Newfoundland Association of public employees v. The Queen

Date: 20021206

Docket: 98/42

Citation: 2002 NLCA 72

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR

COURT OF APPEAL

BETWEEN:

NEWFOUNDLAND ASSOCIATION

OF PUBLIC EMPLOYEES

APPELLANT/

RESPONDENT ON

CROSS-APPEAL

AND:

HER MAJESTY THE QUEEN IN

RIGHT OF NEWFOUNDLAND, as

represented by Treasury Board, and

the Minister of Justice

RESPONDENT/

APPELLANT ON

CROSS-APPEAL

Coram: Marshall, Steele and Roberts JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador

Trial Division, 1997 St. J. 1687 & 1997 St. J. 1717

Appeal Heard:

Judgment Rendered:

January 10-11, 2001

December 6, 2002

Reasons for Judgment by Marshall J.A. [paras. 1-640]

Concurrence by Steele J.A. [para. 641]

Concurrence by Roberts J.A. [para. 642]

Counsel for the Appellant: Sheila Greene

Counsel for the Respondent: Donald Burrage, Q.C.

Page: 2

Marshall, JA:

[1] This appeal addresses entitlement of female employees in the health care

sector, who are represented by the Newfoundland Association of Public

Employees, popularly known as NAPE, to retroactive pay equity

adjustments for three fiscal years extending from April 1, 1988, to March

31, 1991. Government purports to justify its refusal to make those

payments, which the union had succeeded in negotiating, on the basis of its

subsequent fiscal restraint legislation. In so doing, Government is relying

specifically on a section in the legislation that prohibited implementation of

pay equity agreements retroactively, and provided that any existing

agreement calling for retroactive payments should be void.

[2] The issue of the employees’ entitlement comes before this Court in an

appeal from a decision of a judge in the Trial Division allowing the

Government’s application for judicial review of a majority arbitration

decision which had allowed the union’s grievance alleging improper refusal

to pay the retroactive wage adjustments negotiated by NAPE. In allowing

the application, and setting aside the decision, the judge ruled the

Arbitration Board had erred in assuming jurisdiction in the circumstances

obtaining. The judge then went on to hold, alternatively, on the supposition

the Board was seized with jurisdiction, that the majority further erred in

finding the legislative provision relied upon by Government to justify its

refusal to make the retroactive wage equity payments violated the Charter.

[3] Before proceeding to outline the backdrop to this appeal, mention should be

made that this proceeding is concerned only with entitlement to those

payments which, but for the legislative intervention, would unquestionably

have fallen due as scheduled. After that intervention had run its course,

arrangements were concluded to both parties’ satisfaction for payment of

the adjustments, excepting those that were originally contemplated to have

fallen due in the three fiscal years spanning April 1, 1988, to March 31,

1991.

[4] It should likewise be noted that it took more than nine years for the issue of

the retroactive entitlement to wend its way to a hearing before this Court.

This observation is not made in any way as a criticism. A number of

reasons exist for that time span, not the least of which is the overall

complexity of the matter. In that regard, this judgment would be remiss

were it to fail to acknowledge at its outset indebtedness to both counsel for

Page: 3

the quality of their submissions which significantly assisted distillation of

the complexities, and analysis of the issues, presented by this appeal.

Background circumstances:

÷

the promise:

[5] Counsel for NAPE opened her oral submissions by styling these

proceedings as having arisen from a broken promise to remedy a long-

standing injustice. She identifies this injustice as the underpayment of

female employees in the health care system in comparison with their male

counterparts.

[6] The promise that counsel contends was broken is contained in a Pay Equity

Agreement entered into between NAPE and Government on June 24, 1988.

It was agreed that that Agreement would be added as a schedule to six

subsisting collective agreements governing employment of units in the

health care sector represented by NAPE. The stated purpose of the pay

equity addendum was to “achieve pay equity by redressing systemic gender

discrimination in compensation for work performed by employees in female

dominated classes ...”. It set out a procedure and timetable for

accomplishing that objective.

[7] The procedure detailed a method for evaluating the gender discrimination

between female and male dominated classes of employees. This was

designed to measure the monetary adjustments necessary to bring the hourly

wage rates of affected female classes in correspondence with comparable

male wage policy lines. The timetable provided for pay equity to be

achieved within five years. The first pay equity wage adjustment was to be

made on April 1, 1988. This was to be followed by payments on the first

days of April in each year thereafter, to and including April 1, 1992. The

first four of these annual payments were capped at 1% of the payroll for the

health care sector in the fiscal year ending March 31, 1988, with any

remainder being payable in its entirety on April 1, 1992, being the fifth

anniversary of the first effective payment date.

[8] The quantum of the wage adjustments between the classes admitted to no

immediate simple calculation. Thus, the Pay Equity Agreement could not

be implemented by simply resorting to readily ascertainable sums, and

dividing them by the five years contemplated for realizing the pay equity

policy. The services of financial consultants were necessary to evaluate the

Page: 4

subsisting gender discrimination between the comparable classes of

employees before calculation of the requisite wage adjustments could be

finalized. The consultant’s report was not finalized until March 20, 1991,

and not received by the steering committee charged with implementation of

the June 24, 1988, Pay Equity Agreement until July, 1991. It was, therefore,

only after the first four scheduled wage adjustment dates had passed that

Government was in a position to respond to its undertaking to make the

wage adjustment payments.

÷

alleged breach of promise:

[9] In the meantime, while the quantum of the wage adjustments under the

addendum to the six collective agreements was being determined, the

Province was passing through a serious economic downturn which

constrained Government to adopt a policy of severe fiscal restraint. The

downturn was the product of a deteriorating economic climate that prevailed

in the early 1990’s. The policy resulted in wage restraint legislation

freezing wage scales and restricting payments under pay equity agreements.

The legislation is purported to affect entitlement to the wage adjustments

claimed by NAPE in the proceedings at bar.

[10] Initially, these restraints were enacted in the Public Sector Restraint Act,

1991, S.N. c. 3, which passed into law on April 18, 1991, with effect from

March 31, 1991. It legislated a one year period of restraint on monetary

benefits payable to all public sector employees for a one year period

beginning on April 1, 1991, and ending on March 31, 1992. That statute

was supplanted by the Public Sector Restraint Act, 1992, S.N. 1992, c. P-

41.1 which replaced and extended the restraint period for an additional two

years. It overlapped the period imposed in the 1991 enactment and affected

future increases that had been granted through collective bargaining. As the

1992 Act applied to employees who were subject to collective agreements,

commencements of restraint periods varied according to the bargaining

status of the particular collective agreement in relation to April 1, 1991. For

most collective agreements the expiry of the restraint period would occur

sometime in 1994, roughly two years after the second legislative measure.

For the parties in this appeal, the expiry date worked out to March 31, 1993.

[11] The 1991 statute contained a provision that remained unimpaired by, and

was continued in force under, the 1992 Act. Government relies upon that

legislative provision as extinguishing its obligation to make the retroactive

Page: 5

pay equity adjustments under its agreement concluded on June 24, 1988,

with NAPE that had accrued due under the Pay Equity Agreement up to

March 31, 1991. The provision whose effectiveness, which lies at the

center of this appeal, was initially enacted through s. 9 of the 1991 statute

and reads:

C

9.(1) Notwithstanding the terms and conditions of a pay equity

agreement contained in a collective agreement or added by agreement

to an existing collective agreement, no pay equity agreement shall

contain a provision which implements that pay equity agreement

retroactively.

C

(2) Where there is a provision in a pay equity agreement which

provides that the pay equity agreement shall be implemented

retroactively, that provision is void.

(3) Notwithstanding the other provisions of this Act, a pay equity

agreement may be negotiated or implemented, but the 1^stpay equity

wage adjustment date shall be the date on which the pay equity wage

adjustment is agreed upon.

C

(4) This section applies whether the pay equity agreement is

reached or the pay equity wage adjustment is agreed upon before or

after the date this Act comes into force.

(5) In this section “pay equity agreement” means an agreement

between a public sector employer and a group of public sector

employees to recognize the compensation practice which is based

primarily on the relative value of work performed, irrespective of the

gender of employees, and includes a requirement that no employer

shall establish or maintain a difference between compensation paid to

male and female employees, employed by that employer, who are

performing work of equal or comparable value.

[12] While Government relies on this legislation as absolving it from its

obligation to make the retroactive pay equity adjustments under the 1988

agreement, NAPE views it as a broken promise to rectify a long-standing

injustice stemming from the practice of underpaying women in the public

service. It argues that this injustice casts an unfair burden upon female

dominated classes of employees in the health care sector of shouldering an

inequitable share of the exigencies of public fiscal problems. Accordingly,

it filed grievances seeking redress for the alleged breach of promise.

Page: 6

÷

the union’s grievance:

[13] By April 22, 1991, just four days after the initial legislation came into

effect, NAPE filed nine grievances on behalf of employees in the six

bargaining units. These grievances alleged violations of the respective

collective agreements as a result of the Government’s failure to pay the

retroactive equity adjustments incorporated into each agreement through the

June 24, 1988, Pay Equity Agreement. The grievances claimed:

C

Full redress on behalf of all employees affected by the Employer’s

actions including payment of wage adjustments in accordance with

the Pay Equity provisions of all Collective Agreements plus interest

of two percent (2%) per month.

[14] The grievances alleged that the Government’s failure to pay the adjustments

were “contrary to the Canadian Charter of Rights and Freedoms”. It was

the equality rights guaranteed under s. 15 of the Charter which NAPE was

alleging the Government infringed. It maintained this stance throughout the

proceedings subsequent to the filing of those grievances. Indeed, this

alleged constitutional violation constitutes the main plank in the appeal at

bar. Contending that s. 9 of the restraint legislation violated s. 15 of the

Charter and was not saved by s. 1, the union has consistently contended s.

9 was of no effect, and that the unfulfilled undertaking to have made the

three wage adjustments up to and including April 1, 1991, stands as a

broken promise which it is entitled to have redressed.

÷

the arbitration:

[15] In a letter dated April 26, 1991, directed to the President of Treasury Board,

the Minister responsible for collective bargaining and the administration of

the collective agreements, NAPE advised of its nominee to the Arbitration

Board. On May 13, 1991, the Director of the Treasury Board’s Collective

Bargaining Division responded by letter stating the employer’s position,

which has been steadfastly maintained throughout these proceedings, that

“no grievance exists in this matter and as such the matter is not arbitral”.

Undeterred, the Union wrote to the Minister of Employment and Labour

Relations on July 10, 1991, asking him to appoint an employer nominee to

the Arbitration Boards in accordance with provisions of the collective

agreements. This resulted in NAPE being advised on July 29, 1991, by the

Assistant Deputy Minister of the Minister’s Department of the name of the

employer’s nominee to deal with the alleged violations.

Page: 7

[16] The difficulty in the constitution of the Arbitration Board did not end with

the appointment of the employer’s nominee, however. The respective

nominees were unable to agree upon a chairperson for the Board.

Consequently, on March 11, 1992, the solicitor for NAPE requested the

Minister of Employment and Labour Relations to appoint a person to chair

the Board. This resulted in an appointment by the Minister on April 21,

1992.

[17] Hearings commenced on October 16, 1995. It had been agreed that the

grievance involving the Newfoundland Hospital and Nursing Home

Association would be treated as representative of all pay equity grievances

in dispute. At the outset of those hearings, the chairperson brought up a

new issue for the Board’s consideration when he advised that his spouse

was a member of the Newfoundland and Labour Nurses Union and was

employed in the public health care sector. This elicited a submission from

Government that the chairperson should disqualify himself due to a

reasonable apprehension of bias. The latter declined and the Board

proceeded as constituted, filing its decision on April 14, 1997.

Arbitration Board’s decision:

÷

overview:

[18] While three separate decisions were filed by the Board, there was unanimity

on two preliminary matters. Thus all three, including the Government

nominee, agreed there was no reasonable apprehension of bias justifying the

chairperson’s disqualification. All were in accord as well that the Board

had jurisdiction to hear the grievances, so that the same were arbitrable.

[19] The grievances presented two substantive issues beyond the two preliminary

ones. They did not receive the same degree of unanimity amongst the

Board’s members. The first focused on the language of s. 9 of the restraint

legislation, and converged on the extent of its prohibition of retroactive

implementation of pay equity agreements, such as those with which this

appeal is concerned. The second issue questions s. 9’s conformity with the

equality rights entrenched in s. 15 of the Charter; and, if in violation of s.

15, asks whether such a violation is justifiable under s. 1 of the Charter.

Thus, one issue goes to statutory interpretation of s. 9 of the legislation,

whilst the other concentrates on that provision’s constitutionality.

Page: 8

÷

chairperson’s decision:

[20] The chairperson turned first to the statutory interpretation issue to explore

the effect of the language in s. 9 upon the Pay Equity Agreement. In

addressing that issue, whilst holding up s-s. 9(1)’s prohibition against pay

equity agreements containing “a provision which implements that pay

equity agreement retroactively”, and s-s. 9(2)’s declaration that any such

provision is void, the chairperson defined “a retroactive provision” as “one

which operates prior to the date on which the contract or other legal

enactment is entered into or enacted”. Then, after observing that the Pay

Equity Agreement in dispute was entered into on June 24, 1988, he reasoned

the effect of s-s. 9(1) and s-s. 9(2) “is to eliminate the retroactive period

prior to June 24, 1988”.

[21] The decision then turns to consider the effect of s. 9 upon “pay equity and

adjustments scheduled to be paid subsequent to the date a Pay Equity

Agreement had been entered into”. Here, the chairperson focused on s-s.

9(3), noting that it permits “negotiation or implementation of pay equity

agreements”, whilst clearly ensuring “that pay equity adjustments would be

paid out only as prescribed by the statute”. To accomplish this objective,

his decision goes on to note at p. 81, s-s. 9(3):

C

... designed a method that would identify the first pay equity wage

adjustment date regardless of any contrary date that might be

expressed in a pay equity agreement. Simply put, the date on which

the amount of pay equity was agreed would constitute the first pay

equity wage adjustment date. By this method pay equity adjustments

were subject to restraint.

[22] In addressing the restraints subsequent to the date of entry into the Pay

Equity Agreement affected under s-s. 9(3)’s terms, the chairperson

commented on the length of the process of determining the quantum of pay

equity adjustments, whilst observing, as already mentioned in preceding

para. 8, that “the amounts to be paid were not finally calculated until March

20, 1991”. The upshot of this, he went on to observe, was that “a significant

three year payout would have been due on April 1, 1991” under the Pay

Equity Agreement. However, he construed s-s. 9(3) as obviating that

obligation.

[23] In that construction of s-s. 9(3), the chairperson relies on a distinction that

he perceived between the phrases of “the first pay equity adjustment date”

and “the pay equity wage adjustment” as utilized in that subsection. He

Page: 9

viewed the former phrase as temporal dealing with time, and the latter as

quantitative dealing with amount. Thus, the latter connoted, in his view,

“the total amount of the pay equity adjustment that must be agreed upon”,

whilst the former meant “the first date of payment of a portion of that total

amount”. From that standpoint, the chairperson’s decision interprets s-s.

9(3) as restricting the initial date of payment towards the total quantum of

pay equity adjustments to, in the subsection’s own words, “the date on

which the pay equity adjustment is agreed upon”. This was construed by

Government as effectively erasing the obligation to make the aggregate

payments as contemplated in the Pay Equity Agreement that fell due in the

three fiscal years spanning April 1, 1988 to March 31, 1991. It was over

that erasure that the union had grieved.

[24] The chairperson summed up the effect of his construction of s-s. 9(3) as

ensuring “the anticipated amount would not be paid as intended”. Hence,

there “would be no lump sum for previous periods, thereby achieving

significant savings, or restraint”. It was only “the amount associated with

the first pay equity adjustment date” that “would be permitted on that date”,

the chairperson held. He went on to explain that s-s. 9(4) buttressed this

point of view by making it clear that s. 9 applies whether a “Pay Equity

Agreement is reached” or a “pay equity wage adjustment is agreed upon”,

either “before or after the date this Act comes into force”. This, he wrote,

witnesses an intent “to ensure that no agreement past or future dealing with

pay equity will escape the effect of the restraint legislation”.

[25] On the basis of the foregoing reasoning, the chairperson’s decision at p. 83

expresses satisfaction that:

C

... the language of s. 9 is clear and unambiguous and had the effect of

extinguishing the obligations on government ... to provide pay equity

adjustments for the period April 1, 1988 to March 31, 1991.

[26] Having so resolved the statutory interpretation issue, the chairperson turned

to the question whether the legislative extinguishment of Government’s

obligations under the Pay Equity Agreement met constitutional muster.

This issue entailed inquiry into whether s. 9 violates the Charter and, if so,

whether the infringement was justifiable under s. 1 of the Charter.

[27] In regard to the first question, the chairperson rejected the Government’s

argument that the effect of s. 9 of the restraint legislation was merely to

substitute one process for another which did not infringe s. 15 of the

Charter. He held at p. 87 that in:

Page: 10

C

... curtailing the adjustments required under the Pay Equity

Agreement, s. 9 of the Public Sector Restraint Act disproportionately

and adversely affected female employees working in the public sector

by depriving them of the benefit of pay equity in comparison with

employees in male-dominated job classifications who are paid in

accordance with the value of their work. The legislation permits and

extends discriminatory compensation practices as between male and

female employees in a context in which those practices have been

actually identified and quantified.

C

In the result, I am satisfied that s. 9 of the Public Sector

Restraint Act violates s. 15(1) of the Charter.

[28] Having found this violation of the Charter, the chairperson’s decision turns

to explore whether s. 9 of the restraint legislation was yet saved by s. 1 of

the Charter, as a reasonable limitation of s. 15's equality guarantee which

could be demonstrably justified in a free and democratic society. In so

doing, the decision relied on the standard laid down in R. v. Oakes, [1986]

1 S.C.R. 103. The criteria identified in that authority, in which context the

chairperson conducted his analysis of the s. 1 issue, are the well recognized

yardsticks of the importance of legislative objective; the impugned

measure’s rational connection to that objective; minimal impairment of the

constitutional protection; and, proportionality of the measure’s effect in

realizing the legislative object.

[29] Referring to comments recorded in Hansard by the President of Treasury

Board on the restraint measure’s introduction, the chairperson found s. 9

met the test of sufficient importance to warrant overriding of the

constitutionally protected equality right’s violation. The importance, his

decision records, was the established “pressing and substantial objective of

saving money” that he had earlier expressed his satisfaction was necessary

“to reduce an escalating deficit in circumstances where the financial health

and well-being of the Province was at stake”.

[30] As to the second test of rational connection, noting that the legislative

purpose was “to reduce pay equity wage adjustment expenditures” the

chairperson found s. 9 “well-tailored to suit that purpose”. Thus, he found

the second of the four criteria to have been met.

[31] However, the chairperson concluded that Government had not met the third

criterion. Thus, he wrote that he was “satisfied the government has not

shown that it had a reasonable basis for concluding that it had complied

Page: 11

with the principle of minimal impairment in seeking to attain its objective of

pay equity cost restraint”. In reaching this conclusion, once more resorting

to Hansard, the chairperson expressed his satisfaction that “only one

alternative to the infringement might have been considered by government”.

This, his reading of Hansard indicated, was the lay off of some 900

employees as mentioned by the President of Treasury Board as the only

other option left open to Government.

[32] On the other hand, the chairperson’s decision notes, the Leader of the

Opposition proposed some thirteen other alternatives. While stating he was

not necessarily advocating any or all of those measures “should have been

chosen by government to minimize the infringement”, the chairperson stated

he was “merely pointing them out”. Then, he went on to note that the

testimony of an Assistant Secretary to the Treasury Board who gave

evidence before the Board attested to “other money-saving mechanisms”.

Although acknowledging that courts “accord governments a measure of

deference and flexibility” in this area of Charter analysis, the decision finds

“there is more than sufficient evidence in this case to establish that several

other less restrictive means were available to government which would have

minimized the infringement”. On the basis of this reasoning the chairperson

concluded the third criterion had not been met.

[33] With respect to the final test of proportionality of the restraint measure’s

effect, proceeding on the footing that this required a balancing of the

measure’s objective against the infringement of the constitutionally

protected civil liberty, the chairperson accepted that that balancing process

entailed inquiry into whether the Charter violation was too high a price to

pay for the benefit of attainment of the restraint legislation’s objective.

[34] The chairperson answered that inquiry by concluding the “infringement was

too high a price to pay for the benefit of the law”. Thus, he effectively held

the violation of the equality rights guaranteed under s. 15 of the Charter, by

the extension of discriminatory compensation practices as between male and

female employees, as perpetrated through the restraint measures enacted in

s. 9 of the legislation, exacted a disproportionate price vis à vis the

legislation’s objective of furthering the province’s financial health and well-

being.

[35] Based, therefore, on s. 9's failure to meet the tests of minimal impairment

and proportionality of effect, the chairperson found that s. 9 of the restraint

legislation was not saved by s. 1 of the Charter. Accordingly, the

Page: 12

provisions of s. 9 of the Public Sector Restraint Act were held to be void,

and the original terms and conditions of the Pay Equity Agreement,

including the obligations to make pay equity adjustments as therein

prescribed, were declared to prevail.

[36] In a statement that now is echoed by NAPE in its insistence that these

proceedings seek to redress a broken promise, the chairperson asserted the

employer’s failure to fully implement the Pay Equity Agreement in

accordance with its terms violated not only that Agreement, but also the

undertaking given in Article 4.01 of the representative collective agreement

that there should be no gender discrimination with respect to any employee.

As a result, the chairperson’s decision ends by directing the employer “to

pay any compensation from the violation” of the Pay Equity Agreement.

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union nominee’s decision:

[37] NAPE’s nominee concurred in the result of the chairperson’s award, but

partially dissented in three respects regarding the reasoning leading to the

result.

[38] In the first place, the union nominee disagreed with the chair having

proceeded on the footing that s. 9 of the restraint legislation extinguished

full entitlement to the three year wage adjustments claimed by the union in

the proceedings at bar. In this regard, NAPE’s nominee takes the position

that the only period caught under s. 9 was that between April 1, 1988, when

wage adjustments were originally scheduled to commence, and June 24,

1988, when the Pay Equity Agreement was entered into. In maintaining this

stance, NAPE’s representative on the Board states, “the commonly

accepted meaning of a retroactive provision is clear: it is one which operates

prior to the date on which the contract or other legal enactment is entered

into or enacted”.

[39] From this standpoint, he reasons that any wage equity adjustment payable

subsequent to June 24, 1988, when the Agreement at bar was entered into,

“would not give rise to retroactive implementation”, and thus would be

unaffected by the prohibition of retroactive implementation of pay equity

agreements enacted through the first two subsections of s. 9.

[40] In construing wage equity adjustments payable after June 24, 1988, to be

unaffected by s-s. 9(3), the Union’s nominee’s first departure from the

chairperson’s reasoning emerges. As the summary in preceding paras. 23

and 24 of the latter’s decision recounts, the chairperson construed the

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language of s-s. 9(3) as ensuring the amount of the wage adjustments would

not be paid on the dates falling in the three fiscal years spanning April 1,

1998, to March 31, 1991, as contemplated by the Pay Equity Agreement;

and, as foreclosing any “lump sum for previous payment” on April 1, 1991.

It was only “the amount associated with the first pay equity adjustment

date” as set by s-s. 9(3) that would fall due on April 1, 1991, under this

interpretation.

[41] Disagreeing with that construction of s-s. 9(3), NAPE’s nominee maintains

“the date upon which the pay equity adjustments were agreed upon” was not

when the specific amount was determined by the fiscal consultants on

March 20, 1991, but when the Agreement was entered into, i.e. June 24,

1988. This follows, he reasons, because the legislation speaks not of the

date “upon which the amount of the pay equity adjustment is determined”,

but rather of the date “upon which the parties agreed to the pay equity

adjustment itself”. This interpretation, he goes on to add, is reinforced by s-

s. 9(4). Had the Legislature “meant to refer to the date the amount was

agreed to”, he explains, “it would have said so explicitly”. In underscoring

that it had not been so explicit, the union nominee argues that, in setting the

“1^stpay equity adjustment date” at when “the pay equity adjustment is

agreed upon”, s-s. 9(3) was fixing unambiguously the first permissible

payment date “when a commitment to institute pay equity is reached, not the

date when a specific amount is determined”. Moreover, he goes on still

further to add, even were any ambiguity construed to lie in s-s. 9(3) in that

regard, then “well-established rules of construction” would “dictate an

interpretation consistent with the agreement of the parties to redress

discrimination through the achievement of pay equity”. In his view, such

consistency would lead to the same conclusion which he interprets the

provision to unambiguously convey. NAPE’s nominee concluded that as of

April 1, 1992 “the full amount of the pay equity adjustments must be paid

...”, rather than just the “amount associated with the first pay equity

adjustment date” as the chairperson had determined.

[42] Alternatively, NAPE’s nominee also reasons in his second departure from

the chairperson’s interpretation of s. 9, even if the legislation shielded

Government from making payments due under the Pay Equity Agreement

up to and including the 1990-91 fiscal year, so that “the first pay equity

adjustment be no earlier than April 1, 1991", and assuming arguendo that

“retroactivity were to include amounts payable prior to that date” which

Page: 14

assumption the union nominee rejects in his primary position, there was

nonetheless “no basis for changing the level of the wage adjustment due on

that date”. Underscoring that the legislation “does not provide that the first

wage adjustment date shall entail a deferral of the pay equity entitlement”,

he reasons that “effective April 1, 1991, the government was obliged to pay

the wage rate due in the fourth year (1991-1992) in respect of pay equity

adjustments” and that in “the year 1992-93 (the fifth year) the balance of the

pay equity adjustment was payable in accordance with the Pay Equity

Agreement”. This would result in the full amount of the pay equity that

would have been received under the Agreement falling due on April 1,

1992.

[43] NAPE’s nominee, in his final divergence from this phase of the

Chairperson’s reasoning, then looked to an article in the collective

agreement to buttress this alternate position. Thus, quoting the employer’s

undertaking in Article 4.01 that there “shall be no discrimination” affecting

wage rates by reason of gender, he concluded that, “once the amount of the

discrepancy attributable to gender was determined”, the continuance of “pay

differential wage rates ... on the basis of sex” contravened that Article.

NAPE’s nominee identified the date when the amount of the discrepancy

was determined as March 20, 1991, which was when the financial

consultants’ report evaluating the subsisting gender discrimination was

finalized. This resulted, he reasoned, in Government being precluded from

taking the position that “no discrimination has been established”. However,

he recognized that the statutory freezes on increases to pay scales also

enacted under the legislation would preclude the “granting of increases,

even though they resulted from discrimination”; and, that those freezes for

the parties involved in the arbitration began on April 1, 1991 and ended on

March 31, 1993. The reason for the expiry date falling on March 31, 1993,

has already been explained in preceding para. 10. As a result, NAPE’s

nominee went on to reason “from April 1, 1993, forward, there was no

statutory restriction on the parties making wage adjustments to redress

discriminatory provisions of the agreement”. Accordingly he concluded,

“as of April 1, 1993, the full amount of the pay equity adjustments must be

paid to affected employees in order to comply with Article 4.01 of the

Collective Agreement”.

[44] Apart from these differences with the chair’s disposition, the union nominee

also took exception with its reliance on Hansard in interpreting s. 9 and with

Page: 15

its alleged finding that the pay equity adjustments for the period from June

24, 1988, to March 31, 1991 were retroactive. Otherwise, the decision of

NAPE’s nominee concurred with the chairperson’s analysis of the

Charter’s application and, consequently, with the latter’s decision that the

affected employees should be paid compensation due under the Pay Equity

Agreement.

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employer’s nominee decision:

[45] The Government nominee agreed with the chairperson’s interpretation of s.

9, but disagreed with his constitutional analysis, with the result that he

dissented from the majority view that the affected employees were entitled

to be compensated for wage adjustments falling due between April 1, 1988,

and March 31, 1991, under the Pay Equity Agreement. In reaching that

conclusion, Government’s nominee to the Board agreed that s. 9 of the

restraint legislation infringed s. 15 of the Charter. He did not agree,

however, with the opinion shared by the other Board members that the

violation was saved by s. 1.

[46] In his analysis of s. 1's application, the Government nominee concurred with

his colleagues’ conclusions that the restraint legislation was of sufficient

importance to override a constitutionally guaranteed Charter right, and that

s. 9 met the rationally connection test. However, he did not agree that s. 9

failed to fulfill the minimal impairment and proportionality criteria. Having

determined the measure’s objective sufficiently important to brook a

Charter infringement, he underscored that it did not place a total ban on

pay equity agreements, but merely eliminated retroactive payments “in a

time of fiscal restraint when other employees were being laid off or had

negotiated wage increases eliminated”. This being the case, the

Government nominee was of the opinion that “the impugned law did not go

further than necessary to achieve a legitimate objective of the Legislature”.

[47] Although conceding there were other means of realizing the objective of

meeting the fiscal exigencies detailed by the President of Treasury Board,

the Government nominee suggested whenever the Legislature allocates

“scarce resources between competing but legitimate groups”, it lies neither

with “the court or arbitrators to substitute their opinions for the collective

wisdom of the Legislature”. Hence, in distancing himself from the majority

view that s. 9 fails to satisfy the minimal impairment test, he placed

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significant weight on the thesis that a high degree of judicial deference

should be accorded such legislative budgetary choices.

[48] As to the proportionality question, Government’s nominee concluded “the

Legislature struck a reasonable balance in pursuing its legitimate objective

and s. 9 should be saved by s. 1 of the Charter”. In reaching this

conclusion, he was influenced by three factors. First was his assessment

that “in freezing wages of all public servants and at the same time

implementing a refined Pay Equity Agreement, ... (t)he deferral of the

retroactive benefits under the Pay Equity Agreement was reasonable in the

circumstances”. Secondly, he took the view that “the impairment by s. 9" of

the restraint legislation “of s. 15 of the Charter was done for a legitimate

and pressing need of fiscal restraint ... not ... for an improper and colorable

purpose”. Lastly, proportionality was respected by the legislation

“eliminating the retroactive pay requirements and adopting a program for

pay equity to continue and be implemented during a period of fiscal restraint

that affected all public servants”.

[49] Accordingly, the Government nominee embraced the view that s. 9 of the

restraint legislation, whilst, infringing s. 15, was saved under s. 1 of the

Charter. This being the case, he concluded s. 9 was valid and should be

given effect. From this standpoint, Government’s nominee, contrary to the

view of the other members of the Board, reasoned that NAPE’s grievance

should be dismissed.

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the Board’s decision:

[50] As will be apparent from the foregoing summaries of their decisions, each

of the three Board members advanced substantial positions in addressing

NAPE’s grievance. At this juncture, it is well to explain how the

chairperson’s decision stands as that of the Board, and highlight points in it

which, as will presently be seen, became subject to attack by both parties to

this appeal in their respective applications for judicial review in the Trial

Division.

[51] The collective agreement contains a provision stipulating that the decision

of the majority shall be the decision of the Board, and if there is no majority

decision, the chairperson’s disposition shall stand as the Board’s decision.

Despite the varying viewpoints expressed by the members occupied with

NAPE’s grievance, however, the chairperson’s decision at bar does not have

to rest upon a lack of a majority to be recognized as that of the Board. As

the summaries of the results of the Board’s deliberations show, the

chairperson’s decision received sufficient endorsements to be able to be

regarded as commanding a majority in its result, and in the essential

findings leading to it.

[52] In the first place, there was unanimous agreement with the chairperson on

the two preliminary issues of bias and jurisdiction. Government’s nominee

explicitly sided with the chairperson in that regard. It is true that NAPE’s

nominee to the Board made no expressed reference to these preliminary

concerns, and focused virtually exclusively on his departure from the chair’s

construction of s. 9's language. However, his expressed concurrence with

the chair’s reasoning on the substantive constitutional issue, together with

his agreement in the result of the award, leaves no room to infer that he took

a different stance form the chairperson relating to the latter’s rulings that no

apprehension of bias existed and the grievances were arbitrable.

[53] With respect to the first of the two substantive issues, the Government’s

nominee also agreed with the chairperson’s interpretation of s. 9 of the

restraint legislation. As his concurrence was unqualified, it must be taken

that he was in accord with the reasoning leading to that construction as well.

As noted, the union nominee dissented from this aspect of the chair’s

decision for reasons set out in the foregoing summary of the opinion of

NAPE’s nominee. Accordingly, the union’s nominee was in the minority on

that point, although associating with the result of the chair’s award.

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[54] As to the second substantive issue, the chairperson’s conclusion of s. 9's

violation of s. 15 of the Charter was unanimously concurred in by the other

members. The Government’s concurrence was explicit. In the case of the

union’s nominee, once again this may be inferred from his unqualified

concurrence on the constitutional issue, which may be taken not only as

endorsing the chair’s finding of a breach of s. 15, but as lending majority

weight to the reasoning leading to it.

[55] On the question of whether the s. 15 breach was redeemed through resort to

s. 1 of the Charter, the union nominee’s unqualified concurrence also made

the chairperson’s finding and reasoning in that regard that of the majority,

and hence the decision of the Board. The Government nominee’s departure

from that phase of the grievance resolution put his opinion in dissent.

[56] In sum, therefore, the chairperson’s decision attracted sufficient support

from his colleagues on the Board to render his direction that the employer

“pay any compensation from the violation” of the Pay Equity Agreement the

majority disposition, together with the reasoning that led him to that

conclusion, either unanimous or majority determinations.

[57] In the result, the chairperson’s decision became the appropriate focal point

of the appellate attacks that were lodged against the Board’s reasoning by

both parties to the arbitration.

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attacks on Board’s decision:

[58] The Board’s award, as expressed in its Chair’s decision, was attacked by

both sides.

[59] The Government applied to the Trial Division to have the award set aside.

It first complained over the disposition of the two preliminary issues. Thus,

it alleged error in the unanimous findings that there was no reasonable

apprehension of bias resulting from the employment of the chairperson’s

spouse in the public health care sector. It also maintained the Board erred in

concluding it had jurisdiction to determine the constitutional validity of s. 9

of the restraint legislation.

[60] Whilst not challenging the majority interpretation that under s. 9 only the

amount due on the first payment adjustment date fell due on April 1, 1993,

the Government alleged error in the disposition of the second substantive

issue. Thus, it maintains it was an error to have concluded both that s. 9

infringes s. 15(1), and that the violation is not saved by s. 1 of the Charter.

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[61] NAPE countered with its own application seeking to have the majority

decision quashed. Its application primarily focuses upon the Board’s

statutory interpretation taking issue with the majority’s construction of s. 9.

Underscoring that in construing the effect of s-s. 9(3) as extinguishing the

employer’s obligations to provide equity adjustments for the period from

June 24, 1988 to March 31, 1991, by holding only the amount of the first

equity adjustment payment was due on April 1, 1993, the Union claims this

to be an erroneous interpretation. NAPE is thus maintaining the position of

its nominee to the Board was correct i.e. that the full amount of the pay

equity adjustments payable under the Pay Equity Agreement for the period

from June 24, 1988 to March 31, 1991, had to be paid to affected employees

on April 1, 1993, which, as preceding para. 10 notes, was when the restraint

period expired.

[62] NAPE also attacked the reliance that the majority had placed on Hansard in

interpreting s. 9 of the restraint legislation. It further alleged in its

application for review that the majority erred in treating pay equity

adjustments for the period from June 24, 1998, to March 31,1991 to be

retroactive. These two complaints also seek to have these findings

supplanted by reiterating contrary positions articulated in the union

nominee’s decision.

[63] It is against the foregoing background that both the Government’s

application and NAPE’s cross-application for judicial review of the

arbitration decision were argued before a judge in the Trial Division. As the

preceding account explains, the upshot of the two applications was to call

into question all of the Board’s rulings. Government took issue with the

Board’s disposition of the preliminary bias and jurisdictional issues, and

with the Charter resolution, whilst NAPE took exception with the Board’s

statutory interpretation as well as its reliance on Hansard and its perceived

treating as retroactive the equity adjustments subsequent to the entry into

the Pay Equity Agreement. This judgement now turns to the judge’s

disposition of all of the challenges to the complaints registered against the

Arbitration Board’s decision.

The Trial Division’s decision

[64] The judge at first instance addressed the complaints against the Arbitration

Board’s decision in the order presented by the application and cross-

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application. The resumé of his decision will now summarize the judge’s

findings on the issues in the order in which he treated them.

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the jurisdiction issue:

[65] The judge first addressed the preliminary question of whether the Board had

jurisdiction to determine the constitutionality of s. 9 of the restraint

legislation. In so doing, he was inquiring into the sustainability of the

Board’s unanimous finding that NAPE’s grievance was arbitrable. He

concluded that the Board lacked jurisdiction, whilst holding that its decision

should be set aside on that account alone.

[66] In his reasoning leading to that conclusion, the judge defined the issue to be

“whether an arbitration board may determine a constitutional question

arising from the Charter”. In analysing that question the judge referred to

existing authorities. In so doing, he underscored the statement in Chuddy

Chicks Ltd. v. Ontario Labour Relations Board, [1991] 2 S.C.R. 5 at p.

14 where La Forest J. declared that an administrative body must have

jurisdiction over “the parties, subject matter and remedy sought” in order to

be considered empowered to arbitrate any issue before it. As the text of Mr.

Justice La Forest’s declaration indicates, an arbitration board may be

considered an administrative body for the purpose of this jurisdictional

discussion.

[67] The decision now under appeal went on to maintain the response to the

stated issue of an arbitration board’s competence to decide a Charter

question hinged upon “whether the dispute between the parties arose under

or out of the interpretation, administration or violation of the Collective

Agreement ...”. In other words, the judge’s assessment of the Board’s

arbitrability holding focused on whether it had had jurisdiction over the

subject matter. It has been accepted as common ground throughout these

proceedings that the Board had jurisdiction over the parties. In view of his

finding on the Board’s lack of jurisdiction over the subject matter, the judge

who delivered the decision now under scrutiny found it unnecessary to

address its power over the remedy sought.

[68] In his discussion of whether the dispute arose out of the collective

agreement, the judge observed that Government had clearly “refused to

honour its obligation to make pay equity wage adjustments for the years

prior to the 1991 fiscal year”, as it had undertaken to do in its agreement

that had become part of its subsisting collective agreements affected by the

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arbitration. Instead, Government was relying on direction in the restraint

legislation to “implement pay equity adjustments in accordance with Section

9 ...”. This, the judge wrote, engaged inquiry into “whether Section 9 of the

Act deferred implementation of the Pay Equity Agreement as contended by

Government”.

[69] While noting that that inquiry “is a matter of statutory interpretation”, which

he was subsequently to address in dealing with NAPE’s cross-application,

the judge stated the “core dispute before the Board obviously was whether

Section 9 of the Act violated Section 15(1) of the Charter, and, if so,

whether it was justifiable under Section 1 of the Charter”. Then, the

impugned decision notes that the evidence before the Board “focused on

that issue” of s. 9's constitutionality, whilst “the Union’s real dispute”

related to interpretation of the restraint legislation. Thus, the judge stated

that NAPE’s grievance was essentially “with the legislature, not with the

executive which did not have the option of disregarding the will of the

legislature as expressed in the Act”. From this standpoint the judge ruled:

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[33] ... The dispute did not arise either expressly or inferentially from

the Collective Agreement. The dispute was over the constitutional

validity of Section 9 of the Act.

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[34] As the dispute does not arise from the Collective Agreement, the

Board did not have jurisdiction to determine the constitutional

validity of the Act.

[70] As already mentioned, the judge recognized this conclusion, in itself, was

sufficient to set aside the decision of the Board. Despite declining to

address the Board’s jurisdiction over the remedy sought in light of this

finding that the dispute did not arise out of the Collective Agreement, he did

not terminate his decision at this juncture, but proceeded to address the

other exceptions taken by the parties with the Board’s decision.

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the bias issue:

[71] Hence, the judge next took up the second preliminary issue that also had

been unanimously dismissed by the Board, i.e. Government’s complaint that

the chairperson should be disqualified because a reasonable apprehension of

bias existed, stemming from the chairperson’s spouse being a member of the

nurse’s union and her employment in the public health sector. For reasons

that will later be touched upon when this judgment addresses his holding,

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the judge concluded that in the circumstances obtaining there was no ground

to reasonably apprehend bias.

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the constitutionality issue:

>

the Charter breach:

[72] In broaching the substantive issues beyond those two preliminary ones, the

judge first addressed the constitutionality of s. 9 of the restraint legislation.

It will be noted that this was in inverse order to the chairperson’s treatment

of considering firstly the questions respecting the construction of s. 9.

Presumably this change stems from the fact that that question was next

raised in the Government’s application for judicial review, and the issue of

the Board’s statutory interpretation was not contested by Government, but

was left to NAPE which raised it in its cross-appeal in the Trial Division.

[73] The Board’s unanimous opinion that a violation of equality rights

guaranteed under the Charter had been perpetrated through the enactment

of s. 9 of the restraint legislation was contested by Government in the

judicial review hearing. The judge noted that the decision of the Board’s

chairperson records that an attempt had been made in the Government’s

argument in the arbitration hearing to depict the effect of s. 9 as “merely the

substitution of one process for another which does not infringe s. 15(1) of

the Charter”.

[74] Whilst endorsing the Board’s rejection of that contention, the judge first

quotes from the Board’s treatment of the issue of s. 9's constitutional

validity wherein the chairperson reasoned:

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... once government entered into the Pay Equity Agreement to address

what it agreed was a discriminatory practice, it could not, without

infringing s. 15(1), revoke or make unlawful a right or privilege that

would affect or have an adverse impact on individuals of a particular

gender. In passing s. 9 of the Public Sector Restraint Act,

government knew it would have an adverse impact on “employees in

female dominated classes within the various bargaining units.”

... here the legislation does not seek to remedy inequality but to

curtail and postpone entitlement to equal pay for female employees

even though government has agreed that wage adjustments are

necessary.

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[75] Then, in rejecting Government’s submission of benign constitutional effect,

the judge’s decision reads:

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[55] ... The effect of s. 9 was obvious - it postponed the achievement

of pay equity thereby ensuring that the affected employees - i.e. those

in female dominated classes - would not receive the incremental pay

adjustments for the 1988-1990 fiscal years to which they were

entitled under the Pay Equity Agreement. Section 9 had an adverse

economic impact upon a class of employees which Government had

recognized as the victims of systemic gender discrimination.

>

the s. 1 analysis:

[76] Having found that s. 9 of the legislation breached the constitutionally

guaranteed equality rights, the judge turned to inquire whether the

legislation provision was yet saved under s. 1 of the Charter. He

conducted this inquiry in the context of the four criteria for justification

under s. 1 that were enunciated in Oakes.

[77] As to the sufficiently important objective test, the judge took no exception

with the opinion that had been unanimously endorsed by the members of the

Board that s. 9 met the test. Stating it had been established that

“Government faced a severe financial situation in early 1991, which

required prompt and drastic action”, he described s. 9's “objective of

deferring implementation of pay equity thereby considerably reducing

government expenditures” as a “major part of Government’s response to its

fiscal problems”. Given “these severe fiscal circumstances”, he held “the

objective of reducing expenditures was sufficiently important to justify a

limitation on the s. 15(1) Charter rights”.

[78] With respect to the second criterion enunciated in Oakes, quoting from the

Board’s majority view that s. 9 of the restraint legislation was “well tailored

to suit” its purpose, and from the Government nominee’s view in similar

vein, the judge, after noting that that provision had the “effect of eliminating

the payment of pay equity adjustments for the 1988-1990 fiscal years”,

concurred with the unanimous conclusion reached by the Board that the test

of rational connection to the objective had been met.

[79] The judge, however, did not share the majority view that the third criterion

of minimal impairment had not been met. After referring in some detail to

the Board’s disposition rendered through the chairperson’s decision, and

making detailed references to applicable legal principles enunciated by the

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authorities, the judge stated his objection to this aspect of the Board’s

decision to be that:

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[91] ... it overlooks the extended budgetary explanation given by the

Minister. The Minister had earlier explained that Government was

faced with a 200 million dollar deficit which was threatening to

escalate. The limits of Government borrowing were explored and tax

increases were decided upon. Expenditure reductions were examined

and had to emphasize the salary and compensation component which

represented approximately 70% of provincial expenditures, apart

from social assistance payments and debt service payments. That is

apparent from the evidence of R. Smart, p. 69* and from the budget

excerpts which were before the Board and which were obviously

known to all members of the legislature. The Minister stated that to

achieve the required expenditure reductions Government considered

the general wage freeze and deferral of pay equity adjustment

payments to advert the possibility of mass layoffs with a consequent

drastic effect on Government services. In introducing the legislation

the Minister addressed its affect upon the Pay Equity Agreement. In

summary the twenty-four million dollars saved by the deferral of the

pay equity adjustments was part of a larger two hundred million

dollar fiscal problem. To address that problem Government had

considered various alternatives such as borrowing, tax increases,

budget freezes and reductions in Government expenditures.

*[referral is to transcript of evidence before the Board and the

testimony provided to it by the Assistant Secretary of Treasury Board

- Human Resources].

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[80] The foregoing provides the gist of the rationale of the decision under appeal

for viewing as flawed the reasons for the Board having concluded that s. 9

of the restraint legislation fell short of meeting the minimal impairment test.

The chairperson, the judge concluded, erred in his appreciation of the

evidence in proceeding on the footing that solely the lay-off of

approximately 900 employees had been considered as an alternative to the

infringement effected through s. 9 of the restraint legislation.

[81] The judge cited a second error by the Board in its improper use of

“suggestions made by the Opposition in the legislative debate ...”. He

expressed doubt as to the relevancy attributed in the Board’s decision to the

test of different restraint measures invoked in 1994, as well as the

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continuance of “step increases and reclassifications” under s. 9, which had

also been mentioned as indicia that less restrictive measures were available

which would have minimized the infringement of the Charter equality

rights.

[82] In the result, the judge, contrary to the conclusion of the Board’s majority,

and in substantial agreement with the Government nominee’s assessment of

the legislation’s conformity with the minimal impairment criterion, held:

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[98] ... from the evidence before the Board ... that the Legislature,

faced with difficult financial circumstances, made a reasonable effort

to minimize the infringement of the Section 15(1) Charter right when

it chose, in Section 9 of the Act, to delay implementation of the Pay

Equity Agreement”.

[83] In addressing the fourth test of proportionate effect the judge applied the

same standard as had the Board’s chairperson of inquiring whether the

violation of the equality rights entrenched in s. 15 of the Charter was “too

high a price to pay” for the benefit of attaining the restraint legislation’s

objective embodied in s. 9 of the Act. In the course of his reasoning the

judge acknowledged the union had mounted “a powerful argument against

an incremental approach to pay equity” that was reflected in the posited

unacceptable premise inherent in the impugned pay equity restraints which

perpetrated “arbitrary distinctions based on gender” as “a legitimate basis

for imposing negative consequences, particularly when the economy is

failing”.

[84] However, endorsing the premise that “Legislatures should not be obliged to

deal with all aspects of a problem at once”, but “must surely be permitted to

take incremental measures”, the judge endorsed the viewpoint that

“reasonable leeway” must be given “to take into account difficulties ... that

would arise if it attempted to deal with social and economic problems in

their entirety, assuming such problems can ever be perceived in their

entirety”. From that standpoint, the judge found that s. 9's restraint on pay

equity payments met the proportionality criterion laid down in Oakes. He

explained his stance as follows:

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[104] The Charter infringement in this case was the legislated delay

in the incremental process from April 1, 1988, to April 1, 1991, which

had an adverse impact upon those entitled to pay adjustments,

particularly those who left the work force prior to the postponed

achievement of pay equity. The benefit of Section 9 of the Act, being

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the financial saving, accrued to the public treasury when it faced a

severe fiscal problem.

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[105] Having concluded that the objective was sufficiently important

and that there had been a reasonable effort to minimize the

infringement of the Charter right it follows, in my view, that the law

did not have a disproportionately severe effect upon the affected

group.

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the constitutional rulings:

[85] There were actually two arms to the judge’s advertence to the

constitutionality issue raised before him. The first culminated in his ruling

on the preliminary jurisdictional challenge pursued before him by

Government. As earlier noted, for reasons summarized in preceding paras.

65 to 69, he ruled the Board did not have jurisdiction to determine the

constitutional validity of the restraint legislation because the dispute’s

subject matter was over the constitutional validity of s. 9 of the legislation,

and did not rise from the Collective Agreement. Secondly, having reasoned

as just recounted in preceding paras. 76 to 84, that the four criteria for

application of s. 1 of the Charter laid down in Oakes had been met, the

judge held that s. 9 of the restraint legislation prescribed reasonable limits

on the affected s. 15 Charter rights which are justifiable in a free and

democratic society within the intent of s. 1 of the Charter. Having made

that ruling, he ended his treatment of the constitutional aspect of the

application before him with an order expressed as follows:

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[106] It is ordered that

(a) The decision of the Board be set aside on the grounds that it

did not have jurisdiction to determine the constitutional validity

of Section 9 of the Act.

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(b) In the alternative the decision of the Board be set aside on the

grounds that it erred in law in finding that the infringement of

Section 15(1) of the Charter was not saved under Section 1 of

the Charter.

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(c) That the Applicant have its costs.

[86] Normally, such directions setting aside a decision under review and

providing responsibility for costs would be expected to be reserved for the

end of the reviewing disposition. Such is not the case here, however, as the

judge’s reasoning continues with his interpretation of the effect of s. 9 of the

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restraint legislation which centered on s. 9's impact upon the obligations

undertaken in the Pay Equity Agreement. While at first glance this

continued addressing of the merits of the Arbitration Board’s decision might

seem yet another complexity in the already intricate circumstances with

which this appeal must grapple, it nonetheless has a logical explanation.

[87] The explanation lies in the fact that the judge addressed the issues before

him by first taking up those raised in the Government’s application for

review of the arbitration award prior to turning to those put forth in NAPE’s

motion to quash it. This resulted in the constitutionality of the legislation,

which had been raised by Government, being addressed before the union’s

complaint that error was present in the Board’s statutory interpretation,

which it had raised through its cross-application. As already noted, this

approach was inverse to that adopted by the Board with respect to the two

substantive issues raised in these proceedings, which first addressed the

effect of the legislation’s language prior to determining whether the

wording of s. 9 met constitutional muster and could be given its effect.

[88] While the explanation is a simple logistical one, it nonetheless needs be

acknowledged that a certain incongruity might nonetheless be perceived on

its face with a decision being set aside at a point some eighty percent

through the reviewing disposition, where the residue proceeds to continue to

discuss its merits. While the rationale for the situation is understandable, it

is apparent that the judge did not intend to “set aside” the Board’s decision

at that point. Instead he obviously had to be setting aside the Board’s two

rulings that the constitutional validity of s. 9 of the legislation was

arbitrable, and that s. 9 was unable to withstand Charter scrutiny. Having

found the constitutional validity of s. 9 was not arbitrable for want of

jurisdiction in the Board, and that the breach of equality rights perpetrated

by s. 9 was saved by s. 1 of the Charter in any event, it was logical that the

decision should pass to inquire whether s. 9 could be construed, as did the

Board, to have extinguished the employer’s obligation to make the pay

equity payments for the period from June 24, 1988, to March 31, 1991,

which the Union in its application for judicial review claimed to be due on

expiry of the legislated restraint period.

