Date:
20060605
Docket:
T-17-05
Citation:
2006 FC 699
[ENGLISH
TRANSLATION]
Ottawa, Ontario, June 5,
2006
PRESENT:
THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER
BETWEEN:
PERSONS WISHING TO
ADOPT THE
PSEUDONYMS OF EMPLOYEE NO. 1, EMPLOYEE
NO. 2 ET
AL.
Applicants
and
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
One
hundred and nineteen employees and former employees of the Canadian Security
Intelligence Service (CSIS) are applying to the Court to review the decision by
the Director of CSIS to dismiss their group grievance to have commitments
respected that, according to them, were allegedly made when they were hired in
1984.
BACKGROUND
[2]
All
the applicants were working for the Security Service of the Royal Canadian
Mounted Police (RCMP) until the creation of CSIS in 1984, when Parliament
decided to create a civilian intelligence service.
[3]
The
Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (the
Act) included certain transitional provisions, including subsections 66(1)
and (2), which specified that
|
66. (1) Subject to subsection
(5),
(a) all officers and members
of the Force, and
(b) all persons appointed or
employed under the Public Service Employment Act assigned to the
security service immediately prior to the coming into force of this section
become employees of the Service on the coming into force of this section.
66. (2) Every person
mentioned in subsection (1) continues, on the coming into force of this
section, to have employment benefits equivalent to those that the
person had immediately prior thereto, until such time as those benefits are
modified pursuant to a collective agreement or, in the case of persons not
represented by a bargaining agent, by the Service.
(My emphasis)
|
66. (1) Sous réserve du
paragraphe (5), les personnes suivantes affectées aux services de sécurité
deviennent employés à l’entrée en vigueur du présent article :
a) les officiers et les
membres de la Gendarmerie;
b) les personnes nommées ou
employées en vertu de la Loi sur l’emploi dans la Fonction publique.
66. (2) Le paragraphe
(1) ne porte pas atteinte à l’équivalence des avantages attachés aux
postes des personnes qu’il vise, sous réserve des éventuelles
modifications consécutives aux conventions collectives ou, dans le cas des
personnes qui ne sont pas représentées par un agent négociateur, à une
décision du Service.
(Mon souligné)
|
[4]
CSIS
employees, who were formerly RCMP members, were part of the unrepresented
persons category for which the benefits could be modified by a CSIS decision.
Since serious concerns had been expressed as to this power of the Director of
CSIS to eventually eliminate the benefits attached to the positions of former
RCMP members, the director-designate circulated a letter to all employees of
the RCMP’s Security Service in June 1984, which stated:
Solicitor
General
Canada
CONFIDENTIAL
JUNE
1984
P. 2 […]
[…], CSIS has a continuing need
for people with the expertise, experience and integrity that has been developed
within the Security Service. All existing Security Service members and
employees will be offered positions in CSIS, with compensation and benefits at
least equivalent to their current situation. Any changes proposed to the
compensation package in the future will occur as a result of consultation with
elected employee representatives or the bargaining agent.
p. 4
SALARY
No employee will
suffer a decrease in salary by moving into CSIS. […]
A relatively
small number of members may find that the salary range established for their
new position is less than the salary they now receive. They will continue to
receive their current salary, not the lower level. This salary protection will
continue until the employee is moved into a position where the discrepancy in
salary is eliminated.
[…] In addition,
Public Service employees presently receiving a bonus for bilingualism will
continue to do so, as in the past.
p. 6
BENEFITS
AND ENTITLEMENTS
Member
The Commissioner
of the RCMP, as an attachment to a letter dated January 23, 1984, provided
a detailed outline of benefits and entitlements that currently apply to you.
The benefits and entitlements outlined for members who join CSIS will continue
to accrue until they are improved.
