Date: 20110916
Docket: A-268-11
Citation: 2011 FCA 255
PRESENT: DAWSON 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 ORDER
DAWSON J.A.
[1]
The
Attorney General of Canada (Attorney General) seeks an order staying an order
of the Federal Court dated June 21, 2011. In such order, for reasons cited as
2011 FC 735, [2011] F.C.J. No. 948, the Federal Court declared a Treasury Board
decision made on December 11, 2008 to be contrary to subsection 2(d) of
the Canadian Charter of Rights and Freedoms (Charter), and quashed the
decision. The Attorney General also seeks a stay of the order to the extent it
constituted a finding that sections 16, 35, 38, 43, 46 and 49 of the Expenditure
Restraint Act, S.C. 2009, c. 2, s. 393 (Act) was constitutionally invalid
or exempted. Finally, the Attorney General seeks an order expediting the appeal
and costs.
[2]
On
August 15, 2011, this Court directed that the motion for stay would be dealt
with in writing.
Background Facts
[3]
The
relevant facts are not in dispute, and for the purpose of this motion may be
briefly stated.
[4]
The
Treasury Board is the employer of members of the RCMP. In June of 2008, the
Treasury Board established rates of pay for members of the RCMP for the years
2008 to 2010. The remuneration for members of the force was to increase in each
year. The increases for the year 2009 would come into effect on January 1,
2009.
[5]
On
December 11, 2008, as a result of the collapse of the global economy, the
Treasury Board modified the previously established rates of pay. The
modification cancelled a market adjustment to be paid in 2009, reduced the
economic increase for 2009 from 2% to 1.5% and cancelled a planned increase to
service pay.
[6]
In
consequence, in January of 2009, the respondents commenced an application for
judicial review of the decision of the Treasury Board. The respondents alleged
a breach of their right to freedom of association protected by subsection 2(d)
of the Charter and sought an order quashing the decision of the Treasury Board.
[7]
On
February 6, 2009, legislation was introduced to implement the federal budget.
The Budget Implementation Act, 2009, S.C. 2009, c. 2 was given
Royal Assent on March 12, 2009. Section 393 of that legislation had the effect
of enacting the Act into force.
[8]
The
Act:
a.
Prescribed
an annual wage increase limit of 1.5% for the fiscal years 2008-2009, 2009-2010
and 2010-2011.
b.
Rendered
of no effect any term or condition that provided for greater wage increases,
including the increases approved by the Treasury Board in June 2008 for members
of the RCMP.
c.
Generally
prohibited until March 31, 2011, any new term or condition that provided for
greater increases to wages or additional remuneration.
[9]
Subsequently,
the respondents sought and obtained leave to amend their application for
judicial review so as to challenge the constitutionality of both the Treasury
Board decision and the relevant provisions of the Act. Later, the respondents
served a notice of constitutional question which stated that they intended to
question the constitutional validity, applicability and effect of subsection
13(2) and sections 35, 38, 40, 43, 46 and 49 of the Act. During oral argument,
the respondents challenged section 16 of the Act as well.
Decision of the Federal
Court
[10]
The
Judge of the Federal Court summarized her conclusions at paragraphs 148 to 150
of her reasons. There she wrote:
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 [Act], violates subsection 2(d) of the Charter.
That breach is not saved by section 1.
149. In the result, this
application for judicial review is allowed with costs to the Applicants. The
Treasury Board’s decision of December 11, 2008 is quashed.
150. The Applicants do not
seek a remedy with respect to any provisions of the [Act]. 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.
[11]
The
resulting order of the Federal Court read as follows:
THIS COURT
ORDERS that this
application for judicial review is allowed with costs to the Applicants. The
Treasury Board’s decision of December 11, 2008 is declared contrary to
subsection 2(d) of the Charter and is quashed. If the parties are unable
to agree on costs, they may advise the Court within five days of the issuance
of this Order and directions will issue with respect to costs.
[12]
The
Attorney General moved for reconsideration of the order on the ground that it
did not accord with the reasons given for it. The Judge dismissed the motion
for reconsideration stating that there was no ambiguity or uncertainty as to
the meaning of the original order. In the Judge’s view, the order granted the
relief sought by the respondents.
Test for Granting the
Requested Stay
[13]
The
parties agree that on this motion the appellant must establish the existence of
each of the three elements established in RJR-MacDonald Inc. v. Canada (Attorney
General),
[1994] 1 S.C.R. 311. The three elements are: a serious issue, irreparable
harm, and the balance of convenience.
Analysis
[14]
For
the reasons that follow, I have concluded that the Attorney General has failed
to establish the existence of irreparable harm if the stay is not granted,
particularly where the respondents have agreed to cooperate with the Court and
the Attorney General to ensure that this appeal is heard at the earliest
opportunity.
[15]
Turning
to the submissions of the Attorney General concerning the existence of
irreparable harm, the Attorney General submits that:
42. Failure to stay the
Order of the Federal Court quashing the Treasury Board decision will revive the
terms and conditions established by Treasury Board in June 2008, before the
global financial and economic crisis occurred. Unless the impugned
provisions of the [Act] continue in force and supersede those terms and
conditions, or this Court grants a stay of any constitutional invalidity or
exemption, the Appellant will suffer irreparable harm. First, the public
interest in the prudent management of government expenditure during the current
period of fiscal restraint will be irreparably harmed. Second, the Treasury
Board as employer will suffer irreparable harm to its labour relations.
Specifically, the Board will be required to decide whether to establish new
terms and conditions for members of the RCMP or whether to pay them retroactive
compensation. As explained below, both of these options will cause irreparable
harm. [emphasis added]
[16]
The
Attorney General particularizes the alleged irreparable harm to the public
interest to be that if the Act is invalid or inoperative, the public
interest in the prudent management of government expenditure in the face of a
significant global financial and economic crisis will be irreparably harmed.
[17]
The
irreparable harm to labor relations is expressed in the following terms:
49. If
the December 2008 decision of the Treasury Board is quashed and the
provisions of the [Act] are inoperative or invalid, then the Board must decide
whether, as regards the members of the RCMP,
(a)
it should
pay retroactive compensation according to the terms and conditions established
in June 2008;
(b)
it should
instead make a fresh decision amending the terms and conditions of employment
in accordance with its statutory authority; and,
(c)
before
doing either of these things, consider what kind of consultation is sufficient
to avoid a future breach of the Charter. [emphasis added and footnote
omitted]
[18]
The
submissions of the Attorney General are therefore based upon the premise that
the Federal Court found provisions of the Act to be invalid or inoperative.
However, the pending appeal is brought in respect of the order, not the
reasons, of the Federal Court. Nothing in the order under appeal purports to invalidate
or exempt the application of the Act. While the order quashes the decision of
the Treasury Board, it does not order any consequential relief. I am,
therefore, unable to conclude that the order of the Federal Court invalidated
or exempted the application of the Act by necessarily implication.
[19]
The
evidence does not establish, nor is it alleged, that irreparable harm will
result if the December 11, 2008 decision of the Treasury Board is not
maintained for the duration of the appeal.
[20]
Therefore,
the motion for a stay will be dismissed, with costs. Counsel are to advise the
Court forthwith as to their availability on September 21, 22 and 23 for a
teleconference for the purpose of setting a date for the hearing of the appeal
and finalizing a schedule for perfecting the appeal.
“Eleanor R. Dawson”
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