[89] Having put the impugned decision’s constitutional rulings in their true

perspective, attention will now focus on the judge’s treatment of the

substantive statutory interpretation issue, and the other issues raised in

NAPE’s cross-application for review of the Board’s decision.

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the statutory interpretation issue:

[90] The judge posed two questions for analysis of the dispute relating to the

statutory interpretation of s. 9. Firstly, he addressed whether the language

of the restraint legislation extinguished “Government’s obligation to pay

pay equity wage adjustments for the period June 24, 1988, to March 31,

1991". Secondly, in the alternative, and in the same context of the

legislation’s language, he explored whether Government was required to

pay, effective April 1, 1991, “the wage rate due in the fourth year of the Pay

Equity Agreement”.

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the extinguishment question:

[91] The judge opened his discussion of the extinguishment question by noting it

was common ground, and “(neither) Government nor the Union disputed”

the conclusion, that s-s. 9(1)’s preclusion of “a provision which implements

that pay equity agreement retroactivity” effectively foreclosed payments of

pay equity prior to June 24, 1988, when the Pay Equity Agreement was

executed. To this extent, therefore, the judge was pointing out that no

exception was taken with the conclusion that s. 9 should be construed as

extinguishing rights to accruing pay equity adjustments prior to the

Agreement’s entry. It is noteworthy that this general acceptance is

consonant with the Board’s stance, expressed in the chairperson’s position

recounted in preceding para. 20, that, recognizing retroactive provisions as

those made operative prior to a contract’s entry, the effect of s-s. 9(1) and s-

s. 9(2) “is to eliminate the retroactive period prior to June 24, 1988".

[92] As had the Board before him, therefore, the judge’s attention focused upon

whether s. 9 had the further effect of extinguishing Government obligations

after the date of entry into the Pay Equity Agreement on June 24, 1988, up

to the end of the restraint period on March 31, 199l. Here, as had been the

case in the arbitration proceedings, concentration centered on s-s. 9(3).

[93] The judge proceeded on the footing that the effect of s-s. 9(3) upon

adjustments payable in the Pay Equity Agreement’s currency subsequent to

its entry turned on the merit of NAPE’s submission:

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[111] ... that Section 9 of the Act is not ambiguous and gives only one

reasonable meaning, namely: “The date when ‘the pay equity

adjustment is agreed upon’ in subsection 9(3) is the date when the

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commitment to institute pay equity was reached, not the date when

the specific amount was determined”.

[94] It should be observed that this submission puts the statutory interpretation

of s. 9 in a nutshell insofar as the inquiry into its effect upon wage equity

payments under the Pay Equity Agreement is concerned. The policy of the

legislation was not to preclude altogether pay equity agreements, but to

prescribe when pay equity wage adjustments could begin, regardless of what

might be otherwise provided in that regard. Commencement of such

payment was restricted under s-s. 9(3) to “the date on which the pay equity

adjustment is agreed upon”. Because that legislative provision came into

force with effect from March 31, 1991, it thereby caught within its ambit the

Pay Equity Agreement which, while negotiated, could not be implemented

before receipt in July of 1991 by the Steering Committee of the financial

consultants’ report on the quantum of wage adjustment committed under the

Agreement.

[95] Interpretation of the highlighted phrase of s-s. 9(3) was key to resolution of

the issue as to whether those words of limitation eliminated the obligation

undertaken by Government in the Agreement to make payments between its

entry and the end of the restraint period. If, as NAPE submitted, and its

nominee to the board concluded, “the date on which the pay equity wage

adjustment is agreed upon” is “the date when the commitment to institute

pay equity was reached”, then this was June 24, 1988, and s-s. 9(3) must be

construed as permitting, and not eliminating, the obligation of Government

to make pay adjustments from that date. On the other hand, if as

Government maintained, and the Board’s majority concluded, the date

contemplated by s-s. 9(3)’s wording was “when the specific amount was

determined”, then the highlighted phrase must be taken as eliminating

Government’s obligation to make payment during the residue of the

restraint period, i.e. until after March 31, 1991, because the quantum of the

wage adjustment could not have been determined until after receipt of the

report in July of 1991.

[96] The judge sided with the majority’s interpretation, stating that “(a) careful

reading of Section 9(3) in my view can lead to no other conclusion than the

one reached by the Board”. Elaborating on this conclusion he reasoned:

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[115] The interpretation advanced by the Union essentially reads “the

pay equity wage adjustment” in the last line as if it read “pay equity”

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without attributing any consequence to the words “wage adjustment”.

However, meaning should be given to all words of the legislative text.

[97] The judge then proceeded to attribute consequence to the words he said

NAPE had ignored by resorting to the Oxford Dictionary’s definition of

“adjustment” as “a settlement of a share in respect of a payment”. From this

he went on to reason that “wage adjustment” in the context of s-s. 9(3)

“means the settlement, or ascertainment, of an amount of wages”. It

followed, he concluded, “that ‘pay equity wage adjustment’ refers to the

settlement of the amount of wages payable in respect of pay equity”. Here,

the judge was in obvious disagreement with the position of NAPE’s

nominee, recounted in preceding para. 41, that the critical phrase in s-s. 9(3)

did not speak of the date “upon which the amount of the pay equity

adjustment is determined” but rather when “the parties agreed to the pay

adjustment itself”.

[98] The impugned decision then goes on to discuss the context within which the

restraint legislation was enacted and its purpose, whilst further testing the

judge’s reasoning for agreeing with the Board’s construction of s-s. 9(3).

The judge ended his analysis by concluding the restraint legislation, “and

particularly Section 9 thereof, clearly extinguished Government’s obligation

to make pay equity wage adjustments for the period prior to the date when

the adjustments were agreed upon”. As explained, he defined this date as

when the specific amount of the adjustments were agreed upon in July of

1991.

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the alternate issue:

[99] The judge then explored the validity of NAPE’s alternate position on

statutory interpretation which is recounted in preceding paras. 42 and 43.

After quoting from the relevant passage from the decision of the Union’s

nominee to the Board, the judge stated there were two aspects to NAPE’s

submission that its nominee was correct in holding the balance of the pay

equity adjustment was “payable in accordance with the Pay Equity

Agreement” on April 1, 1992. The first emerges from the legislation, and

the second from Article 4.01 of the Collective Agreement. In regard to the

legislation, the judge noted he had already concluded the language of s. 9

must be read in the context of the Pay Equity Agreement. Then, after

pointing out that each contemplates an “incremental approach to the

achievement of pay equity”, he reasons that the effect of s-s. 9(3) on the Pay

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Equity Agreement “was to replace April 1, 1988, being the first pay equity

adjustment date prescribed under the Agreement”. However, that was the

only change, so that the remaining language in the Agreement was

unaffected. This, in the judge’s view, resulted in the adjustments having to

be paid incrementally after the pay equity wage adjustment was agreed

upon, “within the five year period provided stipulated” in the Agreement.

The full entitlement that would have accrued, but for the legislated

restraints, during the period of awaiting finalization of its calculation by the

financial consultants was not payable, therefore, as NAPE’s nominee held it

to be, under this reasoning of the judge. Instead, in his estimation, the

schedule for commencement of the incremental payments was shifted under

the legislation.

[100] With respect to the Agreement, and the construction of Article 4.01 by

NAPE’s nominee, the judge acknowledged that the Article expressed its

parties’ purpose of eliminating discrimination by reason of sex. However,

he underscores the Agreement also sets out the intended mechanism for

attaining this objective. Then, he points out that it “established a highly

structured procedure to redress systemic gender discrimination culminating

in payment of wage adjustments up to a maximum of 1% per year of payroll

with the proviso that pay equity was to be achieved no later than the fifth

fiscal year”. For NAPE to maintain that its nominee was correct in

contending “the full amount of the adjustments became immediately payable

when ascertained”, the judge held, was to deny the validity of the language

in the Agreement.

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reliance on Hansard:

[101] In response to NAPE’s attack on the Board’s use of Hansard, the judge

stated that a full review of the Board’s decision led him to conclude its use

was “not critical” and the Board’s interpretation of s. 9 should not be set

aside on that account. Moreover, he stated, it was unclear that the reference

to Hansard was to interpret s. 9, but “it is equally arguable” it “was to

establish the context of the legislation”.

[102] As a result of his findings on these three issues raised by it, the judge

dismissed the cross-application.

Result of appealed decision

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[103] To recapitulate, the decision now under appellate scrutiny overturned the

Board’s decision that it had jurisdiction to determine the constitutional

validity of the restraint legislation. However, it concurred with the other

unanimous disposition of the second preliminary issue, which held there

was no reasonable apprehension of bias warranting the chairperson’s

disqualification.

[104] The appealed decision agreed with the majority Board finding regarding the

statutory interpretation of s. 9, whilst dismissing NAPE’s contention that the

majority misconstrued that provision’s effect. While it shared the Board’s

unanimous view that s. 9 infringed s. 15 of the Charter, it held the majority

erred in finding the violation was not saved under s. 1 of the Charter.

[105] The upshot of these findings was that the Board’s decision allowing

NAPE’s grievance was overturned. NAPE is now appealing that

determination seeking to have the judge’s decision overturned and the

decision the Board’s majority upheld insofar as it deals with jurisdiction and

s. 1 of the Charter, but:

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... set aside and remitted back to the Board for reconsideration on the

issues relating to the effect of the Public Sector Restraint Act on the

Government’s obligation to provide pay equity adjustments as

provided for in the Pay Equity Agreement, on the Government’s

failure on April 1, 1993 to pay the wage rate due in the fourth year of

the Pay Equity Agreement, and with the direction from this

Honourable Court that it is improper to rely on Hansard in statutory

interpretation ....

It will be apparent from this exception to the Board disposition that NAPE seeks

in the appeal at bar to reinstate the Board’s decision in all respects save in regard

to the issues taken with it in its cross-application that was dismissed at first

instance.

[106] For its part, Government counters with a cross-appeal. In it Government

maintains the appealed decision erred in holding the Arbitration Board was

correct in finding s. 9 of the restraint legislation infringes the equality rights

guaranteed under s. 15 of the Charter. The cross-appeal also claims error

in the appealed decision’s upholding of the Board’s finding that there was

no reasonable apprehension of bias resulting from the employment of the

chairperson’s spouse.

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[107] In the result, Government’s position was to agree with the judge on his key

findings that the Arbitration Board had no jurisdiction to determine the

constitutional validity of s. 9, and that the infringement of s. 15 was not

saved, in any event, under s. 1 of the Charter. Through the cross-appeal, it

maintains the Board’s disposition was vitiated on the preliminary bias

challenge, and challenges that s. 9 even violated the s. 15 equality Charter

rights in the first place.

Issues in this appeal

[108] From the preceding outline of the formal grounds of appeal, it can be seen

that all issues argued before the judge at first instance are re-presented by

one party or the other for reconsideration by this Court. Accordingly, there

were seven issues in all argued in this appeal. Five were raised by NAPE in

its challenge of the judge’s decision, and the remaining two by Government

in its cross-appeal. They were defined by the parties to be whether the

decision under appeal erred:

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(i)

in holding the Board lacked jurisdiction to hear the grievances;

(ii) in finding that s. 9 of the Public Sector Restraint Act

infringes s. 15(1) of the Charter;

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(iii) in holding the violation of s. 15(1) of the Charter was saved

under s. 1 of the Charter;

(iv) in agreeing with the Board’s conclusion that s-s. 9(3) of the

restraint legislation extinguished Government’s obligation in

the Pay Equity Agreement to provide pay equity adjustments

for the period from April 1, 1988 to March 31, 1991;

(v) in agreeing with the Board’s conclusion that Government was

not required to pay the wage rate due in the fourth year of the

Pay Equity Agreement;

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(vi) in concluding the Board made no error in referring to Hansard

in its interpretation of s. 9 of the restraint legislation; and,

(vii) in finding there was no reasonable apprehension of bias on the

part of the Chair from the employment of the Chair’s spouse.

It is noted that the second and last in the above list of issues were raised in

Government’s cross-appeal and that the last one, dealing with the bias issue, was

addressed by the judge immediately after the jurisdiction issue which, along with

bias, had been raised as preliminary concerns. However, for reasons which will be

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explained when the bias issue is taken up, although dealt with as a preliminary

issue in both former proceedings leading up to this appeal, these issues are posed

in logical sequential order that best lends itself to efficient treatment of the merits

of this appeal. Accordingly, the bias issue is listed last in the foregoing format

for analysis of the challenges taken against the decision under appeal.

The jurisdictional issue:

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jurisdictional bases:

[109] The starting point in the discussion of NAPE’s complaint alleging the judge

erred in holding the Arbitration Board lacked jurisdiction to have heard the

representative grievance is the statement of La Forest J. in Chuddy Chicks

which, as preceding para. 66 has already noted, the judge has highlighted as

articulating the bases of an administrative tribunal’s jurisdiction to

determine Charter questions. Thus, at p. 14 of Chuddy Chicks La Forest

J. had the following to say on that subject:

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... jurisdiction must have expressly or impliedly been conferred on the

tribunal by its enabling statute or otherwise. This fundamental

principle holds true regardless of the nature of the issue before the

administrative body. Thus, a tribunal prepared to address a Charter

issue must already have jurisdiction over the whole of the matter

before it, namely, the parties, subject matter and remedy sought.

[110] No exception is taken in this appeal with the judge’s reliance on the

foregoing authority’s asserted legal bases of an administrative tribunal’s

jurisdiction over “the whole of the matter before it” regardless “of the nature

of the issue before the administrative body”. As the above passage states,

this jurisdictional reach is specifically expressed to include competence to

address the impact of the Charter issues on “the whole of the matter before

it”. No objection could be taken to that reliance in view of the acceptance

of the Supreme Court of Canada, through the majority judgment of La

Forest J. in Chuddy Chicks, of the three asserted bases of jurisdiction as

“fundamental principle”.

[111] As already noted in preceding para. 67, it has been accepted throughout

these proceedings that the Board has jurisdiction over the parties. The bone

of contention here is whether it also had jurisdiction over the subject matter

and remedy. Attention will now focus on these questions.

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the subject matter:

the approach:

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[112] There are two touch-stone cases of particular note which were cited by

counsel for NAPE as the backdrop to her submissions put forth in support of

her contention that the judge erred in holding, as earlier recorded in

preceding para. 69, that the subject matter of “(t)he dispute did not arise

either expressly or inferentially from the Collective Agreement”, and thus

“the Board did not have jurisdiction to determine the constitutional validity

of the Act”. The first is St. Anne Nackawic Pulp and Paper v. CPU,

[1986] 1 S.C.R. 704, and the second, Weber v. Ontario Hydro, [1995] 2

S.C.R. 929.

[113] In the frequently quoted St. Anne Nackawic, the Supreme Court of Canada

addressed for the first time, as p. 708 of that authority records, “... whether

a court of otherwise competent jurisdiction is authorized to receive a claim

by an employer for damages against a trade union ... by reason of a strike”,

which was apparently an illegal strike under the applicable labour

legislation, and “at the same time a breach of the collective agreement

between the employer and the Union”. The Supreme Court held at p. 731 in

St. Anne Nackawic that the court was without jurisdiction to hear the

dispute, and the “claim for damages must be advanced in the contractual

forum of an arbitration board” which had exclusive jurisdiction at first

instance over the matter. NAPE’s counsel opens her argument, in challenge

of the judge’s holding that the Arbitration Board in the case at bar was

bereft of jurisdiction, by quoting Estey J., the author of the unanimous

judgment in St. Anne Nackawic, who held at p. 720 that a general

consensus was apparent from a survey of authorities that:

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(t)he courts have no jurisdiction to consider claims arising out of

rights created by a collective agreement.

It follows as incidental corollary from this holding of Estey J. in St. Anne

Nackawic that the jurisdiction lacking in the courts is vested in arbitration boards,

and that its decision-making authority encompasses “claims arising out of rights

created by a collective agreement”. It is such claims, therefore, which fall within

the exclusive domain of the arbitration process.

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[114] Counsel for NAPE enlists Weber to underscore two important points

bearing on the determinations when claims “out of rights created by a

collective agreement” arise, thereby demarcating the line defined in St.

Anne Nackawic between arbitral and judicial jurisdiction over the subject

matter of a dispute. The first point underscores that attention should focus

on the facts of the dispute, rather than the legal issues it engages. Weber

involved a tort in trespass allegedly committed by an employer by entry of

its agent into the home of an employee. The court action taken by the

employee against the employer was held barred by a majority in Weber

because the subject matter of the dispute fell within the exclusive

jurisdictional purview of the arbitration process, the differences between the

parties having arisen from a collective agreement. Hence, the upshot of

Weber was that redress had to be sought in the arbitral forum. In that

authority, McLachlin J., the majority judgment’s author, provides the

following direction in para. 43 respecting the focus on the subject matter of

the dispute in addressing the proper jurisdictional forum at first instance for

resolution of differences:

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Underlying ... St. Anne Nackawic is the insistence that the analysis of

whether a matter falls within the exclusive arbitration clause must

proceed on the basis of the facts surrounding the dispute between the

parties, not on the basis of the legal issues which may be framed. The

issue is not whether the action defined legally, is independent of the

collective agreement, but rather whether the dispute is one “arising

under [the] collective agreement”. Where the dispute, regardless of

how it may be characterized legally, arises under the collective

agreement, then the jurisdiction to resolve it lies exclusively with the

labour tribunal and the courts cannot try it.

[115] The second point made in Weber is the “essential character” test which it

identified as the means of determining if the subject matter of the dispute is

one “arising under [the] collective agreement”, and thus lies within the

exclusive arbitral purview of an arbitration tribunal. Thus, in para. 52 of

Weber, McLachlin J. went on to write:

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In considering the dispute, the decision-maker must attempt to define

its “essential character”, to use the phrase of La Forest JA in Energy

& Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 148

D.L.R. (3d) 398 (N.B.C.A.).... In the majority of cases the nature of

the dispute will be clear; either it had to do with the collective

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agreement or it did not. Some cases, however, may be less than

obvious. The question in each case is whether the dispute, in its

essential character, arises from the interpretation, application,

administration or violation of the collective agreement.

[116] On the basis of the foregoing authoritative directions, this judgment will

address the merits of NAPE’s contention that its grievances over

Government’s failure to pay the retroactive wage adjustments, as

undertaken in the pay equity addenda incorporated into the health care

section collective agreements, came within the purview of the Arbitration

Board’s jurisdiction by inquiry into whether the dispute over that failure is

one arising under the collective agreements. If the “essential character” of

that dispute “arises from the interpretation, application, administration or

violation” of these agreements, then the subject matter of the dispute falls

within the ambit of those agreements, and the judge’s conclusion that the

Board lacked jurisdiction over the subject matter of the dispute, thereby

disabling it from hearing the grievances, will have to be held incorrect. If it

did not so arise, then the judge’s conclusion will have to be upheld.

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NAPE’s position:

[117] The Union maintains the Board was correct in assuming jurisdiction over

the subject matter of the dispute, and the judge was wrong in his conclusion

that it lacked jurisdiction to hear the grievances.

[118] NAPE’s counsel argues the starting point of inquiry into jurisdiction over

the subject matter is the grievance form. As preceding para. 13 recounts,

the grievances seek “(f)ull redress” from Government’s failure to pay the

retroactive “wage adjustments in accordance with the Pay Equity provisions

of all Collective Agreements” together with interest thereon. As such,

counsel insists, it is like many grievances arising out of collective

agreements in that its subject matter is money. Every court, she maintains,

agrees, where provision for money is made under collective agreements, that

disputes over entitlement to that money lie within the exclusive jurisdiction

of the arbitration process.

[119] NAPE’s counsel also points out the essence of the judge’s jurisdictional

decision rested on his reasoning, as preceding para. 69 confirms, that the

“core dispute” arose over the constitutional validity of s. 9 of the restraint

legislation which the Board had no jurisdiction to determine. In this regard,

she also directs attention to the judge’s statement that NAPE’s “real

dispute” is with the interpretation of s. 9. Thus, she underscores, the judge

proceeded on the footing that the dispute arose over that provision in the

restraint enactment, be it the provision’s constitutionality or construction,

and not under the collective agreement over which the Board would have

jurisdiction. Counsel argues this reasoning for ascribing a lack of

jurisdiction in the Board is based on the absence of, or restricted, arbitral

power to decide questions of law engaging constitutional analysis or

ordinary statutory interpretation. This premise, she insists, whilst citing

cases supporting her contention, is erroneous.

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Government’s response:

[120] Government argues the judge was correct in concluding the Arbitration

Board was without jurisdiction to determine the constitutional validity of s.

9 of the restraint legislation. Its counsel acknowledges that the question of

the Board’s jurisdiction over the dispute’s subject matter hinges, as Weber

enunciates, on whether the “essential character” of the dispute arises from

the collective agreement. In the situation at bar, however, Government’s

counsel maintains that on proper application of legal principle, the judge’s

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conclusion that the dispute in “its essential character” does not arise from

the collective agreement is unassailable.

[121] Counsel for Government contends a crucial distinction exists between a

dispute that arises from a collective agreement “and a legislative imperative

that overrides a provision in the collective agreement”. Moreover, he

argues that in the case at bar the arbitration panel was asked “to decide the

threshold question of what constituted the collective agreement”. Such a

question, he adds, could not be one “arising from” the collective agreement.

The basic thrust of Government’s submission, however, is that it is the

court, not an arbitration panel, which had the competence “to determine the

constitutional validity of legislation that interfered with the pay equity

adjustments” payable under the collective agreement.

[122] In support of its submission, Government’s counsel cites authority holding

that, although arbitration tribunals are endowed “with jurisdiction to

consider questions of law, including constitutional questions”, they have no

power “to decide the constitutional validity” of their enabling legislation.

From this linchpin, counsel argues, whilst the arbitration panel at bar had

“jurisdiction to consider questions of fact and law in interpreting, applying

and administering the collective agreement”, it was devoid of power to pass

upon the constitutional validity or on the construction of, the “legislatively

imposed provision in the Act”, which “limits the jurisdiction of the panel”.

[123] In addition to the firm legal foundation upon which Government contends

the appealed jurisdictional ruling rests, its counsel submits the judge was

correct in treating pragmatic considerations as also prescribing jurisdictional

limits of arbitration panels. Citing authority to illustrate the legitimacy of

such considerations, he underscores the ad hoc nature of the composition of

such panels. While such composition, Government’s argument reasons, “is

well suited to the determination of disputes regarding the interpretation,

application or administration of the terms of a collective agreement”, the

judge was correct in concluding “a panel of this composition is not suited to

the task of determining a question such as the constitutional validity of the

Act, a statute having broad public policy implications far beyond the

collective agreement at issue”.

[124] In pressing this unsuitability to pass upon the public policy implications

engaged in legislative constitutional assessments, Government takes the

stance that “the same level of credibility and breath of experience in the

development of policy and law” used to justify clothing arbitration boards

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with exclusive jurisdiction over matters arising under collective agreements,

“would not apply to an ad hoc arbitration panel appointed by the parties”.

In particular, this argument stresses, an arbitration panel’s expertise “does

not extend to the kind of question posed by the constitutional challenge” to

the restraint legislation. This is because, it goes on to explain, “(t)he ad hoc

panel must focus on the particular collective agreement at issue without

consideration for relevant broad, but important, policy considerations”.

Counsel draws this phase of Government’s rejoinder to NAPE’s appeal to

its close by stating the judge was correct in holding the “policy concerns”

are “well outside” the kinds of subject matter “intended to be addressed by

such a panel”.

[125] As will be observed from the foregoing summary of the response to NAPE’s

challenge to the judge’s jurisdiction ruling, Government’s position is that

the holding of the Arbitration Board’s lack of jurisdiction over the subject

matter of the pay equity dispute at bar rests on sound and sustainable legal

and pragmatic foundations.

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analysis of submissions:

[126] As an overview of the foregoing summaries of the submissions of counsel

show, the merits of the judge’s holding that the Arbitration Board lacked

jurisdiction over the subject matter of this dispute turn, in part, on which of

the two parties’ positions should be given sway. This inquiry firstly

requires analysis of whether NAPE’s complaint over the reneging on the

promise to pay the retroactive wage equity adjustments arises out of the

collective agreement. If it does, as NAPE contends, then the judge’s

determination that the Board lacked jurisdiction over the dispute’s subject

matter must be held incorrect, and inquiry will have to be had into whether

that tribunal also had jurisdiction over the remedy sought. If it does not,

and Government’s contention that the subject matter of the dispute arises

out of the restraint legislation and its constitutional validity is correct, then

the judge’s determination, and his holding that the Board was without

jurisdiction over the dispute raised through the Union’s grievance, will have

to be upheld without the necessity of further inquiry.

[127] With due respect to the judge’s opinion that the Arbitration Board lacked

jurisdiction over the subject matter of the grievance at bar, and to counsel

for Government who would have this Court endorse that finding, agreement

cannot be voiced with it. This is essentially because the “core dispute” was

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not, as preceding para. 69 notes the judge defined it, the constitutional

validity of s. 9 of the restraint legislation. The dispute between the parties

to this appeal was, as preceding para. 117 records NAPE’s counsel contends

it to be, Government’s failure to make the retroactive pay equity

adjustments that it had undertaken to pay in the addenda to the collective

agreements. As NAPE’s counsel points out, the dispute taken through the

grievances was for money due under “the Pay equity provisions of all

Collective Agreements”. NAPE’s complaint was over Government’s

reneging on its promise arising out of its undertakings under the collective

agreements to pay the retroactive pay equity adjustments. Thus, to borrow

from McLachlin J.’s terminology in the passages from Weber quoted in

preceding paras. 114 and 115, the “essential character” of the dispute

“regardless of how it may be characterized legally” is one arising under the

collective agreement at bar, thereby grounding jurisdiction over the subject

matter in the Arbitration Board.

[128] The underlying flaw in Government’s jurisdictional submission lies in its

classifying the essential character of the dispute as “the constitutional

validity of legislation that interfered with the pay equity adjustments”

payable to affected employees under the collective agreement. It is certainly

true that the dispute engages the issue of the constitutional validity of the

restraint legislation. Indeed, the dispute arguably might be, to borrow once

more from Weber, “characterized legally” as such, just as it may be also

classified as one centered on Government’s repudiation of its obligation to

compensate for retroactive pay equity adjustments, which is the issue raised

in the grievances that led to the arbitration proceedings. How one

characterizes the dispute will likely depend upon from whose side it is being

viewed.

[129] In the final analysis, however, it is really of no import to the ultimate

resolution of the Arbitration Board’s jurisdiction how the dispute raised by

the grievances is characterized legally. As Weber holds in the excerpt from

it reproduced in para. 114, the issue of arbitral jurisdiction is not determined

by “whether the action defined legally, is independent of the collective

agreement”, but “by whether the dispute is one ‘arising under [the]

collective agreement’”. The constitutional validity of the restraint

legislation does not arise out of the collective agreement, as does the

disputed right to compensation.

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[130] It is important to keep in mind that the constitutional issue surfaces in this

matter as a result of Government’s defence that its indebtedness, which had

arisen under the collective agreements affected by this proceeding, was

extinguished by legislation outside of those agreements. In effect,

Government is seizing legislation independent of those agreements as a

shield, and is raising it in an attempt to gain immunity from its obligation to

pay the disputed compensation under the collective agreements. The

constitutionality question came as a result of NAPE’s rejoinder, and is

aimed at stripping Government of that shield. The constitutional validity

issue, then, is directed towards establishing that legislation extraneous to the

collective agreements is of no force and effect insofar as their commitments

to implement the pay equity adjustments is concerned. It did not arise from

those agreements, but was brought forth for consideration in response to the

defence in the dispute over liability for the retroactive compensation that

arose out of a collective agreement. The resolution of that response was

consequently within the jurisdictional purview of the Board.

[131] Actually, the significance which Government’s argument attributes to the

distinction between a dispute that arises from a collective agreement and “a

legislative imperative that overrides a provision in the collective agreement”

is revelatory of the underlying flaw in its reasoning advanced in support of

the judge’s finding of lack of arbitral jurisdiction over the subject matter of

the dispute. There is no doubt that the superior force of the supervening

overriding effect of the restraint enactment’s “legislative imperative”, upon

which preceding para. 121 records Government counsel to be insisting,

could not be logically classified as “arising from” the collective agreement.

It does not follow, however, that the need to address the effect of that

subsequent legislative development, which that question requires,

transposes the essential character of the dispute to one “arising outside” of

the collective agreement, thereby divesting the Board of jurisdiction over

the dispute’s subject matter. The essential nature of the dispute clearly

remains NAPE’s complaint over Government’s reneging on its promise

under the collective agreement to pay the retroactive pay equity adjustment.

The restraint legislation gave rise to a legitimate issue regarding

Government’s obligation to honour that promise. However, NAPE’s attack

on the constitutionality of the legislation does not change the nature of the

dispute as one arising from an undertaking under the collective agreement.

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governing authority:

[132] Moreover, it is incorrect to portray arbitration tribunals as having no power

to entertain questions requiring them “to determine the constitutional

validity of legislation” that purports to interfere with undertakings made

under collective agreements. The law is settled in that regard. In the extract

from his judgment quoted in preceding para. 109, La Forest J. in Chuddy

Chicks expressly indicates that arbitral jurisdiction extends to competence

to pass on the Charter’s impact on “the whole of the matter before” a

tribunal. Earlier, in the same vein, but in even more explicit terms, La

Forest J., in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990]

3 S.C.R. 570, had written thusly at p. 594:

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Section 52(1) of the Constitution Act, 1982 provides that any law that

is inconsistent with the provisions of the Constitution of Canada - the

supreme law of the land - is, to the extent of its inconsistency, of no

force and effect. A tribunal must respect the Constitution so that if it

finds invalid a law it is called upon to apply, it is bound to treat it as

having no force or effect.

[133] Likewise, having earlier in para. 56 quoted Lord Denning as having

observed there is “not one law for arbitrators and another for the court”,

McLachlin J., following the Supreme Court’s kindred holding in Douglas

College, went on to conclude in para. 61 of Weber:

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... a labour arbitrator can consider the Charter, find laws inoperative

for conflict with it, and go on to grant remedies in the exercise of his

powers under the Labour Code .... If an arbitrator can find a law

violative of the Charter, it would seem he or she can determine

whether conduct in the administration of the collective agreement

violates the Charter and likewise grant remedies.

[134] Ample and clear authority exists, therefore, supporting arbitral jurisdiction

to determine the constitutional validity of legislation in addressing dispute

arising from collective agreements. Counsel for Government is not

challenging that proposition. Instead, he distinguishes this case from the

precedents supporting the proposition, whilst aligning the circumstances of

this case with other authorities.

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Government’s view of authorities:

[135] Government’s counsel opened his treatment of the authorities by pointing

out that Weber involved inquiry into whether conduct in the administration

of a collective agreement violated the Charter, whilst Douglas College

focused upon whether a provision in a collective agreement providing for

mandatory retirement out of which the dispute’s subject matter arose, on a

proper interpretation of it, was inconsistent with the Charter’s s. 15

equality rights thereby requiring it to be treated as having no force and

effect. Accordingly, with these two cases falling within the general rubric

of disputes which, in their essential character, arose from the administration

or interpretation of collective agreements, counsel acknowledges the

correctness of having held them to have come within the ambit of exclusive

arbitral jurisdiction.

[136] As preceding para. 122 has already pointed out, while counsel for

Government also acknowledges the arbitration panel at bar had “jurisdiction

to consider questions of law and fact in interpreting, applying and

administering the collective agreement”, he maintains it was not empowered

to pass on the constitutional validity, or on the construction, of the

“legislatively imposed provision in the Act” limiting “the jurisdiction of the

panel”. In other words, counsel is contending the Arbitration Board lacked

jurisdiction to determine the force and effect of the restraints imposed on

Government’s undertakings to implement pay equity under the collective

agreements. He enlists Cooper v. Canada (Human Rights Commission),

[1996] 3 S.C.R. 854 to support this assertion.

[137] Cooper involved complaints of airline pilots who were being retired at age

sixty pursuant to a provision in their collective agreement. Alleging that

this was discriminatory in light of the general Canadian practice of requiring

retirement of most employees at age sixty-five, the pilots disputed the

provision in complaints filed with the Canadian Human Rights Commission.

Section 15(c) of the Canadian Human Rights Act, R.S.C. 1985, c.H-6

explicitly provided it was not discriminatory practice for an individual to be

terminated from employment because that individual had reached the

normal age of retirement for employees in similar positions. The underlying

question, as articulated by La Forest J. in his lead majority decision in

Cooper, boiled down to whether the Commission could ignore s. 15(c) of

its Act, which constituted its enabling legislation, by entertaining

complaints over the allegedly discriminatory earlier retirements than the

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general Canadian practice. All of the complaints in Cooper effectively

rested on the ground that the compulsory terminations at sixty must be

struck as contrary to the Charter. To have allowed these complaints to

proceed by constituting a panel to hear them was, in fact, deemed to be

tantamount to striking down s. 15(3) by invoking the Charter, and the

Commission refused to do so. It was that decision which was before the

Supreme Court of Canada.

[138] The precise legal issue arising out of the foregoing circumstances in Cooper

was defined by La Forest J. in para. 30 of his judgment thusly:

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... whether the Canadian Human Rights Commission or a tribunal

appointed by it to investigate a complaint has power to determine the

constitutionality of a provision of their enabling statute, ...

The issue was answered in the negative at the conclusion of the majority judgment

where La Forest J. held in para. 66:

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... while a tribunal may have jurisdiction to consider legal and

constitutional questions, logic demands that it has no ability to

question the constitutional validity of a limiting provision of the Act.

[139] Counsel for Government equates Cooper’s negative resolution of the

foregoing stated legal issue to the situation at bar. Thus, just as the Human

Rights Commission was correct in refusing to entertain a complaint of

discrimination based on general retirement criteria when its enabling statute

limited such inquiries to normative practices prevailing in retirements of

employees in similar positions, counsel reasons the arbitration panel at bar

was precluded from ignoring the subsequent legislatively imposed

limitation on implementations of pay equity adjustments that foreclosed

retroactive payments otherwise payable under the affected employees’

collective agreement. In the view of counsel for Government, just as La

Forest J. reasoned in Cooper that consideration by the Commission of the

pilots’ complaint would have been tantamount to striking down the

normative provision of its enabling legislation for want of Charter

compliance, the decision here under appeal was correct in treating the

Board’s acceptance of NAPE’s complaint over the disputed retroactive pay

equity adjustments as effectively constituting a ruling of constitutional

invalidity, for want of compliance with the Charter’s equality rights, of the

legislatively imposed limiting provision in the restraint legislation

foreclosing implementation retroactively of pay equity adjustments.

Page: 46

[140] With respect, apart altogether from the fact that the restraint legislation did

not constitute the Board’s enabling statute, this analogy drawn by

Government’s counsel is inapt. Cooper speaks to the reality that the

Canadian Human Rights Commission is a statutory body whose powers are

limited to the precincts laid down in its constituting legislation, excursions

from which are subject to being checked by courts on the standard of

correctness. Labour arbitration boards, on the other hand, are ad hoc

bodies, created when parties commit their disputes under collective

agreements to the arbitration process and which, as preceding para. 113

notes St. Anne Nackawic to affirm, are endowed with exclusive jurisdiction

“to consider claims arising out of rights created by a collective agreement”,

alleged excursions from which are subject to judicial review, not on

correctness, but on the standard of patently unreasonable error.

[141] The powers of labour arbitration boards, therefore, are wide ranging in that

they stem immediately from exclusive jurisdictional authority to pass on all

disputes arising out of collective agreements. Their authority in this regard

is complete, and includes the power to address Charter issues in relation to

disputes whose essential character arises, in the words of Weber “from the

interpretation, application, administration or violation of the collective

agreement” (see preceding para. 115). Conversely, the jurisdiction of the

Canadian Human Rights Commission under scrutiny in Cooper is confined

to that directly conferred upon it by its enabling legislation. Such statutory

bodies must remain within the bounds of their creation. They have no

latitude to engage, as it were, in frolics of their own by deciding, or acting

as if, limitations on the powers conferred on them under their enabling

statutes do not stand up to constitutional muster. Boards such as the one at

bar, however, as Chuddy Chicks, Douglas College and Weber affirm,

have jurisdiction to address the constitutional validity of legislation insofar

as that concern impacts upon a dispute whose essential character arises out

of collective agreements.

[142] It is, then, this distinction between labour arbitration boards and statutory

bodies which forecloses the analogy drawn between Cooper and the

circumstances at bar. Equation of the circumstances at bar to Cooper does

not assist counsel’s jurisdictional submissions. Actually, the underlying

flaw in Government’s submissions, already mentioned in preceding para.

128, can be seen to surface in this misplaced attempt to equate Cooper to

this case. Although Government may well legally characterize this dispute

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as one engaging the issue of constitutional validity of a legislative provision

under the Charter, this is not material here as it was in Cooper. Once

more, it needs to be reiterated that the jurisdictional issue in this appeal is,

as Weber underscores, “whether the dispute is one ‘arising under [the]

collective agreement”, and “not whether the action, defined legally, is

independent of the collective agreement”. Counsel’s analogy misses that

distinction.

[143] The second authority enlisted by counsel for Government in support of his

thesis that jurisdiction over the dispute at bar lay with the court, and not the

Arbitration Board, is Service Employees International Union, Local 204

v. Ontario (Attorney-General) (1997), 35 O.R. (3d) 508. In this case

Local 204 applied to the General Division of the Ontario Court for a

declaration that an amendment to pay equity legislation violated s. 15, as

well as s. 28 of the Charter. The effect of the amendment was to

substantially eliminate pay equity adjustments for women in the Ontario

Public Service, and the broader public sector, who had been scheduled to

receive them by virtue of undertakings in the parent legislation. O’Leary J.

granted the Union’s application and declared the amendment of no force

and effect.

[144] There is no need to delve in any depth into the detailed facts of Service

Employees International. That case is being advanced by counsel for

Government as one in which the court, not an arbitration panel, was

recognized as invested with jurisdiction to determine the constitutional

validity of legislation that interfered with pay equity adjustments. Counsel

avails of this recognition to buttress his submission, recounted in preceding

para. 122, that the panel at bar was devoid of power to pass on the

constitutional validity, or construction, of the “legislatively imposed

provision in the Act”, i.e. s. 9 of the Public Sector Restraint Act, which

“limits the jurisdiction of the panel”.

[145] The attempted analogy of the case at bar with Service Employees

International, however, no more assists Government’s jurisdictional

argument than does its equation to Cooper. This is because the dispute in

Service Employees International did not arise out of a collective

agreement from which evolved a collateral issue of constitutionality, as is

the situation in the circumstances at bar. The focus was not upon any

collective agreement in Service Employees International, but directly

engaged a question of a legislative amendment’s compatibility with

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constitutional protections guaranteed under the Charter. It is true that both

that case and the one at bar complain of reneging by Governments on their

undertakings to implement pay equity adjustments for female employees in

the public service, and of reliance by Governments on supervening

overriding legislation to justify their actions. However, the dispute over

governmental obligation to pay them did not arise out of undertakings in

collective agreements in Service Employees International, as it did in the

case at bar. The dispute there rather arose out of the enforceability of the

obligation as given in the pay equity legislation enacted prior to its

amendment. Hence, there was no dispute arising out of a collective

agreement to commit to arbitration. The court was the only forum in which

to air the dispute.

[146] Once more, strains of the underlying flaw permeating Government’s

jurisdictional argument can be discerned in this second misplaced analogy.

The fact that the court in Service Employees International had jurisdiction

over the dispute had nothing to do with the turning issue’s capacity to be

legally characterized as engaging constitutional validity under the Charter

of the legislative provision affecting Government’s obligation to make the

pay equity adjustments as promised. It had the decision-making authority

because the disputed obligation arose under the initial legislation and not

under any collective agreement on which arbitral jurisdiction might be

founded. Here, once more, counsel for Government misses that essential

distinction.

[147] Because the circumstances in Cooper and Service Employees

International are distinguishable from the situation at bar, these authorities

do not impair the conclusion, drawable from the preceding analysis of the

respective submissions of counsel, that Government’s arguments, in support

of the judge’s holding that the Arbitration Board lacked jurisdiction over the

subject matter of this dispute, do not rest on a firm and sustainable legal

foundation. Unless the second arm of Government’s response to NAPE’s

position, which advances pragmatic considerations as a basis for lack of

arbitral jurisdiction over the subject matter, must be given sway, the Union’s

contention that the subject matter of this dispute lay within the exclusive

purview of the Board’s jurisdictional reach must prevail. Attention will

now focus on this final aspect of Government’s response.

>

Government’s pragmatic position:

Page: 49

[148] The short answer to counsel’s response that the ad hoc nature of the

composition of arbitration panels renders them unsuited, from a pragmatic

standpoint, to the task of resolving questions of constitutional validity of

legislation affecting disputes arising from collective agreements is that

pragmatic concerns are not to be taken into account by courts as

determinative factors in addressing arbitral jurisdiction. Authoritative

statement to that effect is contained in para. 59 of La Forest J.’s judgment in

Cooper where he asserts “practical considerations cannot dictate the

outcome of the issue presently before this Court”. As already pointed out,

the “issue” in Cooper involved the jurisdictional parameters of decision-

making powers of the Canadian Human Rights Commission. Although this

matter involves an ad hoc labour arbitration board adopted by the parties to

arbitrate their differences, as opposed to a body directly created by statute,

the irrelevancy of “practical considerations” as a decisive factor is equally

applicable to labour arbitral dispositions. Whether jurisdiction stems from a

dispute whose essential character arises from a collective agreement, or

directly from a tribunal’s enabling statute, there is no distinction insofar as

concerns the irrelevancy of “practical considerations” bearing on the

suitability of the body to exercise its jurisdictional powers.

[149] That irrelevancy stems from the reality that it matters not a whit how a court

may view the suitability of labour arbitration panels to resolve the

constitutional validity of legislation affecting disputes before them. Such a

consideration clearly falls within the ambit of the legislative power under

the Separation of Powers Doctrine which Lamer C.J.C. in para. 10 of his

concurring judgment in Cooper describes as “(o)ne of the defining features

of the Canadian Constitution”. The suitability of arbitration boards to

exercise their powers is a policy decision falling squarely within the

legislative domain under that Doctrine, and the consequential legislation is

the enunciation of the policy of that branch of government. While it lies

with the judiciary to interpret the scope of the enunciated policy as

expressed in a statute, pragmatic consideration of the policy which

prompted the legislation does not rest with the courts. That pragmatic

concern is strictly a matter of policy within the purview of the Legislature.

This is not to say, however, that questions of practicality are totally

immaterial to statutory construction. Thus, as La Forest J. went on to state

in para. 59 of his majority judgment in Cooper, “... practical considerations

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may be of assistance in determining the intention of Parliament, but they are

not determinative”.

[150] In the result, counsel’s resort to pragmatic considerations does not assist his

argument in support of the judge’s holding that the Arbitration Board “did

not have jurisdiction to determine the constitutional validity of the Act”

which he construed the dispute to be “over”. It was on this erroneous

finding that the judge based his conclusion that the Board lacked

jurisdiction over the subject matter of the dispute at bar, and that its decision

could be set aside on that account alone.

[151] The flaw in this pragmatic arm of counsel’s response to his counterpart’s

attack on the judge’s jurisdictional disposition can be seen in his concluding

comments with respect to it where, as preceding para. 124 records, he

argues the judge was correct in holding the “policy concerns” are “well

outside” the kinds of subject matter “intended to be addressed by such a

panel”. In fact, the suitability of labour arbitration tribunals to deal with the

constitutional validity of legislation affecting disputes arising from

collective agreements is a “policy concern” which is “well outside” the

judiciary’s jurisdiction, and rests squarely within the competence of the

Legislature under the now constitutionally entrenched Doctrine of the

Separation of Powers.

[152] Accordingly, counsel’s pragmatic position does not assist his argument that

the finding of the lack of arbitral jurisdiction over the subject matter should

be upheld.

>

subject matter ruling:

[153] For reasons expressed in the foregoing analysis of both counsel’s

submissions, and of the authorities advanced to support their respective

positions, it will be apparent that the dispute addressed by the Arbitration

Board arose out of the collective agreements. This being the case, as NAPE

contends, the judge’s determination that the Board lacked jurisdiction over

the dispute’s subject matter, i.e., Government’s entitlement to renege on its

promise to pay the retroactive pay equity adjustment that it had undertaken

to make in the collective agreements, was incorrect. By the same token,

Government’s contention that the dispute’s subject matter arose out of the

restraint legislation, and its constitutional validity, is incorrect. That

legislation and its enforceability were issues in a dispute whose essential

character arose “from the interpretation, application, administration or

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violation” of the collective agreements. Accordingly, under authority of

Weber and the other authorities in similar vein mentioned in the foregoing

discussions, the Board constituted to arbitrate the dispute at bar had

jurisdiction over its subject matter.

[154] It follows that the judge erred in holding the “dispute did not arise either

expressly or inferentially from the Collective Agreement”, and in portraying

it as being “over the constitutional validity of Section 9 of the Act”. It is

acknowledged the constitutional validity of the Act was an issue in the

dispute. The judge erred, however, in holding the Board had no jurisdiction

to consider that issue, and in consequently holding the panel lacked

jurisdiction over the subject matter of the disputed claim to the retroactive

pay equity adjustments under the collective agreements.

÷

the remedy:

first inquiry:

>

[155] Having found the Arbitration Board lacked jurisdiction over the subject

matter, there was no need for the judge to have continued inquiry into its

decision-making power over the remedy. Thus, in light of holding that this

second of the three essential bases of arbitral jurisdiction enunciated in

Chuddy Chicks was absent, there was no necessity to explore the presence

of the third, and the judge proceeded to his conclusion that Board

jurisdiction was lacking over the representative grievance at bar. In view of

the foregoing contrary determination that the Board had jurisdiction over

the subject matter, it is now necessary to this appeal’s disposition of the

jurisdictional issue to address the Board’s competence over the remedy.

>

NAPE’s position:

[156] In advancing her argument that arbitral jurisdiction also exists over the

remedy, NAPE’s counsel places heavy reliance on three of the cases already

encountered in the preceding discussion exploring the Board’s decision-

making power over the subject matter, namely: Chuddy Chicks, Douglas

College and Weber, whilst placing particular reliance upon the latter

authority.

[157] Counsel opens her argument by maintaining the Board’s jurisdictional

power over the remedy flows from s. 52(1) of the Constitution Act, 1982,

which renders any law inconsistent with the Charter of “no force or effect”

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to the “extent of the inconsistency”. She argues the power to engage s.

52(1) as a remedy arises when, as Lamer C.J.C. concluded in Schachter v.

Canada, [1992] 2 S.C.R. 679 at 717, “a law is itself held to be

unconstitutional, as opposed to simply a particular action taken under it”.

The gist of NAPE’s submission on the Board’s remedial jurisdiction,

therefore, is that, with arbitration boards being competent to determine the

constitutional validity of legislation affecting disputes arising from

collective agreements, it logically follows that a finding of

unconstitutionality engages s. 52(1); and, that a board making such a

finding would be empowered to rule the legislation of “no force and effect”,

insofar as its constitutional inconsistency affected the dispute before it,

thereby exercising jurisdiction over that remedy.

[158] In support of such remedial jurisdiction, NAPE’s counsel points out that in

the earliest days following the Charter’s entrenchment into Canadian law,

the Supreme Court of Canada held s. 52(1)’s power to refuse to apply

unconstitutional law was not the exclusive purview of superior courts. In

this regard, she directs attention to the ruling in R. v. Big M Drug Mart

Ltd., [1985] 1 S.C.R. 295 that provincial, as well as superior courts, have

authority to invoke s. 52(1) and refuse to apply unconstitutional legislation.

As already noted, counsel submits Chuddy Chicks, Douglas College and

Weber as authorities supporting her position that arbitration boards are

similarly endowed with authority to declare unconstitutional law, purporting

to affect disputes arising from collective agreements, of no force and effect

under s. 52(1) of the Constitution Act. To avoid unnecessary repetition of

them, the thrust of her argument based on these three authorities will be left

to the ensuing analysis of counsel’s respective submissions on this remedial

jurisdictional question.

>

Government’s response:

[159] Government’s response to NAPE’s position opens by attacking the

Arbitration Board’s unanimous finding of its jurisdiction over the remedy.

The Board chairperson’s decision had reasoned, inasmuch as s. 39(1) of the

Public Service Collective Bargaining Act, R.S.N., 1990, c.P-42, operated

to effectively insert in the collective agreement a phrase providing for

binding arbitration, it follows that arbitrators acting under that enactment

were empowered to determine remedies appropriate to disposition of

disputes. Counsel for Government effectively argues, however, that this

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reasoning is too simplistic, maintaining that a collective agreement’s

incorporation of “a provision for arbitration to settle disputes arising from

the agreement cannot, by itself, clothe the arbitration panel with unlimited

remedial power”.

[160] Instead, Government’s counsel insists, the proper focus is not s. 39(1), but s.

40(4) of the Public Service Collective Bargaining Act which provides:

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An arbitration board shall not make an award which would amend or

change a Collective Agreement, a judgment or an earlier award.

Portraying the effect of the restraint legislation as altering the terms of the

collective agreement presently under appellate scrutiny “by rendering void any

provision authorizing retroactive payment of pay equity adjustments, and instead,

stipulating that the wage adjustments would commence on the date they were

agreed upon”, counsel argues it was the collective agreement “as amended by the

Act, over which the arbitration panel had jurisdiction”. From this standpoint,

knitting into the fabric of his argument s. 40(4) of the Public Service Collective

Bargaining Act, counsel concludes “(to) allow the panel to determine that the

legislatively imposed provision is inoperative would constitute an amendment to

the Collective Agreement” which, in his opinion, would be “a remedy that is

clearly beyond the jurisdiction of the panel”.

[161] By dint of the foregoing reasoning, therefore, counsel for Government takes

the position that a finding that s. 9 of the restraint legislation “is

unconstitutional would alter the collective agreement by changing the date

on which wage adjustments payments would commence”. Accordingly, he

submits the Arbitration Board lacked jurisdiction to grant the remedy, under

s. 52(1) of the Constitution Act, “upon finding the legislation to be a

violation of the Charter”.

>

analysis of submissions:

[162] The three authorities upon which NAPE’s counsel places heavy reliance

provide strong support for her position that the Arbitration Board had

jurisdiction to invoke the remedy available under s. 52(1) of the

Constitution Act; and, to find s. 9 of the restraint legislation of no force

and effect insofar as its inconsistency with Government’s obligation to

make the retroactive pay equity adjustments under the collective agreement

was concerned. That remedy was triggered, in her submission, when the

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Board made its ruling on the constitutional invalidity of s. 9 upon that

obligation, which ruling was within the purview of the Board’s powers.

