Date: 20000529
Docket: A-250-98
MONTREAL, QUEBEC, MAY 29, 2000
Coram: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
Between:
RAYMOND PICHÉ,
Appellant,
- AND -
HER MAJESTY THE QUEEN, as represented
by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
JUDGMENT
The appeal is dismissed.
J. Richard
Chief Justice
Certified true translation
Martine Brunet, LL. B.
Date: 20000529
Docket: A-249-98
MONTREAL, QUEBEC, MAY 29, 2000
Coram: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
Between:
JOANNE GRANGER,
Appellant,
- AND -
HER MAJESTY THE QUEEN, as represented
by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
JUDGMENT
The appeal is dismissed.
J. Richard
Chief Justice
Certified true translation
Martine Brunet, LL. B.
Date: 20000529
Docket: A-251-98
MONTREAL, QUEBEC, MAY 29, 2000
Coram: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
Between:
GENEVIÈVE COUSINEAU,
Appellant,
- AND -
HER MAJESTY THE QUEEN, as represented
by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
JUDGMENT
The appeal is dismissed.
J. Richard
Chief Justice
Certified true translation
Martine Brunet, LL. B.
Date: 20000529
Docket: A-252-98
MONTREAL, QUEBEC, MAY 29, 2000
Coram: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
Between:
SYLVIE BOILEAU-DI PALMA,
Appellant,
- AND -
HER MAJESTY THE QUEEN, as represented
by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
JUDGMENT
The appeal is dismissed.
J. Richard
Chief Justice
Certified true translation
Martine Brunet, LL. B.
Date: 20000529
Docket: A-254-98
MONTREAL, QUEBEC, MAY 29, 2000
Coram: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
Between:
MAX WEDER,
Appellant,
- AND -
HER MAJESTY THE QUEEN, as represented
by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
JUDGMENT
The appeal is dismissed.
J. Richard
Chief Justice
Certified true translation
Martine Brunet, LL. B.
Date: 20000602
Docket: A-250-98
CORAM: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
BETWEEN:
RAYMOND PICHÉ,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-249-98
JOANNE GRANGER,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-251-98
GENEVIÈVE COUSINEAU,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-252-98
SYLVIE BOILEAU-DI PALMA,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-254-98
MAX WEDER,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
Hearing held at Montréal, Quebec on Monday, May 29, 2000
Judgment rendered at Montréal, Quebec on Friday, June 2, 2000
REASONS FOR JUDGMENT BY: DÉCARY J.A.
Date: 20000602
Docket: A-250-98
(T-895-95)
CORAM: THE CHIEF JUSTICE
DESJARDINS J.A.
DÉCARY J.A.
BETWEEN:
RAYMOND PICHÉ,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-249-98
JOANNE GRANGER,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-251-98
GENEVIÈVE COUSINEAU,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-252-98
SYLVIE BOILEAU-DI PALMA,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
BETWEEN: A-254-98
MAX WEDER,
Appellant
(Applicant),
- and -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent
(Respondent),
- and -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause
(Mis-en-cause).
REASONS FOR JUDGMENT
(Delivered from the bench at Montréal, Quebec
on Friday, June 2, 2000)
DÉCARY J.A.
[1] These appeals take us back to the period of the freeze on the salaries of public sector employees imposed by the federal government in the early 1990s. The appellants, who are all legal counsel employed by the Department of Justice, had their performance increases and performance bonuses suspended between 1991 and 1997. They argued that the suspension between 1991 and 1994 was illegal, primarily on the ground that it was an alteration of their pay scale, an alteration prohibited under the Public Sector Compensation Act (S.C. 1991, c. 30) and the Government Expenditures Restraint Act, 1993, No. 2 (S.C. 1993, c. 13).
[2] The five appeals were joined for hearing and judgment. Mr. Piché's appeal was selected as the typical appeal. There are also 26 applications for judicial review at the trial level awaiting the outcome of this appeal. A copy of the reasons that follow will be included in each of the other cases on appeal.
[3] It was agreed that arguments appropriate to level LA-1 legal officers (such as the appellant Boileau-Di Palma in case A-252-98) would be made in the case at bar, although Mr. Piché himself is a level LA-2A legal officers.
[4] The appellants, who are not unionized, filed grievances pursuant to s. 91 of the Public Service Staff Relations Act (R.S.C. 1985, c. P-35). These grievances were taken to the final level of the applicable process, that is to the Deputy Minister of Justice in his capacity as deputy head of the employer department.
[5] The Deputy Minister dismissed the grievances and an application for judicial review filed from the Deputy Minister's decisions was also dismissed by Lutfy J. (as he then was) in a judgment the reasons for which are published at (1998), 147 F.T.R. 1 (Granger v. Canada (Treasury Board)).
