T-2645-85
Yvon R. H. Gingras (Plaintiff)
v.
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: GINGRAS V. CANADA (T.D.)
Trial Division, Dubé J.—Montréal, November 28,
29, 1989; Ottawa, January 4, 1990.
Judicial review — Equitable remedies — Declarations —
Purely administrative decision reviewable — Must be made
strictly and within limits of purpose and spirit of statute —
Decision to deny RCMP members bilingualism bonus based on
non-civilian status not rationally connected to legislative
objective of Official Languages Act — Decision-making
authorities abusing power and exclusion illegal.
Official languages — Whether bilingualism bonus payable
to plaintiff when member of RCMP and subsequently CSIS
employee — Passing bilingualism tests — Occupying positions
in Quebec designated bilingual — Denied bonus on grounds
not included in employment benefits — Decision to exclude
illegal — Reason for exclusion unrelated to legislative objec
tive of Official Languages Act and policies on bilingualism.
RCMP — Member of RCMP denied bilingual bonus on
basis of non-civilian status — Commissioner's reasons not
justified and not determinative — RCMP employees part of
Public Service by s. 2, P.S.S.R.A. and subject to Treasury
Board as employer.
Security Intelligence — CSIS Director denying
employees—including plaintiff former RCMP member—bilin-
gual bonus — CSIS not subject to Treasury Board as separate
employer under s. 2, P.S.S.R.A. — Bonus wrongly denied as
CSIS bound by s. 9, Official Languages Act — No defence
that plaintiff not paid bonus while with RCMP.
Human rights — Plaintiff member of RCMP and subse
quently of CSIS — Denied bilingualism bonus — Illegal
exclusionary decision based on non-civilian status — Whether
discrimination within meaning of ss. 3, 7, 10 Human Rights
Act or s. 15(1) Charter of Rights and Freedoms — Discrimi
nation based on category of employment not prohibited ground
under either Act.
This was an action for a declaratory judgment that the
plaintiff was entitled to the bilingualism bonus created by the
Treasury Board and the Public Service Commission in 1977.
The plaintiff, a member of the RCMP until 1984 and
subsequently of the Canadian Security Intelligence Service
("the Service") until retirement in 1988, was never paid the
bilingualism bonus on the ground that it was not included in his
employment benefits. The plaintiff was bilingual, had passed all
requisite tests for bilingualism and occupied positions in
Quebec designated as bilingual.
Shortly after the Government introduced the bilingualism
bonus, the Commissioner of the RCMP issued a directive to the
effect that the new policy did not cover members of the RCMP,
that it was not Treasury Board's intention to include them and
that the Force would not be seeking authority from Treasury
Board to pay such a bonus to its members. The policy of the
Director of the Service was to pay the bilingual bonus to
support staff but not to professionals.
The following issues had to be determined in this action: (1)
Whether the appropriate decision-making authorities abused
their power and acted illegally by excluding the plaintiff from
receipt of the bonus; (2) Whether, as a result of the decision to
exclude the plaintiff, there was discrimination based on nation
al or ethnic origin pursuant to sections 3, 7, 10 of the Human
Rights Act or subsection 15(1) of the Canadian Charter of
Rights and Freedoms; (3) What period of prescription applied
herein?
Held, the action should be allowed.
(1) The exclusion of RCMP and CSIS members from pay
ment of the bonus was illegal. Only Treasury Board with
respect to the RCMP and the Director of the Service with
regard to CSIS members had the power to grant or deny the
bilingualism bonus. All employees of the RCMP are covered by
the definition of "Public Service" in section 2 of the Public
Service Staff Relations Act and, as included in Part I of
Schedule I, are subject to Treasury Board's powers as their
employer, which powers include the determination of working
conditions, salary and other financial compensation pursuant to
section 5, and subsections 7(1) and 7(9) of the Financial
Administration Act. The powers given to the Commissioner
under section 5 of the Royal Canadian Mounted Police Act do
not authorize determination of compensation. Under section 2
of the Public Service Staff Relations Act, the Service is by
definition a separate employer. By section 8 of the Canadian
Security Intelligence Service Act, the Director of the Service
has the same powers over CSIS employees as has Treasury
Board over Public Service employees.
A discretionary administrative decision is reviewable and
must be made strictly and within the limits of the purpose and
spirit of the statute. The object of the administrative act was to
implement policies of general application on bilingualism in
order to promote the objectives of the Official Languages Act
within the Public Service. The bilingualism bonus was a policy
adopted to comply with section 9 of the Official Languages
Act. The express exclusions as confirmed by the Statement of
Policies are rationally connected to the financial administration
of bilingual policy in the Public Service as the persons excluded
from receipt of the bonus are part-time or temporary or
appointed by the Governor in Council. Members of the RCMP
do not, however, hold this type of employment. Their exclusion,
based on their non-civilian status, was a reason unrelated to
policies on bilingualism. There is no rational connection be
tween this exclusion and the objective sought.
The Director of the Service, although not governed by the
Treasury Board bilingual policies, has a duty under section 9 of
the Official Languages Act to introduce bilingual policies. The
Director's reasons do not meet the criteria of legality according
to the case law. The argument that subsection 66(2) of the
Canadian Security Intelligence Service Act is an impediment to
giving the plaintiff the bonus because he did not receive it when
with the RCMP is wrong. Subsection 66(2) determines the
minimum benefits of entitlement when transferring. Any vested
right would continue.
(2) There had been no infringement of sections 3, 7 or 10 of
the Human Rights Act or of subsection 15(1) of the Charter.
Discrimination based on category of employment is not a
prohibited ground of discrimination under either Act.
(3) Since the plaintiff's engagement was contractual in
nature and performed in Quebec, the five-year prescription
period under article 2260(6) of the Civil Code applies and the
plaintiff loses his right of action to recover the bonus for 1976
to 1979. The plaintiff's right to the bonus stands for the years
1980 to 1988, the action having been commenced in 1985.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 15.
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 3,
7, 10.
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 8(1), 66(1),(2), 93, 94.
Canadian Security Intelligence Service Act, R.S.C.,
1985, c. C-23.
Civil Code of Lower Canada, art. 2260(6).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
38(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 39(1).
Financial Administration Act, R.S.C. 1970, c. F-10, ss.
5(1), 6, 7(1),(9).
Financial Administration Act, R.S.C., 1985, c. F-11.
Official Languages Act, R.S.C. 1970, c. O-2, ss. 8(1), 9.
Official Languages Act, R.S.C., 1985, c. O-3.
Ontario Limitations Act, R.S.O. 1980, c. 240, s.
45 ( 1 )(g).
Penitentiary Act, R.S.C. 1970, c. P-6, s. 5(2).
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
2(1), 24.
Public Service Employment Act, R.S.C., 1985, c. P-33.
Public Service Staff Relations Act, R.S.C. 1970, c. P-35,
s. 2, Schedule I.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35.
Public Service Terms and Conditions of Employment
Regulations, SOR/67-118.
Royal Canadian Mounted Police Act, R.S.C. 1970, c.
R-9, ss. 5, 6(3), 7(1), 13, 21, 22.
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10.
CASES JUDICIALLY CONSIDERED
APPLIED:
Morin v. National SHU Review Committee, [1985] 1
F.C. 3; (1985), 20 C.C.C. (3d) 123; 46 C.R. (3d) 238; 60
N.R. 121 (C.A.); Roncarelli v. Duplessis, [1959] S.C.R.
121; (1959), 16 D.L.R. (2d) 689; Delanoy v. Public
Service Commission Appeal Board, [1977] 1 F.C. 562;
(1976), 13 N.R. 341 (C.A.); Prince George (City of) v.
Payne, [1978] 1 S.C.R. 458; (1977), 75 D.L.R. (3d);
[1977] 4 W.W.R. 275; 2 M.P.L.R. 162; 15 N.R. 386; R v
Secretary of State for the Home Dept. ex p. Khan,
[1985] 1 All ER 40 (C.A.); R. v. Turpin, [1989] 1 S.C.R.
1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 96 N.R.
115.
DISTINGUISHED:
Bolling v: Public Service Staff Relations Board, [1978] 1
F.C. 85; (1977), 77 D.L.R. (3d) 318 (C.A.).
CONSIDERED:
Montréal (City of) v. Arcade Amusements Inc. et al.,
[1985] 1 S.C.R. 368; (1985), 14 D.L.R. (4th) 161; 29
M.P.L.R. 220; 58 N.R. 339; Re Multi-Malls Inc. et al.
and Minister of Transportation and Communications et
al. (1976), 14 O.R. (2d) 49; 73 D.L.R. (3d) 18 (C.A.);
Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; 91 N.R. 255;
Reference Re Workers' Compensation Act, 1983,
(Nfld.), [1989] 1 S.C.R. 922; (1989), 96 N.R. 227.
REFERRED TO:
Reference as to the Validity of the Regulations in rela
tion to Chemicals, [1943] S.C.R. 1; [1943] 1 D.L.R. 248;
(1943), 79 C.C.C. 1; Oakwood Development Ltd. v.
Rural Municipality of St. François Xavier, [1985] 2
S.C.R. 164; (1985), 20 D.L.R. (4th) 641; [1985] 6
W.W.R. 147; 36 Man. R. (2d) 215; 18 Admin. L.R. 59;
31 M.P.L.R. 1; 61 N.R. 321; 37 R.P.R. 101; Vanguard
Coatings and Chemicals Ltd. v. M.N.R., [1987] 1 F.C.
