A-74-77
The Professional Institute of the Public Service of
Canada, Biological Sciences & Forestry Group
(Applicant)
v.
The Administrator under the Anti-Inflation Act
(Respondent)
and
The Professional Institute of the Public Service of
Canada, Agriculture Group (Applicant)
v.
The Administrator under the Anti-Inflation Act
(Respondent)
Court of Appeal, Thurlow A.C.J., Ryan and Le
Dain JJ.—Ottawa, May 27 and June 30, 1977.
Judicial review — Public Service — Jurisdiction — Orders
of Administrator under Anti-Inflation Act — Arbitral award
made by Public Service Staff Relations Board — Appeal to
Anti-Inflation Appeal Tribunal dismissed — Whether or not
Anti-Inflation Board and Administrator have author
ity over arbitral award of Public Service Staff Relations Board
— If yes, whether or not conditions precedent to exercise of
power met — Whether or not Administrator made findings of
fact required by Anti-Inflation Act — Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, ss. 60, 68, 72(1), 100 —
Anti-Inflation Act, S.C. 1974-75-76, c. 75, ss. 4(1), 4.1, 10(2),
12(1), 17(1), 20(1),(8), 30 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
The Anti-Inflation Appeal Tribunal dismissed the applicant's
contention that the Anti-Inflation Board and the Administrator
did not have authority with respect to an arbitral award
determined under the Public Service Staff Relations Act, and
even if they did, that the conditions precedent to the exercise of
that power were not satisfied in the present case. The applicant
not only seeks judicial review on the ground that this rejection
was an error in law but also attacks the Administrator's orders
because he allegedly did not make the findings of fact required
by the Anti-Inflation Act.
Held, the application is dismissed. The authority of the
Administrator applies to compensation determined by an arbi-
tral award under the Public Service Staff Relations Act not
withstanding the provisions of that Act. The fact that the
Public Service Staff Relations Board must take the Anti-Infla
tion Guidelines into consideration in making an arbitral award
does not exclude the authority of the Anti-Inflation Board or
the Administrator. The provisions of the Public Service Staff
Relations Act respecting the binding and final character and
the implementation of an arbitral award relate to the provisions
of that Act. The fact that they create "a statutory right to
compensation" does not remove that compensation from the
application of the Anti-Inflation Act and Guidelines. The
Anti-Inflation Act and the Guidelines are concerned with the
amount of proposed compensation and not with the circum
stances under which the employer becomes legally obliged to
pay it. Although the Administrator must be satisfied that the
employer is likely to contravene the Guidelines before making
an order it is not necessary that his order formally recite or
express a finding of likelihood of contravention where it is clear
that the employer has a statutory obligation to make the
payment that will constitute a contravention, and it must be
presumed that he will perform that obligation unless lawfully
restrained from doing so.
APPLICATION for judicial review.
COUNSEL:
Gordon F. Henderson, Q. C., and Y. A. George
Hynna for applicant.
G. W. Ainslie, Q.C., and W. Glen St. John for
respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an application under section
28 of the Federal Court Act to set aside a decision
of the Anti-Inflation Appeal Tribunal which dis
missed appeals from three orders of the Adminis
trator under the Anti-Inflation Act, S.C. 1974-75-
76, c. 75.
The Administrator's orders relate to the com
pensation to be paid to three groups of employees
in the Public Service—the Agriculture Group, the
Biological Sciences Group, and the Forestry
Group. The issues for purposes of this application
are the same for the three groups. The background
to the issues may be briefly stated. The Treasury
Board, representing Her Majesty in right of
Canada as the employer, and the applicant, as
bargaining agent for the three groups, were unable
to reach agreement on all the terms and conditions
of a proposed collective agreement and referred
their differences to arbitration under the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35.
The Public Service Staff Relations Board' made
arbitral awards in which it determined the amount
of increases to be paid to the employees in these
groups. The Treasury Board reported the terms of
the awards to the Anti-Inflation Board, which,
acting under section 12(1)(c) 2 of the Anti-Infla
tion Act, took the position that the proposed
increases in compensation were not within the
limits of the Anti-Inflation Guidelines and recom
mended certain changes. The Treasury Board
advised the Anti-Inflation Board that it was dissat
isfied with the Board's recommendation, and the
matter was referred to the Administrator pursuant
to section 12(1)(d.1) 3 of the Act. The Administra
tor conducted an investigation as required by sec
tion 17 of the Act and made orders pursuant to
section 20 thereof with respect to the three groups
prohibiting increases in compensation beyond cer
tain amounts. The applicant appealed from these
orders to the Anti-Inflation Appeal Tribunal under
the provisions of section 30 of the Act, contending
that the Anti-Inflation Board and the Administra
tor did not have authority with respect to compen-
I Although it would appear that at least two of the arbitral
awards in this case were made by the Public Service Arbitra
tion Tribunal it is convenient in these reasons to refer to the
Board as the arbitral authority since the powers exercised by
the Tribunal are now exercised by the Board under sections 60
and following of the Act, as amended by S.C. 1974-75-76,
c. 98.
