Construction Industry Commission v. M.U.C.T.C., [1986] 2 S.C.R. 327
Construction Industry Commission Appellant
v.
Montreal Urban Community Transit Commission Respondent
indexed as: quebec (construction industry commission) v. m.u.c.t.c.
1986: February 28; 1986: October 9.
Present: Dickson C.J. and Beetz, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Labour law ‑‑ Construction industry ‑‑ Scope of Construction Industry Labour Relations Act ‑‑ Clear legislative wording ‑‑ Literal interpretation ‑‑ Act and Decree applicable to mass transit business in respect of construction work done by its employees ‑‑ Construction Industry Labour Relations Act, S.Q. 1968, c. 45 as amended, ss. 1(e), (i), (j), (q), (r), 2 ‑‑ Decree respecting the construction industry, (1973) 105 O.G. II 5837, ss. 3.01, 3.02.
Respondent operates and maintains the Montreal Urban Community transport network. Its employees did certain "work" at three of its buildings and were paid pursuant to the collective agreement. Appellant, which was responsible for implementing the Construction Decree adopted pursuant to the Construction Industry Labour Relations Act, claimed the difference between the amounts paid and those determined by the Decree from respondent on behalf of the employees. The Superior Court dismissed the actions. The trial judge refused to apply the wording of the Act blindly, and referred to the purpose of the Act in order to determine the legislature's intent. He held that the Act did not apply to respondent but to employers and employees who are usually engaged in the construction industry. He also said that, in any case, even if the Act applied, the employees had received from respondent a total wage greater than that claimed by appellant under the Decree, taking into account all the benefits conferred by the collective agreement. A majority of the Court of Appeal affirmed the judgments. The present appeal is to determine whether the Act and the Decree apply to respondent and to its employees in respect of the work done by the latter; and if so, whether respondent can rely on the fact that, taken as a whole, the benefits awarded to its employees under the collective agreement were greater than those they would have received under the Decree.
Held: The appeal should be allowed.
Respondent's basic position was that the Decree only applies to "the construction industry". Though this expression may include all businesses and workers engaged in construction, it does not necessarily follow that only these businesses or workers are covered by the Act. The definitions in s. 1 and the exceptions mentioned in s. 2 indicate that the Act covers the particular activities falling within the definition of "construction". It is these activities which are governed by the Act and the Decree. It follows that, in order to determine whether a particular employer or employees are covered by the Act, one must look at the nature of the work done and not simply at the status of the parties. In the case at bar, respondent relied on the exception mentioned in s. 2(2) of the Act for non‑professional employers in respect of maintenance and repair work done by their permanent employees. Respondent's employees are permanent employees and respondent is not a professional employer. However, the Superior Court and the Court of Appeal concluded that the work at issue in appellant's claim is construction work rather than maintenance and repair work. The Act must therefore be applied.
The purpose of the Act does not justify disregarding the clear meaning of the legislation. This Act is to set up special provisions governing labour relations between employers and employees in the construction industry in order to remedy the problems in that industry. In order to attain its ends, the legislature defined the scope of the Act very widely and created certain specific exceptions. If it had intended to lighten the burden of non‑professional owners by allowing them to set up their own building departments, it would have said so. The court must derive the legislature's intention from the language used and not speculate as to its intention.
The Construction Decree is a matter of public order for all employers and employees subject to this Act. An employer cannot enter into an agreement that the Decree will not apply or disregard the conditions determined by the Decree, nor can it introduce equivalences between the amounts paid under a collective agreement and those payable under the Decree, or make a set‑off between them. Though an employer is free to confer on its employees benefits not covered by the Decree, they must receive the remuneration and indemnities or benefits specified by the Decree. The question is not one of the total wage, and this concept cannot be adopted.
Cases Cited
Referred to: Comité Paritaire de l’Industrie de l’Imprimerie de Montréal et du District v. Dominion Blank Book Co., 1944 CanLII 60 (SCC), [1944] S.C.R. 213; Ste‑Marie v. Comité Conjoint (Construction), [1952] Que. K.B. 255; Commission du salaire minimum v. Beau‑Lab Co., [1976] R.D.T. 116; Commission de l’industrie de la construction v. Hôpital St‑François d’Assise, S.C. Quebec, No. 200‑05‑001950‑745, September 30, 1975; Commission de l’industrie de la construction v. Steinman, [1977] C.A. 340; Canadian National Ry. Co. v. Province of Nova Scotia, 1927 CanLII 71 (SCC), [1928] S.C.R. 106; Wellesley Hospital v. Lawson, 1977 CanLII 29 (SCC), [1978] 1 S.C.R. 893; The King v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378; Town of St‑Bruno de Montarville v. Mount Bruno Association Ltd., 1971 CanLII 131 (SCC), [1971] S.C.R. 623; Rosen v. The Queen, 1979 CanLII 59 (SCC), [1980] 1 S.C.R. 961; R. v. Philips Electronics Ltd. (1980), 1980 CanLII 1809 (ON CA), 30 O.R. (2d) 129 aff'd 1981 CanLII 61 (SCC), [1981] 2 S.C.R. 264; Comité conjoint des métiers de la construction v. Bisson (1937), 75 C.S. 209; Comité conjoint des métiers de la construction de Montréal v. Boyer, [1951] Que. K.B. 662; S.A.F. Construction (1973) Inc. v. Office de la construction du Québec, C.A. Québec, Nos. 200‑09‑000627‑791 and 200‑09‑000628‑790, February 10, 1982; Provencher v. Bissonnette, S.C. Arthabaska, No. 415‑05‑000337‑76, May 15, 1978; Office de la construction du Québec v. Hôtel‑Dieu de Québec, C.C. 651‑77, Case 84 LR, June 21, 1978.