367; (1986), 7 F.T.R. 11 (T.D.); Public Service Alliance
(Can.) v. Deans and Canada (Treasury Board) (1988), 19
F.T.R. 97 (F.C.T.D.); Association des gens de l'Air du
Québec v. The Honourable Otto Lang, [ 1977] 2 F.C. 22;
(1977), 76 D.L.R. (3d) 455 (T.D.); affd [1978] 2 F.C.
371; (1978), 89 D.L.R. (3d) 495; 22 N.R. 328 (C.A.);
Secretary of State for Education and Science v. Tame-
side Metropolitan Borough Council, [1977] A.C. 1014
(H.L.); Laker Airways Ltd v Department of Trade,
[1977] 2 All ER 182 (C.A.); Bullion v. The Queen et al.,
[1980] 2 S.C.R. 578; Re Doctors Hospital and Minister
of Health et al. (1976), 12 O.R. (2d) 164; 68 D.L.R. (3d)
220; 1 C.P.C. 232 (Div. Ct.); Maple Lodge Farms Ltd. v.
Government of Canada, [1982] 2 S.C.R. 2; (1982) 137
D.L.R. (3d) 558; 44 N.R. 354; The Way Biblical
Research and Teaching Ministry of Canada v. Canada
Employment and Immigration Commission, [1983] 1
F.C. 467 (T.D.); Fountainhead Fun Centres Ltd. c. Mon-
tréal (Ville de), [1981] C.A. 468; (1981), 128 D.L.R.
(3d) 579 (Qué.); Kruse v. Johnson, [1898] 2 Q.B. 91
(Div. Ct.); Re Liverpool Taxi Owners' Association,
[1972] 2 All ER 589 (C.A.); O'Reilly v Mackman,
[1982] 3 All ER 1124 (H.L.); A-G of Hong Kong v Ng
Yuen Shiu, [1983] 2 All ER 346 (P.C.); Brossard (Town)
v. Quebec (Commission des droits de la personne),
[1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 88
N.R. 321; Ford v. Quebec (Attorney General), [1988] 2
S.C.R. 712; Stoffman v. Vancouver General Hospital
(1988), 49 D.L.R. (4th) 727; [1988] 2 W.W.R. 708;
(1988), 21 B.C.L.R. (2d) 165 (C.A.); R. v. Hayden
(1983), 3 D.L.R. (4th) 361; [1983] 6 W.W.R. 655; 23
Man. R. (2d) 315; 8 C.C.C. (3d) 33; 36 C.R. (3d) 187
(C.A.); Tétreault-Gadoury v. Canada (Canada Employ
ment and Immigration Commission), [1989] 2 F.C. 245;
(1988), 53 D.L.R. (4th) 384; 88 N.R. 6 (C.A.);
Orphans v. Queen Mary's College (1I85), 62 N.R. 243
(H.L.); Veysey v. Canada (Correctional Service), [1990]
1 F.C. 321 (T.D.); Long v. Canada (Treasury Board)
(1989), 27 F.T.R. 269 (F.C.T.D.); Evans v. Canada
(T-1414-86, Dubé J., order dated 13/4/87, not reported);
Phillips v. The Queen, [1977] 1 F.C. 756 (T.D.).
AUTHORS CITED
Falconbridge, John Delatre. Essays on the Conflict of
Laws, 2nd ed. Toronto: Canada Law Book Co. Ltd.,
1954.
Garant, Patrice. Droit administratif, 2nd ed. Montréal:
Editions Yvon Blais, 1985.
Evans, J. M. et al. Administrative Law: Cases, Texts and
Materials, 3rd ed. Toronto: Emond Montgomery Publi
cations Ltd., 1989.
Martineau, Pierre. La Prescription. Montréal: Les
Presses de l'Université de Montréal, 1977.
Pépin, Gilles and Ouellette, Yves. Principes de Conten-
tieux Administratif, 2nd ed. Cowansville (Québec):
Editions Yvon Blais, 1982.
Pigeon, Louis-Philippe. Rédaction et interprétation des
lois. Québec: Éditeur officiel, 1978.
COUNSEL:
Julius H. Grey for plaintiff.
Raymond Piché for defendant.
SOLICITORS:
Grey, Casgrain, Montréal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
DUBÉ J.: By this action the plaintiff is seeking a
declaratory judgment that he is entitled to the
bilingualism bonus created by the Treasury Board
and the Public Service Commission in 1977.
1. Relevant facts
The plaintiff was a member of the Royal
Canadian Mounted Police ("the RCMP") from
August 16, 1962 to July 15, 1984, and on that date
he transferred to the Canadian Security Intelli
gence Service ("the Service"). He retired on
December 2, 1988. The plaintiff is bilingual and
passed all the tests necessary to establish his bilin-
gualism. He held positions in Quebec designated
as bilingual. He was never paid the bonus on the
ground that his employment had never included
the bilingualism bonus under the Royal Canadian
Mounted Police Act, [R.S.C. 1970, c. R-9] and
the Canadian Security Intelligence Service Act,
[S.C. 1984, c. 21].
2. Plaintiff's arguments
Counsel for the plaintiff alleged that the exclu
sion of RCMP members and professionals working
for the Service is discrimination, first, because it
creates a distinction which is illegal under the
rules of administrative law, and second, because it
infringes the rights of such persons under
sections 7 and 10 of the Canadian Human Rights
Act,' and since 1985, under section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
1 S.C. 1976-77, c. 33 (R.S.C., 1985, c. H-6).
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]].
3. Exclusion decisions
To begin with, it is not easy to determine who
made the exclusion decisions. Was it the Governor
in Council, the Treasury Board or first the RCMP
Commissioner and later the Director of the Ser
vice? Before unravelling the overlapping of the
relevant legislation and the tangle of applicable
directives and circulars, I feel it is appropriate to
cite a passage from a directive of Commissioner R.
H. Simmonds dated December 9, 1977, addressed
to division commanding officers and dealing with
official languages. It is important to emphasize
that this directive was issued soon after the revised
policy on official languages of the Government of
Canada introducing the bonus in question was
released by the Treasury Board and the Public
Service Commission:
4. One of the major elements of the revised policies is the
payment of the Bilingualism Bonus, retroactive to 1 November
1976, to all Public Servants meeting the language requirements
of identified bilingual positions. While the Revised Official
Languages Policies contain authority to pay this bonus to
Public Servants, that authority does not extend to members of
the Force, the Canadian Forces and certain Crown Corpora
tions and Agencies, nor is it Treasury Board's intention that it
apply to them. Action is already being taken to pay the bonus
to Public Servants working in the Force. However, the Force
will not be seeking authority from Treasury Board to pay the
bonus to members, for several reasons:
(a) members of other police forces in Canada do not receive
a bilingual bonus and as pay research and negotiation for
members of the Force is related to the police community, our
equation must be with them,
(b) in a cohesive organization such as the Force, the pay
ment of such a bonus would become a divisive element as it
would create situations in which members of equal rank and
responsibility working side by side could receive differing
remuneration because one or several of them had either the
good fortune to grow up in a milieu which was favourable to
learning the second official language or had the equally good
fortune to learn it at public expense.
I will examine below the two reasons given by
the Commissioner for depriving his men of the
bilingualism bonus. For the moment, I simply wish
to draw attention to his statement that the new
policy on bilingualism did not cover members of
the RCMP, that it was not Treasury Board's
intention to include them and that "the Force will
not be seeking authority from Treasury Board to
pay the bonus to members".
The Director of the Service, for his part, set out
his policy on the matter in a letter to counsel for
the plaintiff on March 5, 1985. He noted that in
the case of the Service, Treasury Board is not the
employer, and that it was he as Director who
decided that the bilingualism bonus would be paid
to support staff but not to professionals. He added
that when the plaintiff was employed by the
RCMP, he was not entitled to the bonus and that
subsection 66(2) of the Canadian Security Intelli
gence Service Act provides that members of the
Force who become employees of the Service con
tinue to have employment benefits equivalent to
those of the positions they were holding.
4. Applicable legislation
The allegations put forward by the two parties
during the hearing concerned the effects of various
legislation dealing with the federal Public Service 2
in general, the RCMP and the Service in particu
lar, specifically with respect to the plaintiff's status
and rights.
To understand the context, one must read to
gether the Public Service Staff Relations Act, 3 the
Public Service Employment Act, 4 the Financial
Administration Act, 5 the Royal Canadian Mount
ed Police Act 6 and the Canadian Security Intelli
gence Service Act.' To this already long list I
would add the Official Languages Act, 8 the State
ment of Policies on Official Languages in the
Public Service and circular 1977-46 issued by the
2 Now known in French as "administration publique
fédérale".
3 R.S.C. 1970, c. P-35 (R.S.C., 1985, c. P-35).
° R.S.C. 1970, c. P-32 (R.S.C., 1985, c. P-33).
5 R.S.C. 1970, c. F-10 (R.S.C., 1985, c. F-11).
6 R.S.C. 1970, c. R-9 (R.S.C., 1985, c. R-10).
' S.C. 1984, c. 21 (R.S.C., 1985, c. C-23).
R.S.C. 1970, c. O-2 (R.S.C., 1985, c. O-3).
