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.
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.