[6] The argument in this Court dealt primarily with the interpretation of (a) the "Salary Administration Plan -- Law Group -- Department of Justice and Other Excluded Legal Officers" ("the Plan"), a plan unilaterally defined by the Treasury Board pursuant to s. 11(2) of the Financial Administration Act (R.S.C. 1985, c. F-11) which for all practical purposes constitutes the essence of the appellants' employment contract; (b) the two aforementioned statutes of 1991 and 1993; and (c) directives issued by the Treasury Board Secretariat pursuant to the Plan. Other arguments were put forward by the appellants, relating to the discriminatory and arbitrary nature of the decision made concerning them, the theory of legitimate expectations, unjust enrichment and the fact that the deputy head's decision was made at the instance of a third party. The latter arguments were not canvassed at length at the hearing and there is no need for us to deal with them any further. They were all summarily dismissed by Lutfy J., and we consider that he was right.
[7] The principal argument, based on interpretation of the aforesaid statutes, remains.
[8] We readily recognize that the 1991 and 1993 statutes do not have the clarity which the Public Sector Compensation Restraint Act (S.C. 1982, c. 122) had before them and the Budget Implementation Act, 1994 (S.C. 1994, c. 18) had after them. We further recognize that the Plan was not drawn up with the stringency characterizing legislative or regulatory provisions, which it is not. We also admit that the effect of the aforementioned legislation has not been uniform throughout the federal public sector and that certain employees have been affected more harshly than others.
[9] Having said that, we consider that the interpretation given by the Deputy Minister, and then by Lutfy J., is the correct one.
[10] The Plan in question, by its very language, especially in clauses 6.2 and 6.3, gives the deputy head a certain freedom of manoeuvre when the time comes to determine performance pay increases and make performance awards. This margin seems to the Court to be even broader when it applies to salary increases of level LA-1 legal officers.
[11] It is true, according to the evidence, that in the past the deputy head has always administered performance pay in accordance with the guidelines laid down by the Plan. It is also true that Department of Justice level LA-2 legal officers are entitled to expect that, "as a general guide", to use the language of clause 6.3.1, their pay will be determined in the way suggested by the Plan. However, the fact remains that there is freedom for manoeuvre and in special circumstances the deputy head may apply the Plan in a particular year in a way different from that used in a previous year.
[12] Among these special circumstances is certainly his being "otherwise directed" by the Treasury Board Secretariat, as authorized by clause 7 of the Plan. It follows that not applying the Plan in the same way from one year to the next does not mean altering it and that the deputy head's decision not to determine salary increases and make performance awards following a directive to that effect given by the Treasury Board Secretariat does not constitute an "amendment" of the Plan within the meaning given to that word by the 1991 and 1993 statutes.
[13] In the case at bar, the directives given by the Treasury Board Secretariat on November 22, 1991 (J.R., vol. 1, at p. 116) and January 4, 1993 (J.R., vol. 1, at p. 129) were part of a policy for controlling government expenditure which required that there would be no "performance pay" for a number of years. By that practice the application of the applicable performance pay system, in particular to levels LA-2A to LA-3C legal officers, was suspended. As this policy did not apply to plans which made no provision for [TRANSLATION] "discretionary performance bonuses" (J.R., vol. 1, at p. 129), and as the Plan provided no performance bonus for level LA-1, LA-1 legal officers could continue to receive merit increases within the established pay ranges.
[14] The appellants argued that where level LA-1 legal officers were concerned the deputy head was bound by the directive issued by the Treasury Board Secretariat and could not, as he did from 1993 onwards, subject them to the same treatment as he imposed on legal officers at higher grades.
[15] In our opinion, this argument is based on a misreading of the directives issued by the Secretariat. Both the directive of November 22, 1991 and that of January 4, 1993 indicate that for group LA-1 merit increases "may be applied". The Secretariat accordingly left it in the deputy head's discretion whether they should be applied. The deputy head chose to apply them in 1991 and 1992 and not to apply them in 1993, on the ground that the salaries of certain LA-1s recently promoted to level LA-2A exceeded that of certain LA-2As promoted to that level some time before. Lutfy J. was right to conclude that this was a proper exercise of discretion.
[16] The appeals will be dismissed. As the parties agreed that no costs should be awarded, the appeals will be dismissed without costs.
Robert Décary
J.A.
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20000602
Docket: A-250-98
BETWEEN:
RAYMOND PICHÉ,
Appellant,
- AND -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20000602
Docket: A-249-98
BETWEEN:
JOANNE GRANGER,
Appellant,
- AND -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20000602
Docket: A-251-98
BETWEEN:
GENEVIÈVE COUSINEAU,
Appellant,
- AND -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20000602
Docket: A-252-98
BETWEEN:
SYLVIE BOILEAU-DI PALMA,
Appellant,
- AND -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
APPEAL DIVISION
Date: 20000602
Docket: A-254-98
BETWEEN:
MAX WEDER,
Appellant,
- AND -
HER MAJESTY THE QUEEN
as represented by the Treasury Board,
Respondent,
- AND -
GEORGE THOMSON, in his capacity as the final
level of the procedure for grievances
filed pursuant to s. 91 of the
Public Service Staff Relations Act,
Mis-en-cause.
