Date: 20051128
Docket: T-537-03
Citation: 2005 FC 1604
Toronto, Ontario, November 28, 2005
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
CAROLE GAUDES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present Application, the Applicant argues for a declaration under s.18.1(3)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7 that she has a right to retroactive pay from 1985 to 1998 which she has not received as an employee of the Royal Canadian Mounted Police ("the RCMP"). The Applicant's argument is principally that she has a right to certain retroactive pay based on the effect of a 1975 decision of the Treasury Board of Canada ("the Treasury Board") made pursuant to the then applicable Financial Administration Act, R.S.C. 1970, c. F-10 whereby her pay was determined. For the reasons which follow, I find that no such right exists.
A. Factual background
[2] The Applicant is a civilian member of the RCMP and has been employed as a Forensic Identification Technician in the Forensic Laboratory and Identification Group (the "FLI-FIT group") since 1982. The FLI-FIT group is excluded from collective bargaining. Therefore, by virtue of s.22(1)of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 the Treasury Board is responsible for establishing the pay of the FLI-FIT group:
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Pay and allowances
22. (1) The Treasury Board shall establish the pay and allowances to be paid to members.
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Fixation par le Conseil du Trésor
22. (1) Le Conseil du Trésor établit la solde et les indemnités à verser aux membres de la Gendarmerie.
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[3] Pursuant to s.7(1)(d) of the Financial Administration Act the Treasury Board did determine the pay of the FLI-FIT group:
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Powers of the Treasury Board
7. (1) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 5 and 6,
[...]
(d) determine and regulate the pay to which persons employed in the public service are entitled for services rendered, the hours of work and leave of such persons and any matters related thereto;
[...]
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Pouvoirs du Conseil du Trésor
7. (1) Sous réserve des dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, mais nonobstant quelque autre disposition contenue dans tout texte législatif, le conseil du Trésor peut, dans l'exercice de ses fonctions relatives à la direction du personnel de la fonction publique, notamment ses fonctions en matière de relations entre employeur et employés dans la fonction publique, et sans limiter la généralité des articles 5 et 6,
[...]
(d) déterminer et réglementer les traitements auxquels ont droit les personnes employées dans la fonction publique en retour des services rendus, la durée du travail et les congés de ces personnes ainsi que les questions connexes ;
[...]
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[4] In 1975, the Treasury Board decided that the pay of the FLI-FIT group is to be determined through use of a touch-point methodology in which a comparison is drawn between the "Clerical and Regulatory" (CR) occupational group of the public service and the FLI-FIT group; by this approach the bottom level of the FLI-FIT group (FIT-01) is pay-matched to the top level of the CR group (CR-5), and the four levels within the FLI-FIT group are adjusted accordingly. It was also decided that the rates of pay for the FLI-FIT group would be adjusted in accordance with changes to the CR-5 rate of pay to maintain wage comparability. For 30 years this system of pay determination has been applied, with the result that the Applicant has received the same incremental changes to her pay that have been received by the CR-5 group. As an element of this history, it is noteworthy that voluntary prospective and retroactive equalization payments were made by the Treasury Board in 1990 in recognition of gender discrimination in the federal civil service.
[5] The present claim for retroactive pay arises from the decision of the Canadian Human Rights Tribunal ("the CHRT") in Public Service Alliance of Canada v. Canada (Treasury Board), [1998] C.H.R.D. No. 6; the decision is based on gender discrimination complaints made subsequent to the 1990 voluntary equalization payments. In the CHRT's 1998 decision, six complainant federal civil service occupational groups, including CR-5, received prospective and retroactive compensation based on gender discrimination. The CHRT decision was considered and applied with respect to the FLI-FIT group, with the result that the FLI-FIT group received a prospective pay increase similar to that granted to the CR-5 group, but did not receive retroactive pay similar to that granted to the CR-5 group. A rationale was provided by the Treasury Board Secretariat for this result which is described below.
1. The nature of the CHRT decision
[6] Section 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("the CHRA") provides as follows:
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Equal Wages
11(1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.
[...]
Definition of "wages"
(7) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes
(a) salaries, commissions, vacation pay, dismissal wages and bonuses;
(b) reasonable value for board, rent, housing and lodging;
(c) payments in kind;
(d) employer contributions to pension funds or plans, long-term disability plans and for all forms of health insurance plans; and
(e) any other advantage received directly or indirectly from the individual's employer.
