Canada (Attorney General) v. Meredith

Canada (Attorney General) v. Meredith
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-04-26
Neutral citation
2013 FCA 112
File numbers
A-268-11
Decision Content
Date: 20130426
Docket: A-268-11
Citation: 2013 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
Heard at Ottawa, Ontario, on November 28, 2012.
Judgment delivered at Ottawa, Ontario, on April 26, 2013.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: NADON J.A.
TRUDEL J.A.
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 w