Date: 19980319
Docket: T-890-95
Between:
JOANNE GRANGER,
Applicant,
- and -
HER MAJESTY THE QUEEN,
as represented by Treasury Board,
Respondent,
- and -
GEORGE THOMSON, in his capacity as
the final level in the process applicable
to grievances presented under section 91 of the
Public Service Staff Relations Act,
Mis en cause.
Docket: T-895-95
Between:
RAYMOND PICHÉ,
Applicant,
- and -
HER MAJESTY THE QUEEN,
as represented by Treasury Board,
Respondent,
- and -
GEORGE THOMSON, in his capacity as
the final level in the process applicable
to grievances presented under section 91 of the
Public Service Staff Relations Act,
Mis en cause.
Docket: T-898-95
Between:
GENEVIÈVE COUSINEAU,
Applicant,
- and -
HER MAJESTY THE QUEEN,
as represented by Treasury Board,
Respondent,
- and -
GEORGE THOMSON, in his capacity as
the final level in the process applicable
to grievances presented under section 91 of the
Public Service Staff Relations Act,
Mis en cause.
Docket: T-910-95
Between:
SYLVIE BOILEAU-DI PALMA,
Applicant,
- and -
HER MAJESTY THE QUEEN,
as represented by Treasury Board,
Respondent,
- and -
GEORGE THOMSON, in his capacity as
the final level in the process applicable
to grievances presented under section 91 of the
Public Service Staff Relations Act,
Mis en cause.
Docket: T-933-95
Between:
MAX WEDER,
Applicant,
- and -
HER MAJESTY THE QUEEN,
as represented by Treasury Board,
- and -
GEORGE THOMSON, in his capacity as
the final level in the process applicable
to grievances presented under section 91 of the
Public Service Staff Relations Act,
Respondents.
REASONS FOR ORDER
LUTFY J.
[1] As part of the policy of budgetary austerity and compensation restraint that prevailed within the public service of the Government of Canada from 1991 to 1997, the non-unionized legal officers in the Department of Justice were generally not granted performance increases. In addition, there were three Acts of Parliament during that period that prohibited any change to the applicants' compensation plan. The applicants submit that the suspension of their performance increases between 1991 and 1994 is unlawful. It is their view that suspending their increases amounted to changing the compensation plan. In the view of the respondents, the suspension is merely an exercise of the discretion granted by the provisions of that compensation plan itself.
[2] In order to remedy this situation, the applicants presented grievances under section 91 of the Public Service Staff Relations Act1 to the respondent George Thomson ("the respondent"), in his capacity as the deputy head of the Department of Justice of Canada. Their grievances were dismissed on March 30, 1995.
[3] By application for judicial review under section 18.1 of the Federal Court Act2, the applicants are seeking to have the decisions of the respondent George Thomson dismissing their grievances set aside.3
[4] The applicants are public servants. They are not unionized, and accordingly they are not subject to a collective agreement. The position of legal officer is classified as a "managerial or confidential position" under section 2 of the Public Service Staff Relations Act. They all work as legal officers in the Montreal regional office of the Department of Justice, with the exception of the applicant Weder, who works in the Vancouver regional office. The applicants are all at salary level LA-2A, with the exception of the applicant Boileau-Di Palma, who is at level LA-1.4
The applicants' compensation plan
[5] The applicants' compensation plan is described in the Salary Administration Policy - Law Group - Department of Justice and other excluded legal officers, which is found at Appendix A to chapter 3-1 of the Treasury Board Manual. The provisions of this compensation plan that are relevant to the instant case are reproduced in Appendix A to these reasons.
[6] As set out in the policy, the objective of the plan is to ensure the accurate and consistent administration of salaries for legal officers excluded from collective bargaining, in order to reward individuals in relation to their peers and subordinates. The intention is to pay legal officers throughout the Public Service according to their contribution to the organization and their attainment of performance goals.
[7] It should also be noted that in administering this plan, deputy heads, including the respondent, must ensure that the salaries of legal officers are administered according to the plan and according to the guidelines prescribed for the year in which the salaries are administered.