Treasury Board and the Public Service Commis
sion in September 1977. 9
After carefully reviewing each of these statutes
in light of the arguments made by both parties, I
have concluded that the provisions required to
resolve the matter can usefully be stated and
analysed as follows.
First, section 2 of the Public Service Staff
Relations Act defines most of the terms relevant to
the case. That section provides: 10
2. In this Act
"Public Service" means the several positions in or under any
department or other portion of the public service of Canada
specified from time to time in Schedule I;
"employee" means a person employed in the Public Service,
other than
(e) a person who is a member or special constable of the
Royal Canadian Mounted Police or who is employed by that
Force under terms and conditions substantially the same as
those of a member thereof,
"employer" means Her Majesty in right of Canada as repre
sented by,
(a) in the case of any portion of the public service of Canada
specified in Part I of Schedule I, the Treasury Board, and
(b) in the case of any portion of the public service of Canada
specified in Part II of Schedule I, the separate employer
concerned; [My emphasis.]
Section 93 of the Canadian Security Intelli
gence Service Act added the following paragraph
to the exclusions in the definition of "employee":
2....
(e.l) an employee of the Canadian Security Intelligence
Service who is not within the occupational category described
as administrative support, [My emphasis.]
Schedule I, referred to by these definitions, lists
the portions of the public service for which the
Treasury Board, in Part I, or the body itself, in
Part I1, is the employer. The RCMP is listed in
9 I refer to the legislation in effect at the time covered by the
application; counsel referred instead to the current versions.
1 " The alphabetical order has been adjusted.
Part I, and the Service is one of the bodies desig
nated in Part II as being a separate employer."
Counsel for the defendant argued that under
paragraph (e), supra, of the exclusions from the
definition of "employee", the Treasury Board was
not acting as the plaintiffs employer when he was
with the RCMP That is not my view. On the other
hand, it was common ground that after he was
transferred to the Service he became an employee
of the latter, a separate employer.
I note in particular that neither paragraph (a) of
the definition of "employer" nor the list in Part I
of Schedule I appears to make any distinction
between the civilian and non-civilian employees of
the RCMP Further, the aforementioned definition
of "employer" clearly states "any portion" of the
bodies specified in Part I of Schedule I has the
Treasury Board as its employer.
In my view the exclusion of non-civilian, non-
unionized members of the RCMP for the purposes
of application of the general provisions of the
Public Service Staff Relations Act is solely and
specifically related to the purpose of that Act,
namely setting out collective labour relations in
the Public Service. This exclusion does not have
the effect of placing these members of the RCMP
outside the definition of "public service".
Furthermore, in my opinion my conclusion does
not go against the judgment of the Federal Court
of Appeal in Bolling v. Public Service Staff Rela
tions Board.' 2 In that case the Court held, in
circumstances very different from those at bar,
that members of the Canadian Armed Forces were
not covered by the definition of "Public Service"
in the Public Service Staff Relations Act. Unlike
the RCMP, the armed forces are not one of the
bodies listed in Schedule I of that Act.
The definition of "Public Service" in subsection
2(1) of the Public Service Employment Act refers
to the aforementioned definition in the Public
Service Staff Relations Act. The definition of
" S. 94, Canadian Security Intelligence Service Act.
12 [1 978 ] 1 F.C. 85; (1977), 77 D.L.R. (3d) 318 (C.A.).
"employee", on the other hand, is different and
reads as follows:
2. (1) ... In this Act
"employee" means a person employed in that part of the Public
Service to which the Commission has the exclusive right and
authority to appoint persons; [My emphasis]
This definition excludes the plaintiff, whose
appointment was the responsibility first of the
RCMP Commissioner 13 and secondly of the Direc
tor of the Service, 14 and not the Public Service
Commission.
However, I do not consider that this exclusion
affects his belonging to the Public Service as
defined in the Public Service Staff Relations Act.
As can be seen from the two foregoing definitions,
it is clear that the scope of the terms "public
service" and "Public Service" vary depending on
the Acts and their specific purposes. Accordingly,
exclusion for the purposes of one or other statute
does not alter the fact that the plaintiff is still
covered by Part I of Schedule I of the Public
Service Staff Relations Act.
In addition, the Financial Administration Act
sets out the responsibilities, duties and powers of
the Treasury Board with respect to members of the
public service. Subection 5(1) defines the general
responsibilities as follows:
5. (1) The Treasury Board may act for the Queen's Privy
Council for Canada on all matters relating to
(a) general administrative policy in the public service of
Canada;
(b) the organization of the public service or any portion
thereof, and the determination and control of establishments
therein;
(e) personnel management in the public service, including
the determination of terms and conditions of employment of
persons employed therein; and
(/) such other matters as may be referred to it by the
Governor in Council.
13 Subs. 7(1), Royal Canadian Mounted Police Act.
14 Subs. 8(1), Canadian Security Intelligence Service Act.
The powers and functions are more specifically
indicated in subsection 7(1), which provides in
part:
7. (1) Subject to the provisions of any enactment respecting
the powers and functions of a separate employer but notwith
standing any other provision contained in any enactment, the
Treasury Board may, in the exercise of its responsibilities in
relation to personnel management including its responsibilities
in relation to employer and employee relations in the public
service, and without limiting the generality of sections 5 and 6,
(a) determine the manpower requirements of the public
service and provide for the allocation and effective utilization
of manpower resources within the public service;
(b) determine requirements for the training and develop
ment of personnel in the public service and fix the terms on
which such training and development may be carried out;
(c) provide for the classification of positions and employees
in the public service;
(d) determine and regulate the pay to which persons
employed in the public service are entitled for services ren
dered, the hours of work and leave of such persons and any
matters related thereto;
(e) provide for the awards that may be made to persons
employed in the public service for outstanding performance
of their duties, for other meritorious achievement in relation
to those duties and for inventions or practical suggestions for
improvements;
(i) provide for such other matters, including terms and
conditions of employment not otherwise specifically provided
for in this subsection, as the Treasury Board considers neces
sary for effective personnel management in the public ser
vice. [My emphasis.]
Subsection 7(9) provides that, for the purposes
of this section:
7....
(9) In this section
"public service" has the meaning given the expression "Public
Service" in the Public Service Staff Relations Act, and
includes any portion of the public service of Canada desig
nated by the Governor in Council as part of the public
service for the purposes of this section;
If my interpretation that all employees of the
RCMP are covered by the definition of "Public
Service" in the Public Service Staff Relations Act
is correct, it follows that they are also covered by
the Board's powers respecting the public service.
Accordingly, in my opinion while the plaintiff was
a member of the RCMP he was an employee of
the Treasury Board, which could determine his
working conditions, salary and other financial
compensation.
Further, if it were needed, section 22 of the
Royal Canadian Mounted Police Act provides a
second statutory authority expressly conferring on
the Board the power to determine the compensa
tion to be paid to the RCMP:
22. (1) The Treasury Board shall establish the pay and
allowances to be paid to the members of the force.
Contrary to the arguments of the defendant, I
do not consider that this provision is essential to
establish that the Board was the plaintiffs employ
er: similar provisions exist in other statutes affect
ing bodies listed in Part I of Schedule I of the
Public Service Staff Relations Act 15 in which the
employer is already identified as being the Trea
sury Board.
Subsection 8(1) of the Canadian Security Intel
ligence Service Act gives the Director of the Ser
vice powers over his employees in all respects
similar to those of the Treasury Board over other
Public Service employees:
8. (1) Notwithstanding the Financial Administration Act
and the Public Service Employment Act, the Director has
exclusive authority to appoint employees and, in relation to the
personnel management of employees, other than persons
attached or seconded to the Service as employees,
(a) to provide for the terms and conditions of their employ
ment; and
(b) subject to the regulations,
(i) to exercise the powers and perform the duties and
functions of the Treasury Board relating to personnel
management under the Financial Administration Act, and
(ii) to exercise the powers and perform the duties and
functions assigned to the Public Service Commission by or
pursuant to the Public Service Employment Act. [My
emphasis.]
I do not subscribe to the argument of counsel for
the plaintiff that this exception does not extend to
compensation: there is neither ambiguity nor scope
for interpretation in this provision, which is with
out any question the type of exception expressly
allowed for in the introductory paragraph of sub
section 7(1) of the Financial Administration Act,
cited above.
The exercise of the Director's power is however
limited by section 66 of the Canadian Security
15 E.g. Penitentiary Act, R.S.C. 1970, c. P-6, subs. 5(2).
Intelligence Service Act, a transitional provision of
the Act creating the Service, which states:
66. (1) Subject to subsection (5),
(a) all officers and members of the Force, and
(b) all persons appointed or employed under the Public
Service Employment Act
assigned to the security service immediately prior to the coming
into force of this section become employees of the Service on
the coming into force of this section.
(2) Every person mentioned in subsection (1) continues, on
the coming into force of this section, to have employment
benefits equivalent to those that the person had immediately
prior thereto, until such time as those benefits are modified
pursuant to a collective agreement or, in the case of persons not
represented by a bargaining agent, by the Service. [My
emphasis.]
The underlined words read as follows in the
French version:
66....
(2) Le paragraphe (I) ne porte pas atteinte à l'équivalence
des avantages attachés aux postes des personnes qu'il vise ...
[My emphasis.]
Accordingly, after the end of 1984 the authority
of the Service as a separate employer, with respect
to everything affecting the plaintiff's compensa
tion, took the place of that formerly held by
Treasury Board, subject to subsection 66(2) above.
