Date: 20130426
Docket: A-268-11
Citation: 2012 FCA 112
CORAM: NADON
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
ROBERT MEREDITH and BRIAN ROACH
(representing all members of the
Royal Canadian Mounted Police)
Respondents
REASONS FOR JUDGMENT
Table
of Contents (by paragraph numbers)
Overview 1-10
The Issues on
Appeal 11
The Facts 12-34
The Decision of
the Federal Court 35-42
The Applicable
Legislation 43-48
Consideration of
the Issues
i.
What is the proper scope of this appeal? 49-59
ii. What is the applicable
standard of review to be applied
to the decision under appeal? 60
iii.
Did the Judge err by reviewing the constitutionality of the
Decision and the ERA together,
rather than conducting separate
contextual analyses? 61-67
iv. What was the
relationship between the Decision and the ERA? 68-69
v.
Did the ERA violate the respondents’ right of association guaranteed
by section 2(d) of the
Charter?
(a) Applicable
legal principles 70
B.C.
Health Services 71-72
Fraser 73-74
(b) Important
contextual factors 75
The
nature of RCMP members’ associational activity 76-82
The
purpose of the ERA and its effect upon RCMP members 83-85
(c) Application
of legal principles 86-100
vi.
Section 1 of the Charter 101
Conclusion
102-103
DAWSON J.A.
Overview
[1]
On
June 26, 2008, the Treasury Board announced pay increases for members of the
Royal Canadian Mounted Police (RCMP) for the years 2008 to 2010 (inclusive).
Included were increments in respect of economic increases and market
adjustments as described in more detail later in these reasons.
[2]
Commencing
in August 2007, and reaching a peak in late 2008 and early 2009, the world
experienced a massive financial crisis that led to the most serious global
recession since the Great Depression.
[3]
In
response, in October 2008 the Treasury Board Secretariat recommended a number
of options to the Government of Canada. One recommended option was that the
Government impose limits on wage increases to be given to federal government
employees. The Government accepted this recommendation. It instructed its
negotiators to negotiate collective bargaining agreements with federal
government employees within the proposed limits and further instructed that
legislation be prepared that would apply when wage increases within the
proposed limits were not achieved by collective agreement.
[4]
On
December 11, 2008, the Treasury Board approved a modification to the previously
approved RCMP pay package. The modification reduced the previously approved
economic increases from 2% to 1.5% for 2009 and 2010, and cancelled the 1.5%
market adjustment for 2009. Any salary increase for 2011 would be limited to
1.5%.
[5]
In
response, the respondents commenced a representative proceeding in the Federal
Court in which they, representing all members of the RCMP, sought relief
quashing the December 11, 2008 decision of the Treasury Board (Decision) and
declaring the Decision to violate section 2(d) of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11
(Charter).
[6]
The
Budget Implementation Act, 2009 received Royal Assent on March
12, 2009. Section 393 of that Act enacted the Expenditure Restraint Act,
S.C. 2009, c. 2, s. 393 (ERA). Briefly stated, as relevant to the RCMP, the ERA
legislated the limits on RCMP wage increases previously implemented by the
Treasury Board in the Decision.
[7]
After
the enactment of the ERA, the respondents sought leave to amend their notice of
application to put in issue the ERA. Leave was granted, and the application was
amended to place in issue not only the Decision, but also the ERA “as it
relates to Treasury Board’s decision.” The respondents did not amend their
prayer for relief to seek any remedy in respect of the ERA.
[8]
In
reasons cited as 2011 FC 735, 392 F.T.R. 25, a Judge of the Federal Court
allowed the application for judicial review, and declared the Decision to be
contrary to section 2(d) of the Charter. In the Judge’s view, the
violation of section 2(d) was not saved by section 1 of the Charter. In
her reasons, at paragraph 148, the Judge also stated that sections 16, 35, 38,
43, 46 and 49 of the ERA violate section 2(d) of the Charter, and that
such violation was not saved by section 1. Notwithstanding this statement, in
her original judgment the Judge declined to grant any remedy in respect of the
ERA. She reiterated this position on a subsequent motion for reconsideration
brought by the Attorney General pursuant to Rule 397 of the Federal Courts
Rules, SOR/98-106.
[9]
As
will be explained below, this has led to a dispute between the parties about
the proper scope of the appeal to this Court from the judgment of the Federal
Court. It is the position of the appellant Attorney General that the ERA
remains in full force and effect, and that its constitutionality is not at
issue in this appeal. This is said to be because the judgment under appeal
grants no relief in respect of the ERA. The respondents counter that the ERA
does not remain in full force and effect because section 52 of the Constitution
Act, 1982 provides that laws that are inconsistent with the Constitution
are “to the extent of the inconsistency, of no force or effect.” In the respondents’
submission, the Judge ruled at paragraph 148 of her reasons that sections 16,
35, 38, 43, 46 and 49 of the ERA violate section 2(d) of the Charter.
[10]
For
the reasons that follow, I have concluded that the constitutionality of the
impugned provisions of the ERA, as they affect the respondents, was in issue in
the Federal Court and on this appeal. I have further concluded that the Judge
erred by conflating the Decision and the ERA. At law she was required to
conduct separate contextual analyses of the validity of each. Finally, I have
concluded that the ERA did not violate the respondents’ right of association,
and that the ERA rendered the Decision moot. It follows from these conclusions
that I would allow the appeal and dismiss the application for judicial review
with costs as stated more specifically at paragraph 103 below.
The Issues on
Appeal
[11]
On
this appeal from the judgment of the Federal Court the issues to be determined
are:
i.
What
is the proper scope of the appeal?
ii.
What
is the applicable standard of review to be applied to the decision under appeal?
iii.
Did
the Judge err by reviewing the constitutionality of the Decision and the ERA
together, rather than conducting separate contextual analyses?
iv.
What
was the relationship between the Decision and the ERA?
v.
Did
the ERA violate the respondents’ right of association guaranteed by section 2(d)
of the Charter?
vi.
If
so, is any violation saved by section 1 of the Charter?
The Facts
[12]
The
facts are well set out in the decision of the Federal Court. The following review
of the facts establishes the context in which the issues now before the Court
arise.
[13]
The
Public Service Labour Relations Act, S.C. 2003, c. 22 excludes members
of the RCMP from its application (subsection 2(1)). Instead, pay and allowances
for members are established by the Treasury Board without any collective
bargaining process.
[14]
The
Staff Relations Representatives Program (SRRP) is the formal mechanism by which
members of the RCMP advance their collective goals. The SRRP was established in
1988, pursuant to section 96 of the RCMP Regulations, for the purpose of
representing the interests of all members with respect to staff relations
matters. Staff Relations Representatives make submissions to the Commissioner
of the RCMP concerning pay and benefits of members through the Pay Council, as discussed
below. Both respondents, Robert Meredith and Brian Roach, are members of the
National Executive of the SRRP.
[15]
Prior
to the establishment of the Pay Council, the Commissioner would from time to
time ask the Treasury Board for a pay increase for members of the RCMP.
[16]
In
1996, the then Commissioner of the RCMP created the RCMP Pay Council to deal
with discontent with the process for determining pay and allowances for members
of the RCMP. The Pay Council is comprised of five members: two Staff
Representatives, two RCMP management representatives and an impartial
chairperson. The two Staff Representatives are the Chair of the SRRP Pay and
Benefits Committee and an external compensation expert appointed by the Commissioner
on the advice of the SRRP. Aside from the Chair of the SRRP Pay and Benefits
Committee, the Commissioner appoints all members of the Pay Council.
