Date: 20040907
Docket: T-837-00
Citation: 2004 FC 1221
Ottawa, Ontario, the 7th day of September 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
PERSONS WISHING TO USE PSEUDONYMS
OF EMPLOYEE No. 1, EMPLOYEE No. 2 ET AL.
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] In the action at bar, the 119 plaintiffs are or were employed by the Canadian Security Intelligence Service (CSIS) since that agency was created in 1984 and had formerly been employed by the Royal Canadian Mounted Police (RCMP) security services. In the plaintiffs' submission, they state that the offer of employment by CSIS was accompanied by firm commitments by CSIS that the wages and fringe benefits received by the plaintiffs at the RCMP would be maintained and in future they would enjoy parity with their former colleagues, so long as they were employed by CSIS. For her part, the defendant alleged that her commitment only applied at the time of the transfer to CSIS, not for the future. Future working conditions were a matter for the CSIS Director's decision-making power.
[2] The plaintiffs brought an action here, but according to the defendant they should actually have filed a grievance. If they had received an unfavourable decision at the final level, they could then have challenged it by an application for judicial review.
POINTS AT ISSUE
[3] At this stage the only real question is the following:
Did the plaintiffs use the right procedural vehicle? Should they have proceeded by judicial review pursuant to section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, rather than bringing an action under section 17 of that Act?
[4] For the reasons that follow, the plaintiffs should have proceeded by way of judicial review.
PLAINTIFFS' CLAIMS
[5] The plaintiffs claimed that the Court should do the following:
(a) order the defendant to pay the group of plaintiffs the monies claimed by each of them, a total sum of $2,684,358 for all the plaintiffs: the claim of each plaintiff appears in Appendix A of the statement of claim, and the amounts will be added to until the final decision, with interest from the date of the notification;
(b) make an order requiring the defendant to maintain the same overall remuneration for each of the plaintiffs as their former RCMP colleagues so long as the plaintiffs are employed by CSIS, for any present or future period of employment of each of the plaintiffs still employed by CSIS;
(c) make an order requiring the defendant to make an upward adjustment to the pension income of plaintiffs now retired, in accordance with the pension income received by their former RCMP colleagues, and maintain such adjustments as long as the plaintiffs or their beneficiaries are entitled to receive such pension income;
(d) order the defendant to pay each plaintiff the sum of $5,000 as damages for hardship and inconvenience;
(e) order the defendant to pay the plaintiffs the expenses they have incurred in the case at bar on a solicitor-client basis, as well as costs;
(f) order the defendant to pay interest for the period before and after judgment;
(g) pursuant to Rule 153 of the Federal Court Rules, 1998, SOR/98-106, order the question of assessment of individual damages suffered by each of the plaintiffs to be referred to a judge or referee.
FACTUAL BACKGROUND
[6] The 119 plaintiffs are or were employed by CSIS since that agency was created in 1984. An order made on April 17, 2000, pursuant to a confidentiality motion allowed the plaintiffs not to disclose their names or addresses and identify themselves only as persons wishing to use the pseudonyms Employee No. 1, Employee No. 2 et al. The plaintiffs were all employed by the RCMP security services before they began working for CSIS in 1984. At the defendant's request, the plaintiffs all agreed to be transferred from the RCMP to CSIS.
[7] In the plaintiffs' submission, they state that the offer of employment by CSIS was accompanied by firm commitments from the then CSIS Director that they would have wage parity in the future and the other benefits their former RCMP colleagues received. It was on the basis of these commitments that they agreed to relinquish their employment with the RCMP and accept the offers made to them by CSIS.
[8] On February 23, 1998, a CSIS employee asked that his remuneration and fringe benefits be rectified. On March 24 of that year the CSIS Deputy Director replied that his salary was consistent with the commitment made at the time CSIS was created. He added the following:
[translation]
However, I should like to point out that there is nothing in the legislation or the documents issued to former RCMP members guaranteeing that equivalence with the RCMP ranks would be maintained. Accordingly, I regret to have to inform you that consideration of this matter is now concluded.
The employee in question joined others and through their counsel sent the CSIS Director, Ward Elcock, a notification dated August 20, 1999. He did not reply.
[9] In substance, therefore, the plaintiffs considered that CSIS had decided to cease observing their contract of employment by electing no longer to give them parity in wages and other fringe benefits with their former RCMP colleagues. They considered that CSIS had made commitments to them in 1984 and asked that the total differences in remuneration, which included pensions, be made up retroactive to the date the differences occurred, thus maintaining parity with their former colleagues.
