Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, (2004) 242 Nfld. & P.E.I.R. 113 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday October 28, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 242 Nfld. & P.E.I.R. 113 (SCC);2004 SCC 66

Nfld. v. NAPE (2004), 242 Nfld. & P.E.I.R. 113 (SCC);

  719 A.P.R. 113

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[French language version follows English language version]

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

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. OC.034

Newfoundland and Labrador Association of Public and Private Employees (appellant) v. Her Majesty The Queen in Right of Newfoundland as represented by Treasury Board and the Minister of Justice (respondent) and Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Alberta, Canadian Association for Community Living, Canadian Hearing Society, Council of Canadians with Disabilities, Hospital Employees' Union, British Columbia Government and Service Employees' Union, Health Sciences Association, Women's Legal Education and Action Fund and Canadian Labour Congress (intervenors)

(29597; 2004 SCC 66; 2004 CSC 66)

Indexed As: Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.

October 28, 2004.

Summary:

In 1988, the province and the Newfoundland Association of Public Employees (NAPE) negotiated a Pay Equity Agreement, which was incorporated into collective agreements. Adjustments in pay were to be made over five fiscal years, beginning in 1988. The amount of the adjustments were not agreed to until 1991, when the province enacted wage restraint legislation (Public Sector Restraint Act). The province submitted that s. 9 of the Act precluded payment of pay equity adjustments for prior fiscal years (i.e., 1988 to 1991). Several NAPE bargaining units filed a grievance, claiming, inter alia, that s. 9 violated s. 15(1) of the Charter of Rights and Freedoms. A three person arbitration board was appointed. The Chairman's wife was a nurse employed in the Public Health Care Sector. The Province requested that the Chairman disqualify himself on the grounds of a reasonable apprehension of bias because of his wife's pecuniary interest in the outcome of the arbitration. The arbitration board held that there was no reasonable apprehension of bias on the part of the Chairman and that it had jurisdiction to determine the constitutionality of s. 9. A majority of the board ruled that s. 9 violated s. 15(1) of the Charter and was not a reasonable limit prescribed by law under s. 1. The province sought judicial review, claiming that (1) the board lacked jurisdiction to rule on the constitutionality of s. 9; (2) the board erred in failing to find a reasonable apprehension of bias on the part of the Chairman; (3) the board erred in finding s. 9 violated s. 15(1) of the Charter; and (4) erred in finding s. 9 was not saved by s. 1. NAPE also sought judicial review by way of cross-application. NAPE challenged the board's ruling to limit adjustment payments to 1991 and beyond, and submitted that the board erred in relying on Hansard to interpret s. 9.

The Newfoundland Supreme Court, Trial Division, in a judgment reported (1998), 162 Nfld. & P.E.I.R. 1; 500 A.P.R. 1, allowed the province's application and dismissed NAPE's cross-application. The board lacked jurisdiction to determine the constitutional validity of s. 9 of the Act. Alternatively, the board erred in finding the violation of s. 15(1) of the Charter was not saved as a reasonable limit prescribed by law under s. 1 of the Charter. NAPE appealed. The province cross-appealed.

The Newfoundland and Labrador Court of Appeal, in a judgment reported (2002), 220 Nfld. & P.E.I.R. 1; 500 A.P.R. 1, dismissed the appeal and cross-appeal, with the exception of finding that the trial judge erred in holding that the board lacked jurisdiction to hear the grievances challenging the constitutionality of s. 9. Section 9 violated s. 15(1) of the Charter, but was a reasonable limit prescribed by law under s. 1. Section 9(3) of the restraint legislation clearly extinguished the province's obligation to make pay equity adjustments for the 1988 to 1991 period. The board did not err in referring to Hansard to interpret s. 9 or in rejecting the reasonable apprehension of bias claim. NAPE appealed. At issue was (1) whether s. 9 violated s. 15(1) of the Charter; (2) if so, was s. 9 a reasonable limit prescribed by law under s. 1; and (3) did the Court of Appeal err in adding to the s. 1 analysis a requirement that the court determine explicitly at each stage whether the separation of powers doctrine was offended.