[17]
The
Pay Council makes recommendations to the Commissioner concerning the pay,
compensation, and other working conditions of members of the RCMP and certain
civilian members. It operates on the basis of consensus and collaboration. Its
members work together to develop an appropriate compensation package and submit
their recommendation to the Commissioner.
[18]
The
Commissioner has discretion to accept or reject the recommendation of the Pay
Council. If the Commissioner accepts the recommendation, he forwards it to the
Minister responsible for the RCMP, who in turn may submit it to the Treasury
Board. The Treasury Board does not have to accept the Commissioner’s
recommendation. Section 22 of the Royal Canadian Mounted Police Act, R.S.C.
1985, c. R-10 authorizes the Treasury Board to establish the pay and allowances
paid to members of the RCMP.
[19]
There
are no direct negotiations between either the Pay Council or the SRRP and the
Treasury Board. Neither is there any collective agreement, or any other
agreement, between the Pay Council or the SRRP on the one hand and the Treasury
Board on the other hand. Treasury Board decisions are communicated by the
Treasury Board Secretariat to the deputy head of an institution for
implementation. The communication is generally by way of a letter.
[20]
As
explained above, the Treasury Board initially announced RCMP pay increases on June 26,
2008, which provided for the following pay increases for the years 2008 – 2010
(inclusive):
|
Year
|
Economic
Increase
|
Market
Adjustment
|
Total Increase
|
|
2008
|
2%
|
1.32%
|
3.32%
|
|
2009
|
2%
|
1.5%
|
3.5%
|
|
2010
|
2%
|
0%
|
2%
|
[21]
At
the same time, the Treasury Board agreed to double service pay and provide a
1.5% increase in the Field Trainer Allowance. Service pay is a lump sum paid
annually to members based upon their years of service. This pay package was in
line with the recommendation of the Pay Council.
[22]
After
the June 2008 announcement, the Canadian economy was threatened by the rapidly
deteriorating global economic situation. In October 2008, the Treasury Board
Secretariat proposed to the Government three possibilities to reduce government
spending:
1.
Impose
a staffing freeze on new hiring;
2.
Suspend
promotions and upward movement within pay brackets; or
3.
Freeze
or limit salary increases.
[23]
The
Government accepted the recommendation that employee salary increases be
limited.
[24]
On
November 17, 2008, the Commissioner was informed by the Treasury Board that members
would not receive the second 1.5% market adjustment that was due to be paid on
January 1, 2009, and that thereafter increases for the 2009, 2010 and 2011
years would be limited to 1.5%. No change was made to the previously announced
increases to service pay and the Field Trainer Allowance. The Secretary of the
Treasury Board recommended that the Commissioner inform and work with the Pay
Council to determine how this development could be conveyed to the members. The
Commissioner did not accept this recommendation for reasons that are not
explained in the record.
[25]
In
the result, there were no negotiations or discussions with the RCMP or its
members about these changes.
[26]
On
November 27, 2008, the Minister of Finance issued an Economic and Fiscal
Statement (Statement) that announced publicly the specific wage increase limits
that had previously been communicated to the Commissioner.
[27]
In
the meantime, the Chair of the SRRP Pay and Benefits Committee had contacted
the Deputy Commissioner to find out if the RCMP wage increase was to be
limited. On November 28, 2008, notwithstanding the meeting of November 17,
2008, the Commissioner issued a bulletin indicating that he did not know if the
RCMP would be affected by the wage increase limit. The SRRP, Pay Council and
the members of the RCMP were informed of the Decision on December 12,
2008, the day after it was made.
[28]
At
no time prior to making the Decision did Treasury Board consult with the Pay
Council or the SRRP.
[29]
After
learning of the Decision, members of the SRRP and Pay Council attempted to meet
with various Ministers and Members of Parliament to discuss the wage increase
limit. While representatives met separately with the Minister of Public Safety
and the President of the Treasury Board, they were not successful in securing
any variation of the Decision. The President of the Treasury Board was
unwilling to discuss the Decision or the ERA.
[30]
On
February 6, 2009, the ERA was tabled in Parliament, and it received Royal
Assent on March 12, 2009.
[31]
On
February 11, 2009, the Pay Council presented the President of the Treasury
Board with a revised proposal for wages and allowances. This proposal was not
accepted because portions of it were inconsistent with the ERA.
[32]
On
March 4, 2009, the Commissioner gave a mandate letter to the Pay Council
requesting that it consider how to increase existing allowances to advance
transformation initiatives at the RCMP as permitted by section 62 of the ERA.
The Pay Council did so, and on June 9, 2009, the Treasury Board accepted the
Pay Council’s recommendation in part.
[33]
Two
changes were approved by Treasury Board. First, the Treasury Board increased
the service pay paid to regular members up to and including the rank of
Superintendent. Service pay was increased by .5% to 1.5% for every five years
of service, to a maximum of 10.5% at 35 years service. Service pay was also
extended for the first time to certain civilian members. Second, a new
Operational Response Allowance Policy was approved to replace the former
Stand-By Policy. The new policy provided compensation for off-duty members
required to be available for work.
[34]
Such
allowances were permissible pursuant to section 62 of the ERA which is set out
later in these reasons.
The Decision of
the Federal Court
[35]
After
detailing the facts, setting out the relevant provisions of the ERA and stating
the issues, the Judge considered the first issue which she framed to be: “Did
the decision of the Treasury Board on December 12, 2008 [sic] to reduce
the scheduled wage increases for RCMP Members, together with the impugned
provisions of the ERA, violate subsection 2(d) of the Charter?”
(reasons, paragraph 48).
[36]
The
Judge began by noting that the work of the Pay Council “cannot be considered
wholly equivalent to collective bargaining. Nonetheless, it is the only formal
means through which Members of the RCMP can collectively pursue goals relating
to remuneration with their employer” (reasons, paragraph 72).
[37]
Relying
upon the decision of the Supreme Court in Ontario (Attorney General) v.
Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, she found that the Pay Council
process is important and should be afforded the protection of section 2(d)
of the Charter. She dismissed the Attorney General’s submission that Fraser
requires meaningful association to achieve workplace goals to be impossible
before section 2(d) is violated (reasons, paragraphs 76 and 77).
The Judge posed the issue to be: “do the ERA and the decision of the
Treasury Board make it effectively impossible for the Pay Council to make
representations on behalf of the Members of the RCMP, and have those
representations considered in good faith?” (reasons, paragraph 79).
[38]
The
Judge focused on the impact of the Decision on the bargaining process (reasons,
paragraph 89). She went on to find that the impact of the Decision was similar
in both this case and in Health Services and Support – Facilities Subsector
Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (B.C.
Health Services) (reasons, paragraph 83).
[39]
The
Judge then concluded her analysis as follows:
82. On the basis of the evidence submitted, it is
apparent that the decision reached by Treasury Board in December 2008 was the
forerunner to the enactment of the ERA. In other
words, the ERA gave statutory effect to the content
of the decision made on December 11, 2008.
83. Although the actual provisions of the ERA are not closely similar to the legislation considered
in BC Health Services, the impact of the legislation
is largely the same. In the first place, it confirms the Treasury Board’s
decision to unwind a previous agreement and second, it restricts the manner of
dealing with a particular issue in future agreements.
