Meredith et al. v. Canada (Attorney General), 2011 FC 735

• Judge: Heneghan, J.
• Court: Federal Court (Canada)
• Case Date: November 03, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 735;(2011), 392 F.T.R. 25 (FC)

Meredith v. Can. (A.G.) (2011), 392 F.T.R. 25 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. JL.009

Robert Meredith and Brian Roach (Representing All Members of the Royal Canadian Mounted Police) (applicants) v. Attorney General of Canada (respondent)

(T-50-09; 2011 FC 735)

Indexed As: Meredith et al. v. Canada (Attorney General)

Federal Court

Heneghan, J.

June 21, 2011.

Summary:

The Treasury Board approved a modification to the RCMP compensation package that it had approved in 2008. The 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. Thereafter, the Expenditure Restraint Act was tabled. The plaintiffs, representing members of the RCMP, applied for judicial review of the Treasury Board's decision, asserting that the decision together with certain provisions of the Act amounted to a breach of their s. 2(d) Charter right to freedom of association. Alternatively, they asserted that the decision constituted a breach of contract, having regard to the Royal Canadian Mounted Police Act.

The Federal Court allowed the application and quashed the Treasury Board's decision, declaring that it was contrary to s. 2(d) of the Charter.

Civil Rights - Topic 2100

Freedom of association - General - Fraser et al. v. Ontario (Attorney General) (S.C.C.) provided that "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 ...) 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." - The Federal Court rejected an assertion that the word "impossible" created an overall threshold - "Impossible" had to be taken in the context of the other words such as "meaningfully", "effectively" and "good faith" - If legislation made it possible for employees to make collective representations that were ineffective or not meaningful, or if representations were possible but government action demonstrated a lack of good faith, a breach of s. 2(d) still occurred - The Supreme Court's use of "impossible" did not constitute a paramount consideration or a threshold - Rather, it was part of the overall test set out and applied in Fraser - See paragraphs 74 to 78.

Civil Rights - Topic 2157.1

Freedom of association - Limitations on - Regulation of remuneration - The Treasury Board approved a modification to the RCMP compensation package that had been approved in 2008 following a recommendation by the Pay Council - The modification cancelled the market adjustment for 2009, reduced the economic increase from 2% to 1.5% for 2009 and 2010, and cancelled an increase to the service pay - Thereafter, the Expenditure Restraint Act (ERA) was enacted - The plaintiffs, representing members of the RCMP, applied for judicial review, asserting that the Board's decision together with provisions of the ERA breached their s. 2(d) Charter right to freedom of association - The Federal Court allowed the application - The Pay Council's work, although not equivalent to collective bargaining, was the only formal means through which RCMP members could collectively pursue goals relating to remuneration - Its process was important and protected by s. 2(d) - The ERA gave effect to the Board's decision - The Treasury Board withdrew the issue of remuneration from consideration and refused to negotiate on a good faith basis - The unilateral cancellation of a previous agreement also constituted interference with s. 2(d) rights - Although the measures were temporary, their impact was meant to be permanent - The Board's decision and the ERA made it effectively impossible for the Pay Council to make representations on behalf of RCMP members and have those representation considered in good faith - That was a substantial interference that violated s. 2(d) - The breach was not saved by s. 1 - See paragraphs 49 to 92.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Treasury Board approved a modification to the RCMP compensation package that had been approved in 2008 following a recommendation by the Pay Council - The modification cancelled the market adjustment for 2009, reduced the economic increase from 2% to 1.5% for 2009 and 2010, and cancelled an increase to the service pay - Thereafter, the Expenditure Restraint Act (ERA) was enacted - The Federal Court held that the Board's decision, together with provisions of the ERA, breached the RCMP members' s. 2(d) Charter right to freedom of association - The breach was not saved by s. 1 - Section 22 of the RCMP Act granted the Board the authority to establish RCMP members' pay - Even if its decision was privileged by virtue of cabinet confidence, it was clearly communicated to the Commissioner of the RCMP, who in turn communicated it to the Staff Relations Representative National Executive and RCMP members - The Board's communications of its decision to the Commissioner made its decision sufficiently accessible to the RCMP members - As a result it was prescribed by law - The first objective of the decision was reducing upward pressure on wages and reducing job losses - A response to the global financial crises was a pressing and substantial objective - The second objective of providing leadership and showing restraint and respect for public money was not pressing and substantial - It was unnecessary to conclusively demonstrate that the limits placed on s. 2(d) rights would further the stated objectives - It only had to be shown that it was reasonable to suppose that the limit might further the goal - The Crown failed to provide persuasive and cogent evidence to show that the reduction of RCMP wage increases provided leadership or demonstrated restraint with public money - Given that other bargaining agents were informed and had an opportunity to consult, to the point of signing agreements, the unilateral action and complete disregard for the Pay Council's process was not minimally impairing - The salutary effect of the ERA were outweighed by the deleterious effects - See paragraphs 93 to 133.

