Federal Court Decisions

Date: 19971203

Docket: T-286-96

BETWEEN:

A.G.T. LIMITED

Applicant

-and-

DALAINA GRAHAM, JOYCE HILL,

FREDA KUSNERICK and AUDREY FRANSON

Respondents

     REASONS FOR ORDER

JEROME A.C.J.

[1]      This application for judicial review of a decision by a referee dated December 18, 1995, came on for hearing before me at Edmonton, Alberta, on September 4, 1997. At the hearing, I directed that written argument be submitted on the question of whether the applicant should be allowed to argue the application of section 170(1)(b) of the Canada Labour Code (the Code) in this judicial review.

[2]      I will begin by briefly stating the background of this case. In 1994, the respondents filed a complaint under Part III of the Code alleging that their employer, the applicant, had failed to pay overtime in accordance with the Code. An inspector for Human Resources Development Canada found that the exception under section 7(a) of the Regulations applied. As a result, the inspector found that the applicant had not violated the Code's provisions with respect to overtime pay and issued a notice of unfounded complaint.

[3]      The respondents appealed that decision to the referee. The referee overturned the notice of unfounded complaint on the ground that section 7(a) of the Regulations did not apply. The applicant then brought an application for judicial review which was heard on September 4, 1997.

[4]      At the hearing, the applicant argued that section 170(1)(b) of the Code provided an exception upon which it was entitled to rely. The respondents objected to this issue being raised on judicial review on the ground that it was a new issue and the court did not have jurisdiction to hear it.

[5]      In the written submissions, the applicant claimed that the issue had been considered by the referee and pointed to the following statement at page 4 of the referee's decision:

Sections 170 and 172 of the Code were touched on by both counsel in argument but in my view, they are not relevant as their provisions would only apply if there were an agreement in writing between the employer and the trade union to establish a work schedule in which the hours exceed the standard hours of work. That appears not to have been done in this case.

[6]      The respondents submitted that the only issue before the referee was section 7(a) of the Regulations. In support of that contention, the respondents cite page 5 of the decision where the referee states the following under the heading "Issue":

Counsel for the parties agree that the issue for determination before me involves interpretation of the phrase "changing shifts" in section 7(a) of the Regulations.

[7]      The respondents also submitted that the applicant's grounds for judicial review do not mention that the Referee had erred by failing to consider other defences contained in the Code. Therefore, the respondents contend, the applicant cannot raise this argument since a new argument cannot be raised on judicial review. The respondents cited several cases to support this claim. My survey of the case law confirms that a new argument cannot be heard on judicial review unless the argument concerns the jurisdiction of the administrative tribunal (see Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission) (re Macnutt), [1997] F.C.J. No. 1481 (QL) (F.C.T.D.); Singh v. Canada (Minister of Citizenship and Immigration) (1995), 30 Imm.L.R. (2d) 211 (F.C.T.D.); Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (F.C.A.)).

[8]      However, in my opinion this is not a new argument. The issue was raised during the hearing before the referee and the referee held that "in [his] view, [sections 170 and 172 of the Code] are not relevant." Although the focus of the referee's decision was the applicability of section 7(a) of the Regulations, the parties raised section 170 in argument and the referee determined that it was not relevant. I believe that when an administrative body has made a decision concerning the applicability of a statutory provision, a party should be able to seek judicial review.

[9]      Furthermore, the fact that the applicant did not specifically raise section 170 on their application for judicial review is not fatal. I agree with the applicant that the grounds for judicial review in the Originating Notice of Motion are broad enough to encompass the section 170 argument. Even if this conclusion was incorrect, I believe that rules 302 and 303, in conjunction with rule 2(2), gives the court the discretion to allow a party to amend an error if it would be just to do so. If I had deemed it necessary, I think it would "render effective the substantive law" (in the words of rule 2(2)) for the court to allow the applicant to amend the originating notice of motion.

[10]      For the reasons outlined above, the respondents' objection to allowing the applicant to raise the section 170 exception is rejected.

OTTAWA, ONTARIO

December 3, 1997                  "James A. Jerome"

                         A.C.J.