BETWEEN:
and
Heard at Winnipeg, Manitoba, on February 28, 2007.
Judgment delivered from the Bench at Winnipeg, Manitoba, on February 28, 2007.
REASONS FOR JUDGMENT BY: EVANS J.A.
Docket: A-68-06
Citation: 2007 FCA 88
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
CAROLE GAUDES
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba on February 28, 2007)
[1] This is an appeal by Carole Gaudes from a decision of a Judge of the Federal Court dismissing her application for judicial review seeking a declaration that, as a member of a group of civilian RCMP employees (“FLI-FIT group”), she was entitled to a retroactive pay award for the years 1985 to 1998. The decision is reported as Gaudes v. Canada (Attorney General), 2005 FC 1604, 284 F.T.R. 26.
[2] The basis of Ms Gaudes’ claim is a Minute of a Treasury Board Decision of 1975 setting the rates of pay for members of the then newly created FLI-FIT group by reference to a comparator group of employees (“CR-5 group”). The appellant argues that this Decision applies to subsequent increases in the rates of pay of the CR-5 group, including a retroactive award made in 1998 by the Canadian Human Rights Tribunal in favour of the CR-5 group, among others, whom the Tribunal held had been denied their right to pay equity. The rates of pay of the FLI-FIT group were increased from 1998 in line with the prospective part of the Tribunal’s order.
[3] The pay and allowances of members of the RCMP are set by the Treasury Board: Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, subsection 22(1). The Treasury Board Secretariat, the administrative arm of the Board, refused to support the submissions made on behalf of the FLI-FIT group that they were entitled, not only to the prospective portion of the award made by the Tribunal to the CR-5 group, but also to its retroactive component. The Secretariat refused to put the matter to the Treasury Board, which has not made a decision on the issue.
[4] We are all of the view that the appeal should be dismissed. It is clear that the 1975 Treasury Board Minute applies only to rates of pay for the year 1975-76. Unlike an earlier Minute to which we were referred, the 1975 Minute does not say that, in order to maintain wage comparability, the wages of the FLI-FIT group will be adjusted to take account of any future increases in the rates of pay of the CR-5 group.
[5] There is simply nothing in the record to support the Applications Judge’s conclusion that it was also decided in 1975 that the rates of pay of the FLI-FIT group would be adjusted in the future, in step with changes in the CR-5 rates of pay. Indeed, in a letter to the Commissioner of the RCMP accompanying the 1975 Minute, the Deputy Secretary of the Treasury Board stated that the Ministers had directed a study of the total compensation of members of the Force, and that a methodology would be established on which to base future pay revisions. In short, the 1975 Minute does not provide a legal basis for the appellant’s claim to be entitled to a pay adjustment from 1985 to 1998.
[6] Counsel for the appellant was unable to secure from the Crown the production of subsequent Treasury Board Decisions which might have supported her claim. We cannot draw an adverse inference from a refusal to produce documents for which Cabinet confidence may be claimed.
[7] Counsel for the appellant emphasized that, with the sole exception of the Tribunal’s 1998 retroactive award, the rates of pay of members of the FLI-FIT group have, for 30 years, always been adjusted in line with any increases in the rates of pay for the CR-5 group. These increases included a prospective and retroactive payment made in 1990 pursuant to a voluntary settlement of a pay equity claim by the CR-5 group.
[8] At most, this history establishes that the Treasury Board has set rates of pay for the FLI-FIT group, which is precluded from collective bargaining, by reference to a policy of wage comparability with the CR-5 group. However, such a policy, if it exists, does not create a legal entitlement in members of the FLI-FIT to the pay increase that they are claiming.
[9] Finally, we would note that there is no Treasury Board Decision respecting the FLI-FIT claim for us to review. The Treasury Board is apparently content to abide by the decision of this Court. The Applications Judge assumed jurisdiction on the basis that, on an application for judicial review, the Court may declare invalid a proceeding of a federal, board, commission or other tribunal: Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(3)(b).
[10] We are doubtful whether, on the facts of this case, there was any proceeding of the Treasury Board to be declared unlawful. However, this is not an issue which we need to decide.
[11] For these reasons, the appeal will be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-68-06
(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED NOVEMBER 28, 2005, DOCKET NO. T-537-03)
STYLE OF CAUSE: CAROLE GAUDES v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 28, 2007
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
EVANS J.A.
PELLETIER J.A.
DELIVERED FROM THE BENCH BY: EVANS J.
APPEARANCES:
|
Winnipeg, MB
|
FOR THE APPELLANT
|
|
Department of Justice Ottawa, ON |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
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Barristers & Solicitors Winnipeg, MB
|
FOR THE APPELLANT
|
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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