The plaintiff therefore took with him to the Ser
vice the same benefits he had with the RCMP.
On the other hand the authority of the RCMP
Commissioner is not as wide as that of the Direc
tor of the Service. Apart from the power to
appoint members other than officers of the Force,-
16 it is described in general terms in sections 5 and
21 of the Royal Canadian Mounted Police Act,
which provide:
5. The Governor in Council may appoint an officer to be
known as the Commissioner of the Royal Canadian Mounted
Police who, under the direction of the Minister, has the control
and management of the force and all matters connected
therewith.
21. (1) The Governor in Council may make regulations for
the organization, training, discipline, efficiency, administration
and good government of the force and generally for carrying
the purposes and provisions of this Act into effect.
16 The Governor in Council appoints officers: subs. 6(3).
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be known
as standing orders, for the organization, training, discipline,
efficiency, administration and good government of the force.
As I see it, this power conferred on the Commis
sioner to make "standing orders" does not author
ize him to determine the compensation of RCMP
members, as that matter is within the exclusive
jurisdiction of the Treasury Board.
This brief review of the complex statutory rela
tionships between the various bodies and institu
tions of the public service leads me to conclude
that only the Treasury Board, and subsequently
the Director of the Service, held decision-making
authority over the plaintiff's compensation, includ
ing the power to grant or deny the bilingualism
bonus.
5. Bilingualism bonus
The bilingualism bonus was part of the policies
adopted by the Public Service to comply with the
duties imposed in section 9 of the Official Lan
guages Act, which reads as follows:
9. (1) Every department and agency of the Government of
Canada and every judicial, quasi-judicial or administrative
body or Crown corporation established by or pursuant to an
Act of the Parliament of Canada has the duty to ensure that
within the National Capital Region, at the place of its head or
central office in Canada if outside the National Capital
Region, and at each of its principal offices in a federal bilingual
district established under this Act, members of the public can
obtain available services from and can communicate with it in
both official languages.
(2) Every department and agency of the Government of
Canada and every judicial, quasi-judicial or administrative
body or Crown corporation established by or pursuant to an
Act of the Parliament of Canada has, in addition to but without
derogating from the duty imposed upon it by subsection (1), the
duty to ensure, to the extent that it is feasible for it to do so,
that members of the public in locations other than those
referred to in that subsection, where there is a significant
demand therefor by such persons, can obtain available services
from and can communicate with it in both official languages.
As we have seen, the bilingualism bonus in its
present form was not introduced until 1977, when
a sweeping review of bilingualism policies in the
Public Service was jointly undertaken by the Trea
sury Board and the Public Service Commission.
The bilingualism bonus is dealt with in the State
ment of Policies on Official Languages published
by the Treasury Board and the Public Service
Commission in September 1977. The following
paragraph indicates which employees are eligible
for the bonus:
The Bilingualism Bonus shall be payable to all eligible
employees for whom the Treasury Board is the Employer and
Government-in-Council appointments when such employees
occupy positions which have been designated as bilingual and
the employee has been certified by the Public Service Commis
sion as meeting the established language proficiency require
ments for the position.'? [My emphasis.]
In circular 1977-46 issued on September 30,
1977, which summarizes the gist of the aforemen
tioned Statement, its application is defined as
follows:
This circular applies to all departments and agencies listed in
Part I of Schedule I of the Public Service Staff Relations Act.
It also applies to those corporations included in schedules "B"
and "C" of the Financial Administration Act. [My emphasis.]
So then, prima facie the plaintiff, who held a
position designated as bilingual and whose employ
er was the Treasury Board, was entitled to the
bilingualism bonus while he was a member of the
RCMP, unless he had been excluded expressly or
by necessary implication by a competent authority.
The exceptions to the application of the policy
on the bilingualism bonus are listed in the State
ment of official languages policies. I quote in full
(at pages 144-145):
Notwithstanding Section (1), the Bilingualism Bonus shall not
be payable to:
(a) Employees in the Translation Group except for those
whose positions have been designated as bilingual for reasons
other than in respect of the performance or supervision of
duties specified in the inclusion section of the Translation
Group definition;
(b) employees who are to continue to receive the frozen ST
pay differential, under conditions as specified in paragraph
15 of this Policy section;
(c) persons appointed by the Governor-in-Council at the SX
4 or equivalent salary level and above;
(d) a person who falls under one of the following in that he
or she is
(i) a person locally engaged outside Canada;
' 7 Official Languages in the Public Service of Canada, A
Statement of Policies, September 1977, policy IV.19, p. 144.
(ii) a person whose compensation for the performance of
the regular duties of the position or office consists of fees
of office, or is related to the revenue of the office in which
the person is engaged;
(iii) a person not ordinarily required to work more than
one-third of the normal period for persons doing similar
work;
(iv) a person employed on a casual or temporary basis
unless such person has been so appointed for a period of
more than six months;
(v) a person under a professional or personal service
contract.
As can be seen, these exceptions do not include
the RCMP and no subsequent amendment applied
directly to the non-civilian members of the RCMP
(In 1978, persons appointed by the Governor in
Council were made ineligible for the bonus, but
this change did not affect members of the RCMP
other than officers.) Are such members excluded
by necessary implication as a consequence of the
revision of the aforesaid legislation? I feel I have
shown that this was not the case.
As a separate employer, the Service is not sub
ject to Treasury Board policies. The policy on the
bilingualism bonus adopted by the Director of the
Service is thus separate from that already con
sidered. In the Service the plaintiff is expressly
excluded, as indicated by the letter from the Direc
tor cited at the start of these reasons and by
section 12 of chapter 11.4 on Pay and Benefits, an
extract from the internal policies of the Service.
That section reads as follows:
12. The provision of the bonus is restricted to qualified
employees, occupying designated positions in the Administra
tive Support Category.
Are these exclusions, implied on the part of the
Treasury Board and expressed on the part of the
Director of the Service, illegal or discriminatory as
counsel for the plaintiff contends?
6. Illegality of exclusions
As mentioned at the outset, counsel for the
plaintiff first argued that the distinction brought
about the exclusion authorized first by the Trea
sury Board and secondly by the Director of the
Service, is illegal in terms of the fundamental
principles of administrative law. He cited in sup
port of this proposition a judgment of the Supreme
Court of Canada, Montréal (City of) v. Arcade
Amusements Inc. et al., 1 S which dealt with a
municipal by-law applying to amusement equip
ment and halls and excluding young persons under
eighteen years of age. The Court had to decide
,whether this by-law was discriminatory. Beetz J.
said in this regard (at page 404):
The rule that the power to make by-laws does not include
that of enacting discriminatory provisions unless the enabling
legislation provides the contrary has been observed from time
immemorial in British and Canadian public law.
At page 406 he cited with approval a comment
by Louis-Philippe Pigeon J. 19 based on a rule
stated in Kruse v. Johnson: 2°
[TRANSLATION] Another important observation has to be
made regarding the regulatory power. It is the following: the
power to make regulations does not include a power to adopt
discriminatory provisions. In other words, unless the legislation
authorizing it states the contrary a regulation must apply to
everyone in the same way. If the intent is to make a distinction,
this must be stated. One of the interesting decisions on this
point is Rex v. Paulowich, [1940] 1 W.W.R. 537; and there are
many others.
And finally, at page 413:
It must be held that, in the absence of express provisions to the
contrary or implicit delegation by necessary inference, the
sovereign legislator has reserved to itself the important power
of limiting the rights and freedoms of individuals in accordance
with such fine distinctions. The principle transcends the limits
of administrative and municipal law. It is a principle of funda
mental freedom.
Counsel for the defendant argued that a distinc
tion should be drawn between an administrative
decision and the type of by-law at issue in Arcade
Amusements. The only written evidence of a deci
sion by the Treasury Board filed at the hearing is
the aforementioned directive of the Commissioner.
In my opinion, whatever form the directive takes,
the decision must meet certain criteria of legality,
as no discretionary power is absolute. 21 Moreover,
every administrative act derives its legal authority
's [1985] 1 S.C.R. 368; (1985), 14 D.L.R. (4th) 161; 29
M.P.L.R. 220; 58 N.R. 339.
19 Rédaction et interprétation des lois, 1978, at p. 34.
20 [1898] 2 Q.B. 91 (Div. Ct.).
21 Garant, P. Droit administratif, 2nd ed. Montréal, Éditions
Yvan Blais, 1985, pp. 257-258; Pépin and Ouellette, Principes
de Contentieux Administratif, 2nd ed. Cowansville, Éditions
Yvon Blais, 1982, pp. 263-264; Roncarelli v. Duplessis, [1959]
S.C.R. 121; (1959), 16 D.L.R. (2d) 689, at p. 140 S.C.R.
solely from legislation. 22
What must be recognized, in my view, is that
the wide powers of the Treasury Board 23 allow it
to define the application of and exclusions from its
own policies, so long as it acts within its jurisdic
tion, and remains subject to possible challenges by
affected individuals. As an example, I refer to the
Regulations respecting the Terms and Conditions
of Employment in Certain Parts of the Public
Service, 24 where the application is defined as
follows:
Schedule A
1. The several positions in or under
(a) the departments named in Schedule A to the Financial
Administration Act; and
(b) the portions of the public service of Canada named in
Part I of Schedule 1 to the Public Service Staff Relations
Act;
to which the Public Service Commission has the exclusive right
and authority to appoint persons. [My emphasis.]
