A-70-77
Luc Doyon (Applicant)
V.
Public Service Staff Relations Board (Respond-
ent)
and
The Queen (Mis -en-cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, May 3; Ottawa, June 17, 1977.
Judicial review — Interpretation of labour agreement clause
— Ambiguity of clause — Introduction of extrinsic evidence
— Whether extrinsic evidence should have been introduced —
Agreement between the Treasury Board and the Council of
Postal Unions, Postal Operations Group (non supervisory),
article 22.10 — Public Service Staff Relations Act, R.S.C.
1970, c. P-35, s. 23 — Federal Court Act, s. 28.
An adjudicator and the Public Service Staff Relations Board,
on appeal, decided that extrinsic evidence of the parties' inten
tion should be admitted into evidence because of the ambiguity
of the clause in the labour agreement being interpreted. The
applicant applies for judicial review, arguing that the adjudica
tor and the Board erred in law in making their decisions.
Held, the application is allowed. The error committed by the
adjudicator and by the Board is that evidence appeared to show
that article 22.10 as written did not reflect the common inten
tions of the parties. Although the Court always hesitates to give
the letter of the written instrument recording a contract prece
dence over the common intention of the parties, that is what
must be done. If a contract is clear, one cannot attempt to give
it a meaning other than the apparent meaning that the parties
intended to say something other than what they said. It was
argued that this very old rule should not apply to the interpre
tation of collective labour agreements, but no argument has
been put forward that would justify such a conclusion.
APPLICATION.
COUNSEL:
Paul Lesage for applicant.
No one present for respondent.
Jean-Claude Demers for mis -en-cause.
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for applicant.
John E. McCormick, Ottawa, for respondent.
Deputy Attorney General of Canada for
mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATFE J.: Applicant has applied to have a
decision of the Public Service Staff Relations
Board set aside pursuant to section 28 of the
Federal Court Act. In this decision the Board,
deciding a question of law that had been referred
to it in accordance with section 23 of the Public
Service Staff Relations Act, affirmed the legality
of an arbitral award dismissing a grievance filed
by applicant.
Applicant is employed by the Post Office
Department. On the evening of July 15, 1974 he
was to report for work at 11.30 p.m. and work
until eight o'clock the next morning. He felt ill and
therefore remained at home. A short time later he
felt better and went to work. He arrived one hour
and forty-five minutes late, and as a result the
employer deducted from his wages. Applicant then
filed a grievance claiming that, although he
arrived late that day, he was entitled to his full
salary under article 22.10(a) of the collective
agreement governing his working conditions.
Article 22.10 of the agreement reads as follows:
22.10 Absences for sick leave shall be deducted from
accumulated sick leave credits for all normal working days
(exclusive of Holidays, as defined in Article 20.01). Where an
employee is absent for part of his shift, because of illness,
deductions from sick leave credits shall be made in accordance
with the following:
(a) six (6) hours or more on duty—no deduction,
(b) two (2) hours or more on duty, but less than six (6)—
one-half ( 1 ) day sick leave,
(c) less than two (2) hours on duty—one (1) day sick leave.
The employer dismissed applicant's grievance,
claiming that article 22.10(a) applied only to
employees whose absence was preceded by at least
six hours of work.
The matter was referred to arbitration. At that
time the employer presented evidence to establish
that article 22.10, as well as the identical clauses
in previous collective agreements, had always been
interpreted by all parties concerned as having the
meaning proposed by the employer. The adjudica
tor decided the evidence was admissible because
article 22.10 was unclear and, interpreting the
agreement in the light of the facts thus established,
he dismissed the grievance.
Applicant referred the question of the legality of
this decision to the Public Service Staff Relations
Board, claiming that the adjudicator had erred in
law by admitting evidence of facts outside the
agreement, and as a result distorting its meaning.
The Board held that since article 22.10(a) was
unclear, the adjudicator had been right to admit
the evidence, and that in the light of this evidence,
the adjudicator had correctly interpreted the
agreement.
The only question raised by this matter is the
admissibility of the evidence on which the
adjudicator based his interpretation of the agree
ment. It appears to me that if this evidence was
legally admitted, it is difficult to dispute the legal
ity of the adjudicator's decision, and consequently
of the Board's decision, since the facts thus placed
in evidence show that it is at least probable that
article 22.10 was intended by the parties to the
agreement as an indication of how "deductions
from sick leave credits" were to be made when an
employee was absent owing to illness after working
"part of his shift", and not, as the agreement says,
"for part of his shift".
The Board very properly observed, as had the
adjudicator, that extrinsic evidence cannot be used
to interpret a contract unless the contract is
unclear; its decision was based on its conclusion
that the adjudicator had been right in saying that
article 22.10 was unclear. I cannot agree with the
Board's opinion on this point. The disputed article
of the agreement appears to me to be clear and
free of any ambiguity, obscurity or uncertainty. In
my opinion, therefore, the adjudicator erred in law
in making his decision, since the wording of the
agreement was clear and therefore should not have
been interpreted.
What seems to me to explain the error commit
ted by the adjudicator and by the Board is that the
evidence appeared to show that article 22.10 as
written did not reflect the common intention of the
parties. One always hesitates to give the letter of
the written instrument recording a contract prece
dence over the common intention of the parties.
Nevertheless, that is what must sometimes be
done. On this point reference may be made to the
remarks of Lord Simon of Glaisdale in L. Schuler
A. G. v. Wickman Machine Tool Sales Ltd.
[1974] A.C. 235, (H.L.) at page 263:
There is one general principle of law which is relevant ....
This has been frequently stated, but it is most pungently
expressed in Norton on Deeds (1906), p. 43, though it applies
to all written instruments:
... the question to be answered always is, "What is the
meaning of what the parties have said?" not, "What did the
parties mean to say?" ... it being a presumption juris et de
jure ... that the parties intended to say that which they have
said.
It is, of course, always open to a party to claim rectification of
an instrument which has failed to express the common intention
of the parties; but, so long as the instrument remains unrecti-
fled, the rule of construction is as stated by Norton.
If a contract is clear, one cannot attempt to give
it a meaning other than its apparent meaning by
establishing that the parties intended to say some
thing other than what they said. It was argued that
this very old rule should not apply to the interpre
tation of collective labour agreements, but no
argument has been put forward that would justify
such a conclusion.
For these reasons I would set aside the Board's
decision and refer the matter back to the Board, to
be decided on the basis that in the case at bar
article 22.10 is clear and consequently cannot be
interpreted in the light of evidence that tends to
alter its meaning.
* * *
LE DAIN J. concurred.
* *
HYDE D.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.