[8] The compensation plan provides that a salary range consists of a minimum and a job rate (maximum). Movement through this range is based solely on assessed performance.5 As a general rule, in-range performance increases may be granted annually to legal officers at the LA-2A level for assessed performance as follows: "outstanding" up to 10%; "superior" up to 7%; "fully satisfactory" up to 5%; and "satisfactory" up to 3%.6 These performance increases are granted on April 1 of each year, and the reference year for the performance assessment runs from January 1 to December 31 of the previous year.
[9] In addition, legal officers at the LA-2A level whose performance has been assessed as "superior" or "outstanding", and who have reached the job rate, are eligible to receive a performance award, which may represent up to 7% or 10%, respectively, of their salary.7
[10] Legal officers at the LA-1 level are not eligible for performance awards. Unlike legal officers at the LA-2A level, these individuals' performance may be reviewed on a semi-annual basis and an in-range increase for performance granted consistent with the assessments established for legal officers at the LA-2A level.8
[11] To summarize, lawyers at all levels may move within a range by earning performance increases. However, only legal officers at the LA-2 and higher levels who have reached the maximum pay for their level, and who have earned a "superior" or "exceptional" performance rating, may also be granted a performance award.
[12] Lastly, the deputy head is authorized to determine increases in salary and to make performance awards within the guidelines in the policy "unless otherwise directed by the Treasury Board".9
Legislation enacted by Parliament to impose compensation restraints
[13] Between 1991 and 1994, three statutes were enacted concerning the wage restraint policy governing members of the federal Public Service.
Public Sector Compensation Act ("the 1991 Act")10
[14] Under section 5 of this Act, every compensation plan that was in effect on February 26, 1991, was extended in its entirety for a period of two years. Subsection 5(1) of that Act reads as follows:
5. (1) Subject to section 11, every compensation plan for employees to whom this Act applies that was in effect on February 26, 1991, including every compensation plan extended under section 6, shall be extended for a period of twenty-four months beginning on the day immediately following the day on which the compensation plan would, but for this section, expire.
5. (1) Sous réserve de l'article 11, le régime de rémunération en vigueur le 26 février 1991 pour des salariés visés par la présente loi, notamment tout régime de rémunération prorogé en vertu de l'article 6, est prorogé de deux ans à compter de la date prévue, en l'absence du présent article, pour son expiration.
The parties agree that the applicants' compensation plan would have expired on May 31, 1991, and that by virtue of this provision it was extended to May 31, 1993.
[15] In addition, the terms and conditions of the applicants' compensation plan, which were extended under section 5, continued in force without change for the entire period for which the plan was so extended. Subsection 7(1) of the Act provides that the plan may not be changed:
7. (1) Notwithstanding any other Act of Parliament except the Canadian Human Rights Act but subject to this Act, the terms and conditions of
| (a) every compensation plan that is extended under section 5 or 6, and |
| (b) every collective agreement or arbitral award that includes a compensation plan referred to in paragraph (a) |
shall continue in force without change for the period for which the compensation plan is so extended.
7. (1) Par dérogation à toute autre loi fédérale, à l'exception de la Loi canadienne sur les droits de la personne, mais sous réserve des autres dispositions de la présente loi, les dispositions d'un régime de rémunération prorogé en vertu des articles 5 ou 6 ou d'une convention collective ou décision arbitrale qui comporte un pareil régime demeurent en vigueur sans modification pendant la période de prorogation.
Lastly, the applicants' salary rates could not be increased for the first year for which the compensation plan was extended. However, salary rates for the second year for which the plan was extended were increased by 3%.11
Government Expenditures Restraint Act, 1993 No. 2 ("the 1993 Act")12
[16] This Act amended section 5 of the 1991 Act to extend every compensation plan in effect in the federal Public Service for an additional period of two years. The applicants' compensation plan was therefore extended to May 31, 1995. The provision in the 1991 Act that compensation plans could not be changed continued in force.
Budget Implementation Act, 1994 ("the 1994 Act")13
[17] The applicants' compensation plan was again extended in 1994 for a third two-year period, to May 31, 1997.
[18] During the period for which the compensation plans were extended under the 1991 and 1993 Acts, unionized legal officers, unlike their non-unionized colleagues, continued to receive their in-range salary increases. The increases given to the unionized legal officers were granted not to reward their performance, but rather primarily on the basis of the mere passage of time.
