Canada (Royal Canadian Mounted Police) v. Canada (Attorney General)

Canada (Royal Canadian Mounted Police) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2011-06-21
Neutral citation
2011 FC 735
File numbers
T-50-09
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20110621
Docket: T-50-09
Citation: 2011 FC 735
Ottawa, Ontario, June 21, 2011
PRESENT: The Honourable Madam Justice Heneghan
REPRESENTATIVE PROCEEDING
BETWEEN:
ROBERT MEREDITH AND BRIAN ROACH (REPRESENTING ALL MEMBERS OF THE ROYAL CANADIAN MOUNTED POLICE)
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] Mr. Robert Meredith and Mr. Brian Roach (the “Applicants”) are Members of the Royal Canadian Mounted Police (the “RCMP”). They bring this application for judicial review as representatives of all Members of the RCMP. Although the Applicants did not bring a motion for an Order pursuant to Rule 114 of the Federal Courts Rules, SOR/98-106 (the “Rules”), appointing them as representatives of the RCMP, the Respondent has not contested their status in that respect.
[2] The Applicants seek judicial review of a decision made on December 11, 2008, by the Treasury Board. They claim that the decision, together with certain provisions of the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 (the “ERA”), amount to a breach of their rights to freedom of association pursuant to subsection 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”).
[3] In the alternative, the Plaintiffs argue that the decision constitutes a breach of contract, having regard to the provisions of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the “RCMP Act”).
The Parties
[4] The Applicants are serving Members of the RCMP, representing all Members across the country. Mr. Meredith is an RCMP Officer in Sherwood Park, Alberta. He was elected to the National Executive of the Staff Relations Representative (the “SRR”) Program in 2008. Mr. Roach is an RCMP Officer in Winnipeg, Manitoba. He was elected to the National Executive of the SRR Program in 2005.
[5] The Attorney General of Canada, representing Treasury Board, is the Respondent (the “Respondent”) to this application.
The Evidence
[6] The evidence consists of affidavits filed on behalf of both the Applicants and the Respondents.
[7] The Applicants filed an affidavit of Mr. Meredith, and two affidavits of Mr. Roach. They also filed the affidavits of Mr. Mike McDermott, Chair of the Pay Council since 2007; Mr. Gord Dalziel, an RCMP Member and the Chair of the Staff Relations Pay and Benefits Committee and Member of the Pay Council; and Don Taylor, a retired RCMP Member and a former Chair of the Staff Relations Pay and Benefits Committee.
[8] Mr. Eugene Swimmer, Distinguished Research Professor, School of Public Policy and Administration, Carleton University, and the Compensation Specialist on the Pay Council also swore an affidavit in support of the Applicants’ application. Finally, Ashley Deathe, a student-at-law at the law firm of the Applicants’ Counsel swore an affidavit in support of this application, referencing proceedings begun in the Ontario Superior Court of Justice by the Mounted Police Association of Ontario.
[9] The Respondent filed three affidavits. The first affidavit was the affidavit of Ms. Claudia Zovatto, Senior Director, Excluded Groups and Administrative Policies with the Treasury Board Secretariat. Ms. Helene Laurendeau, Assistant Deputy Minister, Compensation and Labour Relations sector of the Treasury Board Secretariat, and Mr. Paul Rochon, Senior Assistant Deputy Minister, Economic and Fiscal Policy Branch, Department of Finance, also swore to affidavits in support of the Respondent.
Facts
[10] Section 22 of the RCMP Act provides that “the Treasury Board shall establish the pay and allowances to be paid to members”.
[11] Paragraph 2(1)(d) of the Public Service Labour Relations Act, which is Part 3 of the Public Service Modernization Act, S.C. 2003 c. 22, excludes RCMP Members from the federal public service collective bargaining regime. At paragraphs 16-18 of her affidavit, Mr. Laurendeau explains the difference between employees governed by the Public Service Labour Relations Act and employees who are not:
16. The federal public administration compromises three concentric circles of employment relationships. The inner circle is the core public administration for which the Treasury Board is the employer. Members of the Royal Canadian Mounted Police are part of the core public administration and the Treasury Board is their employer as well.
17. The next ring consists of the various separate agencies under the Financial Administration Act and the Public Service Labour Relations Act. The heads of these separate agencies are responsible for determining their own human resources requirements, including job classification, pay and other terms and conditions of employment. In most cases, the President of the Treasury Board approves collective bargaining mandates for these employers.
