A-564-86
Canadian Broadcasting Corporation (Applicant)
v.
Broadcast Council of Canadian Union of Public
Employees, Local 667, John F. Creamer and
Canada Labour Relations Board (Respondents)
INDEXED AS: CANADIAN BROADCASTING CORP. v. C.U.P.E.
Court of Appeal, Hugessen, MacGuigan and
Lacombe JJ.—Montréal, April 30; Ottawa, May
19, 1987.
Labour relations — Complaint under s. 97(1)(d) Canada
Labour Code upheld — Employee ordered reinstated and
compensated for loss of remuneration — S. 28 application
against award of interest as part of loss of remuneration —
Whether Board authorized to grant pre-award interest under
Code s. 96.3(c) — S. 96.3(c) providing for payment of compen
sation "not exceeding sum equivalent to remuneration that
would have been paid" — Meaning of "compensation" —
Tense structure of provision indicating Parliament's intention
not to limit compensation to past equivalency, but to present
equivalency — Discretion conferred on Board by s. 96.3(c)
reinforcing fullest equivalency interpretation — Application
dismissed — Canada Labour Code, R.S.C. 1970, c. L-1, ss.
96.3 (as added by S.C. 1977-78, c. 27, s. 33; rep. and sub. by
S.C. 1984, c. 39, s. 20), 97(1)(d) (as added by S.C. 1977-78, c.
27, s. 34), 106.1 (as added idem, s. 35), 121 (as added by S.C.
1972, c. 18, s. 1), 189(b),(c) (as added idem) — Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Construction of statutes — S. 96.3(c) Canada Labour Code
— S. 96.3(c) providing payment of compensation "not exceed
ing sum equivalent to remuneration that would have been
paid" — Meaning of "compensation" — Tense structure of
provision indicating intention of Parliament not to limit com
pensation to past equivalency — Word "equivalent" absent
from French text — Unnecessary to apply highest common
factor approach to resolve difference — Both texts having
same meaning — Official Languages Act, R.S.C. 1970, c. O-2,
s. 8.
This is a section 28 application against the decision of the
Canada Labour Relations Board which granted the respondent,
Creamer, interest on the compensation awarded to him as part
of his loss of remuneration. The Board upheld a complaint filed
by the respondent against his employer under paragraph
97(1)(d) of the Canada Labour Code. It ordered that the
respondent be reinstated in his former position and compensat
ed for the loss of remuneration from the time the disciplinary
action was taken to the date of his reinstatement. The issue is
whether paragraph 96.3(c) of the Code authorizes the Board to
grant pre-award interest to a successful complainant. That
paragraph provides for the payment of compensation "not
exceeding such sum as, in the opinion of the Board, is equiva
lent to the remuneration that would ... have been paid by the
employer".
Held, the application should be dismissed.
The key words in paragraph 96.3(c) are "compensation" and
"equivalent". While the word "compensation" is defined inter
alia as "remuneration for services rendered", its primary sense
is "making amends" or "making whole". This interpretation is
strengthened by the notion of equivalency in paragraph 96.3(c).
The compensation awarded may be equivalent to the remunera
tion that would have been paid but for the employer's contra
vention. The tense structure used in that paragraph ("is equiva
lent", "that would have been paid") suggests that what
Parliament intended as the limit of compensation was not past
equivalency but present equivalency, i.e., not the same nominal
amount of money that would have been paid in the past but the
present equivalent of that amount. Parliament's emphasis on
the subjective discretion of the Board ("such sum as, in the
opinion of the Board, is equivalent") reinforces the interpreta
tion that the fullest equivalency was intended.
The applicant's argument based on the French text of para
graph 96.3(c) is without merit. The applicant submitted that
since the French text contained neither the word "equivalent"
nor any word to the same effect, the narrower interpretation of
the two versions should prevail. Such a difficulty would normal
ly be resolved by applying a highest common factor approach.
Such an approach is, however, unnecessary since both texts
have the same meaning. What the French text lacks in the
absence of a word corresponding to "equivalent" it makes up by
using the word "indemnité", a broader word for compensation.
As defined, the word "indemnité" connotes "damages" in a
way that the English word "compensation" does not, although
"compensation" is not itself a narrow concept in English. The
fact that the French text of paragraph 189(c) of the Code does
make use of the word "équivalente" is of no assistance in the
interpretation of the paragraph at issue.
CASES JUDICIALLY CONSIDERED
APPLIED:
Snively (Samuel John) and Can-Am Services & United
Truck Rental, Windsor, Ontario (1985), 12 CLRBR
(NS) 97.