[19] The 1994 Act suspended entitlement to in-range increases for unionized legal officers by adding the following subsection to section 5:
5. (1.1) Notwithstanding any provision of this Act other than subsection (1.2) or a provision of any compensation plan, no employee shall be entitled to the incremental increases, including those based on the attainment of further qualifications or the acquisition of skills, merit or performance increases, in-range increases, performance bonuses or other similar forms of compensation that would, but for this subsection, form part of their compensation plan, during the period of twenty-four months beginning on the day on which this subsection comes into force.
5. (1.1) Malgré toute autre disposition de la présente loi, à l'exception du paragraphe (1.2), ou malgré toute disposition d'un régime de rémunération, les salariés n'ont pas droit aux augmentations d'échelon - qu'elles résultent de l'acquisition d'un niveau de formation ou de compétence supérieur ou soient fondées sur le mérite ou le rendement - , aux augmentations à l'intérieur des fourchettes salariales ni aux primes de rendement, ni aux autres formes de rémunération similaires que comporterait, en l'absence du présent paragraphe, leur régime de rémunération, et ce pendant la période de deux ans commençant à la date d'entrée en vigueur du présent paragraphe.
We shall examine this provision more closely when we consider the arguments of the parties with respect to the impact of this subsection on non-unionized legal officers.
Administrative developments following the enactment of the 1991, 1993 and 1994 Acts
[20] The 1991, 1993 and 1994 Acts were followed by a number of administrative actions.
[21] On November 22, 1991, the Deputy Secretary of the Personnel Policy Branch of the Treasury Board Secretariat wrote to the personnel directors of the various departments to confirm that performance pay for Management Category employees had been suspended for the 1991-92 appraisal year. As of April 1, 1992, there would be no merit increases within the salary range or lump sum performance awards for these individuals. This suspension of pay also extended to excluded non-Management Category employees, including the LA-2A level applicants. According to this directive from the Treasury Board Secretariat, the applicant Boileau-Di Palma, who was at the LA-1 level, could be eligible for merit increases as in previous years. These directives were stated as follows:
| The suspension of performance pay also extends to excluded non-Management Category employees whose pay plans include provisions for performance bonuses. This includes excluded lawyers (LA-2A to LA-3C) ... In-range merit increases for excluded employees whose pay plans do not include the possibility of lump sum performance awards or bonuses may be applied as in previous years, in accordance with the relevant pay plan. Performance pay plans of this type apply to excluded LA-1 employees, those in the PM-MCO sub-group, and members of the new Management Trainee (MM) group. In-range merit increases for these employees represent salary movement comparable to the incremental progression found in a lock-step structure. |
La suspension de la rémunération au rendement s'applique en outre aux employés exclus des autres catégories, dont le régime de rémunération prévoit des primes de rendement. Sont visés les avocats exclus (de LA-2A à LA-3C) ... Dans le cas des employés exclus dont le régime de rémunération ne prévoit pas de primes forfaitaires de rendement, les augmentations au mérite à l'intérieur des fourchettes salariales peuvent être appliquées comme par le passé, en conformité avec le régime de rémunération pertinent. Les régimes de ce type s'appliquent aux LA-1 exclus, aux employés du sous-groupe des PM-MCO et aux membres du nouveau groupe des stagiaires en gestion (MM). Les augmentations de ce genre pour ces employés représentent un mouvement des salaires comparable aux augmentations d'échelon dans une structure à échelons fixes. |
[22] On December 6, 1991, the Director General of the Human Resources Directorate of the Department of Justice summarized the directives issued by the Treasury Board Secretariat in a memorandum that read essentially as follows:
| As advised by our INFOPERSONNEL no. 67, performance pay has been suspended for the fiscal year 1991-92 for members of the Management Category and LA group at the 2A, 2B, 3A, 3B and 3C levels. At that time it was not known whether or not the suspension would also apply to the LA-1 level. Confirmation has now been received from Treasury Board that the performance pay for LA-1's will be applied as in previous years, in accordance with the LA pay plan. In-range merit increases will apply to the LA-1 level as the pay range at this level does not include the possibility of lump sum performance awards or bonuses as in the higher levels of the LA group. In-range merit increases at this level represent salary movement comparable to the incremental progression found in a lock-step structure. |