18. The outer ring consists of the appropriation-dependant Crown corporations listed in Schedule 2 to the Public Service Labour Relations Act. The heads of these Crown corporations are responsible for their own human resources requirements, including collective bargaining. Treasury Board does not therefore approve collective bargaining mandates for these corporations. Its fiscal control is limited to the transfer of funds.
[12] Before 1996, Members of the RCMP had no formal mechanism through which to advocate for increases in pay. Pursuant to section 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (the “RCMP Regulations”), the SRR Program was established to represent the interests of Members of the RCMP. The National Executive of the SRR Program is composed of two full-time representatives and the Chair of the Staff Relations Pay and Benefits Committee. That Committee is established pursuant to section 96 of the RCMP Regulations.
[13] At the same time as the adoption of the SRR Program, the Commissioner of the RCMP (the “Commissioner”) created an advisory board known as the Pay Council. The Pay Council consists of a neutral chairperson appointed by the Commissioner, two members of RCMP management and two SRRs.
[14] One of those representatives is the Chair of the Pay Committee and the other is an external labour expert appointed by the Commissioner upon the advice of the SRR National Executive.
[15] The Pay Council works upon the basis of consensus and collaboration. The Commissioner contributes throughout the process. When the Pay Council reaches a final recommendation, that recommendation is submitted to the Commissioner. The Commissioner will then discuss the proposal with the Treasury Board Secretariat. The Commissioner has the discretion to accept or reject the recommendation, in whole or in part. If the Commissioner supports the recommendation, he provides it to the Minister responsible for the RCMP, currently the Minster of Public Safety. That Minister then makes a formal submission to the Treasury Board, which in turn decides whether and how to revise the pay and benefits for Members of the RCMP.
[16] At paragraph 26 of his affidavit, Mr. Taylor describes the nature of the Pay Council as follows:
I have one final point about the Pay Council. Throughout my time on the Pay Council, I had to be very careful not to use the word “negotiate” when describing the mandate or function of the Pay Council. Members of the RCMP are prohibited by statute from joining a trade union or engaging in collective bargaining or negotiation with Treasury Board or the RCMP. Therefore, I had to be careful not to use the word “negotiate” or “negotiation” to describe the work of the Pay Council. Instead I used words such as “recommendation” or “collaboration” or “consultation” to describe our work. However, despite the use of these words, the Pay Council was the vehicle by which RCMP Members negotiated with management. Now that I am free from possible disciplinary action by the RCMP, I am free to say that my job on the Pay Council was to negotiate terms and conditions of employment.
[17] The constitutionality of section 96 of the RCMP Regulations and the SRR Program and Pay Council processes were challenged in litigation before the Ontario Superior Court of Justice. In the decision reported as Mounted Police Association of Ontario v. Canada (Attorney General) (2009), 96 O.R. (3d) 20 the Court found section 96 of the Regulations and the SRR Program and Pay Council processes to be unconstitutional. A declaration issued finding section 96 to be of no force and effect. That declaration was stayed for 18 months from the date of the Court’s reasons.
[18] The initial stay was continued by the Ontario Court of Appeal until 30 days following the release by the Supreme Court of Canada of the decision in Fraser v. Ontario (Attorney General), 301 D.L.R. (4th) 335, upon appeal from the Ontario Court of Appeal.
[19] In determining appropriate compensation, the Pay Council uses a comparator group, described as the “police universe”, of eight Canadian police forces excluding the RCMP. Considering overall compensation, the Pay Council aims to provide compensation placing the RCMP in the average of the top three police forces.
[20] The Pay Council worked throughout 2007 and provided a recommendation to the Commissioner in respect of salary and benefits for 2008 through 2010.
[21] The Treasury Board accepted most of what the Pay Council had recommended to the Commissioner. On June 26, 2008, the Treasury Board announced the following increases:
Year
Economic Increase
Market Adjustment
Total Increase
2008
2%
1.32%
3.32%
2009
2%
1.5%
3.5%
2010
2%
0%
2%
[22] The Treasury Board also agreed to double service pay, that is a lump sum paid annually to Members of the RCMP based upon the number of years of service and determined as a percentage of salary. The Treasury Board also authorized a Field Trainer Allowance.
[23] As of December 31, 2008, this would place the total compensation, including all pay and benefits, for the RCMP at 0.43% below the average of the total compensation for the top three police forces in Canada. This differential was within the Pay Council’s acceptable range.