The Supreme Court of Canada dismissed the appeal. The court agreed that the effect of s. 9 of the Public Sector Restraint Act was discriminatory, but that in light of the financial crisis facing the province, s. 9 was justified as a reasonable limit prescribed by law under s. 1. The court held that although separation of powers was an important constitutional principle, the present Oakes s. 1 analysis provided the proper framework to give proper consideration to that principle.

Civil Rights - Topic 999.6

Discrimination - Employment - Equal pay for equal work - A 1988 agreement between the province and public employees (incorporated into collective agreements) sought to achieve equal pay for equal work by incremental adjustments payable over a five year period commencing in 1988 - The adjustment amounts were not agreed on until 1991 - In 1991, the province was in dire financial circumstances and passed wage restraint legislation (Public Sector Restraint Act), s. 9 of which froze wages and precluded payment of equal pay adjustments for the 1988 to 1990 fiscal years - The Supreme Court of Canada affirmed that s. 9 violated s. 15(1) of the Charter - Once the province committed itself to pay equity to redress conceded discrimination, it could not legislatively revoke that undertaking without violating s. 15(1) - The court also affirmed that the emergency financial restraint legislation was a reasonable limit prescribed by law under s. 1 of the Charter - The objective of reducing expenditures was sufficiently important to override the s. 15(1) Charter right, s. 9 was rationally connected to its objective, minimally impaired Charter rights, and did not have a disproportionately severe effect on the affected group - The court noted that the measure was done after consultation and merely delayed equal pay - "It is not convincing simply to declare that an expenditure to achieve a s. 15 objective must necessarily rank ahead of hospital beds or school rooms" - See paragraphs 30 to 99.

Civil Rights - Topic 5668

Equality and protection of the law - Labour legislation - [See Civil Rights - Topic 999.6 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - An appellate court determined that the Oakes test did not sufficiently respect the actual wording of s. 1 of the Charter and that in the result inadequate deference was paid to legislative and executive choices at each and every stage of the s. 1 justification (i.e. out of step with separation of powers principle) - The Supreme Court of Canada disagreed, stating that "while I recognize that the separation of powers is an important constitutional principle, I believe that the s. 1 test set out in Oakes and the rest of our voluminous s. 1 jurisprudence already provides the proper framework in which to consider what the doctrine of separation of powers requires in particular situations" - See paragraphs 100 to 116.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Supreme Court of Canada stated that its previous statement that "a measure whose sole purpose is financial, and which infringes Charter rights, can never be justified under s. 1" must be read in context - Budgetary considerations in and of themselves cannot "normally" be invoked as a free-standing pressing and substantial objective for the purposes of s. 1 - However, "at some point, a financial crisis can attain a dimension that elected governments must be accorded significant scope to take remedial measures, even if the measures taken have an adverse effect on a Charter right, subject, of course, to the measures being proportional both to the fiscal crisis and to their impact on the affected Charter interests." - The court noted that "financial considerations wrapped up with other public policy considerations could qualify as sufficiently important objectives under s. 1." - See paragraphs 63 to 69.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 999.6 and Evidence - Topic 2239.1 ].

Evidence - Topic 2239.1

Special modes of proof - Judicial notice - Particular matters - Parliamentary debates (Hansard) - At issue was whether discriminatory provincial wage restraint legislation was saved under s. 1 of the Charter - The Supreme Court of Canada stated that "the only evidence before the Board consisted of an extract from Hansard and some budget documents. ... Ordinarily such a casually introduced s. 1 record would be a matter of serious concern. However the essential subject matter of the s. 1 justification in this case consists of the public accounts of the Province that are filed with the House of Assembly, and comments by the Minister of Finance and President of the Treasury Board as to what they thought the accounts disclosed and what they proposed to do about it, which are reported in Hansard. This is all material of which the court may take judicial notice. ... I agree ... that the government ought to have called witnesses who were better placed to explain the government accounts and ministerial observations. However, in the context of this particular subject matter, I do not agree that failure to do so was fatal to the government's s. 1 case. What transpires in the budgetary process, of course, lies at the high end of Cabinet confidences, and here there was no need to precipitate a confrontation between the courts and the government. In my view, the material brought to the Board's attention, and of which we may take judicial notice, is sufficient for the purposes of disposing of this appeal." -See paragraphs 55 to 58.