Statutes and Regulations Cited
Act respecting collective agreement decrees, R.S.Q., c. D‑2, s. 1(i).
Construction Industry Labour Relations Act, S.Q. 1968, c. 45 [now R.S.Q., c. R‑20], ss. 1(e) [am. 1970, c. 35, s. 1(a)], (i), (j), (p), (q), (r) [am. 1970, c. 35, s. 1(b)], 2 [repl. 1970, c. 35, s. 2; am. 1973, c. 28, s. 2], 2a [ad. 1970, c. 35, s. 2; am. 1973, c. 28, s. 3]; 2b [ad. 1970, c. 35, s. 2], 2c [ad. 1970, c. 35, s. 2], 3, 13 [am. 1973, c. 28, s. 7], 14 [am. 1973, c. 28, s. 8], 20, 31, 59.
Decree respecting the construction industry concerning the juridical extension of a collective labour agreement respecting the construction industry in Québec, (1973) 105 O.G. II 5837, ss. 3.01, 3.02, 18.06, 32.03.
Minimum Wage Act, R.S.Q. 1964, c. 144, s. 1(h) [repl. Act respecting labour standards, R.S.Q., c. N‑1.1, s. 1.9].
Regulation No. 1 concerning the scope of the Construction Industry Labour Relations Act, (1971) 103 O.G. 67, s. 3.6.
APPEAL from judgments of the Quebec Court of Appeal1, affirming judgments of the Superior Court2. Appeal allowed.
Pierre‑André Côté and Serge J. Boucher, for the appellant.
Yvon Clermont, Q.C., for the respondent.
English version of the judgment of the Court delivered by
Chouinard J. ‑‑ Appellant is appealing against three judgments of the Court of Appeal, dismissing its appeal against three other judgments of the Superior Court which disallowed its total claim of $67,014.99 against respondent on behalf of the latter's employees.
There are two main questions. Is the Construction Decree applicable to respondent and its employees in respect of certain work done by the latter? If so, can respondent rely on the fact that taken as a whole the benefits awarded to its employees under the collective agreement are greater than those they would have received under the Decree?
The Decree respecting the Construction Industry, (1973) 105 O.G. II 5837, was adopted pursuant to the provisions of the Construction Industry Labour Relations Act, S.Q. 1968, c. 45, as amended by S.Q. 1970, c. 35; S.Q. 1971, c. 46; and S.Q. 1973, c. 28.
This Act became chapter R‑20 of the Revised Statutes of Quebec and appellant was replaced by the Office de la construction du Québec. All references are to the law as it stood at the time of the facts giving rise to the case.
Respondent, the M.U.C.T.C., is responsible for organizing, operating and maintaining a transport network in the Montreal Urban Community. The Construction Industry Commission was responsible for implementing the Construction Decree and, inter alia, was authorized to claim from employers on behalf of employees the difference between amounts paid and those determined by the Decree.
Between January 1974 and February 1975, 133 M.U.C.T.C. employees worked at the organization's head office and at the Crémazie and Villeray garages. Sprinklers were installed at the head office. At the Crémazie garage changing rooms were made into offices. To do this partitions had to be dismantled and re‑assembled, with all that involved. At the Villeray garage, the latter was made into a workshop for maintenance employees. The interior of the building was completely redone. The work involved redoing the ceiling and the divisions; putting in doors and windows; plastering and painting; and installing electrical, heating and air conditioning systems.
The employees were paid in accordance with the collective agreement between the Syndicat du transport de Montréal and the employer. Appellant's claim represents the difference between the amounts paid and those to which the employees would have been entitled under the Decree as wages, vacation pay, social benefits, contributions to the Fonds d'indemnisation and withholdings. There is also a penalty to which the Construction Industry Commission is entitled in such a case.
The quantum was not at issue.