84. The Respondent asserts that the process of the
Pay Council is unaffected and only the results of the process have been
limited. He points to the increase in service pay as evidence of the Pay
Council’s continued ability to represent the RCMP on wage issues.
85. The evidence in the record is clear that
transformation initiatives, such as the increase in service pay, were the only
aspect of RCMP remuneration that Treasury Board officials were willing to
discuss with Pay Council and SRRs after its decision of December 2008 and the
enactment of the ERA.
86. In my opinion, this limited engagement
demonstrates that the Treasury Board withdrew the issue from consideration and
refused to negotiate on a good faith basis. The unilateral cancellation of a
previous agreement also constitutes interference with subsection 2(d)
rights; see Confederation des syndicates nationaux v. Quebec.
[…]
90. In this case, the process of the Pay Council has been
seriously hampered. The Pay Council had worked for over a year to develop its
recommendations to have the Treasury Board institute an acceptable wage increase
regime. The Treasury Board’s decision and the legislation unilaterally
rescinded this, thereby completely disregarding the Pay Council process.
91. Much of the Pay Council’s work involves making
recommendations for the salaries of the Members of the RCMP. The establishment
of a low wage increase for a three year period is a clear indication that the
matter has been removed from discussion and consultation. This virtually
eliminates the Pay Council process, with respect to establishing wages, for three
years.
92. The Treasury Board’s decision and the ERA made it effectively impossible for the Pay Council to
make representations on behalf of the Members of the RCMP, and have those
representations considered in good faith. In my opinion, this is a substantial
interference, which constitutes a violation of subsection 2(d) of the Charter.
[40]
At
no point in her analysis did the Judge consider the Decision and the ERA
individually, and conduct separate constitutional analyses as to their
validity.
[41]
The
Judge then went on to consider whether the section 2(d) violation was
saved by section 1 of the Charter. After applying the factors articulated
by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103,
[1986] S.C.J. No. 7, the Judge found the breach of the Charter was not saved by
section 1. This was because the Attorney General failed to establish: (1)
that the reduction of wage increases was rationally connected to a pressing and
substantial objective (reasons, paragraphs 121-127), (2) that the unilateral
action and disregard for the Pay Council process was not minimally impairing
(reasons, paragraphs 128-131) and (3) that the salutary effects of the ERA were
outweighed by the deleterious effects so that the measure was not proportional
(reasons, paragraph 132).
[42]
The
Judge rejected the claim that the Decision constituted a breach of contract
because the Treasury Board was specifically authorized to alter the contract
under section 22 of the RCMP Act (reasons, paragraphs 144-147). The
Judge’s finding on this issue is not at issue on this appeal.
The Applicable
Legislation
[43]
Paragraph
2(1)(d) of the Public Service Labour Relations Act excludes members
of the RCMP from its application:
|
2.
(1) The following definitions apply in this Act.
“employee”,
except in Part 2, means a person employed in the public service, other than:
[…]
(d)
a person who is a member or special constable of the Royal Canadian Mounted
Police or who is employed by that force under terms and conditions
substantially the same as those of one of its members;
|
2.
(1) Les définitions qui suivent s’appliquent à la présente loi.
Sauf
à la partie 2, personne employée dans la fonction publique, à l’exclusion de
toute personne :
.
. .
d) qui est membre ou
gendarme auxiliaire de la Gendarmerie royale du Canada, ou y est employée
sensiblement aux mêmes conditions que ses membres;
|
[44]
Section
22 of the Royal Canadian Mounted Police Act gives the Treasury Board the
authority to establish RCMP pay:
|
22. (1) The Treasury Board
shall establish the pay and allowances to be paid to members.
|
22. (1) Le Conseil du Trésor établit la solde et
les indemnités à verser aux membres de la Gendarmerie.
|
[45]
The
relevant portions of the Expenditure Restraint Act are:
|
16.
Despite any collective agreement, arbitral award or terms and conditions of
employment to the contrary, but subject to the other provisions of this Act,
the rates of pay for employees are to be increased, or are deemed to have
been increased, as the case may be, by the following percentages for any
12-month period that begins during any of the following fiscal years:
(a)
the 2006–2007 fiscal year, 2.5%;
(b)
the 2007–2008 fiscal year, 2.3%;
(c)
the 2008–2009 fiscal year, 1.5%;
(d)
the 2009–2010 fiscal year, 1.5%; and
(e)
the 2010–2011 fiscal year, 1.5%.
[…]
35.
(1) The following definitions apply in sections 36 to 54.
“employee”
means an employee who is not represented by a bargaining agent or who is
excluded from a bargaining unit.
“terms
and conditions of employment” means terms and conditions of employment that
apply to employees.
(2)
For the purposes of sections 36 to 54, terms and conditions of employment are
considered to be established if they are established by an employer acting
alone or agreed to by an employer and employees.
[…]
38.
With respect to any terms and conditions of employment established before
December 8, 2008 that provide for increases to rates of pay
(a)
section 16 does not apply in respect of any period that began during the
2006–2007 or 2007–2008 fiscal year; and
(b)
for any 12-month period that begins during any of the 2008–2009, 2009–2010
and 2010–2011 fiscal years, section 16 applies only in respect of periods
that begin on or after December 8, 2008 and any provisions of those
terms and conditions of employment that provide, for any particular period,
for increases to rates of pay that are greater than those referred to in
section 16 for that particular period are of no effect or are deemed never to
have had effect, as the case may be, and are deemed to be provisions that provide
for the increases referred to in section 16.
[…]
43.
Subject to sections 51 to 54,
(a)
no provision of terms and conditions of employment established after the day
on which this Act comes into force may provide for the restructuring of rates
of pay during any period that begins during the restraint period;
(b)
any provision of terms and conditions of employment established during the
period that begins on December 8, 2008 and ends on the day on which this Act
comes into force that provides for the restructuring of rates of pay during
any period that begins during the restraint period is of no effect or is
deemed never to have had effect, as the case may be; and
(c)
any provision of terms and conditions of employment established before
December 8, 2008 that provides for the restructuring of rates of pay during
any period that begins during the period that begins on December 8, 2008 and
ends on March 31, 2011 is of no effect or is deemed never to have had
effect, as the case may be.
[…]
46.
If any terms and conditions of employment established before December 8, 2008
contain provisions that, for any period that begins in the period that begins
on December 8, 2008 and ends on March 31, 2011, provide for an increase to
the amount or rate of any additional remuneration that applied to the
employees governed by those terms and conditions of employment immediately
before the first period that began on or after December, 8, 2008, those
provisions are of no effect or are deemed never to have had effect, as the
case may be.
[…]
49.
If any terms and conditions of employment established before December 8, 2008
contain, in relation to any employees, a provision that provides, for any
period that begins in the period that begins on December 8, 2008 and ends on
March 31, 2011, for any additional remuneration that is new in relation to
the additional remuneration that applied to the employees governed by those
terms and conditions of employment immediately before the first period that
began on or after December 8, 2008, that provision is of no effect or is
deemed never to have had effect, as the case may be.
[…]
62.
Despite sections 44 to 49, the Treasury Board may change the amount or rate
of any allowance, or make any new allowance, applicable to members of the Royal
Canadian Mounted Police if the Treasury Board is of the opinion that the
change or the new allowance, as the case may be, is critical to support
transformation initiatives relating to the Royal Canadian Mounted Police.
|
16.