[10] The defendant relied on the premise that the CSIS Director enjoyed the powers necessary to manage CSIS and his new employees based on immediate and future requirements, and that the nature of the work done by some of the CSIS employees was different from that which existed when they were employees of the RCMP. The defendant stated she had undertaken to offer all RCMP security service employees positions in CSIS which in terms of salary and fringe benefits would be at least equivalent to what they were receiving at the RCMP at the time they were transferred to CSIS, not at all times thereafter.
ANALYSIS
[11] The crucial question in the case at bar is whether the plaintiffs can proceed by action pursuant to section 17 of the Federal Courts Act or should have proceeded by way of judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act.
[12] First, we need to have some idea of the relevant legislation. Following the transfer of the RCMP security services to CSIS in 1984 it was the CSIS Director who, under subsection 8(1) of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (the CSIS Act), was vested with the powers of determining the classification of duties, wages and other fringe benefits of CSIS employees. Subsection 8(1) provided the following:
| 8(1) Notwithstanding the Financial Administration Act and the Public Service Employment Act, the Director has exclusive authority to appoint employees and, in relation to the personnel management of employees, other than persons attached or seconded to the Service as employees,
(a) to provide for the terms and conditions of their employment . . . (My emphasis.)
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8(1) Par dérogation à la Loi sur la gestion des finances publiques et à la Loi sur l'emploi dans la fonction publique, le directeur a le pouvoir exclusif de nommer les employés et, en matière de gestion du personnel du Service, à l'exception des personnes affectées au Service ou détachées auprès de lui à titre d'employé :
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[13] In order to challenge a personnel management decision made or omitted by the plaintiffs' employer, the plaintiffs must use the administrative procedure laid down for the purpose. The plaintiffs must file a grievance pursuant to the grievance policy (the policy) established by the CSIS Director. This is what appears from reading together the definitions of "grievance" and "employee" contained in subsection 2(1) of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA), the right to file a grievance provided for in subsection 91(1) of the PSSRA and the CSIS Director's right to provide for the grievance procedure applicable at CSIS, mentioned in subsection 8(2) of the CSIS Act. Those provisions respectively provide the following:
| 2.(1) "grievance" means a complaint in writing presented in accordance with this Act by an employee on his own behalf or on behalf of the employee and one or more other employees, except that
(a) for the purposes of any of the provisions of this Act respecting grievances, a reference to an "employee" includes a person who would be an employee but for the fact that the person is a person described in paragraph (f) or (j) of the definition "employee",
. . . . .
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2.(1) « grief » Plainte écrite déposée conformément à la présente loi par un fonctionnaire, soit pour son propre compte, soit pour son compte et celui de un ou plusieurs autres fonctionnaires. Les dispositions de la présente loi relatives aux griefs s'appliquent par ailleurs :
a) aux personnes visées aux alinéas f) ou j) de la définition de « fonctionnaire » ;
. . . . .
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| 2.(1) "employee" means a person employed in the Public Service, other than
. . . . .
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2.(1) « fonctionnaire » Personne employée dans la fonction publique, même si elle a cessé d'y travailler par suite d'une grève ou par suite d'un licenciement contraire à la présente loi ou à une autre loi fédérale, mais à l'exclusion des personnes :
. . . . .
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| (f) a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature,
. . . . .
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f) employées par le Service canadien du renseignement de sécurité et n'exerçant pas des fonctions de commis ou de secrétaire;
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| 91. (1) Where any employee feels aggrieved in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act
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91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé :
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| (a) by the interpretation or application, in respect of the employee, of
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a) par l'interprétation ou l'application à son égard :
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| (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
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(i) soit d'une disposition législative, d'un règlement -- administratif ou autre --, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
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| (ii) a provision of a collective agreement or an arbitral award, or
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(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
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| (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
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b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
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| 8.(2) Notwithstanding the Public Service Staff Relations Act but subject to subsection (3) and the regulations, the Director may establish procedures respecting the conduct and discipline of, and the presentation, consideration and adjudication of grievances in relation to employees, other than persons attached or seconded to the Service as employees. (My emphasis.)
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8.(2) Par dérogation à la Loi sur les relations de travail dans la fonction publique mais sous réserve du paragraphe (3) et des règlements, le directeur peut établir des règles de procédure concernant la conduite et la discipline des employés, à l'exception des personnes affectées au Service ou détachées auprès de lui à titre d'employé, la présentation par les employés de leurs griefs, l'étude de ces griefs et leur renvoi à l'arbitrage. (Je souligne.)
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[14] It is clear that in the case at bar the plaintiffs, after exhausting all the levels of the grievance procedure, are not entitled to adjudication, since a decision on employment conditions is not among the decisions which may be referred to adjudication under section 92 of the PSSRA:
| 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) . . .
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92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
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| a) . . .(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
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b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
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| (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. (My emphasis.)
