[2011] 4 F.C.R. D-2
Constitutional Law
Charter of Rights
Fundamental Freedoms
Judicial review of Treasury Board decision approving modification to RCMP pay, benefits package by cancelling market adjustment, reducing economic increase, cancelling increase to service pay—Pay Council providing recommendation to RCMP Commissioner, Treasury Board in respect of salary, benefits for RCMP members—Treasury Board initially accepting Pay Council recommendations—However, Treasury Board limiting wage increases in view of negative economic outlook—Applicants submitting that Treasury Board decision, provisions of Expenditure Restraint Act, S.C. 2009, c. 2 (ERA), s. 393 breaching Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 2(d)—Issues whether: (1) Treasury Board decision violating Charter, s. 2(d); (2) Charter, s. 1 saving violation; (3) decision breach of contract—Issue 1: Pay Council’s work not equivalent to collective bargaining—However, Supreme Court holding in Ontario (Attorney General) v. Fraser, 2011 SCC 20 that all employees having right to make collective representations—Pay Council process therefore important, protected by s. 2(d)—Use of word “impossible” (i.e. impossible to meaningfully exercise right to associate) by Supreme Court in test set out in Fraser to determine s. 2(d) breach not constituting paramount consideration or threshold—Test applied in Fraser applicable herein—ERA giving statutory effect to Treasury Board decision—ERA provisions confirming Treasury Board’s decision to unwind previous agreement, restricting manner of dealing with future agreements—Treasury Board decision, ERA preventing Pay Council from making representations, constituting violation of s. 2(d)—Issue 2: Breach of s. 2(d) not saved by Charter, s. 1—Application herein of test in R. v. Oakes, [1986] 1 S.C.R. 103 finding, inter alia, that aim of providing leadership, showing restraint, respect for public money abstract, not pressing, substantial; unilateral action, disregard for Pay Council process not minimally impairing; deleterious effects of ERA outweighing salutary effects—Issue 3: Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 22 giving Treasury Board power to set terms of rates of pay—Such exercise of power not amounting to breach of contract—Treasury Board therefore not liable for damages in breach of contract—Application allowed.
Meredith v. Canada (Attorney General) (T-50-09, 2011 FC 735, Heneghan J., judgment dated June 21, 2011, 45 pp.)