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 2].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 33].

Ferrel v. Ontario (Attorney General) (1998), 116 O.A.C. 176; 42 O.R.(3d) 97 (C.A.), dist. [para. 35].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 40].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 41].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 53].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 53].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 56].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 56].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 56].

Prostitution Reference - see Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code.

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 56].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 2, refd to. [para. 58].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 63].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 64].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 66].

R. v. Lee, [1989] 2 S.C.R. 1384; 104 N.R. 1, refd to. [para. 68].

Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 70].

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89; 2003 SCC 37, refd to. [para. 71].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 73].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 75].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 75].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 80].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 83].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 94].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Irwin Toy Ltd. v. Quebec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 94].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 103].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 105].

Statutes Noticed:

Public Sector Restraint Act, S.N. 1991, c. 3, sect. 9 [para. 12].

Authors and Works Noticed:

Abella, Rosalie Silberman, Employment Equity (1987), 16 Man. L.J. 185, p. 185 [para. 45].

Hansard (Nfld.) - see Newfoundland, Hansard, House of Assembly.

Morgan, Edmund M., Judicial Notice (1944), 57 Harv. L. Rev. 269, p. 273 [para. 57].

Newfoundland, Hansard, House of Assembly, Preliminary Report, 41st General Assembly, vol. 41, No. 11, 3rd sess. (March 19, 1991), pp. 359 [paras. 7, 60]; 361 [para. 7]; 362, 363 [para. 9]; 364 [para. 59].

Counsel:

Sheila H. Greene and Paula M. Schumph, for the appellant, Newfoundland and Labrador Association of Public and Private Employees;

Donald H. Burrage, Q.C., and Justin S.C. Mellor, for the respondent, Her Majesty The Queen in Right of Newfoundland as represented by Treasury Board and the Minister of Justice;

Isabelle Harnois, for the intervenor, Attorney General of Quebec;

Gaétan Migneault, written submissions only, for the intervenor, Attorney General of New Brunswick;

George H. Copley, Q.C., and Neena Sharma, for the intervenor, Attorney General of British Columbia;

Roderick Wiltshire, for the intervenor, Attorney General of Alberta;

William Holder and Lesli Bisgould, for the intervenors, Canadian Association for Community Living, Canadian Hearing Society and Council of Canadians with Disabilities;

Joseph J. Arvay, Q.C., and Catherine J. Parker, for the intervenors, Hospital Employees' Union, British Columbia Government and Service Employees' Union and the Health Sciences Association;

Karen Schucher and Fiona Sampson, for the intervenor, Women's Legal Education and Action Fund;

Mary F. Cornish and Fay C. Faraday, for the intervenor, Canadian Labour Congress.

Solicitors of Record:

Newfoundland and Labrador Association of Public and Private Employees, St. John's, Nfld. & Lab., for the appellant;

Department of Justice, St. John's, Nfld. & Lab., for the respondent;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, N.B., for the intervenor, Attorney General of New Brunswick;

Ministry of Attorney General of British Columbia, Vancouver, B.C., for the intervenor, Attorney General of British Columbia;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

ARCH, A Legal Resource Centre for Persons with Disabilities, Toronto, Ontario, for the intervenors, Canadian Association for Community Living, Canadian Hearing Society, and Council of Canadians with Disabilities;

Arvay Finlay, Victoria, B.C., for the intervenors, Hospital Employees' Union, British Columbia Government and Service Employees' Union, and Health Sciences Association;

Women's Legal and Education Act Fund, Toronto, Ontario, for the intervenor, Women's Legal Education and Action Fund;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the intervenor, Canadian Labour Congress.

This appeal was heard on May 12, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada.

On October 28, 2004, Binnie, J., delivered the following judgment in both official languages for the Court.