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T-4940-77
United Association of Journeymen and Appren tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 170, on its own behalf and on behalf of the Employees whose Compensation is in question (Appellant) (Applicant)
v.
Administrator appointed under the Anti-Inflation Act (Respondent) (Respondent)
Trial Division, Collier J.—Vancouver, July 7 and 18, 1978.
Prerogative writs — Mandamus — Anti-Inflation — Anti- Inflation Board referred applicant's collective agreement, one of several forming a comprehensive industry-wide plan, to the Administrator because of applicant's dissatisfaction with Board's ruling — Administrator decided he was without juris diction to consider the matter, that applicant was not entitled to express dissatisfaction with the Board's ruling, and that the Board was not required to refer the matter to the Administra tor — Anti-Inflation Appeal Tribunal ruled that Administra tor's decision was not an order pursuant to s. 20, 21 or 22 of the Anti-Inflation Act — Whether or not mandamus should issue requiring the Administrator to consider the matter referred to him — Anti-Inflation Act, S.C. 1974-75-76, c. 75, ss. 2, 12(1),(1.2), 17(1), 20, 21, 22, 38 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Anti-Inflation Guidelines, SOR/76-1 as amended.
The Anti-Inflation Board considered applicant's collective agreement, to be part of a comprehensive industry-wide plan that involved several other collective agreements. The Board, because of applicant's dissatisfaction with its ruling, referred only applicant's agreement to the Administrator who ruled that he had no jurisdiction, that the applicant was not entitled to express dissatisfaction with the Board's ruling, and that the Board was not required to refer the matter to the Administra tor. This originating notice of motion was brought on, after an adjournment sine die, after the dismissal of applicant's appeal to the Anti-Inflation Appeal Tribunal which found that the Administrator had not made an order pursuant to section 20, 21, or 22 of the Anti-Inflation Act. Mandamus is the only relief sought against the Administrator.
Held, the application is allowed. The Anti-Inflation Board, not the Administrator, has the duty of determining whether an applicant is one referred to in subsection (1.2), and if it decides affirmatively, the matter must be referred to the Administrator for consideration. There is nothing in the statute permitting the Administrator to overturn or vary that determination. Subsec tion 17(1) requires the Administrator, once a matter has been referred to him, to make inquiries and investigation, using the powers of investigation and inquiry given him by the statute, to
enable him to determine whether there has been a contraven tion or likely contravention of the Anti-Inflation Guidelines. The Administrator's refusal to perform that duty was not a decision or order within the ambit of section 38 of the Act. The basis of his letter was not a jurisdiction given him by statute. The jurisdiction to determine who is a party entitled to express dissatisfaction is that of the Board, not of the Administrator. Local 170, one of a number of locals which negotiated collec tive agreements, falls within the definition of "employee organi zation" found in section 2. There is nothing in the statute which demands or indicates the contention that the requirements of subsection 12(1.2) were met only if a majority of those locals which negotiated collective agreements advised the Anti-Infa- tion Board of their dissatisfaction. The definition of "group" in section 38 of the Guidelines cannot change the clear wording of the definition of "employee organization" set out in section 2 of the Act.
APPLICATION. COUNSEL:
M. Short and P. McMurray for appellant (applicant).
W. Scarth and M. Cuerrier for respondent (respondent).
SOLICITORS:
Short & Co., Vancouver, for appellant (applicant).
Robert Cousineau, Ottawa, for respondent (respondent).
The following are the reasons for order ren dered in English by
COLLIER J.: This originating notice of motion came on first, before Gibson J., on February 6, 1978. On February 21, 1978, Gibson J. made an order adjourning the motion sine die. He gave written reasons for his decision.
I attach those reasons as Appendix A to these reasons. I adopt Gibson J.'s statement of the facts.
The only additional fact which requires now to be recorded is this. The appeal by Local 170 to the Anti-Inflation Appeal Tribunal was, on June 15, 1978, dismissed. That body ruled that the Administrator, by his letter of October 21, 1977, had not made an order pursuant to section 20, 21
or 22 of the Anti-Inflation Act.' Following the ruling of the Anti-Inflation Appeal Tribunal, the originating notice of motion was brought on again for hearing.
Counsel for the applicant told me he was confin ing the relief sought against the Administrator to mandamus.
