Date:
20070420
Docket:
A-326-06
Citation: 2007
FCA 152
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
HER
MAJESTY THE QUEEN
Appellant
and
PERSONS
WISHING TO ADOPT THE PSEUDONYMS OF EMPLOYEE NO. 1, EMPLOYEE NO. 2 ET AL.
Respondents
REASONS
FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal from a decision by Madam
Justice Gauthier of the Federal Court dated June 5, 2006 (2006 CF 699),
allowing in part the respondents’ application for judicial review of the
decision of the Director of the Canadian Security Intelligence Service (CSIS)
dismissing their group grievance seeking to have certain undertakings given
when they were hired in 1984 honoured.
[2]
Following an exhaustive analysis, Gauthier J.
determined that some of the 119 respondents, all former members of the Royal Canadian
Mounted Police (RCMP), were entitled to the bilingualism bonus. The appellant
is appealing this part of the decision.
Background
[3]
This proceeding follows this Court’s decision in
Gingras v. Canada (C.A.), [1994] F.C.J. No. 270 (Gingras). In that
decision, the Court held that members of the RCMP as well as members of CSIS who
came from the RCMP were entitled to the bilingualism bonus. Following this
judgment, the bilingualism bonus was paid to members of the RCMP and continues
to be paid to this day.
[4]
With regard to members of CSIS who came from the
RCMP, however, the Court held that the Director of CSIS had the power to terminate
this bonus under the transitional rule found in subsections 66(1) and (2) of the Canadian Security Intelligence Service Act,
S.C. 1984, c. 21 (the Act):
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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.
(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.
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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.
(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.
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[Emphasis added.]
[5]
The Court found in Gingras that the Director
of CSIS had decided on March 5, 1985, to pay the bilingualism bonus to employees
from the RCMP, but only those who were unionized. As for the others, including
Mr. Gingras, they were refused the bonus. The Court of Appeal thus confirmed
that Mr. Gingras, as a former member of the RCMP, was entitled to the payment
of the bonus by CSIS from the time he was hired on July 16, 1984, until March
5, 1985, but not beyond that date (Gingras, at paragraph 61).
[6]
A first group grievance was filed on March 27,
1996, on behalf of a group of non-unionized CSIS employees, claiming parity
with the RCMP employees and seeking to have their right to the bilingualism
bonus recognized. The Director of CSIS (then Mr. Elcock) dismissed the
grievance on May 17, 1996. The brief reasons read as follows:
[translation]
In response to your grievance, I
point out that the Federal Court of Appeal in Gingras v. Her Majesty the
Queen in Right of Canada held that CSIS as a separate employer was not
required to pay any money to any non-unionized employee of the Service, with
the exception of Yvon Gingras. This decision confirms that the Service’s policy
of paying the bilingualism bonus only to unionized employees working for CSIS
is legal and valid.
In this context, having
considered all of the circumstances surrounding your bilingualism bonus
grievance, as well as the Service’s current policy, I must dismiss your
grievance.
[7]
A few years later, on August 20, 1999, the respondents sent the Director of CSIS a formal demand claiming
wage parity with members of the RCMP. Further, the respondents asked that
entitlement to the bilingualism bonus be recognized in their case, just as it was
for the RCMP officers.
[8]
This formal demand went unanswered and, following
numerous interlocutory proceedings, which need not be elaborated on, Mr.
Justice Beaudry of the Federal Court ruled that the formal demand dated August
20, 1999, was to be treated as a third-level grievance and that the failure to
respond to it was equivalent to its dismissal by the Director of CSIS. This
decision was confirmed by the Court of Appeal (Persons Wishing to Adopt the
Pseudonyms of Employee No.1 v. Canada, [2005] F.C.J. No. 1039; 2005 FCA
228).
[9]
So it was that the respondents filed an application
for judicial review of the decision of the Director of CSIS refusing to follow
up on their formal demand dated August 20, 1999. It was this application that
was heard by Gauthier J. and that led to the decision now under appeal.
Decision under appeal
[10]
Gauthier J. first pointed out that in Gingras,
above, the Court of Appeal held that the bilingualism bonus was a benefit
within the meaning of subsection 66(2) of the Act, and that in principle, therefore,
CSIS had to provide equivalent treatment when employees were transferred.
[11]
Since the Director of CSIS had not responded to
the grievance dated August 20, 1999, in Gauthier J.’s opinion it was impossible
to know whether he had dismissed it on the basis of the 1996 decision, or for
other reasons. Gauthier J. therefore undertook a review of the decision on a standard of correctness.
[12]
Applying this standard, Gauthier J. determined
that the Director of CSIS was justified in dismissing the wage parity grievance
(Reasons, at paragraphs 52 to 55). However, he was wrong in refusing to
grant the respondents the bilingualism bonus (Reasons, at paragraphs 67 to
69).
[13]
According to Gauthier J., the representations contained in
a circular letter of June 1984 signed by the Director designate of CSIS,
which were intended to encourage RCMP employees to join CSIS, reflected
undertakings which prevented and continue to prevent the Director from denying
the respondents entitlement to the bilingualism bonus. The respondents therefore
retained entitlement to the bilingualism bonus.
