Date:
20070228
Docket: A-68-06
Citation: 2007 FCA 88
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
PELLETIER
J.A.
BETWEEN:
CAROLE GAUDES
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba on February 28, 2007)
EVANS J.A.
[1]
This is an
appeal by Carole Gaudes from a decision of a Judge of the Federal Court
dismissing her application for judicial review seeking a declaration that, as a
member of a group of civilian RCMP employees (“FLI-FIT group”), she was
entitled to a retroactive pay award for the years 1985 to 1998. The decision is
reported as Gaudes v. Canada (Attorney General), 2005 FC 1604, 284 F.T.R. 26.
[2]
The basis
of Ms Gaudes’ claim is a Minute of a Treasury Board Decision of 1975 setting
the rates of pay for members of the then newly created FLI-FIT group by
reference to a comparator group of employees (“CR-5 group”). The appellant
argues that this Decision applies to subsequent increases in the rates of pay of
the CR-5 group, including a retroactive award made in 1998 by the Canadian
Human Rights Tribunal in favour of the CR-5 group, among others, whom the Tribunal
held had been denied their right to pay equity. The rates of pay of the FLI-FIT
group were increased from 1998 in line with the prospective part of the
Tribunal’s order.
[3]
The pay
and allowances of members of the RCMP are set by the Treasury Board: Royal Canadian
Mounted Police Act, R.S.C. 1985, c. R-10, subsection 22(1). The Treasury
Board Secretariat, the administrative arm of the Board, refused to support the
submissions made on behalf of the FLI-FIT group that they were entitled, not
only to the prospective portion of the award made by the Tribunal to the CR-5
group, but also to its retroactive component. The Secretariat refused to put
the matter to the Treasury Board, which has not made a decision on the issue.
[4]
We are all
of the view that the appeal should be dismissed. It is clear that the 1975
Treasury Board Minute applies only to rates of pay for the year 1975-76. Unlike
an earlier Minute to which we were referred, the 1975 Minute does not say that,
in order to maintain wage comparability, the wages of the FLI-FIT group will be
adjusted to take account of any future increases in the rates of pay of the CR-5
group.
[5]
There is simply
nothing in the record to support the Applications Judge’s conclusion that it
was also decided in 1975 that the rates of pay of the FLI-FIT group would be
adjusted in the future, in step with changes in the CR-5 rates of pay. Indeed, in
a letter to the Commissioner of the RCMP accompanying the 1975 Minute, the
Deputy Secretary of the Treasury Board stated that the Ministers had directed a
study of the total compensation of members of the Force, and that a methodology
would be established on which to base future pay revisions. In short, the 1975 Minute
does not provide a legal basis for the appellant’s claim to be entitled to a
pay adjustment from 1985 to 1998.
[6]
Counsel
for the appellant was unable to secure from the Crown the production of subsequent
Treasury Board Decisions which might have supported her claim. We cannot draw
an adverse inference from a refusal to produce documents for which Cabinet
confidence may be claimed.
[7]
Counsel
for the appellant emphasized that, with the sole exception of the Tribunal’s
1998 retroactive award, the rates of pay of members of the FLI-FIT group have, for
30 years, always been adjusted in line with any increases in the rates of pay
for the CR-5 group. These increases included a prospective and retroactive
payment made in 1990 pursuant to a voluntary settlement of a pay equity claim
by the CR-5 group.
[8]
At most,
this history establishes that the Treasury Board has set rates of pay for the
FLI-FIT group, which is precluded from collective bargaining, by reference to a
policy of wage comparability with the CR-5 group. However, such a policy, if it
exists, does not create a legal entitlement in members of the FLI-FIT to the pay
increase that they are claiming.
[9]
Finally,
we would note that there is no Treasury Board Decision respecting the FLI-FIT
claim for us to review. The Treasury Board is apparently content to abide by
the decision of this Court. The Applications Judge assumed jurisdiction on the
basis that, on an application for judicial review, the Court may declare
invalid a proceeding of a federal, board, commission or other tribunal: Federal
Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(3)(b).
[10]
We are
doubtful whether, on the facts of this case, there was any proceeding of the
Treasury Board to be declared unlawful. However, this is not an issue which we
need to decide.
[11]
For these
reasons, the appeal will be dismissed with costs.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-68-06
(APPEAL FROM AN ORDER OF THE FEDERAL
COURT DATED NOVEMBER 28, 2005, DOCKET NO. T-537-03)
STYLE OF CAUSE: CAROLE
GAUDES v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 28, 2007
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER
J.A.
DELIVERED FROM THE BENCH BY: EVANS J.
APPEARANCES:
|
Ms E. Beth Eva
Winnipeg, MB
|
FOR THE APPELLANT
|
|
Ms Anne
Turley
Department of Justice
Ottawa, ON
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Fillmore Riley
Barristers & Solicitors
Winnipeg, MB
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENT
|
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