CONSIDERED:
Re Westcoast Transmission Co. Ltd. and Majestic Wiley
Contractors Ltd. (1982), 139 D.L.R. (3d) 97 (B.C.C.A.);
Miller (Alan) and Canadian National Railways, [1980]
3 Can LRBR 377.
REFERRED TO:
Lewis v. Todd and McClure, [1980] 2 S.C.R. 694.
COUNSEL:
Danny J. Kaufer and T. Brady for applicant.
Suzanne Handman for respondents Broadcast
Council of Canadian Union of Public
Employees, Local 667 and John F. Creamer.
Catherine Saint-Germain for respondent
Canada Labour Relations Board.
SOLICITORS:
Heenan Blaikie, Montréal, for applicant.
Trudel, Nadeau, Lesage, Cleary, Larivière &
Associés, Montréal, for respondents Broad
cast Council of Canadian Union of Public
Employees, Local 667 and John F. Creamer.
Canada Labour Relations Board on its own
behalf.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This section 28 application
[Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10] raises a single question of statutory interpreta
tion, which can be shortly stated, viz., whether the
Canada Labour Relations Board ("the Board")
has the right to grant pre-award interest to a
successful complainant under section 96.3 (now
section 91) of Part IV of the Canada Labour Code
[R.S.C. 1970, c. L-1 (as added by S.C. 1977-78, c.
27, s. 33)] ("the Code").
The Board, by a decision rendered on October
28, 1985, upheld a complaint filed by the respon
dent Creamer under paragraph 97(1)(d) [as added
idem, s. 34] of Part IV of the Code. The Board
ordered that he be restored to his former position
and compensated for his loss in remuneration from
the time of his disciplining by his employer until
the date of his reinstatement. The decision was
upheld by this Court on September 25, 1986 (no.
A-847-85) [not yet reported].
The Board indicated it would remain seized of
the matter in order to deal with any issues that
might arise in connection with the remedies
ordered. Accordingly on September 5, 1986, Board
Vice-Chairman Eberle resolved a number of out
standing issues in relation to its October 28, 1985,
decision. The relevant part of his reasons for deci
sion is as follows:
Consistent with the Board's policy as set forth in John Samuel
Snively (1985), unreported Board decision no. 527, I direct that
interest be paid to Mr. Creamer via the so-called "rough and
ready method" described in that decision. My understanding is
that he would receive for a 23 -month period up to November 6,
1985 interest at the Bank of Canada prime rate in effect on
January 1, 1984 on half the amount of compensation due him.
On the basis that the foregoing interest required to be paid is
part of Mr. Creamer's actual loss of remuneration while he was
removed from the crew, I am unable to agree with the union
that I should go farther and direct the CBC to pay additional
interest on the full amount between the date of Mr. Creamer's
reinstatement and the point at which payment of the compensa
tion is actually made.
Section 96.3, which the Board was interpreting,
is as follows:
96.3 Where, under section 96.2, the Board determines that
an employer or a person acting on behalf of an employer has
contravened paragraph 97(1)(d), the Board may, by order,
require the employer or the person acting on behalf of an
employer to comply with that paragraph and may, where
applicable, by order, require the employer to
(a) permit to return to the duties of his employment any
person employed by the employer who has been affected by
that contravention;
(b) reinstate any former employee affected by that contra
vention as an employee of the employer;
(c) pay to any employee or former employee affected by that
contravention compensation not exceeding such sum as, in
the opinion of the Board, is equivalent to the remuneration
that would, but for that contravention, have been paid by the
employer to that employee or former employee; and
(d) rescind any disciplinary action taken in respect of and
pay compensation to any employee affected by that contra
vention, not exceeding such sum as, in the opinion of the
Board, is equivalent to any financial or other penalty
imposed on the employee by the employer.
In Miller (Alan) and Canadian National Rail
ways, [1980] 3 Can LRBR 377, at page 381, the
first case in which the Board had to consider
whether interest was permissible under paragraph
96.3(c), it came to the conclusion that it was not:
In my opinion paragraph 96.3(c) refers strictly to wages or
other remuneration that are normally paid to an employee for
his services to an employer.... This case falls under paragraph
96.3(c) and the Board must award a sum of money not
exceeding an amount which the employee would have earned if
he had not been suspended. The words "not exceeding such
sum" are quite explicit and, in my opinion, do not permit the
payment of additional sums with respect to the payment of
interest which, depending on the circumstances of the
employee, may or may not have been earned on the remunera
tion lost to him as a result of his suspension or dismissal.
