Gingras v. Canada, (1994) 165 N.R. 101 (FCA)

• Judge: Pratte and Décary, JJ.A., and Chevalier, D.J.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 10, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 165 N.R. 101 (FCA)

Gingras v. Can. (1994), 165 N.R. 101 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty The Queen, In Right of Canada (appellant/defendant) v. Yvon R.H. Gingras (respondent/plaintiff)

(A-73-90)

Indexed As: Gingras v. Canada

Federal Court of Appeal

Pratte and Décary, JJ.A., and Chevalier, D.J.

March 10, 1994.

Summary:

Gingras was a member of the Royal Cana­dian Mounted Police (R.C.M.P.) from 1962 until 1984. He then transferred to the Cana­dian Security Intelligence Service (C.S.I.S.) where he worked until he retired in 1988. Although Gingras was bilingual, he was not paid a bonus under the federal government's 1976 Bilingualism Bonus Plan either by the R.C.M.P. or by C.S.I.S. Gingras commenced an action against the Crown claiming that he was entitled to, inter alia, retroactive pay of $800 per year since 1976.

The Federal Court of Canada, Trial Divi­sion, in a decision reported [1990] 2 F.C. 68, allowed Gingras' action. The court applied the five year prescription period imposed by art. 2260(6) of the Civil Code of Lower Canada and declared that Gingras was entitled to the bilingualism bonus for the years 1980 to 1988 inclusive. The Crown appealed.

The Federal Court of Appeal allowed the appeal in part. The court affirmed that Gingras was entitled to the bonus for the years he worked for the R.C.M.P. The court did not disturb the ruling on the prescription period, noting that the issue was not argued on appeal. The court, however, raised the issue of the application of the six year limi­tation period in s. 38(1) of the Federal Court Act. The court allowed the Crown's appeal in part respecting Gingras' bilingualism bonus during his years at C.S.I.S. The court held that he was entitled to the bonus only from July 1984, when he transferred to C.S.I.S., until March 1985, when the C.S.I.S. Director decided to pay the bonus only to employees who were in the support staff category.

Civil Rights - Topic 999.2

Discrimination - Employment - Language - Bilingualism bonus - [See Crown - Topic 5284 ].

Crown - Topic 5284

Officials and employees - Pay - Bilin­gualism bonus - Gingras was a bilingual Royal Canadian Mounted Police (R.C.M.P.) member from 1962 until July 1984 and then worked with the Canadian Security Intelligence Service (C.S.I.S.) until 1988 - He received no bonuses under the Bilin­gualism Bonus Plan (Can.), 1976 - The Federal Court of Appeal held that the Plan applied to R.C.M.P. members - Therefore, Gingras was entitled to the bonus, although his claim prior to 1980 was held at trial to be precluded by the five year prescription period in the Civil Code of Lower Canada, art. 2260(6) - Further, Gingras was entitled to the bonus from July 1984 until March 1985, when the C.S.I.S. Director decided to pay the bonus to adminis­trative support staff only - The Director's dis­continuance of Gingras' bonus was not contrary to the Charter, s. 15.

Limitation of Actions - Topic 7604

Actions by the Crown - In the Federal Court of Canada - Applicable law - Gingras was a bilingual Royal Canadian Mounted Police (R.C.M.P.) member in Quebec from 1962 until July 1984 and then worked with the Canadian Security Intelli­gence Service (C.S.I.S.) until 1988 - He received no bonuses under the Bilin­gualism Bonus Plan (Can.), 1976 - The Federal Court of Appeal held Gingras was entitled to the bonus until 1985 - His claim prior to 1980 was held at trial to be precluded by the five year prescription period in the Civil Code of Lower Canada, art. 2260(6) - The Federal Court of Appeal, noted that the prescription period issue was not argued on appeal, but raised the issue of the applicability of the six year limitation period in the Federal Court Act, s. 38(1) - See paragraphs 66 to 71.

Words and Phrases

To all eligible employees for whom the Treasury Board is the employer - The Federal Court of Appeal interpreted this phrase as it was used in the federal gov­ernment's Bilingualism Bonus Plan - See paragraphs 22 to 53.

Cases Noticed:

Gingras v. Canada, [1990] 2 F.C. 68; 69 D.L.R.(4th) 55 (F.C.T.D.), refd to. [para. 4].

Brown v. Public Service Commission (Can.), [1975] F.C. 345; 9 N.R. 493 (F.C.A.), refd to. [para. 33, footnote 1].

Flieger v. New Brunswick, [1993] 2 S.C.R. 651; 155 N.R. 1; 138 N.B.R.(2d) 161; 354 A.P.R. 161, refd to. [para. 41, foot­note 6].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161; 80 D.L.R.(4th) 520, refd to. [para. 41, foot­note 6].