Comme vous l'indiquait l'InfoPersonnel #67, la rémunération au rendement est interrompue pour l'exercice 1991-1992 pour les membres de la catégorie de la gestion et du groupe LA aux niveaux 2A, 2B, 3A, 3B et 3C. À ce moment-là, nous ne savions pas encore si cette interruption s'appliquerait au niveau LA-1. Le Conseil du Trésor vient de nous confirmer que la rémunération au rendement s'appliquera aux LA-1 comme par le passé en conformité avec le régime de rémunération des LA. Les augmentations au mérite à l'intérieur des fourchettes salariales seront appliqués, aux LA-1 puisque le régime de rémunération ne prévoit pas à ce niveau les primes forfaitaires de rendement qu'on retrouve aux niveaux supérieurs du groupe LA. Les augmentations de ce genre pour ces employés représentent un mouvement des salaires comparable aux augmentations d'échelon dans une structure à échelons fixes. |
[23] On December 11, 1992, in a bulletin entitled Info Justice, issued by the Department of Justice, the impact of other economic measures announced by the government was explained. More specifically, this bulletin confirmed that employees who were subject to a collective agreement which provided for in-range pay increments would continue to receive them. It also confirmed that the suspension of performance pay would apply both to excluded LA-1s and to excluded LA-2As for the two-year period between April 1, 1993 and March 31, 1995. On this point, it reads:
| Performance pay has been suspended for the next two years. Therefore, there will be no performance pay before March 31, 1995. This applies to the LA group levels LA-1 to LA-3C inclusive, the EX group and all senior officer levels normally subject to performance pay. |
La rémunération au rendement est suspendue pour les deux prochaines années. Par conséquent, il n'y aura aucune rémunération au rendement d'ici le 31 mars 1995. Cette mesure s'applique aux niveaux LA-1 à LA-3C inclusivement, du groupe LA; au groupe EX et à tous les cadres supérieurs assujettis à ce régime. |
This meant that the situation changed for LA-1s, it now being provided that they would not receive performance increases until March 31, 1995.
[24] On January 4, 1993, the Personnel Policy Branch of the Treasury Board Secretariat confirmed that there would be no performance pay for the Executive Group, including LA-2As, for the period from April 1, 1993 to March 31, 1995. In addition, salary ranges were frozen until June 1, 1995. In addition, and contrary to what the Department of Justice had stated in its communication of December 11, 1992, the Treasury Board Secretariat reiterated its guideline of November 22, 1991, with respect to legal officers at the LA-1 level, as follows:
| The pay plans for Management Trainees (MM), Law group level 1 (LA-1) and Mediation and Conciliation officers (PM-MCO) do not include the possibility of lump sum performance awards. In-range merit increases for these excluded employees may be applied during the restraint period as in previous years, in accordance with the relevant pay plan. |
Les régimes de rémunération pour le groupe des stagiaires en gestion (MM), des avocats de niveau 1 (LA-1), et des agents de médiation et conciliation (PM-MCO) ne prévoient pas de primes forfaitaires de rendement. Les augmentations au mérite à l'intérieur des fourchettes salariales peuvent être appliquées pendant la période de contrôle comme par le passé, en conformité avec le régime de rémunération pertinent. |
The Treasury Board Secretariat announced that LA-1s could continue to receive merit increases in accordance with the pay plan. On reading the memorandum of December 11, 1992, it seems that the deputy head had nonetheless decided a few weeks earlier to stop giving merit performance increases to the LA-1s.
[25] Had the performance pay not been suspended, the applicants' salaries would have risen substantially. It seems that the applicants would have merited cumulative increases for the fiscal years beginning on April 1, 1992, 1993 and 1994 on the order of 10% to 21%, without taking into account the 3% increase to the salary rates provided for in subsection 9(2) of the 1991 Act. The differences may be explained by the fact that the applicants did not all receive the same performance ratings.
[26] The applicants were dissatisfied with this situation, particularly because their unionized colleagues continued to receive the salary increases provided in the compensation plan set out in their collective agreement; accordingly, they presented their grievances to the respondent.