The relevant passages of ss. 1 and 2 of the Act are as follows:
In this act, unless the context requires a different meaning, the following words and expressions mean:
(e) "construction": the foundation, erection, maintenance, renewal, repair, alteration and demolition work on buildings and civil engineering works carried out on the job site itself and vicinity including the previous preparatory work on the ground;
In addition, the word "construction" includes the installation, repair and maintenance of machinery and equipment, work carried out in part on the job site itself and in part in the shop, moving of buildings, transportation of employees, dredging, turfing, cutting and pruning of trees and shrubs and laying out of golf courses, but solely in the cases determined by regulation;
(i) "employer": anyone, including the Government of the Province of Québec, who has work done by an employee;
(j) "professional employer": an employer whose main activity is to do construction work and who habitually employs employees for any kind of work which is the object of a decree, or, failing a decree, of a collective agreement;
(q) "employee": any apprentice, unskilled labourer or workman, skilled workman, journeyman, artisan, clerk or employee, working individually or in a crew or in partnership;
(r) "permanent employee": any employee who habitually does maintenance work on buildings or civil engineering works and any employee who does production work in an establishment.
- This act shall apply to employers and employees in the construction industry but it shall not apply to:
(1) agricultural exploitations;
(2) maintenance and repair work done by permanent employees hired directly by an employer other than a professional employer;
(3) construction work on piping, sewers, paving, sidewalks and other work of the same kind done by the employees of urban or regional communities and municipal corporations;
(4) construction work relating directly to the exploration for or operation of a mine, done by employees of mining undertakings;
(5) construction work relating directly to forest operations, done by employees of undertakings for forestry operations;
(6) construction work on power transmission lines, done by the employees of the Québec Hydro‑Electric Commission;
(7) setting or installing flat glass subject to a decree under the Collective Agreement Decrees Act (Revised Statutes, 1964, chapter 143) if the field of application of such decree extends throughout the province of Québec and if the decree covers manufacture, setting and installing.
- Sections 3.01 and 3.02 of the Decree provide:
3.01 Any employer or employee who causes to be carried out or who carries out, within the territorial scope, any of the work or works covered by the decree in section 4 is governed by this decree.
3.02 The decree does not apply to permanent employees within the meaning of sections 1 and 2 of the Act. For the purpose of this paragraph, maintenance work does not include work performed in connection with new construction, re‑construction or renovation of part of a building or complex, nor greater repairs to outside walls, foundations or retaining walls.
- The following facts were established by the Superior Court and unanimously confirmed by the Court of Appeal:
[TRANSLATION]
‑‑ the work done by respondent's employees is to be regarded as construction work;
‑‑ respondent is not a professional employer within the meaning of s. 1(j) of the Act;
‑‑ the employees in question are permanent employees of respondent within the meaning of s. 1(r) of the Act.
At this stage these facts cannot be seriously disputed.
However, in the opinion of the Superior Court judge they do not suffice to dispose of the matter as the Court must, first, take into account the legislature's intent regarding the purpose of the Act, and second, note that the benefits received by the employees in question under the collective agreement give them a "total wage" greater than that guaranteed by the Decree. The judge wrote:
[TRANSLATION] Are all these things taken together‑‑the nature of the work and the status of employer and employee‑‑a sufficient basis for allowing plaintiff's action? If we are to take literally the Act and the Decree, which together cover employer and employees (Decree, s. 3.01), we must agree to the express condition of applying these provisions blindly, but the Court is not required to do this in the case at bar, for underlying this legislation and this Decree is a very clear intent by the legislature, namely to alleviate the problems associated with the work of a construction worker. Except in rare cases, he enjoys no security of employment, and this undoubtedly is a source of distress and insecurity to the worker. Further, in general the worker is subject to the vagaries of the weather, the market and the economic situation. He cannot really look forward to a comfortable retirement when he has exhausted his strength and his health sooner than other workers in work which is always hard and only too often, unfortunately, very dangerous. If an accident occurs he can only rely on the Workmen's Compensation Act, his vacation is limited, and so on.
- The Superior Court judge set out the benefits conferred by the collective agreement and continued:
[TRANSLATION] All these benefits represent a considerable expense for defendant, and for the worker benefits which can and must be given a money value, and must therefore be counted as an integral part of the wage as well. Reference has been made to a total wage, and this is the correct expression: it must be used if we are to properly assess the real wage of an employee in any category.
That is the gist of the Superior Court judgment. The Act does not apply to respondent and to the employees who did the construction work, and if it applied, the latter in any case received a total wage greater than that specified by the Decree.
This judgment was affirmed by a majority of the Court of Appeal, McCarthy J.A. dissenting. The reasons of the judges in the majority are essentially on the same lines as those of the Superior Court judge.
Monet J.A. wrote that appellant opted for a literal construction of the provisions, while [TRANSLATION] "Respondent on the other hand preferred other methods of interpretation, such as the
historical' andteleological' methods." The following is a passage from the reasons of Monet J.A. which illustrates why the Act does not apply in the circumstances:
[TRANSLATION] As mentioned earlier, appellant concluded that the exception in s. 2(2) of the Construction Industry Labour Relations Act does not apply in the circumstances as a consequence of the interpretation.