REASONS FOR JUDGMENT
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE: A-250-98 |
| STYLE OF CAUSE: RAYMOND PICHÉ, |
| Appellant, |
| - AND - |
| HER MAJESTY THE QUEEN as represented by the |
| Treasury Board, |
| Respondent, |
| - AND - |
| GEORGE THOMSON, in his capacity as the final level |
| of the procedure for grievances filed pursuant to s. 91 |
| of the Public Service Staff Relations Act, |
| Mis-en-cause. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
| DATED: June 2, 2000 |
| APPEARANCES: |
| Raymond Piché for the appellant |
| Brian Saunders/ |
| Jan Brongers for the respondent |
| Brian Saunders/ |
| Jan Brongers for the mis-en-cause |
| SOLICITORS OF RECORD: |
| Raymond Piché for the appellant |
| Montréal, Quebec |
| Morris Rosenberg for the respondent |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| Morris Rosenberg for the mis-en-cause |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE: A-249-98 |
| STYLE OF CAUSE: JOANNE GRANGER, |
| Appellant, |
| - AND - |
| HER MAJESTY THE QUEEN as represented by the |
| Treasury Board, |
| Respondent, |
| - AND - |
| GEORGE THOMSON, in his capacity as the final level |
| of the procedure for grievances filed pursuant to s. 91 |
| of the Public Service Staff Relations Act, |
| Mis-en-cause. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
| DATED: June 2, 2000 |
| APPEARANCES: |
| Raymond Piché for the appellant |
| Brian Saunders/ |
| Jan Brongers for the respondent |
| Brian Saunders/ |
| Jan Brongers for the mis-en-cause |
| SOLICITORS OF RECORD: |
| Raymond Piché for the appellant |
| Montréal, Quebec |
| Morris Rosenberg for the respondent |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| Morris Rosenberg for the mis-en-cause |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE: A-251-98 |
| STYLE OF CAUSE: GENEVIÈVE COUSINEAU, |
| Appellant, |
| - AND - |
| HER MAJESTY THE QUEEN as represented by the |
| Treasury Board, |
| Respondent, |
| - AND - |
| GEORGE THOMSON, in his capacity as the final level |
| of the procedure for grievances filed pursuant to s. 91 |
| of the Public Service Staff Relations Act, |
| Mis-en-cause. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
| DATED: June 2, 2000 |
| APPEARANCES: |
| Raymond Piché for the appellant |
| Brian Saunders/ |
| Jan Brongers for the respondent |
| Brian Saunders/ |
| Jan Brongers for the mis-en-cause |
| SOLICITORS OF RECORD: |
| Raymond Piché for the appellant |
| Montréal, Quebec |
| Morris Rosenberg for the respondent |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| Morris Rosenberg for the mis-en-cause |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE: A-252-98 |
| STYLE OF CAUSE: SYLVIE BOILEAU-DI PALMA, |
| Appellant, |
| - AND - |
| HER MAJESTY THE QUEEN as represented by the |
| Treasury Board, |
| Respondent, |
| - AND - |
| GEORGE THOMSON, in his capacity as the final level |
| of the procedure for grievances filed pursuant to s. 91 |
| of the Public Service Staff Relations Act, |
| Mis-en-cause. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
| DATED: June 2, 2000 |
| APPEARANCES: |
| Raymond Piché for the appellant |
| Brian Saunders/ |
| Jan Brongers for the respondent |
| Brian Saunders/ |
| Jan Brongers for the mis-en-cause |
| SOLICITORS OF RECORD: |
| Raymond Piché for the appellant |
| Montréal, Quebec |
| Morris Rosenberg for the respondent |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| Morris Rosenberg for the mis-en-cause |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| FEDERAL COURT OF CANADA |
| APPEAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| FILE: A-254-98 |
| STYLE OF CAUSE: MAX WEDER, |
| Appellant, |
| - AND - |
| HER MAJESTY THE QUEEN as represented by the |
| Treasury Board, |
| Respondent, |
| - AND - |
| GEORGE THOMSON, in his capacity as the final level |
| of the procedure for grievances filed pursuant to s. 91 |
| of the Public Service Staff Relations Act, |
| Mis-en-cause. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 29, 2000 |
| REASONS FOR JUDGMENT BY: DÉCARY J.A. |
| DATED: June 2, 2000 |
| APPEARANCES: |
| Raymond Piché for the appellant |
| Brian Saunders/ |
| Jan Brongers for the respondent |
| Brian Saunders/ |
| Jan Brongers for the mis-en-cause |
| SOLICITORS OF RECORD: |
| Raymond Piché for the appellant |
| Montréal, Quebec |
| Morris Rosenberg for the respondent |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |
| Morris Rosenberg for the mis-en-cause |
| Deputy Attorney General of Canada |
| Ottawa, Ontario |