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Disparité salariale discriminatoire
11. (1) Constitue un acte discriminatoire le fait pour l'employeur d'instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes.
[...]
Définition de "salaire"
(7) Pour l'application du présent article, "salaire" s'entend de toute forme de rémunération payable à un individu en contrepartie de son travail et, notamment:
a) des traitements, commissions, indemnités de vacances ou de licenciement et des primes;
b) de la juste valeur des prestations en repas, loyers, logement et hébergement;
c) des rétributions en nature
d) des cotisations de l'employeur aux caisses ou régimes de pension, aux régimes d'assurance contre l'invalidité prolongée et aux régimes d'assurance-maladie de toute nature;
e) des autres avantages reçus directement ou indirectement de l'employeur.
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[7] The jurisdiction of the CHRT to make an order upon a finding of discriminatory practice is found in s.53(2)(c) of the CHRA:
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Complaint Substantiated
(2) If at the conclusion of the inquiry the member of panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
[...]
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
[...]
[Emphasis added]
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Plainte jugée fondée
(2) À l'issue de l'instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l'article 54, ordonner, selon les circonstances, à la personne trouvée coupable d'un acte discriminatoire:
[...]
c) d'indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l'acte;
[...]
[je souligne]
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[8] With respect to jurisdiction to order retroactive compensation pursuant to s.53(2)(c), at paragraph 431 of its decision, the CHRT applies the decision of Justice Hugessen in Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (F.C.A.) [Non-Public Funds] as follows:
The reach of s. 53(2)(c) of the Act was commented upon by Hugessen J.A. in Non-Public Funds, supra, in the context of a Tribunal's authority to make whole a complainant who has suffered discrimination. Mr. Justice Hugessen was critical of the Human Rights Tribunal for its "absurdly minimalistic approach to its remedial powers," (paragraph 20, p. 90), in denying that any retroactive pay adjustment should be made. Mr. Justice Hugessen comments on s. 53(2)(c) in paragraph 20 as follows:
As I read this provision, it is a simple and straightforward authority to order the payment to a victim of lost wages resulting from a discriminatory practice. Such an order will always be backward looking and will result from the answer to the question "what wages was this victim deprived of as a result of the discriminatory practice?" Nothing in the text justifies the view that such an award should be "minimally afforded" or that its starting point should be restricted "to the moment the complaint was filed". A complaint of discrimination necessarily relates to practices which have predated the complaint itself; one can hardly complain of discrimination which has not yet occurred. Of course, the discrimination may be continuing so that the Tribunal will also order remedies for the future, but that fact should not blind us to the obvious need to remedy what has taken place in the past ...
The essential point to be taken from this authority is that a CHRT ordered retroactive payment is an equalization payment of wages owing to an employee as a result of discriminatory pay practice on the part of an employer.
[9] As a result, the relevant features of the CHRT's order read as follows::
Based on the foregoing finding of a breach of s.11 of the Act, the Tribunal ORDERS:
[...]
5. That the effective date for calculation of the retroactive wage adjustment is March 8, 1985.
6. That for each year during the retroactive period, i.e. the period from March 8, 1985 to the date of this decision, equalization payments shall be calculated using the 1987-88 job evaluation data from the JUMI Study and the contemporary wage rates for the applicable fiscal year.
7. That pay equity adjustments of wages for times after the date of this decision shall be folded in and become an integral part of wages.
[...]
2. The Treasury Board Secretariat's rationale
[10] The Treasury Board Secretariat ("the Secretariat") is the administrative arm of the Treasury Board and provides advice and support to its members. The following opinion of the Secretariat, dated September 21, 2000, was sent to the RCMP for distribution to members of the FLI-FIT group as the rationale for the approach taken with respect to the application of the CHRT decision to the FLI-FIT group:
Exclusion of the FLI-FIT and TO groups from the extension of pay equity settlement to certain civilian members of the RCMP
The FLI-FIT group of the RCMP have their pay determined through a touch-point methodology with the CR group in the public service. This touch-point methodology has been in place since 1975. The FIT-01 maximum rate of pay is equated to the CR-05 maximum rate of pay. The rest of the FIT pay rates are then calculated using a set of established relativities between levels and lock-steps.
The TO group used a sampling methodology that consider multiple comparator groups and used a regression formula to determine a rate of pay.