Malgré toute convention collective, décision arbitrale ou condition d’emploi
à l’effet contraire, mais sous réserve des autres dispositions de la présente
loi, les taux de salaire des employés sont augmentés, ou sont réputés l’avoir
été, selon le cas, selon les taux figurant ci-après à l’égard de toute
période de douze mois commençant au cours d’un des exercices suivants :
a)
l’exercice 2006-2007, un taux de deux et demi pour cent;
b)
l’exercice 2007-2008, un taux de deux et trois dixièmes pour cent;
c)
l’exercice 2008-2009, un taux de un et demi pour cent;
d)
l’exercice 2009-2010, un taux de un et demi pour cent;
e)
l’exercice 2010-2011, un taux de un et demi pour cent.
.
. .
35.
(1) Les définitions qui suivent s’appliquent aux articles 36 à 54.
«
condition d’emploi » Toute condition d’emploi s’appliquant aux employés.
«
employé » Tout employé non représenté par un agent négociateur ou exclu d’une
unité de négociation.
(2)
Pour l’application des articles 36 à 54, sont des conditions d’emploi
établies celles qui émanent unilatéralement de l’employeur ou celles
convenues par celui-ci et les employés.
.
. .
38.
S’agissant de conditions d’emploi établies avant le 8 décembre 2008, les
règles suivantes s’appliquent :
a) l’article 16 ne
s’applique pas à l’égard de toute période commençant au cours des exercices
2006-2007 ou 2007-2008;
b) en ce qui concerne
toute période de douze mois commençant au cours de l’un ou l’autre des
exercices 2008-2009, 2009-2010 et 2010-2011, l’article 16 s’applique
uniquement à l’égard de toute période commençant le 8 décembre 2008 ou après
cette date, et toute disposition des conditions d’emploi prévoyant, pour une
période donnée, une augmentation des taux de salaire supérieure à celle qui
est prévue à cet article pour cette période est inopérante ou réputée n’être
jamais entrée en vigueur, et est réputée prévoir l’augmentation prévue au
même article pour cette période.
.
. .
43.
Sous réserve des articles 51 à 54 :
a) aucune condition
d’emploi établie après la date d’entrée en vigueur de la présente loi ne peut
prévoir de restructuration des taux de salaire au cours de toute période
commençant au cours de la période de contrôle;
b) toute condition
d’emploi établie au cours de la période allant du 8 décembre 2008 à la
date d’entrée en vigueur de la présente loi et prévoyant une restructuration
des taux de salaire au cours de toute période commençant au cours de la
période de contrôle est inopérante ou réputée n’être jamais entrée en
vigueur;
c) toute condition
d’emploi établie avant le 8 décembre 2008 et prévoyant une restructuration
des taux de salaire au cours de toute période commençant au cours de la
période allant du 8 décembre 2008 au 31 mars 2011 est inopérante ou
réputée n’être jamais entrée en vigueur.
.
. .
46.
Est inopérante ou réputée n’être jamais entrée en vigueur toute disposition
de conditions d’emploi établies avant le 8 décembre 2008 prévoyant, à l’égard
de toute période commençant au cours de la période allant du 8 décembre 2008
au 31 mars 2011, une augmentation des montants ou des taux de toute
rémunération additionnelle applicable, avant la première période qui commence
le 8 décembre 2008 ou après cette date, aux employés régis par ces
conditions d’emploi.
.
. .
49.
Est inopérante ou réputée n’être jamais entrée en vigueur toute disposition
de conditions d’emploi établies avant le 8 décembre 2008 prévoyant, à l’égard
de toute période commençant au cours de la période allant du 8 décembre 2008
au 31 mars 2011, une rémunération additionnelle qui est nouvelle par rapport
à celle applicable, avant la première période qui commence le 8 décembre 2008
ou après cette date, aux employés régis par ces conditions d’emploi.
.
. .
62.
Malgré les articles 44 à 49, le Conseil du Trésor peut créer une nouvelle
allocation applicable aux membres de la Gendarmerie royale du Canada ou
modifier le montant ou le taux d’une allocation qu’ils reçoivent s’il estime
qu’une telle mesure est indispensable à la mise en oeuvre de toute initiative
de transformation relative à cet organisme.
|
[46]
Section
2(d) of the Charter guarantees freedom of association:
|
2.
Everyone has the following fundamental freedoms:
[…]
(d)
freedom of association.
|
2.
Chacun a les libertés fondamentales suivantes :
.
. .
d) liberté
d’association.
|
[47]
Subsection
24(1) of the Charter provides a remedy to anyone whose rights are infringed:
|
24.
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances.
|
24.
(1) Toute personne, victime de violation ou de négation des droits ou
libertés qui lui sont garantis par la présente charte, peut s'adresser à un
tribunal compétent pour obtenir la réparation que le tribunal estime convenable
et juste eu égard aux circonstances.
|
[48]
Subsection
52(1) of the Constitution Act, 1982 provides:
|
52.
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
|
52.
(1) La Constitution du Canada est la loi suprême du Canada; elle rend
inopérantes les dispositions incompatibles de toute autre règle de droit.
|
Consideration of
the Issues
i. What
is the proper scope of this appeal?
[49]
As
explained above, the parties disagree as to whether the constitutionality of
the ERA is in issue on this appeal.
[50]
The
Attorney General submits that the provisions of the ERA remain in full force
and effect because the judgment of the Federal Court granted no relief in
respect of its validity. The Attorney General argues that the respondents
challenged the Decision and the provisions of the ERA together as if they were
one limit and the Judge adopted this approach. The respondents did not seek a
remedy under subsection 52(1) of the Charter. Instead, the respondents sought a
judgment pursuant to subsection 24(1) of the Charter quashing the Decision.
They asserted that as an unconstitutional statute, the ERA had no bearing on
the availability of the subsection 24(1) remedy.
[51]
The
respondents argue in response that the Judge made a clear finding that sections
16, 35, 38, 43, 46 and 49 of the ERA violated section 2(d) of the
Charter. Relying upon Nova Scotia (Workers’ Compensation Board) v. Martin;
Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54,
[2003] 2 S.C.R. 504 at paragraph 28, the respondents assert that by operation
of subsection 52(1) of the Charter the provisions were invalid from the time
they were enacted and no formal declaration of invalidity was necessary. The respondents
submit that, having quashed the Decision, the only constitutionally valid wage
decision for the years 2008 to 2011 is the original decision of June 26, 2008.
No further order or remedy was required to effect this result.
[52]
The
two paragraphs of the Judge’s reasons that give rise to this dispute are
paragraphs 148 and 150:
148. In my opinion, the Treasury Board’s
decision of December 11, 2008, together with sections 16, 35, 38, 43, 46 and 49
of the ERA, violates subsection 2(d) of the Charter. That
breach is not saved by section 1.
[…]
150. The Applicants do not seek a remedy with
respect to any provisions of the ERA. Accordingly, I decline to order a
remedy in that regard. Further, the Treasury Board’s decision does not
constitute a breach of contract and no claim for damages arises.
[53]
To
resolve this dispute I begin by noting, as the Judge did at paragraph 82 of her
reasons, that the Decision was the forerunner to the enactment of the ERA. The
ERA gave statutory effect to the content of the Decision.