[24] In the meantime, the global economy was collapsing, reaching a critical state in the fall of 2008. There was a sharp downward revision of the Canadian economic outlook between November 2008 and January 2009. This economic crisis would lead to the deepest global recession since the great Depression. These circumstances, well-known to everyone, are detailed in the affidavit of Mr. Rochon.
[25] In view of these developments, the Department of Finance approached the Treasury Board Secretariat in October 2008 to discuss measures to reduce spending, including the restriction of wages paid to the Public Service. Ms. Laurendeau prepared a report setting out three possibilities:
1. The imposition of staffing freezes;
2. Control of wage growth by suspending promotions and movements within pay brackets; or
3. Freezing or limiting salary increases.
Ms. Laurendeau recommended the third option and in particular, she favoured limiting salary increases rather than freezing those increases.
[26] The Treasury Board Secretariat contacted the heads of all the bargaining agents in the core public administration in late October and early November of 2008. According to paragraph 20 of Ms. Laurendeau’s affidavit, the Treasury Board’s
… strategy was to try to create momentum towards consensus throughout the core public administration and thereby encourage the separate agencies and the Crown corporations to do the same.
[27] On November 17, 2008, the Secretary of the Treasury Board met with the Chief of Defence Staff and the Commissioner of the RCMP to discuss limiting salary increases.
[28] On November 18, 2008, the Secretary of the Treasury Board met with the heads of Crown corporations regarding wage increases. The same day, the President of the Treasury Board made a final offer to the bargaining agents for the core public administration. That offer was for a 2.3% salary increase for 2007-2008, and a 1.5% salary increase for the three following years.
[29] On November 27, 2008, the Government of Canada issued an economic and financial statement which included wage limit increases for the public sector. On the same day, the Treasury Board Secretariat informed the Commissioner that the wage limiting increases would apply to the RCMP.
[30] By early December 2008, the Treasury Board signed agreements with 14 bargaining agents in the core public administration. By this time, over 30 separate agencies had also reached agreements with their respective bargaining agents; see the affidavit of Ms. Laurendeau at paragraphs 23-29.
[31] In the meantime, senior RCMP officials contacted Ms. Zovatto, to determine whether the RCMP would be able to implement the wage increases for 2009. According to her affidavit, Ms. Zovatto’s staff advised those RCMP officials not to raise wages above 1.5%.
[32] According to the affidavit of Mr. Dalziel, rumours of this advice circulated among SRRs. Mr. Dalziel, the SRRs on the Pay Council, contacted Deputy Commissioner Peter Martin, the Chief Human Rights Officer, in this regard. In response, the Commissioner sent a bulletin on November 28, 2008, indicating that he did not know whether the RCMP would be affected by the wage increase limit.
[33] On December 11, 2008, the Treasury Board officially approved a modification to the RCMP package that had been approved in June 2008. This modification cancelled the market adjustment for 2009, reduced the economic increase from 2% to 1.5% for 2009 and 2010, and cancelled the increase to the service pay.
[34] On December 12, 2008, the Commissioner informed the members of the SRR National Executive, Mr. Dalziel and Mr. McDermott, of the Treasury Board’s decision. The Commissioner notified the general membership of the RCMP of this decision on the same day, that is December 12, 2008.
[35] The Applicants and their colleagues began requesting meetings and consultations with various government officials regarding the Treasury Board’s decision. According to the affidavit of Mr. Roach, such attempts included letters from the SRR National Executive or the Pay Council in December 2008 and January 2009 to Stockwell Day, the Minister of International Trade, and the former Minister responsible for the RCMP, Ms. Laurendeau, the Prime Minister, and 75 Members of Parliament. None of these letters were answered.
[36] In his letter to Ms. Laurendeau, Mr. McDermott expressed his disappointment that the Pay Council process had been disregarded.
[37] On January 27, 2009 and February 2, 2009, Mr. Roach, Mr. Dalziel, Mr. Meredith and others met with the Honoruable Peter Van Loan, the Minister of Public Safety, in attempt to initiate discussions on alternatives to the wage rollback.
[38] On February 5, 2009, the same RCMP Members met with the Honourable Vic Toews, then President of the Treasury Board. At that meeting, Mr. Toews was not willing to discuss the Treasury Board’s decision or the ERA.