Under this pay policy the RCMP is seeking to extend the provisions of the PSAC pay equity settlement to the employees of the FIT group based on the settlement values received by employees in their touch-point PS group (CR-05).
The Secretariat does not support this proposal on the following grounds:
· Pay comparability is based on a comparison of rates of pay. CR rates of pay were not amended until July 1998. The Secretariat will support the roll-in of the value of the pay equity wage adjustment at the first pay rate revision following the July 98 roll-in on the basis of pay comparability. For the FIT group, this would be January 1, 1999. This position has been consistently applied for separate employers (where a touch-point/sampling methodology is used).
· The settlement payments provided for the retroactive period (1985-1998) are a remedy for wages lost due to gender-based wage discrimination. This remedy applies to members of the six occupational groups who were a party to the complaint. However, the Secretariat supports the extension of the provisions of the settlement, on pay equity grounds, to civilian members whose work is classified using the same standards as the complainant groups. In essence, employees in equivalent CK and CR positions are doing the same work. The work of FLI-FIT group [sic] is adequately different enough from the work of a CR to merit its own classification standard. This is what differentiates the FLI-FIT group from the CK, SY, DA & WPO groups. A parallel relationship between the FLI-FIT and CR does not appear to exist.
· The Pay Equity settlement in the Public Service does not have direct impact on the rates of pay for occupational groups outside of the groups named in the complaint. An employee paid at 85%, 100% or 150% of the CR-05 in the Public Service is not receiving an adjustment in their rates of pay due to the CR pay equity settlement but rather due to the practice of wage comparability for the future.
(Respondent's Record, Vol. 1, p.3)
B. Critical agreements and the issue for determination
[11] The present Amended Notice of Application claims a broad scope of review as follows:
THIS IS AN APPLICATION FOR JUDICIAL REVIEW of the decision or failure of the Treasury Board of Canada (the "Treasury Board") to make a decision to adjust the wages or revise the rates of pay of the Civilian Members in the Forensic Identification Technician classification sub-group of the Forensic Laboratory and Identification group of the RCMP (the "FLI-FIT group"), including the Applicant, in accordance with the wage adjustments and revisions to the rates of pay made to the Public Service Clerical and Regulatory occupation group, level 5 (the "CR-5 group") pursuant to the Order of the Canadian Human Rights Tribunal made July 29, 1998 and the Equal Pay Implementation Agreement dated October 29, 1999 (the "CHRT Orders"), as required by the decisions and directions of the Treasury Board set out in Treasury Board Minutes 714373 and 737055 (the "Wage Adjustment"), and the related actions and/or decisions of the Treasury Board Secretariat (the "Secretariat") failing or refusing to obtain a decision and authorization from the Treasury Board with respect to the Wage Adjustment and purporting to make a decision on behalf of the President of Treasury Board [sic] refusing to make the Wage Adjustment (the "Secretariat Decisions").
[Emphasis added]
(Amended Notice of Application, p.1)
However, in the course of bringing the Application to hearing, certain key questions arising from the Amended Notice of Application have been resolved by agreement, resulting in a substantial narrowing of the scope of the present review.
[12] It is agreed that the Treasury Board made the decision to pay the FLI-FIT group the prospective pay increase paid to the CR-5 group, but it is also agreed that the Treasury Board did not actually make a decision with respect to the FLI-FIT group not receiving the retroactive pay. It is agreed that only the Treasury Board has jurisdiction to determine the pay of the FLI-FIT group, including the retroactive pay under consideration; indeed, it is agreed that the Secretariat does not have the jurisdiction to make such a decision.
[13] Regardless of the apparent void of decision-making within jurisdiction, with respect to the FLI-FIT group and the retroactive pay issue, two things are certain and uncontested: the Secretariat has expressed an uncontradicted rationale for why the FLI-FIT group should not receive the retroactive pay, upon which reliance can be placed in the disposition of the present Application; and the FLI-FIT group did not receive the retroactive pay.
[14] The Applicant, as a member of the FLI-FIT group, takes the position that she has a right to the retroactive pay. With respect to enforcing the right claimed by way of judicial review and application of s.18.1 of the Federal Courts Act, during the course of conduct of the present Application, Counsel for the Applicant agreed not to seek an order of mandamus against the Treasury Board, on the basis of the Respondent's advice that the Treasury Board would abide by any declarations made by the Court with respect to the entitlement of the FLI-FIT group to the retroactive wage adjustment (Applicant's Memorandum of Fact and Law, para. 22).