2 12. (1) The Anti-Inflation Board shall
(c) identify the causes of actual and proposed changes in
prices, profits, compensation and dividends identified under
paragraph (b) that are, in its opinion, likely to have a
significant impact on the economy of Canada, and endeavour
through consultations and negotiations with the parties
involved to modify such changes so as to bring them within
the limits and spirit of the guidelines or reduce or eliminate
their inflationary effect;
3 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; ...
sation determined by an arbitral award under the
Public Service Staff Relations Act and that if they
did, the necessary conditions precedent for the
exercise of such authority were not satisfied in the
present case. The Appeal Tribunal rejected both of
these contentions and dismissed the appeals. The
applicant contends that in doing so it erred in law.
In this Court the applicant added a third ground of
attack on the validity of the Administrator's
orders: that the Administrator did not make the
findings of fact required by the Anti-Inflation Act.
In this Court counsel for the applicant did not
really press the contention raised before the
Appeal Tribunal that the conditions precedent for
referral of a matter to the Administrator were not
satisfied in this case. The argument on this point,
as I understand it, was that the Anti-Inflation
Board did not carry out the consultations and
negotiations contemplated by paragraphs (c),(d)
and (d.1) of subsection 12(1) of the Act, at least in
so far as the applicant is concerned. The Appeal
Tribunal found as a fact that "the Appellant was
afforded an opportunity to consult and negotiate
with staff of the Anti-Inflation Board but declined
on the basis that the negotiations and consultations
suggested would be futile". I see no reason to
interfere with that finding.
On the main issue before it the Appeal Tribunal
concluded that the authority of the Anti-Inflation
Board and the Administrator extended to compen
sation determined by an arbitral award under the
Public Service Staff Relations Act.
The applicant's contention on this issue is that
the Anti-Inflation Act and the Guidelines must be
taken into consideration by the Public Service
Staff Relations Board when it makes an arbitral
award but the Board has final authority, to the
exclusion of the Anti-Inflation Board and the
Administrator, to determine the extent of their
application. In effect, it is the applicant's conten
tion that the Board when acting as an arbitration
tribunal for the determination of compensation is
the statutory authority for administration of the
Anti-Inflation Act and Guidelines. The applicant
bases this contention essentially on sections 72(1) 4
and 100 5 of the Public Service Staff Relations Act
respecting the binding and final character of an
arbitral award and on section 74 6 which requires
that such an award be implemented within ninety
days or within such longer period as may be
allowed by the Board. The applicant also invokes
subsection 10(2) 7 of the Anti-Inflation Act as
indicating, in its submission, the extent to which
the latter Act is intended to amend the Public
Service Staff Relations Act.
The provisions of the Anti-Inflation Act which
were relied on by the Appeal Tribunal in arriving
4 72. (1) An arbitral award is, subject to and for the pur
poses of this Act, binding on the employer and the bargaining
agent that is a party thereto and on the employees in the
bargaining unit in respect of which the bargaining agent has
been certified, effective on and from the day on which the
award is rendered or such later day as the Board may
determine.
5 100. (1) Except as provided in this Act, every order, award,
direction, decision, declaration or ruling of the Board, an
arbitrator appointed under section 62 or an adjudicator is final
and shall not be questioned or reviewed in any court.
(2) No order shall be made or process entered, and no
proceedings shall be taken in any court, whether by way of
injunction, certiorari, prohibition, quo warranto or otherwise,
to question, review, prohibit or restrain the Board, an arbitrator
appointed under section 62 or an adjudicator in any of its or his
proceedings.
6 74. The rates of pay, hours of work, leave entitlements,
standards of discipline and other terms and conditions of
employment directly related thereto that are the subject of an
arbitral award shall, subject to the appropriation by or under
the authority of Parliament of any moneys that may be
required by the employer therefor, be implemented by the
parties within a period of ninety days from the date on and
from which it becomes binding on the parties or within such
longer period as, on application to the Board by either party,
appears reasonable to the Board.
7 l0....
(2) The following Acts are amended in the manner and to
the extent set out hereunder:
(a) Part II of Schedule A to the Public Service Superannu-
ation Act is amended by adding thereto the "Anti-Inflation
Board"; and
(b) Part I of Schedule I to the Public Service Staff Rela
tions Act is amended by adding thereto the "Anti-Inflation
Board".
at its conclusion are sections 4(1), 4.1 and 20(8)
which read as follows:
4. (1) This Act is binding on Her Majesty in right of
Canada, agents of Her Majesty in right of Canada, the govern
ments of the Yukon Territory and Northwest Territories and
agents of those governments.
4.1 (1) Any body that, pursuant to any other Act or law,
establishes or approves the prices or profit margins of any
supplier or person to whom the guidelines or any provision or
provisions of the guidelines apply or that establishes or
approves any base from which or basis on which any such price
or profit margin is calculated shall, in exercising its powers and
performing its duties and functions, apply such of the guide
lines as are applicable in the circumstances modified to such
extent, if any, as, in the opinion of the body, is necessary to
take into account the particular facts of the situation; and, to
the extent that those guidelines are inconsistent with any Act or
law otherwise governing that body in the exercise of its powers
and the performance of its duties and functions, the guidelines
prevail.