[27] On March 30, 1995, the respondent dismissed the applicants' grievances. The following are the relevant passages of his decisions:
| The Treasury Board policy confers on the deputy head various powers related to the administration of legal officers' salaries. As a general rule, it authorizes the deputy head to grant annual increases within certain limits. Furthermore, although the administration of the compensation plan has been delegated to the deputy head, the Treasury Board retains the authority to issue special directives to the deputy head. This is what the Treasury Board did in respect of the payment of performance awards. ... You also indicate that the Department's actions in modifying the performance assessment system in 1994 was unlawful. Although the policy was technically modified, this was done by exercising the discretion conferred on the deputy head, and within the limits of the policy. |
En effet, la politique du Conseil du Trésor confère à l'administrateur général diverses attributions en matière d'administration des traitements des conseillers juridiques; elle lui permet d'accorder, en règle générale, une augmentation annuelle qui est à sa discrétion sans dépasser une norme établie. Aussi, en matière de délégation, il est permis au titulaire du pouvoir (le Conseil du Trésor) de donner des directives à celui à qui il a délégué (l'administrateur général) ce pouvoir; c'est ce que le Conseil du Trésor a fait lorsqu'il a émis des directives quant au versement des primes au rendement. ... Vous avez aussi soulevé la question à savoir que le ministère de la Justice a modifié illégalement, au 1er avril 1994, son système d'évaluation du rendement de ses avocats alors en vigueur. Bien que techniquement le système ait été modifié, il n'en demeure pas moins que ceci s'est fait aux termes de la discrétion conférée à l'administrateur général par la politique et à l'intérieur du cadre de celle-ci. |
[28] The parties agreed at the hearing that the matter is before this Court under paragraph 18.1(4)(c) of the Federal Court Act.14 The question that must be asked is therefore as follows: did the respondent err in law in making the decisions, whether or not the error appears on the face of the record?
Analysis
[29] The main issue here is whether the refusal to grant the performance increases and awards constitutes a change to the compensation plan.
[30] The applicants are of the opinion that neither Treasury Board nor the Treasury Board Secretariat could change the compensation plan, since any such change was prohibited under subsection 7(1) of the 1991 Act. In the applicants' submission, the sole purpose of the 1991 Act and the 1993 Act was to freeze salary ranges for a certain period of time, and not to freeze salary increases per se.
[31] The applicants stated this argument as follows in the grievances they presented:
As we understood our performance-based compensation plan, the payment of our performance increases is in no way discretionary and nothing in the plan allows the Treasury Board to refuse to remunerate, every year, the true value of the individual efforts of each and every lawyer in your department.
Furthermore, our compensation plan specifically provides that only lawyers whose performance is not satisfactory are not entitled to a performance increase. It therefore follows that lawyers who have satisfactory or better performance are necessarily entitled to a performance increase.
Tel que nous comprenons notre régime de rémunération au rendement, le versement de nos augmentations au rendement n'est aucunement discrétionnaire et il n'y a rien dans le régime qui permette au Conseil du Trésor de ne pas rémunérer, à chaque année, à leur juste valeur, les efforts individuels de chaque avocat et de chaque avocate de votre ministère.
D'ailleurs, notre régime de rémunération prévoit spécifiquement que seuls les avocats dont le rendement est insatisfaisant n'ont pas doit à une augmentation au rendement. D'où il s'ensuit que les avocats ou avocates qui ont un rendement satisfaisant ou plus élevé ont, nécessairement, droit à une augmentation de salaire.
[My emphasis.]
These arguments were reiterated by the applicant Piché in his memorandum:
| [translation] |
| 204. The deputy head of the Department of Justice also enjoys broad discretion to determine the individual performance ratings of each lawyer, since assessment of an employee's performance is a matter of opinion; |
| 205. However, once the mis en cause has formulated his opinion as to the value of the applicant's performance, and assigned a performance rating to him, he no longer has any discretion to exercise and must then calculate the performance increase that he has earned in the manner prescribed by his compensation plan; |
[My emphasis]
[32] In support of their arguments, the applicants refer to section 29 of the Public Service Terms and Conditions of Employment Regulations, which is found in Appendix A of chapter 2-1 of volume 8 of the Treasury Board Manual:
29. Subject to these Regulations and any other enactment of the Treasury Board, an employee holding a position for which there is a minimum and maximum rate of pay shall be granted pay increments until he or she reaches the maximum rate for the position.
29. Sous réserve du présent règlement et de tout autre édit du Conseil du Trésor, tout employé occupant un poste pour lequel il est prévu un taux minimum et un taux maximum de rémunération doit recevoir des augmentations de traitement jusqu'à ce que le traitement maximum prévu pour le poste soit atteint.