Solliciteur
général
Canada
CONFIDENTIEL
JUIN
1984
p. 2 […]
[L]e SCRS a besoin, de façon
permanente, de gens possédant les connaissances spécialisées, l’expérience et l’intégrité
qui ont caractérisé le Service de sécurité [de la GRC]. Tous les employés
actuels du Service de sécurité se verront offrir, à l’intérieur du SCRS, des
postes qui, sur le plan de la rémunération et des avantages sociaux, seront au
moins l’équivalent de leur situation actuelle. À l’avenir, des modifications ne
seront proposées au plan de la rémunération globale qu’à la suite de
consultations avec les représentants élus des employés ou l’agent négociateur
[…].
p. 4
TRAITEMENT
Personne ne subira de diminution
de traitement en passant au SCRS. […]
Il se peut qu’un nombre
relativement petit d’employés constatent que l’échelle des traitements fixée
pour leur nouveau poste est inférieure à celle dont ils bénéficient
actuellement. Ils continueront d’être rémunérés au taux actuel, et non au taux
inférieur. Cette protection du traitement se poursuivra jusqu’à ce qu’ils
accèdent à un poste où la différence de traitement se trouve éliminée.
[…] En outre, les employés de la
Fonction publique qui reçoivent actuellement une prime de bilinguisme
continueront de le faire, comme dans le passé.
p. 6
AVANTAGES SOCIAUX ET PRESTATIONS
Membre
Le commissaire de la GRC a annexé
à une lettre en date du 23 janvier 1984 un exposé détaillé des avantages
sociaux et des prestations dont vous pouvez bénéficier actuellement. Les
prestations et avantages sociaux prévus pour les membres qui entrent au SCRS
continueront de leur être accordés jusqu’à ce que des améliorations soient
apportées.
[5]
The
parties agree that between 1984 and 1999, the applicants’ benefits and
entitlements were kept at a level that was equivalent to those paid by the
RCMP. They agreed that any time that the RCMP agreed to increase the benefits and
entitlements of their employees, CSIS would also improve those paid for the
applicants. However, such equivalency was not maintained regarding salary or
wages, particularly as of 1991, when salaries in the public service were
frozen.
[6]
That
year, salary increases (pay) at the RCMP came into effect on January 1,
1991, while since 1985, increases at CSIS had to come into effect on April 1,
1991.
[7]
Under
the Public Sector Compensation Act, S.C. 1991, c. 30, the
salaries of both organizations, which entered into force on February 26,
1991, were subject to the freeze. Afterwards, the statutory increases set forth
in subsequent acts were applied to those salaries for a period of six years.
[8]
The
parties agreed that this salary gap has been decreased since 2002.
[9]
Moreover,
in 1994, the Federal Court of Appeal confirmed that RCMP employees had been
entitled to a bilingualism bonus since the program entered into force, which
was well before 1984.
[10]
According
to the applicants, they should have been paid that bonus in order to comply
with the principle of equivalency. Although the Federal Court of Appeal’s
decision in 1994 in Gingras v. Canada, [1994] F.C.A. No. 270 only
directly applies to Mr. Gingras, a former member of the RCMP who was
transferred to CSIS in 1984, that bonus was paid retroactively to all RCMP
members by the Commissioner of the RCMP. It was also paid by CSIS to former
members of the RCMP over a certain time.
[11]
However,
it appears that the Director of CSIS had decided not to grant such a bonus to
the members of its service. The legality of this decision by CSIS regarding its
employees was affirmed by the Federal Court of Appeal in Gingras, above.
However, the Court of Appeal did not discuss promises made by the director-designate
to former members of the RCMP, since no submissions or evidence was filed in
that regard. The decision only deals with the power of
the Director under subsection 66(2) of the Act.
[12]
On
August 20, 1999, the applicants sent a lengthy demand to the Director of
CSIS in which they claimed reimbursement for what they had lost in 1991 with
respect to salary. Since several of the applicants were retired by then, they
also called for an adjustment to their retirement benefits. This letter remains
unanswered.
[13]
On
May 10, 2000, the applicants filed an action with the Federal Court in
order to claim the amounts that they argued were owed to them. They also
demanded the payment of $5,000 to each of the applicants as damages for trouble
and inconvenience.
[14]
In
defence of that action, the respondent attacked the Court’s jurisdiction by
citing the Public Service Labour Relations Act, S.C. 2003, c. 22,
s. 2, and the Act. It argued that the grievance was the only remedy
open to the applicants.
[15]
In
May and June 2004, the action was heard on merits by Justice Michel Beaudry
(see Persons wishing to adopt the pseudonym of
employee no 1 v. Canada,
[2004] F.C.J. No. 1470, 2004 FC 1221), which allowed the defendant’s position
such that the plaintiffs would have had to proceed with an application for judicial
review, except with respect to their claim for damages. However, the Court
allowed the plaintiffs to file a motion for an extension of time in order to
allow them to file such an application for judicial review. In his decision,
Beaudry J. indicates that the formal demand from August 20, 1999 was
equivalent to a third level grievance and that a failure to respond to it was
equivalent to a rejection of the grievance by the Director of CSIS.