[15] The Court's jurisdiction to order a declaration is provided in s.18.1(3)(b) of the Federal Courts Act as follows:
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Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
[Emphasis added]
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Pouvoirs de la Cour fédérale
(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut:
(a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable;
(b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
[je souligne]
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In the course of the oral hearing of the present Application, I initially questioned whether the Court has jurisdiction to determine the Application since no "decision, order, or act" had resulted in the FLI-FIT group not receiving the retroactive pay. However, upon reflection, I proposed, and Counsel agreed, that the Court does have jurisdiction to exercise declaratory power with respect to the "proceeding" under review, being the process whereby the FLI-FIT group's pay is determined.
[16] It is not disputed that the circumstances under which a declaration can be given is limited. The requirements for establishing a claim for declaratory relief as stated by Justice Joyal in Dee v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 1158 (F.C.T.D.) at page 5 are as follows:
[...] With respect to any claim in Court for a declaratory judgment, there must first be a justiciable issue to be tried. This is tantamount to saying that a plaintiff must come before a Court for a determination of his legal rights. He cannot, under the cover of meticulous drafting, invite a Court to make declarations of rights which are not legal rights or to lure a Court into making orders which it has no jurisdiction to make.
[...]
On the subject of declaratory rights, the Chief Justice of Nova Scotia in Attorney-General of Nova Scotia et al. v. Bedford Service Commission (1976), 72 D.L.R. (3d) 639, put it this way at page 646:
Declarations may thus be granted to define or declare a legal right of a plaintiff, ... The obverse of that principle is that non-legal matters of morality, politics, the propriety of administrative practices (where not illegal), or the wisdom or fairness of governmental action (where not illegal) cannot be the subject of a declaratory action or indeed of any traditional Court action.
[17] The declaration requested in the present Application is as follows:
The Applicant respectfully requests that the Court grant the following orders:
(a) a declaration that the wages of the FLI-FIT group are to be adjusted in accordance with the wage adjustments received by the CR-5 group of the Public Service as a result of the CHRT Order, including the retroactive wage adjustments for the period March 8, 1985 to July 29, 1998 and interest thereon (the "Retroactive Wage Adjustment");
(b) a declaration that the Treasury Board is required to implement and authorize payment of the Retroactive Wage Adjustment in accordance with its 1975 Order respecting the wages of the FLI-FIT group and the terms of employment of members of the FLI-FIT group.
(Applicant's Memorandum of Fact and Law, para. 54)
In view of the terms of s.18.1(3)(b), I interpret this as a request to declare that it is invalid or unlawful for the FLI-FIT group not to have received the retroactive pay since its members were entitled to it as of right.
[18] Therefore, the question to be answered is: do the members of the FLI-FIT group have a right to the retroactive payment?
C. Arguments and analysis with respect to the claim of a right
[19] The following paragraph from the Applicant's written argument encapsulates the essence of the right claimed:
The Treasury Board is bound by the law and its failure to extend the Retroactive Payments to the FLI-FIT group constitutes a breach of contract and a breach of its statutory duty. Where the government acts contrary to the law or without legal authority, the Court is entitled to grant a declaration as to the legal rights of the FLI-FIT group.
[Emphasis added]
(Applicant's Memorandum of Fact and Law, para. 43)
1. Breach of contract
[20] The Applicant's evidence with respect to the contract issue is as follows:
I have always understood it to be a term of my employment as a Civilian Member in the FLI-FIT sub-group that I would be paid on the basis of wage comparability with the CR-5 group of the Public Service and that I would receive the same adjustments to my rate of pay as were made to the rate of pay of the CR-5 group from time to time.
(Affidavit of Carole Gaudes, May 22, 2003, para. 6)
[21] In my opinion, while the Applicant is right in her understanding with respect to wage comparability, she is mistaken in her understanding that this factor is a "contractual" term of employment. As noted above in paragraph 2, by virtue of s.22(1)of the Royal Canadian Mounted Police Act, the Treasury Board has a responsibility to establish the pay for the FLI-FIT group; the exercise of this responsibility under s.7(1)(d) of the Financial Administration Act is by application of unilateral discretion which, most certainly, does not establish a contractual relationship with the Applicant.