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c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire. (Je souligne.)
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[15] However, once the grievance remedies have been exhausted, the plaintiffs may file an application for judicial review in the Federal Court pursuant to sections 18 and 18.1 of the Federal Courts Act, despite subsection 96(3) of the PSSRA:
| 96(3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
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96(3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché.
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Despite the existence of such a privative clause, a decision by an administrative tribunal may be reviewed by a court. This applies here to the presumably negative decision by the CSIS Director not to act on the notification requesting parity in wages and other benefits for the plaintiffs (Vaughan v. Canada, 2003 FCA 76, [2003] 3 F.C. 645 (C.A.), paragraphs 136 and 146).
[16] At this point it is worth referring to the Federal Court of Appeal's judgment in Tremblay v. Canada, 2004 FCA 172, [2004] F.C.J. No. 787 (F.C.A.) (QL), which very clearly explains the distinction between an action and a judicial review in terms of the nature of the questions and the relief sought. When there is a challenge to a decision of a federal board, commission or other tribunal, such as the decision by the CSIS Director not to give the plaintiffs working conditions identical to those of RCMP employees, the plaintiffs must begin by having that decision invalidated on a judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act. As the Federal Court of Appeal pointed out at paragraph 28 of the judgment, a decision of a federal board, commission or other tribunal cannot be challenged by way of an action filed pursuant to section 17 of the Federal Courts Act:
Damages cannot be claimed in an application for judicial review because they are not contemplated by subsection 18.1(3) of the Act . . . The damages can only be claimed through an action, and only after the decision of the federal board, commission or other tribunal has been set aside. Section 17 of the Act is the appropriate remedy in this case.
[17] Let us now apply these principles to the facts of the case at bar. The Policy (Exhibit P-3) established by the CSIS Director provides for three grievance levels, the final level to be used when an employee who is not satisfied with the Deputy Director's decision files a grievance in writing with the CSIS Director (section 5.5 of the Policy). According to section 5.6 of the Policy, the Director must give a reply in writing within 30 working days of the submission of the grievance. In a letter dated March 24, 1998, to a CSIS employee in response to his letter of February 23, the CSIS Deputy Director dismissed the request for rectification of remuneration and fringe benefits. Through their counsel the 119 employees sent a notification (which I regard as a third-level grievance) to the CSIS Director, Ward Elcock, on August 20, 1999. The Director did not reply to that letter. I infer from the fact that the Director did not reply to the notification of August 20, 1999, that he made a negative decision by which he denied the parity requested. That was the decision taken by a "federal board, commission or other tribunal" within the meaning of sections 2 and 18 of the Federal Courts Act.
[18] The Court allowed the parties to make further submissions regarding its questions on: (1) the Court's residual jurisdiction to rule on the application for $5,000 damages claimed by each of the 119 plaintiffs, and (2) the advisability of allowing the plaintiffs to make an application for an extension of time to file an application for judicial review against the presumably negative decision of the CSIS Director on granting parity in wages and benefits to the plaintiffs.
[19] Of the plaintiffs' nine claims only one, the fifth, [translation] "order the defendant to pay each plaintiff the sum of $5,000 as damages for hardship and inconvenience", does not fall within the scope of an application for judicial review. The other claims result from the nullity of the allegedly negative decision by the CSIS Director. The sum of $5,000 claimed may be decided on after the decision is quashed (Tremblay, supra, paragraph 14).
[20] Counsel for the defendant argued that this Court does not even have jurisdiction over the question of damages (Johnson-Paquette v. Canada, [1998] F.C.J. No. 1741 (T.D.) (QL); Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (F.C.A.) (QL); Vaughan, supra; Bédirian v. Canada (Attorney General), 2004 FC 566, [2004] F.C.J. No. 683 (T.D.) (QL); Weber v. Ontario Hydro, [1995] 2 S.C.R. 929). He argued that Johnson-Paquette and Bédirian entirely divested the Federal Court of jurisdiction to hear an action pursuant to section 17 of the Federal Courts Act as, he said, only decisions by grievance officers made pursuant to section 91 of the PSSRA are open to judicial review. Accordingly, the plaintiffs should have claimed the $5,000 damages by grievances.
[21] Further, he alleged that Johnson-Paquette and Tremblay are inconsistent with each other. In his submission, there is a complete system of redress set out in the PSSRA, which prevents the plaintiffs from making use of section 17 of the Federal Courts Act.
[22] Johnson-Paquette was considered by the Court of Appeal in Vaughan, supra. The latter held that the Federal Court had no jurisdiction on account of clear legislative provisions, even if there was no recourse to an independent adjudicator (paragraph 25) as there is here. It will be recalled that the third-level decision in the case at bar is final and cannot be the subject of an independent adjudication under section 92(1) of the PSSRA.