[16]
The
motion for an extension of time was allowed by Beaudry J. in December 2004
Persons wishing to adopt the pseudonym of employee
no 1 v. Canada (December 9, 2004), Ottawa 04-T-46 (F.C.). In his
decision, he indicated:
[translation]
Here, the
defendant is arguing that the formal demand from August 20, 1999 is not a
grievance within the meaning of grievance policy adopted by CSIS. In my
decision from September 7, 2004, at paragraph 17, I have already
determined that this formal demand was a third level grievance. In addition,
the defendant submits that even if this missive were a grievance, it would be
statute barred. I believe that this question should be submitted to the judge
who will hear the application for judicial review for a fair and complete
determination of the rights of the parties to the litigation. It may very well
be that some claims are statute barred, while others are not, but at this
stage, at the risk of repeating myself, I believe that justice should be done
between the parties.
[17]
That
order was not appealed.
[18]
However,
the respondent appealed part of the judgment by Beaudry J., which allowed
the applicants to file an amended action related to their claim for damages and
which stayed that amended action until a final judgment is made in this
application for judicial review. The respondent also appealed the findings of
Beaudry J. in which the formal demand from August 20, 1999, was a
third level grievance and that the failure to reply to it was a negative
decision.
[19]
The
Federal Court of Appeal determined that the debate on the Court’s jurisdiction
and on the appropriate choice of proceedings is moot, in that the parties were
reported to be satisfied that the question of damages would be determined as
part of a new grievance that the Director of CSIS would determine at the third level.
(Person wishing to adopt the pseudonym of employee
no 1 v. Canada, [2005] F.C.J. No. 1039, 2005 FCA
228)
[20]
In
that regard, at paragraph 24 of the decision, Robert Décary J.A. said:
In the
circumstances, it would be both useless and rash to go beyond what is
satisfactory to the parties. This litigation has been going on for too long to
allow the parties to become bogged down in formal discussions which would have
no bearing on the final disposition of the case.
[21]
He
also indicated at paragraph 21 that, as Michel Beaudry J. accepted regarding
the essence of the applicants’ claims, the respondent’s arguments and that the
respondents did not file an appeal, “an application for judicial review
proceeds as if it were in fact a grievance, we cannot go back over this”.
[22]
Lastly,
it should be noted that the applicants have included claims in this application
that deal with matters that were not before the decision-maker in August 1999.
At the hearing, the parties therefore agreed that those questions cannot, and do
not have to be, dealt with by the Court.
[23]
Therefore,
the issue essentially deals with a director’s refusal to grant pay equivalency
after the transfer and the right of the applicants to receive a bilingualism
bonus.
[24]
In
his decision, Robert Décary J.A. had indicated that the litigation had been
going on for too long to allow the parties to become bogged down in formal
discussions. In that context, and although in the reply record, the respondent
still challenged that the letter from August 20, 1999, was a grievance
that was validly filed at the third level, it withdrew that argument at the
hearing, being agreed that such a withdrawal was not a precedent and that it
did not have to be interpreted as such.
ISSUES
[25]
Therefore,
the questions to be determined by the Court are the following:
a) Was
the grievance from August 20, 1999, filed late?
b) Did
the Director of CSIS err by refusing to ratify the principle of pay equivalency
and refusing to pay the bilingualism bonus?
ANALYSIS
[26]
The
Court must proceed with a pragmatic and function analysis to determine the
applicable standard of review for those questions. Therefore, I will consider
the four contextual factors that are found at paragraph 26 of the Supreme
Court of Canada’s decision in Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226.
[27]
As
indicated by Beaudry J. in his decision, following the transfer of
security services in 1984, it is the Director of CSIS under subsection 8(1)
of the Act who has the authority to determine the classification of duties,
salaries and other benefits of CSIS employees. When the applicants filed their
grievance, the provisions of sections 91 and 92 of the former Public
Service Staff Relations Act, R.S.C. 1985 c. P-35 (PSSRA), applied due
to the definition of “grievance” that then appears in section 2 of the
Act. The applicants, however, were not entitled to the arbitration provided by
the PSSRA because the decision dealing with labour conditions had to be made by
the Director of CSIS.