2. Breach of statutory duty
[22] The Applicant strongly advances the argument that the FLI-FIT group is entitled to retroactive pay on the basis of the "pay matching" between the FLI-FIT and CR-5 groups that was established by the 1975 decision of the Treasury Board. Thus, the Applicant argues that, without distinction, all pay adjustments provided to the CR-5 group must be provided to the FLI-FIT group; that is, there is absolutely no difference in nature between the prospective and retroactive wages ordered by the CHRT, and both should have been provided to the FLI-FIT group as pay-matching with the CR-5 group. As a result, the Applicant argues that the distinction offered in the Secretariat's rationale for not granting retroactive pay to the FLI-FIT group is erroneous, and because the FLI-FIT group has not been paid retroactive pay, the Treasury Board is in breach of a statutory duty.
[23] I do not agree with the Applicant's breach of duty argument for two reasons.
[24] First, with respect to the FLI-FIT group, the Treasury Board's statutory duty is to act in accordance with s.22(1) of the Royal Canadian Mounted Police Act; this it did by applying discretion under s.7(1)(d) of the Financial Administration Act resulting in the making of the 1975 decision. As the 1975 decision is an exercise of discretion, the 1975 order itself does not create a statutory duty which gives rise to a claim of breach of statutory duty with respect to subsequent adjustments to, or failure to adjust, the FLI-FIT group's pay, including the retroactive pay which was not paid in the present case.
[25] And second, the argument presented by the Applicant that, without distinction, all pay adjustments provided to the CR-5 group must be provided to the FLI-FIT group is unsupportable. In my opinion, this argument fails to acknowledge the purpose for which the retroactive order was made by the CHRT.
[26] It is not disputed that since 1975, adjustments to the rate of pay of the FLI-FIT group have been made in accordance with adjustments to the rate of pay of the CR-5 group to maintain pay comparability. Indeed, consistent with the opinion supplied by the Secretariat quoted above at paragraph 10, the FLI-FIT group has received the prospective pay increase ordered for the six groups who succeeded in the discrimination complaint because, as quoted in paragraph 9 above, paragraph 7 of the order specifies that "the pay equity adjustment of wages for times after the date of this decision shall be folded in and become an integral part of wages". On this basis I can fully understand why the Secretariat supported, and the Treasury Board determined, that the FLI-FIT group should benefit by the CHRT order, even though there is no suggestion that members of the FLI-FIT group had suffered any discrimination. The prospective pay increase "folded in" for the CR-5 group was considered to result in a rate of pay increase, and as past rate of pay increases provided to the CR-5 group have been pay-matched for the FLI-FIT group, so should this one.
[27] However, with respect to the retroactive equalization payments ordered by the CHRT in favour of the successful complainants, I agree with the Secretariat's rationale, supported by the Respondent, that this payment is to be considered a remedy for wages lost due to gender-based discrimination, and not simply a rate of pay increase. Therefore, even though the members of the CR-5 group benefited by this element of the CHRT's decision, since the members of the FLI-FIT group had not also suffered gender-based discrimination, they have no claim to retroactive wages; that is, pay-matching does not apply in this instance.
D. Conclusion with respect to the claim of a right
[28] For the reasons provided, I find that the members of the FLI-FIT group do not have a right to the retroactive payment. As a result, I find there is no basis upon which to make the declaration requested.
[29] Accordingly, the present Application is dismissed.
E. Costs
[30] During the oral hearing of the present Application, Counsel for the Applicant and Respondent agreed that costs should follow the cause, and costs should be awarded in Column III of Tariff B of the Federal Court Rules. However, Counsel for the Respondent requested that, should the Respondent be successful in the disposition of the present Application, an opportunity be given to negotiate the quantum of costs before it is necessary to produce a Bill of Costs. I agree that, if an agreement can be reached with respect to the payment of costs, the order for costs is met by following the agreement.
ORDER
For the reasons provided, this Application is dismissed.
I award costs to the Respondent according to Column III, Tariff B.
"Douglas R. Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-537-03
STYLE OF CAUSE: CAROLE GAUDES
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: NOVEMBER 15 , 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: NOVEMBER 28, 2005
APPEARANCES BY:
Ms. E. Beth Eva FOR THE APPLICANT
Ms. Anne M. Turley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fillmore Riley LLP,
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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