[23] On May 18, 2004, the Supreme Court of Canada took Vaughan, supra, under advisement. This means that the state of the law could be modified.
[24] When the case at bar was argued in May 2004, the Federal Court of Appeal judgment in Tremblay, supra, had just been rendered (April 30, 2004). Counsel for the plaintiffs had drawn the Court's attention to the following cases: Gilmour v. Canada, [2000] F.C.J. 1880 (T.D.) (QL); Cleroux v. Canada (Attorney General), [2001] F.C.J. No. 586 (T.D.) (QL); Sweet v. Canada, [1999] F.C.J. No. 1539 (F.C.A.) (QL) and Zarzour v. Canada, [2000] F.C.J. No. 2070 (F.C.A.) (QL). In view of Tremblay, counsel asked the Court to authorize the plaintiffs to file a motion for an extension of time so they could file an application for judicial review, and in the meantime to stay their action for damages somewhat as the Court of Appeal did in Tremblay.
[25] I think this request is entirely reasonable, as the case law has evolved since the proceedings at bar began. There are two reasons that prompt the Court to stay the plaintiffs' action for damages. The first is the Federal Court of Appeal's recent judgment in Tremblay, supra. The second has to do with the evolution of the law in such matters, which could be modified by the Supreme Court of Canada after arguments are heard in Vaughan, supra.
[26] Following the directions given by the Federal Court of Appeal in Tremblay, the plaintiffs must file and serve an amended action within 30 days of receipt of this judgment. That action shall contain the following conclusion: [translation] "order the defendant to pay each plaintiff the sum of $5,000 as damages for hardship and inconvenience, with costs".
[27] The action amended in this way will be stayed so long as the application for judicial review, described below, has not been resolved by a final judgment. Within 30 days of receipt of this judgment, the plaintiffs may file an application for an extension of time pursuant to subsection 18.1(2) of the Federal Courts Act. If authorized to do so, they may file an application for judicial review from the decision of the federal board refusing to grant them parity in wages and other benefits with their former RCMP colleagues.
[28] However, the amended action will be dismissed without costs, without any other proceedings or formality being necessary, in any of the following situations:
(a) if the application for an extension of time is not filed within the specified deadline;
(b) if the application for an extension of time which the plaintiffs may file pursuant to subsection 18.1(2) of the Federal Courts Act is dismissed; or
(c) if the application for an extension of time which the plaintiffs may file pursuant to subsection 18.1(2) of the Federal Courts Act is allowed but the application for judicial review is dismissed by a final judgment.
ORDER
THE COURT ORDERS that:
1. The plaintiffs should have proceeded by way of judicial review. However, the Court authorizes the plaintiffs to file and serve an amended action within 30 days of receipt of this order. The amended action shall only contain the following conclusion: [translation] "order the defendant to pay each plaintiff the sum of $5,000 as damages for hardship and inconvenience, with costs".
2. The action amended in this way will be stayed so long as the application for judicial review, described below, has not been resolved by a final judgment. Within 30 days of receipt of this judgment, the plaintiffs may file an application for an extension of time pursuant to subsection 18.1(2) of the Federal Courts Act. If authorized to do so, they may file an application for judicial review against the decision of the federal board which refused to grant them parity in wages and other benefits with their former RCMP colleagues.
3. However, the amended action will be dismissed without costs, without any other proceedings or formality being necessary, in any of the following situations:
(a) if the application for an extension of time is not filed within the specified deadline;
(b) if the application for an extension of time which the plaintiffs may file pursuant to subsection 18.1(2) of the Federal Courts Act is dismissed; or
(c) if the application for an extension of time which the plaintiffs may file pursuant to subsection 18.1(2) of the Federal Courts Act is allowed but the application for judicial review is dismissed by a final judgment.
4. Without costs.
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"Michel Beaudry"
Judge
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Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-837-00
STYLE OF CAUSE: PERSONS WISHING TO USE THE PSEUDONYMS OF EMPLOYEE No. 1, EMPLOYEE No. 2 ET AL.
and
HER MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Quebec
DATES OF HEARING: May 4 and 5, 2004
June 1, 2004 (teleconferencing call)
June 2 and 7, 2004
June 22, 2004 (video conferencing call)
REASONS FOR ORDER AND ORDER BY: BEAUDRY J.
DATE OF REASONS AND ORDER: September 3, 2004
APPEARANCES:
Jacques Béland FOR THE PLAINTIFFS
Raymond Piché FOR THE DEFENDANT
SOLICITORS OF RECORD:
Béland, Lacoursière FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
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