[28]
The
Act does not include a privative clause and does not specify a right to appeal
regarding a decision made at the third level for the applicants’ grievance. In
addition, as the Supreme Court of Canada indicated in Vaughan v. Canada, [2005] 1 S.C.R. 146
at paras 27–29, subsection 96(3) of the PSSRA is not a complete
privative clause that may influence the deference to be granted to the
decision-maker.
[29]
As
I have already said, the purpose of the Act is the administration and
management of CSIS. The particular relevant provisions give the Director the
authority to implement a mechanism for the effective handling of disputes and
grievances that deal with labour conditions. As for sections 91 and 92 of
the PSSRA, they aim to implement an effective mechanism for the settlement of
disputes and grievances in the public service.
[30]
In
this case, this is a private or personal issue for the applicants. However,
some deference appears appropriate to me, since the decision comes from the
third level, that being the Director of CSIS.
[31]
As
for the nature of the questions raised by the grievance, it is quite clear that
the question of the limitation date is a question of law that does not involve
any determination of facts because the relevant facts are not being impugned.
Therefore, this is applying the general principles of labour law and the Director
of CSIS has no more expertise than the Court in that regard. That factor is in
favour of a lower level of deference.
[32]
To
determine the merits of the grievance, the Director also had to review the Act
and interpret the employment contracts of the applicants in 1984 in light of
the documents exchanged at the time. For the applicants, these are mainly
questions of law, while for the respondent, that involves mixed questions of
facts and of law.
[33]
In
this case, the Court does not believe that the qualification of those questions
is essential. In fact, even if we consider that the determination of
commitments made in 1984 involves mixed questions of facts and of law, it is
quite clear that those questions have a strong legal connotation, rather than
factual. The Director has no more expertise than the Court to decide the
arguments raised by the applicants in this case.
[34]
In
light of my analysis of the various contextual factors, I believe that the
applicable standard of review for all those questions is that of correctness.
[35]
For
the reasons that I will detail hereinafter, the Court is satisfied that the Director’s
decision regarding the application for pay equivalency is correct and that the
decision to dismiss the grievance regarding the bilingualism bonus was not.
1) Was the grievance
filed late?
[36]
As
I have already indicated, section 8 of the Act allows the Director of CSIS to
set the procedural rules regarding the behaviour and discipline of its
employees and the presentation of grievances.
[37]
He
in fact adopted Grievance Policy number HUM-502. Although this was replaced on
July 2, 2002, the new policy is identical to the former one regarding the
questions that interest us.
[38]
Under
the terms of section 5.1 of the Policy, an employee must present a
grievance to the designated first level manager no later than 25 working days
following the day on which he or she first becomes aware of the action or
circumstance that is the subject of the grievance.
[39]
The
parties agree that in the particular circumstances of this case, if we consider
the letter from August 20, 1999, as being a grievance, it should have been
submitted within the 25-day deadline set forth in paragraph 5.1 of the Policy.
[40]
In
their grievance, the applicants claimed retroactive damages and attacked
decisions made several years before 1999. They submit that under the principle
of the “continuing grievance”, they can file a grievance despite the expiry of
the applicable mandatory deadline for the initial decision from CSIS to not pay
them a bilingualism bonus or a salary that is equal to the amount paid by the
RCMP.
[41]
The
Court carefully examined all the submitted authorities and found that in fact,
the decisions regarding salary and the bilingualism bonus are decisions that
allow for the application of the continuing grievance principle, since they
have created repetitive effects for those employees. Although they are a
starting point, they repeat either directly or indirectly every time a salary
is paid to the applicants.
[42]
However,
it is clear that even by applying the concept of the continuing grievance, the
applicants cannot claim an adjustment for a period prior to the one that
started 25 working days before the filing of the grievance of August 20,
1999. Their right to file a grievance and to claim amounts due before that date
is definitely barred by statute (Yearwood v. Canada (Attorney General),
[2003] B.C.J. No. 257 aff. by [2004] B.C.J. No. 345 (B.C.C.A.) and Canada
(National Film Board) v. Coallier, [1983] F.C.J. No. 813 (F.C.A.)).