In the case at bar, the Board did not limit the
application of its bilingualism policies by proceed
ing in this way. It chose instead to exclude certain
persons, or certain groups, from entitlement to the
bilingualism bonus, though the program was essen
tial to the working out of its policies. The RCMP
has never been a group expressly excluded from
those policies.
The question therefore is whether the Board
enjoys a discretion such that it can with impunity
ignore its own policies and impose an "unofficial"
exclusion, which was never stated in the policy. In
other words, did the Board abuse its powers and so
act illegally?
The Director of the Service, for his part, has the
same powers as the Board and is subject to the
same rules governing their exercise: it must be
22 Garant, P., op. cit., pp. 261-262; Reference as to the
Validity of the Regulations in relation to Chemicals, [1943]
S.C.R. 1; [1943] I D.L.R. 248; (1943), 79 C.C.C. 1, at p. 13
S.C.R.
23 In addition to those already noted, there are the regulatory
powers listed in s. 6 of the Financial Administration Act.
24 SOR/67-1 18; TB 665757, Public Service Terms and Con
ditions of Employment Regulations (now c. 2-1, vol. 8, Person
nel Management Manual, Treasury Board Secretariat, p.
A69*).
determined in his case whether the adoption of an
express exclusion policy in the Service was also an
abuse of his power and so an illegal act.
The courts have held that the exercise of a
discretionary power by an administrative authority
is not beyond the scope of judicial review. 25
In Morin v. National SHU Review Committee 26
the Federal Court of Appeal, citing English law
which is the source for most of the basic rules in
administrative law, summarized the applicable
principles as follows (at pages 18-19):
... judicial review of purely administrative action is limited,
but clearly does exist. The landmark case in this area of
administrative law is Padfield and Others v. Minister of
Agriculture, Fisheries and Food, [1968] A.C. 997 (H.L.). In
that case the House of Lords held that the Minister's discretion
as to whether to appoint a committee to investigate complaints
was not unfettered, and that the reasons he had given for his
refusal showed that he had acted ultra vires, by taking into
account factors that were legally irrelevant and by using his
power in a way calculated to frustrate the policy of the
legislation in question. Four of the five members of the House
of Lords went so far as to say that even if the Minister had
given no reasons for his decision, once a prima facie case of
misuse of power had been established, it would have been open
to the Court to infer in any event that he had acted unlawfully.
Lord Upjohn, in the majority, perhaps most clearly expressed
the law with respect to judicial review (at page 1058):
So it is clear that the Minister has a discretion and the real
question for this House to consider is how far that discretion
is subject to judicial control.
Unlawful behaviour by the Minister may be stated with
sufficient accuracy for the purposes of the present appeal
(and here I adopt the classification of Lord Parker C.J., in
the Divisional Court): (a) by an outright refusal to consider
the relevant matter, or (b) by misdirecting himself in point of
25 Oakwood Development Ltd. v. Rural Municipality of St.
François Xavier, [1985] 2 S.C.R. 164; (1985), 20 D.L.R. (4th)
641; [1985] 6 W.W.R. 147; 36 Man. R. (2d) 215; 18 Admin.
L.R. 59; 31 M.P.L.R. 1; 61 N.R. 321; 37 R.P.R. 101 at p. 174
S.C.R.; Vanguard Coatings and Chemicals Ltd. v. M.N.R.,
[1987] 1 F.C. 367; (1986), 7 F.T.R. 11 (T.D.), at p. 377 F.C.;
Public Service Alliance (Can.) v. Deans and Canada (Treasury
Board) (1988), 19 F.T.R. 97 (F.C.T.D.), at p. 99; Association
des gens de l'Air du Québec Inc. v. The Honourable Otto Lang,
[1977] 2 F.C. 22; (1977), 76 D.L.R. (3d) 455 (T.D.), at p. 38
F.C., affd [1978] 2 F.C. 371; (1978), 89 D.L.R. (3d) 495; 22
N.R. 328 (C.A.).
26 [1985] 1 F.C. 3; (1985), 20 C.C.C. (3d) 123; 46 C.R. (3d)
238; 60 N.R. 121 (C.A.).
law, or (c) by taking into account some wholly irrelevant or
extraneous consideration, or (d) by wholly omitting to take
into account a relevant consideration. [My emphasis.]
Canadian courts at all levels have repeatedly
reaffirmed the interdependent criteria set forth in
Padfield. 27 Like the House of Lords, they also
have concluded that an administrative authority
misuses its power when it acts for improper ends,
other than those specified in the Act, 28 or based on
wrong principles or with reference to factors
unrelated to the law and irrelevant, 29 by failing to
take relevant factors into account 30 or in an arbi
trary, unreasonable or discriminatory manner. 31
In the case at bar I must determine whether the
exclusionary decisions made by the Treasury
Board and the Director of the Service were vitiat
ed in this way. In my opinion the criteria listed
above are based essentially on the idea that a
discretionary administrative decision must be
made strictly within the limits of the purpose and
spirit of the statute. As Rand J. said in Roncarelli
v. Duplessis 32 (at page 140):
27 See also Secretary of State for Education and Science v.
Tameside Metropolitan Borough Council, [1977] A.C. 1014
(H.L.); Laker Airways Ltd v Department of Trade, [1977] 2
All ER 182 (C.A.).
28 Roncarelli v. Duplessis, supra, footnote 21; Bullion v. The
Queen et al., [1980] 2 S.C.R. 578, at p. 580; Prince George
(City of) v. Payne, [1978] 1 S.C.R. 458; (1977), 75 D.L.R.
(3d); [1977] 4 W.W.R. 275; 2 M.P.L.R. 162; 15 N.R. 386, at
p. 463 S.C.R.; Delany v. Public Service Commission Appeal
Board, [1977] 1 F.C. 562; (1976), 13 N.R. 341 (C.A.), at p.
568 F.C.; Re Doctors Hospital and Minister of Health et al.
(1976), 12 O.R. (2d) 164; 68 D.L.R. (3d) 220; 1 C.P.C. 232
(Div. Ct.), at pp. 174-176 O.R.
29 Maple Lodge Farms Ltd. v. Government of Canada,
[1982] 2 S.C.R. 2; (1982) 137 D.L.R. (3d) 558; 44 N.R. 354,
at p. 7 S.C.R.; The Way Biblical Research and Teaching
Ministry of Canada v. Canada Employment and Immigration
Commission, [1983] 1 F.C. 467 (T.D.), at pp. 470-481; Re
Multi-Malls Inc. et al. and Minister of Transportation and
Communications et al. (1976), 14 O.R. (2d) 49; 73 D.L.R.
(3d) 18 (C.A.), at pp. 62-64 O.R.
3° Oakwood Development Ltd. v. Rural Municipality of St.
François Xavier, supra, footnote 25, at p. 174.
31 Bullion v. The Queen et al., supra, footnote 28; Fountain
head Fun Centres Ltd. c. Montréal (Ville de), [1981] C.A. 468;
(1981), 128 D.L.R. (3d) 579 (Qué.), at pp. 485-486 C.A.
32 Supra, footnote 21.
A decision to deny or cancel such a privilege lies within the
"discretion" of the Commission; but that means that decision is
to be based upon a weighing of considerations pertinent to the
object of the administration.
In public regulation of this sort there is no such thing as
absolute and untrammelled "discretion", that is that action can
be taken on any ground or for any reason that can be suggested
to the mind of the administrator; no legislative Act can, without
express language, be taken to contemplate an unlimited arbi
trary power exercisable for any purpose, however capricious or
irrelevant, regardless of the nature or purpose of the statute
.... "Discretion" necessarily implies good faith in discharging
public duty; there is always a perspective within which a statute
is intended to operate. [My emphasis.]
I have already observed that the documentary
evidence of the Board's decision is limited to the
"explanations" of Commissioner Simmonds con
tained in the Directive of December 1977.
According to the undisputed testimony of Mr.
Gaston Guénette, an officer responsible for official
languages policies with the Treasury Board
Secretariat, there was no Order in Council direct
ing that non-civilian members of the RCMP be
excluded from payment of the bonus: the decision
was made by Cabinet and communicated to the
RCMP by the Board. This witness also said that
he had seen in the Board's files notes to the effect
that Commissioner Simmonds had indicated he
did not wish to pay the bonus to his members. In
fact, the reasons given by the Commissioner in
support of the non-payment leave little doubt in
this regard.
The courts have also held that a decision made
at the instance of a third party is invalid. 33 Was
the Board's decision influenced by the opinions,
fears or pressure of the Commissioner? In view of
Mr. Guénette's testimony, it is reasonable to sup
pose that the Commissioner did in fact participate
in the decision at issue. This however is only one of
the factors to be considered in determining wheth
er the decision was based on considerations rele
vant to the purpose of the administrative act in the
sense mentioned in Roncarelli, supra.
33 Roncarelli v. Duplessis, supra, footnote 21; Re Multi-
Malls Inc. et al. and Minister of Transportation and Com
munications et al., supra, footnote 29.
The object of the administrative act in the
instant case (framed in accordance with the
powers conferred by the Financial Administration
Act) was to implement policies of general applica
tion on bilingualism in order to promote the objec
tives of the Official Languages Act within the
Public Service. From an administrative standpoint
section 9 of that Act, cited above, dealing with the
expansion of bilingualism, authorized the develop
ment of such policies and the bonus was a part of
that.
