A-159-79
Local 361 of the Canadian Union of United Brew
ery, Flour, Cereal, Soft Drink and Distillery
Workers (Applicant)
v.
Anti-Inflation Appeal Tribunal (Respondent)
Court of Appeal, Heald, Urie and Ryan JJ.—
Ottawa, November 1, 1979.
Judicial review — Anti-inflation — Respondent alleged to
have erred in law in finding that contract between applicant
and the employer did not satisfy the provisions of the Anti-
Inflation Guidelines — Evidence correctly assessed by Tri
bunal — Applicant did not bring itself within s. 66(2) of the
Guidelines — Appeal dismissed — Anti-Inflation Guidelines,
SOR/76-1, as amended, ss. 38, 66(2) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
G. J. McConnell and J. C. MacPherson for
applicant.
A. R. Pringle for Deputy Attorney General of
Canada.
M. Cuerrier for Administrator under the
Anti-Inflation Act.
SOLICITORS:
Kitz, Matheson, Green & Maclsaac, Halifax,
for applicant.
Deputy Attorney General of Canada for
Deputy Attorney General of Canada.
M. Cuerrier, Ottawa, for Administrator under
the Anti-Inflation Act.
The following are the reasons for judgment
rendered in English by
HEALD J.: In their memorandum of fact and
law, the solicitors for the applicant alleged two
errors in law by the respondent Tribunal. The first
alleged error relates to the finding of the respond
ent Tribunal that the agreement between the
applicant and its employer did not fall within the
definition of "compensation plan" as set out in
section 38 of the Anti-Inflation Guidelines',
SOR/76-1 as amended by SOR/78-409. At the
outset of the hearing before us, counsel for the
applicant abandoned this alleged error as a ground
for setting aside the order of the respondent
Tribunal.
The other alleged error refers to the finding by
the respondent Tribunal that the agreement be
tween the applicant and its employer did not satis
fy the provisions of section 66(2) of the Anti-
Inflation Guidelines 2 , SOR/76-1 as amended by
SOR/76-699, in regard to the timing of increases
in compensation and the formula, amount or per
centage of the increases in compensation. In deal
ing with this alleged error, the respondent Tri
bunal said (Case p. 179):
Even if the 1974 arrangement could be said to have con
stituted "a provision that formed part of a compensation plan"
applicable in 1977, it was not a provision that "specifies the
timing of such increase and the formula, amount or percentage
thereof', as required by subsection 66(2) of the Guidelines. Of
the four statutory declarations quoted above, only one, that of
Mr. O'Dowd, is even arguably specific about when, during the
life of the agreement to be negotiated in 1977, parity would be
achieved. He appears to suggest that parity was to be achieved
at the outset of the 1977 collective agreement but, as has been
pointed out above, such was not in fact the case. The other
three statutory declarations are not specific as to timing and, in
my opinion, probably reflect more exactly what the understand
ing was.
None of the statutory declarations suggests that an "amount
or percentage" of increase for 1977 was settled in 1974. The
undertaking to achieve parity must constitute, if anything, a
' The relevant portion of section 38 of the Anti-Inflation
Guidelines reads as follows:
38. In this Part,
"compensation plan" means the provisions, however estab
lished, for the determination and administration of com
pensation of an employee or employees, and includes a
collective agreement, provisions established bilaterally be
tween an employer and an employee or employees, provi
sions established unilaterally by an employer, or provisions
established in accordance with or pursuant to any Act or
law;
2 Section 66(2) of the Anti-Inflation Guidelines reads as
follows:
66....
(2) This Part does not apply to an increase in compensa
tion under a provision that formed part of a compensation
plan applicable to an employee on October 14, 1975 if such
provision specifies the timing of such increase and the for
mula, amount or percentage thereof.
"formula" in the terms of subsection 66(2) of the Guidelines.
The subsection clearly requires a formula which allows for the
precise determination, without further negotiation, of a new
compensation plan. In this respect, quite apart from the timing
problem, the undertaking to achieve parity in the 1977 agree
ment fails as a "formula". It does not specify how the global
increase required to achieve parity is to be broken down as
between different classifications of employees, it does not deal
with the "benefits" aspect of compensation, but only with
wages, and it does not differentiate between Labatt's London
brewery and their Toronto brewery as a standard of compari
son. Since the two Ontario breweries were not themselves in a
parity position with regard to wages in 1977 "parity with the
Ontario breweries" does not provide a workable formula.
In my view, in the above passage, the Tribunal
correctly assesses the evidence before it and cor
rectly applies the provisions of section 66(2) to
that evidence and thus properly concludes that the
applicant has not brought itself within the provi
sions of section 66(2).
Accordingly and for the foregoing reasons, I
would dismiss the section 28 application.
* * *
URIE J. concurred.
* * *
RYAN J. concurred.
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