Respondent, applying a different method of interpretation, submitted that its labour relations with its permanent employees did not fall within the scope of this particular Act. In support of its arguments, it pointed to the purpose and aims of the Act.
With all possible respect for those who hold the contrary view, I consider that the judge properly upheld respondent's arguments.
The Act in question relates to the construction industry. It is a self‑contained Labour Code for persons in that industry. It is the product at the provincial level of factors and characteristics peculiar to that industry, such as the mobility of workers, which results in an atmosphere of insecurity. It creates a single set of legal rules for labour relations. Those who feel their views are reinforced by legislative provisions can refer to s. 59:
"The provisions of the Labour Code and the Collective Agreement Decrees Act shall not apply to the construction industry except where express mention thereof is made."
The purpose of this Act was to remedy abuses existing in the construction industry.
On the one hand, the operations of respondent, its function, are essentially concerned with mass transit and not construction, and on the other, the workers and employees are not subject to the manifold consequences of mobility and insecurity.
- Monet J.A. went on to discuss the reasons of the trial judge regarding the total wage concept. Finally, Monet J.A. concluded as follows:
[TRANSLATION] In my view the only purpose of these observations by the judge is to show that respondent's workers would receive a "total wage" less than what they were guaranteed by their collective agreement, assuming that labour relations between respondent and its employees fell within the scope of the particular statute.
In short, I consider that the method of interpretation adopted by the judge is justified, the reasons for judgment impugned are essentially correct and, in my opinion, the appeals should be dismissed.
- The following are two extracts from the reasons of the late Turgeon J.A., who came to the same conclusion:
[TRANSLATION] Claiming a higher wage for doing certain work other than the wage specified in the collective agreement governing permanent employees in a business or industry, without taking into account the great benefits conferred by that collective agreement on employees which it covers, is always objectionable.
In 1968 the legislature decided to introduce special provisions for labour relations in the construction industry, in order to give employees in that industry greater security and to increase their occupational and territorial mobility.
Respondent's employees do not have these problems of mobility and job insecurity which are the lot of construction workers.
In his judgment the trial judge showed, on the basis of the evidence, that respondent's employees received a higher pay than that claimed by appellant under the Decree, when all the benefits conferred by their collective agreement were taken into account.
Like my brother Monet J.A., I consider that respondent's arguments should be upheld.
I agree with the trial judge that, assuming the labour relations of respondent and its employees fell within the scope of the particular statute, respondent's workers would be receiving a total wage below what they received under their collective agreement.
Appellant submitted three propositions:
Respondent is subject to the Construction Industry Labour Relations Act as a consequence of the work done by its employees;
The purpose of the Construction Industry Labour Relations Act does not justify disregarding the clear meaning of the legislation;
The Construction Decree is a matter of public order for all employers and employees subject to the Construction Industry Labour Relations Act.
Appellant's First Proposition:
Respondent is Subject to the Construction Industry Labour Relations Act as a Consequence of the Work Done by its Employees
Appellant based its first proposition on the language of the Act and of the Decree, the Regulation giving effect to the Act, established practice regarding collective agreement decrees, case law and the decisions of the Building Commissioner.
Respondent's basic position was that the Decree only applies to the "construction industry". In the submission of respondent this expression means all the businesses and workers engaged in construction. Accordingly, the Act does not apply to a person engaged in mass transit. Respondent pointed to the very title of the Act, which refers to the construction industry. It also relied on the preamble to s. 2, which states: "This act shall apply to employers and employees in the construction industry". Respondent further relied on the many references made in the Act to "the construction industry", in particular in ss. 3, 13, 14 and 59. Finally, it relied on the name given to the body responsible for implementing any decree adopted pursuant to the Act, namely the Construction Industry Commission.
I agree that the construction industry may include all businesses and workers engaged in construction. It does not necessarily follow that only these businesses or workers are covered by the Act. The applicable provisions must be examined to determine what they cover. In my opinion, and I say so with respect, respondent's position is untenable.
If what it says were true, the Act would only apply to a "professional employer" as defined in s. 1(e), that is an employer whose main activity was construction work and who habitually employed employees for any kind of work which is the object of a decree.
Section 1(i) gives a separate definition of the word "employer": anyone who has work done by an employee. It is the word "employer", not the phrase "professional employer", which appears in s. 2. Subsection (2) of that section specifically distinguishes an employer from a professional employer in excluding maintenance and repair work.
Besides the phrase "maintenance and repair work", that same subsection contains the expression "permanent employees".
The word "construction", as defined in s. 1(e), takes in much more than maintenance and repair. However, only maintenance and repair work is excluded from the scope of the Act in the circumstances indicated.
A "permanent employee" is one who habitually does maintenance work or who does production work in an establishment.
Without ruling out the possibility that the expression "construction industry" means all businesses and workers engaged in construction, it must be concluded in my opinion that the Act covers the particular activities falling within the definition of construction. It is these activities which are governed by the Act and the Decree.