[54]
More
precisely, on November 27, 2008, the Minister of Finance delivered his
Statement which proposed measures to reinforce the stability of the financial
system and support the economy. For example, included in the Statement were
measures to buttress the financial system, to provide temporary relief to
seniors with Registered Retirement Income Funds, to enhance credit availability
for Canadian businesses and to constrain the sharp projected rise in the costs
of the federal equalization program. With respect to public sector
compensation, the Statement provided:
Appropriate Public Sector
Compensation
Responsible fiscal management
also means that public sector wage increases must be affordable. Since the
beginning of the year, wage growth in the public sector has been leading that
of the private sector. The Government believes that more moderate growth in
public sector compensation is appropriate in the current circumstances.
Recognizing these circumstances, some of the largest public sector bargaining
agents have shown leadership by signing tentative settlements that provide
reasonable wage increases for their members and are affordable for the
Government.
As indicated in the Speech from
the Throne, the Government is introducing legislation to ensure predictability
of federal public sector compensation during this difficult economic period.
The legislation puts in place
annual wage increases for the federal public administration, including senior
members of the public service, as well as Members of Parliament, Cabinet
Ministers, and Senators, of 2.3 per cent in 2007-08 and 1.5 per cent for the
following three years, for groups in the process of bargaining for new
agreements. For groups with collective agreements already covering 2008-09, the
1.5 per cent would apply for the remainder of the three-year period starting at
the anniversary date of the collective agreement. In addition, the legislation
would suspend the right to strike on wages through 2010-11.
[55]
Shortly
after the Statement was delivered, Parliament was prorogued so that legislation
to implement the measures detailed in the Statement, including the limit on
public sector compensation, was not tabled in the House of Commons until the
January 2009 budget was tabled.
[56]
The
ERA, when enacted, prescribed the same limit on RCMP compensation as the
Decision. In this circumstance, the Decision can be characterized to be an
interim, facilitative measure that prevented the payment of pay increases to
RCMP members on January 1, 2009 which would be inconsistent with the
anticipated expenditure restraint legislation.
[57]
Because
the Decision and the ERA effected the same result, in order for the respondents
to reclaim the June 2008 increases, they must impugn the validity of the ERA
(as well as quash the Decision). It follows from this that the
constitutionality of the impugned provisions of the ERA as they effect the
respondents was in issue in the Federal Court and in this appeal. Once the
respondents amended their notice of application to put in issue the ERA, it was
necessary for the Federal Court to consider whether the provisions of the ERA
which reduced previously announced wage increases to be paid to members in 2009
and 2010, and capped any wage increase for 2011, violate the respondents’ right
of association guaranteed by section 2(d) of the Charter.
[58]
This
conclusion is consistent with the terms of the Attorney General’s notice of
appeal which describes the appeal to be from the judgment of the Federal Court
which “determined that the Treasury Board decision of December 11, 2008
limiting pay increases for members of the RCMP, together with sections 16, 35,
38, 43, 46 and 49 of the Expenditure Restraint Act, violates
section 2(d) of the Canadian Charter of Rights and Freedoms”. Among
the grounds of appeal set out by the Attorney General are that the Judge erred
by:
(b)
incorrectly
reviewing the constitutionality of the Treasury Board decision and the Expenditure
Restraint Act together rather than conducting separate contextual analyses,
and,
(c)
failing
to conduct a thorough constitutional analysis of the Expenditure Restraint
Act having proper regard for the scope, application and objectives of the Act
as a whole.
[59]
The
Attorney General expressly put in issue on this appeal whether the ERA violated
the respondents’ right of association, and made submissions on the issue. It
follows the effect of the ERA on the respondents is validly in issue on this
appeal.
ii. What
is the applicable standard of review to be applied to the decision under
appeal?
[60]
The
standard of review to be applied to the Judge’s conclusions of law is
correctness. Her findings of fact and mixed fact and law are reviewable on the
standard of palpable and overriding error (Housen v. Nikolaisen, 2002
SCC 33, [2002] 2 S.C.R. 235).
iii. Did
the Judge err by reviewing the constitutionality of the Decision and the ERA
together, rather than conducting separate contextual analyses?
[61]
Section
2(d) of the Charter protects the rights of employees to associate for
the purpose of advancing workplace goals. A government can infringe that
guaranteed right of association by enacting legislation which does not conform
to section 2(d). As well, a government can also infringe section 2(d)
through its actions as employer. In the present case, the respondents assert
that the federal government violated section 2(d) both by enacting
noncompliant legislation, the ERA, and by rendering the Decision qua
employer.
[62]
The
Judge framed the first issue to be decided in the following terms “Did the
decision of the Treasury Board […] to reduce the scheduled wage increases for
RCMP Members, together with the impugned provisions of the ERA, violate
subsection 2(d) of the Charter?” As noted above, at no point in her
analysis did she consider separately and contextually the impugned action of
the government qua employer and the impugned action of the government in
the form of the enactment of the ERA.
[63]
As
will be developed in more detail below, when considering whether section 2(d)
has been violated, “[t]he inquiry in every case is contextual and
fact-specific. The question in every case is whether the process of voluntary,
good faith collective bargaining between employees and the employer has been,
or is likely to be, significantly and adversely impacted.” (B.C. Health
Services, at paragraph 92).
[64]
In
light of the contextual analysis mandated by the Supreme Court in B.C.
Health Services it was, in my respectful view, an error of law for the
Judge to conflate the Decision and the ERA as if they were a single limit on
the respondents’ freedom of association. Each required a separate contextual
analysis.
[65]
This
view is reinforced when one considers that different remedies are provided for
unconstitutional government action and legislation. Section 52 of the Constitution
Act, 1982 requires that any law that is inconsistent with the Charter be
struck down, but only to the extent of the inconsistency. Depending upon the
circumstances, legislation may be struck down, or be read down, or material may
be read in to the provision. Any such remedy must be carefully crafted. As
well, section 24 of the Charter allows courts to grant appropriate and just
remedies to anyone whose Charter rights have been infringed or denied (Schacter
v. Canada, [1992] 2 S.C.R. 679, 139 N.R. 1, at paragraph 25). Therefore, the
range of remedies available also points to the need for a separate analysis of
the constitutionality of the Decision and the ERA.
[66]
To
illustrate the difficulty caused by conflating the Decision and the ERA, in the
present case the Judge conducted no contextual analysis of the provisions of
the ERA that she concluded violated section 2(d) of the Charter. So, for
example, it is not apparent why all of section 16 of the ERA was found to
offend section 2(d) when only three of its five subsections were
applicable to the facts of this case. Nor is it clear how the definitions set
out in subsection 35(1) of the ERA offend section 2(d) of the Charter.
As legislation is to be struck down only to the extent it is inconsistent with
the Charter, a contextual analysis of impugned provisions was required.
[67]
As
a result, it is necessary to consider afresh whether the Decision or the ERA
violated the rights guaranteed to the respondents by section 2(d) of the
Charter. Before doing so it is relevant to again note the relationship between
the Decision and the ERA.
iv. What
was the relationship between the Decision and the ERA?
[68]
The
ERA gave statutory effect to the content of the Decision. In consequence, in
oral argument counsel for the parties agreed that a finding that the impugned
provisions of the ERA are valid would render the question of the validity of
the Decision moot.
[69]
I
propose, therefore, to begin with consideration of the constitutional validity
of the impugned provisions of the ERA as they affect the respondents.
v. Did
the ERA violate the respondents’ right of association guaranteed by section 2(d)
of the Charter?
