A-180-79
William Yost, Ronald Remillard, James Watson
and John P. Gallie on their own behalf and on
behalf of all other employees of Domtar Packag
ing Ltd., Corrugated Containers Division, Kitch-
ener, Ontario, in the bargaining unit represented
by Canadian Paperworkers Union, Local 1196 and
Local 1196 (Applicants)
v.
Administrator under the Anti-Inflation Act
(Respondent)
A-185-79
Domtar Inc. Packaging Group, Corrugated Con
tainers Division (Applicant)
v.
Administrator under the Anti-Inflation Act
(Respondent)
and
William Yost, Ronald Remillard, James Watson
and John P. Gallie on their own behalf and on
behalf of all other employees of Domtar Packag
ing Ltd., Corrugated Containers Division, Kitch-
ener, Ontario, in the bargaining unit represented
by Canadian Paperworkers Union, Local 1196 and
Local 1196 (Mis -en-cause)
and
Anti-Inflation Appeal Tribunal (Tribunal)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, December 7; Ottawa, December
18, 1979.
Judicial review — Application to review and set aside
decision of Anti-Inflation Appeal Tribunal's dismissal of
appeals from Administrator — Affirmation of Administrator's
finding that the employer had contravened the Anti-Inflation
Act in making a wage settlement for its employees at its
Kitchener plant alleged to be first error in law — Evidence to
support Administrator's finding on that issue — Order requir
ing employer to withhold $62,500 from its employees and to
pay that sum, together with an additional $62,500 alleged to
be the second error in law — That order not authorized by the
Act because powers given by s. 20(4)(b) are alternative, not
cumulative — Applications relating to contravention of Anti-
Inflation Guidelines dismissed, and applications relating to
order for payment allowed, and referred back to the Appeal
Tribunal for redetermination — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Anti-Inflation Act, S.C.
1974-75-76, c. 75, s. 20(4)(b) — Anti-Inflation Guidelines,
Part 4, SOR/76-1, s. 44(1),(2).
APPLICATIONS for judicial review.
COUNSEL:
L. A. MacLean, Q.C. for William Yost,
Ronald Remillard, James Watson and John
P. Gallie on their own behalf and on behalf of
all other employees of Domtar Packaging
Ltd., Corrugated Containers Division, Kitch-
ener, Ontario, in the bargaining unit repre
sented by Canadian Paperworkers Union,
Local 1196 and Local 1196.
D. Tees for Domtar Inc. Packaging Group,
Corrugated Containers Division.
R. Cousineau and M. Cuerrier for Adminis
trator under the Anti-Inflation Act.
SOLICITORS:
MacLean, Chercover, Toronto, for William
Yost, Ronald Remillard, James Watson and
John P. Gallie on their own behalf and on
behalf of all other employees of Domtar Pack
aging Ltd., Corrugated Containers Division,
Kitchener, Ontario, in the bargaining unit
represented by Canadian Paperworkers
Union, Local 1196 and Local 1196.
Ogilvy, Montgomery, Renault, Clarke, Kirk-
patrick, Hannon & Howard, Montreal, for
Domtar Inc. Packaging Group, Corrugated
Containers Division.
Deputy Attorney General of Canada for
Administrator under the Anti-Inflation Act.
The following are the reasons for judgment
rendered in English by
KELLY D.J.: These two section 28 applications
were argued together as one, the issues therein
being identical. That is, that the Anti-Inflation
Appeal Tribunal, in dismissing the appeals from
the Administrator, erred first, in affirming the
findings of the Administrator that the applicant in
A-185-79 (the employer) had contravened the
provisions of the Anti-Inflation Act, S.C. 1974-75-
76, c. 75, in making a wage adjustment for its
employees at its Kitchener plant and second, in
making the order requiring the employer to with
hold from its employees the sum of $62,500 and to
pay to Her Majesty the Queen in right of Canada
that sum and an additional sum of $62,500.