In the definition of "professional employer" commented on above, reference is made to employees engaged in "any kind of work which is the object of a decree". This means that the decree covers a "kind of work", not merely a category of employers or employees. It follows that, in order to determine whether a particular employer or employees are covered, one must look at the nature of the work done and not simply at the status of the parties.
Any other conclusion would deprive the distinctions made by the Act between "employer" and "professional employer", between "employee" and "permanent employee", of all meaning.
It would at the same time render the exceptions listed in s. 2 pointless.
That section states that "This act shall apply to employers and employees in the construction industry but it shall not apply ...."
The section then lists seven exceptions, the first of which is for agricultural exploitations. Agricultural exploitations are obviously not construction undertakings. If the Act applied only to construction undertakings, as respondent suggests, this exception would be meaningless.
The second exception, the one with which we are concerned, is that the Act does not apply to "maintenance and repair work". The provision does not state that it does not apply to categories of employers or employees. The same is true for the other exceptions, under which certain work is excluded from the scope of the Act.
The very wording of s. 2 clearly shows that apart from the case of agricultural exploitations, the exceptions do not relate to categories of persons, employers or employees but to well‑defined work done by given categories of employees for a given employer or category of employers.
Subsection (2), relates to "maintenance and repair work done by permanent employees hired directly by an employer other than a professional employer". In the case at bar, all the conditions are met except that relating to the nature of the work. Respondent is not a professional employer and the employees are permanent employees, but the Superior Court and the Court of Appeal concluded that the work at issue in appellant's claim is construction work rather than maintenance and repair work. It follows that the Act applies.
Appellant further relied on the wording of the Decree, and in particular on ss. 3.01 and 3.02, cited above. As has been seen, s. 3.02 explains what "maintenance work" means by indicating what it does not include. Respondent objected to this definition of maintenance work. In its submission, respondent wrote:
[TRANSLATION] Under s. 28 of the Act, the content of the Decree is limited to the classification of employees, remuneration, working hours and so on. In that case, can it contain a definition of maintenance work?‑‑and when the negotiators of the collective agreement on which the Decree was based adopted this definition, when the Minister agreed to include it in the proclamation of the Decree, did they not exceed the powers conferred on them by the Act? Consequently, in our submission this provision of the Decree is ultra vires.
Be that as it may, I do not think this section is conclusive in determining whether the Act applies in the case at bar and the arguments based on the Act are sufficient. I express no opinion on this additional argument submitted by appellant.
Appellant further relied on Regulation No. 1 concerning the scope of the Construction Industry Labour Relations Act, (1971) 103 O.G. 67.
That Regulation was made pursuant to s. 2a of the Act to "determine more specifically the scope" of the said Act. Inter alia the Regulation creates the concept of a casual employee: this is an employee "who usually performs work other than construction work but who may be called upon, in the carrying out of his usual work, to perform work within or outside the scope of the Act, either occasionally or periodically". Under subs. 6 of s. 3, only the clauses of the decree concerning remuneration, working hours, overtime, general holidays and union security apply to casual employees. It may be noted that the clauses of the decree regarding union security do not apply to a casual employee who is already a member of a union.
The Regulation illustrates that, contrary to respondent's argument, the Act and the Decree can apply to an employee whose main occupation is not construction.
The foregoing suffices to support appellant's first proposition, so that it is not necessary to consider established practice regarding collective agreement decrees or the legislative background. I will close on this point by citing certain cases which support appellant's proposition and a decision by the Building Commissioner to the same effect.
In Comité Paritaire de l’Industrie de l’Imprimerie de Montréal et du District v. Dominion Blank Book Co., 1944 CanLII 60 (SCC), [1944] S.C.R. 213, this Court dismissed the argument that the employer's main activity was not that covered by the Decree and considered instead the nature of the work done. Taschereau J., as he then was, wrote for the Court at p. 219:
It is obvious that by these imperative and unequivocal texts, the legislature intended to bind not only the signators to the agreement, but also all employees and employers who are engaged in a similar trade or business. It is as a consequence of the legal extension conferred by the decree, that all those performing work of the same nature or kind become subject to its provisions.
- In Ste‑Marie v. Comité Conjoint (Construction), [1952] Que. K.B. 255, the Court of Appeal held:
[TRANSLATION] Plaintiff is claiming $354 from defendant, being the difference between the wage set by a collective agreement and the wage in fact paid to two employees. Defendant argues that it is not subject to this agreement because its two employees participated in certain trade work from time to time, not on a regular basis, and it further argues that their services were used in the operation and maintenance of its plant on an intermittent basis.
The Court of Appeal finds that the work done is work contemplated by the collective agreement, and moreover that it is not the type of undertaking engaged in by the employer which matters but the nature of the work done by the employees.