(a) Applicable
legal principles
[70]
The
proper scope and application of section 2(d) of the Charter were
considered by the Supreme Court in B.C. Health Services, and more
recently in Fraser. I begin the analysis by reviewing the principles
articulated by the Supreme Court in B.C. Health Services and Fraser.
B.C. Health
Services
[71]
At
issue in B.C. Health Services was the validity of legislation which applied
to relations between healthcare sector employers and unions accredited to those
employers. The legislation invalidated important provisions of then existing
collective agreements and precluded meaningful collective bargaining in future
on a number of specific issues. The majority of the Supreme Court found certain
provisions of the legislation to be invalid on the basis that they infringed
section 2(d) of the Charter.
[72]
Important
principles articulated by the majority included the following:
i.
Section
2(d) of the Charter protects the capacity of members of labour unions to
engage, in association, in collective bargaining on fundamental workplace
issues. If a government substantially interferes with that right, section 2(d)
of the Charter is violated (reasons, paragraph 19).
ii.
Section
2(d) does not guarantee the particular objectives sought through
associational activity. It guarantees the process. Government employers are
under a duty to meet and discuss issues with unions. As well, section 2(d)
constrains the exercise of legislative powers in respect of the right to
bargain collectively (reasons, paragraph 89).
iii.
Section
2(d) protects only against “substantial interference” with associational
activities. It is sufficient if the effect of the state law or action
discourages the collective pursuit of common goals. Government must not
substantially interfere with the ability of a union to exert meaningful
influence over working conditions through a process of collective bargaining conducted
in accordance with the duty to bargain in good faith (reasons, paragraph 90).
iv.
The
right to collective bargaining is, however, a limited right. Because the
protected right is a right to process, there is no guarantee of any certain
substantive or economic outcome. The right is to a general process of
collective representation, not to a particular model of labour relations.
Finally, the right is limited in that the interference must be so substantial
that it interferes with the very process that allows union members to pursue
their objectives through meaningful negotiations with the employer (reasons,
paragraph 91).
v.
Acts
of bad faith or unilateral nullification of negotiated terms without any
process of meaningful discussion and consultation may significantly undermine
the process of collective bargaining. In every case the inquiry is contextual
and fact-specific (reasons, paragraph 92).
vi.
Generally,
two inquiries are made to determine if the government measure at issue amounts
to substantial interference. The first inquiry is into the importance of the
matter affected to the process of collective bargaining, more specifically to
the capacity of union members to come together and pursue collective goals in
concert. The second inquiry is into the manner in which the measure impacts on
the collective right to good faith negotiation and consultation (reasons,
paragraph 93).
vii.
If
the matters affected do not substantially impact on the process of collective
bargaining, a government measure will not violate section 2(d) (reasons,
paragraph 94).
viii.
With
respect to the first inquiry, laws that unilaterally nullify significant
negotiated terms in a collective agreement may substantially interfere with the
activity of collective bargaining (reasons, paragraph 96).
ix.
With
respect to the second inquiry, the essential question is whether the
legislative measure or government conduct respects the duty to consult and
negotiate in good faith (reasons, paragraph 97).
x.
When
considering whether legislation impinges on the collective right to good faith
negotiations and consultation, regard must be had to the circumstances
surrounding its adoption. Situations of exigency and urgency may affect the
content and the modalities of the duty to bargain in good faith (reasons,
paragraph 107).
Fraser
[73]
At
issue in Fraser was whether legislation creating a separate labour relations
regime for the farming sector respected the section 2(d) guarantee of
freedom of association. The farm workers sought more robust legislation to
protect their associational activity. The majority of the Supreme Court
concluded that, properly interpreted, the impugned legislation did not infringe
the workers freedom of association.
[74]
The
majority articulated the following principles:
i.
The
decision in B.C. Health Services reflected application of the principles
articulated previously in Dunmore v. Ontario (Attorney General), 2001
SCC 94, [2001] 3 S.C.R. 1016. Dunmore established that claimants
must demonstrate “the substantial impossibility of exercising their freedom of association”
(reasons, paragraph 34).
ii.
Laws
or government action that make it impossible to achieve collective goals have the
effect of limiting freedom of association by making it pointless. In every
case, the question is whether the impugned law or state action has the effect
of making it impossible to act collectively to achieve workplace goals
(reasons, paragraph 46).
iii.
No
particular process or result is protected. Associational activity is protected.
What must be shown is that, as a result of substantial interference by a law or
by government action, it is impossible to meaningfully exercise the right to
associate (reasons, paragraph 47).
iv.
Properly
understood, B.C. Health Services did not decide that a breach of a
collective agreement violates section 2(d). The majority in B.C.
Health Services found that the section 2(d) right to associate had
been undermined by “the unilateral nullification of significant contractual
terms, by the government that had entered into them or that had overseen their
conclusion, coupled with effective denial of future collective bargaining”
(reasons, paragraph 76).
v.
The
essential question to be answered was whether the impugned legislation made
meaningful association to achieve workplace goals effectively impossible
(reasons, paragraph 98).
(b) Important
contextual factors
[75]
As
noted above in B.C. Health Services, the Supreme Court stressed the need
for a contextual approach to any analysis of the content of the right of association.
I therefore turn to what are, in my view, the most important contextual
factors: the nature of the associational activity enjoyed by members of the
RCMP, the purpose of the ERA and its effect upon members of the RCMP.
The nature of
RCMP members’ associational activity
[76]
In
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, 244
N.R. 33, the Supreme Court considered whether the exclusion of members of the
RCMP from what is now the Public Service Labour Relations Act violated
section 2(d) of the Charter. The majority concluded that it did not, on
the basis that section 2(d) did not confer a right to participate in any
specific statutory scheme and members of the RCMP were entitled to establish,
and had established, independent employee associations. Section 2(d)
would operate to prevent RCMP management from interference with the
establishment of such associations.
[77]
More
recently, in Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363, 111 O.R. (3d) 268 (leave to appeal allowed, [2012]
S.C.C.A No. 350) the Ontario Court of Appeal was asked to consider whether the
right to collective bargaining guaranteed by section 2(d):
i)
guaranteed
members of the RCMP the right to be represented in their relationship with
their employer by an association of their own choosing; and
ii)
required
the vehicle for dealing with members’ collective concerns to be structurally
independent of management.
[78]
The
Ontario Court of Appeal concluded that under the current scheme it was not
effectively impossible for RCMP members to meaningfully exercise their right of
association guaranteed under section 2(d) of the Charter because:
i)
RCMP
members are able to form voluntary associations;
ii)
there
is extensive collaboration between the Staff Relations Representatives and RCMP
management with respect to collective goals; and
iii)
an
entity known as the Legal Fund assists members with employment related issues.
[79]
The
Ontario Court of Appeal concluded its analysis as follows:
135. For these reasons, I
conclude that it is not effectively impossible for RCMP members to act
collectively to achieve workplace goals. It follows that the respondent
associations’ members are unable to claim the derivative right to collective
bargaining under s. 2(d). Accordingly, there is no constitutional
obligation on the government to take positive action, in the sense discussed in
Haig, Delisle, CLA and Dunmore, to facilitate the
exercise of the RCMP members’ s. 2(d) - protected freedom. There is no “necessary
precondition” for placing a positive obligation on the employer to recognize
and “negotiate” with the respondent associations in order to make meaningful
association possible for their members.