The applicants relied upon the historical rela
tionship between the enterprise at Kitchener which
the employer had purchased and the employer's
enterprises at Peterborough and St. Mary's as
saving the wage adjustment in question from being
in contravention of the Guidelines. The Appeal
Tribunal held that the historical relationship arose
only as early as the 1st of January, 1974 and
therefore did not protect the wage adjustment
contravening the provisions of section 44 of the
Anti-Inflation Guidelines, Part 4, SOR/76-1 as
amended' .
' 44. (1) Where a group
(a) in respect of which
(i) a compensation plan entered into or established on
or before January I, 1974, expired prior to October 14,
1975, and
(ii) a new compensation plan was not entered into or
established prior to October 14, 1975, or
(b) has an historical relationship with another group,
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.
(2) For the purposes of paragraph (1)(6), a group has an
historical relationship with another group
(a) where
(i) for a period of two or more years prior to October
14, 1975, the level, timing and rates or increase of
compensation of the employees in the groups have borne
a demonstrable relationship with each other, or
(ii) prior to October 14, 1975, the rates for the bench
mark jobs in each group were identical; and
(b) where the employees in the groups
(i) have the same employer, are employed in the same
industry, or are in the same local labour market, and
(ii) perform work that is related to the same product,
process or service.
There being evidence upon which such a finding
could be supported, I am not persuaded that in
coming to the conclusion which it did on this
question, the Appeal Tribunal erred in law or in
any other manner which would give to this Court
the right to interfere.
Dealing now with the second ground of alleged
error, there is, in my view, substance in this sub
mission. The order made by the Administrator
which was confirmed by the Appeal Tribunal
reads as follows:
IT IS THEREFORE ORDERED, pursuant to section 20(4) of the
Act that the Employer pay forthwith to Her Majesty in right of
Canada, an amount of $125,000, said amount to be funded in
part by withholding a total of $62,500 from future wage and
salary payments to be made to the individual members of the
employee group who have been overpaid; (Case, Vol. 1, p. 11,
A-180-79).
It is to be noted that the Administrator purport
ed to make the order herein impugned pursuant to
section 20(4) of the Anti-Inflation Act e .
Since the finding of the Board was that the
employer contravened the Guidelines by paying
the amount of the wage adjustment, the Adminis
trator was authorized to make an order pursuant
to that subsection.
The authority conferred by paragraph (4)(b)
supra extends to either one of two alternative
orders—to require the employer to pay to Her
Majesty the Queen an amount stated in the order
equal to the whole or any part of the excess
payment or—to require the employer to withhold
out of subsequent payments of wages and to pay to
2 20....
(4) Where a person has contravened the guidelines by
paying or crediting as compensation or as a dividend, an
amount that exceeds the amount that he was, under the guide
lines authorized to so pay or credit, the Administrator may
make such order as he deems appropriate to accomplish either
or both of the following objectives:
(a) to prohibit the person from continuing to contravene the
guidelines generally, or in a particular manner specified in
the order; and
(b) where no order has been made by him pursuant to
subsection (5) arising out of the same circumstances, to
require the person to pay to Her Majesty in right of Canada
or to withhold out of subsequent payments or credits of a like
nature and pay to Her Majesty in right of Canada, an
amount stated in the order equal to the whole or any portion
of the excess payment or credit, as estimated by the
Administrator.
Her Majesty the Queen an amount stated in the
order. The powers given by the provisions of para
graph (4)(b) supra are alternative and not
cumulative. The order which purported to order
both the withholding of $62,500 and the payment
of $125,000 was one the making of which was not
authorized by the Act and constitutes an excess of
authority on the part of the Administrator and the
Appeal Tribunal should have deleted that portion
of the order of the Administrator.
In the result, the section 28 applications are
dismissed in so far as they relate to the finding
that there was a contravention of the Anti-Infla
tion Guidelines. In so far as the section 28 applica
tions relate to the order for the payment of
$125,000 by the employer and the withholding of
$62,500 from the employees, the applications are
allowed and that portion of the decisions of the
Appeal Tribunal are set aside and the matters are
referred back to the Appeal Tribunal for redeter-
mination on the basis that the Administrator did
not have the power under section 20(4) of the Act
to make the order which he did in fact make.
* * *
HEALD J.: I concur.
* * *
URIE 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.