[163] Chuddy Chicks supports NAPE’s position in the distinction which that

authority draws between the making for formal declarations of invalidity,

and treating an impugned legislative provision as invalid for the purpose of

the matter in dispute which is the situation at bar. NAPE’s counsel puts

forth the following passage from p. 17 of La Forest J.’s judgment in

Chuddy Chicks which draws that distinction:

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... a formal declaration of invalidity is not a remedy which is available

to the Board. Instead, the Board merely treats any impugned

provision as invalid for the purposes of the matter before it. Given

that this is not tantamount to a formal declaration of invalidity, a

remedy exercisable only by the superior courts, the ruling of the

Board on a Charter issue does not constitute a binding legal

precedent, but is limited in its applicability to the matter in which it

arises.

[164] NAPE’s position is further fortified by another passage from La Forest J.’s

judgment in Douglas College which has been earlier reproduced in para.

132. As will be noted that extract asserts that the arbitration process

established under the collective agreement not only had the power to apply

s. 52(1) of the Constitution Act, but was “bound” to “respect the

Constitution” by treating “a law it is called on to apply” and that “it finds

invalid ... as having no force and effect”. Hence, with the power to

consider the constitutionality of the restraint legislation upon the disputed

retroactive pay equity adjustments, the Board was actually obliged to

declare the legislation of no force and effect upon Government’s

undertakings to pay them under the collective agreement if it found the

subsequent legislative measure unconstitutional.

[165] Clinching authority, if needed, is furnished in the extract from McLachlin

J.’s judgment in Weber which is reproduced in preceding para. 133. As

reference to it will show, it clearly states that arbitral jurisdiction exists to

“grant remedies” if a law is found “violative of the Charter” in the course of

addressing “whether conduct in the administration of the collective

agreement violates the Charter”.

[166] These three authorities, therefore, lend unequivocal support to NAPE’s

position that the Arbitration Board had jurisdiction over the remedy in this

dispute. With respect, Government counsel’s position, which in the final

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analysis rests on s. 40(4) of the Public Service Collective Bargaining Act,

does not impair the validity of his counterpart’s position.

[167] Government’s counsel is attempting here to deflect the significance, which

preceding para. 159 has noted the Arbitration Board placed on s. 39(1) of

the Public Service Collective Bargaining Act, onto s. 40(4) of that

enactment. The thrust of his position is that, in enacting s. 9 of the restraint

legislation, Government made it a part of the collective agreements and, the

Arbitration Board, being precluded by s. 40(4) of the collective bargaining

legislation from amending or changing a collective agreement, would be

doing precisely that in determining the legislatively imposed restraint term

was of no force and effect. Thus, counsel essentially posits the Board was

bereft of jurisdiction to rule s. 9 of the restraint legislation invalid because

such a ruling would be ultra vires the Board’s arbitral powers, being in

violation of s. 40(4) of the collective bargaining legislation.

[168] The first, and perhaps most obvious, rejoinder to Government’s foregoing

position is that the same s. 52(1) of the Constitution Act here under

discussion makes any law inconsistent with the Charter of no force and

effect, and this decree would supercede s. 9 of the restraint legislation if that

statutory provision is constitutionally invalidated. Apart from the question

of its potential constitutional incompatibility, however, Government’s

position is also intrinsically flawed in that it presupposes an agreement

between two parties may be unilaterally amended by one of them without

the consent of the other. Such a premise is axiomatically untenable, being

diametrically at odds with the very conceptual notion of agreement. That

premise may not be made tenable by invoking parliamentary supremacy,

and lifting one single provision from the context of the Public Service

Collective Bargaining Act to counter the underlying purpose of that statute

of which the provision forms a part. Yet, with respect, this is what

Government’s s. 40(4) argument does.

[169] The policy of the Public Service Collective Bargaining Act on its initial

passage in 1973 was to extend collective bargaining rights for the first time

to employees in the public sector. The legislation’s continued existence

stands witness to the reality that this policy has remained intact since then.

Concomitant with that policy must logically be implicit understanding that,

normally, Government will respect, and hold itself bound to, employer

obligations undertaken in agreements reached through the collective

bargaining process. This is not to suggest that Government should be taken

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to have exempted public sector collective agreements from subsequent

enactments of general application which may affect undertakings given in

those agreements. Neither is the suggestion to be inferred that Government,

in extending collective bargaining rights to the public sector, has necessarily

rendered itself powerless to affect rights and benefits conferred in

agreements or legislation by specific legislative intervention.

[170] Legislative power to enact constitutionally compatible legislation affecting

benefits previously gained through the public sector collective bargaining

process is not questioned in dismissing counsel’s s. 40(4) argument. Its

rejection is rather because s. 40(2) does not admit to construction that

permits it to be used to support lack of arbitral jurisdiction over the

grievance at bar. The purpose of s. 40(2) of the Public Service Collective

Bargaining Act is to speak to the breadth of arbitral power that is preserved

through the curial deference standard. It tells arbitrators addressing disputes

whose essential character arises out of public sector collective agreements

that, as wide as their jurisdictional scope may be, it does not extend to

amending or changing the terms of those agreements. In effect, therefore, s.

40(4) is directed towards assuring the integrity of the compact. It does not

buttress argument foreclosing arbitral jurisdiction over the constitutionality

and construction of legislation affecting subsisting collective agreements to

which purpose counsel is seeking to enlist s. 40(4).

[171] Moreover, it must be borne in mind that the purpose of the Act, of which s.

40(2) forms a part, is to extend collective bargaining rights to employees in

the public sector. Public sector collective bargaining presupposes

Government will hold to its bargain like any other party. This supposition

is subject to two provisos. Firstly, it is subject to laws of general

application from which the opposite party cannot expect to be exempted any

more than other citizens and institutions in society. Secondly, the bargain is

also subject to specific legislation aimed at modifying, or even nullifying it

in pursuance of directed governmental policy to that end. In both of these

instances, as will presently be explained, Charter considerations may come

into play. Absent valid constitutional challenge collective agreements in the

public service domain are conditional on these two provisos. However, they

must be laws of general application or specific legislation directed at the

agreements that have been struck. One isolated collateral provision within

an Act, such as s. 40(4), cannot be used to defeat the statutory purpose of

the very legislative measure of which it is a part. This would constitute rank

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perversion of statutory intent. As already noted, there is a rational

explanation of s. 40(4)’s purpose which is consistent with the overall

statutory objective of extending collective bargaining to persons employed

in the public sector.

[172] For the foregoing reasons, therefore, Government’s response in rebuttal of

NAPE’s arguments supporting its position of lack of arbitral jurisdiction

over the remedy is unsustainable.

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jurisdictional disposition:

[173] NAPE’s contention that the Arbitration Board had jurisdiction to hear

the representative grievance over Government’s failure to have made the

retroactive pay equity adjustments payable under the collective agreement is

sustainable. It was common ground in all prior proceedings addressing the

grievance that the Board had jurisdiction over the parties. On the footing of

the foregoing reasoning, with due respect to the trial judge’s contrary

opinion, the Board also had jurisdiction over the subject matter of the

dispute initiated through the grievance. By the same token, the preceding

reasoning explains why the Board must be held to have had jurisdiction

over the remedy.

[174] Accordingly, having had jurisdiction over “the parties, subject matter and

remedy sought”, the Arbitration Board, under the law in that respect

articulated in the excerpt from Chuddy Chicks reproduced in preceding

para. 109, must be held to have had decision-making power over the

substance of “the whole of the matter before it”. Included in that

jurisdictional purview is the power to address the constitutional validity of

s. 9 of the restraint legislation insofar as it affects the disputed obligation

arising out of the collective agreement to make the pay equity adjustments.

Indeed, it is accurate to underscore that the Board not only was empowered

to address s. 9's constitutional validity, but was duty bound not to apply it if

it found it to be inconsistent with the Charter.

[175] As the foregoing account of the decision out of the Trial Division indicates,

the opinion that the Board lacked jurisdiction over the dispute stemmed

from the view that the board had no authority to determine the compliance

of s. 9 of the restraint legislation with the Charter. Having made the

holding that the Board did not lack jurisdiction to hear the grievances raised

in the dispute before it, this judgment now turns to the constitutional

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question, which is the second issue set out in the listing of them in

preceding para. 108.

The constitutional issue:

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recapitulation:

[176] At this juncture, it will be helpful to recapitulate the prior findings on the

constitutionality issue. In the first place, it was the unanimous view that s. 9

of the restraint legislation violated the equality rights entrenched in s. 15(1)

of the Charter insofar as s. 9 impacted upon Government’s undertakings in

the collective agreements to make the retroactive pay equity adjustments.

All three members of the Board, as well as the judge, were in accord on that

aspect of the issue.

[177] The same unanimity was not shared over whether the violation was saved

under s. 1 of the Charter, however. The Board, with Government’s

nominee dissenting, found it was not saved. Accordingly s. 9 of the Public

Sector Restraint Act was held void and of no effect, under s. 52(1) of the

Constitution Act, upon the terms of the Pay Equity Agreement, including

the terms of Government’s obligations to make the retroactive pay equity

adjustments incorporated in the collective agreements.

[178] The judge subsequently overturned the Board’s finding on s. 1 of the

Charter, reasoning that the Board had erred in finding the intervening

restraint legislation’s infringement of the Charter’s s. 15(1) equality rights

was not saved under s. 1 of the Charter. Hence, the judge reversed the

Board’s decision of constitutional invalidity of s. 9 of the restraint

legislation, and he ultimately went on to hold the provision foreclosed

recovery of the pay equity adjustments claimed by NAPE.

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approach:

[179] For the purpose of an orderly broaching of the constitutional issue in this

appeal, it will be assumed, arguendo, that the language of s. 9 of the

restraint legislation extinguishes Government’s undertakings in the Pay

Equity Agreement, which had been incorporated into the collective

agreements as undertakings to make the retroactive pay equity adjustments.

If it is decided the judge’s conclusion that s. 9 meets constitutional muster

should be upheld, then inquiry will ensue into whether that legislative

provision admits to being statutorily construed to have such effect. In the

meantime, it will be assumed s. 9's language did have that import.

[180] Before exploring the sustainability of the judge’s review of the Board’s

constitutional analysis, discussion will be undertaken of the appropriate

standard of judicial review of public sector arbitral decisions on the

constitutional validity of a legislative measure affecting a dispute under

arbitration.

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standard of judicial review:

[181] The objective of this discussion is twofold. Firstly, in the course of

broaching discussion of the standard of review of such arbitral

constitutional decisions, it will at the same time define the standard for

judicial review of statutory interpretations of arbitration tribunals. Then, it

will proceed to determine whether the constitutional dispositions of the

Board were reviewable by the judge on the stringent standard of correctness,

or the more deferential one of patent unreasonableness. Inquiry into the

merits of the judge’s holdings that the Board erred in law in finding the

restraint legislation violated s. 15(1) of the Charter, and was not saved

under s. 1 of the Charter, and into his statutory interpretation of the

language of s. 9 of the Public Sector Restraint Act, will commence with an

overview of relevant authorities and applicable legislation providing

direction on the proper standard of judicial review that had to be brought to

bear in making such rulings.

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the C.U.P.E. case:

[182] Four authorities out of the Supreme Court of Canada assist discussion of

that inquiry. The first is C.U.P.E. v. N.B. Liquor Corporation, [1979] 2

S.C.R. 227. In that case the Court addressed the power of a specialized

tribunal to interpret legislation in acquitting its own statutory mandate to

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administer “a comprehensive statute regulating labour relations” (see p. 235

of C.U.P.E.) The legislation that the tribunal was called upon to construe

prohibited filling positions of striking employees with any other employees.

In so doing, New Brunswick’s Public Service Labour Relations Board had

to interpret whether the replacement of strikers with management personnel

contravened the legislative prohibition. Material to this discussion are the

following words of Dickson J., who delivered the Court’s unanimous

judgment, where he is recorded at p. 236 as stating that the Board in

C.U.P.E. would not only:

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... not be required to be “correct” in its interpretation, but one would

think that the Board was entitled to err and any such error would be

protected from review by the privative clause ...

Further along in C.U.P.E., Dickson J. indicated this entitlement to err in

legislative construction extended up to the limit of patent unreasonableness. This

being so, he defined when that boundary is reached, and the specialized tribunal’s

legislative interpretation becomes reviewable, in terms of the following question

that he formulated at p. 237:

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... was the Board’s interpretation so patently unreasonable that its

construction cannot be rationally supported by the relevant legislation

and demands intervention by the court upon review?

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the Syndicat case:

[183] The Supreme Court of Canada expanded on C.U.P.E. in Syndicat des

employés de production du Québec v. CLRB, [1984] 2 S.C.R. 412. As

had C.U.P.E., this case also addressed the standard of judicial review of

decisions made by specialized tribunals. There the tribunal was the

Canadian Labour Relations Board. One of the issues addressed by the

Court in Syndicat was the judicial review standard of legislative

interpretations made by such boards within the limits of their jurisdictional

powers. There the Board had interpreted a concerted refusal by unionized

employees to work overtime as an unlawful strike within the meaning of s.

180 of the Canada Labour Code. In contrast, the impugned interpretation

at bar, which the foregoing reasoning has concluded was within its

jurisdictional competence, is the Arbitration Board’s interpretation of s. 9 of

the restraint legislation as extinguishing governmental obligations to make

pay equity wage adjustments during the restraint period, and as being

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constitutionally invalid by reason of its infringement of s. 15(1) of the

Charter, and of this violation not being saved under the Charter’s s. 1.

Especially germane to the instant discussion is the conclusion drawn by

Beetz J., who authored the unanimous judgment in Syndicat, appearing on

p. 443, that the “patently unreasonable interpretation rule” is the standard of

judicial review over “a question considered as falling within” the

jurisdictional limits of an administrative tribunal. Earlier, at p. 425, Beetz J.

had concurred with the view that the question whether an illegal strike had

occurred had been within the limits of the Canada Labour Relations Board’s

jurisdictional reach.

[184] Still earlier, at p. 420 of Syndicat, Beetz J. provided insight into why

patently unreasonable errors of administrative tribunals are considered

sufficiently serious to warrant interventions by courts upon judicial review.

Thus, whilst referring to the passage from C.U.P.E. just reproduced in

preceding para. 182, and styling patently unreasonable interpretations of

legislative provisions as a “fraud on the law or a deliberate refusal to

comply with it”, as well as being of the kind to be “treated as an act which is

done in bad faith and is contrary to the principles of natural justice”, Beetz

J. distinguishes such vitiating error from “a jurisdictional error” or a “mere

error of law”.

[185] Furthermore, immediately prior to his espousal of the foregoing rationale for

judicial intervention in patently unreasonable decisions made within

jurisdictional limits, he described a “mere error of law” as:

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an error committed by an administrative tribunal in good faith in

interpreting or applying a provision of its enabling Act, of another

Act, or of an agreement or other document which it has to interpret

and apply within the limits of its jurisdiction.

By way of parenthetical comment, it should be noted that the foregoing passage’s

implicit endorsation of such tribunals being invested with power to make findings

on “mere error of law” whilst “interpreting or applying a provision of its enabling

Act” should be taken to absent authority to make findings respecting

constitutionality of their enabling legislation’s provisions that limit their

jurisdiction. As preceding para. 138 has pointed out, the Supreme Court of

Canada in Cooper has held that “logic demands” tribunals have no such powers.

What the above excerpt does settle, however, is the power of administrative bodies

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to interpret general laws, and agreements or other documents, which they have “to

interpret and apply within the limits” of their jurisdiction.

[186] Mr. Justice Beetz’s judgment in Syndicat also provides rationale why the

same judicial deference normally accorded to rulings of specialized

tribunal’s made within the purview of their jurisdictional powers should

extend to interpretation made within jurisdictional limits of legislative

provisions. Thus at p. 441 of Syndicat, he wrote:

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When ... courts with a duty to exercise a superintending and

reforming power over administrative tribunals find that an

interpretation given by the latter to an enactment is not patently

unreasonable, they are finding that this interpretation is defensible:

however, they are not deciding whether the interpretation is correct or

incorrect, and are not in general expressing any opinion on the point.

This is exactly the approach taken by the Federal Court of Appeal in

the case at bar, when it writes ... “even if the Board was mistaken on

this point, it did not on that account cease to have jurisdiction over

the matter”.

[187] The rationale for deference that emerges from the foregoing passage is

gleanable from its explanation that in conducting statutory interpretations

administrative tribunals are not making pronouncements of correctness of

legislative meaning intended for general application. Such tribunal findings

are discrete. They are not declarations of universal application governing

the legislative effect for all purposes of the statutory measures under arbitral

scrutiny. They speak only to the impact of the legislation upon the

particular dispute committed to the tribunal’s specialized knowledge, and

thereby to the most suitable forum recognized for resolution. Hence,

Syndicat’s message is that such tribunals have the right to be wrong, even

in legislative interpretations made within the purview of their jurisdictional

authority. As long as they are defensible as rulings that are not patently

unreasonable, Beetz J.’s judgment in Syndicat makes clear that deference is

the watchword in judicial reviews of such legislative constructions.

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the Paccar case:

[188] The Supreme Court of Canada elaborated on the degree of deference to be

observed in such judicial reviews in Caimaw v. Paccar of Canada Ltd.,

[1989] 2 S.C.R. 983. This case is authority for treating the deference on

judicial review of rulings within jurisdiction by administrative tribunals

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involving interpretations of legislation as not just extending to errors, but to

serious ones as long as such constructions do not transcend the bounds of

patent unreasonableness.

[189] Paccar addressed whether a decision of the British Columbia Labour

Relations Board that an employer’s unilateral alteration of the terms and

conditions of employment after termination of a collective agreement was a

patently unreasonable interpretation of the provisions of the provincial

Labour Code. The details of that dispute and the appeal’s outcome are not

of immediate concern to the present discussion. However, the following

passage from the judgment of La Forest J., whose opinion attracted

concurrence of the majority in Paccar, provides relevant perspective of the

high degree of deference required to be accorded to legislative

interpretations by courts in judicial review of tribunal decisions. Thus, La

Forest J. wrote at p. 1003 of Paccar:

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Where, as here, an administrative tribunal is protected by a privative

clause, this Court has indicated it will only review the decision of the

Board if that Board has either made an error in interpreting the

provisions conferring jurisdiction on it, or has exceeded its

jurisdiction by making a patently unreasonable error of law in the

performance of its functions; see Canadian Union of Public

Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2

S.C.R. 227. The tribunal has the right to make errors, even serious

ones, provided it does not act in a manner “so patently unreasonable

that its construction cannot be rationally supported by the relevant

legislation and demands intervention by the court upon review”.

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the Lester case:

[190] Reference should also be made to Lester (W.W.) v. U.A.J.A.P.P.I., [1990]

3 S.C.R. 644 which was an appeal from a decision of this Court. This

appeal addressed the sustainability of a successorship declaration granted by

the province’s Labour Relations Board pursuant to s. 89 of the Labour

Relations Act 1977, S.N. 1977, c. 64. The purpose of that legislative

provision was to prevent unionized employees from losing collective

bargaining rights through dispositions of businesses by sale or transfer or by

alterations to corporate structure. The declaration allows for the continued

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effectiveness of subsisting collective agreements insofar as the bargaining

rights of affected employees were concerned.

[191] In Lester, the Board had applied s. 89 to a “double breasting” situation

where, depending upon whether a job was a union or non-union

construction site, bids on projects were submitted by companies possessing

similar share structures and operating side by side according to the

respective recognition or absence of collective bargaining rights. The

Supreme Court affirmed this Court’s unanimous decision to quash the

Board’s decision to grant the declaration on the ground that it was not

supportable by the evidence and thus was patently unreasonable.

[192] The significance of Lester to this discussion is the statement regarding

judicial deference of McLachlin J., who delivered the decision of the narrow

majority in Lester. Thus, after noting that the Newfoundland Act in s. 18

contained a privative clause limiting judicial review to error by the Labour

Relations Board in the performance of its functions, and referring to

Paccar, McLachlin J. stated at p. 669:

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Courts should exercise caution and deference in reviewing decisions

of specialized tribunals, such as the Labour Board in this case. This

deference extends both to determination of the facts and the

interpretation of the law. Only where the evidence, viewed

reasonably, is incapable of supporting a tribunal’s findings of fact, or

where the interpretation placed on the legislation is patently

unreasonable, can the court interfere.

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overview of authorities:

[193] The preceding four authorities establish that specialized administrative

tribunals, such as labour relations and arbitration boards, are endowed with

powers to interpret and apply legislation when making decisions within the

limits of their jurisdiction. Review of such interpretative findings by these

tribunals are not to be conducted on the basis of “mere error of law”. In

fact, as Paccar indicates, judicial review must defer to “even serious”

errors. Such review of legislative interpretation and application is reserved

for indefensible patently unreasonable errors which, in Syndicat’s words,

constitute a “fraud on the law”, and not for errors committed “in good faith”

made whilst the tribunal was acting “within the limits of its jurisdiction”.

Patent unreasonableness, then, is the standard of review of legislative

meaning where, as C.U.P.E., Paccar and Lester underscore, the tribunal “is

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protected from review” by a privative clause in its constituting statute. As

ensuing discussion of the Bradco case will explain, the triggering of that

standard has been extended to clauses which, while not explicitly stricto

sensu privative clauses, provide for finality in arbitral decisions.

[194] The question falling to be resolved here is whether the standard of patent

unreasonableness applicable on judicial review of findings of general

legislative import by labour relations boards, as laid down in C.U.P.E.,

Syndicat, Paccar and Lester, applies equally to judicial review of the

constitutional findings of the Arbitration Board at bar. It is true that those

four authorities dealt with the scope of judicial review of legislative

constructions by specialized administrative tribunals in the context of labour

relations boards, whilst this appeal deals with findings of a labour

arbitration board. However, that distinction is of no moment. This is

because labour arbitration boards are also specialized administrative

tribunals. Their existence stems from a general appreciation that disputes

arising out of collective agreements, otherwise falling within the ambit of

the judiciary’s powers, are better left to the specialized knowledge and

expertise which their ad hoc creation allows to be brought to them.

[195] The foregoing question of the patently unreasonable test’s extended

applicability to judicial review of arbitral constitutional findings has two

arms. The first is whether legislative limits, kindred to those that protected

the labour relations boards’ decisions from full appellate scrutiny, likewise

sheltered the Arbitration Board’s decision vis à vis its statutory

interpretation of the import of s. 9 of the Public Sector Restraint Act. If

analysis establishes legislative limits to shelter the Arbitration Board’s

decision, the second arm of the question is engaged. This will require

inquiry into whether the standard of patent unreasonableness, imported to

the judicial review process through legislative shelter of the Board’s

decisions from full appellate scrutiny, can be applied to judicial review of

the Board’s ultimate finding of s. 9's constitutional invalidity. As will be

seen, this is the more difficult arm of the inquiry.

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the legislative factor:

[196] It is true that labour relations boards, like many administrative tribunals, are

created by statute which prescribe their jurisdictional limits. This contrasts

with labour arbitration boards which are created at the disputants’ initiative

pursuant to relevant enabling legislation to settle disputes under collective

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agreements which they are called upon to interpret and apply. The standard

of judicial review of decisions within those boards’ jurisdictional limits,

including those entailing legislative interpretations, will be determinable

from the enactments by which, or pursuant to which, they are created. This

is so whether the tribunal is a labour relations, or a labour arbitration board.

As the foregoing authorities indicate, the existence of privative clauses in

the legislation is quite relevant to whether the standard of review is to be

held to the deferential norm of patent unreasonableness, or the more

stringent test of correctness.

[197] As preceding para. 192 notes, in Lester the privative clause was in s. 18 of

the 1977 version of the Labour Relations Act, which, while allowing the

Labour Relations Board unrestricted latitude to review any decision made

“by it or by the panel”, provided that otherwise “a decision or order of the

Board is final and conclusive and not open to question or review.” This

relatively terse wording was held sufficiently strong in Lester to trigger the

standard of patent unreasonableness as the criterion for judicial review of

the Board’s interpretation of the legislative provision in that case.

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the Bradco case:

[198] There can be no claim of a privative clause of comparable strength in the

case at bar. This is not conclusive, however. The Supreme Court of

Canada, through the judgment of Sopinka J. in United Brotherhood v.

Bradco, [1993] 2 S.C.R. 316, in setting the standard governing judicial

review, indicated that regard should be had to what the applicable

legislation has to say about the finality of the arbitral decision. Like Lester,

Bradco was an appeal from this Court, and the Labour Relations Act,

1977 was the applicable legislative source from which the standard of

judicial review of an arbitral decision had to be settled. That time, however,

it was not a Labour Relations Board decision protected by the strong

privative clause which was in issue. It was rather a decision of an arbitrator,

appointed by the parties to the dispute, pursuant to that same Act, who, to

settle the dispute before him, was required to interpret certain provisions of

a collective agreement precluding the hiring of non unionized workers on

construction projects. In the course of its treatment of that issue, Bradco

addressed the appropriate standard for judicial review of the arbitrator’s

interpretation. It is noted that that arbitral decision was not protected by the

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same privative clause as had sheltered the Labour Relations Board’s

disposition in Lester.

[199] Notwithstanding this lack of a true privative clause, Sopinka J. in Bradco

found directive to apply the deferential standard of patent unreasonableness

in s. 88(2) of the Labour Relations Act, 1977. That provision applied only

to the construction industry and imposed a qualified regime of compulsory

arbitration, in the absence of the parties’ agreement that a specific grievance

may be settled by another regime, to resolve disputes and differences arising

out of collective agreements governing relations in the construction

industry, regardless of the manner for resolution that might have been

prescribed in such agreements. The regime’s applicability was

comprehensive, encompassing disputes and differences over “the

interpretation, meaning, application or administration” of such collective

agreements, as well as “violations” of them. The segment of s. 88(2) which

is key in the context of the present discussion, however, was the stipulation

that such disputes or differences “shall be submitted for final settlement to

arbitration in accordance with this section”.

[200] Bradco viewed those words of finality of arbitral decisions as bearing

significant impact upon judicial review of them, and for the deference to be

accorded to them, notwithstanding the absence of a strict privative clause.

Sopinka J. opened his appraisal of s. 88(2) by describing it in the following

terms in pp. 333-4 of Bradco:

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Section 88(2) falls somewhere between a full privative clause and a

clause providing for full review by way of appeal. While it does not

provide that the decision of the arbitrator is protected from review on

any ground of law or fact, it similarly does not provide specifically

for appeal or review on these grounds. It simply provides that the

arbitrator’s decision will amount to final settlement of the dispute.

The question is what the legislature intended by the use of this phrase,

and specifically whether the phrase mandates the deference of the

court to the particular decision made by the arbitrator in this case.

[201] Sopinka J. then explored the legislative intent of the provision that arbitral

dispositions would constitute final settlements of disputes, as well as the

effect of that directive upon the deference to be accorded on judicial review.

That inquiry’s result is expressed in p. 339 of Sopinka J’s judgment in

Bradco which reads as follows:

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Taking into account the relevant factors of statutory wording,

expertise and purpose of the tribunal, I am of the opinion that the

legislator did not intend by s. 88(2) to restrict judicial review of the

decisions of the arbitrator except as to jurisdictional matters. Judicial

deference to the decision of the arbitrator is nonetheless warranted

here. In this case, the decision of the arbitrator is questioned on two

bases: first, his conclusion that the collective agreement ... was

unclear and ambiguous, and second, his conclusion that properly

interpreted, Article 3.01 applied to the contract bid ... The questions

to be resolved in coming to these conclusions involved the

interpretation of the collective agreement and it’s application to a

particular factual situation - - matters which constitute the core area

of an arbitrator’s expertise. Combined with the purpose and wording

of s. 88 which confers upon the arbitrator exclusive jurisdiction to

come to a final settlement of disputes arising out of the interpretation

or application of the collective agreement, the arbitrator’s relative

expertise mandates that the court defer to the decision of the arbitrator

in this case unless his decision is found to be patently unreasonable.

The issue as to whether there are some decisions of an arbitrator on

other questions of law not restricted to the interpretation of the

collective agreement which are also immune from review may be left

for another day.

[202] The foregoing excerpt from Bradco affords clear and convincing

explanation how legislative directives that arbitral decisions constitute

“final settlement of disputes” can serve, in lieu of more explicitly strict

privative clauses, to command deference on judicial review to those

decisions, when made within jurisdictional limits, unless the “decision is

found to be patently unreasonable”. With there being no such explicit

privative clause protecting the Arbitration Board’s decision at bar, it is

necessary to inquire whether, as was the case in Bradco, there was yet other

legislative direction of finality signifying that “(j)udicial deference to the

decision ... is nonetheless warranted”.

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the direction to deference:

[203] The first point to be made when embarking on that inquiry is that any such

legislative direction must come from the Public Service Collective

Bargaining Act in pursuance to which the Arbitration Board at bar was

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established. This contrasts with the situation in Bradco where the arbitrator

was appointed under the provisions of the Labour Relations Act. This

distinction is, nevertheless, one without substantial difference in the context

of the standard of judicial review of arbitral decisions rendered under either

statute. This is because of the kindred manner in which both enactments

conferred on the respective arbitration processes “exclusive jurisdiction to

come to a final settlement of disputes”, and thereby impressed the

deferential standard of the patently unreasonable test on judicial review of

their findings.

[204] The relevant section of the Public Service Collective Bargaining Act

which impressed finality upon decisions of arbitration boards established in

pursuant to it is s. 39(1). That section confers the exclusive jurisdiction of

final settlement in the following terms:

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A collective agreement which does not contain provisions for final

settlement, by arbitration or otherwise, of all differences between the

parties to or persons bound by the agreement or on whose behalf it

was entered into, where those differences arise out of the

interpretation, application or administration or alleged violation of the

collective agreement, including a question as to whether a matter is

arbitrable, shall be considered to contain those provisions set out in

subsection 86(2) of the Labour Relations Act.

[205] The foregoing provision, effectively conferring the status of finality on

public sector arbitral rulings, tracks substantially word for word s. 86 of the

Labour Relations Act’s conferment of similar status on arbitral rulings

arising out of collective agreements in the private sector. Both provide that

where collective agreements contain no provisions for final settlements of

all differences arising within the recognizable limits of arbitral jurisdiction,

such collective agreements “shall be considered to contain” the provisions

set out in s. 86(2) of the Labour Relations Act which provide for the

establishment and procedures of an arbitration board to arbitrate disputes.

In each case, the decisions of such boards are, under s. 86(2)(f), “final and

binding” upon the parties and upon a person on whose behalf” the collective

agreement was made. It was, then, through its incorporation of “subsection

86(2) of the Labour Relations Act” that s. 39(1) of the Public Service

Collective Bargaining Act conferred upon the arbitral process established

under it “exclusive jurisdiction to come to a final settlement of disputes”.

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[206] Bradco stands as incontrovertible authority for applying the standard of

patent unreasonableness to judicial review of rulings of arbitration boards

made within jurisdictional limits where a direction to deference can be

found in their constituting legislation. The direction to the deferential

standard may be found either in privative legislative clauses protecting the

arbitral dispositions from review, or in legislative provisions which confer,

in Bradco’s words reproduced in preceding para. 201, “exclusive

jurisdiction to come to a final settlement of disputes arising out of the

interpretation or application of the collective agreement”.

[207] In Bradco the “final” ruling was made by an arbitrator, constituted pursuant

to s. 88 of the 1977 version of the Labour Relations Act (now s. 92 in the

current 1990 revised version) to settle a dispute arising out of the

interpretation and application of a collective agreement in the construction

industry. The dispute was over the meaning of a provision in the collective

agreement dealing with rights of employees on construction sites.

[208] In contrast, the ruling at bar was made by an Arbitration Board constituted

in pursuance of s. 39 of the Public Service Collective Bargaining Act to

settle a dispute arising out of collective agreements dealing with rights of

employees in the public sector. The gravamen of the dispute at bar focuses

on the impact of s. 9 of the Public Sector Restraint Act in its application

upon Government’s obligations to make the pay equity adjustments under

those collective agreements. The dispute, therefore, entails statutory

interpretation of a legislative measure, and the application of the resultant

construction to the collective agreements, rather than straight construction

and application of those agreements themselves which was the situation in

Bradco.

[209] As to these differences, the fact that the arbitration processes at bar and in

Bradco were conducted under the authority of different enactments is

neither here nor there. In the first place, it is not strictly accurate to

maintain they were conducted under different statutory provisions. As

already explained in preceding para. 205, s. 39(1) of the Arbitration Board’s

constituent legislation incorporates s. 86 of the Labour Relations Act into

the arbitral process, and made s. 86 applicable to disputes arising out of

public sector collective agreements. In fact, this Arbitration Board derives

its commission “to come to a final settlement of disputes” from that

referential incorporation. Thus, the determinant of the standard of judicial

review lies in the finality of decision that applied to the arbitral rulings both

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in Bradco and at bar. Moreover, the finality of decision actually emanates

from the same source in both instances i.e., the Labour Relations Act.

[210] Hence, although the arbitrations were conducted under different enactments,

judicial review of dispositions within jurisdictional limits of the Arbitration

Board at bar, as well as those of the arbitrator in Bradco, both were

ultimately directed by the curial deference that triggers the patently

unreasonable standard of judicial review through conferrals of exclusive

jurisdiction to come to final settlements of disputes in both instances under

the Labour Relations Act. It is true that it is the general provisions of

private sector arbitration in s-s. 86(2) of that Act which are engrafted into

the public sector arbitral process, whilst the arbitration in Bradco was

conducted under subsisting s-s. 92(2) of that Act, which is made specifically

applicable to the construction industry. However, as already underscored,

the watchword insofar as the appropriate standard of judicial review is

concerned is the finality of decision, and there is no doubt that the

Arbitration Board at bar was invested with exclusive jurisdiction to make

final dispositions under the legislation applicable to it. Hence, no

significance should be attached to the fact that the respective arbitrations at

bar and in Bradco were conducted under separate statutes.

[211] Neither is it of any consequence that the Arbitration Board at bar was

engaged in legislative interpretation of the impact of s. 9 of the Public

Sector Restraint Act and the application of its construction to the

collective agreements, rather than straight interpretation and application of

those collective agreements as was the arbitration in Bradco. The

dispositions in C.U.P.E., Syndicat, Paccar and Lester give ample room to

conclude that legislative interpretations for application to collective

agreements lie within the competence of arbitration boards, just as do

interpretations within the confines of such agreements with which the

judicial review in Bradco was occupied. It is true that these

aforementioned four authorities addressed judicial reviews of legislative

constructions of labour relations boards within their statutory mandates. It

is equally quite clear from a perusal of those four authorities, however, that

those dispositions wielded a wider brush inasmuch as the labour relations

boards, whose decisions were sought to be reviewed, were referred to from

time to time as administrative boards and specialized tribunals, amongst

which arbitration boards of the type engaged in this appeal are numbered as

well.

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[212] The distinctions, therefore, are not material to the application of Bradco to

the appropriate standard of judicial review in the circumstances at bar.

Accordingly, on the footing of the direction to deference which the relevant

legislation effectively enjoins judicial reviews of public sector arbitral

decisions to observe, and on the basis of the authoritative recognition that

legislative interpretation lies within the ambit of such arbitral decision-

making powers, it is concluded, on the combined authority of all five

dispositions, that the standard of judicial review of the interpretation that

the law sets for the Arbitration Board’s interpretation of s. 9 of the Public

Sector Restraint Act is patent unreasonableness.

[213] In the result, the first arm of the question posed in preceding para. 195 is

resolvable in the affirmative. There are legislative limits relating to judicial

review incorporated into the Arbitration Board’s constituent statute, kindred

to those that protected the labour relations boards, whose decisions were

under scrutiny in C.U.P.E., Syndicat, Paccar and Lester, that shelter from

full review by way of appeal the Board’s decision regarding the impact of s.

9 of the restraint legislation on the dispute arising out of the collective

agreements before it. This being the case, it is clear that patent

unreasonableness is the test that had to be applied in judicial review of the

Board’s statutory interpretation of s. 9 which is yet to be broached in this

judgment. However, the immediate and more difficult concern is whether

that test also applies to the Board’s constitutional findings vis à vis s. 9's

application to the dispute before it. At this point, the discussion proceeds to

the second arm of the question set out in preceding para. 195, i.e., whether

the same standard of patent unreasonableness, extends to judicial review of

the Board’s constitutional findings.

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constitutional deference:

[214] At first blush, it would appear there is strong reason to respond

affirmatively to that question. After all, the Board was still occupied with

interpreting s. 9 of the Public Sector Restraint Act, albeit in the context of

its compliance with the Charter insofar as it affected the dispute under

arbitration. There would seem no reason why the direction to deference

mandated through the Public Sector Collective Bargaining Act should not

apply to legislative interpretations involving applications of the Charter,

nor why the patently unreasonable standard of judicial review laid down in

C.U.P.E., Syndicat, Paccar and Lester should not be equally engaged in

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judicial review of constitutional applications by public sector arbitration

boards, such as the one at bar.

[215] As preceding para. 109 has already noted, La Forest J. held in Chuddy

Chicks that a tribunal having “jurisdiction over the whole of the matter”,

which this judgment has already concluded the Arbitration Board in this

case had, acts within the limits of that jurisdiction in addressing “a Charter

issue”. In so doing, it would seem to follow logically that this power

includes authority to interpret and apply the Charter, as arbitration Boards

do, in the context of other legislative enactments in valid exercise of their

exclusive jurisdiction to settle dispute arising out of collective agreements.

After all, as McLachlin J. states in her judgment, albeit a dissenting one, at

para. 70 of Cooper:

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The Charter is not some holy grail which only judicial initiates of the

superior courts may touch. The Charter belongs to the people. All

law and law-makers that touch the people must conform to it.

Tribunals and commissions charged with deciding legal issues are no

exception. Many more citizens have their rights determined by these

tribunals than by the courts. If the Charter is to be meaningful to

ordinary people, then it must find its expression in the decisions of

these tribunals ... if Parliament confers on the tribunal the power to

decide questions of law, that power must, in the absence of counter-

indications, be taken to extend to the Charter, and to the question of

whether the Charter renders portions of its enabling statute

unconstitutional.

[216] The closing words of the foregoing passage earmark McLachlin J.’s dissent

from La Forest J.’s majority judgment in Cooper. They evince

disagreement with the latter’s holding in para. 139 of that case that neither a

tribunal appointed by the Canadian Human Rights Commission, nor the

Commission itself, was empowered to determine the constitutional validity

of its enabling statute. While the entire excerpt is directed towards that area

of disagreement, if the last phrase be deleted from the passage, the

remainder might be taken as support for a standard of patent

unreasonableness in judicial review of Charter interpretations and

applications by arbitration boards within their jurisdictional limits.

Nevertheless, shortly before, the Supreme Court of Canada, through La

Forest J.’s judgment in Douglas College, had explicitly held that

correctness, not patent unreasonableness, is the applicable standard of

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judicial review of Charter applications made within the ambit of arbitral

competence. Thus, at p. 605 of Douglas College, La Forest J. wrote:

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... I think it important that those called upon to make governmental

decision focus on the values enshrined in the Charter. I should add

that constitutional determinations by arbitrators or other

administrative tribunals or agencies should, of course, receive no

curial deference .... They are not there acting within the limits of their

expertise.

[217] There are actually three arguments enlistable in support of not observing

curial deference, and the concomitant standard of patent unreasonableness,

in judicial review of arbitral Charter determinations. The first is the limits

of expertise in arbitration or other administrative tribunals, which has just

been mentioned in the foregoing passage from Douglas College. The

second flows from a view that admitting the curial deference of patent

unreasonableness to the judicial review process would be tantamount to a

usurpation of the courts’ powers, and a disruption of fundamental principles

of democratic parliamentary government. This second position is based on

the extendability of Lamer C.J.C.’s concurrence with La Forest J.’s majority

disposition in Cooper, wherein the former Chief Justice put forth a case for

judicial monopoly over constitutional rulings. The third argument is based

upon the importance of constitutional challenges to the validity of

legislation. Attention will now focus in turn upon each of these arguments

that militate against observing curial deference in respect of constitutional

findings of administrative tribunals, which include labour arbitrations such

as the one whose constitutional ruling is under scrutiny in the appeal at bar.

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the expertise argument:

[218] As already explained, supportive authority for rejecting curial deference

comes out of the extract from Douglas College reproduced in preceding

para. 216. However, it must be noted that this conclusion appears

somewhat at variance with the specialized nature of arbitration boards. This

was recognized by La Forest J. who made specific reference to this attribute

in pp. 604-605 of his judgment, immediately preceding his comment that the

limits of their expertise foreclosed curial deference to arbitral Charter

rulings. Thus, before making that comment, he had just mentioned “the

advantages of the expertise of the arbitrator or agency”, whilst noting that

“(t)hat specialized competence can be of invaluable assistance in

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constitutional interpretations”. On their face, these remarks appear at odds

with his ensuing comment that “constitutional determinations” were outside

“the limits of their expertise”, and this should receive “no curial deference”

on judicial review.

[219] This aspect of La Forest J.’s judgment in Douglas College is not singled out

in an attempt at demonstrating inconsistency. It is clear from a perusal of

the entire commentary preceding the conclusion that “no curial deference”

should be accorded on review of arbitral constitutional findings that the

existence of strong arguments to the contrary was recognized, and Mr.

Justice La Forest was acknowledging the conclusion at which he arrived had

been a difficult one to draw. The highlighted comments culminating in the

limited expertise conclusion drawn in Douglas College are, then, rather

illustrative of the narrowness of that call.

[220] At the same time, it has to be observed, nonetheless, that it appears

somewhat problematic to hold no curial deference should be extended by

courts in the exercise of their superintending and reforming power over

constitutional findings of arbitrators, who have been accorded exclusive

jurisdiction to come to final settlements, and who are recognized to have

“specialized competence ... in constitutional interpretation”. From this

standpoint, it seems apropos to wonder why such arbitral constitutional

findings should be denied the protection of the same deferential standard of

patent unreasonableness that shelter other legislative interpretations when

applied to disputes arising out of collective agreements.

[221] Perhaps the explanation may lie in the assertion that the specialized

competence can be of “invaluable assistance”. In other words, the expertise

can be viewed as invaluable in assisting proper constitutional interpretation

made in the course of the exercise of exclusive jurisdiction to bring final

settlement to disputes under collective agreements. However, given the

importance of constitutional questions, labour arbitration boards should

have no right to be wrong as they do in construing other legislation. Thus,

ultimate determination of the sustainability of constitutional rulings must lie

with the courts on the standard of correctness. This really appears to be the

nub of the correctness standard’s rationale.

[222] The unavoidable conclusion that emerges from this analysis is that the

notion of lack of expertise of arbitrators as justification for application of

the correctness standard in judicial review of arbitral constitutional findings

rests on tenuous ground in light of the acknowledged “specialized

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competence ... in constitutional matters” of arbitration boards entrusted with

power to make such rulings. Advocating the importance of Charter

findings in justification of the correctness standard, as will presently be

explained, runs afoul of McLachlin J.’s “holy grail” comment in Cooper.

Before entering that phase of the discussion, however, focus will converge

on the second argument against extending curial deference to arbitral

constitutional rulings.

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the usurpation argument:

[223] The usurpation argument rests on the view that according curial deference

to Charter findings of arbitration tribunals would infringe fundamental

features of the Constitution. This premise is supported by remarks of Lamer

C.J.C. in his concurring judgment in Cooper, where he decried incursion of

administrative tribunals into the constitutional field which he viewed as

properly lying within the judiciary’s exclusive preserve. Indeed, as the first

paragraph of his judgment in Cooper records, Lamer C.J.C. went as far as

to express the hope that “a full bench of this Court will eventually have the

opportunity to revisit the proposition”. The “proposition” to which Lamer

C.J.C. refers is the holding of the Supreme Court of Canada in Cooper and

other authorities that administrative bodies empowered to apply any law

necessary to reach its findings, including general legislation, likewise had

jurisdiction to apply the Charter.

[224] Actually, Lamer C.J.C.’s judgment in Cooper was not directed to the

general subject of curial deference to arbitral constitutional rulings, which

this appeal engages. As preceding para. 138 records, the issue in Cooper

was whether an administrative tribunal had jurisdiction to question the

constitutional validity of a provision of its enabling statute. Thus, Lamer

C.J.C.’s words, as were those of McLachlin J. in her dissent in that same

case, were really directed to that issue. While Lamer C.J.C. sided with the

result of La Forest J.’s judgment in Cooper, and associated with the holding

that those tribunals lacked jurisdiction to pass upon their own enabling

powers, he took the occasion to strongly question whether such bodies

should be empowered to make constitutional findings at all. In so doing, he

advocated the Court revisit its stance to the contrary in Chuddy Chicks,

Douglas College and Weber, as well as other authorities in similar vein,

including Tétreault-Gadoury v. Canada (E.I.C.), [1991] 2 S.C.R. 22.

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[225] Lamer C.J.C.’s reasoning in that regard has been the subject of academic

commentaries. Amongst them are: J. McMillan, “Tribunals and the

Charter: The Search for Implied Jurisdiction - A Case Comment on

Cooper v. Canada (Human Rights Commission)”, (1998) 32 U.B.C. L.

Rev. 365; M.C. Crane, “Administrative Tribunals, Charter Challenges,

and the Web of Institutional Relationships”, (1998) 61 Sask. L. Rev. 495;

and K. Tabbakh, “The Standard of Review of Grievance Arbitrators

When Deciding on Human Rights Issues: The “Magnificent Goal” v.

Industrial Peace”, (1998) 43 McGill L.J. 261. Detailed treatment of those

articles lies outside this discussion’s purview. In para. 62 of Ms. Crane’s

article, she notes that Lamer C.J.C.’s claim in Cooper for judicial monopoly

over constitutional interpretation and applications provides “fodder” for

extensive analysis. This is so in the present context as well, where his thesis

of usurpation of the judiciary’s preserve is being assessed as extendable

argument for application of the correctness standard on judicial review of

arbitral constitutional findings.

[226] In so assessing the extendability of that argument, it should be recognized

the former Chief Justice’s viewpoint of usurpation of judicial monopoly was

a dissenting one, notwithstanding its expression in a judgment siding with

the majority result in Cooper. Thus, just as McLachlin’s “holy grail”

passage reproduced in preceding para. 215 will be evaluated presently in

assessment of the logic of curial deference being accorded on judicial

review to arbitral Charter findings, so too the usurpation viewpoint of

Lamer C.J.C., also expressed in Cooper, will be similarly enlisted. Given

that both offerings were voiced as dissenting opinions, this judgment is free

to bask in the latitude normally enjoyed by academia of either adopting one

opinion or the other, or rejecting both of them, insofar as their respective

impact on this discussion on curial deference and appropriate standard of

review is concerned.

[227] Moreover, insofar as Lamer C.J.C.’s argument for judicial monopoly over

constitutional findings is extendable to the appropriate standard of judicial

review of Charter findings of labour arbitration boards, this judgment

contents itself by and large with endorsing the commentaries proffered in

the three articles highlighted in preceding para. 225 on the position taken by

the former Chief Justice. There are, however, several observations that need

be made regarding the unextendability of that argument as support for the

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premise that no curial deference should be accorded to arbitral

constitutional findings.

[228] The argument for judicial monopoly is erected upon perceived disruption of

relationships between the three branches of government, established under

the Separation of Powers Doctrine, as it operates within the democratic

Parliamentary System of government, which Doctrine and System Lamer

C.J.C. describes as “defining features of the Canadian Constitution” (see

paras. 10 and 22 of Cooper). Affirming no intent to detract “from the

general duty to interpret statutes in light of Charter values” (para. 21), he

nonetheless saw the authority conferred on administrative tribunals to

declare law of no force and effect under s. 52 of the Constitution Act as

reason to “strongly urge my colleagues to revisit those decisions in order to

ensure the Charter does not distort the deep structure of the Canadian

Constitution” (para. 29). As already underscored, the Doctrine and the

System, the two “defining features” to which he adverted, were embedded

in the Constitution as integral underpinnings of that “deep structure”.

[229] In relating Lamer C.J.C.’s statement in Cooper to the circumstances at bar,

it is difficult to see how such a distortion would be perpetrated by observing

curial deference with respect to constitutional interpretations of labour

arbitrators, and to consequential applications by them of s. 52 of the

Constitution Act. After all, if the authorities affirm, as they do, that

judicial review of general legislative rulings by administrative bodies,

including labour arbitration boards, can be undertaken on the standard of

patent unreasonableness without being violative of the Separation of Powers

Doctrine and the Parliamentary System embedded in the Constitution, it

would appear to follow logically that the same standard should apply to

judicial review of legislative interpretations of Charter compliance by such

boards without infringing the Constitution, or either of the highlighted

defining features embedded in it, unless there be something peculiar to the

Charter precluding the analogy.

[230] Moreover, continuing to speak in the terms of labour arbitration boards with

which this appeal is concerned, but not necessarily foreclosing extension of

the discussion to other administrative bodies, it is difficult to comprehend

how the relationships between the three branches of government within the

Parliamentary System, would be disturbed if applications of s. 52 by labour

arbitrators to legislation affecting disputes were reviewable on the

deferential standard of patent unreasonableness. In the first place, findings

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of such arbitrators in that regard are discrete. They do not constitute general

declarations of invalidity of legislation. In exercise of their recognized

“specialized competence ... in constitutional interpretation”, which

preceding para. 220 records the Supreme Court of Canada to have

acknowledged through La Forest J.’s judgment in Cooper, they merely

declare the legislative provisions in question (in this case s. 9 of the Public

Sector Restraint Act) to be of no effect in the particular disputes arising

out of the collective agreements before the arbitrators. As is the case with

the argument of lack of expertise, it is difficult to see how extension of

curial deference to such arbitral decisions would any more run afoul of

Constitutional precepts than would other legislative applications, unless

there is something peculiar to Charter rulings making the analogy inapt.

[231] In addressing this question of the usurpation argument’s extendability to the

judicial review standard now under discussion, it is important to bear in

mind that it is not always possible to distinguish functionally with precision

between the powers of the three branches of government. In the context of

the present discussion it is also important to underscore that the tenets of the

Separation of Powers doctrine do not confer a monopoly upon the judiciary

to interpret and apply the law. These points are made in the following

extract from the text of the eminent British constitutional scholar, Sir W.

Ivor Jennings, entitled “The Law and the Constitution”, 4^thed.,

(University of London Press, 1952) in commenting upon the operation of

the Separation of Powers Doctrine within the Parliamentary System of

government. That text reads thusly at pp. 24-25:

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There are characteristics of various classes of functions which make it

desirable that they should, for instance, be exercised by independent

judges; but there is no single characteristic or group of characteristics

which enables the legislature to determine out of hand that a

particular function should be assigned to judges, or, in other words,

which distinguish “judicial” classes of functions .... It is necessary to

have at least three classes of authorities, but they are distinguished

rather by their composition or their methods than by characteristics of

their functions.