Relying on the word "shall", the applicants contend that this provision makes it mandatory that pay increments be granted to eligible employees, and that no discretion may be exercised. It seems to me that this argument cannot stand, if we look at section 29 itself, which is made subject to "any other enactment of the Treasury Board". This provision must therefore be construed having regard to the applicants' compensation plan, which is part of another Treasury Board enactment: the specific must be preferred to the general.
[33] The applicants' compensation plan uses the words "may", "guidelines", "at the discretion", "up to", "unless otherwise advised", "unless otherwise specified", "as a general guide" and "unless otherwise directed"; these references are underlined in Appendix A to these reasons. If we were to accept the applicants' arguments, we would have to read the compensation plan without regard to these words, or as if these words did not appear there. At this point, section 7 of the salary plan must be noted:
7. Authorization
The deputy head is authorized to determine increases in salary and to make performance awards within the guidelines prescribed in this plan unless otherwise directed by the Treasury Board.
[My emphasis.]
7. Autorisation
L'administrateur général est autorisé à déterminer les augmentations de traitement et à accorder les primes au rendement dans le cadre des lignes directrices prescrites dans le présent régime, à moins de directives contraires de la part du Secrétariat du Conseil du Trésor.
The parties agree that the English version of this paragraph is in error and that the words "Treasury Board" should instead read "Treasury Board Secretariat", to reflect the wording of the French version.15
[34] With respect to the level LA-2 applicants, the memoranda issued by the Treasury Board Secretariat on November 22, 199116 and January 4, 199317 come within the expression "otherwise directed" in paragraph 7 of the compensation plan, allowing the salary increases to be suspended. The increases were suspended in the exercise of the discretion conferred on the Treasury Board Secretariat in the compensation plan itself. The exercise of that discretion is not, to my mind, a change to the salary plan such as would be prohibited by subsection 7(1) of the 1991 Act.
[35] The applicant Boileau-Di Palma, who was at level LA-1, could have been granted an in-range increase based on her performance, "at the discretion of the deputy head", under section 6.2 of the compensation plan. She has worked as a legal officer in the Department of Justice since October 1992, and she was therefore not eligible for the salary increase that would apparently have been paid on April 1, 1992 to other LA-1 level legal officers. She did not receive performance increases on April 1, 1993 and 1994, although she was eligible for those increases on the basis of her performance assessments, pursuant to the decision announced on December 11, 199218 in the bulletin issued by the Department of Justice. There is no evidence to suggest to me that this decision is a decision made otherwise than by the then deputy head. In fact, in her grievance, the applicant Boileau-Di Palma acknowledges that the decision was made by the respondent's predecessor:
| [translation] The subject of our grievance is whether your predecessor had the authority to cease to administer our compensation plan, when that plan had not been suspended by our employer, the Treasury Board. |
...
| Your predecessor decided that he would no longer administer our compensation plan in respect of us, which he was not entitled to do. |
...
| Your predecessor refused, in an entirely unlawful manner, to exercise the responsibilities assigned to him by our compensation plan, for 1992, 1993 and 1994.19 |
At the risk of repeating myself, the suspension of her performance increases by the deputy head of her Department is in accordance with the discretion conferred by paragraph 6.2 and is not a change to her compensation plan within the meaning of section 7 of the 1991 Act. I arrive at this conclusion even though the Treasury Board Secretariat would have allowed the LA-1s to continue receiving performance increases.
[36] It is argued that one of the reasons that seem to have prompted the deputy head of the Department of Justice to exercise his discretion for the period from April 1, 1993 to March 31, 1995 is the fact that the salaries of some LA-1s who had recently been promoted to the LA-2A level were higher than those of some LA-2As who had been promoted to that level long before.20 If this was the case, I believe that the deputy head had the authority under paragraph 6.2 of the salary plan to exercise his discretion in order to remedy this problem.
[37] In Gingras v. Canada,21 the Court of Appeal considered the application of the Bilingualism Bonus Plan in the Public Service, which contained "no measure of discretion as to its application". The compensation plan in this instance is entirely different in that respect. Similarly, the decision of this Court in Canadian Air Traffic Control Association v. The Queen represented by Treasury Board22 did not allow Treasury Board to unilaterally change a collective agreement since there was no provision in the compensation plan to authorize such action.