[14]
With regard to the date from which the respondents could
claim an adjustment, Gauthier J., relying on the notion of the continuing
grievance, determined that it was 25 working days before the grievance was
filed on August 20, 1999 (Reasons, at paragraphs 39 to 42). For the respondents
who had retired 25 working days before the date of receipt of the grievance of
August 20, 1999, their recourse was statute-barred (Reasons, at paragraph 43).
[15]
Finally, with regard to the implementation of her decision,
Gauthier J. chose to refer the matter back to the Director to be dealt with on
the basis set out by her (Reasons, at paragraph 79):
[translation]
In view of the
time that has elapsed, the parties agree that it is appropriate for the Court
to make an order giving precise instructions on the settlement of the grievance
instead of proceeding with a mere reconsideration. Since a good deal of the
information needed to render a definitive judgment on the merits is lacking,
the Court has chosen to refer the matter back to the Director for him to make
an exact determination, in accordance with these reasons, of the amount owing
to each of the applicants whose claim was not statute-barred at the time the
grievance was filed.
Alleged errors
[16]
The appellant submits that Gauthier J. carried
out her analysis using the wrong standard of judicial review. According to the
appellant, the appropriate standard was that of reasonableness simpliciter
and, by that standard, the Director of CSIS did not make any error of fact or
law in dismissing the grievance.
[17]
Neither the appellant nor the respondents call into
question the other aspects of Gauthier J.’s decision regarding the starting
point of the respondents’ entitlement to the bilingualism bonus, the
application of the limitation period with regard to certain respondents, and
the terms of the referral of the matter back to the Director.
Analysis and decision
[18]
The appellant’s argument based on the standard of review is
difficult to understand and defend when one considers that the decision of the
Director of CSIS which is being challenged was not accompanied by any reasons.
In these circumstances, Gauthier J. had to carry out her own analysis. Just as
she had to uphold the Director’s decision if the relevant facts, considered under
the applicable law, could have justified that decision, so also she had to
intervene if the opposite was true. In the absence of reasons, Gauthier J.
cannot be accused of showing a lack of deference toward the Director (see in
this regard Iacobucci J.’s analysis in Law Society of New Brunswick v.
Ryan, [2003] 1 S.C.R. 247, where it is indicated that the duty of deference
is to be exercised according to the reasoning used by the decision maker in
making the decision; see also Canadian Airlines International Limited and
Air Canada v. Canadian Human Rights Commission, Canadian Union of Public Employees
(Airline Division) and Public Service Alliance of Canada, [2000] F.C.J. No.
220 (C.A.), at paragraph 7).
[19]
Gauthier J. therefore turned her mind to the
question of whether the Director’s decision dismissing the grievance was
justified according to the facts and the applicable law. The undertakings given
in June 1984 were among the facts that the Director had to consider in his
review of the grievance. As Gauthier J. pointed out, these undertakings were
given with the specific purpose of persuading RCMP employees to leave their
former positions by allaying any fears they may have had about finding
themselves in a less advantageous work environment. Nothing in Gingras, above,
suggests that the Director was not bound to honour these undertakings since no
evidence or submissions had been provided in that regard (Reasons, at paragraph 11).
[20]
Gauthier J. therefore undertook an in-depth
review of the June 1984 circular letter and the letter dated January 24, 1984,
attached thereto. In the part of her decision dealing with wage parity, she
suggests that there is a distinction between the undertakings given in regard
to “salary” (“traitement”) and those relating to certain employee benefits
(Reasons, at page 49). In her opinion, the Director’s power to determine
the employees’ salaries as he did was not affected by those undertakings
(Reasons, at paragraphs 52 to 55). As this aspect of the decision has not
been appealed, I need not rule on its validity.
[21]
With regard to the bilingualism bonus, Gauthier
J. first suggested that it is a “benefit” rather than “salary” (“traitement”).
She must have then noticed, however, that even the circular letter of June 1984
referred to the bilingualism bonus under the heading “salary” (Reasons, at paragraph 73).
It was this observation that led Gauthier J. to abandon the distinction that
she had tried to make between “salary” and a “benefit” and to reach the
following conclusion (Reasons, at paragraph 74):
[translation]
Indeed,
whether it is a benefit or salary, the bilingualism bonus was part of the
compensation and employment benefits associated with the applicants’ positions
prior to 1984. The Director of CSIS could not abolish it in March 1985, in view
of the specific undertakings by which he was bound and which went beyond what
was provided in subsection 66(2) of the Act.
[22]
This finding, which is the basis of the judgment at first
instance granting the respondents entitlement to the bilingualism bonus, is
problematic in two respects. On the one hand, it suggests that the circular letter
of June 1984 could thwart the effect of the Act, which, I point out, vested in
the Director the ultimate power to change the benefits associated with the
positions of persons assigned to CSIS (see, for comparative purposes, Canadian
Museum of Nature v. Bélanger, [1995] F.C.J. No. 1631).