- In Commission du salaire minimum v. Beau‑Lab Co., [1976] R.D.T. 116, the Court had to consider whether the installation of cupboards and counters on site by the workers who had made them in the plant was covered by the Construction Decree. Turgeon J.A. wrote for the Court of Appeal, at p. 119:
[TRANSLATION] The actual nature of the work done by the employee has to be determined in order to decide whether he falls within the scope of the Construction Decree.
- In Commission de l’industrie de la construction v. Hôpital St‑François d’Assise, S.C. Quebec, No. 200‑05‑001950‑745, September 30, 1975, employees of the hospital had installed a fire safety system. After analysing the evidence, Roberge J. wrote:
[TRANSLATION] . . . the Court concludes that in the case at bar this was construction work: a complete fire safety system had to be installed in the old section of this building and this was very much like a renovation; in any event, the Court cannot for a moment regard major work involving some $150,000 simply as maintenance work;
In that case the Commission's claim involved three employees. The judge allowed the action in respect of the first two, who were [TRANSLATION] "engaged in the construction work covered by the Construction Industry Labour Relations Act and the related Decree". He dismissed the claim in respect of the third, who was a permanent employee and had [TRANSLATION] "actually been employed in certain maintenance repair work".
Under s. 2b of the Act, "Any difficulty in the interpretation or application of section 2 or of the regulations passed under section 2a must be referred to a commissioner called the building commissioner ...." Under ss. 2c and 31, such decisions are not subject to appeal. Indeed, in Commission de l’industrie de la construction v. Steinman, [1977] C.A. 340, the Court of Appeal held that the Commissioner exercises exclusive jurisdiction.
I should point out that in the case at bar no "difficulty" was referred to the Building Commissioner. The question of whether reference to the Commissioner was necessary or advisable was a matter of some debate in this Court. However, respondent did not challenge the jurisdiction of the Superior Court by relying on the fact that the matter was not referred to the Commissioner, but was taken directly to the Court. I will proceed no further with this point.
The fact remains that on several occasions the Commissioner has been required to rule on the scope of the legislation, as in Office de la construction du Québec v. Hôtel‑Dieu de Québec, C.C. 651‑77, Case 84 LR, June 21, 1978, which creates a precedent. In that case involving the Hôtel‑Dieu, it was held:
[TRANSLATION] The argument by counsel for the employer that his client is not a construction industry employer and his client's employees are not construction industry employees within the meaning of subs. 1 of s. 2 of the Act would be more persuasive if the legislature in s. 2 had not added subss. (1) et seq. specifying the exceptional cases in which employers, employees or work do not come within the scope of the Act. The wording of the Act must be taken as a whole.
If the legislature had intended the Act to apply only to employers and employees in the construction industry, in the sense suggested by counsel for the employer, it would have been redundant to add the subsections mentioned above, which actually cover all employers other than construction industry employers.
Appellant's Second Proposition:
Purpose of the Construction Industry Labour Relations Actdoes not Justify Disregarding the Clear Meaning of the Legislation
The purpose of the Act as seen by the Superior Court judge and the majority judges on the Court of Appeal is described in the passages from their reasons cited above.
I see no substantial difference between these descriptions and that of appellant, as appears in its submission:
[TRANSLATION] The purpose of the Act . . . is to set up special provisions governing labour relations between employers and employees in the construction industry, including machinery for legal extension of the collective agreement. The legislature intended among other things to resolve the eternal problem of union representation in the industry, make certain that all employees would have reasonable working conditions and introduce provisions for security of employment.
It is the consequences to be drawn from this which are important.
In Canadian National Ry. Co. v. Province of Nova Scotia, 1927 CanLII 71 (SCC), [1928] S.C.R. 106, Duff J., as he then was, wrote for the Court at pp. 120‑21:
The function of this court is to give effect to the intention of the legislature, as disclosed by the language selected for the expression of that intention. Whatever views may have inspired the policy of the statute, it is no part of the function of a court of law to enlarge, by reference to such views, even if they could be known with certainty, the scope of the operative parts of the enactment in which the legislature has set forth the particular means by which its policy is to be carried into effect.
- In Wellesley Hospital v. Lawson, 1977 CanLII 29 (SCC), [1978] 1 S.C.R. 893, at p. 902, Pigeon J. cited the following passage from Duff C.J., speaking for the Court, in The King v. Dubois, 1935 CanLII 1 (SCC), [1935] S.C.R. 378, at p. 381:
The duty of the court in every case is loyally to endeavour to ascertain the intention of the legislature; and to ascertain that intention by reading and interpreting the language which the legislature itself has selected for the purpose of expressing it.
To start with presumptions as to policy is, as Lord Haldane said in Vacher & Sons Ltd. v. London Society of Compositors ([1913] A.C. 107, at 113), to enter upon a labyrinth for the exploration of which the judge is provided with no clue.
- In Town of St‑Bruno de Montarville v. Mount Bruno Association Ltd., 1971 CanLII 131 (SCC), [1971] S.C.R. 623, Pigeon J. wrote for the Court at p. 626:
In my opinion the basic rule of interpretation must govern this case, ascertaining the meaning of the words used by the legislature, rather than speculating as to its intentions.