It must be noted that Part IV of the Canada Labour Code
does not contain the expanded remedial provisions recently
enacted in Part V, s. 189. Whether these provisions of Part V
are sufficiently broad to encompass a request for interest on
compensation will remain a question for future panels of the
Board dealing with questions under that Part. Insofar as this
case under Part IV is concerned, the claim for interest is
rejected for the reasons stated above.
However, the Board changed its approach after Re
Westcoast Transmission Co. Ltd. and Majestic
Wiley Contractors Ltd. (1982), 139 D.L.R. (3d)
97, in which the British Columbia Court of Appeal
held that a commercial arbitrator had the same
power to award interest as has a court under the
British Columbia Court Order Interest Act
[R.S.B.C. 1979, c. 76]. Subsequently in the Snive-
ly case [Snively (Samuel John) and Can-Am Ser
vices & United Truck Rental, Windsor, Ontario
(1985), 12 CLRBR (NS) 97], the Board declared
[at page 107]:
The issue of whether interest is in addition to or part of a loss
has been dealt with in Re Westcoast Transmission Co. Ltd. and
Majestic Wiley Contractors Ltd.... a judgment subsequent to
the Alan Miller, decision. At p. 101 of that decision, Seaton
J.A. says: "The interest factor would not be interest upon the
loss or cost or adjustment, but part of the loss or cost or
adjustment, calculated at the time of the handing down of the
award." (Emphasis added.)
The Board is attracted to that reasoning. Section 96.3(c)
empowers the Board to order compensation. The issue that the
Board has to determine "in the opinion of the Board" is the
following: what is the compensation that would be equivalent to
the remuneration that would have been paid by the employer?
In the opinion of the Board, and adopting the reasoning of
Seaton J.A., the compensation that would be equivalent to the
remuneration that would have been paid is the salary that Mr.
Snively would have been paid, less the amount he earned
elsewhere, plus vacation pay and interest on that amount.
Taking into account the unique circumstances of the instant
case, the Board is of the view that the full amount of compensa
tion, including interest, should, as a matter of equity, be paid
by the employer.
The various parties cited a considerable number
of cases and materials to indicate where the law on
this point is and where it is going. Among the
more interesting was the article by Dianne Saxe,
"Judicial Discretion in the Calculation of Prejudg
ment Interest" (1986), 6 Advocates' Q. 433, in
which she concludes as follows, at page 443:
In the majority of Canadian common law jurisdictions pre
judgment interest is no longer a privilege but a right. Judicial
discretion in the awarding of interest must now be used to tailor
interest awards to a plaintiffs true loss ....
Most of this development in the law results, how
ever, from new statutory interest provisions in the
various jurisdictions. The task of this Court, it
seems to me, is only to interpret the relevant
provision in the Canada Labour Code.
The applicant submits that the language of the
provisions is plain: that no sum of money "in
excess of" the employee's remuneration can be
awarded; that "remuneration" means a payment in
return for a service rendered; and that the interest
payment which the Board has ordered is not remu
neration but rather, when added to the $10,027.95
which it found to be the respondent Creamer's last
remuneration, is a sum in excess of that
remuneration.
I accept the applicant's sense of the word
"remuneration", but I believe that does not get it
very far, since in my opinion the key words in the
paragraph are "compensation" and "equivalent".
"Compensation" is defined as follows in Black's
Law Dictionary, 5th ed., 1979:
Compensation. Indemnification; payment of damages; making
amends; making whole; giving an equivalent or substitute of
equal value. That which is necessary to restore an injured
party to his former position. Remuneration for services ren
dered, whether in salary, fees, or commissions. Consideration
or price of a privilege purchased.
It is true that the word does bear the limited
meaning of remuneration urged by the applicant,
but its primary sense is rather "making amends"
or "making whole".
This interpretation is strengthened, I believe, by
the notion of equivalency that is explicit in the
paragraph under consideration. The compensation
awarded may be equivalent to the remuneration
that would have been paid but for the employer's
contravention. In my view, the very tense structure
(is equivalent, that would have been paid) suggests
that what Parliament intended as the limit of
compensation was not past equivalency but present
equivalency, i.e., not the same nominal amount of
money that would have been paid in the past but
the present equivalent of that amount (is equiva
lent to). Parliament's emphasis on the subjective
discretion of the Board, ("such sum as, in the
opinion of the Board, is equivalent") strengthens
the impression that the fullest sense of equivalency
was what it intended.
This was clearly the Board's conclusion in hold
ing that "the foregoing interest required to be paid
is part of Mr. Creamer's actual loss of remunera
tion while he was removed from the crew". Indeed,
these words of the Board show that the sum of
money in question was conceptualized by it in the
very formula approved by Dickson J. (as he then
was) for the Supreme Court of Canada in Lewis v.