[23]
On the other hand, the circular letter of June 1984 provided
on its very face that the Director could make changes to CSIS employees’
compensation package (Appeal Book, Vol. I, at pages 130 and 131:
[translation]
The Government made a firm
commitment that no RCMP Security Service employee would be without a job or
find his or her future compromised as a result of the creation of the new service.
Moreover, CSIS has an ongoing need for people with the expertise, experience
and integrity that have characterized the Security Service. All of the
current employees of the Security Service will be offered, within CSIS,
positions which, as far as compensation and benefits are concerned, are at
least the equivalent of those they have in their current positions. Any changes
to the compensation package in the future will only be proposed following consultations
with elected employee representatives or the bargaining agent. We also
believe CSIS will offer appealing and interesting careers to those who choose
to become its employees.
[Emphasis
added.]
[24]
There is no doubt that the bilingualism bonus is
a form of compensation or benefit that is included in the compensation package
so that, according to the above excerpt, the Director retained the power to
change the bonus. We note, however, that the right to consultation is no longer
reserved for employees represented by a bargaining agent, but has been extended
to non-unionized employees through their elected representatives.
[25]
In my humble opinion, the trial judge should
have focussed her attention on this undertaking. The respondents as
non-unionized CSIS employees are included in the group of employees that the
future Director undertook to consult. That undertaking had to be honoured, even
though it in no way affects the ultimate decision-making power conferred on the
Director by subsection 66(2). The right to consultation was granted in order to
reassure RCMP employees and to persuade them to join CSIS. Hence, it falls
within the management power conferred on the Director of CSIS by subsection
8(1) of the Act:
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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 human resources
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; and
(b) subject to the regulations,
(i) to
exercise the powers and perform the functions of the Treasury Board relating
to human resources management under the Financial Administration Act,
and
(ii) to
exercise the powers and perform the functions assigned to the Public Service
Commission by or pursuant to the Public Service Employment Act.
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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 des ressources humaines du Service, à l’exception des personnes
affectées au Service ou détachées auprès de lui à titre d’employé :
a) de déterminer leurs conditions d’emploi;
b) sous réserve des
règlements :
(i) d’exercer
les attributions conférées au Conseil du Trésor en vertu de la Loi sur la
gestion des finances publiques en cette matière,
(ii) d’exercer
les attributions conférées à la Commission de la fonction publique sous le
régime de la Loi sur l’emploi dans la fonction publique
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[26]
The appellant attempted to argue that the
consultation undertaking concerned the compensation package, and not any one or
more of its components. In the appellant’s opinion, as long as the overall
monetary value of the compensation did not change, the Director was free to
modify its components, including the bilingualism bonus, without being
obligated to consult (appellant’s memorandum, at paragraphs 134 to 140).
[27]
This interpretation is likely to give rise to
highly complex assessment exercises that make it unrealistic. I believe rather that,
as the words suggest, the term “compensation package” (“rémunération globale”
in the French text) identifies the two components mentioned in the preceding
sentence, namely “compensation” and “benefits”. On its very face, the promise
of consultation applied to compensation as well as benefits. As I mentioned
earlier, there is no doubt that the bilingualism bonus is embraced by these elements
and is part of the compensation package.
[28]
The trial judge therefore had to consider
whether any of the Director’s decisions refusing the respondents the
bilingualism bonus had been preceded by the consultation that the Director had
undertaken to hold. If so, she had to dismiss the application for judicial
review. If not, she had to allow the application in accordance with the terms
that she determined.
[29]
It is not necessary to refer the matter back to
the Federal Court to answer this question since this Court is in just as good a
position to respond to do so. The decision dated March 5, 1985, granting only
unionized employees entitlement to the bilingualism bonus could not have been
preceded by the required consultation since, at the time, the parties were
unaware of the existence of this right. The same applies to the decision of May
17, 1996, insofar as it denied the respondents entitlement to the bonus on the
grounds that only unionized employees were entitled thereto. Finally, it is
unlikely that the third decision satisfies this requirement since it is the
result of the Director’s refusal to respond to the respondents’ grievance.
[30]
I would add that the appellant had the burden of
establishing that the consultation took place. On that point, the evidence
shows that there is a consultation process between the non-unionized employees
association and the Directors’ delegate and that annual meetings take place to
discuss work conditions, cost of living increases, etc. (Appeal Book, Vol. III,
at pages 540 and 541). However, there is nothing in the evidence to suggest
that any of the decisions relating to the bilingualism bonus were preceded by
the consultation that the Director had undertaken to hold.
[31]
Since the Director had to hold this consultation
with the elected representatives of the non-unionized employees, I find that
Gauthier J. properly allowed in part the application for judicial review.
[32]
I would dismiss the appeal with costs.
“Marc
Noël”
“I concur.
Alice Desjardins J.A.”
“I concur.
Gilles Létourneau J.A.”
Certified true translation
Erich Klein
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