- In Rosen v. The Queen, 1979 CanLII 59 (SCC), [1980] 1 S.C.R. 961, McIntyre J. wrote for the majority of the Court at p. 975:
The parliamentary intention . . . must be found in the words Parliament employed.
- In R. v. Philips Electronics Ltd. (1980), 1980 CanLII 1809 (ON CA), 30 O.R. (2d) 129, Goodman J.A. wrote for the majority on the Ontario Court of Appeal, at p. 136:
The provisions of s. 38(1) are clear and unambiguous in their meaning. In my view the Court should not by resorting to the provisions of s. 11 of the Interpretation Act give an interpretation to the section which represents the Court's view as to the intention of Parliament, in substitution for the meaning of the section as disclosed by its clear wording. It is the latter meaning which must be taken as disclosing Parliament's intention.
This judgment of the Ontario Court of Appeal was affirmed by this Court, the judgment of which is published at 1981 CanLII 61 (SCC), [1981] 2 S.C.R. 264.
I agree with the following passage taken from appellant's submission:
[TRANSLATION] Several means were used to attain these ends, such as quantitative control of the labour force and, most importantly, extending the industrial scope of the Act as far as possible so as to reserve for construction professionals all work falling within the statutory definition of "construction". This definition is very wide and the legislature even reserved for the Lieutenant Governor in Council a right to include certain other work in it by regulation (s. 2a C.I.L.R.A.)
At the same time the legislature, undoubtedly for practical and economic reasons, provided for exceptions including that in s. 2, subs. (2), in favour of non‑professional employers.
The legislature clearly intended to lighten the burden on owners and public corporations by allowing them to do maintenance and repair work on their buildings themselves; but it certainly did not intend for them to do more than that, or it would have said so. In a similar way, it allowed municipalities to do construction work on piping, sewers, sidewalks and so on (s. 2(3) C.I.L.R.A.)
It is this reasoning which is the fabric underlying the C.I.L.R.A., and this reasoning is completely in harmony with the provisions of the legislation.
It might be added that though the legislature wished to lighten the burden on owners and public corporations, it did not in so doing intend for them to set up their own building departments to do their work more cheaply as a means of avoiding the provisions of the Decree.
I adopt the following passage from the reasons of McCarthy J.A., dissenting:
[TRANSLATION] In my opinion, the position taken by appellant is supported by the legislation and is neither unreasonable nor manifestly unjust. We should therefore apply the legislation as it stands.
Appellant's Third Proposition:
Construction Decree is a Matter of Public Order for all Employers and Employees Subject to the Construction Industry Labour Relations Act
Under this heading appellant submitted, first, that respondent cannot enter into an agreement that the Construction Decree will not apply, and second, that it cannot make a set‑off between the monies paid under the collective agreement and those due under the Decree or rely on the total wage concept used by the Superior Court and by the Court of Appeal.
On the first point, appellant cited the provisions of the Act and the Decree.
Section 20 of the Act provides:
The adoption of the decree shall render all the clauses of the collective agreement obligatory; its provisions entail a matter of public order.
Additionally, s. 18.06 of the Decree states:
18.06 No individual contract between an employer and any employee shall provide for conditions less advantageous than those provided for in the decree. Any contract to the contrary shall be null and void.
- Section 32.03 states:
32.03 Any express or tacit renunciation of the provisions of this decree is null and shall in no way justify an employer whose employee was excluded from the benefits of this decree's provisions.
Respondent did not dispute that the provisions of the Decree were a matter of public order. However, it argued that the Decree only applies to the construction industry in the sense which it gave to that expression.
Respondent's argument is relevant only if its argument as to the scope of the Act is accepted. I have already disposed of this first argument and concluded that, in order to determine what the scope of the Act is, the Court must look at the nature of the work done and not limit itself to the status of the parties. No further elaboration is necessary.
On the second point, s. 1(p) of the Act defines the word "wage" as follows:
(p) "wage": the remuneration in currency, and the indemnities or benefits of a pecuniary value as determined in a decree;
Respondent submitted that the legislature has long defined this word in this way, in particular in the Minimum Wage Act, R.S.Q. 1964, c. 144, s. 1(h), since replaced by the Act respecting labour standards, R.S.Q., c. N‑1.1, s. 1(9), and in the Act respecting collective agreement decrees, R.S.Q., c. D‑2, s. 1(i).
Respondent further submitted that:
[TRANSLATION] All the benefits conferred by a particular employment must accordingly be taken into account in determining the pay received by the employee. The yardstick for deciding whether a benefit is part of salary consists of determining whether the benefit is "the consideration for the services rendered to the employer by the employee".
Respondent relied on the Superior Court judgment in Provencher v. Bissonnette, S.C. Arthabaska, No. 415‑05‑000337‑76, May 15, 1978.
