation to
the total compensation of all the employees in the group in
the base year, by an amount that results
(b) in an increase in the average compensation for the
group for the guideline year that is greater than twenty-
four hundred dollars,
section 44(1)(a)(ii), had been entered into by virtue of the facts
set out in paragraphs 6 and 7 of Part I of the applicant's
memorandum (which facts are admitted by paragraph 3 of the
respondent's memorandum). Those paragraphs read as follows:
6. On May 1, 1974, the Government of Canada announced,
through the President of the Treasury Board, "that the
government has authorized an increase in pay ranges of $500
which will have the effect of increasing the annual rate of
compensation by this amount as of April 1, 1974, for all its
employees, including members of the R.C.M.P., and the
Armed Forces, and excepting those in groups where notice to
bargain has been given but no settlement has yet been
reached and those in groups in respect of which an arbitral
award was rendered or a settlement reached after April 1,
1974, the effective date of this general increase."
7. The President of the Treasury Board stated that "the
government has concluded that it is inappropriate to deal
with this development only through the process of collective
bargaining as agreements come up for renewal. Instead,
special action is required in order to ensure that the pay
levels of public servants will maintain their relative positions
with those of persons performing similar work outside the
Public Service."
The question that has to be decided on this appeal is, therefore,
whether the unilateral action of Treasury Board, whereby rates
of pay of members of the bargaining group were increased,
resulted in a "new compensation plan" having been entered into
or established within the meaning of section 44(1)(a)(ii).
This Court's judgment on that section 28
application reads as follows:
The decision of the Anti-Inflation Appeal Tribunal referred
to in the section 28 application is set aside and the matter is
referred back to the Anti-Inflation Appeal Tribunal for disposi
tion on the basis that, on the facts of the particular matter, the
requirements of paragraph (a) of subsection (1) of section 44 of
the "Guidelines" established under the Anti-Inflation Act had
been complied with.
Pursuant thereto, the Appeal Tribunal referred the
matter back to the Administrator with appropriate
directions.
On February 13, 1978, the Administrator made
the order now attacked on the ground inter alia
that it would not be consistent with the objectives
of the Act to vary his 1976 order or to add further
to the amount that is specified in it. A notice of
appeal to the Appeal Tribunal against this order
was filed on February 15, 1976.
On April 20, 1978, before the appeal was heard,
Parliament passed an Act, S.C. 1977-78, c. 26,
section 7 of which reads as follows:
7. The definition "compensation plan" in section 38 of the
Anti-Inflation Guidelines made by Order in Council P.C.
1975-2926 on December 16, 1975 shall, at all times on and
after October 14, 1975 and before the coming into force of this
Act, be deemed to have read as follows:
" "compensation plan" means the provisions, however estab
lished, for the determination and administration of compen
sation of an employee or employees, and includes a collective
agreement, provisions established bilaterally between an
employer and an employee or employees, provisions estab
lished unilaterally by an employer, or provisions established
in accordance with or pursuant to any Act or law; (régime de
rémunération)"
On August 8, 1978, the Appeal Tribunal dis
missed the appeal from the Administrator's deci
sion of February 13, 1978, in effect, on the ground
that, by virtue of the 1978 statute, section
44(1)(a) was to be regarded as not having been
satisfied notwithstanding this Court's decision of
October 28, 1977.
The principal attack made by the applicant on
the decision of the Appeal Tribunal in this case is
that, notwithstanding the retroactive change in the
law effected by the 1978 statute, having regard to
this Court's judgment of October 28, 1977, the
Appeal Tribunal erred in law in holding that the
section 44(1)(a) requirements had not been com
plied with even if that change would otherwise
support the Appeal Tribunal's decision.
The short answer to that attack, in my opinion,
is that this Court's judgment of October 28, 1977,
required that the matter be disposed of on the
basis that, on the facts of the particular matter,
the requirements of section 44(1)(a) of the Guide
lines, as they were at that time, had been complied
with. 3 Those requirements were the requirements
of section 44(1) (a) when read with the definition
of "compensation plan" as it then existed. (See
section 38 of the then "Guidelines".) When the
matter came before the Appeal Tribunal, the
requirements of section 44(1)(a), as applicable to
the period in question, had become, in law, some
thing different—i.e., the requirements of that
3 While the words in italics are not in the judgment, they are
to be implied. The Court deals with the law as it is known. It
cannot be taken to have intended a direction that the tribunal
should flout unforeseen future retroactive legislation enacted by
a sovereign legislature.
provision when read with the definition in section 7
of the 1978 statute—and this Court's judgment of
1977 cannot be read as having decided that, on the
facts of the particular matter, such requirements
had been complied with.
Certain questions arising out of the submissions
of counsel and the authorities referred to should be
mentioned in connection with the principal attack
made by the applicant.
If the requirements of section 44(1)(a) as they
were in 1977 had continued to be one of the issues
to be determined when the matter came back
before the Appeal Tribunal, the question whether
that issue would have been res iudicata, in the
special system of tribunals contemplated by the
Anti-Inflation Act, would have had to be con
sidered on this application. As it is, that question
does not arise. Similarly, if the matter had been
finally decided, by that system of tribunals, before
the retroactive legislation was enacted, the ques
tion whether such retroactive legislation could
have any application to the matter might have to
be considered if raised in appropriate proceedings,
but, as the matter in this case is still in the process
of being decided, that question does not arise.
The Court was not referred to any decision
where either of such problems has arisen in a
special system of tribunals rather than the ordi
nary courts.
On the other hand, had the 1978 statute been
enacted after the decision of the Appeal Tribunal,
the result would, probably, have been different. In
that event, the Tribunal would not have been able
to take that statute into account and this Court
would probably not have been able to say that it
had erred in law in not doing so. Compare Boule
vard Heights, Limited v. Veilleux 4 per Duff J. (as
he then was) at pages 191-192, and Minchau v.
(1915) 52 S.C.R. 185.
Busse, 5 per Duff C.J.C. at page 305. 6
The other objection to the decision under attack
was that the Appeal Tribunal erred in law in
determining that the revised definition is so
framed as to apply in the circumstances of this
case. In my opinion, this objection was not estab
lished. The question is one of fact as well as of law
and, on the material before this Court, I am not
persuaded that the Appeal Tribunal, which had
jurisdiction in fact as well as in law, erred in law in
finding that there was established prior to October
14, 1975 a new compensation plan within the
meaning of the amended definition.'
For the above reasons, I am of the view that the
section 28 application should be dismissed.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
5 [1940] 2 D.L.R. 282.
6 In this connection, it is to be borne in mind that the hearing
before the Appeal Tribunal was a new hearing on the facts and
law and was a federal tribunal subject to the legislative au
thority of Parliament.
The argument was based on the view that it would be
inconsistent with the terms of an existing collective agreement
having the force of law for the employer to pay employees
amounts not contemplated thereby; but such collective agree
ment is not before us and, as far as the record shows, was not
before the Appeal Tribunal.
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.