136. The conclusion that the
members of the respondent associations cannot claim the derivative right to
collective bargaining renders the principal concerns of the application judge
immaterial. He considered the inability of RCMP members to form an independent
association “for the purpose of collectively bargaining” to be the principal
source of the infringement of s. 2(d). As Delisle establishes,
RCMP members do have the freedom to form independent employee associations. The
additional guidance provided by Fraser indicates their ability to
associate is not so ineffective that they are able to claim the derivative
right to collectively bargain. The constitutional right to form an independent
association for the purpose of collective bargaining, if it exists, would be a
facet of the derivative right to collective bargaining and does not arise in
this case.
[80]
The
respondents did not put in issue in their application for judicial review in
the Federal Court the constitutionality of the SRRP. Nor is it in issue on this
appeal.
[81]
In
order to appreciate the effect of the ERA upon the respondents and other
members of the RCMP it is necessary to review the salient features of the
current RCMP labour relations scheme:
i)
The
SRRP was established to represent the interests of members of the RCMP. Staff
Relations Representatives make submissions to the Commissioner with respect to pay
and benefits through the Pay Council.
ii)
The
Pay Council operates on the basis of consensus and collaboration. The members of
the Pay Council work to develop an appropriate compensation package which is
submitted as a recommendation to the Commissioner.
iii)
The
Commissioner possesses the discretion to accept or reject the recommendation of
the Pay Council in whole or in part.
iv)
If
the Commissioner supports the recommendation he passes it on to the Minister
responsible for the RCMP.
v)
That
Minister then makes a formal submission to the Treasury Board.
vi)
The
Treasury Board then decides whether and how to revise the pay and benefits of
members of the RCMP.
[82]
Flowing
from these facts are the following conclusions:
i)
Staff
Relations Representatives play a consensual and collaborative role in the
deliberations of the Pay Council.
ii)
The
Pay Council is only indirectly engaged in the determination of RCMP salaries
and benefits. It makes non-binding recommendations to the Commissioner. It does
not negotiate with the Commissioner.
iii)
There
is no direct consultation or negotiation between the Pay Council and the
decision-maker, which is the Treasury Board. The Treasury Board is not obliged
to consult with the Pay Council (or the Staff Relations Representatives) if it
disagrees with the Pay Council’s recommendation.
iv)
There
is no collective or other agreement between the employer and any entity
representing the members. There is no agreement of any kind regarding the terms
and conditions of employment of members, or the maintenance of any previously
approved terms and conditions.
The purpose of
the ERA and its effect upon RCMP members
[83]
As
to the purpose of the ERA, this legislation must be seen in the context of the
economic situation which prevailed during the period of time leading to its
enactment. The Attorney General put forward the affidavit of Paul Rochon, the
Senior Assistant Deputy Minister, Economic and Fiscal Policy Branch, in the
Department of Finance. He was not cross-examined on his affidavit.
[84]
Mr.
Rochon described the financial crisis, unprecedented in scope and severity,
that began in August 2007 and peaked in late 2008 and early 2009. Prominent
aspects of his evidence are as follows:
i)
The
global financial crisis originated in the collapse of the United States’ housing market in the summer of 2007.
ii)
In
September and October 2008, the crisis escalated significantly, triggered by
the failure and near-failure of major financial institutions in the United States and Europe.
iii)
By
October 2008, the rapid deterioration of the economic situation, both in the United States and globally, was beginning to have serious implications for the Canadian
economy.
iv)
In
November 2008, the International Monetary Fund (IMF) issued a report which
advised that the financial crisis remained virulent, and that the economic outlook
was exceptionally uncertain.
v)
On
November 27, 2008, the Minister of Finance delivered the Statement which
projected budget deficits in the 2009-2010, 2010-2011 and 2011-2012 financial
years. These were the first projected budget deficits in 12 years. The
Statement proposed measures to reinforce the stability of the financial system
and support the economy in the face of the deterring economic situation and
heightened risks.
vi)
Statistics
Canada reported that employment in Canada started to decline abruptly in
November 2008, when a decline of 70,600 jobs was registered.
vii)
The
Treasury Board Secretariat recommended a limit on public service wage
increases. In addition to moderating wage growth, such limits would ensure
predictability by fixing the Government’s compensation cost estimates. This
predictability was considered by the Government to be crucial to the
credibility of the overall economic and fiscal response plan under development.
viii)
The
Government accepted the recommendation made by the Treasury Board Secretariat.
Therefore, it instructed that wage increases currently being bargained
collectively be negotiated within the proposed wage increase limits. It also
instructed that legislation be prepared which would apply when wage increases
within the proposed limits were not achieved through collective agreement.
ix)
The
proposed legislation, the ERA, would prescribe maximum wage increases for the
federal public administration as well as Members of Parliament, Cabinet
Ministers and Senators.
x)
The
policy objectives of the ERA were threefold:
a. to
help reduce undue upward pressure on private sector wages and salaries;
b. to
provide leadership by showing restraint and respect for public money; and
c. to
manage public sector wage costs in a manner that would help ensure the ongoing
soundness of the Government’s fiscal position.
xi)
Shortly
after delivery of the Statement, Parliament was prorogued. As a consequence,
legislation to implement the measures proposed in the Statement was not tabled
in the House of Commons.
xii)
Global
economic conditions continued to deteriorate. In January 2009, the IMF released
another update to its global outlook which projected that the world economy
would grow by only .5%. The IMF reported that “despite wide-ranging policy
actions, financial strains remain acute, pulling down the real economy” as a “pernicious
feedback loop between the real and financial sectors is taking its toll.”
xiii)
The
repeated downgrading of growth forecasts for 2009 was unprecedented and
reflected the scope and severity of the continuing global economic crisis.
xiv)
The
decline in employment in Canada that began in November 2008 continued through
2009. By January 2010, employment had declined by 264,000 jobs.
xv)
The
Budget of January 27, 2009, introduced $40 billion in federal stimulus measures
to be delivered over two years, aimed at supporting the economy and maintaining
and creating jobs.
xvi)
The
January 2009 Budget also reintroduced most of the restraint measures proposed
in the November 2008 Statement, including the ERA.
xvii)
All
of these measures were enacted simultaneously through the Budget
Implementation Act, 2009.
xviii)
The
Government viewed it to be significant that both the stimulus and spending
measures were enacted together. In its view, “it was necessary to act boldly
with the stimulus package and also to ensure that the Government’s fiscal
position was sustainable coming out of the crisis. It was to help achieve this
latter goal that it was important to enact the ERA and the other spending
measures”.
xix)
The
public sector wage bill is a major federal expenditure, representing about
one-third of the Government’s direct program expenses.
[85]
The
respondents have not argued that the purpose of the ERA was to prevent or
interfere with associational activity. In light of Mr. Rochon’s evidence such a
submission could not, in my view, be sustained. The ERA was part of a series of
measures designed to stabilize the economy and maintain and create jobs. This
was a valid purpose. As the purpose of the ERA was valid, the remaining
question to be answered is whether its effect was to interfere substantially
with the right of RCMP members to pursue their associational activities. This
question is to be answered by application to the evidence of the legal
principles articulated by the Supreme Court, summarized above.