It should be mentioned that in that case there was a claim for bodily injury and the Court had to determine the indemnity to which plaintiff was entitled for wages.
The difficulty I see with respondent's argument lies in the fact that the Act defines the word wage with reference to remuneration and indemnities or benefits "as determined in a decree". What has binding force, and cannot be disregarded, are the conditions determined by the Decree. The question is not one of the total wage but of the specific conditions determined by the decree, which in the case at bar relate to wages, vacation pay, social benefits, contributions to the Fonds d'indemnisation and withholdings.
The employer is free to confer other and possibly more generous benefits on its employees, but they must receive the remuneration and indemnities or benefits specified by the Decree.
As appellant wrote:
[TRANSLATION] The reason that the Decree determines the wage rate for all trades, the percentage of vacation pay and the amount of contributions to social benefits is that the intent was to ensure that all employees covered by it received total pay consistent with the proportions stated.
Respondent is not entitled to alter those proportions or to introduce equivalences between the various components of the total pay. Respondent cannot pay a lower hourly wage on the pretext that it pays higher vacation pay or because its employees enjoy some other advantage.
So far as I know, this is how Acts extending the effect of collective agreements and Decrees have always been interpreted.
In Comité conjoint des métiers de la construction v. Bisson (1937), 75 C.S. 209, Lazure J. wrote at pp. 210‑11:
[TRANSLATION] Whereas when such a collective agreement has been approved in due form by the Lieutenant Governor in Council, it is binding on all employees and employers in the same trade in the territory mentioned in the agreement; in the territory affected, these provisions cover all individual employment contracts which employees may enter into with employers in the same trade or industry; the purpose of this social legislation would not be achieved if certain workers could conclude contracts with their employers the provisions of which differed from the agreement approved for this trade or industry; accordingly, as in the case at bar, employees may not agree to a lower wage than that set by the agreement covering them, even if they believe, whether rightly or wrongly, that by paying the indicated wage their employer will have to shut down its business or dismiss them;
Whereas this Act is a matter of public order and its clear purpose is to protect the mass of workers as well as employers in the same trade; if such an agreement differing from the collective agreement were allowed, the employer would be completely free to engage in unfair competition with other employers in the trade who were subject to the agreement, and its employees would also be unfairly paid by comparison with those paid at the rate specified in the agreement;
- In Comité Paritaire de l’Industrie de l’Imprimerie de Montréal et du District v. Dominion Blank Book Co., supra, Taschereau J. wrote at p. 219:
It is furthermore a law of public order, which stipulates in clear terms that the provisions of the decree respecting hours of labour and wages, in a given undertaking, are obligatory, thus rendering null and void all agreements violating or coming in conflict with its dispositions.
- Taschereau J. also wrote at p. 220:
I do not think that the respondent can escape the application of this law, by invoking its alleged contract with the mise‑en‑cause. The Collective Labour Agreement Act applies to every one engaged in a similar trade and, specifically forbids to stipulate a wage below that fixed by the decree. Any stipulation to that effect is null and void.
- In Comité conjoint des métiers de la construction de Montréal v. Boyer, [1951] Que. K.B. 662, it is stated at p. 663:
[TRANSLATION] ...the rule of the Collective Agreement Decrees Act does not allow anyone to avoid the obligation of paying the minimum wage by offering non‑monetary benefits;
- Bissonnette J.A. wrote for the majority at p. 665:
[TRANSLATION] In my opinion the rigour of the Collective Agreement Decrees Act is such that an employer's favours, such as lending a car or authorizing leave to attend a wedding, and so on, do not allow him to avoid the duty to pay the minimum wage specified by a decree.
- Finally, at p. 666 it is stated:
[TRANSLATION] His real defence is to say that his workers have always been satisfied with their pay and with the excellent treatment they have been given. Unfortunately, the Decree is not interpreted in a spirit of fairness, but with the rigour of the prices, wages and working conditions covered and specified by it.
- In S.A.F. Construction (1973) Inc. v. Office de la construction du Québec, C.A. Quebec, Nos. 200‑09‑000627‑791 and 200‑09‑000628‑790, February 10, 1982, Turgeon J.A. wrote for the Court:
[TRANSLATION] I think it is clear that when the Building Commissioner decides that certain work is included in the scope of the Act, the Decree must necessarily apply to it.
The Construction Decree is a matter of public order under s. 53 of the Act and this prohibited appellant from entering into a private agreement contrary to the Decree.
- I agree with McCarthy J.A., who wrote:
[TRANSLATION] I cannot accept the concept of "total pay", in view of the specific provisions of the Act and the Decree.
- For these reasons, I would allow the appeal, set aside the judgments of the Court of Appeal and the Superior Court, and order respondent to pay appellant the sum of $67,014.99 with interest from the date of service and costs throughout.
Appeal allowed with costs.
Solicitors for the appellant: Faucher, Ménard & Associés, Montréal.
Solicitor for the respondent: Yvon Clermont, Montréal.