[232] It is not to be suggested that Lamer C.J.C.’s judgment in Cooper failed to

recognize that the powers of the respective branches of government are not

able to be pigeon-holed neatly on functional bases. At the outset of his

discussion of the Doctrine in his judgment in Cooper, at para. 10, he wrote:

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“the separation of powers under the Canadian Constitution is not strict in

that judicial functions, including the interpretation of law, may be vested in

non-judicial bodies such as tribunals ...”. His thesis is rather that “non-

judicial bodies”, which would include labour arbitration tribunals, should

not be invested with the function of interpreting and applying constitutional

law, notwithstanding their “general duty to interpret statutes in light of

Charter values”.

[233] That thesis is constructed on a role seen to be assigned to the judiciary in the

Separation of Powers, as that Doctrine operates within a Parliamentary

System of government. This role is essentially a policing one in which the

judiciary is perceived as being called upon to protect its primary mission of

interpreting and applying the law from incursions by the legislative and

executive branches of government, which are portrayed as normally bent on

such ends for the purpose of aggrandizements of their own powers through

appropriations of those within the judiciary’s purview. This perception of

the judiciary as enforcer of the separation of powers, and protector of its

own judicial authority within its relationships with the two other branches

of government, clearly emerges from a passage in Lamer C.J.C.’s discussion

of the Separation of Powers Doctrine, and in his ensuing interpretation of an

observation from an eminent Canadian constitutional law scholar. It should

also be noted that this perception likewise clearly surfaces in the majority

judgment of the case addressing references respecting the impact of public

sector restraints upon Provincial Court judges in Prince Edward Island and

Manitoba, captioned as: Re Provincial Court Judges, [1997] 3 S.C.R. 3 to

which subsequent reference will be made in ensuing para. 347. The relevant

passage in Cooper is contained in para. 13 of that case which reads:

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The constitutional status of the judiciary, flowing as it does

from the separation of powers, requires that certain functions be

exclusively exercised by judicial bodies. Although the judiciary

certainly does not have an interpretative monopoly over questions of

law, in my opinion, it must have exclusive jurisdiction over

challenges to the validity of legislation under the Constitution of

Canada, and particularly the Charter. The reason is that only courts

have the requisite independence to be entrusted with the

constitutional scrutiny of legislation when that scrutiny leads a court

to declare invalid an enactment of the legislature. Mere Creatures of

the legislature, whose very existence can be terminated at the stroke

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of a legislative pen, whose members, while the tribunal is in

existence, usually serve at the pleasure of the government of the day,

and whose decisions in some circumstances are properly governed by

guidelines established by the executive branch of government, are not

suited to this task. ...

[234] The clear thrust of this argument for judicial monopoly over constitutional

challenges to the validity of legislation is that only the courts are invested

with the necessary independence to be “entrusted” with such commissions;

and, to ward off usurpation of the powers allotted to the judiciary through

the Separation of Powers Doctrine by misuse of the parliamentary

supremacy endemic in the Parliamentary System of government. That in a

nutshell is the kernel of the usurpation argument.

[235] Subsequently, in para. 16, the judgment finds reinforcement for its argument

by enlisting the following commentary from Professor Peter Hogg’s text

entitled Constitutional Law of Canada, 3^rded. (Toronto: Carswell, 1991)

at p. 168:

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The independence of the judge from the other branches of

government is especially significant because it provides an assurance

that the state will be subjected to the rule of law. If the state could

count on the courts to ratify all legislative and executive actions, even

if authorized by law, the individual would have no protection against

tyranny. (Emphasis added by Lamer C.J.C.)

[236] Certainly, no exception may be taken with the assertion, which was made

prior to the enlistment of the foregoing commentary from Professor Hogg’s

text, that a society governed by the rule of law requires a judicial system

which can assure its orders are enforced and its process respected. Nor may

the notion, earlier endorsed by Lamer C.J.C., be disabused that judicial

independence is essential to maintain the rule of law, and to assure the

integrity of the judicial system’s process remains unimpaired. The

Separation of Powers Doctrine supports these fundamental tenets. In so

doing, however, that Doctrine envisages no jurisdictional battleground in

which the judiciary is portrayed as the protector of its powers against

tyrannous misuse of legislative supremacy within the Parliamentary System

of government.

[237] Such a portrayal does not fit well the view that legislative bodies are

presumed to intend to act within their jurisdictional powers in enacting

legislation. This is the approach that has always been taken in judicial

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assessments of the constitutional validity of legislation in face of claims that

one order of government has intruded on the other’s prerogatives allotted

under division of powers in ss. 91 and 92 of the Constitution. It is likewise

the proper course to be taken in judicial assessments of legislative

compatibility with Charter values. It is similarly the approach in judicial

assessments of complaints of legislative incursions by the political branches

of government upon the judiciary’s role assigned to it under the Separation

of Powers Doctrine. That Doctrine should not be viewed as prescribing

rules of conduct in a jurisdictional conflict in which the judiciary is arrayed

as protector of its jurisdiction against the tyrannical elected branches, which

are seen as bent on trampling on the powers reserved to the courts, and on

denying individual liberties protected by the rule of law. This would be a

rather dismal view of that “defining feature of the Canadian Constitution”.

It is not one that is endorsed in the writings of constitutional scholars.

[238] The foregoing extract from Professor Hogg’s text reproduced in preceding

para. 235 does not reflect endorsation of that viewpoint. It is true the

passage speaks of judicial independence as essential protection against

individual tyranny. However, the statement should be taken as historical

reflection on the function of judicial independence within the Separation of

Powers Doctrine and, in that light, on its contemporary role as assurer of the

rule of law and protector of individual fundamental rights and liberties from

inadvertent incursions by executive and legislative actions. It is an

undeniable fact that the precept of judicial independence was honed as an

antidote to despotic incursions upon fundamental freedoms. It is equally

true that judicial independence evolved to play a vital role in the democratic

operation of the Parliamentary System of government. However, Professor

Hogg’s commentary does not appear to suggest advertence to the Separation

of Powers Doctrine should be approached in contemporary times on the

footing of the jurisdictional battlefield which is implicit in the usurpation

argument.

[239] The principles of that Doctrine, which include the judiciary’s independence,

combine to provide a vital, but delicate, balance of power within the state

which is accomplished by practical application of the Doctrine’s delineation

of the composition and functions of the three main branches of government.

While it is the judiciary’s duty to protect individual liberties, the courts

shoulder equal responsibility in so doing to be vigilant not to impinge

inadvertently upon the prerogatives of the other governmental branches,

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particularly through undue intrusions into their policy-making roles. The

mission of the judiciary within the context of the Separation of Powers

Doctrine, therefore, is to maintain the balance embedded in that “defining

feature of the Canadian Constitution” between the legislative, executive and

judicial branches of government. It is acknowledged that in acquitting this

task the courts will be frequently required to provide reasoned defences of

their own powers. However, with all due respect, depicting the courts as

guardians of the people against despotic exercise of arbitrary power, which

the usurpation argument advances, places out of proper focus the operation

of the Separation of Powers Doctrine within the Parliamentary System.

Besides, such portrayals would not appear to be especially conducive to

facilitating the integration of Charter values into applications of the general

body of law.

[240] For the foregoing reasons, this judgment does not side with the usurpation

argument’s case for judicial monopoly over constitutional challenges to

legislation. With due respect to its proponents, neither the Separation of

Powers Doctrine, not the Charter’s advent within the Parliamentary

System, justify the usurpation argument’s case for exclusive jurisdiction in

the courts over rulings on the constitutional validity of legislation. This

being so, it appears to follow as natural corollary, that that argument is not

extendable in justification of correctness as the standard of judicial review

of constitutional rulings by such administrative tribunals and, more

particularly in the context of this appeal, by labour arbitration boards.

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the importance argument:

[241] In light of rejection of the foregoing arguments, the logic of the case for

judicial monopoly over rulings upon constitutional challenges to the validity

of legislation and executive actions, or, concomitantly, for application of the

correctness standard on judicial review of such rulings by non-curial

tribunals if endowed with jurisdiction in the constitutional field, will have to

rest on the importance of those rulings.

[242] In broaching that argument, it must first be acknowledged that there is no

way to gainsay the importance of Charter rulings to contemporary society.

The Charter placed in the hands of individual citizens an effective means

of enforcing their basic rights and liberties, the recognition of the

fundamental values of which has long earmarked a distinction between

democratic and totalitarian states. As such, it can legitimately be said to

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have had a revolutionary impact on the Canadian federation by tempering

the parliamentary supremacy of the respective orders of government to the

extent that laws and actions can be declared inoperative because they

demonstrably violate guaranteed fundamental individual rights in a manner

unjustifiable in a free and democratic society.

[243] Prior to the Charter’s advent, the individual whose fundamental rights were

so affected by laws of general application or administrative actions under

them had no effective means of enforcing the basic rights that were being

trampled upon. His or her only recourse was to petition to Parliament or the

Legislature where even entreaties for relief that fell on sympathetic ears

would normally be subsumed by the countervailing social interests that

prompted the impugned measure or action in the first place. Within the

parameters set out in it, the Charter accords supremacy to individual rights

over societal interests, provided the paramountcy is justifiable in a free and

democratic society. It gives expression to the primacy of fundamental rights

guaranteed under it by enabling individuals to effectively enforce them

through the judicial process.

[244] As dramatic as that reform was, it needs to be borne in mind that the

Charter did not create the fundamental rights and freedoms it guarantees.

They are of a much more ancient lineage. Moreover, laws and

governmental actions were formulated and authorized in sensibility of the

values embodied in those rights and liberties entrenched in the Charter

long before its conception. It is, therefore, not to be supposed that its

framers could, or did, purport to have invented those fundamental rights and

liberties on the Charter’s proclamation. The new constitutional mechanism

for enforcing fundamental rights rather addressed individual impotence in

the face of encroachments upon them by providing a means of their

protection through the courts to the extent that their exercise in the specific

circumstances obtaining could be shown reasonable in a free and democratic

society.

[245] In strengthening the judiciary’s role as protector of those individual rights,

the Charter reflects recognition by the political branches of government

within the Canadian federation that, in balancing individual and societal

interests, the state’s laws and actions may inadvertently transgress

individual freedoms, in a manner not theretofore contemplated by the

governing authority, that is incompatible with the underlying tenets of a free

and democratic society. The strengthened role of the judiciary speaks to the

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reality that it is difficult to foresee all of the consequences in formulating

laws of general application, and to a policy of according paramountcy to

individual fundamental rights that were untenably breached in that process.

Thus, the protective role with which the courts were cloaked by the Charter

envisaged shielding individuals from unintended consequences of

unacceptable incursions on fundamental rights and liberties. It is through

that role that the guarantee of those rights and liberties was secured.

However, it is important to recognize the role is one of protection against

inadvertent incursions. It is not one of guardian against advertent

encroachments by unscrupulous governments bent on manipulations for

their own political machinations. Such a cynical portrayal of the court’s

role imports a wrong perspective to the Charter, and is hardly conducive to

recognition and acceptance of the beneficial reforms wrought by it.

[246] It should also be noted in passing that the concept of individual access to

courts to challenge the validity of laws is not novel. Laws of both orders of

government have been subject to individual challenge for want of vires

under either s. 91 or s. 92 since the inception of the Canadian federation. A

true perspective of the Charter is that it added another arrow to the quiver

of the individual’s arsenal broadening the scope of challenge to laws and

actions of the legislative and executive arms of government. This

observation in no way detracts from the importance of the Charter. The

greater protection it accords to basic fundamental rights and freedoms, and

its tempering of the powers of the political branches of government in its

redefining of long-established concepts of parliamentary supremacy, herald

reforms of no insignificant moment.

[247] That said, the present inquiry addresses whether the importance of the

Charter is such that rulings made under it should rest within the exclusive

purview of the courts; and, alternately if not, whether the correctness

standard should apply on judicial review of such rulings. As to the first

question, the words of McLachlin J. in Cooper, reproduced in preceding

para. 215, are quite apropos. Despite the undeniable importance of the

Charter, as she said in Cooper, it “is not some holy grail which only

judicial initiatives of the superior courts may touch”. Yet, hyperbolic

portrayals of the Charter that have sometimes seem to depict the Charter

as a latter day holy grail from which fundamental freedoms assured under

the supreme law of the land are handed down under the aegis of initiatives

of the judiciary.

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[248] In addressing this question of whether Charter rulings are of such

importance that the judiciary should have the monopoly to make them, it is

well to bear in mind that administrative bodies often address the values

embodied in fundamental rights when interpreting and applying legislation.

In the instance at bar, for example, apart from the constitutional question,

the Arbitration Board was called upon to decide whether government’s

obligation for the retroactive pay equity adjustments had been legislatively

extinguished. In so doing, it was dealing with a fundamental right of female

employees to be treated in a non-discriminatory manner. Having dealt with

that fundamental right in one context, it seems reasonable that the same

tribunal should be entitled to treat them in another. As important as

Charter rights indisputably are, they have no mystical attributes. Their

underlying values are well appreciated by most. This is why they are styled

as fundamental. The members of administrative bodies seem just as capable

of appreciating the values expressed in them as they are the often more

technical and complex concepts of ordinary legislation which are within

their well-settled powers to interpret and apply.

[249] Accordingly, notwithstanding the importance of Charter rulings, there is

sound reason to support administrative bodies being empowered to address

Charter issues in disposing of matters within their jurisdictional limits.

There is, as has already been noted, ample authority for such empowerment

in Chuddy Chicks, Douglas College, Weber and Tétreault-Gadoury.

[250] Having resolved that, on reason and authority, the judiciary has no

monopoly over Charter rulings, it would appear that the same reasoning

lends a sense of logic to judicial reviews of such rulings being conducted on

the patent unreasonableness standard which the authorities endorse as the

test of statutory interpretations by administrative tribunals. As important as

those rulings be, they too are statutory interpretations made by specialized

tribunals which are discrete in the sense and, as preceding para. 163 notes

Chuddy Chicks has held, do not extend to “formal declaration(s) of

invalidity”. However, as preceding para. 216 goes on to note, Douglas

College has unequivocally held that Charter rulings by arbitrators or

administrative tribunals should not receive curial deference on judicial

review. The rationale given for the holding is they “are not there acting

within the limits of their expertise”.

[251] With due respect, it is difficult to see how it can be said that the labour

Arbitration Board at bar, in making its constitutional ruling which the law

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empowered it to render, was not acting under the limits of its expertise. It

was, after all, applying the equality rights guaranteed under s. 15(1) of the

Charter to a dispute arising out of a collective agreement, to whose

jurisdiction the law entrusts such disputes because its specialized

knowledge made it best suited to resolve issues arising from that agreement.

Apart from the importance of Charter rulings, it is difficult to see why such

rulings should be subject to a different test on judicial review than are other

statutory rulings. Indeed, it is submitted that a reading of Douglas College

suggests that the real reason for dismissing curial deference to Charter

rulings by non-curial tribunals, and consequential application of the

correctness test on judicial review, is actually their importance. Even on

that argument, however, this judgment submits there is no reason not to

apply the same test of patent unreasonableness under which judicial review

of other statutory rulings are conducted.

[252] Be that as it may, it also must obviously be recognized that all the opinion to

the contrary from this quarter is to no avail in face of definitive ruling from

the Supreme Court of Canada that the correctness test, and not curial

deference, must be applied in reviewing Charter rulings by labour

arbitration boards. Apart from the innate satisfaction that constructive

critical analysis provides, the utility of the foregoing discussion addressing

arguments in favour of the correctness standard is academic. Courts are

bound to apply the correctness standard in broaching Charter rulings of an

arbitration board at bar. Thus, correctness is the standard against which the

judge’s endorsation of the Charter ruling by the Arbitration Board that a

breach of s. 15(1) had been perpetrated by s. 9 of the restraint legislation

will be addressed. It has to be underscored, however, that in light of the

RJR-MacDonald case which will next be discussed, the direction to apply

that standard to Charter rulings must be taken to apply to the breach stage

of constitutional analyses, inasmuch as that authority instructs that

deference be observed at the justification stage under s. 1 of the Charter.

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the RJR-MacDonald case:

[253] To briefly recapitulate, as preceding para. 181 points out, the primary

objective of this discussion on the appropriate judicial review standard of

arbitral constitutional validity decisions has been to canvass whether the

constitutional disposition of the Board at bar is reviewable on the

correctness or patently unreasonable standard. In the course of that

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discussion, it was explained that the standard for review of arbitral

applications of ordinary legislation is the deferential patently unreasonable

one. That standard will be applied when this decision comes to pass upon

the judge’s ruling vis à vis the Board’s interpretation of s. 9 of the Public

Sector Restraint Act. The next issue to be broached under the format for

treatment of the issues in this appeal as set out in preceding para. 108,

however, is whether s. 9 infringes s. 15 of the Charter.

[254] For reasons developed in the preceding discussion, the Arbitration Board’s

holding that the restraint legislation breached s. 15(1) of the Charter was

reviewable by the judge on the stringent standard of correctness, and not the

more deferential one of patent unreasonableness. As explained, there is a

real logic to applying the latter standard in judicial reviews of arbitral

findings of Charter violations. Despite the preceding expressed

reservations, however, binding authority requires this Court must

accordingly approach assessment of the validity of the complaint that the

judge erred in finding that s. 9 of the Public Sector Restraint Act infringed

s. 15(1) of the Charter from the standpoint of whether that holding is

sustainable on the more stringent standard of correctness.

[255] The approach to the complaint directed to the holding that the Arbitration

Board erred in concluding the s. 15(1) breach was unjustifiable under s. 1 of

the Charter is more complex, however. The judgments filed by the justices

in RJR-MacDonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199, provide

helpful insight into the standard by which justification analyses under s. 1

should be conducted and assessed, whilst elaborating upon the role played

by the established criteria of Oakes to that end. Indeed, RJR-MacDonald

is an important adjunct to Oakes. The light which RJR-MacDonald sheds

on the standard of review of the s. 1 justification which will have to be

addressed in this appeal requires some detailed comment.

[256] RJR-MacDonald addressed the constitutional validity of federal legislation

banning all advertising of tobacco products, and requiring health warnings

to be printed on all packages containing the product. The legislative

initiative had been challenged both on the ground of Parliament’s power to

enact it and its compatibility with the Charter. Having rejected contention

that the legislation was ultra vires Parliament, the Court divided on the

second constitutional issue questioning whether the measure passed

Charter muster. All nine justices agreed the ban constituted an

infringement of the appellate tobacco manufacturers’ rights to freedom of

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expression guaranteed under s. 2(b) of the Charter. A majority of them

also agreed the requirement to place the health warnings on the packages

likewise infringed that freedom. However, the Court narrowly divided on

the s. 1 analysis. Five held the impugned sections of the legislation were

not demonstrably justifiable limits on that constitutionally protected

freedom, whilst the remaining four maintained they were.

[257] A detailed account of the reasons for the s. 1 division would constitute an

unnecessary digression from the course of this judgment inasmuch as those

reasons advert to analyses of the conformity of specific legislation under

scrutiny in that case with the Oakes criteria for s. 1 applications. However,

the lead majority and the minority judgments, authored by McLachlin and

LaForest JJ. respectively, provide particularly germane commentary

regarding the standard applicable in s. 1 analyses.

[258] The discussion in RJR-MacDonald of the applicable standard of judicial

review for such analyses stemmed from inquiry into the burden of proof for

justification under s. 1 of Charter breaches. As Mr. Justice LaForest

explained at para. 61 of his judgment, the issue of the burden of proof

shouldered by the party seeking to justify a Charter violation under s. 1

arose in RJR-MacDonald from the finding at trial that the civil balance of

probabilities which the burden imports “must be applied rigorously and the

evidence must be cogent and persuasive ...”. Holding this view incorrect,

LaForest J. went on in para. 62 to affirm:

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The appropriate “test” to be applied in a s. 1 analysis is that found in

s. 1 itself, which makes it clear that the court’s role in applying that

provision is to determine whether an infringement is reasonable and

can be demonstrably justified in a “free and democratic society”. In

Oakes, this Court established a set of principles, or guidelines,

intended to serve as a framework for making this determination.

However, these guidelines should not be interpreted as a substitute

for s. 1 itself. It is implicit in the wording of s. 1 that the courts must,

in every application of that provision, strike a delicate balance

between individual rights and community needs. Such a balance

cannot be achieved in the abstract, with reference solely to a

formalistic “test” uniformly applicable in all circumstances. The s. 1

inquiry is an unavoidably normative inquiry, requiring the courts to

take into account both the nature of the infringed right and the

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specific values and principles upon which the state seeks to justify the

infringement.

[259] Immediately before the foregoing commentary, LaForest J. had indicated the

words in that passage had been prompted by the need to dispel “a

misconception of this Court’s jurisprudence” held “by some commentators,

that the proportionality requirements established in Oakes are synonymous

with, or even superceded, the requirements set forth in s. 1". Immediately

after it, LaForest J. went on at para. 63 to stress that “the Oakes

requirements must be applied flexibly” inasmuch as the “word ‘reasonable’

in s. 1 necessarily imports flexibility”. In this regard, he underscored the

significance of Dickson C.J.C.’s warning in Oakes “against an overly

formalistic approach to s. 1 justification” by stating at p. 139 of Oakes that

“although the nature of the proportionality test will vary depending on the

circumstances, in each case the courts will be required to balance the

interests of society with those of individuals and groups”. LaForest J. then

continues in this vein by noting that Dickson C.J.C. “reaffirmed this

warning” to avoid rigid and inflexible standards in R. v. Edwards Books

and Art Ltd., [1986] 2 S.C.R. 713 at pp. 768-69, and in R. v. Keegstra,

[1990] 3 S.C.R. 697 at p. 735.

[260] Although Mr. Justice LaForest’s judgment in RJR-MacDonald was written

in dissent, his views on the approach and applicable standard of judicial

review in conducting s. 1 justification analyses attracted support beyond that

of his colleagues who concurred in the dissent. While the more widespread

support was not without reservation, it did extend to LaForest J.’s

observation that “(t)he appropriate ‘test’ ... in a s. 1 analysis is that found in

s. 1 itself” (see preceding para. 258), and his emphasis on avoidance of rigid

and inflexible standards in approaching s. 1 analyses.

[261] This added support is expressed in the lead majority judgment of McLachlin

J. in RJR-MacDonald, and inferentially by other justices in their

concurrences with her disposition in that case. Thus, at the end of para. 126

of her judgment, after signifying at its outset agreement with LaForest J.’s

observation that the appropriate test lies within s. 1 itself, McLachlin J.

wrote:

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While sharing LaForest J.’s view that an overtechnical approach to s.

1 is to be eschewed, I find no conflict between the words of s. 1 and

the jurisprudence founded upon R. v. Oakes. ... The latter

complements the former.

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[262] The reservation in the foregoing passage with Mr. Justice LaForest’s

approach is with respect to the existence of any conflict between the

principles, or guidelines, set in Oakes as the criteria for determining if the

test of “reasonable” justification under s. 1 had been met. As the extract

from his judgment reproduced in preceding para. 258 recounts, LaForest J.

affirmed that the Oakes criteria should not be construed “as a substitute” for

the “specific values and principles” which are to be “found in s. 1 itself”.

There, he goes on to add, the standard lies in the word “reasonable”, and the

flexibility that that notion imports in determining whether a Charter breach

“can be demonstrably justified in a free and democratic society”.

McLachlin J. takes issue with any impression that the established Oakes’

criteria substitutes for the values expressed in s. 1, holding those guidelines

complement them. That, then, constitutes her reservation respecting her

colleague’s approach.

[263] McLachlin J. then conducts a discussion of the consistency of the Oakes

criteria with s. 1. In the course of this phase of her judgment, while

agreeing in para. 132 of RJR-MacDonald with LaForest J.’s point that

“the Oakes test must be applied flexibly, having regard to the factual and

social context of each case”, she goes on to observe in para. 134:

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... nothing in the jurisprudence suggests that the contextual approach

reduces the obligation on the state to meet the burden of

demonstrating that the limitation on rights imposed by the law is

reasonable and justified. Context is essential in determining

legislative objective and proportionality, but it cannot be carried to

the extreme of treating the challenged law as a unique socio-

economic phenomenon of which Parliament is deemed the best judge.

This would be to undercut the obligation on Parliament to justify

limitations which it places on Charter rights and would be to

substitute ad hoc judicial discretion for the reasoned demonstration

contemplated by the Charter.

[264] This canvassing of the role of context turned McLachlin J.’s focus on the

degree of deference which the courts should accord in s. 1 analyses. In the

course of this part of her judgment she cautioned against both the flexible

approach in s. 1 applications, as well as the valid advertence to context,

causing judicial deference to be extended to the “point of accepting

Parliament’s view simply on the basis that the problem is serious and the

solution difficult”. To follow such a course, she warns in para. 136:

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... would be to diminish the role of the courts in the constitutional

process and to weaken the structure of rights upon which our

constitution and our nation is founded.

[265] Interestingly, the tenor of the comments quoted in the preceding paragraph

places a higher significance on the proportionality requirements than upon

the importance of the infringing measure’s objective, being the two broad

areas of inquiry for s. 1 scrutiny by Oakes. Thus, the importance of

objective is downplayed by the assertion that deference should not be

accorded simply because “the problem is serious and the solution difficult”.

The paramountcy of the three aspects of proportionality can be seen

elsewhere in the discussion as well. As such, this feature of the lead

majority judgment in RJR-MacDonald imports a significant nuance to the

Oakes’ test.

[266] Perhaps of more immediate relevance to the present discussion of the

standard of judicial review of s. 1 analyses, however, is the manner of the

endorsation of deference in McLachlin J.’s judgment. This comes in her

summation of her discussion of the degree of deference to be accorded in s.

1 analyses. Thus in para. 138 she sums up as follows:

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... while I agree with La Forest J. that context, deference and a

flexible and realistic standard of proof are essential aspects of the s. 1

analysis, these concepts should be used as they have been used by this

Court in previous cases. They must not be attenuated to the point that

they relieve the state of the burden the Charter imposes of

demonstrating that the limits imposed on our constitutional rights and

freedoms are reasonable and justifiable in a free and democratic

society.

[267] It needs be underscored that the deference in s. 1 analyses being spoken of

in the foregoing excerpt, and by the Court generally in its commentary on

that topic in RJR-MacDonald, focuses on deference to Parliament, and not

to the assessment at first instance of whether reasonable justification had

been established. In that excerpt from her judgment, McLachlin J. is

warning against pressing parliamentary deference to the extent of undue

presumption that the legislative and executive branches would not have

limited “constitutional rights and freedoms” with measures not “reasonable

and justifiable in a free and democratic society”. She concludes this phase

of her judgment with comment on the degree of deference which appellate

courts should accord to findings at first instance in analysing s. 1

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justifications. At that juncture, she writes in para. 140, “(a)s a general rule,

courts of appeal decline to interfere with findings of fact by a trial judge

unless they are unsupported by the evidence or based on clear error”. In

other words, judicial deference is accorded on appellate review of s. 1

analyses such as that required to be observed by appellate courts to factual

findings at trial. She goes on to observe that the degree of deference may be

greater with respect “to findings based on evidence of a purely factual

nature” than “where the trial judge has considered social science and other

policy oriented evidence” (see para. 141).

[268] It is possible, therefore, to draw instruction from RJR-MacDonald

regarding the standard of judicial review guiding s. 1 inquiries into whether

Charter breaches are justifiable. In contrast with the infringement itself

which is reviewable on a standard of correctness, justification findings must

be addressed on a deferential standard. Thus, a deferential and flexible

approach in light of the full contextual setting of the violative measure must

be accorded to the legislative initiative or executive action that spawned the

violation. This approach seeps through subsequent appellate proceedings

addressing the sustainability of s. 1 determinations. As the two preceding

paragraphs note, the majority in RJR-MacDonald instructs that analyses of

justifications of Charter infringements, and the sustainability of the

conclusions of such analyses, are to be conducted on a deferential standard.

The majority goes on to direct that the degree of deference fluctuates,

however, depending upon whether the s. 1 analytical conclusions rest on

“evidence of a purely factual nature”, or on considerations of “social science

and other policy oriented evidence”.

[269] In the result, the standard of judicial review applicable to s. 1 analyses

extractable from RJR-MacDonald is one of deference, the degree of which

may fluctuate depending on the nature of the evidence produced in proof of

reasonable demonstrable justification.

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dual and hybrid standards:

[270] The first step in addressing challenges to the constitutional validity and

meaning of legislation such as this appeal involves was to settle on the

standard of judicial review. Reflective of the overall complexity of this

case, that inquiry admits to no quick answer insofar as the standard of the

legislation’s constitutional validity is concerned. In contrast, a more ready

appreciation of the legislation’s statutory interpretation standard is

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discernible from the authorities. Those authorities were discussed in

preceding paras. 181 to 213 as a prelude to ensuing treatment of the more

difficult question of the standard of review that the judge was bound to

apply to the Arbitration Board’s constitutional findings vis à vis the Public

Sector Restraint Act. Accordingly, when this judgment takes up the

challenge to the Board’s statutory interpretation of s. 9 of that Act, on the

basis of the combined authority of the five cases discussed in preceding

paras. 181 to 213, it will do so on the footing that the judge’s review of the

meaning ascribed to that statutory provision was required to be conducted

on the patently unreasonable standard.

[271] In contrast, when assessing whether the judge’s upholding of the Board’s

ruling that s. 9 of the restraint legislation breached equality rights

guaranteed under s. 15(1) of the Charter was sustainable, the standard of

correctness will be applied. Despite arguments advanced in preceding

paras. 214 to 252 that the same deferential standard of patent

unreasonableness applicable to review of other statutory rulings should

apply to rulings on infringements of Charter rights, it is recognized that the

impugned upholding of the Board’s finding that a violation had been

perpetrated by s. 9 of the restraint legislation must be assessed on the

correctness standard. Thus, there are dual standards of the deference of

patent unreasonableness and correctness engaged by the two issues that

directly focus on the import of the restraint legislation.

[272] As preceding paras. 253 to 269 go on to explain, the standard for

conducting and reviewing s. 1 analyses is more complex. Judicial review

must proceed on the footing that “context, deference and a flexible and

realistic standard of proof are essential aspects of the s. 1 analysis”. Yet, the

majority in RJR-MacDonald has admonished that deference is not to be

stretched to the point that infringements are to be rubber stamped as

justifiable, thereby relieving the state of its burden of demonstrating its

incursion is reasonable and justifiable in a free and democratic society.

Moreover, appellate courts should defer to findings of fact at first instance

unless “they are unsupported by the evidence or based on clear error”. Yet,

the degree of appellate deference may be less “where the trial judge has

considered social science and other policy oriented evidence”.

[273] As will be apparent from the foregoing précis, directions regarding the

degree of deference in s. 1 analyses do not crystalize in absolute norm. In

fact, a hybrid standard for s. 1 analyses emerges from those directions.

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Although deference and flexibility are held up as essential, strains of

correctness are also detectable in the admonitions not to go too far in

endorsing legislative infringements of guaranteed Charter rights, and in

intervening in findings at first instance resting on policy considerations. As

a result, in the final analysis, it is more difficult to distill from the

jurisprudence a coherent standard of review for s. 1 analyses, than it is in the

fixed standards prescribed for reviews of statutory interpretations and

Charter findings of violations of entrenched rights.

[274] In the ensuing inquiry into the sustainability of the judge’s holding of error

in treating the infringement perpetrated by s. 9 of the restraint legislation as

unjustifiable under s. 1 of the Charter, this judgment will proceed on the

footing that the deference and flexibility that the judge was required to

accord to the limit imposed by the restraint legislation on the

constitutionally protected rights to pay equity conferred under the collective

agreements was that which would give sway to the limitation if determined

to be a reasonable limit demonstrably justifiable in free and democratic

society. This approach complies with the instruction, unanimously

endorsed in RJR-MacDonald to find the standard for s. 1 justification

analyses in the wording of s. 1 itself. That provision subjects the

enforceability of measures infringing the Charter to “such reasonable

limits prescribed by law as can be demonstrably justified in a free and

democratic society”. The two italicized words are key to an appreciation of

the deferential standard of the justification of s. 1 analyses. The first

imports notions of logic, pragmatism and common sense to the enjoyment of

individual constitutional rights within the society to which the person

belongs. The second signifies the justifiability must be axiomatic, self-

evident and reasonable in the contextual setting of that individual within the

community. In this light, the standard of justification under s. 1 can be seen

as akin to the patently unreasonable standard of judicial review of decisions

by administrative tribunals; or, to inquiries into whether factual findings at

trial are reasonably borne out by the record before appellate courts. By the

same token, it is not the more rigorous correctness standard, which

preceding para. 258 notes LaForest J. rejected, that is imported in s. 1's

wording.

[275] It is significant, moreover, that no qualification of the justification appears

in s. 1 beyond the direction to demonstrable reasonableness. In this regard,

it is important to bear in mind that the justification invoked there is, in

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reality, essentially to policy choices behind limitations on Charter rights.

Furthermore, it will be appreciated that s. 1's conferral of this judicial power

over justification of policy choices was foreign, if not revolutionary, in a

society where the Separation of Powers Doctrine within a parliamentary

governmental system has historically been operative. Whilst tempering that

system by providing the means of individual court challenges to legislative

enactments, s. 1's standard of unqualified deferral in judicial passings on the

justifiability of policy reflects an intent to preserve the Doctrine intact by

assuring no element of correctness, the standard generally governing the

judiciary’s applications of law, creeps into justifications of policy choices

under it. In so rationalizing the judicial role in policy justifications, s. 1 can

be seen as striving to obviate misplaced assumptions by the judiciary of a

role of ultimate arbitrator of the propriety of public policy. The call by the

majority in RJR-MacDonald to lesser deference to policy oriented

evidence is recognized as casting a wrinkle on the foregoing construction of

s. 1 as importing full deference in analyses of Charter infringements

justifications. The majority’s position in that regard will receive further

mention when the s. 1 analysis at bar is engaged. Before arriving at that

juncture, however, the sustainability of the decision to uphold the

Arbitration Board’s finding that s. 9 of the restraint legislation breached s.

15(1) of the Charter must first be addressed.

÷

the violation of s. 15(1):

[276] To date everyone charged with decision-making responsibility in the dispute

at bar has agreed that s. 9 of the Public Sector Restraint Act infringes s.

15(1) Charter equality rights in its impact upon the Pay Equity Agreement

incorporated into the collective agreements. The three members of the

Arbitration Board were unanimous in that regard. As this judgment’s

account of the decisions by the Board’s members records, the nominees of

the parties agreed with the Chairperson’s conclusion, referenced in

preceding para. 27, that the restraint legislation violated s. 15(1) of the

Charter, and thereby unanimously endorsed the Chairperson’s viewpoint

that that statute “permits and extends discriminatory practices as between

males and females” in depriving affected female workers of the benefit of

comparative pay equity. As preceding paras. 74 and 75 record, the judge

agreed that there had been a violation of equality rights, whilst reasoning,

that having addressed “a discriminatory practice” in the Pay Equity

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Agreement, Government could not resile from its obligations in that regard

by reneging on payment of “the incremental pay adjustments for 1988-

1990" without visiting “an adverse economic impact upon a class of

employees which Government had recognized as the victims of systemic

gender discrimination”.

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the Ferrell case:

[277] Government’s attack on the prior rejections of its contention that the

restraint legislation perpetrated a violation of s. 15(1) equality rights is built

upon the trial and appellate dispositions of a case out of Ontario. It is

Ferrell v. Ontario (Attorney General) (1997), 149 D.L.R. (4^th) 335, (Ont.

Gen. Div.), aff’d (1998) 168 D.L.R. (4^th) 1 (Ont. C.A.). Ferrell addressed

allegations of breach of employment equality rights guaranteed under s. 15

of the Charter by repeal of an employment related statute which, as its

preamble stated, recognized that aboriginal people, disabled people,

members of racial minorities and women experienced higher rates of

unemployment in Ontario “caused in part by systemic and intentional

discrimination in employment”. That statute, as its title the “Employment

Equity Act, 1993” indicates, moved to repair that inequality by a series of

measures. It is unnecessary to detail them here. It is suffice to note, as did

Morden A.C.J.O., who authored the appellate disposition in Ferrell, at p. 6,

that “the chief target of the statute was systemic discrimination”. Two years

after passage of the statute, subsequent to a change of government in

Ontario, it was repealed by an enactment of the Ontario Legislature.

Members of the groups whom the repealed statute had been designed to

protect sought to have it declared unconstitutional and of no effect on the

grounds that it violated their s. 15 equality rights.

[278] In the trial of the Ferrell case, Dilks J., as p. 338 of the trial report records,

addressed two issues that are of immediate concern to the sustainability of

the impugned holding by the judge at bar that a violation of s. 15(1) had

been perpetrated by the restraint legislation. The first was whether a

positive duty exists under the equality rights guaranteed by the Charter “to

enact employment equity education” and, having done so, was there “a

corresponding duty to leave the same in place”. Secondly, and alternately,

absent any such positive duty, having enacted the employment equity

legislation, whether “the Government was bound to leave the legislation in

place”.

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[279] As to the first question, Dilks J. concluded at p. 342 that “the overwhelming

weight of authority negates the existence of any duty under the Charter to

legislate”. Earlier at p. 340, Dilks J. had stated:

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The application of the Charter must be confined to government

action as opposed to inaction. Given societal systematic

discrimination, such inequality is not the government’s creation; it is

a societal problem, one which the government may well address but

which it is under no obligation under the Charter to do so. As

Iacobucci J. stated in Symes v. Canada ... “we must take care to

distinguish between effects which are wholly caused, or are

contributed to, by an impugned provision, and those societal

circumstances which exist independently of such a provision.” In

Andrews McIntyre J. put in this way at p. 186 “to begin with

discrimination in s. 15(1) is limited to discrimination caused by the

application or operation of law ...”.

[280] Having decided there was no positive duty to legislate, Dilks J. also reached

a negative realization of the second issue. His reason, expressed at p. 343,

for holding Government was not bound to leave the legislation in place was

essentially because the repealing legislation had “no substantive effect” and

thus could not have been “in violation of the Charter”. He viewed the

Ontario Legislature as “simply” having “restored the situation which existed

prior to the enactment of the Employment Equity Act 1993". He then

supported that statement by reference to three Supreme Court cases on

which comment will presently be made, whilst noting:

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Indeed, counsel have been unable to refer me to a decision, at any

level, in which there was a successful challenge to the constitutional

validity of the repealing provisions of a statute.

[281] Morden A.C.J.O. traversed those issues of the constitutional duty to

legislate and of the obligation to keep in place legislation in addressing the

appeal from Dilks J.’s decision that no Charter violation had occurred as a

result of the repeal of the legislative commitment to implement employment

equity. As to the first issue, having concluded that any duty resting on

Government to address systemic discrimination relating to employment

equity had been acquitted through a Human Rights Code that remained on

Ontario’s statute books, Morden A.C.J.O. saw no need to draw a

determinative conclusion on whether s. 15(1) of the Charter “imposes a

positive duty on legislatures to enact legislation to combat systemic

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discrimination in employment”. Nevertheless, he then went on at p. 118 of

the appellate judgment in Ferrell to voice his “present view ... that no such

obligation is imposed”. He then proceeded to discuss relevant authorities

bearing on that opinion, the large preponderance of which supported his

viewpoint.

[282] Morden A.C.J.O. likewise supported Dilks J.’s position on the second issue

that there was no constitutional duty to keep the repealed legislation in

place. In reaching this conclusion Morden A.C.J.O. reasoned at p. 16:

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If there is no constitutional obligation to enact the 1993 Act in the

first place I think that it is implicit, as far as the requirements of the

constitution are concerned, that the legislature is free to return the

state of the statute book to what it was before the 1993 Act, without

being obligated to justify the repealing statute under s. 1 of the

Charter. If this is so, it cannot be said that there is any legislative

distinction involved as the first step in a s. 15(1) analysis. The effect

of the repeal is that there is, as was the case before the enactment of

the 1993 Act, no mandatory affirmative action operating in the area of

employment. This does not create or involve any distinction or any

issue of equal protection of the law - and the effect is not a

distinction. ...

[283] The upshot of the trial disposition in Ferrell, and its appellate affirmation,

was general agreement that there is no positive duty on Government to

address systemic discrimination in employment in the workplace; and, if

Government elects to legislate in that sphere, it is free to subsequently

repeal the initiative without the repealing measure being declared an

impermissible infringement of s. 15(1) equality rights. The rationale of the

immunity from successful Charter challenge is that the repeal creates no

distinction attributable to “government action” that denies the “equal

protection” and “equal benefit” assured under s. 15(1). Instead, Ferrell

reasons, the discrimination’s source is systemic, not originating from

“application or operation” of law. Hence, legislatures are “free to return”

society to its previous state, with the inequity being considered as a

“societal problem”, not being of “governments creation”. Thus, as the trial

decision puts it, the repealing legislation is of no constitutional “substantive

effect”, and is not open to “successful challenge of (its) constitutional

validity”. In short, Ferrell advances the proposition that relief from

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systemic discrimination given by a Legislature may be eliminated by that

same Legislature without constitutional violation of s. 15(1) of the Charter.

[284] Shortly, the validity of that proposition will be discussed. First, however,

mention will be made of the role played by Ferrell in the antecedent

proceedings, and the role which counsel for Government argues this Court

should ascribe to Ferrell in this appeal.

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prior advertence to Ferrell:

[285] Inasmuch as the three Arbitration Board decisions were delivered some

several months before the trial judgment was delivered in Ferrell, that case

played no part in the arbitration proceedings. As preceding para. 27 notes,

Government’s position that no violation of s. 15(1) of the Charter rested on

contention that the effect of s. 9 of the restraint legislation was merely to

substitute one process for another. The chairperson’s rejection of that

argument was based on the conclusion, which preceding para. 54 explains

was shared by the other Board members, that s. 9 violated s. 15(1) of the

Charter because it “disproportionately and adversely affected female

employees ... by depriving them of the benefit of pay equity in comparison

with employees in male-dominated job classifications ...”.

[286] The judge who heard the applications attacking the Board’s award did have

the benefit of the trial judgment in Ferrell. He did not, however, have the

benefit of the appellate disposition in that case which was not delivered

until after the judge handed down the appealed decision at bar.

[287] Shortly after adopting the remarks of the Board’s chairperson quoted in

preceding para. 74 that culminated in his observation that s. 9 of the

restraint legislation “does not seek to remedy inequality”, but rather “to

curtail and postpone” the agreed “equal pay for female employees”, the

judge mentioned that Government had enlisted the trial judgment in Ferrell

in support of its submission that no s. 15(1) Charter breach had been

perpetrated by s. 9's enactment. The judge went on to mention Government

had argued that s. 9:

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[53] ... is analogous to the repeal legislation considered in Ferrell,

that is, Section 9 essentially repealed the provision of the Collective

Agreement requiring the payment of pay equity adjustments for the

period prior to the date when the adjustments were determined.

[288] The judge, however, rejected the analogy, stating that s. 9 “did not purport

to repeal the Pay Equity Adjustment but to vary its implementation”. Thus,

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as already noted in preceding para. 75, he rejected the Government

submission of benign constitutional effect of s. 9, whilst affirming the

Charter breach as a result of s. 9's “adverse economic impact upon ...

victims of systemic gender discrimination”.

[289] Hence, advertence was had to the trial disposition in Ferrell, but its

application to the circumstances at bar was rejected on the ground that the

impugned legislation in this case did not repeal a governmental

commitment, but varied it.

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Government’s reliance on Ferrell:

[290] As has already been noted, counsel for Government placed heavy reliance

on Ferrell to support his position that the restraint legislation did not violate

s. 15(1) of the Charter. In so doing, this time having the benefit of the

appellate disposition in Ferrell, he holds up the extract from it, reproduced

in preceding para. 282, which he describes as the kernel of the Court of

Appeal disposition in Ferrell. He represents that passage, as well as the

entire reasoning at trial and appeal in that case, as persuasive authority and

logic for proceeding on the footing that if a Legislature is under no

constitutional obligation to pass legislation in the first place, it may exercise

its power of repeal without judicial intervention on constitutional grounds.

This really is the gist of Government’s position in its argument that s. 9 of

the Public Sector Restraint Act did not infringe s. 15(1) of the Charter.

[291] While the main part of Government’s argument on the Charter breach

centers on its power to rescind undertakings that it had no constitutional

obligation to make in the first place through enactment of repealing

legislation, its submission that no constitutional breach had been perpetrated

by the restraint statute was not entirely confined to that argument. Thus,

tacitly conceding that repealing legislation might in some instances violate

guaranteed Charter rights even when affecting governmental commitments

undertaken with no obligation to have done so, Government concedes in its

factum that the repealing statute “must not discriminate between those

persons or class of persons, the measures are designed to benefit”.

Expanding on this in oral submissions, Government’s counsel described the

legislative power of repeal as being complete as long as it was “across the

board” and does not discriminate.

[292] Counsel enlists Service Employees International, which has already been

discussed in preceding paras. 143 to 147 in connection with the

Page: 102

jurisdictional issue, as an example where constitutional infringement can be

perpetrated in legislative repeals of governmental obligations. As earlier

mentioned, that case involved consideration of legislative elimination of pay

equity adjustments previously extended to female employees in the public

sector of Ontario. The Legislature had done this through amending

legislation that repealed a prior statutory commitment which introduced a

comparative proxy method for determining compliance with pay equity.

That method’s elimination resulted in almost all of a union’s public sector

female workplaces being declared ineligible for pay equity. Only a small

portion of those workplaces continued to be eligible, whilst the others were

forced to bear the brunt of Government’s legislative action. In the result,

O’Leary J. in Service Employees International found the repeal of the

amending legislation in violation of s. 15(1) of the Charter because it

perpetrated a discrimination in that it did not apply fairly and equally to all

within the group.

[293] Drawing inverse analogy with Service Employees International, counsel

for Government argues there was no discrimination in the repealing

legislation at bar inasmuch as it applied fairly and equitable to all in

postponing implementation of the Pay Equity Agreement. Counsel placed

particular stress on O’Leary J.’s comments on p. 526 of that case where he

had indicated, if the Ontario Legislature had simply repealed pay equity,

rather than just amending the legislation and repealing the proxy

mechanism, then Ferrell would have been applicable in Service Employees

International. Insisting the effect of s. 9 of the restraint legislation at bar

was to impose “a blanket prohibition against retroactive payment” upon “all

recipients” targeted in the Pay Equity Agreement appended to the Collective

Agreements “for the same specified time”, Government’s position is that

“(n)o component of the class receiving the benefit was singled out to be

treated more or less favourably”. This being the case counsel for

Government reasons Ferrell, and not Service Employees International

applies, and the trial judge’s upholding of the Board’s Charter violation

finding was incorrect.

[294] It also should be noted that at one juncture in its submissions, Government’s

factum, to a degree seemingly inconsistent with its heavy reliance on

Ferrell, acknowledged the judge was correct in observing “that section 9 of

the Act did not repeal the Pay Equity Agreement, but rather varied its

implementation”. The excerpt from the judge’s reasoning reproduced in

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preceding para. 75 supports this reading of the judge’s view of s. 9's effect.

In also allowing the correctness of the judge’s statement that this had “an

adverse economic impact” on “the class of employees” subject to gender

discrimination, Government nonetheless maintains the judge erred in

concluding this impact “meant that section 9 violated the Charter”. Then

the factum asserts:

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The outright repeal, as opposed to postponement, of pay equity would

obviously have an adverse economic impact, but is constitutionally

permissible under the decisions in Ferrell, Dunmore and Service

Employees.

[295] Despite this momentary ambivalence regarding the effect of s. 9 of the

restraint legislation, it is clear nonetheless that Government is contending its

across the board three year deferment of its obligations under the Pay Equity

Agreement constituted a repeal of undertakings to address systemic gender

discriminations that it had no obligation to address in the first place. In

those circumstances, having blanket non-discriminatory effect, as was held

in the excerpt reproduced in preceding para. 282 to have been the impact of

the repealing legislation in Ferrell, Government argues that it is also “free

to return the state of the statute book to what it was before ... without being

obligated to justify the repealing statute under s. 1 of the Charter”. This is

the primary basis for its persistence in insisting that s. 9 of the Public

Sector Restraint Act perpetrated no violation of s. 15(1) of the Charter,

and that the judge was in error in holding otherwise.

[296] Government’s counsel enlists a policy consideration to further support the

claim of error in holding that no breach had been perpetrated. He suggests,

that when governments legislate to counteract systemic discriminatory

practices if they are not free to return to the situation existing prior to the

enactment, then they will be reluctant to enter the legislative field in the first

place. Counsel submits it would be ironic if the Charter’s underlying

purpose of fostering fuller realization of basic fundamental rights were to be

hampered or thwarted by judicial interventions that risk governmental

initiatives aimed at curbing systemic discriminations being held

unrepealable. He points out that the appellate disposition in Ferrell also

made reference to that same irony where, at p. 17, Morden A.C.J.O. made

mention of the “inhibiting effect” on such legislative initiatives if they:

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... once enacted, became frozen into provincial law and susceptible

only of augmentation and immune from curtailing amendment or

outright repeal without s. 1 justification.

[297] Therefore, Government’s persistence in maintaining a breach of s. 15(1) had

been committed by the restraint legislation’s curtailment of its obligations to

make pay equity payments during the period of the statutory restraints is

threefold. Firstly, following Ferrell, it claims freedom to restore the

situation which existed prior to it entry into the Pay Equity Agreement, or,

as latter put in Ferrell “to return to the state of the statute book ... without

being obligated to justify the repealing statute under s. 1 of the Charter”.

Secondly, while allowing that that general power of repeal without Charter

consequences could be compromised if the repealing measure fell unfairly

and inequitably on some, and thereby became a source of further inequality

as was the case in Service Employees International, Government contends

such was not the effect of the restraint measure at bar. Finally,

Government’s counsel raises the policy consideration canvassed in the

preceding paragraph as reason for legislative scope to modify or curtail

governmental obligations to make the pay equity payments in the period of

restraint without the amending or repealing legislation being susceptible to

review for want of compliance with equality rights guaranteed under s.

15(1) of the Charter.

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NAPE’s response:

[298] Counsel for NAPE opens her response to Government’s position by

portraying the impugned restraint legislation provision as having repealative

effect. It will be recalled, as the excerpt from his decision in preceding

para. 75 shows, that the judge at one point described the obvious effect of s.

9 as postponing “the achievement of pay equity”. Moreover, as just pointed

out in preceding paras. 294 and 295, Government’s counsel, drawing from

that passage, at one juncture of his argument spoke of s. 9 as not repealing

the Pay Equity Agreement “but rather varied its implementation”, although

this was a momentary vacillation from the main theme of his argument

which was based on the legislation having an across the board repealing

effect. The position of counsel for NAPE regarding s. 9's effect is

unambivalent, however. She maintains the monetary effect of s. 9 was not

just to postpone or vary the promise of pay equity, but was clearly to take

away forever the entitlement of affected employees to the pay equity

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adjustments, payable under the Pay Equity Agreement in the three fiscal

years of restraint.