(c) Application
of legal principles
[86]
I
begin by observing that legislation that significantly interferes with, or
nullifies, existing collectively bargained terms of employment will not
necessarily violate section 2(d): B.C. Health Services at
paragraphs 92 and 96. As explained by the majority in Fraser at
paragraph 76, the majority of the Court in B.C. Health Services did not find
that a breach of a term of a collective agreement per se violated section
2(d) of the Charter. Rather, it was the unilateral nullification of
significant contractual terms, coupled with the effective denial of future
collective bargaining, which violated the section 2(d) right to
associate.
[87]
It
follows from this that, in order to demonstrate a breach of their section 2(d)
right of association, it is insufficient for the respondents to simply
establish the nullification of previously announced pay increases. The
respondents are required to prove that the ERA rendered it substantially
impossible for RCMP members to exercise their freedom of association.
[88]
On
the facts of this case, the following legal principles are, in my view, the
controlling principles:
i. Section
2(d) does not guarantee any particular objective, result or process. It
guarantees a process through which collective goals are pursued (B.C. Health
Services at paragraph 89, Fraser at paragraph 47).
ii. The
right to bargain collectively is a limited right because there is no guarantee
of any particular economic outcome or any particular process. The right is
further limited in the sense that the interference must be so substantial that
it interferes with the very process that allows employees to pursue their associational
objectives (B.C. Health Services at paragraph 91).
iii. The
first inquiry to be made is into the importance of the matter affected to the
process of collective bargaining, and more specifically, to the capacity of employees
to come together and pursue collective goals in concert. The second inquiry is
into the manner in which the measure impacts on the collective right to good faith
negotiation and consultation. (B.C. Health Services at paragraph 93).
iv. With
respect to the first inquiry, “[i]f the matters affected do not substantially
impact on the process of collective bargaining, the measure does not violate s.
2(d) and, indeed, the employer may be under no duty to discuss and
consult. There will be no need to consider process issues. If, on the other
hand, the changes substantially touch on collective bargaining, they will still
not violate s. 2(d) if they preserve a process of consultation and good faith
negotiation.” (B.C. Health Services at paragraph 94).
[89]
To
turn, then, to the effect of the ERA on the process through which members of
the RCMP pursue their associational activity, for ease of reference I repeat
the conclusions concerning the current RCMP labour relations scheme set out
above at paragraph 82:
i) Staff
Relations Representatives play a consensual and collaborative role in the
deliberations of the Pay Council.
ii) The
Pay Council is only indirectly engaged in the determination of RCMP salaries
and benefits. It makes non-binding recommendations to the Commissioner. It does
not negotiate with the Commissioner.
iii) There
is no direct consultation or negotiation between the Pay Council and the
decision-maker, which is the Treasury Board. The Treasury Board is not obliged
to consult with the Pay Council (or the Staff Relations Representatives) if it
disagrees with the Pay Council’s recommendation.
iv)
There
is no collective or other agreement between the employer and any entity
representing the members. There is no agreement of any kind regarding the terms
and conditions of employment of members, or the maintenance of any previously
approved terms and conditions.
[90]
In
my view, these facts render this case distinguishable from the facts before the
Supreme Court in B.C. Health Services. I conclude that the ERA did not
substantially interfere with the process by which members of the RCMP pursue
their associational activity because the ERA did not make it impossible for
members of the RCMP to act collectively to achieve workplace goals. I reach
this conclusion for the following reasons.
[91]
First,
assuming that the ERA impacts on a matter important to the process of
associational activity, the ERA did not substantially interfere with the
process followed by RCMP members to exercise their right to associational
activity. Put another way, the ERA did not make it impossible for members to
act collectively. The effect of the ERA was not so substantial that it
undermined the very process by which associational activity was pursued. This
is because members, through their Staff Relations Representatives, did not
bargain directly with their employer. Staff Relations Representatives played a
consensual and collaborative role in the deliberations of the Pay Council, a
body that, in turn, made non-binding recommendations to the Commissioner of the
RCMP. The Treasury Board, the ultimate decision-maker, was not obliged to
consult with either the Pay Council or the Staff Relations Representatives if
it disagreed with the non-binding recommendation. The ERA did not undo the
terms of a collective bargaining agreement nor did it reverse terms negotiated
directly with, and agreed to by, the employer. Rather, the ERA modified terms
and conditions which the Treasury Board was authorized to set.
[92]
Second,
conduct immediately prior to and following the enactment of ERA shows that the
associational process continued to function. The ERA did not make the process
pointless. This is so because the Pay Council was able to exert meaningful
influence over working conditions in the following way.
[93]
On
March 4, 2009, the Commissioner of the RCMP issued a mandate letter to the
Chair of the Pay Council. This letter referred to section 62 of what became the
ERA, which was then before Parliament as part of the Budget Implementation
Act, 2009. Section 62 permitted the Treasury Board to alter allowances to
RCMP members, or add new allowances, if of the view that the change or new
allowance was “critical to support transformation initiatives relating to the Royal
Canadian Mounted Police”. The mandate letter asked the Pay Council “to consider
how increasing existing allowances or establishing new ones might help address
priority issues and advance our Transformation Initiative.”
[94]
The
Pay Council then presented recommendations to the Commissioner under cover of
an undated letter addressed to the responsible Minister. The letter advised:
Enclosed is our package of
potential changes to the RCMP compensation and policies which we believe will
mitigate the impact of the government’s decision to limit the RCMP salary
increases to 1.5% in 2009 and 2010.
The list is divided into monetary
and non-monetary proposals, with the value of all monetary items presented. The
items are listed in terms of our members’ priorities.
In their entirety, these
proposals represent a way of balancing the needs of government’s economic
restraint policy with the maintenance of fair RCMP remuneration to ensure
sufficient attraction and retention of high quality public safety employees.
[95]
On
June 9, 2009, the Treasury Board approved the two changes to RCMP allowances
described at paragraph 33 above.
[96]
Third,
a key distinguishing feature is that there was no prohibition on future
associational activity on the scale considered in B.C. Health Services.
[97]
The
original, June 26, 2008, decision of the Treasury Board dealt with pay
increases for the calendar years 2008 to 2010. The only post-2010 effect of the
ERA was to limit wage increases to 1.5% for the 2010-2011 fiscal year (i.e. the
period from January 1, 2011 to March 31, 2011). In my view, the three-month
limit on one aspect of the terms and conditions of employment of RCMP members did
not make it substantially impossible for members of the RCMP to exercise their
freedom of association in the future.
[98]
Fourth,
and finally, Parliament was not required to consult with the Pay Council or
others before enacting the ERA (B.C. Health Services, paragraph 157).
[99]
In
the result, I conclude the ERA did not violate the respondents’ right of
association protected by section 2(d) of the Charter.
[100] As
conceded by the parties, this renders the question of the validity of the
Decision moot, and I can see no reasons to exercise the discretion to consider
an issue which is moot.
vi. Section
1 of the Charter
[101] As I
have found that the ERA did not violate the respondents’ right to freedom of
association it is not necessary to consider this issue.
Conclusion
[102] For
these reasons, I would allow the appeal and set aside the judgment of the
Federal Court. Giving the judgment the Federal Court should have pronounced, I
would dismiss the application for judicial review.
[103] In my
view there is no reason to depart from the principle that costs follow the
event. The appellant asks both in the notice of appeal and in the memorandum of
fact and law that the appeal be “allowed with costs”. I would therefore award
the costs of the appeal in this Court to the appellant.
“Eleanor R. Dawson”
“I
agree.
M.
Nadon J.A.”
“I
agree.
Johanne
Trudel J.A.”
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