This conclusion as to the object of the adminis
trative act is confirmed by the September 1977
Statement of Policies mentioned above, in which
the Treasury Board and the Public Service Com
mission defined the official languages policies as
follows (at pages 1 and 2):
1. Canadians should be able to communicate with, and to
obtain services from the federal institutions of government in
the official language of their choice and arrangements should
be made to this effect wherever there is sufficient demand for
it.
2. Subject to the previous principle, Canadians of the two
official language groups should have equitable opportunities for
employment and a career in the federal institutions of govern
ment and to carry out their work in the official language of
their choice.
3. The two official language groups should participate equit
ably in the federal institutions of government.
In order to meet these three objectives, certain policy guidelines
must be established to indicate under what circumstances either
one, or both, official languages will be used by the Public
Service. The guidelines for language used with respect to
service to the public are derived from the provisions of the
Official Languages Act.
That is the context in which the bilingualism
bonus was created.
In Delanoy v. Public Service Commission
Appeal Board, 34 the Federal Court of Appeal had
to determine whether a requirement set by the
Commission was related to selection by merit, a
fundamental principle in the Public Service
Employment Act. The Court said the following (at
page 568):
34 Supra, footnote 28; see also Bullion v. The Queen et al.,
supra, footnote 28, at p. 580.
The Commission has, of course, a discretion in the prescription
of standards, but every standard prescribed must relate to the
purpose to be served, otherwise it is not a selection standard
within the meaning of the section.
It is really not possible to perceive a rational link between the
so called basic requirement involved in this case and selection
according to merit of the candidate for appointment best
qualified to fill the advertised position. [My emphasis.]
In Prince George (City of) v. Payne 35 the
Supreme Court of Canada quashed the decision of
a municipality to withhold a licence from the
applicant, when he met all the criteria for its
issuance, because he wanted to operate a business
thought to be undesirable. In this regard Dickson
J. [as he then was] said (at page 463):
The discretion contained in s. 455, wide as it is, must be
exercised judicially. It is not a judicial exercise of discretion to
rest decision upon an extraneous ground.
In light of these principles, and after review, I
consider that the express exclusions from the pay
ment of the bilingualism bonus listed in the afore
mentioned Statement of Policies 36 are rationally
connected to effective financial administration of
the bilingualism policy in the public service: the
categories and persons expressly excluded hold
either temporary or part-time employment or
employment appointment to which is by the Gov
ernor in Council.
However, the non-civilian members of the
RCMP do not hold this type of employment: their
exclusion apparently results only from their non-
civilian status.
This in my opinion is a reason unrelated to the
policies on bilingualism, having regard to the
application of the latter as defined by Treasury
Board itself. I can see no rational connection be
tween this exclusion and the objective sought,
namely the promotion of bilingualism in the feder
al public service.
Indeed, as the RCMP is a national institution
the non-civilian members of which are the most
visible and most involved with the public, the
35 Supra, footnote 28.
36 I also have in mind the exclusions added subsequently and
contained in c. 5, vol. 5 of the Treasury Board Secretariat
Personnel Management Manual.
exclusion of such members seems to run complete
ly contrary to the governmental purpose, which is
to provide a bilingual face and bilingual services to
the people of Canada.
Counsel for the defendant maintained that the
exclusion of these RCMP non-unionized members
from payment of the bonus follows from the fact
that the bonus was negotiated between the Trea
sury Board and the Public Service Alliance and is
part of the umbrella agreement. 37
I do not subscribe to this argument. As we have
seen, when it introduced policies on bilingualism
the Treasury Board did not limit their application
to the unionized personnel of agencies listed in
Part I of Schedule I of the Public Service Staff
Relations Act. In any case, such a limitation
would have been unthinkable. Similarly, excluding
such personnel from payment of the bonus because
they lacked union accreditation would be contrary
to the governmental objective and irrational in
terms of that objective. Logically, I do not see how
inclusion of the bonus in a collective agreement
inevitably excludes payment of it to persons not
covered by the agreement under a general policy.
7. Commissioner's two reasons for exclusion
It is not clear to what extent the aforementioned
reasons, indicated in the directive of Commissioner
Simmonds, originated with the Treasury Board.
Counsel for the defendant submitted that they
were only personal opinions of the Commissioner.
However, these reasons were not contradicted in
evidence and for the purposes of a complete anal
ysis they must be considered. In my view, they do
not fall outside the ambit of the principles stated
above regarding "non-civilian" and "non-union"
criteria.
It will be recalled that the Commissioner gave
two reasons. The first, that other police forces in
Canada were not receiving such a bonus, merits
little consideration: the RCMP is the only police
force that operates nationally. The fact that a
similar policy did not exist in the provinces is in
my opinion completely unrelated and irrelevant to
the question of federal bilingualism.
37 Clause M-37.03(11).
The second reason, that such a bonus would
cause dissension between ranks, is even less per
suasive. Like all bonuses, that for bilingualism is
paid to those who deserve it. It is an incentive
designed to encourage bilingualism: those who do
not want to take part in the program have only
themselves to blame. Further, the RCMP Director
of Official Languages 38 readily conceded that the
RCMP awards bonuses to its members in other
areas, to reward outstanding service or as compen
sation for assignments to remote locations and so
on. Those who do not receive such bonuses are in
no position to complain.
No other justification for excluding members of
the RCMP from payment of the bilingualism
bonus was entered in evidence. Accordingly, the
exclusion decision made by the Treasury Board
seems to me to be totally without foundation and
to have been based on factors completely unrelated
to the matter, including the two reasons of the
Commissioner mentioned above. I consider that
this decision was vitiated within the meaning of
the criteria listed earlier. Thus, in my opinion the
exclusion of the plaintiff from payment of the
bilingualism bonus, when he met all the eligibility
criteria set by the Treasury Board itself, was
illegal.
8. Legitimate expectations frustrated
Another aspect of the Board's decision calls for
brief comment: it is the fact that by excluding the
plaintiff and his colleagues from payment of the
bilingualism bonus in late 1977 the Board did not
observe its own bilingualism policy introduced
shortly before.
In issuing its bilingualism policy the Treasury
Board and the Public Service Commission set out
an elaborate code on the use of official languages
in departments and other agencies of the public
service. Clearly, this detailed code did not establish
merely indicative rules, but rather normative rules
which were to be observed not only by depart
ments, public servants and other public service
Sri The present Commissioner himself was summoned by sub
poena at the plaintiff's request. As he was not in the country,
he was replaced by Director Roy Berlinguette.
employees to whom they applied, but also by their
authors themselves.
The Board and the Commission could have
defined the application of the bilingualism policy
in accordance with a wider and more flexible
formula, thereby giving themselves some room for
manoeuvre to exercise their discretion in specific
cases. In defining the application as covering all
the departments and agencies listed in Part I of
Schedule I of the Public Service Staff Relations
Act, they created a legitimate expectation by per
sons affected that the policy would be observed.
As Professor Janisch recently pointed out: 39
... it is repugnant to our notions of decency in government that
when there has been a degree of reliance placed on internal
rules, the government may ignore them and resile on any
expectation it may have raised. As we have already seen,
legitimate expectation is an important source of procedural
rights and there are indications that it will be extended to
include substantive rights.
The leading case on legitimate expectations
cited by Janisch is a judgment of the British Court
of Appeal, R v Secretary of State for the Home
Dept. ex p. Khan. 40 In that case, the Minister had
published a circular setting out criteria and proce
dures governing the admission of children to Brit-
ain for adoption. However, in ruling on an adop
tion application the Minister failed to consider
these criteria and applied others, to the detriment
of the applicant. Following earlier decisions of
English higher courts, 41 Lord Parker said the fol
lowing (at page 48):
I have no doubt that the Home Office letter afforded the
applicant a reasonable expectation that the procedures it set
out, which were just as certain in their terms as the question
and answer in Mr. Ng's case, would be followed, that if the
result of the implementation of those procedures satisfied the
Secretary of State of the four matters mentioned a temporary
entry clearance certificate would be granted and that the
39 Evans, J. M. et al. Administrative Law: Cases, Texts and
Materials, 3rd ed., Toronto: Emond Montgomery Publications
Ltd., 1989, p. 793.
4° [1985] 1 All ER 40 (C.A.).
41 Re Liverpool Taxi Owners' Association, [1972] 2 All ER
589 (CA.); O'Reilly v Mackman, [1982] 3 All ER 1124
(H.L.); A-G of Hong Kong v Ng Yuen Shiu, [1983] 2 All ER
346 (P.C.).
ultimate fate of the child would then be decided by the
adoption court of this country.
The Secretary of State is, of course, at liberty to change the
policy but in my view, vis-Ã -vis the recipient of such a letter, a
new policy can only be implemented after such recipient has
been given a full and serious consideration whether there is
some overriding public interest which justifies a departure from
the procedures stated in the letter. [My emphasis.]
In that case Lord Dunn considered the scope of
the Secretary of State's discretion as follows (at
page 52):
Counsel for the Secretary of State submitted that there were no
statutory provisions or rules, that the Secretary of State had an
unfettered discretion, and that he was entitled to take into
account a pre-eminent policy considerati o n ... .