Todd and McClure, [1980] 2 S.C.R. 694, at page
717, "not as interest but as part of the award".
Whether the sum is categorized as interest or as
part of the award, I can find no fault with such an
interpretation on a plain meaning basis. It is I
believe, in keeping with the plain meaning of the
paragraph.
Of course, the words of a statute must be read in
their total context. The applicant argues that the
Board under Part IV does not possess powers equal
to those conferred by Part V in section 121 [as
added by S.C. 1972, c. 18, s. 1] and in paragraph
189(b) [as added idem]. I do not find it necessary,
however, to set out or further consider those provi
sions for two reasons. First, the genesis and de
velopment of Part IV, which deals with the safety
of employees, and Part V, which covers industrial
relations, are different, and a lack of parallelism
between the two is not, at least in this instance,
significant in their interpretation. Second, and in
any event, by section 106.1 [as added by S.C.
1977-78, c. 27, s. 35] of Part IV the powers, rights
and privileges conferred on Board members else
where in the Act are declared also to be theirs
under Part IV.
The applicant's final argument on the interpre
tation of paragraph 96.3(c) is based on the French
text, which for convenience I set out opposite the
English wording:
96.3 Where, under section 96.3 Le Conseil qui a décidé con
96.2, the Board determines that formément à l'article 96.2 qu'un
an employer or a person acting employeur ou une personne agis -
on behalf of an employer sant en son nom a enfreint l'alinéa
has contravened paragraph 97(1)d) peut, par ordonnance,
97(1)(d), the Board may, by enjoindre aux personnes susmen-
order, require the employer or tionnées de se conformer audit
the person acting on behalf of alinéa; il peut en outre, s'il y a lieu,
an employer to comply with enjoindre à l'employeur, par ordon-
that paragraph and may, where nance, de
applicable, by order, require the
employer to .. .
(c) pay to any employee or c) verser à tout employé ou ancien
former employee affected by employé lésé par l'infraction une
that contravention compensa- indemnité ne dépassant pas le mon-
tion not exceeding such sum tant que, selon le Conseil, l'em-
as, in the opinion of the ployeur aurait versé à l'employé ou
Board, is equivalent to the à l'ancien employé à titre de rému-
remuneration that would, but né ration, n'eût été l'infraction . .
for that contravention, have
been paid by the employer to
that employee or former
employee ....
It will be at once remarked that the French text
contains neither the word "equivalent" nor any
word to the same effect. It refers simply to an
amount not exceeding the sum which, in the opin
ion of the Board, the employer would have paid to
the employee (ne dépassant pas le montant que,
selon le Conseil, l'employeur aurait versé â
l'employé).
Such a difficulty could bring into play section 8
of the Official Languages Act [R.S.C. 1970, c.
O-2] and would normally be resolved by a kind of
highest common factor approach, as stated by
Rémi -Michael Beaupré, Interpreting Bilingual
Legislation, 2nd ed., 1986, at page 5:
The one construction common to both versions ... will normal
ly prevail, so long as it is not subject to objection when the
provision is so read within its total context.
The applicant's contention is therefore that the
narrower interpretation of the two versions should
prevail.
I do not find it necessary to resolve the problem
of which text should prevail because I believe that
both have the same meaning, since what the
French text lacks in the absence of a word corre
sponding to "equivalent" it makes up for in a
broader word for compensation.
Indemnité is defined by Le Petit Robert, 1977,
as follows:
INDEMNITÉ: Ce qui est attribué à ggn en réparation d'un
dommage, d'un préjudice. V. Compensation, dédommagement,
dommages-intérêts, récompense, réparation.
[TRANSLATION] INDEMNITY: What is given to a person to
compensate for a damage or loss. See compensation, damages,
recompense, reparation.
It thus connotes "damages" in a way that the
English word "compensation" does not, although,
as I have already indicated, "compensation" is not
itself a narrow concept in English.
The fact that in a comparable text in paragraph
189(c) [as added by S.C. 1972, c. 18, s. 1] in Part
V the French text does make use of the word
"équivalente", while perhaps a minor mystery,
does not, I think, aid in the interpretation of this
paragraph in Part IV. Legislative drafting in
Canada is still very far from being totally
consistent.
In the light of my interpretation of paragraph
96.3(c), it is not necessary for me to deal with
arguments based by the parties on a contrary
holding.
In the result, I would dismiss the application
and affirm the Board's decision of September 5,
1986.
HUGESSEN J.: I agree.
LACOMBE J.: I agree.
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.