[38] Lastly, to demonstrate that Parliament's intention was to prevent the suspension of performance increases and awards for public servants, including the applicants, we were referred to subsection 5(1.1) of the 1994 Act. The applicants assert that only Parliament could have suspended their performance increases, and that it did so only in 1994 by enacting this provision. I do not agree. For the reasons stated earlier, I conclude that either the Treasury Board Secretariat or the deputy head had the discretion under sections 6 and 7 of the compensation plan not to grant performance increases and awards.
[39] In-range salary increases for unionized public servants were suspended by subsection 5(1.1) of the 1994 Act, those increases having formerly been guaranteed to them by the collective agreements. I accept the argument submitted by the respondents, that when Parliament passed that Act it also intended to ensure that these compensation restraints, for both non-unionized and unionized employees, would be imposed by law and not by the exercise of the discretion of the Treasury Board Secretariat or of the deputy heads under the compensation plans.
[40] The applicants submit that the administration of the compensation plan must be "accurate and consistent" (in French, "exacte et uniforme"). In their submission, allowing discretion to be exercised results in unequal treatment among all legal officers, whether they work in the Department of Justice or in other government departments and institutions. They contend that once they have been assessed as "superior" or "outstanding", they must necessarily receive an increase or award of 7% or 10%, depending on the appraisal rating obtained. In other words, as stated in the memorandum of the applicant Piché:
| [translation] |
| 183. ... the deputy head of the Department of Justice could decide, in his discretion, to grant a higher percentage increase to an employee who received a lower performance assessment than another employee; |
| 184. ... two excluded lawyers working in two different departments, who received the same performance assessment, could receive different percentage performance increases; |
[41] I cannot agree that the exercise of the discretion is contrary to the objective of the compensation plan. The plan itself provides for this. In addition, no evidence was tendered to show that other deputy heads, with other legal officers under their authority, exercised their discretion in a manner either different from or similar to what was done by the respondent's predecessor.
[42] The applicants also submit that the decision to suspend their compensation plan is arbitrary and discriminatory in that it is based on a distinction made (a) between unionized legal officers and non-unionized legal officers; and (b) between legal officers in the Department of Justice and legal officers in other departments and agencies.
[43] As well, they contend that the directives issued by the Treasury Board Secretariat, which treat legal officers at the LA-1 level differently from those at the LA-2 and LA-3 levels, are also arbitrary. In the applicants' submission, performance increases for LA-2s were suspended because, under the provisions of the plan, they were eligible for a performance award. The memorandum of the applicant Piché contains the following passage:
| [TRANSLATION] |
| 126. ... this suspension is based on the principle that lawyers who are theoretically eligible for performance or merit awards are not entitled to an in-range performance increase; |
The applicants characterize the exercise of the discretion as capricious or irrelevant in the sense in which that expression was used in Roncarelli v. Duplessis.23
[44] I do not agree. First, unlike the applicants, I cannot deduce from reading the Secretariat's memorandum of November 22, 199124 the precise reasons why the Secretariat decided to make a distinction between LA-2s and LA-1s with respect to the payment of performance increases. In any event, while one may, as the applicants do, disagree with the distinction made by the Secretariat, this does not mean that the distinction is capricious or discriminatory in the sense in which that expression was used in Roncarelli. I find no evidence in the record to show that the discretion exercised by either the Secretariat or the deputy head was exercised in an arbitrary or discriminatory manner.
[45] The applicants contend that the suspension of their compensation plan violated the doctrine of legitimate expectation. This position is stated as follows in the memorandum of the applicant Piché:
| [TRANSLATION] |
| 149. ... the applicant submits that the fact that Treasury Board always paid its non-unionized lawyers in-range increases based on their performance amounts to an established practice, which meant that he could reasonably expect that this policy would continue and that he would be paid increases based on his performance in 1992, 1993 and 1994 and a performance award in 1994. |
The applicants rely on the theory of legitimate expectation, not in support of their right to be consulted before a discretion is exercised, but rather against the suspension of their performance increases.
[46] Once again, I cannot agree with the applicants' assertions. The Supreme Court of Canada has held that the theory of legitimate expectation is in fact a rule of procedural fairness.25 The other cases cited by the parties are to the same effect.26 Neither the evidence nor the interpretation of the provisions of the compensation plan have satisfied me that there was an express promise27 that non-unionized legal officers would always receive performance increases.