[39] On February 6, 2009, the ERA was tabled in Parliament. The relevant sections of that Act read as follows:
Increases to Rates of Pay
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%.
…
Non-represented and Excluded Employees
Definitions
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
…
(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.
Augmentation des taux de salaire
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 :
Augmentation des taux de salaire
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.
…
Employés non représentés ou exclus
Définitions
35. (1) Les définitions qui suivent s’appliquent aux articles 36 à 54.
« employé » Tout employé non représenté par un agent négociateur ou exclu d’une unité de négociation.
« condition d’emploi » Toute condition d’emploi s’appliquant aux employés.
(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 :
…
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.
[40] According to paragraph 30 of Mr. Rochon’s affidavit, the objectives of the ERA and of the decision to limit wage increases were the following:
1. To reduce undue upward pressure on private sector wages and salaries;
2. To provide leadership by showing restraint and respect for public money; and
3. To manage public sector wage costs in an appropriate and predictable manner that would help ensure the continuing soundness of the Government’s fiscal position.
[41] While the measure was temporary, since the limit on wage increases was to expire on March 31, 2011, the underlying idea was to permanently reduce the amount of Government spending, in order to assist in the national economic recovery from a deficit position as soon as possible. This is stated in paragraph 31 of Mr. Rochon’s affidavit.
[42] The SRRs continued their efforts. The Pay Council presented a Pay Roll Back package to Mr. Toews, on February 11, 2009. This proposal was formally rejected on February 27, 2009. According to Mr. Roach, the National Executive of the SRR advised the Pay Council that its package was rejected because it was inconsistent with the ERA.
[43] On March 3, 2009, Mr. Meredith, Mr. Dalziel, and Mr. Roach met with the Commissioner concerning compensation. At that meeting, the Commissioner advised that the Prime Minister and other Ministers would not answer their requests for meetings. Since the Ministers were refusing to meet with the public service unions, they could not appear to favour the RCMP.
[44] At a second meeting on March 4, 2009, the Commissioner presented the Pay Council with a mandate letter to consider how to increase existing allowances to advance transformation initiatives for the RCMP, in accordance with section 62 of the ERA.
[45] From paragraphs 14 to 16 of his affidavit, Mr. Roach summarizes the outcome of the various meetings between RCMP Members and government officials between December 2008 and March 2009, as follows:
14. The meetings on February 5, 2009 and March 3-4, 2009 were the only meetings at which compensation for RCMP Members was discussed.
15. At no time during any of these meetings was any Government official willing to discuss changing the decision announced on December 12, 2008 rolling back our schedule wage increases or changing any provision of the Expenditure Restraint Act, including the provisions permitting the rollback of scheduled wage increases.
16. I would not characterize these meetings with government officials as consultations or negotiations. Instead, these meetings were part of our lobbying effort: during these meetings we lobbied for changes, but were consistently rebuffed. The rollback of the schedule wage increases was an accomplished fact.
[46] The ERA received Royal Assent on March 12, 2009.
[47] On March 13, 2009, the Pay Council presented its report on transformation initiatives. On June 9, 2009 the Treasury Board increased service pay from 1% to 1.5% for each five years of service.
Issues
[48] The following issues arise in this application:
1. Did the decision of the Treasury Board on December 12, 2008 to reduce the scheduled wage increases for RCMP Members, together with the impugned provisions of the ERA, violate subsection 2(d) of the Charter?
2. If so, is this violation saved by section 1 of the Charter?
3. In the alternative, was the Treasury Board’s decision of December 12, 2008 a breach of contract?
Discussion
1. Did the decision of the Treasury Board on December 12, 2008 to reduce the scheduled wage increases for RCMP Members, together with the impugned provisions of the ERA, violate subsection 2(d) of the Charter?
(i) Applicants’ Submissions
[49] The Applicants, relying on the decision of the Supreme Court of Canada in BC Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] 2 S.C.R. 391 argue that the combined effect of the Treasury Board’s decision and the impugned provisions of the ERA deprive them of the right of freedom of association. In BC Health Services, where the Court was dealing with alleged legislative interference with the collective bargaining process, the following test was set out:
(a) Does the law interfere with the process of collective bargaining?
(b) Is the interference substantial?
[50] In Confederation des syndicates nationaux c. Quebec (Procureur general), [2008] R.J.D.T. 1477, the Superior Court of Quebec identified examples of state action that constitutes substantial interference with subsection 2(d) rights. These include the failure to consult, the refusal to bargain in good faith, the withdrawal of important topics for negotiation, and unilateral cancellation of negotiated terms.