[299] While classifying s. 9 as repealing governmental obligation to make three

years of pay equity adjustments, NAPE’s counsel nonetheless underscores

the repeal effected at bar is not analogous to the repeal legislation

considered in Ferrell to which, as preceding para. 287 notes, Government

likens it. Instead, NAPE submits, it is more akin to the repeal effected in

Services Employees International inasmuch as it, too, perpetrated it own

discrimination. The Union’s counsel describes that discrimination as

stemming from the problem recreated and reanimated by s. 9 of the Public

Sector Restraint Act in giving new life to a discriminatory wage practice

that had been remedied. Counsel dismisses the general immunity, which

she interprets Government’s argument constructed on Ferrell to essentially

suggest by observing that all statutes are subject to Charter scrutiny.

[300] There are two prongs to NAPE’s view of the discriminatory effect of the

repeal brought about through s. 9 of the restraint legislation. Firstly, its

counsel submits the repeal failed to take into account the effect it would

have on a group already disadvantaged economically because they are

women. Secondly, she points to the plight of employees who retired in the

interim between incorporation of the Pay Equity Agreement into their

respective collective agreements and s. 9's enactment. Those retiree’s

counsel stresses, ceased to work in the expectation that their pensions would

be adjusted when the financial consultants referred to in preceding para. 8

had arrived at the quantum of wage adjustment requisite to achieve the

promised pay equity. Some of these, she maintains, had even taken early

retirements on the understanding that their pensions would be adjusted. The

upshot to those retirees was reduced benefits comparable to their former

colleagues, and this was decried by NAPE’s counsel as both discriminatory

and a breach of faith.

[301] The primary gist of NAPE’s insistence that the judge was correct in

upholding the Arbitration Board’s holding that s. 9 of the restraint

legislation infringed s. 15(1) of the Charter, therefore, is based on its

discriminatory effect. Noting that Government’s contrary position

essentially rested on the contention that no breach could have been

perpetrated by legislative repeal of commitments conferring benefits such as

pay equity which it had no obligation to have enacted in the first place,

NAPE’s counsel at one point in her oral submissions indicated she took no

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exception generally with that assertion, nor with Ferrell’s endorsation of

that position. However, she maintains that is not the situation here where

repeal of the obligation to make pay equity adjustments during the three

year restraint period constituted discrimination based on sex in violation of

the equality rights guaranteed under s. 15(1) of the Charter. In sum, then,

NAPE’s quarrel is not with the general across-the-board power of

legislative repeal of governmental commitments, but with the discrimination

that it argues s. 9 perpetrated in the circumstances at bar.

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essence of the s. 15(1) ruling:

[302] The kernel of the judge’s reasoning for upholding the Arbitration Board’s

unanimous holding that s. 9 of the restraint legislation violated s. 15(1) of

the Charter is contained in the excerpts which appear in preceding paras.

74 and 75. As can be seen from them, the judge viewed s. 9 as visiting an

adverse impact upon employees whom Government “had recognized”

previously as victims of “systemic gender discrimination”. The judge’s

casting s. 9's effect as impacting upon Government’s recognition through

the Pay Equity Agreement of the need to address discrimination brought

about by the longstanding practice of underpaying women in the public

sector through the commitment to pay equity is significant. It signifies the

judge correctly construed the statutory effect of s. 9 as revoking

Government’s undertaking to make the disputed pay equity adjustments

which it had recognized in the Pay Equity Agreement as necessary to

address an important longstanding consequence of systemic gender

discrimination. From the judge’s perspective, then, the impugned

legislative measure was directed to revoking a right or privilege by

curtailing or postponing “entitlement to equal pay for female employees”.

[303] In essence, then, the judge’s s. 15(1) Charter ruling reflects an appreciation

that the repealing legislative measure restored gender discrimination in the

payment of women employed in the public sector. However, the language

of his reasoning clearly expresses his view that the revived sexism was not

systemic, and that that type of discrimination had been eliminated through

the Pay Equity Agreement. It was rather a new inequality created by

enactment of the restraint legislation. This is a very significant aspect of the

impugned decision as it underlies the judge’s rejection of the repeal at bar

being of benign constitutional effect, as was held to be the repeal in Ferrell,

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with which, as preceding paras. 287-288 recount, Government seeks to

analogize it.

[304] In treating s. 9's effect as the repealing of entitlement to pay equity during

the three year restraint period, the judge actually went right to the heart of

the s. 15(1) violation issue. It shows he viewed s. 9's operative effect as

revoking a benefit conferred by Government by executive commitment to

pay equity. While acknowledging the repeal impacted adversely upon

“recognized” victims of “systemic gender discrimination”, the judge was not

suggesting that that systemic inequity was restored. Instead, the legislative

revocation was seen by the judge as violating s. 15(1) of the Charter by

depriving employees in female dominated classes of that “equal protection

and equal benefit of the law without discrimination ... based ... on sex ...”

over the three year restraint period that had been promised to those

individuals through the Pay Equity Agreement. Although this resulted in

those employees being once more covered with a veil of gender

discrimination, purely from the legal perspective, it was perceived by the

judge to emanate “under the law”, and thus to have perpetrated a violation

of the affected employees’ equality rights guaranteed by s. 15(1).

[305] This perception of s. 9 of the Public Sector Restraint Act as perpetrating a

discrimination in contravention of s. 15(1) by repealing its commitment to

pay equity adjustments over the restraint period, rather than as restoring

“systemic” gender discrimination, lies at the essence of the judge’s s. 15(1)

infringement ruling. As stated in the adopted excerpt quoted in preceding

para. 74, “once government entered into the Pay Equity Agreement” it could

not repeal that commitment “without infringing s. 15(1)”. That statement

shows the ratio of the infringement ruling to be the judge’s view that

Government crossed the rubicon in entering the pay equity field in the

manner it did. Hence, its action in repealing its undertakings in that respect

during the restraint period could not merely be dismissed as restoring the

systemic gender discrimination which it had not been obliged to address in

the first place.

[306] The judge’s reasoning, then, indicates he viewed s. 9 of the restraint

legislation as creating its own impermissible inequality by repealing a

recognized pre-existing discriminatory distinction, and thereby perpetrating

a new inequality through its own statutory law. His rationale speaks to the

creation of impermissible inequality through Government action perpetrated

in s. 9's statutory repeal, and not to restoration of a situation where

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Government purportedly might absolve itself from constitutional

repercussion by relying on the immunity from obligation to take action in

the first place to repair a systemic gender discrimination.

[307] Discussion will now turn to analysis of the merits of the arguments directed

by both counsel to the judge’s upholding of the Arbitration Board’s finding

of s. 9's infringement of the affected employees’ constitutionally protected

equality rights. Before proceeding directly to the crux of that analysis,

however, it will be helpful to give contextual setting to it with some

preliminary observations that arise out of aspects of the preceding

discussion.

Page: 109

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preliminary commentary:

[308] There are five preliminary points that need be made before proceeding to

analyse the core of the s. 15(1) violation ruling.

[309] The first is to dispel any reservation concerning the repealative effect of s. 9

of the Public Sector Restraint Act insofar as this appeal’s issue of

entitlement to the retroactive pay equity adjustments is concerned. In

preceding paras. 294 and 295, it was noted that at one point in its factum

Government suggested s. 9 did not effect a repeal, but a variation of the Pay

Equity Agreement by postponing its commencement to the restraint period’s

expiry. It is true the judge did speak of postponing the achievement of pay

equity. Moreover, as preceding para. 179 has already noted, this entire

discussion of the constitutional issue assumes arguendo that that

postponement also extinguishes Government’s obligation to respond to its

undertakings to make pay equity adjustments retroactively on expiry of the

restraint periods. Subject, then, to that assumption being held sustainable in

the canvass of its statutory interpretation, it follows that, in its postponing of

the achievement of pay equity, s. 9 had a repealing effect insofar as this

appeal’s central issue of entitlement to retroactive pay equity adjustments is

concerned. On this point, then, agreement is voiced with the portrayal by

NAPE’s counsel of the restraint legislation as having repealative effect.

[310] Secondly, at one point in his decision the judge had observed that collective

agreements to which Government is a party are “law”, whilst citing Douglas

College at p. 585 as authority for that affirmation. It follows that the Pay

Equity Agreement, added to the collective agreements which are subject to

the proceedings at bar, had also to be viewed by him as “law”. In fact, the

judge specifically stated he was treating that Agreement as such. No

exception can be taken with that conclusion. Its significance in the present

context is that it lends reason to the impugned decision’s approach of

treating s. 9, as wiping out a power conferred by “law” thereby imposing a

disability visiting afresh gender discrimination, not by restoring the

eliminated systemic discrimination, but through application and operation of

the repealing law.

[311] The third point is that it is unnecessary for the purpose of disposition of the

challenge to the Charter infringement ruling to come to determinate

conclusion regarding the submission of NAPE’s counsel that s. 9 of the

restraint legislation visited discrimination on retirees who ceased to work in

the period between Government’s promise of pay equity and its enactment

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of the s. 9 repeal. It should be noted that, in rejoinder to NAPE’s position in

that respect, which is summarized in preceding para. 300, Government put

forth three rebuttals generally based on lack of evidence of female

retirements; the Pay Equity Agreement’s prescribed incremental

implementation; and any discrimination being a factor of entry into the work

force rather than s. 9's repealing effect. Beyond stating that neither NAPE’s

submission regarding the plight of that category of retirees as an upshot of s.

9, nor Government’s three rebuttals, could be dismissed as specious, but

each side scores serious points in them, there will be no need to pass on

their relative merits. This is because, as will presently be seen in the

analysis of the s. 15(1) violation issue, concentration will center on the first,

and more general discrimination posited by NAPE’s counsel, viz: the

repeal’s discriminatory effect on a group already disadvantaged because

they work within female dominated classes.

[312] The fourth preliminary observation is to note that the policy consideration,

canvassed in preceding para. 296, advanced to support Government’s

challenge of the judge’s upholding the arbitral Charter violation ruling,

will play no role in the analysis of that challenge. This is because, with all

due respect, this judgment sees no irony or “inhibiting effect” if repeals of

legislative initiatives aimed at curing intrusions into protected fundamental

rights and liberties are subject to constitutional muster. After all, the

framers of the Charter contemplated that laws infringing such basic

guaranteed rights and freedoms could be enacted, but might nonetheless be

enforceable if justifiable under s. 1. This is one of the cardinal

distinguishing marks between the Canadian and American constitutions. If

there remains any ground to apprehend inhibitions in passage from inaction

to governmental action as a result of the potential of such initiatives

becoming “frozen into provincial law” once enacted, then there is no irony

to it inasmuch as such an eventuality must have been in contemplation when

the Charter was proclaimed.

[313] Fifthly and finally, with respect to the nonexistence of positive duties on

governments to act to ensure citizens the full measure of their fundamental

rights guaranteed by the Charter, this judgment accepts the views to that

effect expressed in both the trial and appellate dispositions in Ferrell.

Hence, no exception is taken with the view expressed at first instance in

Ferrell, and already recounted in preceding para. 279, that extant authority

“negates the existence of any duty under the Charter to legislate”; and, as

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Dilks J. also put it, that Charter applications “must be confined to

government action as opposed to inaction”. Neither is issue taken with the

appellate commentary on the governmental positive duty issue which has

been summarized in preceding para. 281. Thus, agreement is voiced with

Morden A.C.J.O.’s opinion, that on “present view ... no such obligation is

imposed”.

[314] The central question for analysis, then, is the validity of the premise

articulated in the passage from Ferrell reproduced in preceding para. 282,

which asserts, assuming no constitutional obligation to enact, it is implicit

“that the legislature is free to return the state of the statute book to what it

was before”. Given that the commitment made in the subsisting Pay Equity

Agreement is “law”, as was the repealed legislation in Ferrell, inquiry in

this analysis of the infringement issue will center on whether the reasoning

in that case, which led to its conclusion that there was no constitutional

impediment to repealing the legislative commitment, is transposable to the

pay equity undertaking at bar.

[315] Hence, when all the underbrush, so to speak, is cleared away, the contextual

setting of the infringement arm of the constitutional issue more clearly

emerges. It exposes the turning question for analysis to be whether a repeal

of a governmental commitment to redress an inequality stemming from

systemic gender discrimination can be violative of s. 15(1) of the Charter.

That question will now be addressed.

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infringement question’s analysis:

[316] Government submits that that question should be resolved negatively. As

the foregoing discussion explains, built upon Ferrell’s trial and appellate

dispositions, Government’s attack on the judge’s upholding of the arbitral s.

15(1) violation finding rests on the premise that across-the-board repeals of

antecedent governmental commitments to redress systemic gender

discriminations wreak no discrimination through application or operation of

law, but merely restore societal systemic discrimination that Government

was not obliged to address in the first place. From that perspective,

following Ferrell, Government’s counsel stands on the legislative freedom

to return to the state prior to the commitment to pay equity without

constitutional repercussions. In that light, s. 9 of the Public Sector

Restraint Act is perceived as having no substantive effect beyond restoring

the pre-existing discrimination of systemic societal origin in respect of

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which there is no constitutional obligation on Government under s. 15(1) to

take remedial legislative action.

[317] As the preceding discussion also recounts, NAPE’s counsel challenges that

stance. She does not, as a general proposition, take issue with the

legislative power of Government to make blanket across-the-board repeals

of pay equity commitments without infringing s. 15(1) of the Charter.

However, she argues such repeals must not leave discriminatory effects in

their wakes. In the circumstances at bar, she maintains, the restraint

legislation’s repeal perpetrated a discrimination incompatible with the

Charter by the new life that it gave through s. 9 to an inequitable wage

practice that had been remedied by the Pay Equity Agreement. Hence, she

rejects the notion advanced in Ferrell that repealing provisions of statutes

have no substantive effect giving scope for constitutional challenges to

legislative repeals of prior commitments that Government had been under

no positive duty to make. Thus, whilst apparently agreeing with Ferrell’s

position that Governments are not bound to leave commitments remedying

systemic gender discriminations in place, she nonetheless clearly insists

they must do so with repeals that do not, in themselves, have discriminatory

effects. In the case at bar, she submits, s. 9 of the restraint legislation had a

discriminatory impact which breached s. 15(1) of the Charter.

[318] This judgment agrees that s. 9 had a substantive discriminatory effect, and

concurs with the judge’s conclusion that the Arbitration Board was correct

in its unanimous holding that s. 9 of the Public Sector Restraint Act

infringed equality rights guaranteed under s. 15(1) of the Charter.

However, that discrimination is not totally akin to that identified in Service

Employees International with which NAPE’s counsel aligns it. For

reasons given in preceding para. 311, some hesitancy is felt over equating

the positions of employees who may have retired in the period between the

promise and the repeal of pay equity at bar with those of the employees in

Service Employees International affected by the repeal of the comparative

proxy method for determining compliance with pay equity. As already

stated in those reasons, there is no need to canvass the discriminatory effect

which counsel for NAPE alleges was created for such retirees by s. 9.

[319] The discrimination grounding this concurrence with the judge’s ruling on

the s. 15(1) breach issue is rather the first of the two which preceding para.

300 recounts was mentioned by counsel for NAPE, viz: the discrimination

perpetrated on all the members of the female dominated classes who were

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deprived under s. 9 of three years of benefits secured under the Pay Equity

Agreement, and not just the interim retirees. In identifying the blanket

effect on all beneficiaries under the Agreement who had already been

economically disadvantaged because they are women as the s. 15(1)

Charter discrimination, it is recognized that this analysis comes face-to-

face with Government’s thesis that across-the-board repeals of measures

taken to redress systemic gender discriminations are not open to successful

challenge under s. 15(1) of the Charter. As already indicated, it is accepted

for the purpose of this analysis that s. 9 effected such a blanket repeal to all

promisees under the Pay Equity Agreement with respect to their

entitlements to pay equity over the three year period of statutory restraint.

However, this judgment respectfully takes issue with the notion, advanced

in both of Ferrell’s trial and appellate dispositions, and enlisted by

Government in this appeal in support of its submission of error in the

finding of the s. 15(1) Charter violation, that governments are not obliged

to keep in place measures taken to redress prejudicial distinctions so that an

across-the-board repeal of governmental commitments to remedy systemic

gender discriminations, such as the pay equity undertaking, has no

constitutional repercussion providing scope to contend that that repeal

perpetrated a violation of the Charter’s s. 15(1).

[320] The reason for rejecting that notion is essential agreement with the judge’s

adoption of the conclusion expressed in the passage reproduced in

preceding para. 74 that “once government entered into the Pay Equity

Agreement to address what it agreed was a discriminatory practice, it could

not, without infringing s. 15(1) revoke or make unlawful a right or privilege

that would affect or have an adverse impact on individuals of a particular

gender”. With due respect, it cannot be said, as the trial decision in Ferrell

did in the passage from it reproduced in preceding para. 279, that the

operative effect of the repeal brought about by s. 9 of the restraint

legislation was to revive “a societal problem” of systemic gender

discrimination. Neither may it be sustainably argued, by drawing analogy

with the passage from Ferrell’s appellate judgment, reproduced in

preceding para. 282, that no “distinction or any issue of equal protection of

law” is presented by the repeal of the obligation of pay equity during the

restraint period hiatus because the effect of the repeal is to cause “no

mandatory affirmative action operating in the area of” pay equity.

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[321] To the contrary, the very fact that “no mandatory, affirmative action” was

left operating by the s. 9's repealing effect on the Pay Equity Agreement lies

at the root of the reason a contravention of s. 15(1) equality rights was

perpetrated by s. 9 of the restraint legislation. At the time of the enactment

of that repealing provision, there was no “societal problem” of “systemic

gender discrimination” insofar as the female dominated classes within the

public sector covered by the Pay Equity Agreement were concerned. The

direct effect of the repeal in s. 9 was not to restore systemic discrimination.

That had been extinguished, so there was no systemic inequity upon which

s. 9 could operate. The repeal rather operated to extinguish the “equal

benefit of the law” created through Government’s pay equity commitment

for the three fiscal years of restraint extending from April 1, 1988, to March

31, 1991. In so doing it perpetrated its own gender discrimination “under

the law” in violation of s. 15(1) of the Charter. While it created

discrimination as a consequence of its abrogation of the pay equity benefits

for the three year restraint period, s. 9 neither revived nor restored the

systemic inequity that had been eliminated.

[322] The discrimination effected by the repeal, then, was the product of the

Government’s action. It could not be legitimately attributed to a “societal

problem” when its immediate cause was the legislative repeal’s nullification

of the commitment to pay equity over the three year period. Although under

no obligation to have redressed the problem in the first place, once it did so,

as the judge held, it was not open to Government to revoke its commitment

without violating s. 15(1). That commitment conferred a right on affected

employees to the pay equity adjustments, and a concomitant duty on

Government to provide them. The incorporation of that right into those

employees’ collective agreements invested their Union with power to

enforce that right through normal grievance procedures if Government

reneged in whole or in part on its commitment. Government did renege on

its promise by its revocation through s. 9's repeal of the right to pay equity

to which it had committed itself in the Pay Equity Agreement. As the judge

stated, this had “an adverse impact on individuals of a particular gender”.

That impact was felt by those employees in the female dominated classes of

the public service who were entitled to the salary adjustments under the

Agreement over the restraint period, but were denied them by s. 9 of the

restraint legislation. That denial, then, was the legislative repeal of the

commitment through the postponement of the pay equity adjustments, and

Page: 115

constituted the infringement of the affected employees’ equality rights

guaranteed under s. 15(1) of the Charter.

[323] On the basis of the foregoing analysis, therefore, this judgment rejects

Government’s contention that negative response should be given to the

question of the capacity of a repeal of a governmental commitment to

redress systemic gender discrimination to be violative of s. 15(1) of the

Charter. Government’s premise of insubstantive restorative effect of the

restraint legislation does not withstand analysis. While not siding with

NAPE counsel’s acceptance of neutral s. 15(1) Charter effects by blanket

across-the-board repeals, this judgment does agree with her contention that

the s. 9 repeal at bar had violative discriminatory effect, although not on

affected retirees, as such, but on all members of the affected female

dominated classes.

[324] Accordingly, the judge’s upholding of the Arbitration Board’s finding that

s. 9 of the Public Sector Restraint Act infringes s. 15(1) of the Charter

must be affirmed, unless there be some binding authority that would

constrain revisiting that conclusion. The presence of such an eventuality

will now be explored.

>

the impact of proffered authorities:

[325] Ferrell posits three cases in support of its premise that governments are not

bound to keep in place their actions aimed at eradicating prejudicial

discriminations, and that outright legislative repeals have no substantive

effect other than restoring the situations that existed prior to passage of the

repealed legislative measures. If those cases lend support to that

perspective of legislative repeals, then the binding effect of them would

require revisitation of the foregoing conclusion that the judge was right in

ruling that s. 9's repeal of Government’s commitment to the pay equity

salary adjustments during the restraint period perpetrated a violation of s.

15(1) of the Charter. Reference has already been made to these authorities

in preceding para. 280 where mention was made of intent to discuss them at

a later stage. That stage has now arrived.

[326] The three cases are: Symes v. Canada, [1993] 4 S.C.R. 695 at 764-765;

NWAC v. Canada, [1994] 3 S.C.R. 627 at 633; and, Thibaudeau v.

Canada, [1995] 2 S.C.R. 627 at 655. Like the case at bar, all three of these

case, addressed s. 15(1) Charter violations in the context of gender

discrimination. None of these authorities support the premise of

Page: 116

insubstantive restorative effect of legislative repeals, and their consequential

neutral impact upon s. 15(1) equality rights, however. In the first place,

none of them dealt with the effect of statutory repeals. Both Symes and

Thiboudeau addressed the constitutional validity of federal income tax

legislation that imported no aspect of repeal. NWAC dealt with a claim of

positive duty on the federal Government to include a native women’s

association in funding provided to the Canadian Aboriginal community to

assist its participation in constitutional reform discussions. Thus, NWAC

dealt with the governmental executive inaction, not the effect of legislative

repeals.

[327] Moreover, not only do Symes, Thiboudeau and NWAC not speak to the

effect of legislative repeals, but neither do Ferrell’s specific references to

them appear to assist the general thesis of blanket statutory repeals having

insubstantial restorative effect in their across-the-board vacations of the

fields which the repealed measures address. The highlighted reference to

pp.764-765 of Symes has already been quoted within the passage from

Ferrell reproduced in preceding para. 279. It speaks of the importance of

distinguishing between legislative effect and societal circumstances

independent of the statute whose constitutional validity is challenged.

Likewise p. 655 of the dissenting judgment in Thibourdeau accentuated by

Ferrell speaks of the importance of distinguishing between the “source” and

the “perpetration” of the inequality, whilst stating: “(a)lthough s. 15 of the

Charter does not impose upon governments the obligation to take positive

actions to remedy the symptoms of systemic inequality, it does require that

the government not be the source of further inequality”. In similar vein,

Ferrell’s reference to p. 633 of NWAC shows the Court’s focus in NWAC

was also on whether governmental action was the source of discriminatory

inequity in contravention of s. 15(1) of the Charter. This is apparent from

the statement of issues defined there which included whether Government

was obliged to provide funding to a native women’s association to represent

the interests of female Aboriginal persons equal to that it had made

available to male-dominated Aboriginal groups.

[328] As it was in this case, therefore, the s. 15(1) Charter scrutiny in Symes,

Thiboudeau and NWAC was directed to the immediate or proximate

governmental action effectuating or triggering the gender discrimination,

rather than to the unfortunate societal circumstances in which such

prejudices fester. As the foregoing analysis of the infringement issue

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manifests, focus in this appeal has accordingly converged on Government’s

enactment of s. 9 of the restraint legislation and the repeal it effected of the

pay equity commitments as the source of the s. 15(1) prohibited

discrimination. In view of the reality that the freedom from discrimination

guaranteed by s. 15(1) is “limited to discrimination caused by the

application or operation of law” (see preceding para. 279), s. 9 was the

proper place of concentration, and not the unfortunate penchant of

humankind that breeds societal systemic discriminations. Therefore, while

the immediate or proximate action under challenge for its compatibility with

s. 15(1) of the Charter in the case at bar was s. 9's legislative repeal, the

impugned governmental actions in the three authorities relied on in Ferrell

involved no statutory repeals.

[329] Accordingly, the authorities cited in Ferrell give no reason to retreat from

the conclusion the judge was correct in holding that once Government acts

to commit itself to pay equity to address what it agrees was a discriminatory

practice, it could not revoke its undertaking through legislative repeal

without infringing s. 15(1) of the Charter. Thus, with due respect, none of

these cases support Government’s position erected on Ferrell that it was

free to repeal the commitment without the constitutional repercussion of

having to justify its action under s. 1 of the Charter. None of those

authorities involved legislative repeals of commitments given by the

executive or legislative branches of government. Moreover, whatever

peripheral support may be drawn from them redounds to support of the

judge’s upholding of the violation finding, rather than its rejection.

>

the Churchill Reversion case:

[330] While no authority has been cited counteracting the conclusion that

Government’s repeal of its commitment to pay equity through s. 9 of the

restraint legislation infringed constitutionally guaranteed equality rights,

neither, as preceding para. 280 notes to have been the case in Ferrell, was

this Court referred “to a decision, at any level, in which there was a

successful challenge to the constitutional validity of the repealing

provisions of a statute”. Nevertheless, this jurisdiction is quite familiar with

such a successful challenge, although not one mounted within the Charter’s

context. It came in Re Upper Churchill Water Rights Reversion Act,

[1984] 1 S.C.R. 297.

Page: 118

[331] That case held the statutory repeal of an enactment of this Province’s

Legislature, authorizing the execution of a lease to exclusive water rights on

the upper Churchill River for the generation of hydro-electric power, to be

ultra vires. McIntrye J., who delivered the Court’s unanimous decision,

reasoned the repealing statute was in pith and substance a colourable

attempt to impair extra-provincial rights acquired by Hydro-Quebec in a

power contract signed by the Quebec corporation with the lessee under the

statutory lease. Having concluded at p. 335 that the repealing statute’s

purpose was “to interfere with the rights of Hydro-Quebec outside the

territorial jurisdiction of Newfoundland”, McIntrye J. held in Churchill

Reversion that the repealing legislation was ultra vires of the House of

Assembly.

[332] Albeit in the context of the federation’s distribution of powers, Churchill

Reversion, therefore, stands as a clear precedent of a successful challenge

to the constitutional validity of the repealing provisions of a statute. On its

authority, it must be taken as law that constitutional challenges for want of

vires may be mounted successfully before courts against outright legislative

repeals which in pith and substance are seen as colourable attempts to affect

extra-provincial rights enjoyed outside the territorial jurisdiction of the

legislating body. Although not decided in the Charter context, Churchill

Reversion’s holding that the statutory repeal was of no force and effect, and

its concomitant direction that this Province continued to be bound by the

statutory lease, counters Ferrell’s thesis, and Government’s contention, that

legislatures have no duty to leave legislation in place, and have

untrammelled power “to return the state of the statute book to what it was

before ...”.

[333] There appears to be no reason why Churchill Reversion’s precedent of

successful constitutional challenge of the statutory repeal should not have

application in the circumstances at bar. If successful challenges can be

raised to the constitutional validity of a blanket statutory repeal for lack of

vires under s. 91 or s. 92 of the Constitution, there is no basis to posit that

such challenges should not likewise be mountable for violations of

constitutionally protected rights and freedoms guaranteed by the Charter.

Although, as was the case of its disposition at trial, the appellate judgment

in Ferrell made no mention of Churchill Reversion, it is reasonable to

conclude from Ferrell’s adoption of a case supporting its thesis of

legislatures not being bound to keep legislation redressing systemic gender

Page: 119

discriminations in place, that Ferrell would have rejected the foregoing

analogous extension of Churchill Reversion to its thesis. The referenced

case is Dunmore v. Ontario (Attorney General) (1997), 37 O.R. (3d) 287

(Gen. Div.), and the passage quoted from it by Ferrell giving grounds to

infer it would have rejected the notion of capacity to challenge repeals of

Charter sensitive laws appears in p. 301 of Dunmore, which is endorsed at

p. 17 of the appellate judgment in Ferrell. It reads:

C

... if the Legislature is free to decide whether or not to act in the first

place, it cannot be the case that once it has acted in a manner that

enhances or encourages the exercise of a Charter right, it deprives

itself of the right to change policies and repeal the protective scheme.

[334] The first thing observable about that statement from Dunmore is that there

is nothing particularly untoward about legislative bodies in the Canadian

federation being deprived of legislative powers. Through constitutional

agreement at the federation’s inception both orders of government limited

their respective parliamentary sovereignty in the division of powers effected

in ss. 91 and 92 of the Constitution. This deprived one order from taking

actions within the jurisdictional powers of the other. Canadian

jurisprudence is rife with instances where either federal or provincial

governments were held deprived of power to take impugned actions.

[335] The second observation about the Dunmore statement is that it must be

recognized the Canadian orders of government were not stripped of power

to change or repeal “protective” schemes to which they had committed

themselves to ensure fuller realization of rights and freedoms guaranteed

under the Charter. This is because the Charter makes those constitutional

guarantees explicitly subject to reasonably justifiable limitations prescribed

by law. Hence, the Charter does not deprive the executive and legislative

branches of government of the power to act in reasonably justifiable

violation of constitutionally protected rights and freedoms. The laws and

actions of those branches are susceptible to scrutiny by the judiciary on

individual challenge of their Charter compatibility. Offending breaches are

rendered unenforceable only if the state is unable to establish that they are

justifiable in a free and democratic society. It is not tenable, then, to

maintain legislatures have been completely denuded of power to enact

measures trenching on Charter rights where the incursions are

demonstrably justifiable under s. 1.

Page: 120

[336] While Governments have not deprived themselves of legislative power to

repeal protective schemes enhancing Charter rights through commitments

to such benefits as pay equity, which they were free in the first place to

decide whether or not to provide, it is inarguable that those Governments,

nonetheless, court risk of so depriving themselves if they are unable to

demonstrate that the abrogations of the commitments through their repeals

are demonstrably reasonable and justifiable in a free and democratic society.

However, the fact that risks of deprivations of power to “repeal the

protective scheme” designed to enhance enjoyment of Charter rights exist

does not validate the statement in Dunmore enlisted by Ferrell. This is

because it certainly is the case that the Legislature intended to court risks of

being deprived from acting in a manner that trenches upon fundamental

rights and freedoms. This was an essential purpose behind the engrafting of

the Charter into the law as part of the “supreme law of Canada”.

[337] Accordingly, the passage in Dunmore enlisted by Ferrell affords no basis

to argue the inaptness of the analogy drawn between the repeal in Churchill

Reversion, and the one effected at bar through s. 9 of the Public Sector

Restraint Act. It should be noted that Churchill Reversion has fuelled a

fair amount of comment in academic circles, and raised some quizzical

brows in the process (see, for example: Newfoundland Resources: The

Supreme Court Strikes Again, by Professor W.D. Moull (1985) 7 S.C.

Law Rev. 419 at pp. 429-440; Interpreting the Territorial Limitations on

the Provinces, by Professor R.E. Sullivan (1985) 7 S.C. Law Rev. 511 at

pp. 537-545; and The Doctrine of Colourability and Extra-territoriality,

a case commentary by Professor E. Edinger (1985) 46 Can. Bar Rev. 203 at

p. 221). However, Churchill Reversion is law and stands as authority for

the proposition that Legislatures can deprive themselves constitutionally of

the right to repeal governmental commitments. There would appear no

ground on which to deny the application of this disability to Charter cases.

After all, if a legislative repeal can be ruled constitutionally invalid because

it was aimed at extra-provincial rights outside the territorial jurisdiction of

Newfoundland and Labrador of a corporation, it would seem to follow

axiomatically that statutory repeals of commitments to individuals

enhancing enjoyment of their guaranteed Charter rights should also be

recognized as capable of successful constitutional challenges, and being

held unenforceable if unjustifiable under s. 1 of the Charter.

Page: 121

Page: 122

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upholding of infringement ruling:

[338] In the result, therefore, there is nothing in the authorities presented in the

submissions of Government’s counsel that would warrant recanting from the

conclusion drawn in the foregoing analysis of the Charter infringement

question. Neither Symes, nor Thiboudeau, nor NWAC support the

premise that repeals of commitments to Charter values have insubstantial

restorative effect, nor do they lend sustenance to the related argument that

across-the-board repeals of such commitments cannot effectuate violations

of Charter rights. In fact, analogy may be drawn from the authoritative

precedent in Churchill Reversion supporting the conclusion that the judge

did not err in holding the Arbitration Board’s finding that s. 9 of the Public

Sector Restraint Act infringed s. 15(1) of the Charter.

[339] Accordingly, the judge was correct in his reasoning set out in preceding

paras. 74 and 75 that once Government committed itself to pay equity it

could not repeal that undertaking for the duration of the restraint period as it

did in s. 9 of the restraint legislation without infringing s. 15(1) of the

Charter. Government’s contentions that the legislative repeal had no

constitutional effect, and that it was free to return to the state that existed

before the commitment through the repealing legislation, cannot be given

sway. Thus, the judge’s ruling of correctness of the Arbitration Board’s

unanimous finding of violation of equality rights guaranteed under s. 15(1)

of the Charter must be upheld.

[340] Attention will now turn to the final aspect of the constitutional issue. This

envisages whether the judge erred in holding the Arbitration Board’s

finding that infringement was not justifiable under s. 1 should be set aside.

This is the third of the seven issues listed in preceding para. 108. As

previously explained the second issue challenging the judge’s affirmation of

the s. 15(1) violation was raised in the Government’s cross-appeal. The

challenge to the judge’s holding that the violation was saved under s. 1 of

the Charter, thereby overturning the Arbitration Board’s view to the

contrary, came from NAPE. That challenge to the judge’s justification

holding will now be discussed.

÷

the s. 1 justification:

[341] As already pointed out in preceding para. 274, and faithful to the instruction

that the standard of s. 1 analyses is to be found in s. 1 itself, the justifiability

of the infringement perpetrated by s. 9 of the restraint legislation will

Page: 123

proceed on the footing that the law’s requirement of deference and

flexibility requires assessment of the validity of the judge’s reversal of the

Arbitration Board’s ruling to be undertaken on the footing of inquiry into

whether the Board erred in failing to find the perpetrated limitation on the s.

15(1) equality rights had been demonstrated by Government to be a

reasonable limit justifiable in a free and democratic society. That analysis

will also be mindful of the admonition, which, as preceding para. 267 notes

was conveyed by McLachlin J. in para. 141 of RJR-MacDonald, against

pressing legislative deference too far, and of its call for lessened degree in

face of “social science and other policy oriented evidence”. All of this will

be undertaken in the context of the superimposing Oakes criteria for s. 1

analyses.

[342] However, this judgment cannot automatically proceed to apply these criteria

without some reference to the division in RJR-MacDonald over the degree

of deference accordable to policy oriented evidence tendered in justification

of Charter infringements under s. 1. Neither can the s. 1 analysis be

broached without advertence to the other eye-opening departure of the

majority from the minority in RJR-MacDonald over the Oakes

proportionality requirement’s compatibility with justification analyses under

s. 1. These differences are gleanable from a perusal of the judgment

summaries in preceding paras. 258 to 269. Both decisions are noteworthy

for the fuel they provide to frequently voiced criticisms of the judiciary

which accuse it of actively entering the field of policy-making in its

Charter applications beyond any tolerable levels sustainable under the

Separation of Powers Doctrine. Before proceeding to the s. 1 analysis at

bar, therefore, the call to lesser deference and the questioning of the utility

of the Oakes proportionality requirement in RJR-MacDonald will first be

discussed.

>

the deference difference:

[343] As already underscored in the earlier discussion of RJR-MacDonald, its

lead majority and minority judgments unanimously agreed the appropriate

test in approaching s. 1 analyses is, in LaForest J.’s words, to be “found in s.

1 itself”. Neither was any exception taken with his interpretation that s. 1

required a deferential flexible approach by courts in addressing reasonable

justifications of limits imposed by laws on the enjoyment of guaranteed

rights and freedoms. However, the majority departed from the minority

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over the degree of deference. Thus, as already mentioned in preceding para.

267, the lead majority judgment in RJR-MacDonald, in cautioning against

pressing parliamentary deference too far, suggested lesser deference should

be “accorded to ... policy oriented evidence” than to evidence of a “purely

factual nature”. Inasmuch as s. 1 often centers the justifiability of executive

and legislative limitations on the enjoyment of Charter rights on the

reasonableness of policy oriented evidence, it follows that the majority’s

caution in RJR-MacDonald against overly pressing deference to such

evidence in justification analyses will frequently be tantamount to a blanket

call to lesser deference in such inquiries. This would seem to be especially

so when inquiries turn to consider alternate measures in applying

components of the proportionality test under s. 1. It also follows that strains

of correctness, which is the standard normally applicable in judicial

interpretations of legal effect, will displace the deference to the extent that

that standard is lessened.

[344] In contrast, it is apparent from preceding para. 258's account of LaForest

J.’s judgment in RJR-MacDonald that the majority’s view that a lesser

degree of deference was called for in s. 1 analyses of justifications of

limitations upon Charter rights was not shared by the minority. This flows

from the lead minority judgment’s rejection of the premise that the burden

shouldered by proponents of justifications of Charter infringements is a

rigorous one, dischargable upon cogent and persuasive evidence. In other

words, correctness as the standard of justifications under s. 1 was rejected.

Instead, the “specific values and principles”, i.e. the policy choices, upon

which the state seeks to justify limitations on the guaranteed rights’

enjoyment must be demonstrably justified on the anvil of unqualified

reasonableness, thereby importing no trace of correctness, but only

deference, into the standard of s. 1 analyses. Hence, the tenor of LaForest

J.’s reasoning in the key segment from his judgment summarized in

preceding para. 258 does not endorse any notion that the wording of s. 1

calls for the lesser degree of deference that the majority propounded in

RJR-MacDonald.

[345] There exists, therefore, a marked distinction between the majority and the

minority in RJR-MacDonald over the standard of s. 1 analyses. The

minority viewed it as one of unqualified deference to the policy choices

behind infringements, whilst the majority construed it as importing a lesser

degree of deference to them. That difference is not without significance.

Page: 125

The judiciary’s adjudicative function is usually discharged on the standard

of correctness. When deference is required in judicial decision, correctness

is supplanted by reasonableness. This being the case, the minority’s view of

unqualified deference leaves no room for correctness in analyses of the

justifiability under s. 1 of limitations prescribed by law on the enjoyment of

Charter rights, whilst the majority opens the way for correctness to

displace deference to the degree of its lesser measure.

[346] In addressing this difference in RJR-MacDonald, it is essential to advert

firstly to the underlying purpose of the Charter and s. 1's role in it. In this

way, the real change wrought by the Charter’s advent, and its

harmonization with subsisting principles of the Constitution, becomes

clearer and brings the import of those differences more directly to light.

The underlying purpose of the Charter was to place in the hands of

individuals the means to more effectively enforce and enjoy their

guaranteed fundamental rights and freedoms to the extent that no rational

objection to the enjoyment of them could be raised in a free and democratic

society. In subjecting the enjoyment only to reasonable limits demonstrably

justifiable in such society, s. 1 can be seen as going to the heart of the

Charter’s purpose.

[347] In focusing on its purpose, it is important to keep in mind that the Charter

does not stand alone, in isolation, but is embedded as an integral part of the

Constitution of Canada. Thus, it is logical to view the Charter as having

been intended to work its purpose in harmony with subsisting principles of

the Constitution. Lamer C.J.C. made this point in Cooper where, as

preceding para. 228 has already noted, he observed that the Charter should

“not distort the deep structure of the Canadian Constitution”. Amidst this

“structure”, he went on to affirm, are included the Separation of Powers

Doctrine and the Parliamentary System of Government, which Lamer C.J.C.

describes in Cooper as two of the Constitutions “defining features”.

Shortly afterwards, in Re Provincial Court Judges at para. 138, former

Chief Justice Lamer portrayed the Doctrine as “a fundamental principle of

the Canadian Constitution”.

[348] There is no doubt that the Charter tempered parliamentary supremacy. It

could not achieve its underlying purpose of endowing individuals with the

means to immunity from infringements on their basic fundamental rights

and freedoms without perforce intending to impart commensurate abative

palliative effect on the operation of parliamentary supremacy within the

Page: 126

federation’s orders of government. On the other hand, in endowing the

judiciary through s. 1 with power to determine the justification of policy

choices behind executive and legislative actions, the Charter must be taken

to have intended to rationalize this new judicial commission with the policy

preserve traditionally reserved to the political branches of government under

the Separation of Powers Doctrine. This is because no intent can be read

into s. 1, nor in any other provision of the Charter, to abridge the Doctrine

by making the judiciary the ultimate arbitrator of the correctness of policy

decisions by the elected branches of government.

[349] In accentuating the imperative of rationalizing the judicial power to pass on

the justifiability of policy choices under s. 1 with the executive and

legislative power over public policy initiation reserved under the Separation

of Powers Doctrine, it is fully recognized no claim may legitimately be

made that judicial decision has traditionally been scrupulously free of any

element of policy. Indeed, there has always been an element of policy

making in judicial decisions and the mere fact that courts are drawn into that

political domain is no phenomenon of the Charter (see: Policy Arguments

in Judicial Decision by John Bell, 1985, Clarendon Press, at p. 5; and

Pragmatism and Theory in English Law, by P.S. Atiyah, 1987 Stevens &

Sons, London, at pp. 110-111). However, the judicial role in policy making

is generally accepted as being incidental and confined to its traditional

function under the Separation of Powers Doctrine of construing the effect of

measures having the force of law in the course of applying them. The

Doctrine accommodates no role in policy making for the judiciary beyond

that consequential to passing upon whether executive and legislative

measures achieved their intended policy through interpretations of their

scope.

[350] It also must be conceded that no pretense can be made that the boundary

demarking tolerable limits of policy making in judicial decision is always

easily ascertainable in practice. Nor may it be maintained that the

judiciary’s historical sorties into the policy making field have been

unaccompanied by controversy. Indeed, recurrently down through the years

those sorties have given rise to tensions between the political and judicial

branches that have manifested themselves in charges of untoward ventures

by courts into the policy domain of the executive and administrative arms of

government. Part of the polemics over judicial policy making stems from

the reality that it is not possible to neatly pigeon hole the respective

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functions reserved to the three branches of government under the Doctrine,

and part from sheer frustration experienced when the political branches

learn ex post facto of judicial pronouncements holding that measures taken

by them did not achieve the policy aims that prompted them.

[351] It is against this historical backdrop that s. 1's empowerment of the judiciary

to pass upon justification of policy choices behind executive and legislative

actions must be viewed. In light of the controversy that has reigned for

years over judicial incursions into the policy field of the elected branches of

government, it is inconceivable that the Charter would be framed without

intent to hold s. 1 justifications of policy choices within tolerable limits

under the Separation of Powers Doctrine. That intent is confirmed on a

perusal of s. 1. Nowhere in it, nor anywhere else in the Charter, can

wording be found indicating the degree of deference in justifications of

policy choices was intended to be ratcheted downward, thereby importing a

corresponding degree of correctness into the standard. To the contrary, an

eschewing of any element of correctness can be detected from the

unqualified preference imported as the adjudicative standard of

justifications under s. 1. In the result, s. 1 of the Charter is harmonized

with the Separation of Powers Doctrine by foreclosing the potential for the

judiciary to assume the role of final arbitrator of the correctness of policy

initiatives within the purview of the political branches of government.

[352] Finally, it should be underscored that it is of cardinal importance to so read

s. 1 in consonance with that other fundamental principle of the Constitution.

As previously observed in another judgment of this Court, at para. 373 of

Newfoundland Assn. of Provincial Court Judges v. Newfoundland

(2000), 191 D.L.R. (4th) 225, that Doctrine is no dry and dusty political

theory whose utility is confined to interesting academic discussion. It

emerged from bloody revolutions in the 17th and 18th centuries which

wrestled from monarchial control power over public policy, and particularly

access to the pockets of the citizenry, as western nations passed from

autocratic regimes to democratic statehood. The lessons of history

accentuate the perils of re-vesting ultimate decisions over policy in

institutions controlled by persons without elective mandates to make such

decisions. It is safe to assume the Charter would have been framed in full

alertness to this peril, and without any intent to distort or disrupt the deeply

ingrained structural Separation of Powers.

Page: 128

[353] Accordingly, it is fundamentally important to keep in mind in adjudications

involving rights guaranteed by the Charter that its underlying purpose was

intended to be achieved without throwing out of kilter the established

separation of powers reserved to the three branches of government under the

Doctrine. This is why RJR-MacDonald’s endorsement of lesser deference,

which opens potential for a concomitant degree of correctness into the

standard of s. 1, is an eye-opener. It appears reasonable to regard any

element of correctness as inimical to the “defining feature” of the

Constitution which the Separation of Powers Doctrine embodies; and, as

neither intended by, nor construable from the wording of s. 1 of the

Charter. Even more surprising, however, is the division of RJR-

MacDonald over the compatibility of certain elements of the

proportionality requirements prescribed in Oakes with justification analyses

under s. 1.

>

the division over Oakes:

[354] The difference between the majority and the minority in RJR-MacDonald

over the utility of the Oakes criteria is stark. As preceding para. 259 notes,

the lead minority judgment of LaForest J. in RJR-MacDonald had

described as “misconception” the notion that the Oakes “proportionality

requirements ... are synonymous with, or even superceded the requirements

set forth in s. 1", before it went on to assert that “those guidelines should not

be interpreted as a substitute for s. 1 itself”. This viewpoint contrasts

sharply with the lead majority judgment in which, as ensuing para. 261 of

this judgment records, McLachlin J. found “no conflict” in “the

jurisprudence founded upon R. v. Oakes” and “the words of s. 1", but rather

construed that wording as complementing Oakes.

[355] There was, therefore, clear and explicit disagreement in RJR-MacDonald

over the relevancy of the Oakes proportionality requirements to s. 1's

standard for justifying incursions upon guaranteed Charter rights. In view

of the general acceptance of the utility of those requirements in s. 1

justification analyses, that division can only be regarded as startling.

Nevertheless, there is a logic to LaForest J.’s thesis that the proportionality

requirements articulated in Oakes lack synonymy with the standard for

justifications implicit in the wording of s. 1 of the Charter.

[356] In addressing the logic of the minority’s questioning of the compatibility of

the Oakes criteria as guidelines in applying s. 1, it must first be noted there

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was no division in RJR-MacDonald over the relevancy of inquiry into

whether the limit’s objective was sufficiently important to have justified

overriding the constitutionally protected right or freedom. It is also

noteworthy that LaForest J.’s suggestion of conflict between the Oakes

guidelines and the wording of s. 1 centers on the requirements set down by

that authority for satisfying the proportionality criteria, i.e. the rational

connection of the limiting measures with the objective behind the limitation;

the minimal impairment of the guaranteed right or freedom by these

measures; and, the proportionality between the deleterious and salutary

effects of the measures taken to achieve the limitation and of the policy that

spawned it. The lead minority in RJR-MacDonald judgment should not

necessarily be read as questioning the utility of inquiry into proportionality

per se. It appears to have focused rather on the relevancy of the aspects of

that broad criterion which Oakes prescribed as required areas of inquiry

into its satisfaction.

[357] Indeed, no exception to considering proportionality as a criterion in

analysing the justifiability of limitations on Charter rights and freedoms

would appear tenable. After all, the justifiability of a right’s limitation

measure will necessarily entail consideration of its proportionality to the

importance of the communal needs whose objective prompted the limitation.

However, there appear to be grounds, nonetheless, to support LaForest J.’s

assertion that the three aspects of proportionality set down in Oakes as

required avenues of inquiry in s. 1 analyses are not synonymous with the

justification standard construable in the wording of s. 1. This is because it

is difficult to perceive how inquiry into the satisfaction of the Oakes

proportionality requirements can be undertaken without frequently

transcending the legitimate bounds of judicial policy-making, and thereby

falling into disharmony with the Separation of Powers Doctrine.

[358] This difficulty is especially pronounced in applications of the minimal

impairment requirement. As Iacobucci J. puts it in para. 186 of his

judgment in RJR-MacDonald, the minimal impairment aspect of the Oakes

proportionality criterion requires courts “to consider whether the legislature

turned its mind to alternative and less rights-impairing means to promote the

legislative goal in question”. This is consistent with Oakes where,

underscoring the need for justifications under s. 1 to be established on “(a)

very high degree of probability”, Dickson C.J.C. wrote at p. 138:

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(a) court will also need to know what alternative measures for

implementing the objective were available to the legislators when

they made their decisions.

Hence, the judiciary is mandated by Oakes to determine if the objective of the

limitation measure could have been realized in a manner trenching less intrusively

on the affected constitutionally protected right. This inevitably requires courts to

satisfy themselves not only as to the reasons why the executive or legislature made

the policy choices behind the limitations whose justification are subject to

analyses, but also to pass upon the reasonableness of those choices in relation to

alternatives.

[359] No linguistic curtain drawn around the minimal impairment requirement can

mask the reality that in so inquiring into the alternate means of promoting

legislative or executive goals, the judiciary enters the policy field in a

manner which defies rationalization with the Separation of Powers Doctrine.

Such inquiries could hardly be viewed as sorties into the policy arena

incidental to judicial interpretation of the scope of measures limiting

enjoyment of Charter rights. These inquiries require the judiciary to

conduct retroactive assessments of which policy alternatives should have

been adopted, from amongst the range of constitutional choices permissible

under s. 1 of the Charter, to achieve the goal of favouring communal needs

over individual rights in the circumstances obtaining. In that light, it is

difficult to perceive how these inquiries could be viewed otherwise than ex

post facto incursions into the field of public policy to an intolerably

disharmonious degree vis à vis the Doctrine, and thereby distorting that

defining feature of the Constitution in a manner unintended by s. 1 and

incompatible with coherent applications of the Charter.

[360] Stronger cases for greater compatibility with the Separation of Powers

Doctrine can be made for the two other Oakes proportionality requirements.

However, even in these instances, there appears to be room for legitimate

concerns over untoward incursions into the public policy field. That said,

the relevancy of the rational connection requisite in s. 1 justification

analyses cannot be gainsaid. Inquiries into the necessity of the rights

limitation measure, and how well it is tailored to suit the objective of the

rights’ infringement, are incontrovertibly material to considerations of such

a measure’s justifiability. Thus, the relevancy of the measure being

“carefully designed to achieve the objective in question ... not ... arbitrary,

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unfair or based on irrational considerations”, as Dickson C.J.C. described

the rational connection component of the proportionality criterion at p. 139

of Oakes, cannot be denied. To the extent that this proportionality requisite

engages consideration of the rational connection of the limiting measure

under s. 1 scrutiny as opposed to an alternate measure which might have

been adopted in the circumstances obtaining, however, there is room to

regard the judiciary as transcending its legitimate bounds of policy making.