At the end of argument I advised the parties the relief sought would be granted and reasons would be given later. Those reasons now follow.
Counsel for the Administrator argued the letter of October 21, 1977 was "a decision or order" 2 and was not subject to supervision by the Trial Division of this Court, or to review by the Federal Court of Appeal under section 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. To put it somewhat more broadly, it is said the decision of the Administrator that the applicant was not a party "... entitled to express dissatisfaction with the Anti-Inflation Board ruling ..." is a "decision or order" which cannot be challenged in any court.
In my view, the letter of October 21, 1977 is not "a decision or order" in the sense those words are used in section 38 of the statute. The decisions or orders there referred to are those made by the Administrator under section 20, 21, or 22.
There is nothing, to my mind, in the Anti-Infla tion Act which confers upon the Administrator the right, either
(a) To determine whether a person or body, such as the applicant here, is a party entitled to the rights specified in subsection 12(1.2), or
(b) to, in effect, overturn or overrule a decision of the Board that a person or body, such as the applicant here, is entitled to the rights specified in subsection 12(1.2).
Section 12 of the statute sets out the duties of the Anti-Inflation Board. I reproduce paragraph 12(1)(d.1) and a portion of subsection 12(1.2):
'S.C. 1974-75-76, c. 75 as amended by S.C. 1974-75-76, c. 98.
2 See section 38 of the statute, set out in the reasons of Gibson J. in Appendix A hereto, at pages 172-173.
12. (1) The Anti-Inflation Board shall
(d.1) where consultations and negotiations under paragraph (c) have resulted in a notification from the Board to the parties involved that a change in prices, profits, compensa tion or dividends that varies from a change, if any, specified in the notice would not, in the opinion of the Board, be within the limits of the guidelines and would not otherwise be justified and any party referred to in subsection (1.2) advises the Board in writing that it is dissatisfied with such notifica tion, forthwith refer the matter to the Administrator for consideration by him; and
(1.2) For the purposes of paragraph (1)(d.1), the parties entitled to advise the Board of their dissatisfaction with a notification from the Board and thereby entitled to require the Board to refer a matter to the Administrator for consideration by him are,
(ii) the employee organization representing employees whose compensation is in question or, if there is no such employee organization, the designated employee of those employees; ...
The scheme of the Act, as I see it, is that the Anti-Inflation Board, not the Administrator, has the duty of determining whether an applicant, such as the one here, is a party referred to in subsection (1.2). If the Board determines that matter affirmatively, then it is required to refer the matter to the Administrator for his consider ation.
The Anti-Inflation Board may come to an erroneous conclusion that a particular party is one falling within subsection (1.2). But there is noth ing in the statute, as I interpret it, permitting the Administrator to overturn or vary that determina tion.
Counsel for the respondent argued it was im plicit in subsection 17 (1) of the legislation that the Administrator, before undertaking the required inquiries and investigations, must first come to a decision that the so-called "dissatisfied party" is one falling within subsection 12(1.2). I set out subsection 17(1).
17. (1) Where the Anti-Inflation Board, pursuant to para graph 12(1)(d) or (d.1) refers a matter to the Administrator, or the Governor in Council advises the Administrator that he has reasonable grounds for believing that a supplier, employer or other person other than an employee to whom the guidelines apply has contravened, is contravening or is likely to contravene the guidelines, the Administrator shall make such inquiries and undertake such investigations within the powers conferred on him by this Act as in his opinion are required in order to enable
him to determine whether the supplier, employer or other person to whom the reference from the Anti-Inflation Board or the advice from the Governor in Council relates has contrav ened, is contravening or is likely to contravene the guidelines. [My underlining.]
Reliance was placed on the words:
... the Administrator shall make such inquiries and undertake such investigations within the powers conferred on him by this Act....
It is said those words confer a power in the Administrator to determine whether he has juris diction in respect of the complaining party and his status to express dissatisfaction. I am unable to so interpret subsection 17(1).
That subsection, in its plain meaning, requires the Administrator, once a matter has been referred to him, to make inquiries and investigations, using the powers of inquiry and investigation given to him by the statute, to enable him to determine whether there has been contravention or likely contravention of the Guidelines.
The Administrator has ventured here, by his letter of October 21, into the legal quagmire of determining the jurisdiction to enter upon his jurisdiction. As I see it, the statute does not permit him to do this 3 .