If the Home Secretary had done no more than to state that it
was a matter for his discretion whether or not the child could
be brought here for adoption, I should find great force in that
submission. But the Home Secretary did not do that. He caused
the circular letter in common form to be sent to all applicants
setting out the four criteria to be satisfied before leave could be
given. Thereby, in my judgment, he in effect made his own
rules, and stated those matters which he regarded as relevant
and would consider in reaching his decision.
The categories of unreasonableness are not closed, and in my
judgment an unfair action can seldom be a reasonable one. The
cases cited by Parker LJ show that the Home Secretary is
under a duty to act fairly, and I agree that what happened in
this case was not only unfair but unreasonable. Although the
circular letter did not create an estoppel, the Home Secretary
set out therein for the benefit of applicants the matters to be
taken into consideration, and then reached his decision on a
consideration which on his own showing was irrelevant. In so
doing in my judgment he misdirected himself according to his
own criteria and acted unreasonably. [My emphasis.]
Similarly, I consider to be unjustified the fact
that the Treasury Board (apparently acting on a
recommendation by the Commissioner) took the
liberty of ignoring its own bilingualism policy and
introducing considerations unrelated to that policy
into its decision to exclude the non-civilian mem
bers of the RCMP from payment of the bonus.
9. Director's exclusion decision
I now turn to the decision of the Director of the
Service. As a separate employer the Service is not
governed by the Treasury Board's bilingualism
policies. Under section 9 of the Official Languages
Act, however, the Director had a duty to introduce
bilingualism policies within the Service. This is
what he did, exercising the powers conferred on
him by subsection 8(1) of the Act creating the
Service; and, like the Treasury Board, the exercise
of the Director's discretion regarding these policies
had to meet the same criteria already considered
in relation to the Board's decision.
It is useful to cite the Director's letter of March
1985, in which the reasons for excluding Service
employees (other than those in the administrative
support category) from payment of the bonus are
set out as follows:
Generally speaking, I, as the Director, exercise all of the
powers and perform all of the duties and functions of both the
Treasury Board relating to personnel management under the
Financial Administration Act and the Public Service Commis
sion by or pursuant to the Public Service Employment Act.
As the Director of CSIS, I have decided that the bilingual
bonus will be provided to qualified employees occupying desig
nated positions in the Administrative Support Category of
CSIS. Treasury Board has also identified excluded groups who
do not receive the bilingual bonus. The Treasury Board policy
on the bilingualism bonus applies only to those departments,
agencies and crown corporations listed in Part I, Schedule I of
the Public Service Staff Relations Act, and Canada Post and
the National Research Council. The Service, of course is not
listed in Part I of Schedule I, but rather in Part II.
As your client, Mr. Gingras, occupies a position at a profes
sional level within CSIS, he does not qualify for the bilingual
bonus in his present capacity.
In the period immediately preceding the creation of the Service
in July 1984, while your client was still a member of the
RCMP, he was not entitled to a bilingual bonus under the
Force's official languages policy. Subsection 66(2) of the CSIS
Act provides that persons in your client's situation should have
employment benefits in the Service equivalent to those that the
person had had immediately prior to the coming into force of
the legislation until such time as those benefits are modified, in
his case, by the Service. [My emphasis.]
I think it is clear in light of this passage that the
Director's decision was prompted primarily by the
already existing Treasury Board policy excluding
non-civilian members of the RCMP from payment
of the bonus. As we know, a large number of those
members were assigned to the Service when it was
created.
I must repeat that a discretionary body has to
exercise its own discretion independently, in
accordance with the purpose and spirit of its en
abling Act: a discretionary decision which slavishly
follows the policies of other agencies does not
constitute such an exercise.
In Re Multi-Malls Inc. et al. and Minister of
Transportation, 42 the Ontario Court of Appeal
had to determine whether a decision of the Minis
ter to refuse to issue a licence was made in accord
ance with the "policy concerns" of the Act creat
ing the Ministry. The Court held (at pages 62-64
O.R.):
I am of opinion that the Minister of Transportation and
Communications allowed himself to be influenced by extrane
ous, irrelevant and collateral considerations which should not
have influenced him in the exercise of his discretion to refuse
the entrance permit. It seems clear that the purpose of the Act
in general is not to ensure proper land use planning but
generally to control traffic.
Thus it seems to me that the respondent Minister failed to
exclude from his consideration a matter which is clearly not
related to the policy or objects of the Public Transportation
and Highway Improvement Act. I would go further and say
that it is clear, on the overwhelming balance of probability, that
the refusal of the entrance permit, apparently based on a
planning consideration, was really a yielding to the mounting
pressure for preserving the inner core of the Town of Tillson-
burg....
Hypothetically, it is possible to imagine a situa
tion in which the decision made by one agency in
accordance with that of another could be con
sistent with the policies of both. On the other
hand, that does not appear to be the case here.
This is instead the blind perpetuation of a pre
existing decision, regardless of its merits in abso
lute terms or its connection with the objective
sought by bilingualism policies in general.
The exclusionary decision of the Director may
have resulted from his own determination that it
would be proper to make a distinction between
support staff and other Service employees on other
grounds; but these other grounds remain unknown
and were not indicated in his letter.
I therefore consider that the reasons which were
the only ones given by the Director of the Service
42 Supra, note 29.
do not meet the criteria of legality set by the case
law cited above. The plaintiff's exclusion from
payment of the bonus was therefore illegal.
A final important comment on the Director's
letter concerns its allegation that subsection 66(2)
of the Canadian Security Intelligence Service Act
was a legal impediment to payment of the bonus
after the plaintiff was transferred to the Service.
According to his interpretation, the plaintiff's
exclusion while he was a member of the RCMP
was conclusive as to the benefits he was entitled to
as a Service employee, since the latter should not
be more than equivalent to the former.
In my view this interpretation is clearly wrong.
Subsection 66(2) determines the minimum ben
efits to which the plaintiff was entitled when he
was transferred and ensures that those benefits
will continue. It is not a ceiling. In other words,
the Director was in no way bound by the exclusion
affecting members of the RCMP Such a conclu
sion in fact to some extent constituted a refusal to
exercise the wide powers conferred on the Director
by subsection 8(1), supra. Further, as I have
already found that the plaintiff was entitled to the
bonus when he was with the RCMP, I must logi
cally conclude that this vested right continued in
effect when the plaintiff moved from the RCMP to
the Service.
In conclusion, I consider that the exclusions
effected both by the Treasury Board for the
RCMP and by the Director for the Service were
illegal. The plaintiff was entitled to payment of the
bonus from the time it was introduced in 1977.
10. Allegation of discrimination based on
Charter
I now turn to the plaintiff's second argument
that the distinction resulting from the decisions of
the Treasury Board and the Director of the Service
creates a discrimination based on national or
ethnic origin contrary to sections 3, 7 and 10 of the
Canadian Human Rights Act and, since April
1985, subsection 15(1) of the Canadian Charter of
Rights and Freedoms.
These provisions read as follows: 43
3. For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, conviction for
which a pardon has been granted and, in matters relating to
employment, physical handicap, are prohibited grounds of
discrimination.
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Statistical evidence provided by the defendant at
the hearing showed that the francophone members
of the RCMP and francophone professionals with
the Service holding positions designated as bilin
gual are almost three times as numerous as anglo-
phone members and anglophone professionals
holding such positions. It is thus clear that the
impact of exclusion from payment of the bonus
affects bilingual francophones three times as much
as their bilingual anglophone colleagues.
43 I quote ss. 3, 7 and 10 of the original Act (S.C. 1976-77, c.
33), amended by ss. 2, 3 and 5 of S.C. 1980-81-82-83, c. 143.
The amendments are not relevant here.
With supporting authority, 44 counsel for the
plaintiff alleged that it is the consequences of the
disputed practice rather than the intention of the
offender which is conclusive of the existence of
discrimination: according to this argument, it fol
lows that though anglophone members and profes
sionals are not paid the bonus in the same way as
francophones, the latter suffer a more severe
impact and thus discrimination based on national
or ethnic origin.
In my opinion, however, the only question that
must be asked is whether the alleged discrimina
tion is based on national or ethnic origin or instead
is a consequence of the category of employment
held by the individual. In my view, it is based on
the category of employment.
The category or type of employment is not "a
prohibited ground of discrimination" within the
meaning of the Canadian Human Rights Act nor a
ground of discrimination "enumerated" in subsec
tion 15(1) of the Canadian Charter of Rights and
Freedoms. I also do not believe that it is a ground
of discrimination "analogous" to those enumerated
in the latter provision.
In Andrews v. Law Society of British Columbia,
McIntyre J. (dissenting as to the conclusion only)
defined discrimination as follows (at pages
174-175):
I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations or disad
vantages on such individual or group not imposed upon others,
or which withholds or limits access to opportunities, benefits
and advantages available to other members of society. Distinc-
44 Andrews v. Law Society of British Columbia, [1989] I
S.C.R. 143; (1989), 56 D.L.R. (4th) 1; 91 N.R. 255; Brossard
(Town) v. Quebec (Commission des droits de la personne),
[1988] 2 S.C.R. 279; (1988), 53 D.L.R. (4th) 609; 88 N.R.
321; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712;
Stoffman v. Vancouver General Hospital (1988), 49 D.L.R.