[361] Likewise, the materiality, again in Dickson C.J.C.’s words in p. 139 of

Oakes, of “proportionality between the effects of the measures which are

responsible for limiting the Charter right or freedom, and the objective

which has been identified as of ‘sufficient importance’” may not be

discounted. In fact, analysis of the limitation’s deleterious effect compared

with its salutary impact in realizing the objective or policy which prompted

so limiting such rights or freedoms may be seen as lying at the core of the

delicate balance that s. 1 requires courts to strike between individual rights

and communal needs. Nevertheless, just as the rational connection provides

potential for untoward incursions into the policy field, albeit to a lesser

degree than the minimal impairment requisite, so too does the proportionate

effect requisite present similar potential. This is essentially because

inquiries into such effect do not occur in a vacuum, but must entail

advertence to other potential policy choices to varying degrees depending

on the circumstances obtaining.

[362] It is, therefore, because of the scope which the Oakes proportionality

requirements leave to venture into public policy that this judgment sees

reason in the minority position in RJR-MacDonald holding it

misconception to regard them as synonymous with s. 1. It is no answer to

maintain, as some do, that a policy role was cast on the judiciary by the

Charter. A perusal of s. 1 within which the standard of its application is to

be found dispels any such contention. It is true that s. 1 effectively invests it

with responsibility to pass upon the justifiability of policy choices behind

Charter infringements. However, that power is exercisable in the context

of judicial deference to the other branches of government, and in harmony

with the Separation of Powers Doctrine. This being so, although extending

the judicial power beyond the traditional role of policy-making incidental to

judicial interpretations in adjudications of justifications of the

reasonableness of limitations on Charter rights, it cannot be said that s. 1

endows the judiciary with licence to stand in the shoes of the other branches

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of government as ultimate arbitrator of which policy choices were in the

best interests of the governed. For the foregoing reasons, it would appear

that the Oakes proportionality requirements court such a risk. Accordingly,

it seems that some revisitation of them is in order.

[363] In light of the general acceptance of these requisites as the framework of s.

1 analyses, it is fully recognized that this judgment is swimming against a

strong tide of legal precedent in suggesting they be revisited. Yet s. 1 not

only must be construed as constraining courts to strike a delicate balance

between individual rights and societal needs, but also as exacting an equally

sensitive balance between the more contemporary constitutional feature of

justifications of Charter infringements imported in s. 1, and the long-

established constitutional hallmark that the Separation of Powers Doctrine

represents. This second balance requires harmonization of s. 1's

justification of policy choices behind Charter infringements with the role

of the elected branches of government in policy formation. For the

foregoing reasons, the Oakes proportionality requirements provide potential

for incursions by the judiciary into the field of public policy transcending

the bounds of judicial sorties into that field which are tolerable under the

Separation of Powers Doctrine, and go beyond s. 1's intent in empowering

the judiciary to pass on the justification of Charter infringements. Hence,

there is a need to revisit those requisites.

[364] It is recognized it does not lie with this Court to conduct such revisitation.

Nevertheless, whilst not downplaying the relevancy of importance and

proportionality as criteria in s. 1 analyses, it is submitted that an essential

component frequently missing in applications of s. 1 is the rationalization of

this relatively new power to address the justifiability of power choices

behind Charter infringements with the Separation of Powers Doctrine. The

importance in Charter applications of melding harmoniously this newest

defining feature of the Constitution with that longer established one has

already been underscored in this judgment. The lessons of history support

the imperative of the blend. While it would overly dramatize the

importance to democratic society of advertence to the Separation of Powers

to hold up the spectre of the bloodshed in which the Doctrine evolved, it is

no histrionic foresight to draw real potential for heightening unease over

undue incursions by the judiciary into the policy domain of the elected

branches of government, going beyond those contemplated by s. 1

justifications in unintended disharmony and conflict with the Doctrine.

Page: 133

[365] The seeds of this potential are already evident in the unease that has

frequently been expressed over undue incursions into the public policy field

in Charter applications. Despite protestations to the contrary, it has to be

acknowledged there is an air of legitimacy to many of these complaints.

This judgment argues they can be addressed by taking a fresh look, not at

proportionality as a criterion per se, but at the proportionality requirements

laid down in Oakes, whilst lending particular emphasis in so doing on

harmonizing those requisites with the recognized policy preserve of the

elected branches of government long entrenched in the Constitution through

the Separation of Powers Doctrine. There is a need, then, to revisit those

three gateways to proportionality, and if not to completely reframe them, at

least to oil their hinges to assure they swing in harmony with the Separation

of Powers. The judicial power to justify policy choices was intended under

the wording of s. 1 to be so rationalized with that policy preserve of the

political branches of government.

[366] In siding with the minority view in RJR-MacDonald that the

proportionality requisites laid down in Oakes are not synonymous with the

requirements set forth in s. 1 for justifications of infringements of

constitutionally guaranteed rights, this judgment stresses the need for more

precise definition of the limits of judicial incursions into the public policy

field in applications of s. 1. Failure to do so will only fuel the ongoing

debate over untoward incursions into the formation of public policy by

those with no mandate to do so. The unease which such impressions

generate can be anticipated not only to undermine confidence in the

operation of the institutions of government, but also to obscure the

Charter’s benefit of arming individuals with an effective means of

enforcing their basic fundamental rights and freedoms to the extent that no

rational objection can be raised to enjoyment of them.

[367] While the primary argument for revisitation centers on the need for the

Oakes proportionality requirements to be rationalized with the policy

preserve reserved to the elected arms of government under the Separation of

Powers Doctrine, this is not the exclusive reason to retake stock of their

utility. There are others. For example, in the wake of the threat to North

American society so forceability brought to public awareness this past year,

it would appear timely to vet those requisites with a view to more precisely

defining the legitimate boundary between individual rights and the state’s

capacity to adopt preventative investigative practices directed towards

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societal protection. Likewise, it would seem useful to revisit the entire

jurisprudence dealing with the proportionality criterion for inquiry into

whether the standard of reasonable justification laid down in the wording of

s. 1 might not suffer from the same exhaustive exposition leading to undue

convolution of that norm to which some contend the conceptual reasonable

doubt standard of criminal culpability has been exposed.

[368] Having argued for revisitation of the Oakes proportionality requirements,

and questioned the call in RJR-MacDonald to lesser deference to policy

oriented evidence, in each case primarily for lack of congruity with the

Separation of Powers Doctrine, analysis of the s. 1 phase of the challenge to

the enforceability of s. 9 of the restraint legislation at bar must, nonetheless,

proceed on the footing of the directions issued in those two authorities.

Before proceeding to this analysis, it would appear helpful to briefly

recapitulate the approach which will be taken to it.

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recapitulation of approach:

[369] The ensuing inquiry into the sustainability of the judge’s ruling that the

infringement at bar was justifiable under s. 1 will be influenced by four

considerations that come out of the foregoing discussions. Firstly, regard

will be had to the wording of s. 1 for the standard on which the inquiry is to

be approached. As para. 274 of this judgment indicates, and based on the

discussion in the paragraphs immediately preceding it, the wording of s. 1 is

construable as setting reasonableness as the standard of justifiability of

Charter infringements. Hence, attention will focus on whether the

limitation prescribed by s. 9 of the impugned restraint legislation had been

proven to be sufficiently reasonable to be held demonstrably justifiable in a

free and democratic society, as the judge held it was in overruling the

contrary opinion of the Arbitration Board.

[370] Secondly, in addressing whether the judge’s holding, contrary to the

Board’s view, that there was adequate proof to meet that standard, the

sustainability of his holding will be approached by extending, as the

majority in RJR-MacDonald instruct, despite misgivings earlier expressed

over doing so, lesser deference to “policy oriented evidence” than normally

extendable to “purely factual evidence”. Inasmuch as justifiability of a

limitation’s enforceability hinges upon the reasonableness of the policy

choices that prompted the action impairing the constitutionally protected

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right, this call to lesser deference, as was earlier observed, imports that

standard into the entire analysis of justification.

[371] Thirdly, the framework for addressing whether the standard of reasonable

justification of the infringement perpetrated by s. 9 of the Public Sector

Restraint Act had been met, as the decision under appeal holds it to be, will

be the criteria set down in Oakes for conducting s. 1 analyses. This will

include the proportionality requirements enunciated by that injury. As is the

case with the direction to lesser deference, notwithstanding reservations

expressed regarding those requisites, it is recognized that until changed or

modified they are authoritative and must be followed.

[372] In following these requisites, and as the fourth and final consideration, the

ensuing s. 1 analysis will address, at the end of each stage of the appraisal of

compliance with the Oakes criteria for justifications under s. 1, whether the

exercise of the judicial power in coming to those findings was in

consonance with the Separation of Powers Doctrine. It is submitted that the

addition of this added consideration to the s. 1 analysis finds support in

Lamer C.J.C.’s affirmation in Cooper, already highlighted in preceding

paras. 228 and 347, that the Charter should “not distort the deep structure

of the Canadian Constitution”, amongst which the Separation of Powers

Doctrine has been numbered since the federation’s inception. Although

Lamer C.J.C.’s judgment in that case centered on his appeal to his

colleagues to revisit the power of administrative tribunals to declare laws

unenforceable under s. 52 of the Constitution Act, his caution against

distorting the Doctrine in Charter cases affords support for treating the

instruction that s. 1 is to be applied harmoniously with the Doctrine as a

valid legal percept.

[373] Accordingly, directed by these four considerations, this judgment now turns

to address whether the decision under appeal erred in holding the violation

of s. 15(1) of the Charter was saved under s. 1 of the Charter, and in

overturning the majority decision of the Arbitration Board that it was not so

saved.

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sufficiency of objective’s importance:

[374] The record of proceedings to date evinces unanimous holdings that the

objective of the restraint legislation was sufficiently important to justify its

limitation upon the enjoyment by affected employees of their s. 15(1)

equality rights through the restrictions it imposed in s. 9 upon payments of

Page: 136

the promised pay equity. Thus, as preceding paras. 44 and 46 recount, both

union and employer nominees concurred with the Board chairperson’s

conclusion, recapitulated in preceding para. 29, that the “pressing and

substantial objective of saving money” in order “to reduce an escalating

deficit ... where the financial health and well-being of the Province was at

stake”, met the first of the criteria laid down in Oakes. Subsequently, as

preceding para. 77 notes, the judge sided with this unanimous ruling whilst

reasoning that in light of the “severe fiscal circumstances” being faced by

Government “the objective of reducing expenditures was sufficiently

important to justify a limitation on the s. 15(1) Charter rights”.

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NAPE’s argument:

[375] Counsel for NAPE takes issue with the judge’s affirmation of the Board’s

ruling that the Oakes criterion of sufficient importance had been satisfied in

the circumstances of this case. She insists the goal of “saving money ... to

reduce escalating expenses” and the “severe fiscal circumstances”, which

the judge subsequently held adequate to endorse the Board’s ruling of

fulfillment of the first of the Oakes criteria, was not a sufficiently

substantial and pressing objective promoting the values and principles of a

free and democratic society to support a holding of importance, sufficient to

override the legislative limit upon the guaranteed equality rights of affected

employees through the restrictions imposed upon the pay equity promises.

Stressing the importance of s. 15(1)’s equality rights guarantee in free and

democratic societies, whilst allowing the possibility that fiscal restraints

may promote the values and principles of such societies, NAPE’s counsel

submits courts must still look to the objective behind the rights’ incursions

which are sought to be justified.

[376] In so looking to the objective of a right’s limitation, counsel for NAPE

argues heed must be had to Schachter v. Canada, [1992] 2 S.C.R. 679 and

to Lamer C.J.C.’s observation at p. 709 that it is settled law that “budgetary

considerations cannot be used to justify a violation under s. 1”. Viewing the

“saving of money” in response to “severe fiscal circumstances” as being just

that, i.e. a budgetary consideration, she argued in her oral submissions that

the purpose of s. 9 of the impugned restraint legislation “is just about

money”. Accordingly, counsel maintains it cannot be considered a

sufficiently important objective to justify s. 9's violation.

Page: 137

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Government’s response:

[377] In his response to the foregoing reasoning, counsel for Government argues

that the judge’s holding that the “severe fiscal circumstances” rendered “the

objective of reducing expenditures” sufficiently important to justify the s.

15(1) limitation was unassailable. He maintains the judge’s conclusion is

wholly consistent with the Supreme Court’s assertion in M. v. H., [1999] 2

S.C.R. 3, where at pp. 72-73 Iacobucci J., who with Cory J. jointly authored

the majority judgment, held:

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It may be that a violation of s. 15(1) can be justified because,

although not designed to promote equality, it is designed to promote

other values and principles of a free and democratic society.

[378] Government’s counsel contends opposing counsel’s submission overlooks

that the budgetary considerations prompting the sound fiscal management

which led to imposition of the restraints on the promised pay equity were

not an end in themselves, but a means to “promote other values and

principles of a free and democratic society” through the provision of

appropriate education, health care, social programs and other similar

objectives which the Charter promotes. In other words, counsel denies it is

“just about money”, as NAPE claims. He insists regard must be had, as

NAPE’s counsel in her argument agrees it must, to the objective behind the

restraints which limited enjoyment of the employees’ equality rights

protected under s. 15(1) of the Charter. It can be seen from this argument

that counsel is placing significance on context in this s. 1 analyses, as did

McLachlin J. in RJR-MacDonald. As to NAPE’s reliance on Schachter,

counsel counters with PSAC v. Canada, [1987] 1 S.C.R. 424, in which

Dickson C.J.C. found at pp. 439-440 that restraint legislation whose purpose

was the reduction of inflation was of sufficient importance to justify

overriding a Charter right or freedom.

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balancing of relative importance:

[379] The first comment that must be made in broaching the respective merits of

these arguments is that agreement has to be voiced with NAPE’s counsel

where she underscores the importance of the s. 15(1) equality rights

guarantee. However, while indisputably important, as Oakes points out at

p. 136, these rights are not absolute, but are subject to limitations “where

their exercise would be inimical to the realization of collective goals of

fundamental importance”. Iacobucci J.’s suggestion, in the excerpt from his

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judgment from M. v. H. highlighted in preceding para. 377, that s. 15(1)

violations might be justifiable if “designed to promote other values and

principles of a free and democratic society” can be seen to jibe with the

foregoing statement from Oakes.

[380] Both of the foregoing assertions, in Oakes and M. v. H. speak to that

“delicate balance between individual rights and community needs” which,

as preceding para. 258 records, LaForest J. in RJR-MacDonald construed

the wording of s. 1 to require courts to strike in considering justifications of

Charter infringements. Moreover, it would appear that the tension in that

“delicate balance” is regulated by the word “inimical” employed by Oakes

at p. 136 of that authority. The inimicalness can be taken to signify that the

exercise of the individual right must be markedly adverse to the realization

of the “collective” goal or objective of the “community need”, the

enjoyment of which would require supplanting the “inimical” limitation on

the fundamental right or freedom. The use of that key word signals that

societal goals or objectives may not be trifling ones causing individual

rights to be displaced by every budgetary need. It must, in M. v. H.’s

words, be “designed to promote other values and principles of a free and

democratic society”.

[381] In this light, it can be said that the process of analysing whether the Oakes

criterion of sufficient importance to warrant overriding a constitutionally

protected right has been met is one of balancing the relative import of

enjoyment of individual rights against the realization of communal needs.

This “delicate” balance, as LaForest J. describes it, is struck by placing on

one side of the scale the measure conferring the Charter right. In this case

that measure is the promise of pay equity addressing the systemic

discrimination in the workplace. Alongside, on the other pan of the scale, is

placed the measure limiting the right’s enjoyment together with the policy

choice that prompted the limitation. In the case at bar that countering

weight is the repealative effect of s. 9 of the restraint legislation and the

objective of its enactment. Then, reasoned analysis is conducted by the

court of the relative importance of the individual, as opposed to the societal

interest with a view to determining whether the proponent of the latter’s

paramountcy has established it outweighs the individual enjoyment of the

affected Charter right. The scale is set at the lesser deference standard to

policy choices behind the rights’ limitations in compliance with instruction

to that effect issued by the majority in RJR-MacDonald. If the importance

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of the societal imperative is assessed to outweigh the individual right, the

infringement is justifiable.

[382] Before proceeding directly to apply this analytical justification process to

the circumstances at bar, four cases will be canvassed bearing on NAPE

counsel’s insistence that since s. 9 of the restraint legislation is “just about

money”, falling within the rubric of a budgetary consideration, it cannot be

used to justify the equality rights’ infringements that it perpetrates. The

cases constitute the authority upon which she relies in advancing that

contention, together with three others with which Schachter must be read.

Following commentary on each case, a synthesis of the legal principles

extractable from them will be undertaken immediately before the s. 1

analysis. Then, this phase of the appeal will apply the foregoing process to

the circumstances of this appeal.

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the Schachter case:

[383] Schachter does not assist NAPE’s rebuttal of the evidence submitted by

Government in support of justification of the infringement perpetrated by s.

9 of the restraint legislation. In the first place, Lamer C.J.C., the author of

the majority judgment, decried at the outset of his analysis at p. 695 of

Schachter “the state in which this case came to us” in that “the appellants

chose to concede a s. 15 violation and to appeal only on the issue of

remedy”. Hence, the Court was precluded “from examining the s. 15 issue

on its merits”. Consequently, the Court in Schachter was primarily

occupied with the issue of reading in or severance as a remedy under s. 52

of the Constitution Act, 1982, for a Charter breach conceded not to have

survived s. 1,the concession of which attracted an expression of

dissatisfaction from the Court.

[384] It is true that in the course of Lamer C.J.C’s judgment he stated that

violations of the Charter may not be overridden simply for budgetary

considerations in periods of economic restraint. This assertion, which, as

mentioned earlier, NAPE’s counsel enlists, was made at p. 709 of

Schachter. The full context in which this statement occurs reads as

follows:

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Even where extension by reading in can be used to further the

legislative objective through the very means the legislature has

chosen, to do so may, in some cases, involve an intrusion into

budgetary decisions which cannot be supported. This Court has held,

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and rightly so, that budgetary considerations cannot be used to justify

a violation under s. 1. However, such considerations are clearly

relevant once a violation which does not survive s. 1 has been

established, s. 52 is determined to have been engaged and the Court

turns its attention to what action should be taken thereunder.

[385] Although the comments in the foregoing passage were made in a case which

focused on the appropriate remedy for a Charter breach, and not on

whether the violation was saved under s. 1, the statement that “budgetary

considerations cannot be used to justify a violation under s. 1", must be

received as a statement of law. At the same time, however, the import of

that assertion by Lamer C.J.C. in Schachter must be gleaned from the

context in which it appears in that passage. As can be observed, it appears

in a setting whose primary concentration is intrusion into legislative

budgetary powers through the remedy of “reading in”. Thus, the comment

that budgetary factors cannot be used in justifications of infringements may

be seen to have been made in the context of the sentence following it which

states these factors become relevant at the juncture when courts come to

turn their attention to the appropriate remedies for unjustifiable breaches.

There was no need, therefore, for Lamer C.J.C. to have gone further into any

discussion of objectives behind budgetary decisions and their relevance to s.

1 justifications of Charter violations in his judgment in Schachter. By the

same token, the full context of the passage nonetheless witnesses Lamer

C.J.C.’s alertness to the distinction, albeit in the context of his pre-

occupation in that passage with the remedy for unjustifiable Charter

breaches, between “legislative objective” and “the very means the

legislature has chosen” to achieve its end through “budgetary

considerations”.

[386] In addition to its contextual setting, the statement rejecting the use of

budgetary considerations in justification of Charter violations must be

viewed in the context of other authorities, the following three of which are

particularly germane to the weight which may be placed on budgetary

measures in s. 1 analyses.

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the McKinney case:

[387] The first of these authorities is McKinney v. University of Guelph, [1990]

3 S.C.R. 229. In his treatment of the Oakes test of sufficiently important

objective, the judge whose decision is here under appeal quoted from La

Page: 141

Forest J. who had stated at p. 280 of McKinney that the starting point of a s.

1 inquiry “is an assessment of the objectives of the law to determine

whether they are sufficiently important to warrant the limitation of the

constitutional right”.

[388] The direction to focus from the start on the “objectives” is significant in the

present circumstances because it supports Government counsel’s point that

concentration should be placed on the ends, and not the means of an

impugned limitation. Hence, concentration focuses on the objective of the

budgetary measure, rather than the need of fiscal saving which is the means

of achieving that objective. McKinney, then, signals it is the importance of

the social concern behind the budgetary initiative that is to be taken into

balance against the infringement of the individual right or freedom.

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the M.v. H. case:

[389] The second case is M.v.H.. Its significance in this appeal’s context lies in

its instruction, already referenced in preceding para. 377, that budgetary

needs translating into burdens on the public purse must be linkable to

objectives “designed to promote other values and principles of a free and

democratic society” in order to justify s. 15(1) violations. Government’s

counsel fittingly enlists that instruction to make his point that s. 1

justifications focus on the ends, and not the means, such as budgetary

initiatives, employed to achieve objectives in overrides of Charter

violations. He also correctly interprets the instruction as signifying that

objectives promoting education, health and like social programs which are

consistent with values underlying the Charter are eligible considerations to

be weighed when considering whether limitations on Charter rights and

freedoms are justifiable under s. 1. This is apparent from the contextual

setting of the direction, both within the paragraph in which it appears and

those immediately preceding it.

[390] Against the background of its context, that directive in M. v. H. will be seen

as given by Mr. Justice Iacobucci in reaction to a colleague’s approach to

the latter’s s. 1 justification analysis of the s. 15(1) equality rights violation

in that case. He described his colleague’s approach as “unnecessarily

narrow” where the latter had posited that the overriding legislative measure

“must be respectful of the equality of status and opportunity of all persons.”

While agreeing that the override’s objective “must be consistent with the

principles underlying the Charter” in order to meet the first criterion set

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down by Oakes of sufficient importance, Iacobucci J. observed in para. 106

of his judgment in M. v. H. that in its full context consistency encompasses

objectives promoting “both social justice and the dignity of individuals.”

Indeed, Iacobucci J. went on to observe in the ensuing paragraph of his

judgment that such objectives had been identified at p. 136 of Oakes as

values underlying a free and democratic society.

[391] As already intimated, therefore, the relevance of M. v. H. to this phase of

the s. 1 analysis is twofold. Firstly, it lends substance to Government’s

contention that s. 1 justifications turn on the end rather than the means to

achieve overriding objectives. Secondly, it also furnishes authority for

counsel’s assertion that such social justice goals as education, health and

other social programs can constitute pressing and substantial objectives of

sufficient importance to override Charter infringements. These concerns

are those “other values and principles of a free and democratic society” to

which the highlighted instruction in M. v. H. refers. It is those “other

values and principles” that shape those “collective goals of fundamental

importance” which Dickson C.J.C., at p. 136 of Oakes, described as having

been given paramountcy through s. 1 of the Charter over enjoyment of

individual rights whose exercise would be “inimical” to the realization of

those goals.

[392] This notion of paramountcy lies at the very essence of s. 1. It effectuates

over-all Charter policy by assuring its guarantees of protected rights and

freedoms are not absolute. Through that paramountcy, the Charter can be

seen to be speaking, and giving effect, to the classic ideal that liberty in a

free and democratic society involves individual rights being exercised up to

the point where they stop short of interfering with the enjoyment of the

rights of others. However, befitting the supremacy accorded to those basic

fundamental individual rights and freedoms enforceable under the Charter,

those “collective goals of fundamental principles” must be of sufficient

importance to justify limiting the individual prerogatives. Thus, just as the

enjoyment of individual Charter rights is not absolute, neither is the

realization of collective communal goals. Oakes has construed s. 1 as

confining such realization to the goals having sufficiently pressing and

substantial objectives to override the individual right or freedom.

[393] The Charter leaves determinations of sufficiency to the courts. M. v. H.

instructs that considerations of importance are not necessarily restricted to

reciprocal collective goals of precisely the same nature as the affected

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individual right whose limitation is sought to be justified. While such

comparisons may be possible in some circumstances, it is difficult to

perceive how individual equality rights guaranteed under s. 15(1) can be

notionally weighed against collective equality rights. This is essentially

because such rights as perceived individually cannot be conceptually

considered to operate in jural opposition with any collective abstraction of

them. The greater the respect of individual equality rights, the more

extensive is the collective enjoyment of them. Hence, from individual and

collective perspectives equality rights must be considered in correlative

jural relationship, and not in opposition which would admit weighing one

against the other in that “delicate balance” which s. 1 requires courts to

strike.

[394] Accordingly, while it may well be feasible to weigh infringements of s.

15(1) violations against collective objectives directly related to other

constitutionally protected rights, M. v. H. instructs that the

counterbalancing collective objective in s. 1 analyses can be “other values

and principles” as long as they are consistent with the Charter. In holding

them to such consistency, the instruction tacitly recognizes the Charter

does not concern itself with trifles. Its entrenchment as an integral part of

the Supreme Law of Canada bespeaks the order of the Charter’s

importance, and that of the guarantee of the fundamental rights and

freedoms enforceable under it. It follows that measures of sufficient

importance to justify limitations upon those rights and freedoms should be

directed to objectives consistent with the Charter’s values and principles,

which are of demonstrably higher imperative than the affected individual

prerogatives.

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the PSAC case:

[395] PSAC involves circumstances similar to those at bar. In issue in that case

was the constitutional validity of a budgetary measure effected through

legislation imposing restraints on public sector compensation enacted in

pursuance of federal government policy to combat spiralling inflation. The

Public Service Alliance of Canada sought a declaration that the restraint

legislation was of no force and effect for want of compliance with s. 2(d) of

the Charter guaranteeing freedom of association. Being unsuccessful in

the trial and appellate divisions of the Federal Court, the Alliance pursued

its quest for the declaration in the Supreme Court of Canada.

Page: 144

[396] Finding neither Charter violation, nor other basis to grant the declaration,

the majority dismissed the appeal. It, therefore, had no need to inquire into

justification under s. 1. Dissenting in part, Dickson C.J.C. was of the

opinion that an infringement of the freedom of association guarantee had

been perpetrated by the restraint legislation, but concurred with the appeal’s

dismissal on the basis that the violation was justifiable under s. 1. Wilson J.

dissented, being of the view that the s. 2(d) violation was not justifiable.

[397] It was Dickson C.J.C.’s treatment of justification in PSAC upon which

Government’s counsel relies to counter the enlistment of Schachter by

NAPE’s counsel to support her argument that fiscal savings cannot be used

in s. 1 justifications of Charter violations. In his rejoinder to that

argument, counsel for Government responds with the following commentary

by Dickson C.J.C. at p. 440 of PSAC:

C

... in Re Anti-Inflation Act, ... a majority of this Court was not

prepared to conclude that Parliament was wrong in considering the

inflationary experience of the early 1970's to amount to a situation of

economic crisis imperilling the well-being of the people of Canada as

a whole and requiring Parliament’s stern intervention ....

Accordingly, the Anti-Inflation Act ... was held to be valid pursuant to

the federal government’s peace, order and good government power.

The seriousness of inflation underlined by the Court’s decision in Re

Anti-Inflation Act supports the characterization of Parliament’s

objective in the present case as relating to a “pressing and substantial

concern”. I am of the opinion, therefore, that the objective of

reducing inflation was, at the time of passage of the Act, an objective

of sufficient importance for the purpose of s. 1 of the Charter.

[398] As Government’s counsel bills it, the foregoing commentary is a

consideration quite apropos in weighing the merits of NAPE’s contention,

which its counsel erects on Schachter, that fiscal saving is not an objective

“designed to promote other values and principles of a free and democratic

society” which, as preceding para. 377 has already recorded, M. v. H. posits

as a basis of s.1 justifications. The pertinence of those words of Dickson

C.J.C. in PSAC is not diminished because PSAC antedated Schachter by

some five years. Neither is it affected because the opinion that the

sufficiency of the importance of the legislative object of reducing inflation

was reached in a judgment relying on another case that antedated the

Charter, and considered the importance of curbing inflationary pressures

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from the perspective that they had become a serious enough national

concern to warrant invoking the federal legislative peace, order and good

government power in the Constitution. If economic restraint were

sufficiently important to warrant the exercise of the federal emergency

power to enact the restraint legislation in those circumstances, it appears

quite reasonable for Dickson C.J.C. to have concluded that a subsequent

restraint measure taken to address other serious concerns over inflation “was

an objective of sufficient importance for the purpose of s. 1 of the Charter”.

[399] The immediate relevance to the appeal at bar of the former Chief Justice’s

commentary in PSAC lies in that conclusion that budgetary restraints

imposed with the objective of reducing serious inflationary pressures was of

sufficient importance to justify under s. 1 a Charter violation. By

analogous extension, this provides firm support for proceeding on the

footing that mushrooming fiscal deficits urgently requiring containment and

reduction through budgetary means are sufficiency substantial and pressing

to justify Charter violations under s. 1. It is the kindred threat to economic

well-being and security within the affected jurisdiction that justifies

restraint legislation whose objective is to curtail pressing and substantial

threats, whether from inflationary pressures or uncontrollable soaring

deficits. Hence, if Dickson C.J.C.’s opinion that the objective of reducing

inflation can be “an objective of sufficient importance for the purpose of s. 1

of the Charter” is a tenable conclusion, then the objective of containing and

reducing seriously mushrooming unforecasted fiscal deficits must warrant

similar appraisal.

[400] Counsel for NAPE downplays opposing counsel’s reliance on the foregoing

commentary in PSAC by pointing out that it was expressed by Dickson

C.J.C. in partial dissent. It is true that his judgment in PSAC departed from

the majority. Be that as it may, the opinion of the architect of the Oakes’

general principles under which s. 1 inquiries are to be conducted, and the

roles that Dickson C.J.C. had played in cases leading up to his judgment in

Oakes, namely: Law Society of Upper Canada v. Skapinker, [1984] 1

S.C.R. 357; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Singh v.

Minister of Employment and Immigration, [1985] 1 S.C.R. 177; and, R.

v. Big M Drug Mart Ltd., give ample reason to lend weight to his

commentary in P.S.A.C.. Moreover, there is nothing in the majority

judgments in PSAC, whose conclusions that no infringement had transpired

obviated any need to consider s. 1's application, which takes exception with

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Dickson C.J.C.’s opinion. While Wilson J. dissented from the opinion that

the infringement as found by Dickson C.J.C. survived s. 1 analysis, she did

so on the footing that the restraint measures were not rationally connected to

the objective, and not on the sufficiency of the objective’s importance.

There being no authority detracting from the rationality of it, there is, with

due respect to counsel’s contrary view, good reason to treat Dickson

C.J.C.’s commentary in PSAC as highly persuasive, if not authoritively

binding.

[401] Accordingly, PSAC makes a very germane contribution to the present

discussion on the use of budgetary considerations in addressing s. 1

justifications of Charter violations. Drawable by analogy from it is

conclusion that the objective of containing and reducing fiscal deficits

seriously threatening economic security and well-being by means of

budgetary measures is an end of sufficient importance for the purpose of the

Charter.

[402] Having now completed discussion of these four cases bearing upon

counsel’s insistence that s. 9 of the restraint legislation, being a budgetary

measure of fiscal saving, cannot be used to justify the equality rights’

infringements perpetrated by it, an overview of these cases will now be

conducted. The purpose of this is to show how those cases, including

Schachter, meld to provide cohesive a principle on which will be conducted

the sufficiently importance phase of the s. 1 analysis of the Charter

violation at bar.

>

overview of authorities:

[403] Schachter is not at odds with McKinney, M. v. H. and P.S.A.C. All four

cases combine and synthesize into one coherent directive guiding

applications of s. 1.

[404] Depiction of the assertion in Schachter as foreclosing any consideration of

budgetary decisions in s. 1 analyses is, with respect, an incomplete

portrayal. It is true that budgetary considerations alone may not be cited as

justification for Charter infringements so as to open the way to Charter

limitations for every budgetary need. A look beyond those needs to the

objectives of the laws limiting Charter rights, as McKinney directs, is

required. As already pointed out, the distinction between the budgetary

means and the objectives which they promote can be seen to have been

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recognized in the highlighted commentary from Lamer C.J.C.’s judgment in

Schachter.

[405] M. v. H. further develops the jurisprudence relating to the sufficiency of

importance of objectives prompting Charter limitations by re-affirming that

concentration must be had on objectives, whilst stating that a limitation on

the enjoyment of equality rights may be justifiable, if, “although not

designed to promote equality, it is designed to promote other values and

principles” of a free and democratic society. As has already been noted,

these “other values and principles” can embrace educational, health and

other social goals.

[406] Although handed down before any of the other three authorities, Dickson

C.J.C.’s judgment in PSAC contains within it direction from which may be

extrapolated by analogy a principle for conducting inquiries into whether

fiscal restraints limiting Charter rights and freedoms are sufficiently

important to be justifiable under s. 1. As preceding para. 401 intimates, that

principle allows for the budgetary restraint measures to be deemed

sufficiently important if their objectives are aimed at containing and

reducing fiscal deficits which seriously threaten economic security and

well-being within the jurisdiction to which the restraints apply.

[407] It can be seen that that principle cohesively synthesizes the essential

ingredients of s. 1 analyses articulated in Schachter, McKinney and M. v.

H. which have just been highlighted in the foregoing discussion of them.

Thus, the extrapolated principle does not use budgetary considerations per

se to justify s. 1 violations, but centers its focus on the objective of the fiscal

restraint measures, and thereby combines the instructions in both Schachter

and McKinney. By the same token, in stipulating the curbing of fiscal

deficits of pressing and substantial concern qualifies as a sufficiently

important objective to justify infringements, the principle also blends within

it M. v. H.’s instruction that limiting objectives under s. 1 include those

“designed to promote other values and principles” consistent with the

Charter. The latter meld is more indirect, but nonetheless evident. It stems

from the twin reality that objectives promoting education, health and other

social programs fall within “other values and principles” consistent with the

Charter and, if a fiscal deficit of serious enough proportions to threaten

economic security and well-being has been established to be looming, then

it can be assumed that those “other values and principles” are

commensurately threatened as well.

Page: 148

[408] Actually, it seems eminently preferable that the affect of fiscal deficits, or

other economic exigencies, on those “other values and principles”, of which

M. v. H. speaks, be so left to the indirect proof. This is because by leaving

the impact of deficits on those “other values and principles” to be inferred

from the seriousness of such financial shortfalls, specific inquiries into the

extent of the effect upon educational, health and other essential social

problems are avoided. This, in turn, has the salutary result of steering the

judiciary from micro-managing budgets which, it is safe to say, is a power

with which the Charter had absolutely no intention to endow the courts.

[409] Having averted to how the principle extrapolated from PSAC embodies an

amalgam of the directions on the conduct of s. 1 analyses enunciated in all

four highlighted authorities, attention will now turn to applying it in the

circumstances at bar. Accordingly, this judgment will now explore whether

Government has proven that the objective of containing and reducing the

fiscal deficit which the Province was facing through enactment of the pay

equity restraints was sufficiently important to justify the override of affected

employees’ equality rights in s. 9 of the restraint legislation.

>

sufficiently importance analysis:

[410] Counsel for NAPE argues the evidence presented by Government did not

establish the sufficiency of the impugned restraint measure’s importance,

and the judge therefore erred in upholding the Arbitration Board’s finding

of sufficiency. She maintains the evidence called by Government on the

pressing and substantial nature of the economic threat was not nearly as

extensive as that which she contends a perusal of PSAC will reveal was

called in that case. Counsel attacks the strength of Government’s evidence

led in support of the sufficiency of the restraint legislation’s importance on

two fronts.

[411] The first questions the credentials of one of Government’s principal

witnesses who testified before the Arbitration Board regarding the

seriousness of the fiscal deficit on which Government was attempting to

justify the restraint legislation’s Charter violation. In this submission,

NAPE’s counsel points to the transcript of that public servant’s evidence

before the Board which records him to have been attached to the

Department of Career Development as Assistant Deputy Minister of Finance

and Administration at the time of enactment of the impugned restraint

legislation. Not having been directly associated with Treasury Board or the

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Department of Finance at the time of passage of the restraint legislation,

counsel argues that witness’s evidence regarding the seriousness of the

deficit and the importance of the legislation’s objective in curbing it should

be discounted. With respect, however, this submission cannot be given

sway. The witness in question had spent most of his career in Treasury

Board, and, during the first ten years preceding his tenure as Assistant

Deputy Minister in the other Department, had been involved in virtually

every division in it. Moreover, he had returned to Treasury Board in 1993.

There is, therefore, no basis to seriously question his competency to provide

the evidence to which he attested before the Arbitration Board.

[412] The second prong of counsel’s attack is directed towards other evidence

placed before the Arbitration Board which provides an account of the policy

reasons behind Government’s decision to impose the restraints which

affected its pay equity promise, and perpetrated the violation of the s. 15(1)

equality rights. This evidence was in the form of the Hansard of the

Minister of Finance’s remarks on his introduction in the House of Assembly

of the Bill containing the impugned restraint measure. Inasmuch as the

Minister of Finance is the cabinet minister whose portfolio is most directly

responsible for governmental fiscal policy, his explanation of the

background behind the impugned measure’s adoption is obviously highly

relevant to any assessment of the justifiability of its importance.

[413] Counsel’s challenge of the Ministers evidence is directed to its

admissibility. As the agreed list of issues detailed in preceding para. 108

records, the Arbitration Board’s reference to Hansard is being pursued as a

separate consideration in this appeal. Accepting its admissibility for the

purpose of the present discussion, and subject to its confirmation when this

judgment comes to deal with this aspect of the challenge to the Minister’s

evidence, it has to be said that the record of his introduction of the

impugned legislation affords compelling evidence of the sufficiency of the

importance of Government’s equality rights infringement through its repeal

of its pay equity promise over the three year restraint period. The following

resumé affords a flavour of the weight of that evidence.

[414] The Hansard of March 19, 1991, records the Minister of Finance as

summarizing the events leading up to the Bill’s introduction. He recounted

how shortly after passage of its previous budget, Government learned that

forecasted revenues from the federal Government were to be “somewhat

reduced”. By late summer or early fall, it had become obvious that a

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combination of reducing provincial revenues and increased expenditures

was going to transform a projected $10 million surplus into a $120 million

deficit. At that time, restraint action was taken through executive initiatives

to attempt to curb the degree of deficitary escalation. Notwithstanding that

action, the Minister informed the Assembly, it was apparent a deficit in the

vicinity of $200 million must be forecasted “if we were to continue the same

way”, i.e. to provide the same level of services and programmes, in the

upcoming fiscal year. He forecasted even greater deficits in the order of

$400 to $600 million for ensuing years just to maintain the same levels of

governmental services and programmes. In light of these facts, it would

appear difficult to refute the Minister’s styling of the seriousness of the

problem posed by these projections of soaring deficits as “horrendous”.

Neither could exception very well be taken with the portrayal of the

situation by counsel for Government as “catastrophic”.

[415] In explaining Government’s policy choice of targeting pay equity in its

partial response to these deficitary woes, the Minister is recorded in

Hansard to have pointed out that a “retroactive bill” for pay equity had been

accruing which, in Government’s estimation, “was in the vicinity of $24

million”. In this regard, it will be recalled from the account at the outset of

this judgment of the circumstances of this appeal that the Government had

been awaiting a report from financial consultants before it would be in a

position to respond to its promise to make the promised wage equity

adjustments. Coincidentally, as preceding para. 8 points out, it was not until

the day after the Minister introduced the restraint legislation, i.e. not until

March 20, 1991, that that report was finished. It was not received until July

21, 1991. This explains why Government would not be in a position to

respond to its undertaking to make the wage adjustment payments until the

1991-92 fiscal year when a deficit in the vicinity of $200 million was

forecasted if Government “were to continue the same way”. The Minister’s

remarks captured in Hansard indicated, then, that relief from the burden of

that “retroactive bill” would address approximately $24 million of that

deficit.

[416] It is against this backdrop that the relative importance of enjoyment during

the restraint periods of the pay equity promises, endowing affected public

sector employees with enforceable s. 15(1) equality rights and freedoms

from systemic discriminations, must be weighed against the policy objective

behind the violation of those rights and freedoms imposed under s. 9 of the

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impugned restraint legislation. In light of the foregoing outline of the

evidence adduced at the arbitration hearing, the scale of relative importance

can be reasonably seen to be weighted in favour of according paramountcy

to the limitation which s. 9 effects on the conferred individual equality

rights for the duration of the restraint period. The sheer magnitude of the

severe financial situation presented by the prospect of burgeoning fiscal

deficits that hovered over the Province early in 1991 leads compellingly to

the conclusion that the implementation of those pay equity promises during

the restraint periods would, in Oakes’ words already quoted in preceding

para. 379, be “inimical to the realization of the collective goals of

fundamental importance”, viz: the reduction and containment of fiscal

deficits which presented urgent, pressing and substantial threats to the

Province’s economic security and well-being. As already noted, PSAC

provides authoritative support for holding that the curbing of such deficitary

situations, given the threat they invariably pose to those “other values and

principles” consistent with the Charter which M. v. H. mentions, are to be

treated as objectives of sufficient importance for the purpose of s. 1

justification analyses.

[417] The foregoing portrayal of the enjoyment of the pay equity adjustments as

inimical in the circumstances obtaining should not be taken as denigrating

from the importance of the violated equality rights. Neither should there be

inferred from that characterization any insensitivity to NAPE’s

understandable frustration, conveyed by its counsel in her submissions in

this appeal, over Government’s parrying of its pay equity obligations some

three years after they were undertaken, and just when significant difficulties

that had stood in the way of their implementation were on the threshold of

resolution. The importance of those pay equity promises is witnessed by the

fact that, once assumed by Government, they become constitutionally

protected fundamental rights. The finding of inimicalness in the attendant

circumstances neither detracts from the significance of those rights, nor

reflects any lack of appreciation of NAPE’s disappointment over

Government’s reneger during the restraint periods, irrespective of the

justifiability of that decision.

[418] That said, the finding that the enjoyment of the promisees’ equality rights

was inimical has to be viewed in the context of the length of, and reason for,

limiting them. Hence, it needs be kept in mind that the violation was a

temporary measure motivated by an urgent need to redress a severe

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economic crisis confronting the Province. It has not been suggested that s. 9

of the restraint legislation masks any colourable attempt to renege

completely on the promises made in the Pay Equity Agreement of June 24,

1988. In fact, as para. 3 of this judgment has already pointed out,

arrangements were concluded on the expiry of the statutory restraint periods

for the implementation of that Agreement. The inimicalness holding, then,

only relates to the enjoyment of the fundamental constitutionally protected

pay equity rights during the projected temporary three year period of

restraints aimed at coping with a serious provincial emergency threatening

the economic security and well-being of individuals and families within the

jurisdiction. At the same time, the holding reflects the determination that

the limitation placed on enjoyment of those equality rights conferred

through the pay equity agreement was sufficiently important to justify

temporarily overriding them through s. 9 of the restraint legislation.

[419] Accordingly, the challenge to the judge’s upholding of the Arbitration

Board’s unanimous finding of the restraint legislation’s sufficient

importance is rejected. No exception may be taken with the judge’s

determination that the “severe financial circumstances” looming over the

Province rendered “the objective of reducing expenditures ... sufficiently

important to justify a limitation on the s. 15(1) Charter rights”. Neither may

objection be taken with his conclusion, implicit in that determination, that

the Board’s holding in the same vein, highlighting the “pressing and

substantial objective of saving money” in order “to reduce the escalating

deficit ...”, was sustainable.

[420] In the result, this judgment sides with the unanimous opinions expressed in

all dispositions to date that the violation of the s. 15(1) equality rights

secured through the Pay Equity Agreement was of sufficient importance for

purposes of s. 1 justification under the Charter. The ultimate justification

of the violation of the s. 15(1) Charter rights perpetrated through s. 9 of the

restraint legislation comes down, therefore, to whether it is also sustainable

under the three aspects of the proportionality criterion set down in Oakes.

Before proceeding to that inquiry, however, as preceding para. 372

indicated, attention will turn to the consonance of the Separation of Powers

Doctrine with the foregoing analysis of the satisfaction of the first of the

Oakes criteria.

Page: 153

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consonance with the Doctrine:

[421] In addressing the congruity of the Separation of Powers Doctrine with this

judgment’s exercise of s. 1's judicial power, in the context of its affirmation

of the prior findings that the objective of the s. 15(1) Charter violation

perpetrated by s. 9 of the restraint legislation was important enough to

justify the infringement, it needs to be underscored that that assessment took

place on the footing of weighing the relative importance of the individual

right contrasted with the communal objective of its violation, viz: the goal

of containing and reducing the established threat of soaring fiscal deficits.

No consideration was given in that inquiry, however, to alternate measures

that might have been taken by Government. The exercise of deciding

whether another course of action should have been followed, rather than the

one which infringed the affected right, would be tantamount to the bench

assuming policy powers to a degree not contemplated under s. 1 of the

Charter. As has been repeatedly reiterated in this judgment, s. 1 of the

Charter leaves justification of infringements to that “delicate balance”,

which LaForest J. describes in the excerpt from his judgment in RJR-

MacDonald reproduced in preceding para. 258, as having to be struck

“between individual rights and community needs”. The comparison

intended by s. 1, therefore, is confined to weighing the relative importance

of enjoyment of the constitutionally protected right against Government’s

actual policy choice to accord paramountcy to the societal objective that

motivated the limitation on the right’s exercise, and not against another

policy choice or objective.

[422] It is important to keep in mind those confines of the scope of s. 1’s judicial

sorties into the policy field. There is no doubt that s. 1 expanded the

traditional role of the judiciary in the field of public policy coincidental with

empowering courts to pass on the relative importance of the policy

objectives behind rights’ violations vis à vis the enjoyment of those rights.

However, it does not confer on the judiciary untrammelled license to usurp

the policy domain of the elected branches of government beyond that point.

Hence, whilst s. 1 empowers the judiciary to take that extra step into the

policy field, it does not sanction further progression into the policy domain

reserved to the political branches of government under the Separation of

Powers Doctrine. As previously observed in this judgment, the Doctrine

was not subsumed by s. 1, nor by any other provision of the Charter. They

both constitute defining features of the Constitution, and are intended to

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operate in rational harmony with each other in furthering the goals of a free

and democratic society.

[423] This harmony is achieved through judicial deference to the policy choice

adopted to address communal or societal needs. That is not to say that courts

must automatically defer to executive or legislative conclusions that

communal ends were sufficiently important to justify violations of

individual rights. Such determinations are squarely reserved to the judiciary

under s. 1. It does mean, however, that the judiciary should defer to the

opted policy choice, and not inquire into other alternatives whose

realization might appear outweighed by the violated right’s enjoyment in

striking that “delicate balance between individual rights and community

needs” of which LaForest J. wrote in RJR-MacDonald.

[424] Such deference is confirmed in the text of s. 1. A perusal of s. 1's wording

reflects intent that the judicial justification power be rationalized through

deference to the adopted policy choice without inquiry into other options

which the judiciary might consider to have been available. Thus, the

wording of s. 1 guarantees individual rights only to the extent that

reasonable limits on their enjoyment are not proven demonstrably justifiable

by societal objectives affecting their exercise. The Oakes criteria for s. 1's

application should be received as intended to be applied in that light. This

being so, in inquiries into whether collective goals of violative measures are

important enough to warrant displacing or supplanting the affected

individual right under s. 1, comparison would logically be expected to be

between the exercise of the violated individual right and the collective

objective that spawned the limitation on its exercise.

[425] By the same token, s. 1 does not contemplate comparison of the

fundamental individual right’s exercise with other policy choices that the

judiciary might feel might have been adopted to respond to the communal or

societal need. Such a course would stand the Separation of Powers Doctrine

on its head, and the wording of s. 1 provides no basis for any such radical

departure from it. Implicit in that wording is a call to judicial deference to

the policy choice selected to achieve the collective goal, and concomitant

direction to place only that choice, alongside the individual right which it

violates on the scales of justification. Hence, whilst s. 1 undeniably

modifies the Separation of Powers Doctrine as it operated before the

Charter’s advent, to the extent of its warrant to inquire into the justifiability

of the policy of the objective behind a Charter right’s violation, it holds the

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judiciary’s incremental entry into the policy field to assessments of the

justification of the actual policy choice which perpetrated the individual

right’s limitation.

[426] Moreover, in holding the assessment of the sufficiency of importance of the

limitation on the individual right to comparison with the actual policy

objective behind the limitation on the protected fundamental right, the

Charter harmonizes the incremental judicial power in the policy domain

conferred through s. 1 with the more longstanding feature of the

Constitution embodied in the Doctrine. It so rationalizes those two defining

constitutional features by confining the expanded judicial power within its

rational bounds of passing on the justification of the selected policy choice

to limit the individual right. Actually, it can be parenthetically observed

that Oakes’ two criteria for s. 1 analyses can be seen to be melded in those

two comparatives. Thus, in weighing the relative importance of the

enjoyment of the individual right against the policy objective for limiting its

exercise, the court is really engaged in an assessment of proportionality. In

effect, inquiry into whether it has been established on a balance of

probabilities that an intrusion into the enjoyment of a Charter right is

important enough to justify overriding that right is essentially a cost/benefit

analysis addressing whether it has been shown that, on the scale of relative

importance, the cost of exercise of that right, would be disproportionate to

the benefit derivable from the overriding limitation’s collective goal.

[427] An essential key to conducting that analysis within the confines of its

intended harmony with the Separation of Powers Doctrine lies in observing

deference to the policy choice selected to achieve the collective societal

goal, and not venturing into inquiry as to how alternate choices might weigh

in the balance of justification. Although writing in partial dissent, another

extract from Dickson C.J.C.’s judgment in PSAC provides sound rationale

for underscoring the role that a high degree of deference to policy decisions

plays in harmonizing s. 1 justifications with the Doctrine. Thus, at p. 442 of

that authority he wrote:

C

In my opinion, courts must exercise considerable caution when

confronted with difficult questions of economic policy. It is not our

judicial role to assess the effectiveness or wisdom of various

government strategies for solving pressing economic problems. The

question how best to combat inflation has perplexed economists for

several generations. It would be highly undesirable for the courts to

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attempt to pronounce on the relative importance of various suggested

causes of inflation, such as the expansion of the money supply, fiscal

deficits, foreign inflation or the built-in inflationary expectations of

individual economic actors. A high degree of deference ought

properly to be accorded to the government’s choice of strategy in

combatting this complex problem.