The Administrator had, on the facts here, a duty to proceed with the investigation and inquiry pre scribed by subsection 17(1). He refused to do so. His refusal was not, as I have said earlier, a decision or order within the ambit of section 38. Nor was the basis of his letter a "jurisdiction" given to him by the legislation. The jurisdiction to determine who is a party entitled to express dis satisfaction is that of the Board, not that of the Administrator.
This Court may then, by virtue of section 18 of the Federal Court Act, in an appropriate case and in the exercise of its discretion, grant mandamus.
The following cases, cited by the applicant, are of some assistance on this point: The Attorney General of Canada v. Cylien [1973] F.C. 1166. B.C. Packers Ltd. v. Canada Labour Relations Board [1973] F.C. 1194. Toronto Newspaper Guild Local 87, American Newspaper Guild (C./.O.) v. Globe Print ing Co. [1953] 2 S.C.R. 18.
In considering whether to grant the relief sought it is, I think, appropriate to consider whether the applicant indeed comes within subsection 12(1.2). Is the applicant an "... employee organization representing employees whose compensation is in question ..."? 4
"Employee organization" is defined in section 2 as follows:
"employee organization" means any organization of employees formed for purposes including the regulating of relations between employees and employers;
Counsel for the Administrator conceded the applicant, Local 170, can fall within that defini tion. He argued, however, an employee organiza tion can also include a number of different locals. I agree that is so. I do not agree that, in this case, it is the latter meaning that must be applied. As Gibson J. pointed out, Local 170 is one of a number of locals which negotiated collective agree ments. The Administrator contended that the requirements of subsection 12(1.2) were met only if a majority of those locals advised the Anti-Infla tion Board of their dissatisfaction.
I cannot agree.
There is nothing in the statute which demands, or indicates, such an interpretation. Reliance was placed on section 38 of the Regulations [SOR/ 76-1] where the word "group" is defined. In my view, the definition of "group" there cannot change the clear wording of the definition of "employee organization" set out in section 2 of the Act itself.
I conclude Local 170 was an "employee organi zation representing employees whose compensation is in question". It was entitled to advise the Anti- Inflation Board of its dissatisfaction with the Board's notification. It did so. The Board conclud ed it was a party so entitled. The Board then referred the matter to the Administrator for con sideration, pursuant to section 17 by him.
He has refused to proceed. He has no discretion. Mandamus will, in the circumstances, issue.
4 Subparagraph 12(1.2)(b)(ii).
ORDER
(1) A writ of mandamus shall issue, directed to the Administrator appointed pursuant to the Anti-Inflation Act, commanding him to make, pursuant to subsection 17(1) of the Anti-Infla tion Act, such inquiries and to undertake such investigations, within the powers conferred on him by the said Act, to determine whether the compensation provided for in an agreement dated September 25, 1977, between the appli cant and the Construction Labour Relations Association of British Columbia has contra vened, is contravening or is likely to contravene the Guidelines established under the Anti-Infla tion Act.
(2) The applicant shall recover from the respondent, after taxation, its costs of this origi nating motion.
APPENDIX A
T-4940-77
The following are the reasons for order ren dered in English by
GIBSON J.: The primary issue in this matter is whether or not the Administrator under the Anti- Inflation Act made a "decision" or "order" within the meaning of section 28 of the Federal Court Act or section 38 of the Anti-Inflation Act. These sections read as follows:—
(Federal Court Act)
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other wise acted beyond or refused to exercise its jurisdiction;
(Anti-Inflation Act)
38. For greater certainty, a decision or order of the Adminis trator under this Act is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by this Act, but any decision or order of the Appeal Tribunal made by or in the course of proceedings before the Appeal Tribunal under this Part is subject to review and to be set aside by the Federal
Court of Appeal pursuant to section 28 of the Federal Court Act.
Dependent upon the resolution of this primary issue, the proper proceedings for relief for the applicant is indicated.
The plaintiff Local Union No. 170 was one of twenty-eight other construction workers' unions which bargained individually with the agent for the construction employers, which agent is called the Construction Labour Relations Association of B.C. (The latter was served with notice of this motion but did not appear on the hearing of it.)
All twenty-eight Unions were before the Anti- Inflation Board at the same time, each dealing with their separate agreements.