[43]
In
addition, the applicants who retired 25 working days before the date this
letter from August 20, 1999, was received (which are those who are described in
paragraph 82 of the response affidavit from Nina Myrianthis)
are not entitled to invoke the principle of continuing grievance because there
has not been any decision regarding their salaries as CSIS employees since that
date. The salary or wages that were used in the calculation of their pension
plan was definitively set before the 25-day period. Therefore, there was no
longer a CSIS decision that was repeating itself in their regard.
[44]
Although
it is regrettable that through their inaction, certain applicants lost their
rights, the Court cannot remedy that situation.
2) Merits of the
decision
a) Salary
[45]
With
respect to the claim by all unretired employees on the 25th day
before filing the grievance, there is a need to determine the merits of the
negative decision by the Director of CSIS.
[46]
As
I have indicated, the parties do not agree on the documents that the Court can
consider when determining the commitments made to the applicants during their
transfer to CSIS in 1984. However, there is no need to focus on that subject.
The Court is satisfied that his interpretation of the contract remained the
same, that we only considered the circular letter from June 1984 and the
letter from the Commissioner of the RCMP from January 23, 1984, which was
attached to it, or that those two letters were examined in light of the letter
from May 2, 1984 addressed to Mr. Gingras by Mr. Finn,
executive director of the transition group of the Security Intelligence Service
at the Office of the Solicitor General.
[47]
The
other documents to which the applicants referred are dated well after their
transfer to CSIS. Although they indicate how certain members of the
administration interpreted the commitments found in the documents that were
submitted to the applicants before their transfer, that interpretation does not
in any way bind the Court and does not in any way change the scope of the
contract (in that matter, see Hugh B. Beale, Chitty on Contracts,
vol. 1, 29th ed. Toronto, Carswell, 2004 at paras 12-117
to 12-126). The applicants did not argue that their contract had been amended
after 1984. They submit that their grievance is founded on the contract as
signed on that date.
[48]
The
letter dated June 1984, which was partially reproduced at paragraph 4
above, clearly indicates that with respect to compensation and benefits
(p.2), the applicants had to receive at least the equivalent of their situation
at the time. They were also guaranteed that the proposed amendments to the
overall compensation plan (that being compensation and benefits) would only be
adopted after consultation.
[49]
The
letter then very distinctly addresses the question of “salary” and that of “benefits
and entitlements”. The Court recognizes that the usage of various expressions
in the same document is unfortunate. However, it can only accept that the
benefits and entitlements described in the section of the same name and in the
letter dated January 24, 1984, from the Commissioner of the RCMP include
the salary or wages of the applicants, even if that list of benefits and
entitlements includes some benefits for which the description includes the word
“pay” (page 108 of the applicant’s record):
PAY AND ALLOWANCE
1)
Overtime
2)
Acting
Pay
3)
Service
Pay
4)
Shift
Differential
5)
Pay on Discharge By
Decease
6)
Retroactive
Pay
7)
Pay in Lieu of Annual
Leave on Discharge
8)
Plain
Clothes Allowance
9)
Kit
Upkeep Allowance
10) Isolated Posts
Directives Allowance
11) Red Circle-Pay
Protection
[50]
The
terms “acting pay” or “service pay”, for example, despite what we may think at
first, refer in my view to benefits and entitlements resulting from particular
circumstances, like all the other elements in this list. They do not refer to
the amount or base rate paid by the RCMP and determined by grade.
[51]
In
that regard, the Court carefully reviewed the example collective agreement used
in the public service submitted jointly by the parties, as well as the various
definitions found in labour relations dictionaries, such as the Labour
Relations Glossary from the Public Sector Labour Relations Board. Those
documents contribute nothing and do not support the applicants’ position.
[52]
That
being said, the Court is satisfied that in the circular letter from June 1984,
CSIS guaranteed that the applicants would suffer any loss of salary (or pay)
during their transfer. However, that guaranteed minimum salary applied only
until an employee took a position where the salary difference would be
eliminated.
[53]
That
commitment is exactly the same as what we find in the letter from May 2,
1984.
[54]
The
difference between the commitment made regarding “salary” and the one regarding
“benefits and entitlements” is also evident in that letter. In fact, at the
third paragraph, it is indicated that the benefits and entitlements will be
adjusted so that they match future adjustments that RCMP officers would
receive.
[55]
Under
the circumstances, the Court is satisfied that the decision by the Director of
CSIS is, in that regard, correct.