[51] The Applicants argue that the Treasury Board’s decision was made without any input from RCMP Members or the Pay Council, and that the Treasury Board refused to discuss wages once the decision was announced.
[52] The Applicants argue that the ERA is equivalent to the legislation found to be unconstitutional in BC Health Services. The ERA invalidates negotiated agreements on wages and prohibits further negotiation until a future set date. The wage package for RCMP Members in 2008 was not a collective agreement, but it was achieved as a result of the Pay Council’s efforts. The Pay Council is the RCMP’s substitute for collective bargaining, and wage packages implemented as a result of the work of the Pay Council must be treated as analogous to collective agreements.
[53] According to the Applicants, the abrogation of a wage package resulting from recommendations of the Pay Council and the prohibition of wage packages flowing from the recommendations of the Pay Council, amount to the cancellation of a collective agreement or a bar against collective bargaining.
[54] With respect to the matter of substantial interference, the Applicants point out that the subject matter of the Treasury Board’s decision and the ERA is wages. They submit that remuneration constitutes the cornerstone of collective bargaining.
[55] The Treasury Board’s decision cancelled the existing wage agreement, and the ERA prohibits collective bargaining on wages until 2011. The Applicants argue that the Treasury Board’s decision and the ERA, accordingly, interfere with negotiating the most important collective bargaining issue. They submit that the ERA precludes negotiation on salary and abrogates an existing wage package that was developed through the Pay Council. As a result, it violates subsection 2(d) of the Charter.
[56] The SRRs and Pay Council attempted to engage in consultation about wages. Prior to the decision of December 11, there was no consultation or negotiation. The decision by the Treasury Board was unilateral. According to the affidavit of Mr. Dalziel, when a Pay Council representative asked the RCMP Commissioner whether the previously negotiated wage package would be decreased, the Commissioner stated that he was unaware as to whether the RCMP would be affected by the Government’s wage limit program.
[57] The Applicants further argue that the Treasury Board refused to negotiate or consult after it reached its decision. According to the second affidavit of Mr. Roach, SRRs for RCMP Members had two meetings with the Minister of Public Safety, one meeting with the President of the Treasury Board, a meeting with the Commissioner and some other discussions with RCMP officials. Treasury Board officials refused to discuss salary at any of these meetings. The Pay Council developed a consultation package which was rejected, due to its inconsistency with the proposed ERA.
[58] After the initial hearing of this application for judicial review, the Supreme Court of Canada released its decision in Fraser v. Ontario (Attorney General), 2011 SCC 20. The parties were invited to make written and oral submissions, and both did so.
[59] The Applicants argued that Fraser has little impact on this case. The majority of the Supreme Court confirmed its decision in BC Health Services, emphasizing that good faith negotiation and consultation is required to comply with subsection 2(d) of the Charter.
[60] The Applicants also submitted that the facts in this case are distinguishable from those in Fraser.
(ii) Respondent’s Submissions
[61] The Respondent argues that the protection of subsection 2(d) of the Charter is limited to protection from substantial interference with associational activity, that is the process enabling employees to pursue objectives in meaningful negotiations with the employer. He argues that the inquiry is contextual and fact specific, focusing on the importance of the matter affected to the process of collective bargaining, and second, to the manner in which the measure impacts on the collective right to good faith negotiation and consultation.
[62] The SRR Program and the Pay Council, according to the Respondent, are mechanisms that permit associational freedoms of the RCMP Members on a collegial and consensual basis. Recommendations are considered by the Commissioner, who makes appropriate recommendations to the Minister of Public Safety. This model cannot be directly compared to traditional labour relations models. He argues that the Applicants are trying to impose an obligation of good faith bargaining. Subsection 2(d) grants a right to maintain the process of collective engagement but is not the right to claim the procedural benefits of a traditional collective bargaining model.
[63] Further, the Respondent submits that the ERA does not interfere with the associational activity of the SRR Program or the Pay Council. The ERA applies to establishing wages for individuals across the public service and does not amend, or even refer to, existing process for representing the interests of the RCMP Members. The ERA does not nullify negotiated terms of a collective agreement or undermine future collective agreements; rather, it imposes a statutory constraint on the authority of Treasury Board to establish terms and conditions of employment.