There was an attempt to reach an agreement among all the bargaining Unions that they would bargain as one. A draft of this agreement prescrib ing one agent called "British Columbia & Yukon Building Trades Council Common Front Industry Bargaining Structure" was not ratified by all the Unions. Specifically this agreement was not rati fied by Local Union No. 170.
The parties on this motion agreed as to these facts:
1. There were individual collective agreements entered into between each Union and the Con struction Labour Relations Association of B.C.
2. Separate compliance reports in respect of each of these 1976-1977 collective agreements were submitted to the Anti-Inflation Board by the Construction Labour Relations Association of B.C.
3. The B.C. & Yukon Building Trades Council Common Front Industry Bargaining Structure Agreement, which was signed by representatives of each of the Unions, was never ratified by the memberships of all of the Unions as required by the terms of the agreement.
In addition it was agreed by counsel on the motion that by letter dated 8 August 1977 the Anti-Inflation Board (see Exhibit A to affidavit of William Henry Oliver, sworn 27 January 1978) referred to the Administrator of the Anti-Inflation
Board the collective agreement of the applicant, which collective agreement along with twenty-sev en other collective agreements had been considered by the Anti-Inflation Board as the industry-wide compensation plan put before the Anti-Inflation Board by the Construction Labour Relations Asso ciation of B.C., the agent for the employers.
The Anti-Inflation Board referred to the Administrator by the said letter of 8 August 1977 only one of the twenty-eight collective agreements, namely the collective agreement of the applicant Local No. 170. The concluding words of reference by that letter are:
Accordingly, the Anti-Inflation Board, having received advice from the employee organization representing the employees whose compensation is in question that it is dissatisfied with the Anti-Inflation Board's notification hereby refers the matter to you for your consideration in accordance with subsection 12(1)(d.1) of the Anti-Inflation Act.
After hearing from the applicant and the representations from the agent for the employers, the Construction Labour Relations Association of B. C., the Administrator by letter dated 21 Octo- ber 1977 stated that he was without jurisdiction to entertain this application further in that Local Union 170 "was not a party entitled to express dissatisfaction with the Anti-Inflation Board ruling and require the said Anti-Inflation Board to refer the matter to the Administrator as contem plated by section 12(1)(d.1) of the Anti-Inflation Act". The Administrator's letter of 21 October 1977 in toto reads as follows:
After a review of the circumstances concerning the compen sation plan arrived at between the British Columbia Construc tion Labour Relations Association and the various trade unions representing the British Columbia Construction Workers, we have determined that the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 170 was not a party entitled to express dissatisfaction with the Anti-Inflation Board ruling and require the said Anti-Inflation Board to refer the matter to the Administrator as contemplated by section 12(1)(d.1) of the Anti-Inflation Act.,
Consequently, the request by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 170 that this matter be referred to the Administrator is irregular and the Administrator is without authority to entertain it further.
and it is Exhibit J to the affidavit of David L. Blair, sworn the 22nd December 1977.
There was a preliminary objection taken by counsel for the Administrator to this application, which was heard, and then there was a hearing on its merits.
Counsel for the Administrator on this motion takes the position:
1. That the Anti-Inflation Board could have referred all twenty-eight collective agreements to the Administrator but not just the collective agree ment of Local Union No. 170 after the dissatisfac tion was expressed by the group of unions.
2. That Local Union No. 170 is not a person who could ask for a reference because Local No. 170 is only part of the group whose compensation was in question before the Anti-Inflation Board.
Counsel for Local 170 on this motion disagrees with the above propositions of counsel for the Administrator and in addition says:
1. That under section 12(1.2) of the Anti-Infla tion Act the party entitled to require a reference to the Administrator is an employee organization representing employees whose compensation is in question, . ; and that Local Union 170 is such an employee organization because of the definition in section 2 of the Act "employee organization", namely:
"employee organization" means any organization of employees formed for purposes including the regulating of relations between employees and employers;
2. That "compensation" is defined in section 2 of the Anti-Inflation Act as follows:
"compensation" means all forms of pay, benefits and perqui sites paid or provided, directly or indirectly, by or on behalf of an employer to or for the benefit of an employee;
3. That the word in the Guidelines [SOR/76-1] is "compensation plan" and not "compensation".
4. That as a consequence Local Union No. 170 is entitled to be before the Administrator, at which time the Administrator can then apply the Guide lines which by their nature apply to the group and not to the individual unions forming part of the group.