[428] The “high degree of deference” to governmental strategies for confronting

“pressing economic problems” trumpeted in the foregoing passage was

directed to the problem of controlling serious spiralling inflationary

pressures, which was the objective that Dickson C.J.C. found sufficiently

important in PSAC for the purpose of s. 1. It is equally germane, however,

to problems presented by soaring fiscal deficits, which the case at bar

involves. Moreover, while there appears to be no good reason why the

cautionary note sounded in the foregoing passage, and its high level of

judicial deference, should be confined to policy choices involving “difficult

questions of economic policy”, it must, nonetheless, be counted especially

so where those choices are made in reaction to menacing economic policies

such as those confronted in PSAC and at bar. Those words of Dickson

C.J.C. in PSAC make a strong case for high judicial deference to policy

choices made by the executive or legislative branches in the context of

rationalizing the expanded space allotted to the judiciary in the policy field

by s. 1 with the Separation of Powers between the three branches of

government, both of which are now essential features of the Canadian

Constitution. As the foregoing passage from PSAC succinctly points out,

while the judiciary is commissioned under s. 1 to pass upon the justifiability

of the selected policy choice, it has no mandate, neither is it equipped, to be

ultimate arbiter of the policy that should have been chosen in response to

the complex problem.

[429] Moreover, observance of a “high degree of deference” to the policy choice

government opted to follow in the circumstances at bar does not run afoul of

McLachlin J.’s view on deference articulated in RJR-MacDonald. As

preceding para. 267 records, McLachlin J. held in that authority that a lesser

degree of deference is accordable “where the trial judge has considered

social science and other policy oriented evidence” as opposed “to findings

based on evidence of a purely factual nature”. While the legislative

objective of curbing fiscal deficits was itself aimed at maintaining the

Province’s capacity to provide educational, health, and other social services

Page: 157

and communal needs, the evidence bearing upon the justification of that

objective vis à vis the limitation of the Charter equality rights effectuated

by s. 9 of the restraint legislation was not based on considerations of “social

science and other policy oriented evidence”. Instead, the evidence upon

which the justification findings were unanimously reached in the two prior

proceedings was based on cold, hard economic realities. In one sense, all

evidence leading to policy decisions might be characterized as “policy

oriented” as it was the basis of the choice. However, it appears McLachlin

J.’s holding should be read in the sense of the evidence itself having a

policy context. The fact that RJR-MacDonald addressed a legislative

choice requiring warning labels on tobacco which was justifiable on policy-

oriented evidence, and not “difficult questions of economic policy”

justifiable on fiscal evidence of a factual nature, distinguishes that case from

the circumstances at bar. In any event, the policy choice under scrutiny in

this appeal was taken on factual evidence which, as McLachlin J. confirms,

normally requires a high level of deference.

[430] In the result, therefore, a high degree of deference to the policy choice

effectuated through s. 9 of the restraint legislation requires the violation of

the public sector employees’ s. 15(1) Charter equality rights being weighed

on the scale of s. 1 justification against that choice, and no other. Because

the evidence motivating that choice consisted of hard economic realities of a

factual nature, high deference is also accordable to those findings, as well.

It needs be added, however, that on any level of deference those findings

would have to be sustained. In fact, given that the omnipresence of the

looming serious fiscal deficits was inescapable, the evidence behind the

policy choice to impose the limits on the pay equity entitlements through s.

9 would be sustainable on any lesser degree of deference, or even on the

more stringent standard of correctness.

[431] Accordingly, this judgment concludes the judge should be upheld in his

affirmation of the Board’s unanimous finding that the objective of s. 9 of the

restraint legislation was sufficiently important to justify its violation of the

affected employee’s s. 15(1) equality rights. It has also taken, as it indicated

it would in preceding para. 372, the added step of explaining how that

conclusion was reached without invading the policy domain reserved to the

other branches of government under the Separation of Powers Doctrine as

modified by the operation of s. 1 of the Charter. Hence, it can also be

concluded that the determination that the legislative objective was

Page: 158

sufficiently important to justify overriding the affected equality rights was

carried out in consonance with the Doctrine. Having made these findings,

this s. 1 analysis turns to the second of the Oakes criteria, i.e., the

proportionality aspect of justifications of Charter rights violations.

>

proportionality of measures:

[432] The foregoing inquiry into whether the objective of s. 9 of the restraint

legislation was sufficiently important to justify its violation of affected

employees’ s. 15(1) Charter equality rights naturally focused on the

relative importance of that objective compared with the enjoyment of those

equality rights. From a survey of relevant authorities canvassed in

preceding paras. 379 to 409, this judgment explains why that focus in

analysis of the first of the Oakes criteria does not converge on the means of

attaining communal objectives, but on the societal goals themselves. Thus,

in the initial phase of s. 1 analyses, the degree of the objective’s importance

is matched against the import of the limitation of the Charter right or

freedom perpetrated in the realization of those societal goals. Through this

comparison it is determined whether the objective is “sufficiently

significant” to outweigh the acknowledged importance of the individual

fundamental right or freedom that will be breached in the course of realizing

the purpose of the societal objective.

[433] On the other hand, inquiry into proportionality - the other of the two central

criteria laid down in Oakes for the conduct of s. 1 analyses - focuses on the

means, or the measure, by which the objective is achieved. This focus is

gleanable in the following excerpt at p. 139 of Oakes, setting out three

components of the proportionality test:

C

... once a sufficiently significant objective is recognized, then the

party invoking s. 1 must show that the means chosen are reasonable

and demonstrably justified. This involves “a form of proportionality

test” ... Although the nature of the proportionality test will vary

depending on the circumstances, in each case courts will be required

to balance the interests of society with those of individuals and

groups. There are, in my view, three important components of a

proportionality test. First, the measures adopted must be carefully

designed to achieve the objective in question. They must not be

arbitrary, unfair or based on irrational considerations. In short, they

must be rationally connected to the objective. Second, the means,

Page: 159

even if rationally connected to the objective in this first sense, should

impair “as little as possible” the right or freedom in question. Third,

there must be a proportionality between the effects of the measures

which are responsible for limiting the Charter right or freedom, and

the objective which has been identified as of “sufficient importance”.

[434] As can be observed from a perusal of the foregoing excerpt, the comparative

common to all three components on the proportionality side of the inquiry is

the measure taken to achieve the objective. Hence, the primary focus at this

second proportionality stage of the analysis switches from the objective to

the means taken to attain it. The foregoing passage instructs that three

components must constitute the measure. Firstly, it must be shown it is

fairly and rationally relatable to attainability of its objective, which already

will have been established as sufficiently important to justify the Charter

limitation, and does not constitute an arbitrary exercise of executive or

legislative power. Secondly, the measure must impair the affected right or

freedom “as little as possible”; or, as it is sometimes expressed, is the “least

drastic means” of intruding on that right or freedom. Finally, with the

importance criterion together with the rational connection and minimal

impairment components of the proportionality test resolved, the measure is

weighed to determine if the effects of its limitation on the constitutionally

guaranteed right or freedom is, nonetheless, so deleterious as to outweigh its

substantial and pressing objective. It will be noted, then, that it is the

degree of the measure’s proportionality in relation to its objective that is

taken into account in considering the first and third components, whilst its

degree vis à vis the affected right or freedom is the axis of comparison in

broaching the second component.

[435] The opening words in that highlighted excerpt from Oakes are also

noteworthy. As they state, the degree of the objective’s importance will

have been established by the time the proportionality requirements come for

consideration. Otherwise, the violation would have had to have been held

unjustifiable and there would be no need to enter into that second stage of

the analysis. At that juncture, with the degree of its importance being

settled as “sufficiently significant” to justify overriding the limitation on the

constitutionally protected right or freedom, the objective of the infringing

measure takes its place with the affected right or freedom as an end of

recognized importance. Thus, together with the right or freedom that has

been limited, it becomes a fixed yardstick with which the proportionality of

Page: 160

the measure is respectively weighed in the context of the proportionality

test’s “three important components”. In effect, then, to coin a well known

colloquialism, all three components essentially involve inquiry directed

towards assuring that no collective mallet is used to kill the proverbial fly

by resort to disproportionate means to realize professed paramount

collective goals at the unjustifiable expense of constitutionally protected

individual rights.

[436] Against the backdrop of the foregoing commentary, this judgment will now

proceed to apply the second of the Oakes criteria, following the format of

the three components into which that authority divides the proportionality

test. It perhaps should be mentioned that previously in this judgment these

components, following the terminology employed in referenced decisions

then under discussion, have been alternately referred to as criteria, or

aspects, or principles, or guidelines. This lack of consistency in

terminology is neither here nor there insofar as the substance of the

components’ application is concerned. It is noted, however, for explanatory

purposes, if that be needed. Henceforth, the three defined elements of the

test described in the excerpt from Oakes reproduced in preceding para. 433

will be referred to as components in the ensuing proportionality analysis.

>

rational connection component:

overview of inquiry:

*

[437] In addressing the first of these proportionality components, inquiry turns, in

accordance with the direction in the highlighted excerpt from Oakes, to

whether the measure repealing government’s obligations to make the pay

equity adjustments over the restraint periods is rationally connected to the

legislative objective of containing and reducing the fiscal deficits that

threatened the economic security and well-being of everyone in the

Province. As just explained in outlining the format of the inquiry, this will

entail consideration of whether the repeal was fairly and rationally relatable

to containing and reducing those forecastable deficits, or masked an

arbitrary exercise of power. It should be underscored that this inquiry is

undertaken in the context of addressing the sustainability of the judge’s

holding that the unanimous finding of the Arbitration Board of rational

connection of the measure to the objective should be upheld.

Page: 161

[438] At the outset, it must be observed that it would appear to strain the limits of

logic beyond their bounds to suggest that such fiscal restraint was not

rationally connected to the legislation’s objective of containing and

reducing the fiscal deficits that loomed over the Province. Just as every

spendthrift practice, be it familial or governmental, sows seeds of spiralling

deficits, and of economic hardships which such deficits inevitably presage,

so it would seem axiomatically to follow that restraints on expenditures are

rationally connected to the curbing of fiscal deficits, and to avoidance of the

heavy burdens arising out of consequential deteriorating economic

conditions.

*

positions of counsel:

[439] In her client’s factum, counsel for NAPE maintained Government had failed

to demonstrate it was necessary to impair the constitutional rights at issue in

this case in order to fulfill its objective of reducing governmental

expenditures. The factum went on to contend the evidence adduced before

the Arbitration Board does not contradict NAPE’s claim that that objective

could have been met without enacting s. 9 of the restraint measure.

Although this stance in the Union’s factum appears to border more so on the

minimal impairment component of the proportionality test, NAPE’s factum

submitted the alleged lack of demonstrable necessity sustained a conclusion

that no rational connection had been established.

[440] In his response to these formal submissions by NAPE, counsel for

Government holds up the words of Dickson C.J.C. in the Oakes extract

reproduced in preceding para. 433 which underscores measures “must be

carefully designed to achieve the objective in question ... must not be

arbitrary, unfair or based on irrational considerations”. Government’s

factum maintains that the “postponed pay equity payments” effected by s. 9

of the restraint legislation were “carefully tailored to achieve its object and

was neither arbitrary nor irrational”. It is noted that this argument

substantially tracks the judge’s finding regarding fulfillment of the rational

connection argument which, in turn, followed the view on that aspect of the

s. 1 analysis of the Board’s majority.

*

measure’s rational connection:

[441] There appears to be no need for protracted discussion of these arguments.

In Re: Anti-Inflation Act, [1976] 2 S.C.R. 373, which has already been

Page: 162

referred to in the passage from Dickson C.J.C.’s judgment in PSAC

reproduced in preceding para. 397, Laskin C.J.C. held at p. 425 that

“Parliament’s stern intervention in the interests of the country as a whole”,

through the legislative anti-inflationary measure, was rationally connected

to the enactment’s objective of meeting “a situation of economic crisis

imperilling the well-being of the people of Canada as a whole”. Inasmuch

as this holding was sufficient for the Court to have ruled that Parliament had

a justifiable “rational basis” to regard the measure as “temporarily

necessary” to warrant invoking its emergency legislative powers, there

appears to be ample room to justifiably argue by analogy the rational

connection of the temporary reneging on the pay equity payments in order to

combat the economic crisis presented by incipient escalating deficits, and to

consider the measure necessary in the interests of the Province as a whole.

[442] In the final analysis, counsel for NAPE did not deny the common sense of

the rational connection of the restraint measure with its legislative object.

Thus, in her oral submissions she conceded that, if the enactment’s

objective was to save money, it would be difficult to maintain that s. 9 of the

restraint legislation was not rationally connected to its objective. This

forthrightness is timely. No other conclusion could be drawn in the

circumstances of this case. While the saving of money was not, strictly

speaking, the legislative objective, but the means to its end of containing

and reducing serious fiscal deficits hovering over the Province, the measure

must be conceded to have been rationally connected to that objective. This

is established by the evidence which shows the restraint measure limiting

enjoyment of affected employees’ s. 15(1) Charter rights to be fairly and

rationally relatable to the attainment of its objective, and which offers no

basis to portray the measure as a colourable attempt to arbitrarily trench on

those rights.

*

consonance with Doctrine:

[443] The foregoing conclusion of rational connection has been reached in consort

with the Separation of Powers Doctrine. This is because it involved no

inquiry into whether other means existed that might be perceived more

rationally connected to the legislative object. Conforming with the call to

deference to legislative policy choices, the foregoing assessment was strictly

confined to the linkage of the statutory choice to postpone the

commencement of pay equity adjustments with the objective of the statutory

Page: 163

measure. The conclusion of rational connection, therefore, can be seen as

made in the course of exercise of judicial power which is akin to the court’s

traditional statutory interpretative role of construing the effect of measures

having the force of law. In that light, alternate measures formed no part of

the reasoning, and the conclusion was made within acceptable bounds, in

consonance with both s. 1 and the Doctrine as it has traditionally operated.

*

affirmation of findings:

[444] Accordingly, the judge’s upholding of the Board’s unanimous ruling that

the restraint measure was “well tailored to suit its purpose” is sustainable.

In the result, agreement must be voiced with the unanimous finding to date

that the legislative restraint measure reneging on the promises to make the

pay equity adjustments during the restraint periods was rationally connected

with its legislative objective. Hence, the judge’s holding that the first of the

Oakes proportionality components was affirmable is sustainable. The

foregoing reasoning not only satisfies that aspect of the s. 1 analysis, but

also is consonant with the Separation of Powers Doctrine.

>

minimal impairment component:

recap of decisions:

*

[445] As the summaries of the decisions of the Arbitration Board panel provided

earlier in this judgment show, the Chairperson concluded the minimal

impairment component of the proportionality test had not been met. For

reasons summarized in preceding paras. 31 and 32 he found that

government might have considered, at most, “only one alternative to the

infringement”. Thus, after mentioning that the Leader of the Opposition

had proposed some thirteen other alternatives, and the Treasury Board

Secretary had attested to “other money-saving mechanisms”, the

Chairperson wrote in conclusion “there was more than sufficient evidence”

of “several other less restrictive means” available to Government.

[446] Government’s nominee to the panel, on the other hand, differed with the

conclusion that the minimal impairment component of the proportionality

criterion had not been met. As preceding para. 47 relates, he essentially

rested his decision on deference. Hence, whilst conceding other means

were available, he maintained it lies neither with the courts, nor with

arbitrators, to substitute “their opinions for the collective wisdom of the

Page: 164

Legislature” with respect to the allocation of “scarce resources between

competing but legitimate groups”. Immediately before this reasoning,

Government’s nominee had placed stock in the fact that “a total ban” had

not been placed “on pay equity agreements” by the impugned legislation,

but it “merely eliminated retroactive payments in a time of fiscal

restraint...”.

[447] As preceding para. 44 mentions, NAPE’s nominee on the panel concurred

with the Chairperson’s Charter disposition, making the latter’s resolution

of failure to meet the minimal impairment test the majority conclusion of the

Board. However, for reasons set out in the extract from his judgment

reproduced in preceding para. 79, the judge did not share the majority view

with respect to minimal impairment. In departing from the Board’s findings

regarding this phase of the proportionality text, the judge underscored that

the majority had overlooked the Minister’s “extended budgetary

explanation” in which the latter had widely canvassed the alternatives

considered by Government in response to its menacing deficitary problem.

Consequently, the judge overturned the Board’s finding on the second

component of the proportionality test, and held the Legislature had made

reasonable effort to minimize the infringement of the s. 15(1) Charter

rights when it delayed implementation of the promised pay equity through

enactment of s. 9 of the restraint legislation.

*

counsel’s submissions:

[448] Citing authorities to make her point that analysis of satisfaction of the

minimal impairment component requires proof that Government turned its

mind to alternative and less rights-impairing means to further the goal

which intruded on the affected Charter right or freedom, counsel for NAPE

maintains the judge failed to appreciate that Government fell short of

acquitting its obligation to demonstrate it could not have met its objective of

combatting the deficit problem in any way less intrusive on the affected

constitutionally protected equality rights. Styling Government’s evidence in

that regard as “extremely weak”, NAPE’s counsel made extensive

references to the arbitration transcript to substantiate her position.

Emphasizing that Government called only two public servants to testify,

counsel construes their testimony as speaking, in one instance, exclusively

to the expense of pay equity, and points to the other as explicitly

acknowledging he was in no position to testify regarding the alternatives

Page: 165

Cabinet might have considered. Depicting the transcript as establishing a

complete dearth of evidence respecting consideration of alternate measures,

counsel insists Government failed to prove it turned its mind to this

essential concern, without which no holding of minimal impairment could

be made.

[449] Describing minimal impairment as the “meat” of the proportionality test,

Government’s counsel responds by insisting that concentration of inquiry

into that component’s fulfillment should, as Dickson C.J.C. indicated in p.

772 of Edwards Books, be directed to whether the measure abridges the

Charter right or freedom “as little as is reasonably possible”. This being

so, counsel suggests the component might more accurately be described as

the “least drastic means”, which is the term sometimes employed.

Favouring that terminology, counsel reasons it to be better than minimal

impairment which tends to funnel inquiry into whether another means might

have been employed, and inevitably leads to inquiries into alternate

measures. Arguing that another way can usually be found, he maintains the

test is the reasonableness of the action taken, and not whether alternate

measures might be considered by the Court to more minimally impair the

affected right or freedom. Stressing that the judge had used the term “least

drastic means” in his discussion of this phase of the proportionality test, and

noting the decision under appeal spoke of “reasonable effort” to minimize

the infringement by delaying pay equity implementation, rather than

eliminating it, counsel argues this was the proper approach inasmuch as it

observed appropriate deference, the application of which mandated

upholding the judge’s conclusion that the minimal impairment component

of the proportionality test was satisfied in the circumstances of this appeal.

[450] It will be readily apparent that this part of Government counsel’s argument

centers on the measure actually adopted to achieve the legislative objective

of combatting the deficitary problems then enshrouding the Province, and

engages no consideration of alternate measures. In so doing, it follows the

same approach which was adopted in preceding paras. 421 to 431 whilst

addressing the rational connection component of the proportionality test,

which approach is supported in the wording of s. 1 as well as being in

harmony with the Separation of Powers Doctrine. Moreover, this phase of

counsel’s rejoinder to the attack on the judge’s treatment of the minimal

impairment question can be seen to track the reasoning of the Government

nominee to the Arbitration Board which is summarized in preceding para.

Page: 166

446. Thus, as can be seen from a perusal of his reasoning, the Government

nominee, in his analysis of the minimal impairment component, also had

aligned himself with the approach of confining consideration to the measure

actually adopted, and abstains from inquiry into alternate means, in

underscoring that s. 9 of the restraint legislation “merely eliminated

retroactive payments in a time of fiscal restraint”, and did not impose a

“total ban”, and in resting his decision on deference to the choice

implemented in s. 9.

[451] Government counsel’s rebuttal of the challenge to the judge’s disposition of

the minimal impairment question did not end at that juncture, however.

Thus, he directly addressed opposing counsel’s contention that the evidence

was too weak to support the judge’s finding by insisting her argument

ignores the Hansard record of the ministerial statements on introduction of

the restraint measure in the Assembly, and disregards as well the budgetary

exhibits which were placed in evidence before the Arbitration Board.

Quoting liberally from the judge’s references to the statements by the

Minister of Finance recorded in the Hansard, included in which was the

passage from the decision under appeal reproduced in para. 79 of this

judgment, counsel maintains there had been ample evidence adduced of a

full consideration given by Government to alternative measures, and that the

judge’s finding to that effect in overturning the Board majority’s contrary

view on minimal impairment was unassailable.

[452] In addressing these positions, this judgment will first deal with the alternate

measures arguments which was the basis of NAPE’s challenge of the

judge’s minimal impairment disposition. Then, it will take up the argument

which focuses exclusively on the minimal impairment of the measure

actually implemented which was advanced by Government counsel.

Following these discussions, the consonance of the results with the

Separation of Powers Doctrine will be addressed.

*

alternate measures:

[453] It was quite logical for NAPE’s counsel to have presented her critique of the

judge’s minimal impairment analysis without reference to Hansard.

Counsel for NAPE is contesting in a separate ground of appeal the judge’s

rejection of her attack on the Arbitration Board’s use of Hansard. As the

format for the treatment of the issues in this appeal set out in preceding

para. 108 indicates, that challenge will be addressed in the second last of the

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issues under discussion in this judgment. In the meantime, as has been

earlier stated, this analysis into whether the infringement perpetrated by s. 9

of the restraint legislation was saved under s. 1 of the Charter proceeds,

arguendo at this juncture, on the footing that the judge properly resorted to

Hansard, from which, as preceding paras. 79 and 447 record, he took

account of the Minister of Finance’s “extended budgetary explanation”.

[454] A perusal of that Minister’s “extended budgetary explanation” in Hansard

provides ample ground of support for the judge’s conclusion that

“Government had considered various alternatives such as borrowing, tax

increases, budget freezes and reduction in Government expenditures”.

Thus, the Hansard of March 19, 1991, records the Minister as indicating

resort to borrowing was ruled out in response to the crisis because it was

decided “(w)e no longer had that luxury. We could not take the chance that

our credit rating would drop another notch”. Later, he went on to add it

would be taking “too great a chance on the financial health of the Province”

to entertain the notion of increased borrowings. With respect to tax

increases, the Minister is also reported to have informed the Assembly,

whilst tentative agreement had been reached to impose some tax measures,

the amount recoverable from that source was “far short of what we had to

do”. As to the alternative of a general budgetary freeze, Hansard documents

the Minister as stating:

C

One thing became obvious, very obvious, that the objectives of a

frozen budget could not be maintained. We could not inflict a frozen

budget on all parts of the our public service. The budget for hospitals

could not be frozen. The budget for primary and elementary schools

could not be frozen. The budget for social services could not be

frozen. We could not inflict a frozen budget ....

[455] The Government also had agreed to some expenditure reductions.

However, the Minister’s “extended budgetary explanation” indicates that,

apart from freezing then subsisting wage scales, and eliminating its liability

for the “retroactive bill” for pay equity that was building up pending

ascertainment of its amount on receipt of the then awaited financial

consultants report, and which Government was estimating to be “in the

vicinity of $24 million”, there was no scope for further reductions. Thus,

the Minister explained that apart from these measures, Government

confronted:

Page: 168

C

... the spectre of laying off another couple of thousand people, and we

felt that the system would demand that we not lay off another 2000

people, that the services we are providing would have to be

drastically affected.

[456] Hence, the speech of the Minister of Finance on introduction of the restraint

legislation left no room to Government which was faced with “difficult

choices” in its efforts to combat the critical fiscal circumstances confronting

the Province. Moreover, there appears to be no room to gainsay from a

perusal of Hansard that it supports the judge’s conclusion that the “extended

budgetary explanations” establish Government canvassed a broad spectrum

of alternate measures, and not “only one alternative to the infringement”, as

the chairperson of the Arbitration Board had portrayed Government’s

reaction.

[457] It is true that the same Hansard records that the Leader of the Opposition

proposed other alternate measures. It is also true that the transcript shows

the Arbitration Board heard evidence from a public servant relative to

“other money-saving mechanisms”. However, in the parliamentary system,

the introduction of policy initiatives as governmental measures for

legislative sanction of policy measures lies within the executive’s purview.

Hence, only the Minister responsible for a measure, or a Cabinet colleague

speaking on his or her behalf, is in a position to speak to what alternate

policy choices were considered by the Executive Council. Likewise, public

servants may relate other courses, but are in no position to testify regarding

the policy choices considered at cabinet, nor the rationale for the choices

made. For these reasons, with due respect, the Arbitration Board’s majority

erred in adverting to the Opposition’s proposal and the Treasury Board

secretary’s evidence in concluding the minimal impairment component of

the proportionality test had not been met.

[458] The foregoing observation should not be taken to detract in any way from

the role’s which the Opposition and the Public Service play in the

governmental process. In particular, it is recognized it is clearly an

Opposition’s function to propose reasonable alternate measures to those

being put forth by the Ministry. It is mandated to do so in a democracy,

whereas the judiciary is not. In discharging its mandate, the Opposition

could conceivably bring to light considerations clearly overlooked that

undermine the Ministry’s claim to have canvassed all reasonable

alternatives to the Charter infringement. If this be so, then its contribution

Page: 169

to the debate will have significant bearing upon whether all reasonable

efforts were addressed to minimize the Charter infringement. More likely,

however, the Opposition will have proposed other alternatives to the

Ministry’s policy choices that appear reasonable in themselves, but must be

reckoned as being put forth as preferred alternatives.

[459] That said, the judiciary must be cautious in its treatment of alternate

measures proposed on the Opposition side in such debates. Neither s. 1, nor

any other provision of the Charter, nor the Constitution itself of which the

Charter is now an integral part, bestow authority on the judiciary to

determine which policy choices should have been preferred by the executive

or legislative branches of government. That is a decision ultimately

reserved in free and democratic societies for the electorate, which is

afforded opportunity to speak through the ballot box. In executing its

commission under s. 1, the law as it presently stands accepts that the

judiciary’s function is to determine if the minimal impairment component of

the proportionality test has been demonstrably justified from the standpoint

of alternate measures. This is essentially determinable by inquiry into

whether the executive and legislature considered reasonable alternatives in

taking the policy choice which materialized in the impugned statutory

enactment. If it be established reasonable alternatives had been considered,

then a healthy deference to that choice is required to be observed by the

courts.

[460] In the appeal at bar, the Hansard provides no basis to view the alternatives

proposed by Her Majesty’s alternate Government as more than preferred

options, regardless of how reasonable they might appear. It lies with neither

administrative nor judicial tribunals to decide which of the reasonable

optional alternatives proposed from the opposite sides of legislative

chambers should be preferred. In the case of statutory measures violative of

protected constitutional rights, the focus is on the considerations addressed

by the Executive Council prior to submitting its policy choice as a

legislative measure for enactment. This being the case, a reliable source of

the alternatives considered would naturally be the address of the Minister

responsible for piloting the measure through the Legislature. The judge in

this case relied heavily on that source. The Hansard that was put before him

accords no outlet to take exception with his holding that “various

alternatives such as borrowing, tax increases, budget freezes and reductions

in expenditures” had been considered in the course of the Ministry’s

Page: 170

decision to introduce the restraint legislation limiting the enjoyment of pay

equity and the affected employees s. 15(1) Charter rights. Indeed, these

options, as expanded upon by the Minister of Finance in his recorded

“extended budgetary explanation”, may be viewed as essentially covering

the whole gamut of alternatives that might be considered as reasonable to

have been addressed. Nor does the Hansard at bar provide ground to take

issue with the judge’s conclusion of error on the part of the Board’s majority

that just one alternative, i.e. the lay-off of approximately 900 employees,

had been considered.

[461] Accordingly, from the perspective of alternative measures, the judge must

be upheld in his overturing of the Arbitration Board’s majority decision

holding Government had failed to establish it had a reasonable basis for

concluding that the means chosen to address restraint through the

postponement of the pay equity was demonstrably justifiable as a minimal

impairment.

*

the measure adopted:

[462] In the context of this inquiry into the minimal impairment component, it

remains to consider Government counsel’s argument, summarized in

preceding paras. 449 and 450, which focuses on the measure actually

adopted, and engages no consideration of alternate measures.

[463] Support for such a confined approach to minimal impairment analyses is

drawable from Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927

where a ban on commercial advertising directed at children under thirteen

years of age was held to infringe freedom of expression guaranteed under s.

2(b) of the Charter, and accordingly underwent s. 1 analysis. In discussing

the proportionality test, inquiry was directed to whether the specific means

of banning the advertising minimally impaired the violated freedom.

Towards the end of that discussion, at p. 999, Dickson C.J.C. concluded:

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... the evidence sustains the reasonableness of the legislature’s

conclusion that a ban on commercial advertising directed to children

was the minimal impairment of free expression consistent with the

pressing and substantial goal of protecting children against

manipulation through such advertising.

Page: 171

As can be seen in the above excerpt from Irwin Toy, the minimal impairment

component inquiry was addressed by comparison of the specific measure, i.e. the

commercial advertising ban, with its end of child protection.

[464] Likewise, in the circumstances at bar, the evidence sustains the judge’s

conclusion that the measure actually adopted of postponing enjoyment of

the pay equity adjustments for the duration of the restraint period was the

minimal impairment of the affected employees’ s. 15(1) equality rights

consistent with the pressingly important goal of containing and reducing the

incipient fiscal deficits confronting the Province. This conclusion of

minimal impairment is sustainable because, as Government counsel argues,

the evidence establishes the limitation on the affected s. 15(1) equality

rights, perpetrated by s. 9 of the restraint legislation, abridged enjoyment of

them “as little as possible”. As counsel maintains, in words which echo the

reasoning of the Government nominee to the Arbitration Board, support for

the judge’s conclusion stems from the fact that s. 9 imposed no “total ban”,

but “merely eliminated retroactive payment in a time of fiscal restraint”.

Hence, from the perspective of weighing the degree of the adopted

measure’s impairment of the affected equality rights, which preceding para.

434 extracts from Oakes to be the proper focus in analyses of the second

proportionality component, agreement has to be voiced with counsel’s

submission that the s. 9 measure was the “least drastic means” of intruding

on those constitutional rights.

[465] That agreement can be lent because, consideration of alternate measures

aside, the fact that the impugned legislation delayed pay equity

implementation rather than eliminating it witnesses that “reasonable effort”

was made to minimize the infringement. In the context of the circumstances

of that deferral, this would appear to be enough. With such a conclusion

judicial deference comes into play. It was problematic whether the

Arbitration Board, or the Court, could delve into the existence of other

alternatives which should have appeared more preferable to the legislators

without assuming their seats and paying mere lip service to judicial

deference. The fact that there was no “total ban”, but the infringement was

contained by eliminating the “retroactive payments in a time of fiscal

restraint”, stands, in itself, as sufficient proof of minimal impairment.

[466] An interesting distinction exists which merits passing mention between the

minimal impairment reasoning in Irwin Toy and its analysis in the

circumstances at bar. Thus, in Irwin Toy, a permanent limitation on

Page: 172

enjoyment of the affected right was found to justify the minimal impairment

finding, whilst in the matter at hand the fact that the limiting restriction was

not a permanent “total ban” is a factor material to the finding. This is no

paradox, however, but rather serves both to illustrate that Charter analyses

are circumstantially oriented, and to underscore the purposive approach to

them that courts have been directed to employ in the earliest authorities

setting down guidelines for the Charter analyses.

*

consonance with Doctrine:

[467] As to the extra step undertaken here of vetting the consonance of the

reasoning of each stage of this s. 1 analysis with the Separation of Powers

Doctrine, contrary to the two prior assessments relating to that concern,

differing conclusions emerge from the foregoing minimal impairment

reasoning.

[468] As in the kindred inquiries at the end of the findings of the sufficiency of

the objective’s importance and the rational connection of its means, the

second line of the minimal impairment reasoning centered on the measure

actually adopted, without advertence to alternate options. In so doing, that

reasoning stayed within the Doctrine’s bounds as modified by s. 1 of the

Charter which, as this judgment argues in preceding paras. 421 to 431,

confines incremental judicial incursions into the policy field to choices

actually made by exacting deference to them in justification analyses.

[469] It should be underscored that in that second line of reasoning the minimal

impairment component is addressed by focusing on the restraint actually

implemented, through s. 9 of the impugned legislation, on the enjoyment of

pay equity. It does not venture into other policy choices which

hypothetically might have been made. Appropriate deference is observed,

and inquiry centers on whether the measure itself could yet have been

tailored to more minimal impact on the constitutional right which was

violated. As preceding para. 443 indicates was the case with the rational

connection finding, in abstaining from inquiry whether other measures

existed which might have been perceived to less minimally impair the s.

15(1) equality rights, and in strictly centering focus on the measure actually

adopted, the conclusion reached under the second line of reasoning that the

second component of the proportionality test had been fulfilled was also

reached in consonance with the Separation of Powers Doctrine.

Page: 173

[470] The same conclusion cannot be drawn with respect to the firstly discussed

line of reasoning, however. It centers on inquiry whether the evidence

established other options had been considered before the policy choice was

made to postpone pay equity by means of the impugned restraint measure.

As the discussion of the division in RJR-MacDonald over the

proportionality requirements enunciated in Oakes in preceding paras. 354 to

368 underscores, it is difficult to conceive how such focus can be

maintained without frequently transcending the legitimate bounds to judicial

policy-making. This is especially so in the case of the minimal impairment

component if, as preceding paras. 358 and 359 point out, that requirement is

to be applied by considering whether legislatures turned their minds to

alternate less rights-impairing means to promote their goals.

[471] Despite these misgivings over the first line of reasoning which rests

fulfillment of the minimal impairment component of the proportionality test

on a survey of alternate measures, it is recognized it reflects extant law to

which administrative and judicial tribunals must pay obeisance. The judge

was correct in doing so. He was also right in overruling the Arbitration

Board’s holding that Government had failed to show it had a reasonable

basis to conclude it had complied with the minimal impairment component

of proportionality. No exception can be taken with the judge’s assertion

that that holding overlooked the extended ministerial budgetary explanation,

and erred in failing to appreciate that alternative measures had been

considered beyond the single consideration of laying-off approximately 900

employees. In the result the judge’s ruling that the Legislature had “made a

reasonable effort to minimize the infringement of the Section 15(1) Charter

right when it chose, in Section 9 of the Act, to delay implementation of the

Pay Equity Agreement” is sustainable on that basis. It needs to be added

that it is also affirmable by focusing exclusively on the measure actually

adopted which, as the ensuing discussion indicates, is the approach

preferred by this judgment.

[472] In the result, no exception can be taken under subsisting jurisprudence with

the judge having based his finding that the minimal impairment component

of the proportionality test has been met, on the basis of the survey of

alternate measures conducted by the Executive Council, in reaching its

policy choice to postpone pay equity, which was given the force of law

through the Legislature’s enactment of s. 9 of the restraint legislation. On

that footing, the judge committed no error in overruling the Arbitration

Page: 174

Board’s holding that Government has failed to show it had a reasonable

basis to conclude it had complied with the minimal impairment component

of proportionality. The judge’s holding that the Board’s majority had

overlooked the “extended budgetary explanations” of the Minister of

Finance is unimpeachable. This judgment argues, however, that no pretense

can be made that the alternate measures pathway of inquiry is consonant

with the Separation of Powers Doctrine. Because of that inconsonance, it is

submitted that the second of the two foregoing arguments confining

consideration exclusively to the measure actually implemented is the

preferable basis for finding compliance with minimal impairment.

Page: 175

*

minimal impairment’s disposition:

[473] For the foregoing reasons, the judge’s overturning of the Arbitration

Board’s majority ruling that the minimal impairment component of the

proportionality test had not been met should be upheld. The judge was

correct in concluding that the ruling omitted to take into account the

extended ministerial budgetary explanation of the alternate measures that

had been considered when the policy choice to limit pay equity entitlements

was made. On the basis of the Hansard evidence detailing the options

considered, no exception can be taken under subsisting jurisprudence with

the judge’s finding that adequate proof had been adduced of reasonable

efforts to minimize the infringement of the s. 15(1) Charter rights when it

delayed implementation of the promised pay equity.

[474] Neither may exception be taken with concluding that the postponement

measure actually adopted, apart altogether from alternate measures

considerations, can be regarded as a reasonable effort to minimize the

infringement. As will already be clear from the preceding discussion, this

judgment submits that avenue of inquiry is preferable because it can be

made without untoward judicial disruption of the Separation of Powers

feature of the Constitution.

[475] On both accounts, therefore, the judge’s ruling that the Legislature had

“made a reasonable effort to minimize the infringement of the Section 15(1)

Charter right when it chose, in s. 9 of the Act, to delay implementation of

the Pay Equity Agreement” is affirmable. It now remains to address the

third and final component of the s. 1 proportionality test.

>

proportionality of effects:

the ultimate determinant:

*

[476] Although the Charter violation resulting from delay of the Pay Equity

Agreement’s implementation is justifiable under s. 1 from the standpoint of

the legislative objective’s importance, and of the measure’s rational

connection and minimal impairment, the measure’s deleterious impact

remains to be addressed to determine whether that effect nonetheless

outweighs the measure’s objective. This is the last stage of the s. 1 analysis,

and will bring to a close not only this judgment’s consideration of the three

components of the proportionality test, but also its treatment of the

constitutional issues encountered in this appeal.

Page: 176

[477] The following passage from pp. 139-140 of Dickson C.J.C.’s judgment in

Oakes explains the essential nature of the inquiry into this third and final

component of the proportionality test:

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Some limits on rights and freedoms protected by the Charter will be

more serious than others in terms of the nature of the right or freedom

violated, the extent of the violation, and the degree to which the

measures which impose the limit trench upon the integral principles

of a free and democratic society. Even if an objective is of sufficient

importance, and the first two elements of the proportionality test are

satisfied, it is still possible that, because of the severity of the

deleterious effects of a measure on individuals or groups, the measure

will not be justified by the purposes it is intended to serve. The more

severe the deleterious effects of a measure, the more important the

objective must be if the measure is to be reasonable and demonstrably

justified in a free and democratic society.

[478] As earlier observed in preceding para. 361, this final component of

proportionality, requiring comparative analysis of the impugned limitation’s

deleterious effects with the salutary impact of its objective, arguably may be

regarded as lying at the nub of the delicate balance between individual

rights and communal needs required to be struck under s. 1. Having

established the sufficiency of the legislative objective’s importance and the

first two components of the proportionality test, justification of the

limitation now receives a final screening through inquiry into whether the

measure’s effects are, nonetheless, disproportionate to its purpose. If found

disproportional, the constitutional limitation cannot be held justifiable under

s. 1 as the deleterious effects will have to be deemed too high a cost to bear

in attaining the objective which the infringing measure is intended to attain.

This final screening process into disproportionate deleterious effects can be

seen as akin to surveys of prejudicial effects upon which admissibility of

certain categories of evidence frequently will ultimately hinge.

*

preceding determinations:

[479] As was the case with minimal impairment, the arbitration decision that the

limitation measure had a disproportionate deleterious effect, counteracting

the salutary effect of its objective, was the product of a majority decision

formed as a result of the union nominee’s blanket endorsation of the

Chairperson’s analysis of the Charter’s application to the circumstances

Page: 177

obtaining. As preceding para. 34 records, the Chairperson had concluded

the infringement perpetrated by the legislative measure was “too high a

price to pay”. Accordingly, the consequential violation effected by

extending the systemic discrimination over the restraint period was deemed

by the majority to exact a disproportionate price vis à vis the benefit of the

legislative objective of addressing the threat to the provincial economy

which looming fiscal deficits presented.

[480] As he had in his assessment of the minimal impairment component,

Government’s nominee departed from the majority view of disproportionate

effect. Influenced by the three factors recounted in preceding para. 48, he

concluded the restraint measure had struck a reasonable balance with its

legislative objective of combatting the economic threat, and accordingly met

the requirement of proportionate effect.

[481] The judge did not side with the majority view, but concluded the violation

of the affected employees’ s. 15(1) equality rights by the impugned restraint

measure was not “too high a price to pay” to achieve its objective of

containing and reducing the fiscal deficitary situation confronting the

Province. As preceding paras. 83 and 84 recount, while not discounting the

adverse impact of the postponement of pay equity, particularly on those

retirees leaving the work force during the period of the postponement, who

otherwise would have had the benefits the pay equity’s implementation

reflected in future pension cheques, the judge, nonetheless, held “the law

did not have a disproportionality severe effect ...”. As she had challenged

the minimal impairment finding, NAPE’s counsel also takes issue with this

holding of the judge.

*

positions of counsel:

[482] Counsel for NAPE opens her disproportionate effects submissions by

stressing the nature and import of the rights affected, whilst underscoring

the extent of the prejudice visited on those whose rights were limited by the

pay equity postponement perpetrated through s. 9 of the restraint legislation.

From that standpoint she insists it untenable to maintain the cost of keeping

the promise of pay equity to women was not affordable, and had to be

deferred, albeit temporarily, to other financial priorities, even in times of

serious economic deteriorations.

[483] Claiming support from cases which will be treated in the ensuing discussion

of the respective positions of counsel in this appeal, NAPE’s counsel rejects

Page: 178

the notions that the limiting measure at bar may be rationalized by claims of

the need of governmental incrementalism in face of the economic crisis that

loomed; or, by dismissing that legislative action as a mere putting off to

another day realization of the pay equity promises by adjusting the approach

to their fulfillment. In this regard, counsel argues the impugned legislative

measure fails to deal with the permanent deleterious effects on retired

women and those falling eligible for workers’ compensation benefits within

the restraint periods. Unless the arbitration award is upheld, she goes on to

insist, those women will never realize the benefit of the pay equity promises

made at the end of their active membership in the workforce. For them, she

maintains, the discrimination will be very significant as it will continue in

perpetuity, freezing their pensions and compensation at rates referable to the

systemic discrimination that Government had undertaken to end. This, she

describes as a “devastating effect” foreclosing any pretense of

proportionality.

[484] Apparently content to leave his answer to his counterpart’s stress on the

nature and import of the affected equality rights to his submissions on the

relatively superior importance of the legislative objective advanced in his

argument on the first of the Oakes criteria, counsel for Government centers

his rejoinder on the aspects of opposing counsel’s arguments that focused

on the incrementalism and prejudice to employees who had left the

workforce during the restraints. Thus, he responds to that focus with

judicial authority of his own, whilst contending there is nothing untoward in

governments taking incremental approaches to resolutions of constitutional

problems. Insofar as the effect upon retirees and those who found

themselves on workers compensation during the restraint periods, he

answers that the pay equity promises under the Agreement incorporated into

the Collective Agreement call for an incremental approach to its

implementation.

[485] The appraisal of these positions will be conducted in three steps. Firstly, the

arguments of NAPE’s counsel based on the nature of the affected rights and

their importance will be discussed. This will be followed by consideration

of the incrementalism argument. The appraisal will conclude with

evaluation of the argument addressing the continuing effects upon retirees

and employees in receipt of worker compensation benefits.

*

nature and importance of rights:

Page: 179

[486] In furtherance of her argument’s accentuation of the nature and importance

of the infringed equality rights, counsel for NAPE enlists the 1984 Abella

Royal Commission Report on Equality in Employment to buttress

counsel’s portrayal as “staggering and unjustifiable” the violation of female

employees’ constitutional equality rights perpetrated by the postponement

of pay equity in the circumstances at bar. To this end, she highlights the

following passage from p. 235 of that Report:

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The cost of the wage gap to women is staggering. And the sacrifice is

not in aid of any demonstrably justifiable social goal. To argue, as

some have, that we cannot afford the cost of equal pay to women is to

imply that women somehow have a duty to be paid less until other

financial priorities are accommodated. This reasoning is specious and

it is based on an unacceptable premise that the acceptance of arbitrary

distinctions based on gender is a legitimate basis for imposing

negative consequences, particularly when the economy is faltering.

[487] Traces of counsel’s submissions on the sufficiency of the restraint

legislation’s importance for justification under s. 1 of the legislative

objective’s importance can be discerned from her reliance on the foregoing

passage for the Abella Report. This is inevitable to a degree, of course,

inasmuch as the established importance of the restraint legislation’s

objective is paired with the measure adopted in this final rescreening phase

in testing the proportionality of the deleterious effects. As already noted in

preceding para. 434, focus of all components of the proportionality test

under s. 1 is upon the measure invoked to achieve the objective. However,

while the final phase’s concentration, centering on whether the prejudicial

effect of the measure’s deferral of enjoyment of pay equity outweighs the

established importance of the restraint legislation’s purpose of combatting

the serious threat to the economy, also requires advertence to the legislative

objective’s significance, the process does not involve a rehashing of the

settled importance of the measure’s objective.

[488] By the same token, it needs also be underscored that neither does the

conduct of that process allow any gainsaying or discounting of the

importance of the equality rights affected by deferral of the pay equity

compensation. Indeed, in keeping with the direction conveyed in the

passage from Oakes reproduced in preceding para. 477, this inquiry into the

third and final component of the proportionality test proceeds on the footing

that the infringement of the equality rights at bar ranks amongst the “more

Page: 180

serious” of the “limits on rights and freedoms protected by the Charter”.

Accordingly, following that instruction in Oakes, the inquiry will proceed

on the basis that the measure’s infringement must be placed amongst the

“more severe” so that “the more important the objective must be if the

measure is to be [held] reasonable and demonstrably justified in a free and

democratic society” under s. 1 of the Charter.

[489] No exception is taken with the accentuation, placed by counsel for NAPE

and the Abella Report enlisted by her, on the nature and importance of pay

equity for women. It follows that the seriousness of the deleterious effects

of the limitation placed by the restraint legislation upon the promised pay

equity’s enjoyment is beyond question. However, enjoyment of

constitutionally protected rights is not absolute. While the very severe

deleterious effects of the limiting measure indubitably will weigh heavily on

one side of the scales of s. 1 justification, its legislative objective of

containing and reducing the threat of escalating deficits, described to the

House of Assembly by the Minister of Finance in his “extended budgetary

explanation” as hovering over the Province must be placed on the other.

Accordingly, this judgment fully endorses the accentuation placed by

counsel, and the Abella Report enlisted by her, on the importance of pay

equity, as well as the consequential severity of the abridgement of those

rights. However, with due respect, it does not share the apparent thesis that

that importance and severity is such that it eclipses any consideration of

justification of limitations placed on those rights in order to contain and

reduce serious fiscal deficits of the magnitude forecasted by the Minister.

[490] This jurisdiction knows full well from its own history the danger which

mushrooming fiscal deficits of the magnitude forecasted can pose to the

very existence of democratically elected government. All one needs do to

gain a full appreciation of the reality and seriousness of that risk is to peruse

the Report of the Royal Commission established on February 17, 1933, to

examine Newfoundland’s future in light of its then subsisting “financial

situation and prospects”. Named after its chairperson, the Commission’s

Amulree Report, citing in para. 634 Newfoundland’s “extreme financial

difficulties” consequential upon “the present burden of the public debt ...

wholly beyond the country’s capacity”, made as its principal

recommendation in para. 634(4) that:

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... the Newfoundland Government, recognizing that it is impossible

for the Island to surmount unaided the unprecedented difficulties that

Page: 181

now confront it, should make an immediate appeal for the

sympathetic co-operation of Your Majesty’s Government in the

United Kingdom in the adoption and execution of a joint plan of

reconstruction of which the following would be the main features:-

(a) The existing form of government would be suspended until

such time as the Island may become self-supporting again.

(b) A special Commission of Government would be created

which would be presided over by His Excellency the Governor,

would be vested with full legislative and executive authority,

and would take the place of the existing Legislative and

Executive Council.

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(c) The Commission of Government would be composed of six

members, exclusive of the Governor, three of whom would be

drawn from Newfoundland and three from the United

Kingdom.

[491] There were five other features of the Amulree’s Report’s “Main

Recommendation”. They dealt with the organization of the Departments of

Government under the proposed commission; a statement that the

“proceedings of the Commission of Government would be subject to

supervisory control by Your Majesty’s Government in the United

Kingdom”; the United Kingdom’s assumption of “general responsibility for

the finances of the Island until such time as it may become self-supporting

again” at which time “responsible government, on request from the people

of Newfoundland, would be restored”; and, suggestions on appropriate

procedures for bringing Amulree’s main recommendation into effect.

These other features were subsidiary to the principal one proposing the

temporary surrender of self-government. Clearly, it was the yoke of its

deficitary burden that constrained Newfoundland to accept the Amulree

Report’s proposal of suspension of democratically elected responsible

government against the day of its restoration on the “Island” becoming

“self-supporting again”.

[492] Any illusion of overstatement in the comparison being drawn between the

threatened consequences projected here from the “horrendous” soaring

deficits outlined in the speech of March 19, 1991, by the Minister of

Finance to the Legislature, and the burden of the past indebtedness detailed

in the Amulree Report which harbingered the loss of self-government, can

be readily dispelled on comparative perusals of 1991 ministerial “extended

Page: 182

budgetary explanation” and the budget speech delivered on June 29, 1933,

in the House of Assembly, which was published as appendix J to the

Amulree Report. The 1933 speech was made by Newfoundland’s Prime

Minister, Hon. F.C. Alderdice, who also held the finance portfolio. It was

delivered some three months prior to completion of the work of the

Amulree Commission to which it referred at the outset (see p. 260 of the

Report) as then being in the process of:

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... studying thoroughly and sympathetically our local conditions and

our financial and business prospects with a view to advising the

Dominion as to the most satisfactory solution for meeting its present

difficulties, and as to the most effective use which it can make of its

immense potential resources.

[493] The outline given in the Alderdice administration budget speech of the

economic situation then prevailing provides chilling witness to the

consequences of unchecked spiralling governmental deficits. Thus, it

reported cuts in projected expenditures in the preceding year in education,

health, welfare, war pensions and civil service salaries and pensions. (See

p. 262 of the Amulree Report). These “economies” were not surprisingly

described as “drastic” considering the relative size of the budget for the

1932-33 fiscal year. Indeed, the Prime Minister’s description of those cuts

as “producing considerable hardship”might be taken as rank

understatement. While the 1933 budget speech tended to attribute, not

without some justification, the cause of the faltering economy to depressed

economic conditions which had spread over nearly every country in the

world, the Amulree Report leaves no room to doubt that the local fiscal

situation was exacerbated in no small part by the public debt burden that

had accumulated over the years.

[494] It is not being suggested here that the deficitary position described nearly

sixty years later in the ministerial “extended budgetary explanation” was of

such catastrophic moment as to herald another Commission of Government,

even though it must be said that such a consequence of the public

borrowings which had preceded the 1933 budget must be assumed to have

been beyond the contemplation of preceding governments incurring them.

It is not too great a quantum leap, however, to suggest, just as had the

deficitary burden some sixty years earlier, the deficits which preceding para.

414 notes the Minister of Finance forecasted in 1991, if unaddressed, would

have had to have a very serious deleterious effect upon the Province’s

Page: 183

ability to provide basic health, educational and social services, as well as

precipitating potential deep general public service salary and pension cuts.

It is impossible to contemplate the Province being saddled with deficitary

burdens to the tune of $400 to $600 million annually without it being

thrown into the severest of economic crises, requiring deepening cuts into

those areas which manifestly secure those “other values and principles of a

free and democratic society”, of which the quote from M v. H in preceding

para. 379 speaks. On the basis of the reasoning already developed in paras.

