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.
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.