In my view the following are the possible courses of action for the applicant which considers itself aggrieved by the said decision of the Administra tor:
1. If the Administrator made a "decision" or "order" within the meaning of section 28 of the Federal Court Act and section 38 of the Anti- Inflation Act, the applicant may,
(a) launch an appeal to the Anti-Inflation Board (which it already has done) pursuant to the provisions of section 30 of the Anti-Inflation Act.
30. (1) Any person
(a) against whom an order has been made by the Adminis trator pursuant to section 20 or 21, or
(b) who is affected by a variation pursuant to section 22, without his consent, of an order referred to in paragraph (a) that was made against him,
may appeal to the Appeal Tribunal, but no appeal under this section may be instituted after the expiration of sixty days from the day the order pursuant to section 20, 21 or 22, as the case may be, was made.
(2) The Appeal Tribunal may dispose of an appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating the order appealed against,
(ii) varying the order appealed against, or
(iii) referring the matter back to the Administrator for reconsideration and variation of the order.
(3) Subject to subsection (4), the Appeal Tribunal shall dispose of an appeal by dismissing it unless the appellant establishes to the satisfaction of the Tribunal that a disposition referred to in paragraph (2)(b) is warranted.
(4) Where, on an appeal to the Appeal Tribunal, an order made pursuant to subsection 20(6) or (7) directing payment of a penalty amount is in issue, the burden of establishing the facts justifying the making of an order under whichever of those subsections is applicable is on the Administrator.
(5) Where, after an appeal is taken to the Appeal Tribunal against an order made pursuant to section 20 or 21, that order is varied pursuant to section 22, the appeal is not affected by the variation and, except where the variation was made with the consent of the appellant, an appeal against the variation may be joined with the appeal against the order made pursuant to section 20 or 21.
Then following the decision of the Anti-Inflation Tribunal on such appeal, if deemed advisable, may apply for a judicial review pursuant to section 38 of the Anti-Inflation Act of its decision;
or
(b) without exhausting its rights of appeal under section 30 of the Anti-Inflation Act forth with make an application for judicial review pursuant to section 28 of the Federal Court Act.
2. If the Administrator did not make such a "deci- sion" or "order" within the meaning of section 28 of the Federal Court Act and section 38 of the Anti-Inflation Act, as the applicant submits in his case, (submitting that the Administrator is in the same position as if he had not carried out his statutory duties) then proceedings for mandamus may lie under section 18 of the Federal Court Act.
Without making any adjudication in the matter, quaere whether or not what the Administrator did in this case was simply to carry out his conception of his statutory duty, which carrying out is not a matter for judicial review, and specifically quaere whether this is not a matter of the Administrator determining the limits of his own jurisdiction in the sense that the Administrator did not decide whether the jurisdiction that Parliament purported to confer on him was within the power of Parlia ment to confer, and in consequence of which (1) this case is not similar to B.C. Packers Ltd. v. Canada Labour Relations Board [1973] F.C. 1194 and (2) also this case is not similar to The Attorney General of Canada v. Cylien [1973] F.C. 1166 in which the Federal Court of Appeal decid ed that applications under section 28 of the Feder al Court Act would not be entertained in respect to matters decided in the course of a hearing or proceeding in that such interim type of decision was not the type of "decision" or "order" contem plated by section 28 of the Federal Court Act.
In view of the foregoing and because the appli cant has already taken an appeal to the Anti-Infla tion Tribunal pursuant to section 30 of the Anti- Inflation Act, and because of the difficulty to the applicant in choosing the correct course of action in the circumstances and the legal "hurdles" it must overcome, including the privitive clause of section 38 of the Anti-Inflation Act, I am exercis ing a discretion to adjourn this application until the applicant has completed his appeal before the Anti-Inflation Tribunal and that appeal has been finally determined pursuant to the provisions of the Anti-Inflation Act. (Cf S. A. de Smith, Judi-
cial Review of Administrative Action, 3rd edition, page 375.)
Accordingly this motion is adjourned sine die until the appeal of the applicant to the Anti-Infla tion Tribunal has been finally determined. After that time the applicant, if it is necessary and if it deems advisable, may bring on this motion again. If this motion should be brought on again I specifi cally direct that I am not seised of it.
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