[64] The Respondent further argues that although wages are important, the ERA merely limits increases for two years. This is not a freeze or wage reduction. The impact on remuneration is limited.
[65] The Respondent notes that the SRRs met with the President of the Treasury Board in February of 2009. The President of Treasury Board also received submissions from the Pay Council. The President listened to these submissions but did not change the ERA. According to the Respondent, the President used the ordinary consultative process, inviting the Pay Council to make recommendations regarding new allowances under section 62 of the ERA.
[66] Finally, the Respondent submits that the ERA does not affect the existing associational process. It only restricts the maximum pay increases that may be granted to RCMP Members. The Applicants’ claim amounts to a claim for a specific economic outcome, which is not protected by subsection 2(d) of the Charter.
[67] He argues that disappointment by the RCMP concerning limited wage increases does not constitute a loss of confidence in the existing associational process nor does it constitute substantial interference. The manner in which the terms of employment were altered is consistent with a good faith process of discussion and consultation. He submits that the Treasury Board met this standard by encouraging the Commissioner to address the issue with the RCMP before the Treasury Board decision was made.
[68] In addressing the Supreme Court of Canada’s decision in Fraser, the Respondent submits that Fraser confirms the subsection 2(d) right to association, but that subsection 2(d) does not protect a particular model of collective bargaining nor guarantee particular outcomes.
[69] The Respondent further argues that Fraser creates an overall threshold of effective impossibility, that is in order to violate subsection 2(d), legislation or government action must render the meaningful pursuit of collective goals substantially impossible.
[70] Applying that standard in this case, the Respondent argues that the Treasury Board’s decision and the ERA do not render the pursuit of collective goals effectively impossible. The Respondent points to the increase in service pay under the transformation initiatives as evidence that the Pay Council continued its work unimpeded by the Treasury Board’s action and the ERA.
(iii) Analysis
[71] The statutory regime precludes the Members of the RCMP from collective bargaining; see paragraph 2(1)(d) of the Public Service Labour Relations Act, and sections 41 and 96 of the RCMP Regulations, as discussed in Mounted Police Association of Ontario v. Canada.
[72] The Pay Council’s work 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, that is the Treasury Board.
[73] In Fraser, the Supreme Court of Canada held that all employees, not just those under a Wagner style collective bargaining regime, have the right to make collective representations and have those representations considered in good faith; see paras. 42, 46-48. It follows that the Pay Council process is important and should be afforded the protection of subsection 2(d) of the Charter.
[74] The Supreme Court of Canada in Fraser adopted the approach to determining whether a subsection 2(d) breach has occurred, but did not apply the two-step test laid out in BC Health Services. Instead, the majority of the Supreme Court in Fraser reformulated the inquiry at para. 47, as follows:
[47] If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established, and the onus shifts to the state to justify the limit under s. 1 of the Charter.
[75] In the factual context of Fraser, the majority frames the test as follows, at paras. 98-99:
[98] The essential question is whether the AEPA makes meaningful association to achieve workplace goals effectively impossible, as was the case in Dunmore. If the AEPA process, viewed in terms of its effect, makes good faith resolution of workplace issues between employees and their employer effectively impossible, then the exercise of the right to meaningful association guaranteed by s. 2(d) of the Charter will have been limited, and the law found to be unconstitutional in the absence of justification under s. 1 of the Charter. The onus is on the farm workers to establish that the AEPA interferes with their s. 2(d) right to associate in this way.
[99] As discussed above, the right of an employees association to make representations to the employer and have its views considered in good faith is a derivative right under s. 2(d) of the Charter, necessary to meaningful exercise of the right to free association. The question is whether the AEPA provides a process that satisfies this constitutional requirement.
[76] In his submissions on Fraser, the Respondent repeatedly emphasized the word “impossible”, arguing that it creates an overall threshold. In my opinion, the Respondent’s focus in this regard is too narrow.
[77] The word “impossible” must be taken in the context of other words such as “meaningfully” and “effectively”, and the phrase “good faith”. If legislation makes it possible for employees to make collective representations that are ineffective or not meaningful, or if representations are possible but government action demonstrates a lack of good faith, a breach of subsection 2(d) of the Charter will still have occurred.
[78] In my opinion, the Supreme Court’s use of the word of impossibility does not constitute a paramount consideration or a threshold. Rather, it is part of the overall test set out and applied in Fraser.
[79] The test applied in Fraser can be easily restated to illustrate its applicability to this case: 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?
[80] Unlike