Bilingualism bonuses
[56]
First,
the respondent indicated in his factum that the Court had to consider the fact
that a group grievance, filed on March 27, 1996, to claim payment of this
bonus between [translation] “March 5,
1985, and the date of the grievance and for the future”, had been dismissed by
the Director of CSIS on May 17, 1996. That decision by Mr. Elcock,
Director of CSIS, was founded essentially on the Federal Court of Appeal’s
decision in Gingras, above, and he said:
[translation]
In replying to your grievance, I
remind you that the Federal Court of Appeal in Gingras v. Her Majesty the
Queen in Right of Canada determined that CSIS, as a separate employer, was
not required to disburse any amount of money whatsoever to any non-unionized
employee in the Service, with the exception of Mr. Yvon Gingras. That
decision confirms that the Service’s policy of paying the bilingualism bonus
only to unionized employees working at CSIS is legal and legitimate.
In that context, having
considered all the circumstances surrounding your grievance regarding the
bilingualism bonus, and existing Service policy, I must dismiss your grievance.
[57]
No
application for judicial review was made to challenge the validity of that
decision, according to the respondent, and in that case, the Director was able
to consider the matter to be closed.
[58]
That
argument was not discussed at all by the parties at the hearing. However, the
respondent did not formally waive its citation.
[59]
It
must first be said that the list of applicants (exhibit 13 confidential)
and the list of employees who participated in the group grievance in 1996 are
not identical. The Court identified at least forty-six (46) applicants for whom
the claim was not statute barred and who were not involved in that grievance.
Clearly, that argument does not concern them.
[60]
As
for the applicants who participated in the 1996 grievance, the Court notes that
the respondent did not submit any authority in support of his claim that there
had been a res judicata. In Re Manitoba Food & Commercial Workers
Union, Local 832 and Canada Safeway (1981), 120 D.L.R. (3d) 42, Alfred
Monnin J.A., as he then was, stated on page 48:
I therefore conclude that res
judicata and estoppel have no place in the settlement of labour disputes by
private tribunals or by boards of arbitration. It is a principle to be reserved
for the court rooms.
[61]
On
appeal of that decision, the Supreme Court of Canada “agree[s] substantially
with the reasons of Monnin J.A.” (Re Manitoba Food & Commercial Workers
Union, Local 832 and Canada Safeway, [1981] 2 S.C.R. 180).
[62]
That
position was adopted by the Court of Appeal of New Brunswick in Canadian Red
Cross Society v. United Steelworkers of America, [1991] N.B.J. No. 314 and
more recently in Memorial University of Newfoundland Faculty Assn. v.
Memorial University of Newfoundland, [2001] N.J. No. 179. Therefore, it
appears that the courts agree that a second adjudicator may review a grievance
decision if he or she is of the view that the first decision had deficiencies.
[63]
Naturally,
since the Court does not have the benefit of a written decision from the
Director in this case, it is difficult to determine if he found that he had to
apply the principle of res judicata and, if so, why. The Court must
assume that if he did so, and dismissed this grievance on that basis, it is
because he found that his decision from 1996 was still sound. Since this is
essentially a question of law, the Court must review that finding according to
correctness (see in another context Toronto (City) v. Canadian Union of
Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77). That question
will be determined after having reviewed the merits of the substance of the
applicants’ arguments since, in 1996, the Director does not appear to have
considered the impact of commitments made in 1984.
[64]
On
the merits, the respondent submitted that in Gingras, above, the Federal
Court of Appeal had not considered several relevant documents that were
protected at that time by section 39 of the Evidence Act, R.S.C.
1985, c. C-5. According to the respondent, if the Court considers the
claim of the applicants, it will also need to review that evidence and find
that, in contrast with the Court of Appeal’s decision in Gingras, the
Treasury Board Directive did not apply to the RCMP in 1977 or in 1984.
[65]
The
respondent also argues that the bilingualism bonus was not part of the
commitments made by CSIS with respect to maintaining the benefits received at
the RCMP because that was a new privilege that was granted to RCMP members
after the 1984 transfer.
[66]
With
the exception of questions of jurisdiction and of breaches of the principles of
natural justice or procedural fairness, it is settled law that the Court can
only consider the evidence that was before the decision-maker whose decision is
the subject of the application for review (see for example, Ontario
Association of Architect v. Association of Architectural Technologist of
Ontario, [2003] 1 F.C. 331 at para 30). There is no evidence that the
formerly protected documents, which had been filed as exhibit A of Ms. Myrianthis’s
affidavit, were in the decision-maker’s record in 1999.