(2) The Anti-Inflation Board shall not perform the duties
and functions or exercise the powers set out in sections 12 and
13 in relation to any price or profit margin that is affected or
regulated in a manner referred to in subsection (1).
20....
(8) An order of the Administrator made pursuant to subsec
tion (1), paragraph (2)(a), (4)(a) or (5)(a) is binding on the
person against whom it is made notwithstanding any agreement
that was entered into after October 13, 1975 (whether before or
after the order was made), notwithstanding any other Act or
law enacted or made before or after the coming into force of
this Act, and notwithstanding that the order conflicts with
anything that was established in accordance with or approved
pursuant to any such other Act or law.
I conclude from these provisions, as the Appeal
Tribunal did, that the Anti-Inflation Act applies
to the Treasury Board representing Her Majesty
in right of Canada as the employer in this case;
that an exception is not made, for the Public
Service Staff Relations Board, to the jurisdiction
of the Anti-Inflation Board, as it is by section 4.1
for statutory bodies which have authority to estab
lish or approve prices or profit margins, as distinct
from compensation; and that the authority of the
Administrator applies to compensation determined
by an arbitral award under the Public Service
Staff Relations Act notwithstanding the provisions
of that Act. Like the Appeal Tribunal I think the
terms of subsection 20(8) of the Anti-Inflation
Act are conclusive on this issue.
The fact that the Public Service Staff Relations
Board must take the Anti-Inflation Guidelines
into consideration in making an arbitral award,
whether by virtue of paragraph (e) of section 68 8
of the Public Service Staff Relations Act or
simply because of the general application of the
Anti-Inflation Act, does not exclude the au
thority of the Anti-Inflation Board or the
Administrator. The provisions of the Public Ser
vice Staff Relations Act respecting the binding
and final character and the implementation of an
arbitral award relate to the purposes of that Act.
The fact that they create what counsel for the
applicant characterized as a statutory right to
compensation does not remove that compensation,
when paid or proposed to be paid by the employer,
from the application of the Anti-Inflation Act and
Guidelines. Such payment, although made pursu
ant to an arbitral decision and a statutory require
ment of compliance, may be as much a contraven
tion of the Anti-Inflation Guidelines as a payment
made under an individual contract or a collective
agreement in a case in which there has not been a
reference to arbitration. The Anti-Inflation Act
and the Guidelines are concerned with the amount
of proposed compensation and not with the cir
cumstances under which the employer becomes
legally obliged to pay it.
In so far as subsection 10(2) of the Anti-Infla
tion Act is concerned, the issue is not one of
amendment of the Public Service Staff Relations
Act by the Anti-Inflation Act, but whether the
provisions of the latter Act apply notwithstanding
those of the former. As I have said, subsection
8 68. In the conduct of proceedings before it and in rendering
an arbitral award in respect of a matter in dispute, the Board
shall consider
(a) the needs of the Public Service for qualified employees;
(b) the conditions of employment in similar occupations
outside the Public Service, including such geographic, indus
trial or other variations as the Board may consider relevant;
(c) the need to maintain appropriate relationships in the
conditions of employment as between different grade levels
within an occupation and as between occupations in the
Public Service;
(d) the need to establish terms and conditions of employ
ment that are fair and reasonable in relation to the qualifica
tions required, the work performed, the responsibility
assumed and the nature of the services rendered; and
(e) any other factor that to it appears to be relevant to the
matter in dispute.
20(8) of the Anti-Inflation Act appears to put this
question beyond argument.
The applicant contends that the Administrator
failed to determine that the employer was likely to
contravene the Guidelines and was, therefore, not
justified in making an order prohibiting such con
travention. It bases this contention on the terms of
subsections 17(1) and 20(1) of the Anti-Inflation
Act which are as follows:
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.
20. (1) Where the Administrator is satisfied that a person is
likely to contravene the guidelines, he may make such order as
he deems appropriate to prohibit the person from contravening
the guidelines generally, or in a particular manner specified in
the order.
The Administrator's orders recite that he caused
the necessary investigation to be carried out, but
while he found that the employer had not contra
vened the Guidelines he did not make an express
finding that it was likely to contravene them. The
Administrator must be satisfied that the employer
is likely to contravene the Guidelines before
making an order prohibiting such contravention
but it is not necessary that the order of the
Administrator formally recite or express a finding
of the likelihood of such contravention to show
that he is so satisfied where, as here, it is clear that
the employer has a statutory obligation to make
the payment that will constitute a contravention,
and it must be presumed that he will perform that
obligation unless lawfully restrained from doing so.
In such a case the making of the order implies that
the Administrator has made the appropriate
finding.
For all of these reasons I am of the opinion that
the Appeal Tribunal did not err in law in dismiss
ing the appeals from the Administrator's orders,
and I would accordingly dismiss the section 28
application.
* * *
THURLOW A.C.J. concurred.
* * *
RYAN J. concurred.
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.