[47] With respect to the theory of unjust enrichment, the respondent stated:
Finally, I am not satisfied that the doctrine of unjust enrichment is applicable here. If we agree that certain elements of the compensation plan are discretionary, it is difficult to find that Legal Officers were given an implied promise that they would automatically receive increases after having attained a given level of performance.
Enfin, je ne suis pas convaincu que la doctrine de l'enrichissement sans cause trouve ici application. Si l'on accepte que certains éléments du régime de rémunération sont discrétionnaires, il est difficile de conclure qu'il y avait une promesse implicite faite aux conseillers juridiques que des augmentations leur seraient versées automatiquement une fois qu'ils avaient obtenu une cote de rendement.
I find no error of law in his conclusion. In addition, the decision in Ménard and Ouellette v. Canada,28 which was cited by the applicants, cannot apply in the circumstances of this case.
CONCLUSION
[48] For these reasons, I conclude that the applicants have not established that there is any error of law in the respondent's decisions within the meaning of paragraph 18.2(4)(c) of the Federal Court Act. In his decisions,29 the respondent referred to the discretion of Treasury Board; according to the joint submissions of the parties at the hearing,30 with which I agree, section 7 of the compensation plan must be read on the basis of French version, as meaning "may be otherwise directed" by the Secretariat. This does not justify the intervention of this Court.
[49] At the hearing, counsel for the parties dwelt at length on the scope of this Court's authority to intervene in exercising its powers of judicial review in respect of a decision by the deputy head in response to a grievance filed under section 91 of the Public Service Staff Relations Act.31 In view of the conclusions I have reached in respect of the substance of this case, it is not necessary to address this question.
[50] Accordingly, the five applications for judicial review are dismissed.
Judge
Ottawa, Ontario
March 19, 1998
Certified true translation
C. Delon, LL.L.
__________________
1 R.S.C. 1985, c. P-35. The grievances were filed under paragraph 91(1)(a):
| 91. (1) Where any employee feels aggrieved(a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award, or (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. |
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé: a) par l'interprétation ou l'application à son égard: (i) soit d'une disposition législative, d'un règlement - administratif ou autre - d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi. |
3 The decisions of the mis en cause are essentially identical; the decision concerning the applicant Weder was written in English.
4 Legal officers in the Department of Justice are classified in one of the salary levels: LA-1, LA-2A, LA-2B, LA-3A and LA-3B. The following definitions are among those found in the Treasury Board Manual in Appendix C to the Salary Administration Policy - Law Group - Department of Justice and other excluded law officers :
LA-1: Legal officers in this salary range perform legal work under general supervision.
LA-2A: Legal officers in this salary range are at an experienced working level. Individuals are capable of performing in a number of fields or sub-fields of law and undertake complex assignments. Work is performed under general direction but with considerable freedom of action. Normally a minimum of four years of legal experience related to duties to be performed are required for entry into the LA-2, sub-level A.
11 S.C. 1991, c. 30, subsection 9(2).
14 See the transcript of April 16, 1997, at pages 224-33.
15 See the transcript of September 17, 1997, at pages 121-3. At this point, it should be noted that when the respondent referred to the Treasury Board in his decisions (supra , paragraph 27), he did not specify whether what he had in mind was Treasury Board itself or the Secretariat.
19 Record of the applicant Piché, which contains a memorandum dated November 2, 1992, to the Director General of the Human Resources Directorate of the Department of Justice.
20 Record of the applicant Piché, pages 88-89, which contain a memorandum dated November 2, 1992, to the Director General of the Human Resources Directorate of the Department of Justice.
25 Reference Re Canada Assistance Plan, [1991] 2 S.C.R. 525, 557-8.
26 Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374, 401; and Brink's Canada Ltd. v. Canada Council of Teamsters et al. (1995), 185 N.R. 299, 306-9.
27 These are the words used by Mr. Justice Noël in Nadeau v. Royal Canadian Mounted Police (Commissioner) et al. (1996), 109 F.T.R 128, 140.
30 Supra, paragraph 33 and note 15. I accept the arguments of the respondent Piché, that when the plan is read as a whole section 7 must be read as it reads in the French version.