[67]
It
must then be remembered that in Gingras, above, the Federal Court of
Appeal found that the bilingualism bonus was a benefit within the meaning of
subsection 66(2) of the Act, and that CSIS had to grant equivalency during
the transfer.
[68]
In
that regard, it is appropriate to note that the decision in Gingras was
statutory in that it did not create a right. It only acknowledged that since
1977, that bonus was a benefit attached to the positions held by the applicants
at the RCMP, even before their 1984 transfer.
[69]
In
my view, by that circular letter from June 1984, CSIS committed itself to
respecting the decision of the Commissioner of the RCMP regarding the benefits
and entitlements that were attached to the positions held by the applicants
within that organization in 1984. Subsection 66(2) of the Act also
requires that the Director respect the Commissioner’s decisions regarding the
entitlements and benefits linked to those positions before the transfer.
[70]
There
is no evidence that since Gingras, above, the Commissioner of the RCMP
has questioned the application of the Treasury Board Directive within his
service, whether for the period from 1977 to 1984 or after. The Director of
CSIS does not have the power to question the appropriateness or validity of
decisions by the Commissioner of the RCMP in that regard.
[71]
It
is not appropriate to review the question being debated before the Federal
Court of Appeal in Gingras, as to the applicability of the Directive to
RCMP members before 1984 without the RCMP being able to participate in the
debate.
[72]
The
exact nature of the bilingualism bonus was not the subject of a debate before
the Court. The parties appear to agree that this bonus is only considered to be
salary or wages for the purposes of certain specific acts, such as the Pensions
Act, R.S.C. 1985, c. P-6.
[73]
However,
after the hearing, the Court noted that in the circular letter from June 1984,
there is reference to the bilingualism bonus paid to employees of the public
service under the heading “Salary” (at page 4).
[74]
Whatever
the case may be, the Court is satisfied that it does not have to dispose of
that question. In fact, whether this is a benefit or pay, the bilingualism
bonus was part of the compensation and benefits attached to the applicants’
positions before 1984. The Director of CSIS could not abolish it in March 1985,
given the specific commitments that bound him and that went beyond what was
specified in subsection 66(2) of the Act. Nothing in Gingras,
above, prevents the applicants (other than Mr. Gingras) from asking for
those commitments to be respected, since that argument was clearly not considered
by the Court of Appeal. As indicated, in his decision on the 1996 grievance,
the Director did not do so either. That is a significant deficiency that
warrants this question being re-reviewed.
[75]
As
for the interest claimed by the applicants, the Court reviewed the additional
submissions that were filed on April 21, 2006. The applicants were not
able to cite any statutory or regulatory provision that provided that interest
is due on the amounts that the Crown must pay to public employees as salary or
benefits. Instead, they relied on section 36 of the Federal Courts Act,
R.S.C. 1985, c. F-7. However, that section is not relevant as part of a
judicial review like this one.
[76]
The
Court accepts the respondent’s arguments (letter dated April 21, 2006) and
it finds that in this case, there was no rule in law that allowed the Director
of CSIS to pay interest on amounts due to the applicants.
[77]
Without
ruling on that question, I note that if the applicants find it to be
appropriate, they will still be able to try and make up that shortfall as part
of their action in damages.
[78]
At
the hearing, the respondent confirmed that he did not insist on the payment of
his costs. In light of the shared success of this application, the Court is of
the view that each of the parties will need to assume its costs.
[79]
Given
the time that has passed, the parties agree that the Court needs to make an
order that gives specific instructions, rather than proceed with a simple
reconsideration. Given that much information is missing in order to make a
definitive judgment on the merits, the Court has determined that the case shall
be sent back to the Director so that he can determine specifically, in
accordance with these reasons, the amount due to each of the applicants for
whom the claim was not statute barred when the grievance was filed.
JUDGMENT
THE COURT ORDERS
that:
1.
The
application is allowed in part.
2.
The
Director’s decision regarding the payment of the bilingualism bonus is set
aside.
3.
The
Director of CSIS will need to determine the amount payable to each of the
applicants for whom the claim was not statute barred, considering the reasons
of this judgment.
“Johanne
Gauthier”
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