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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, 1979; Ottawa, Febru- ary 25, 1980.
Judicial review — Application requesting the variation of an earlier decision of this Court — Applicants submit that there can be no contravention of the Guidelines until such time as the Administrator had authoritatively determined the alleged historical relationship had not existed — The effect of delet ing the requirement of obtaining the opinion of the Anti-Infla tion Board when an employer increases the amount of compen sation in excess of the amount permitted in the Guidelines, was to authorize the employer to determine the quantum of such excess amount due to the existence of a historical relationship, and no discretion was conferred on the employer to determine the existence of such a relationship — There is no need to prove the element of knowledge to attract the penalty set out in
s. 20(4) — Application dismissed — 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), as amended by S.C. 1974-75-76, c. 98 — Anti-Inflation Guidelines, Part 4, SOR/76-1, s. 44, as amended by SOR/76-298.
MOTION in writing without appearance of parties.
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.
Deputy Attorney General of Canada for Administrator under the Anti-Inflation Act.
The following are the amended reasons for judgment rendered in English by
KELLY D.J.: Having read and considered the application of the respondent requesting the varia tion of the decision of this Court pronounced on the 18th of December 1979, [ [ 1980] 1 F.C. 735] ' and the representations in writing of counsel for applicant and respondent with respect thereto and having reconsidered, in the light of such applica tion, the representations and submissions of coun sel aforesaid made to this Court on the application to it under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, that part of the reasons of the Court on page 738 thereof corn
' This application by the respondent is made pursuant to the provisions of Rule 337(5)(b) which permits the Court to recon sider the terms of a decision on the basis that a matter which should have been dealt with, has been overlooked or accidental ly omitted. At the hearing before us of the section 28 applica tion, counsel for the applicants handed up to the Court what was, in his submission, the applicable version of the Anti-Infla tion Act, S.C. 1974-75-76, c. 75. It later transpired that section 20(4)(b) thereof had been amended and the amended section 20(4)(b) was the applicable section on the facts of this case. Neither counsel for the applicants nor counsel for the respond ent advised the Court at the hearing, of this amendment, and the Court proceeded to pronounce judgment on the basis of the unamended section 20(4)(b).
mencing with the words "Dealing now with the second ground of alleged error, there is, in my view ... " and ending with the words "... that the Administrator did not have the power under sec tion 20(4) of the Act to make the order which he did in fact make" on page 739 thereof is stricken out and the following is substituted therefor:
It was further submitted that, even if the Anti-Inflation Appeal Tribunal had not erred in finding that no historical relation existed, there could be no contravention of the Guide lines, until such time as the Administrator had authoritatively determined the alleged historical relationship had not existed.
In support of this submission counsel pointed out that, prior to the amendment of section 44 of the Guidelines on the 7th of May, 1976 (by P.C. 1976-1033 SOR/76-298), that section had authorized an employer, where the requisite historical relation had existed to pay such further amount (beyond any amount in conformity with the arithmetic Guidelines) as in the opinion of the Anti-Inflation Board was consistent with the objectives of the Act, whereas after the amendment the "further amount" authorized was such as, in the opinion of the employer, was consistent with the objectives of the Act.
In my opinion the effect of the amendment was only to authorize the employer to determine the quantum of such "further amount", when the section of the Guidelines became operative due to the existence of a historical relationship. The existence or non-existence of the historical relationship was a qualifying fact and no discretion was conferred on the employer to determine its existence; if it did exist, the employer, in the first instance could make a determination of the "further amount"; but if it did not exist, the employer was not protected from contravening the Guidelines because he believed he had reasonable and probable grounds for assuming that the histori cal relation did exist.
Since I confirm the decision of the Administrator with respect to the historical relationship, that decision of the Administrator, when made, settled conclusively the non-exist ence of the historical relationship at the critical date. While the finding by the Administrator may have been made at a later date, when made, it established that, at the critical date, no requisite historical relationship was in existence. The finding that the historical relationship "commenced at a later date than the critical date, logically, is a finding that the historical relationship" did not exist before that date, and a finding that there existed no historical relation of a nature which the Guidelines recognized as authorizing the employer to allow a further amount.
Nor do I agree with the submission that section 20(4) z of the Anti-Inflation Act only authorized the imposition of one or
z 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:
more penalties when the contravention of the Guidelines had been made knowingly. Section 20(7) provides a more onerous penalty in cases where the contravention has been made know ingly; to attract the penalty set out in section 20(4) the element of knowledge is not required to be proven—the later subsection is one of strict liability and the employer who contravenes the Guidelines cannot escape vulnerability to the penalties therein provided by pleading its good intentions.
Not having been persuaded that the Anti-Inflation Appeal Tribunal erred in law, in the decision made, the application is dismissed.
* * *
HEALD J.: I agree.
* * * URIE J.: I agree.
(a) to prohibit the person from continuing to contravene the guidelines generally, or in a particular manner specified in the order; and
(b) to require the person to pay to Her Majesty in right of Canada, to withhold out of subsequent payments or credits of a like nature and pay to Her Majesty in right of Canada or to both so pay and withhold and pay an amount or amounts stated in the order equal in the aggregate to the whole or any portion of the excess payment or credit, as estimated by the Administrator.
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