Crown - Topic 1081

Contracts with Crown - Employment contracts - General - The Treasury Board approved a modification to the RCMP compensation package that had been approved in 2008 following a recommendation by the Pay Council - The modification cancelled the market adjustment for 2009, reduced the economic increase from 2% to 1.5% for 2009 and 2010, and cancelled an increase to the service pay - Thereafter, the Expenditure Restraint Act (ERA) was enacted - The Federal Court rejected an assertion that the Board`s decision constituted a breach of the employment contract - Section 22 of the RCMP Act gave the Board the power to set terms of rates of pay - The exercise of that power did not amount to a breach of contract - See paragraphs 134 to 147.

Crown - Topic 2208

Crown privilege or prerogative - General - Cabinet confidences (incl. cabinet discussions and discussions between cabinet and staff) - [See Civil Rights - Topic 8348 ].

Crown - Topic 5287

Officials and employees - Pay or rates of pay - Adjustments - [See Crown - Topic 1081 ].

Cases Noticed:

Mounted Police Association of Ontario et al. v. Canada (Attorney General), [2010] O.T.C. Uned. 4612; 96 O.R.(3d) 20 (Sup. Ct.), refd to. [para. 17].

Fraser et al. v. Ontario (Attorney General) (2008), 242 O.A.C. 252; 301 D.L.R.(4th) 335 (C.A.), consd. [para. 17].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1, refd to. [para. 49].

Confederation des syndicates nationaux v. Quebec (Procureur general), [2008] R.J.D.T. 1477 (Que. Sup. Ct.), refd to. [para. 50].

Fraser et al. v. Ontario (Attorney General) (2011), 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, consd. [para. 58].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 93].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29, refd to. [para. 95].

Professional Institute of the Public Service of Canada v. Canada (Attorney General), 2009 PSLRB 102, affd. [2010] N.R. Uned. 49; 2010 FCA 109, refd to. [para. 100].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1, refd to. [para. 107].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, dist. [para. 134].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 134].

Wronko v. Western Inventory Service Ltd. (2008), 237 O.A.C. 1; 292 D.L.R.(4th) 58 (C.A.), refd to. [para. 135].

Arsenault et al. v. Canada (2008), 330 F.T.R. 8 (F.C.), affd. (2009), 395 N.R. 377 (F.C.A.), refd to. [para. 137].

Babcock et al. v. Canada (Attorney General) et al., [2005] B.C.T.C. 513; 2005 BCSC 513, refd to. [para. 138].

Appleby-Ostroff v. Canada (Attorney General), [2010] F.T.R. Uned. 899; 2010 FC 479, refd to. [para. 138].

Statutes Noticed:

Expenditure Restraint Act, S.C. 2009, c. 2, sect. 16, sect. 35, sect. 38, sect. 43, sect. 46, sect. 49, sect. 62 [para. 39].

Authors and Works Noticed:

Lacroix, Robert, and Dussault, Francois, The Spillover Effect of Public-Sector Wage Contracts in Canada, Review of Economics and Statistics (1984), vol. 66, No. 3, generally [para. 124].

Mallett, Ted, and Wong, Queenie, Wage Watch: A Comparison of Public Sector and Private-sector Wages, Canadian Federation of Independent Business (2008), generally [para. 122].

Counsel:

Christopher Rootham, for the applicants;

Sanderson Graham and Yvonne Milosevic, for the respondent.

Solicitors of Record:

Nelligan O'Brien Payne, Ottawa, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This matter was heard at Ottawa, Ontario, on November 3, 2010 and May 18, 2011, before Heneghan, J., of the Federal Court, who delivered the following reasons for order on June 21, 2011.