(4th) 727; [1988] 2 W.W.R. 708; (1988), 21 B.C.L.R. (2d) 165
(C.A.); leave to appeal to Supreme Court granted, [1988] I
S.C.R. xiv; [1988]; 4 W.W.R. 1 xxii; R. v. Hayden (1983), 3
D.L.R. (4th) 361; [1983] 6 W.W.R. 655; 23 Man. R. (2d) 315;
8 C.C.C. (3d) 33; 36 C.R. (3d) 187 (C.A.); application for
leave to appeal to the Supreme Court dismissed on December
19, 1983, [1983] 2 S.C.R. xi; (1983), 3 D.L.R. (4th) 361; 26
Man R. (2d) 318; 8 C.C.C. (3d) 33; Tétreault-Gadoury v.
Canada (Canada Employment and Immigration Commission),
[1989] 2 F.C. 245 (1988), 53 D.L.R. (4th) 384; 88 N.R. 6
(C.A.); on appeal to the Supreme Court, No. 21222; Orphans
v. Queen Mary's College (1985), 62 N.R. 243 (H.L.).
tions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so classed.
[My emphasis.]
LaForest J., for his part, considered that in the
circumstances citizenship was such a personal
characteristic, and had several features in common
with those listed in section 15. He said the follow
ing (at page 195):
The characteristic of citizenship is one typically not within the
control of the individual and, in this sense, is immutable.
Citizenship is, at least temporarily, a characteristic of person-
hood not alterable by conscious action and in some cases not
alterable except on the basis of unacceptable costs. 45
In Reference Re Workers' Compensation Act,
1983 (Nfld.)" the Supreme Court of Canada held
that a worker who was the victim of an accident
and was deprived under a provincial statute of
rights and actions against the employer to which
he would otherwise have been entitled was not a
victim of discrimination within the meaning of
subsection 15(1). Speaking for the Court, LaFor-
est J. said (at page 924):
The situation of the workers and dependents here is in no way
analogous to those listed in s. 15(1), as a majority in Andrews
stated was required to permit recourse to s. 15(1).
The conclusion was the same in R. v. Turpin, 47
where the Court had to decide whether a distinc
tion in the Criminal Code giving certain accused
persons in Alberta "favourable" treatment was
discrimination against other accused persons in
other provinces. In the view of Wilson J. this
distinction did not contravene subsection 15(1).
She said (at pages 1332-1333):
In my respectful view, it would be stretching the imagination to
characterize persons accused of one of the crimes listed in s.
427 of the Criminal Code in all the provinces except Alberta as
members of a "discrete and insular minority".... Differentiat
ing for mode of trial purposes between those accused of s. 427
offences in Alberta and those accused of the same offences
elsewhere in Canada would not, in my view, advance the
purposes of s. 15 in remedying or preventing discrimination
against groups suffering social, political and legal disadvantage
in our society. A search for indicia of discrimination such as
45 On the criterion of immutability, see also Veysey v.
Canada (Correctional Service), [1990] 1 F.C. 321 (T.D.).
46 [1989] 1 S.C.R. 922; (1989), 96 N.R. 227.
47 [1989] 1 S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R.
(3d) 97; 96 N.R. 115.
stereotyping, historical disadvantage or vulnerability to political
and social prejudice would be fruitless in this case ... To
recognize the claims of the appellants under s. 15 of the
Charter would, in my respectful view, "overshoot the actual
purpose of the right or freedom in question": see R. v. Big M
Drug Mart Ltd., at p. 344. [My emphasis.]
Similarly, I do not consider that the category of
employment, taking in on the one hand members
of the RCMP and on the other professionals of the
Service, is the type of "discrete and insular minori
ty" protected in subsection 15(1) of the Canadian
Charter of Rights and Freedoms. To conclude that
it is would be to "overshoot the actual purpose" of
this constitutional provision.
11. Prescription
The last point that must be resolved concerns
the prescription applicable to the case at bar, the
final argument raised by the defendant. There are
two points to be considered: first, the basis of the
plaintiffs action, and then the applicable law.
Is the action contractual or tortious in nature? I
think I have already shown that the plaintiff's
eligibility for the bilingualism bonus resulted from
his employment as a member of the public service.
His right is therefore based on his employment, or
more specifically his contract of engagement.
In this regard I note that there is a distinction
between the employment status of Public Service
employees, as stated in section 24 of the Public
Service Employment Act, and that governing
members of the RCMP, specified in section 13 of
the Royal Canadian Mounted Police Act. Those
provisions read as follows:
24. The tenure of office of an employee is during the pleas
ure of Her Majesty, subject to this and any other Act and the
regulations thereunder and, unless some other period of
employment is specified, for an indeterminate period.
13. (1) Officers of the force hold office during the pleasure
of the Governor in Council.
(2) Unless appointed for temporary duty, every member
other than an officer shall upon appointment sign articles of
engagement for a term of service not exceeding five years, but
any such member may be dismissed or discharged by the
Commissioner at any time before the expiration of his term of
engagement. [My emphasis.]
In my view the distinction is significant. Where
as the courts have held that a member of the
Public Service does not have a contract of employ
ment because he holds his office during Her
Majesty's pleasure, 48 no such qualification of their
employment applies to members of the RCMP.
I therefore conclude that the plaintiff's engage
ment was contractual in nature, that is under a
contract not exceeding five years, which was
renewable and was in fact renewed. The period of
prescription governing contracts of employment is
therefore applicable to the case at bar.
The starting point for prescription of any action
in the Federal Court is subsection 38(1) (now
subsection 39(1)) of the Federal Court Act, 49
which provides:
38. (I) Except as expressly provided by any other Act, the
laws relating to prescription and the limitation of actions in
force in any province between subject and subject apply to any
proceedings in the Court in respect of any cause of action
arising in such province, and a proceeding in the Court in
respect of a cause of action arising otherwise than in a province
shall be taken within and not after six years after the cause of
action arose. [My emphasis.]
In the case at bar, while the plaintiff was hired
in Ontario the contract was performed in Quebec.
In Essays on the Conflict of Laws, 5° Falcon-
bridge comments as follows on the factors that
should determine the law of contract in such a case
(at pages 378-379):
As to the relative importance of the place of making, the
place of performance and other circumstances, for the purpose
of ascertaining the proper law of a contract, the following
passage from the judgment in Lloyd v. Guibert ((1865), L.R. 1
Q.B. 115, at p. 122) is typical and is frequently quoted:
It is, however, generally agreed that the law of the place
where the contract is made, is prima facie that which the
parties intended, or ought to be presumed to have adopted as
the footing upon which they dealt, and that such law ought
therefore to prevail in the absence of circumstances indicat
ing a different intention, as, for instance, that the contract is
48 Long v. Canada (Treasury Board) (1989), 27 F.T.R. 269
(F.C.T.D.); Evans v. Canada, T-1414-86, Dubé J., order dated
13/4/87, not reported; Phillips v. The Queen, [1977] 1 F.C. 756
(T.D.).
49 R.S.C. 1970 (2nd Supp.), c. 10 (R.S.C., 1985, c. F-7).
5° Toronto: Canada Law Book Co. Ltd., 1954.
to be entirely performed elsewhere, or that the subject-
matter is immoveable property situate in another country,
and so forth; which latter, though sometimes treated as
distinct rules, appear more properly to be classed as excep
tions to the more general one, by reason of the circumstances
indicating an intention to be bound by a law different from
that of the place where the contract is made; which intention
is inferred from the subject-matter and from the surrounding
circumstances, so far as they are relevant to construe and
determine the character of the contract.
According to Westlake [Private International Law, 5th ed.
1912, at pp. 305-6], "it may probably be said with truth that
the law by which to determine the intrinsic validity and effects
of a contract will be selected in England on substantial con
siderations, the preference being given to the country with
which the transaction has the most real connection, and not to
the law of the place of contract as such." [My emphasis.]
In my opinion it follows from the fact that the
plaintiff's contract was performed almost entirely
in Quebec that the law on prescription applicable
in the circumstances is that of Quebec, and in
particular article 2260(6) of the Civil Code of
Lower Canada. That article provides that:
Art. 2260. The following actions are prescribed by five
years:
6. For hire of labor, or for the price of manual, professional
or intellectual work and materials furnished, saving the excep
tions contained in the following articles; [My underlining.]
According to Martineau, 5' the precription
enacted by article 2260(6) is that of the ordinary
law on hire of labor, which makes no distinction
between types of hiring of labor, and is indifferent
to the nature of the work. The learned writer cites
as an example that the following persons fall under
this prescription (at page 294):
[TRANSLATION] ... public officials, officers and employees of
the government;
(On the other hand if the law of the place of
hiring were to apply the plaintiff would be in a
better position, since the Ontario Limitations
Act 52 prescribes a six-year period for an action
under an ordinary contract, pursuant to paragraph
45(1)(g)).
51 La Prescription, Montréal: Les Presses de l'Université de
Montréal, 1977, pp. 292-293.
52 R.S.O. 1980, c. 240.
Accordingly, as the action was brought in
November 1985 the plaintiff has lost his right to
the bilingualism bonus for 1976, 1977, 1978 and
1979 when he was employed by the RCMP. On
the other hand, his right is confirmed for the years
1980 and subsequently, when he was employed by
the RCMP and by the Service.
12. Conclusion
For these reasons, the action is allowed with
costs. The Court finds that the plaintiff is entitled
to the bilingualism bonus for the years 1980 to
1988 inclusive.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.