Canadian Air Traffic Control Association v. Canada, [1985] 2 F.C. 84; 57 N.R. 351 (F.C.A.), refd to. [para. 41, footnote 6].

Streeting v. Minister of Employment and Immigration, [1988] 2 F.C. 426; 18 F.T.R. 249 (T.D.), refd to. [para. 41, footnote 6].

Genest-Labarre v. R. (1935), 59 B.R. 151, refd to. [para. 41, footnote 6].

New South Wales (Attorney General) v. Perpetual Trustee Co., [1955] A.C. 457; [1955] 1 All E.R. 846 (P.C.), refd to. [para. 41, footnote 7].

Nicholson v. Haldimand-Norfolk Board of Commissioners of Police, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 41, footnote 7].

St. Catharines Police Association v. St. Catharines (City) Police Commissioners, [1971] 1 O.R. 430; 15 D.L.R.(3d) 532 (H.C.), refd to. [para. 41, footnote 7].

Bolling v. Public Service Staff Relations Board (Can.), [1978] 1 F.C. 85; 77 D.L.R.(3d) 318 (F.C.A.), refd to. [para. 54, footnote 11].

Maple Lodge Farms Ltd. v. Canada, Gov­ernment of and Minister of Economic Development, [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 64].

Statutes Noticed:

Bilingualism Bonus Plan (Can.) (1976), sect. 1, sect. 2 [para. 11]; sect. 11 [para. 46].

Canadian Charter of Rights and Freedoms, 1982, sect. 15 [paras. 4, 58]; sect. 16, sect. 17, sect. 18, sect. 19, sect. 20, sect. 21, sect. 22 [para. 60].

Canadian Human Rights Act, S.C. 1976-77, c. 33, sect. 3, sect. 7, sect. 10 [para. 4].

Canadian Security Intelligence Service Act, S.C. 1984, c. 21, sect. 6, sect. 8 [para. 51]; sect. 66(2) [para. 57]; sect. 92 [para. 37]; sect. 93 [para. 33].

Civil Code of Lower Canada, art. 2260(6) [paras. 4, 68]; art. 2261(3) [paras. 5, 68]; art. 2262(3) [para. 5].

Constitution Act, 1867, sect. 15 [para. 54, footnote 11].

Crown Liability Act, R.S.C. 1985, c. C-50, sect. 36 [para. 39, footnote 3].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 37 [para. 39, footnote 3]; sect. 38(1) [para. 66].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18 [para. 3].

Financial Administration Act, R.S.C. 1970, c. F-10, sect. 2 [para. 31]; sect. 3(1), sect. 5(1)(a), sect. 5(1)(b) [para. 16]; sect. 5(5) [para. 17]; sect. 7(1) [para. 27]; sect. 7(3) [para. 28]; sect. 7(6) [para. 29]; sect. 7(9) [para. 38].

Human Rights Act, R.S.C. 1985, c. H-6, sect. 64 [para. 39, footnote 4].

National Defence Act, R.S.C. 1970, c. N-4, sect. 38 [para. 54, footnote 11].

Official Languages Act, R.S.C. 1970, c. O-2, sect. 31, sect. 33 [para. 72]; sect. 36(3) [para. 52].

Public Sector Compensation Act, S.C. 1991, c. 30, sect. 3(2)(d) [para. 44, footnote 8].

Public Service Employment Act, R.S.C. 1970, c. P-32, sect. 2(1) [para. 36]; 2(2) [para. 37].

Public Service Staff Relations Act, R.S.C. 1970, c. P-35, Schedule 1, Part 1, Part II [para. 9]; sect. 2, sect. 3 [para. 33].

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, sect. 5 [para. 48]; sect. 6(2), sect. 7(2), sect. 11 [para. 50]; sect. 21(2) [para. 49, footnote 9]; sect. 22, sect. 22(1) [para. 50]; sect. 53 [para. 39, footnote 3].

Royal Canadian Mounted Police Regula­tions (Can.), C.R.C. 1978, c. 1391, sect. 45, sect. 46, sect. 47, sect. 48, sect. 49, sect. 50 [para. 72].

Supplementary Retirement Benefit Act, R.S.C. 1970 (1st Supp.), c. 43 [para. 47].

Unemployment Insurance Act, S.C. 1970-71-72, c. 48, sect. 3(1)(c) [para. 39, foot­note 5].

Counsel:

Raymond Piché and Odette Bouchard, for the appellant;

Julius H. Grey and Elizabeth Lenghan, for the respondent.

Solicitors of Record:

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Grey, Casgrain, Montreal, Quebec, for the respondent.

This appeal was heard in Montreal, Que­bec, on January 17 and 18, 1994, before Pratte, Décary, JJ.A., and Chevalier, D.J., of the Federal Court of Appeal. The decision of the court was delivered by Décary, J.A., on March 10, 1994, in Ottawa, Ontario.