379 to 420, whilst giving fullest expression to the nature and importance of

the individual equality rights affected by the deferral of pay equity

entitlements in this case, the enjoyment of them would, in the words of

Oakes at p. 136, nonetheless “be inimical to the realization of collective

goals of fundamental importance”, in light of the “horrendous” soaring

deficits, and the clear threat they posed to those “other values and principles

of a free and democratic society”.

[495] For the foregoing reasons, then, this judgment rejects the argument

accentuating the nature and importance of the affected pay equity equality

rights as a basis for holding the deleterious effects of the limiting restraint

measure render the consequential Charter infringement unjustifiable under

s. 1. With due respect, the submission smacks of absolutism, which is not

the standard of enjoyment of fundamental rights and freedoms which the

Charter imported into the Canadian Constitution. It was open to the trial

judge, without in any way denigrating the nature and importance of the

infringed equality rights, to have yet concluded the overlooked “extended

budgetary explanation given by the Minister”, which outlined the

imperative of containing and reducing fiscal deficits seriously threatening

the Province’s economic security and well-being, established the severity of

the deleterious effects of the measure at bar that postponed enjoyment of the

promised pay equity, to be justified by the urgent purposes of containing

and reducing looming deficits which the measure was intended to serve.

[496] Having disposed thusly of the first argument on the proportionality of

effects advanced by NAPE, attention will now focus on incrementalism.

Page: 184

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the incrementalism argument:

[497] But for the case law enlisted in support of it, the incrementalism submission

put forth by NAPE’s counsel might be dismissed as tantamount to a

recasting of the argument just rejected which accentuated the nature and

importance of the infringed s. 15(1)equality rights. This is because it is

constructed on the notion that the provision of the promised pay equity is

such a fundamentally important right that its deferral may not be

rationalized or dismissed by camping on the fact that the limiting measure

did not constitute a total ban, but merely postponed reparation of the pay

equity discrimination. If this were the essential gist of the submission,

without more, it could be summarily rejected for the same reasons of

paramountcy of the measure’s objective of containing and reducing the

forecasted serious escalating deficits. However, there is another arrow to

counsel’s bow in this argument. It lies in her claim that her position on

incrementalism is supported by case law.

[498] The first of the cases upon which counsel relies is Service Employees

International which resurfaces for the third time in this judgment, having

been enlisted by counsel for Government in his jurisdictional submissions,

and again by him in his challenge of the trial judge’s upholding of the

Arbitration Board’s Charter violation finding. Here, it is being enlisted by

counsel for NAPE in support of her contention that the weight of authority

disapproves of incrementalism as appropriate justification for Charter

violations. Thus, she highlights the following passage from Service

Employees International where, in addressing the amendment to the pay

equity legislation under consideration in that case, O’Leary J. stated at p.

535:

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It must also be noted that the Schedule J amendment cannot be

justified as an incremental approach to pay equity. It is not a matter

of putting off to another day, when the same can be afforded, the

correction of the gender-based systemic wage inequity from which

women in the proxy sector undoubtedly suffer. Schedule J and the

government’s position on this application tells proxy sector women

they are not and cannot be covered under the Pay Equity Act even

though other women in the broader public sector have had their

systemic gender-based wage inequity 100 per cent cured.

[499] This passage, however, may not be enlisted to assist the incrementalism

argument being advanced by counsel for NAPE. This is because the

Page: 185

amendment to the pay equity undertaking in Service Employees

International was a measure distinguishable from the one under scrutiny at

bar. Hence, as preceding paras. 143 and 292 have already pointed out, the

measure under consideration in Service Employees International

substantially eliminated pay equity adjustments for almost all unionized

women in the public service, but not all of them. Thus, the legislative

measure created discriminatory constitutional inequality on its own. In

contrast, the impugned restraint measure at bar did not eliminate pay equity

for most, and not all, but rather was a blanket across-the-board

postponement of the promised reparation of the long-standing “systemic

gender-based wage inequity”. It applied to all unionized employees,

perpetrating no discrimination of its own.

[500] The second case relied on for support by counsel for NAPE is Vriend v.

Alberta, [1998] 1 S.C.R. 493. This case involved the termination of

employment of a member of a college’s staff, who had disclosed he was a

homosexual, on grounds of the college’s policy with respect to such

practice. The majority of the Court held the consequential infringement of

the dismissed employee’s s. 15(1) Charter equality rights was not

justifiable under s. 1, and read into the Province’s human rights legislation

“sexual orientation” as a prohibited ground of discrimination. Of immediate

relevance to the incrementalism argument of NAPE’s counsel is para. 122 of

the majority judgment in Vriend where Mr. Justice Iacobucci, in the

majority’s disposition that he jointly authored with Cory J., stated as

follows:

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In addition, in Egan, writing on behalf of myself and Cory J., I

took the position that the need for governmental incrementalism was

an inappropriate justification for Charter violations. I remain

convinced that this approach is generally not suitable for that

purpose, especially where, as here, the statute in issue is a

comprehensive code of human rights provisions. In my opinion,

groups that have historically been the target of discrimination cannot

be expected to wait patiently for the protection of their human dignity

and equal rights while governments move toward reform one step at a

time. If the infringement of the rights and freedoms of these groups is

permitted to persist while governments fail to pursue equality

diligently, then the guarantees of the Charter will be reduced to little

more than empty words.

Page: 186

[501] The last case co-opted by NAPE’s counsel to her incrementalism argument

is M. v. H. That case decided the denial of parties to same-sex relationships

to relief under family law legislation infringed s. 15(1) equality rights and

the violation was unjustifiable under s. 1 of the Charter. Counsel enlists

the following portion written by Iacobucci J. in the majority judgment that

he also co-authored with Cory J., where the former stated in para. 128:

C

... As this Court noted in Vriend, supra, governmental

incrementalism, or the notion that government ought to be accorded

time to amend discriminatory legislation, is generally an inappropriate

justification for Charter violations. However, even if I were to accept

that such a justification might be suitable in the present case, it seems

to me that its application to the facts of the case at bar cannot

legitimize the continued exclusion of same-sex couples from the

FLA’s spousal support regime.

[502] With due respect, none of these three cases assist counsel’s premise that the

weight of authority disapproves of incrementalism in the circumstances of

this case as appropriate justification for violation of the affected equality

rights. Taking “incrementalism”, as does the preceding excerpt from M. v.

H., to mean reparation of discrimination over time, it is noted that all three

of the foregoing cases, on which counsel rests her argument that

incrementalism cannot justify the postponement, were addressing

governmental actions that excluded individuals from exercising rights

enjoyable by others. Hence, in M. v. H. the s. 15(1) Charter discrimination

held inappropriately justifiable on the argument that it was repairable over

time was perpetrated by the legislative exclusion of same-sex couples from

rights under the spousal support regime of the family law legislation that

had been extended in the statute to unmarried opposite-sex couples. In

Vriend, the discrimination unjustifiable by incrementalism was ultimately

traceable to governmental omission of “sex orientation” in the human rights

legislation which would have excluded the affected employee from

employment enjoyable by heterosexual employees, if it had not been

effectively judicially amended as it was in Vriend. In Service Employees

International the discrimination likewise held unjustifiable was visited

upon employees excluded from pay equity entitlement through repeal of the

legislated comparative proxy method, whilst others continued to enjoy that

right.

Page: 187

[503] In contrast, the governmental legislative action at bar did not

discriminatorily exclude some from pay equity, whilst leaving enjoyment to

others of those constitutionally protected rights. By its terms, the restraint

legislation applied to all pay equity agreements concluded within the public

sector. There was no evidence that other unionized employees in the public

sector had gained pay equity through the collective bargaining process. In

fact, as already mentioned at the outset of this judgment, NAPE had

regarded the conclusion of the Pay Equity Agreement of June 24, 1988, and

its addition as schedules to six subsisting collective agreements, as

reparation of a long-standing injustice within the public sector. Considered

from that perspective, its subsequent postponement through the impugned

legislation was the source of its understandable frustration.

[504] The legislative postponement, therefore, could not be viewed as temporarily

excluding affected employees from their s. 15(1) equality rights whilst

similar rights were being enjoyed by others. There was nothing selective

about the restraints on pay equity, either in the legislation’s terms or its

implementation. It was an across-the-board deferral which caught everyone

entitled to pay equity. Therein lies the distinction between this case and the

three enlisted by counsel.

[505] Moreover, the incrementalism that is mooted in justification of the

legislative measure’s rights infringement at bar can be seen as one of

inclusion, rather than exclusion. Thus, as preceding para. 99 recounts, and

this judgment will subsequently endorse, the trial judge concluded the

language of the legislative restraint provision should be read in the context

of the Pay Equity Agreement; and observed that, in so doing, it can be seen

that each contemplates “an incremental approach to the achievement of pay

equity”. From this standpoint the judge went on to reason the effect of that

provision’s s-s. 9(3) “was to replace April 1, 1988, being the first pay equity

adjustment date prescribed under the Agreement”, leaving that Agreement

otherwise unaffected. From the standpoint of this reasoning, the judge

construed the effect of that provision of the violative legislative restraint

measure to be the continuance of the pay equity adjustments in the same

incremental progression as they were payable under the Agreement, but

commencing after the expiry of the restraint period, with full entitlement

being incrementally realizable “within the five year period” provided in the

Agreement.

Page: 188

[506] Accepting this construction by the trial judge, it is apparent that the

incrementalism encountered in this case, either in the Pay Equity Agreement

itself or in its postponement under the restraint legislation, does not entail

the need to rationalize excluding some from pay equity, whilst justifying

that action, in the words of the excerpt from M. v. H. in preceding para.

501, on “the notion that government ought to be accorded time to amend

discriminatory legislation”. It is rather an incrementalism that includes pay

equity for all through graduated payments of incremental payments over a

prescribed time. To resort to useful concrete analogy, it is not an

incrementalism that would see some vessels completely empty awaiting to

be filled, whilst others were filled to the brim. It rather envisages empty

vessels being filled in graduated progression until all are filled to their rims

at the same time.

[507] Government’s counsel puts forth an authority of his own to counter the three

cases cited by opposing counsel in support of her incrementalism argument.

Thus, he appropriates for that purpose the following passage from p. 317 of

La Forest J.’s lead majority judgment in McKinney:

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In looking at this type of issue, it is important to remember that a

Legislature should not be obliged to deal with all aspects of a

problem at once. It must surely be permitted to take incremental

measures. It must be given reasonable leeway to deal with problems

one step at a time, to balance possible inequalities under the law

against other inequalities resulting from the adoption of a course of

action, and to take account of the difficulties, whether social,

economic or budgetary, that would arise if it attempted to deal with

social and economic problems in their entirety, assuming such

problems can ever be perceived in their entirety. This Court has had

occasion to advert to possibilities of this kind.

[508] Counsel uses this passage as authority to buttress his submission that

governments are entitled “to take incremental measures” in resolving

discriminations that violate s. 15(1) equality rights. In effect, he is

contending Government in the case at bar merely exercised its justifiable

“reasonable leeway” in postponing the promised five year phase-in period

for implementation of pay equity in order to address the critical deficitary

situation confronting the Province at that time. He is relying on the

foregoing extract from McKinney, therefore, in rebuttal of opposing

counsel’s authorities, which she proffers in support of her challenge of

Page: 189

incrementalism being used to rationalize dismissal of the impugned measure

as merely putting off pay equity’s realization on the same incremental step

by step basis as originally provided under the Pay Equity Agreement to

another day.

[509] As to this appropriation of McKinney by Government in response to the

authorities put forth by NAPE, it has to be acknowledged that its application

as a general proposition in the circumstances at bar is not altogether

unproblematic. The problem with its application here is signalled in its

opening words which indicate the passage’s addressing “this type of issue”.

Hence the “leeway” not to have to tackle “all aspects of a problem at once”

must be considered in the context of the “type of issue” to which the latitude

“to take incremental measures” referred. In McKinney the “type of issue”

is quite different from that presented at bar. That case involved challenges

to mandatory retirement policies by university employees who had passed

their sixty-fifth birthdays. The issue in McKinney was the Charter

compatibility of a provision of Ontario’s Human Rights Code, 1981, S.O.

c. 53 which restricted the right to equal treatment in employment without

discrimination because of age to those less than sixty-five. Whilst

upholding the policies on other grounds, the majority in McKinney agreed

the Code’s provision violated s. 15(1) Charter equality rights, but held it

nonetheless justifiable under s. 1 as a reasonable limit on those guaranteed

rights.

[510] As may be seen from this backdrop to McKinney, the Charter

compatibility issue raised in that case was of the type that addressed alleged

exclusion of employees over sixty-five from equal protection and benefit of

the law without discrimination in their employment based on age, in

contravention of s. 15(1) of the Charter, which protection and benefit had

been extended to employees who had not yet celebrated their sixty-fifth

birthdays. As was the situation with the three cases put forth by NAPE,

then, Government’s counsel is resting his argument, in rebuttal of NAPE’s

contention that no case law exists supporting incrementalism as appropriate

justification for Charter violations, on authority that also had addressed the

s. 15(1) Charter compatibility of governmental measures in the context of

legislation that excluded some individuals from exercising constitutionally

protected rights enjoyed by others. Continuing with the analogy to empty

and full vessels made in preceding para. 505, all four cases may be

visualized as comprehending situations where some vessels are left

Page: 190

completely empty, awaiting to be filled, whilst others have been entirely

filled.

[511] With McKinney raising the same type of discriminatory issue of exclusion

from constitutional protection which was enjoyed by others, it, too, is

distinguishable from the situation at bar where the issue of justifiable

discrimination arises, not as a result of the exclusion of some from their

equality rights, but rather because of legislated postponement of promised

incremental phase-in of across-the-board exclusion of these rights. Being so

distinguishable, it would appear, solely on that account, that McKinney

would no more assist Government’s stance that it provides authoritative

support for incrementalism as appropriate justification for the Charter

violation perpetrated through the limitation on the pay equity enjoyment by

the impugned restraint legislation, than the three cases submitted by NAPE

serve as authority for inexorable dismissals of incrementalism as

inappropriate justifications of Charter violations.

[512] Whilst discounting McKinney as an authority in that respect, it nonetheless

has utility in this discussion of the proportionate effects of the impugned

legislative restraint measure. Its value lies in its direction that the focus of

analyses of that component of the proportionality test should be

circumstantially oriented. Viewed in the context of the circumstances at

bar, that direction assists the conclusion that incrementalism is actually

irrelevant to the proportionate effects inquiry being conducted here. This is

because those circumstances show the postponement of implementation of

the agreed pay equity process to be the catalyst of the restraint measures

deleterious effects, and not the process’ incremental format of

implementation which had neutral impact.

[513] The direction assisting the conclusion that the deleterious effects flow from

the postponement can be found in the paragraph in McKinney immediately

preceding the highlighted excerpt reproduced in preceding para. 507.

There, LaForest J. admonishes courts to “to exercise considerable caution”

in addressing the proportionate effects component of the proportionality

test, whilst indicating that particular heed should be paid to the situation

leading to the original governmental decision that the measure’s objective

warranted its rights’ limitation. The salient circumstance, which LaForest J.

saw as affording a basis for his holding in McKinney that the measure’s

objective outweighed its deleterious effect of excluding employees over

sixty-five from constitutional protection against mandatory retirement, was

Page: 191

that the Legislature, in enacting the measure in the Ontario Human Rights

Code:

C

... sought to provide protection for a group which it perceived to be

most in need and did not include others for rational and serious

considerations that, it had reasonable grounds to believe, would

seriously affect the rights of others.

[514] Vriend’s and M. v. H.’s subsequent assertions that governmental

incrementalism is inappropriate justification for Charter violations should

not be seen at odds with McKinney’s holding in the excerpt reproduced in

preceding para. 507 that Legislatures are entitled to “take incremental

measures” in addressing the proportional effects component of justification

of such violations. As Iacobucci J. went on to observe in M. v. H., the

incrementalism notion is “generally” inappropriate. Thus McKinney,

Vriend and M. v. H. can be consistently read together by reasonably

regarding McKinney’s holding that the incremental inclusion of some

within the ambit of legislative protection from mandatory retirement

because of age, whilst excluding others, was appropriately justifiable in the

circumstances obtaining as an exception to the general rule.

[515] McKinney’s value, then, lies not in transposability as a general proposition

of endorsation of governmental incrementalism as appropriate justification

for Charter violations in contradistinction to Vriend and M. v. H. Its

relevance to the circumstances at bar lies in its direction to have careful

regard to the factual matrix arising from those circumstances in conducting

analyses of proportionality of effects, and “to exercise considerable caution”

in doing so. In heeding that cautionary note, it can be seen from the

circumstances at bar that the deleterious effect of the impugned restraint

measure stems not from the incremental payments through which the

promised pay equity was to be achieved under both the Pay Equity

Agreement and the restraint legislation that deferred its implementation, but

rather from the postponement of those payments.

[516] Thus, the evidence establishes the parties originally agreed that pay equity

would be implemented in five incremental annual steps through budgetary

votes capped at 1% of the preceding year’s payroll for the health care sector

during the first four years, with any remainder necessary to full attainment

being payable in the fifth year. Moreover, the authorities agree, and the

arguments of counsel show, it was common ground that Government had no

obligation to act to address systemic gender discrimination in employment.

Page: 192

It follows that in electing to do so, apart altogether from the fact that the

incremental procedure was mutually agreed by the parties, Government was

entitled to proceed initially via the incremental process provided under the

Pay Equity Agreement. This it did through its executive arm when the

Agreement was concluded and became “law”.

[517] However, once that process was in place Government was not at liberty to

renege on its promise without laying itself open to sustainable claims of

violation of the equality rights of those affected. As the trial judge held in

adopting the excerpt from the decision of the Board’s chairperson which is

reproduced in preceding para. 74, once Government agreed to that process,

it could not resile from it without violating s. 15(1) equality rights. This is

because the denial of pay equity as promised no longer was attributable to

systemic gender discrimination, but stemmed from governmental action.

Since the limitation was not systemic, but a product of governmental action

by its legislative branch, the starting point in addressing the proportionate

effects component of the proportionality test in the context of the studied

cautionary note sounded in McKinney would logically be to determine

what the circumstances show to have constituted the limiting legislative

action.

[518] The most salient circumstance that immediately springs to the fore in

broaching that inquiry is that the impugned restraint legislation wrought

essentially no change in the sense of remodelling or remoulding the

incremental method by which Government initially agreed, and was then

free to adopt, in stamping out the systemic gender discrimination of pay

inequity between female and male dominated classes of employees. Thus,

the incremental process as agreed by Government, and given the force of

“law” by its executive branch through the appendage of that Agreement to

the Collective Agreements, remained fundamentally intact in the restraint

legislation. Accordingly, the promised pay equity continued to be realizable

by adjustments spread over five years through incremental payments equal

to 1% of payroll over the first four years from the expiry of the restraint

period, with the remainder necessary to achieve full pay equity being

payable in the fifth year after expiry of the legislated restraint period. The

only change in the promised process of implementation of pay equity

effectuated by the restraint measure lay in its three year postponement of its

scheduled phase-in commencement date of April 1, 1988. This being so,

there was no arguable deleterious effect in the governmental incrementalism

Page: 193

process continued in the restraint legislation, and counsel’s argument

founded on incrementalism can be dismissed on that account. Instead,

attention should be focussed on the effect of the process’ postponement.

[519] In addressing the effect of that postponement, it is important to recognize

that the impact of that legislative action upon one group of affected

employees was not entirely the same as was its consequence to another

identifiable group. The first group is comprised of employees who would

have worked within the bargaining units, to whose Collective Agreements

the Pay Equity Agreement had been appended, at any time within the eight

year time frame spanning April 1, 1988 to March 31, 1996, without retiring

on pensions or workers compensation benefits. That time frame covers the

three year period of the restraint measure during which the scheduled

commencement of pay equity adjustments was postponed, and the ensuing

five years to which the phase-in of the promised entitlements was deferred.

[520] In contrast, the second group encompasses those amongst the employees of

the same bargaining units who retired within that eight year time frame on

pension or those benefits. While the real deleterious effect visited on both

groups by the restraint measure was attributable to the postponement of the

incremental process for the achievement of pay equity it effectuated, as will

presently be explained, from an entirely materialistic perspective, the harm

it perpetrated had greater consequences for the second group than the first.

[521] The effect on the first group, from a purely monetary standpoint, would

have been confined to straight salary loss. Over the time frame’s first three

years the loss would be measurable by the lack of inclusion of the promised

pay equity adjustments in salary cheques. In the fourth year the loss would

be less because, by then, the restraint period would have expired and pay

equity would have commenced with a legislative budgetary vote of 1% of

payroll, which is what employees would have received in that same year

under the Pay Equity Agreement. There would still have been some

deleterious effect in the fourth year, nonetheless, inasmuch as the previous

year’s payroll on which the 1% incremental was calculable would not have

included the increases in the payroll that would have incrementally

accumulated in prior years under the Agreement. Losses would have been

higher in the fifth to seventh years, however, because employees would only

be receiving increments provided through the 1% of payroll formula rather

than full pay equity that would have been payable under the Agreement.

Only in the eight year would the deferred pay equity implementation catch

Page: 194

up with the originally scheduled phase-in of it, with the fifth year’s shift to

the eighth year in which full pay equity would then have been achieved.

[522] This, then, is the measurable deleterious effect, from a purely monetary

point of view, perpetrated on affected employees who were impacted by the

restraint measure, and who did not retire to draw pensions or workers

compensation benefits during the eight year time frame of the

postponement’s impact. In defining the effect in that light, it is fully

appreciated that the deleterious consequences transcended material

concerns. Thus, apart from its monetary impact, the measure can be seen as

having the effect of constraining affected employees to work longer in

circumstances tending to engender feelings that the value of their

contributions was esteemed less on the speciously irrelevant ground of

gender. As has been underscored periodically throughout this judgment,

that aspect of the sense of harm attributable to this longstanding injustice is

understandably keenly felt by NAPE, and caused it to look on the deferral of

its reparation as a rankly unjustifiable prejudice upon women from both

groups.

[523] This judgment fully appreciates those feelings, and does not discount the

depth and seriousness of the deleterious effects, both material and

otherwise, of the postponement of the attainment of those equality rights.

Nevertheless, agreement must be lent to the view that the deleterious effects

of the limitation of those constitutionally protected rights through the

postponement of the agreed incremental pay equity process upon employees

falling within the first group is outweighed by the restraint measure’s

pressing and substantial objective of containing and reducing the forecasted

budgetary deficits. The ominous and dire consequences for the Province’s

capacity to provide, in the words of M. v. H. quoted in preceding para. 379,

those “other values and principles of a free and democratic society”, which

consequences the escalating deficits forecasted in the overlooked

“budgetary explanation” unmistakeably foreboded, afford sufficient reason

for the trial judge to have paid deference to the implicit legislative

determination that pressing and substantial societal considerations

justifiably outweighed the restraint measure’s deleterious impact upon the

affected individual equality rights. Accordingly, this judgment sides with

the trial judge’s conclusion that the impugned measure was not “too high a

price to pay”, insofar as the first group is concerned; and, that the

Page: 195

Arbitration Board’s majority erred in overlooking “the extended budgetary

explanation given by the Minister” in finding to the contrary.

[524] As will be apparent from a perusal of his reasoning dealing with the

proportionality of effects, recounted in the extract from his decision

reproduced in preceding para. 84, the judge made no differentiation

regarding the measure’s effect on affected employees. Hence, his finding

that the measure’s rights limitation was not “too high a price to pay” was

one of general application to all employees, and did not explicitly examine

its deleterious consequences on separate groups. However, as preceding

para. 483 later notes, NAPE’s counsel does make the differential by raising

the continuing effects upon retirees and employees in receipt of worker

compensation benefits as a separate issue. This approach is attractive as it

seems more closely in keeping with the admonition sounded in McKinney,

discussed in preceding paras. 513 to 515, that these analyses of

proportionate effects should be undertaken with “considerable caution” in

careful advertence to the factual matrix obtaining. It is for that reason that

this judgment, following counsel’s format, will now turn to address

separately the effects upon the second group.

*

effects on retirees:

[525] While retirees to pensions or worker compensation benefits within the

highlighted time frame will have experienced the same deleterious effects of

loss of salary adjustments during the period of their working days because

of the measure’s postponement of the implementation of pay equity as

fellow employees who continued to work throughout it, the measure’s

effects upon those retirees transcended salary loss. This is because the

levels of pensions and such benefits are calibrated with reference to the

levels of salaries in the last years of their employment. Hence the

deprivations of the pay equity adjustments as promised within the April 1,

1988, to March 31, 1996, eight year time frame would have had a

deleterious effect on pensions and benefits of employees retiring in those

years. Indeed, its impact on that account would be more discriminatory

inasmuch as the effect on employees continuing in their work would be

temporary whilst, as NAPE’s counsel correctly points out, it would wreak

permanent deleterious effects on women who retired from the work force, or

were forced on compensation, within that time frame. As she states, such

persons would never realize the benefit of pay equity promises made

Page: 196

towards the end of their careers, and the discrimination against them would

continue during the rest of their lifetimes in the case of pensioners, and for

the duration of receipt of benefits in the cases of those forced on workers

compensation.

[526] There is no doubt, then, that the strongest challenge mounted by NAPE to

the judge’s holding that the deleterious effect of the measure was not “too

high a price to pay” lies in its impact on retirees from the work force. It

needs to be reiterated, however, that that deleterious impact does not stem

from the incremental approach to pay equity continued by the restraint

measure. It rather flows from the measure’s postponement of

implementation of the incremental process originally settled upon as the

method of progressing to full pay equity.

[527] That deferral effectuated through the restraint measure cannot summarily be

dismissed as merely putting off pay equity’s realization on the same

incremental basis as originally provided, as preceding para. 484 indicates

the argument of Government’s counsel is wont to do. Neither may the

deleterious effect of the postponement be rationalized by the fact that

Legislatures have “leeway” and “should not be obliged to deal with all

aspects of a problem at once”, as para. 507 of this judgment records

LaForest J. to have affirmed in McKinney and, upon which preceding para.

84 recounts the decision under appellate scrutiny at bar relies, albeit in the

context of incrementalism rather than of postponement which is the proper

focus of the measure’s deleterious impact, in reasoning that the impugned

legislative measure’s restraint on pay equity payments met the

proportionality criterion laid down in Oakes.

[528] There is, therefore, no basis to minimize or deprecate the deleterious effect

of the measure’s infringement of the affected employees s. 15(1)

constitutionally protected equality rights. The postponement of

implementation of the promised pay equity wrought serious consequences to

the enjoyment of those rights to all employees affected by that measure.

The harm was exacerbated for those falling within the group who retired, or

were forced on workers compensation, within the eight year time frame

when the measure’s effect was being experienced, however. This was

particularly so in the cases of retirees who would never receive the full

benefit of the deferred pay equity promises, and would suffer permanent

discrimination compared with their former counterparts who remained

employed.

Page: 197

[529] While fully appreciative of the more pernicious effect of the violation of the

individual equality rights upon the second group of affected employees,

despite the compounded negative impact of the restraint measure on those

retirees, the impugned measure must still be reckoned justifiable by its

intended purposes of containing and reducing the forecasted mushrooming

deficits. While there is no room to discount the severity of the deleterious

effects of that measure’s limitation of s. 15(1) equality rights, careful

analysis of the circumstances in which it was enacted supports the judge’s

holding that those individual rights were outweighed by the critical

importance of the objective which the legislative postponement of the

individual Charter rights was intended to serve.

[530] In this regard, it is relevant to note the restraint legislation had impact on

public sector remuneration beyond its postponement of pay equity. Thus, as

pointed out in Newfoundland Prov. Ct. Judges, the restraint legislation

also imposed a general freeze on wage scales throughout the public service.

However, it can be anticipated that those caught in the wage scale freeze

who retired in the period of the restraints, and in the time thereafter in which

the freezes would have affected their pensions or benefits, would likewise

have experienced adverse effects on their pension or compensation benefits.

It is fully recognized that this comparison is not entirely apt since the

women retiring from the bargaining units promised pay equity within the

time frame when their pensions and benefits would have been also affected

by the wage scale freeze would experience the additional impact of the pay

equity postponement. Moreover, the relative effect is not comparable

because those affected solely by the wage freeze would not have had to

suffer the indignity of their contributions in the workplace being

underesteemed. Nevertheless, the effect of the restraint legislation’s general

salary scale freeze is worthy of mention as it tends to underscore the gravity

of the measure’s objective.

[531] Apart from the wage scale freeze’s relevance, however, in looking to the

language of s. 1 of the Charter, in which judicial authority directs the

appropriate standard of justification must be found, it is hard to discern how

the restraint measure’s intrusion in the circumstances at bar could be

deemed otherwise than reasonably justifiable in free and democratic society

when taking into account its intrusion’s deleterious effects upon the retirees,

as well as upon the first group of affected employees. The justifiability of

those effects stems from the urgency and gravity of the fiscal situation

Page: 198

described in the overlooked “extended budgetary explanation” which

portended future governmental incapacity to provide health, educational and

social services essential to maintain the basic fabric of free and democratic

society.

[532] The critical importance of the legislative measure’s objective in addressing

the problem posed by the forecasted deficits hovering over the Province in

1991 has already been sufficiently underscored in preceding discussion of

the impugned measure’s proportionate effects vis à vis its objective. There

is no need to further belabour that point. It only remains to add that the

heightened discriminatory effect on retirees is not sufficient to warrant

revisiting the general assessment of the restraint legislation’s justification

reached in the foregoing analyses of its objective’s importance, and of the

first two components of the proportionality test.

[533] In the result, notwithstanding its increased negative impact upon retirees, it

is reasonable to conclude the restraint legislation’s objective outweighs its

deleterious effect on all employees who were affected by it. Therefore,

considering the “extended explanatory explanation”, and the clear omens it

portended for the Province’s future capacity to provide essential communal

needs, the Legislature must be deemed to have had rational and serious

grounds to have infringed those employees’ s. 15(1) equality rights by

postponement of the promised pay equity process. This being so, applying

the deferential standard of justification of Charter infringements that this

judgment has concluded authority signifies to be appropriate, agreement

must be voiced with the judge’s conclusion that the Arbitration Board’s

majority erred in concluding the benefit of attaining the restraint measure’s

objective was “too high a price to pay”. While preferring to direct focus on

pay equity’s postponement, rather than its incremental implementation, the

judge’s ultimate conclusion is nonetheless unassailable where, as preceding

para. 84 recounts, he held that the “severe fiscal problem” faced at the time

of the restraint’s enactment led to reasonable conclusion that “the law did

not have a disproportionately severe effect” upon the employees whose

individual Charter rights were violated by the impugned measure.

*

consonance with Doctrine:

[534] As heralded in preceding para. 372, and was undertaken at the end of the

foregoing canvassing of each stage of the Oakes s. 1 justification criteria,

attention will now focus on the consonance with the Separation of Powers

Page: 199

Doctrine of the foregoing affirmation of the judge’s conclusion that the

proportionate effects component had been fulfilled in the circumstances at

bar. As was the case with the rational connection component, fulfillment of

this third and final component of the proportionality test can be reached in

consort with the Doctrine essentially because it entailed no inquiry into

whether other means existed which visited a less deleterious effect upon the

infringed equality rights whilst attaining the measure’s important purposes

of containing and reducing the looming serious fiscal deficits. Being

confined to the measure actually adopted, i.e. the postponing pay equity

adjustments, the conclusion that its consequential Charter violation was not

“too high a price to pay” can likewise be viewed as an exercise of judicial

power akin to the court’s traditional statutory interpretative role of

construing the effect of legislative measures. Thus, as was the case with the

judge’s rational connection holding, his finding that the deleterious effect of

the measure’s violation was not disproportionate to its objective’s

importance must be accepted as also made within acceptable bounds in

consonance both with s. 1 and the Doctrine.

*

affirmation of effects finding:

[535] For the foregoing reasons, the judge’s overturning of the determination by

the Arbitration Board’s majority that the deleterious effect of the measure’s

violation of the s. 15(1) equality rights was “too high a price to pay” to

attain its objective should be upheld. The three challenges raised by counsel

for NAPE to the judge’s finding that the restraint measure had no

disproportionately severe effect rendering it unjustifiable by the purposes it

was intended to serve emerge from the preceding discussions as

unsustainable in full light of the circumstances at bar.

[536] Firstly, while the import of the measure’s infringement is incontrovertible,

the importance of addressing the fiscal deficits that the evidence showed to

be threatening the Province’s economic security and well-being was of

sufficient magnitude to outweigh and override the violation. Secondly,

counsel’s incrementalism argument, unsupported by the authorities

submitted in response to it when considered in the context of the

circumstances obtaining, is irrelevant because it was the postponement of

the scheduled implementation of the pay equity process, not its incremental

means of achievement, which perpetrated the Charter rights’ violation.

Thirdly, the deleterious effects of the violative postponement upon retirees,

Page: 200

as a result of its permanent effects upon their pensions or compensation

benefits, is still justifiable when weighed against the urgency and gravity

deducible from the ministerial “extended budgetary explanation” that had

been overlooked by the Arbitration Board.

[537] It should be noted here it is on the basis of the deferential flexible standard

commanded by authority for the conduct of justification analyses under s. 1

of the Charter, that it has been concluded the severity of the impugned

legislative measure’s intrusion upon the s. 15(1) equality rights through its

postponement of pay equity is justifiable by the purposes it was intended to

serve. Moreover, this conclusion is reached fully mindful of the hybrid

deferential standard for conducting and reviewing s. 1 analyses, which has

already been fully discussed, and is summarized in preceding paras. 272 to

275. In particular, the conclusion is taken fully alert to the demarcation

made by the majority in RJR-MacDonald suggesting a lesser degree of

deference to policy oriented evidence than that of a purely factual nature.

[538] In this regard, it is observed that the evidence which precipitated the

restraint legislation’s enactment consisted, as the ministerial “extended

budgetary explanation” of it witnesses, of pure economic facts. It is neither

classifiable as social science, nor as other policy oriented evidence. This

being so, this court is not in any position to dispute the financial situation

portrayed by the Minister of Finance to the Legislature. Neither has it any

mandate to do so on even the most restrictive view of the s. 1 justification

standard of deference if any semblance of harmony with the Separation of

Powers Doctrine is to be maintained. In any event, even if aspects of policy

can be said to have prompted the rights intrusion, as already noted, whatever

the consequential restricted deferential standard, the judge’s finding of

justification would be sustainable in light of the grave threat to the

economic security and well being of the Province.

[539] The upshot of this upholding of the judge’s finding of fulfillment of the

proportionality component of the proportionality test results in affirmation

of his conclusion that the infringement of the s. 15(1) Charter equality

rights is saved by justification under s. 1, and resolution of the

constitutional issue at bar.

Dispositions to date:

Page: 201

[540] At this juncture, before proceeding to discussion of the remaining issues

listed in preceding para. 108, it is timely to take stock of those that have

been resolved.

[541] The first was the jurisdictional issue discussed in preceding paras. 109 to

175. That issue was resolved in siding with NAPE counsel’s submission

that the judge erred in holding the Arbitration Board lacked jurisdiction to

hear the grievances. Had analysis resulted in agreement with the latter’s

view that the pay equity dispute at bar did not arise out of the Collective

Agreement, this judgment would have sided with the holding that the Board

was not empowered to hear these complaints, and the appeal could have

ended on that finding. Such not being the result, attention then turned to

issues (ii) and (iii) listed in preceding para. 108 dealing with the

constitutionality of the legislated restraint measure.

[542] These constitutional issues are discussed in paras. 176 through to 275.

Attention focused at the beginning of that discussion on the standards of

judicial review of the Arbitration Board’s decisions construing both the

restraint legislation’s language and its constitutional invalidity. Having first

set out the contextual setting of that discussion in preceding paras. 176 to

180, the judgment canvassed in paras. 181 to 213 the test to be applied in

review of the Board’s statutory interpretation of the wording in s. 9 of the

restraint legislation, concluding that its standard was patent

unreasonableness.

[543] Discussion then turned to the standard of review of the Arbitration Board’s

unanimous ruling that s. 9 perpetrated a violation of affected employees’ s.

15(1) Charter equality rights. This phase of the judgment was undertaken

in paras. 214 to 252 where, after detailing reasons for reservations over the

test not being the same deferential one applicable in traditional statutory

interpretations, it was acknowledged that the law requires such arbitral

rulings be reviewable on the standard of correctness, and that that norm

would be applied in the circumstances at bar.

[544] Finally, in paras. 253 to 275, focus was centered on the judicial standard of

s. 1 Charter justification analyses. In that segment of the discussion, it was

explained why the standard in that inquiry laid down in RJR-MacDonald is

more complex and does not crystalize into an absolute norm. Analysis of

authoritative judicial opinion on the topic led to conclusion that the

appropriate deferential and flexible standard for the justification analysis at

bar, mirroring the wording of s. 1, would be that which would give sway to

Page: 202

the limitation in issue if determined to be a reasonable limit demonstrably

justifiable in a free and democratic society.

[545] Applying these standards, following the format for consideration of the

issues in this appeal, attention then centered on Government counsel’s

submission that the judge’s ruling affirming the unanimous arbitral decision

that the restraint measure infringed s. 15(1) of the Charter was correct.

This dispensed with the second of the issues listed in preceding para. 108.

[546] After siding with counsel’s submission that the judge’s infringement ruling

should be upheld, consideration was then directed to whether the violation

was nonetheless saved under s. 1 of the Charter. This is the third of the

listed issues, and the second arm of the constitutional question. This inquiry

resulted in agreement being accorded to Government counsel’s submission

that the judge’s ruling that the violation was redeemed under s. 1 of the

Charter should be upheld. This ruling overturned the Board’s contrary

view, and thereby confirmed the restraint measure’s legal effectiveness and

enforceability in accordance with the import of its terms.

[547] In resolving the constitutional issue thusly, this judgment was guided by the

criteria handed down in Oakes, and other subsequent authorities expanding

upon them, for the conduct of s. 1 Charter analyses. Its reasoning in

affirmation of the judge’s constitutional dispositions also proceeded on the

footing that the Charter’s purpose and intent is to place effective measures

in the hands of individuals of enforcing their entrenched fundamental rights

and freedoms to the extent that no rational objection to the enjoyment of

them could be maintained in free and democratic society. As was explained,

conducting the analyses on that basis assures alertness to the reality that in

achieving its purpose and intent the Charter wrought a dramatic change in

parliamentary supremacy as traditionally operative in the parliamentary

systems of government to which it applied. That change is manifested in

the power it confers upon the judiciary to declare executive and legislative

actions and laws unenforceable for want of justification of their interference

with enjoyment of individual entrenched Charter rights.

[548] By the same token, it is equally noteworthy that the foregoing constitutional

analysis was also conducted from the standpoint that the Charter effected

no such similar fundamentally radical change in the policy making powers

of the three branches of government under the Separation of Powers

Doctrine. Instead, it proceeded on the basis that the guardianship of

individual fundamental rights and freedoms conferred on the judiciary by

Page: 203

the Charter extended the courts’ interpretative role to ascertaining the

impact of governmental measures on guaranteed rights; but bestowed no

increased policy-making power for that purpose beyond that normally

exercisable by courts in discharging their traditional interpretative role.

This premise follows from authoritative confirmation that the Separation of

Powers Doctrine is just as much a distinguishing feature of the Canadian

Constitution as the Charter has become. It is for this reason that the

various stages of analysis of the judge’s treatment of the restraint measure’s

compatibility with the Charter were also addressed for its consonance with

the Doctrine. The upshot of this approach is affirmation that the judge’s

conclusion holding the impugned legislation to be constitutionally

enforceable was made within acceptable bounds, in consonance with both s.

1 of the Charter and the Doctrine as it has traditionally operated.

[549] Having resolved the judge’s conclusion that s. 9 of the Public Sector

Restraint Act met constitutional muster because the s. 15(1) violation it

perpetrated was nonetheless justifiable under s. 1 of the Charter should be

upheld, this appeal now moves to consider whether the judge’s

interpretation of the meaning and thrust of that constitutionally enforceable

legislation is sustainable.

The statutory interpretation issue:

÷

separate arms of issue:

[550] As reference to preceding para. 108 will show, the statutory interpretation

issue is subdivided into two parts, therein listed as issues (iv) and (v). Both

were raised by NAPE in its challenge of the judge’s agreement with the

Arbitration Board’s construction of s. 9 of the restraint legislation. The first

arm of the challenge asks whether that provision extinguished

Government’s obligation to make pay equity wage adjustments under the

Pay Equity Agreement between April 1, 1988, and March 31, 1991, in light

of the first three wage adjustment payment dates scheduled under the

Agreement having passed before Government was in a position to respond

to its undertakings to make those adjustments. As noted at the outset of this

judgment in preceding para. 8, this situation arose because the financial

consultants’ report providing the requisite calculations of the quantum of

the wage and adjustments necessary to erase the systemic gender

discrimination within the affected groups was not finalized until March 20,

Page: 204

1991, and not received by the steering committee until July of 1991. In

these circumstances, the earliest date when the adjustments could have

commenced was April 1, 1991, which was the fourth wage adjustment date

in the original timetable for the achievement of pay equity under the Pay

Equity Agreement; but the “1^stpay equity adjustment date” after the final

determination of the amount of the discrepancy due to gender on March 20,

1991.

[551] The second arm of the statutory interpretation issue questions the judge’s

agreement with the conclusion that Government was not required to pay the

full wage rate entitlement on April 1, 1992, which would have been

receivable by affected employees under the Agreement but for the

legislated restraints. As already noted in preceding paras. 42 and 99, this

second arm of the statutory interpretation issue asserts NAPE’s primary

alternate challenge to the judge’s affirmation of the Board majority’s

interpretation that s-s. 9(3) erased Government’s obligation to provide pay

equity prior to April 1, 1991. It flows from the argument of NAPE’s

counsel that, even if the obligation to pay wage adjustments were

extinguished between June 24, 1988, and April 1, 1991, because the amount

of the adjustments were not ascertained until March 20, 1991, the scheduled

obligations to make the fourth year adjustment and to pay the balance of the

promised pay equity with effect from June 24, 1988, in the fifth year

nonetheless continued unabated. This alternate position, therefore,

effectively argues, if s. 9 is to be construed as extinguishing rights to

receive pay equity during the restraint period, it only effectuated a

suspensive deferral of the entitlements. In the result, NAPE is arguing in

this submission that those deferred payments became payable April 1, 1992,

as part of the balance needed to achieve full pay equity on the fifth

anniversary of the first effective payment date in accordance with the terms

of the Pay Equity Agreement.

[552] The merits of these arms of the statutory interpretation challenge arising out

of the Arbitration Board’s construction of the restraint legislation’s

language will now be addressed separately. As was already indicated in

preceding para. 270, and elsewhere in the discussion of the standards of

judicial review applicable to this appeal’s issues, these challenges to the

judge’s affirmation of the statutory interpretation of the Board’s majority,

encapsulated in issues (iv) and (v) listed in preceding para. 108, will be

conducted on the patently unreasonable standard.

Page: 205

÷

the extinguishment issue:

crux of issue:

>

[553] At this point it would be useful to review the legislative provision to be

interpreted, which is reproduced in preceding para. 11, together with the

respective summaries of the treatments of the extinguishment issue in the

Board chairperson’s majority decision summarized in preceding paras. 20 to

25; in the union nominee’s in preceding paras. 38 to 41; and, in the judge’s

affirmation of the majority disposition in preceding paras. 91 to 98.

[554] From this review, it will be seen that the kernel of this extinguishment issue

boils down to whether s-s. 9(3)’s sanctioning of implementations of pay

equity agreements on “on the date on which the pay equity adjustment was

agreed upon” meant adjustments were permitted to commence,

notwithstanding the enacted restraints, on “the date when the commitment to

institute pay equity was reached”, as NAPE’s counsel argued, or on the date

“upon which the amount of the pay equity adjustment is determined”, as

preceding para. 97 records was the judge’s construction in disagreement

with NAPE’s position. If the first construction is the proper one, given it

was common ground that s-s. 9(1) and s-s. 9(2) eliminated governmental

obligation to pay equity prior to June 24, 1988, being the date of its

committal to the obligation on its entry into the Pay Equity Agreement,

Government’s obligation between June 24, 1988, and March 31,1991,

would subsist. If the second one is interpreted to be the meaning, all

obligation prior to March 31, 1991, would be extinguished. The liability at

stake in these proceedings, therefore, is the entitlement to pay equity for the

period spanning June 24, 1988, and March 31, 1991.

[555] It is important in this inquiry into the extinguishment question to bear in

mind that s. 9 of the Public Sector Restraint Act did not prohibit entry

into, or implementation of, pay equity agreements during the period of the

restraints. This is clear from s-s. 9(4). However, the legislative measure did

place restrictions upon the right to exact payments under any such

agreement. Determination whether it precluded payments between June 24,

1988, and March 31, 1991 hinges on whether the critical phrase “the date on

which the pay equity adjustment was agreed upon” in s-s. 9(3) eliminated

Government’s obligation to make payments within that period on the

ground that the amount of the pay equity adjustments remained to be

Page: 206

determined on the payment dates scheduled under the Agreement until

shortly before expiry of the 1990-91 fiscal year, the report of the financial

consultants not having been finalized under March 20, 1991.

[556] It is equally important to keep to the fore that the Pay Equity Agreement

appended to the Collective Agreements affected by the outcome of this

appeal was in existence at the time of passage of s. 9 of the restraint

legislation. This being so, it is reasonable to assume the Legislature, when

enacting the restraint measure, would have been fully alert to the

Agreement’s existence, and to the fact that the amount of the pay equity

adjustments had not been determined until finalization of the report of the

financial consultants on March 20, 1991, providing calculation of the

quantum of the pay equity wage adjustments. As will be presently

observed, it is that knowledge which gives context to the chairperson’s

comment, reproduced in the extract from his decision quoted in preceding

para. 21, that s-s. 9(3) designed the method by which “pay equity

adjustments were subject to restraint”. Likewise, that knowledge, in its

contextual setting of s-s. 9(3), as has already been described in preceding

paras. 93 to 98, supplies perspective to the judge’s holding that the restraint

legislation “clearly extinguished Government’s obligation to make pay

equity wage adjustments for the period prior to the date when the

adjustments were agreed upon”, which would have included the entire

period of the restraints prior to their expiry on March 31, 1991. Moreover,

as will shortly become apparent, it is also this knowledge which will play an

important role in the ensuing analysis of the arguments addressed to the

challenge of that holding of the judge.

>

arguments of counsel:

[557] Counsel for NAPE submits the Board’s majority and the judge erred in

finding s. 9 of the restraint legislation extinguished Government’s

obligation to provide pay equity adjustments for the period between June

24, 1988, and March 31, 1991. Echoing the reasoning of the union’s

nominee to the Board in that regard, summarized in preceding paras. 38 to

42, and consistently with her position throughout these proceedings, counsel

for NAPE insists that the central question on which the resolution of this

extinguishment issue hinges is answered by giving the critical phrase “the

date on which the pay equity adjustment is agreed upon” in s-s. 9(3) its clear

unambiguous meaning, which she maintains is the date “when the

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commitment to institute pay equity was reached”, i.e. June 24, 1988, “when

the Pay Equity Agreement was signed”, and “not the date when the specific

amount was determined”. As already noted, the latter date was March 20,

1991, when the financial consultant’s report was finalized.

[558] In arguing that s-s. 9(3's) meaning is clear, counsel for NAPE nonetheless

posits, if any ambiguity exists, it is “a cardinal principle of statutory

interpretation that collective agreements and rights contained thereunder

should not be abrogated by an interpretation of legislation unless such

interpretation is clearly mandated by the wording of the statute”.

Proceeding from thence, enlisting authorities to support her point, she also

submits that “any ambiguity in section 9 of the Act must be resolved in

favour of ... the interpretation which accords with the Charter and the

values to which it gives expression”. From both standpoints NAPE’s

counsel goes on to contend it to be “... inexorable conclusion that the

legislation must be interpreted as not affecting the payment of the amounts

required to achieve pay equity”. It is from these positions, then, that NAPE

attacks the judge’s affirmation of the finding of the Board’s majority that

Government’s obligation was extinguished.

[559] Government’s counsel responds by arguing the “language contained in

section 9 is not ambiguous and can be given only one clear meaning”.

Thus, quoting from the phrase in s-s. 9(3) stipulating “... the 1^stpay equity

wage adjustment date shall be the date on which the pay equity adjustment

is agreed upon”, counsel submits that that “first ... adjustment date” must be

construed as “the date when the specific amount was determined and not the

date when the commitment to institute pay equity was reached”. He

maintains this intent emerges clearly from the ordinary and natural meaning

of the wording of the phrase, from its contextual setting within s. 9 and the

Act as a whole, as well as from the provision’s purpose.

[560] It is from this perspective, then, that Government maintains it to be clear

that “the date on which pay equity wage adjustment payments were to

commence was the date on which the amount of wage increases had been

agreed upon”. It agrees that this date was March 20, 1991, when the

amounts of the wage adjustments had been finally calculated by the

financial consultants. Echoing the chairperson’s comment quoted in

preceding para. 22, counsel for Government submits, while this would have

resulted in a three year payout falling due on April 1, 1991, but for the

Page: 208

interpretation of s. 9 of the restraint legislation, s-s. 9(3)’s clear thrust was

to eliminate the obligation to make that retroactive payout.

>

approach to s. 9's interpretation:

[561] As their arguments show, both counsel open with their perspectives of the

clarity of s-s. 9(3)'s critical phrase which links the first pay equity

adjustment date of pay equity agreements to the date on which such wage

adjustments are agreed upon. Counsel for NAPE takes the position the

phrase clearly and unambiguously demarks the date of agreement as the day

when the pay equity commitment was made on the signing of the Agreement

on June 24, 1988. Counsel for Government, equally adamantly, insists it

clearly and unambiguously means the date when the financial consultants’

report was finalized on March 20, 1991, thereby eliminating the obligation

for retroactive payments, and opening the way for the commencement of the

pay equity wage adjustment payments.

[562] The first thing that needs be said with respect to these opening salvos of

both counsel is that rarely can questions of statutory interpretation be

resolved solely by touting lack of ambiguities. This is simply because

definitions are not mathematical formulas leading to precise solution of

import. The meaning of language is not construable as if its definition were

an algebraic equation. There is no doubt that resort to dictionary definition

is an important first step. However, as in any appreciation of meaning,

context is also a very relevant consideration. In statutory interpretation the

purpose of the legislation is also a particularly important factor to be

considered. Appreciation of contextual and purposive factors will

necessarily entail advertence to the circumstances in which the words are

used. The importance of such circumstances was noted by the judge in his

reference to the frequently quoted observation in Escoigne Properties Ltd.

v. Inland Revenue Commissioners, [1958] 1 All E.R. 406 [H.L.] where

Lord Denning stated at p. 414:

C

A statute is not passed in a vacuum, but in a framework of

circumstances, so as to give a remedy for a known state of affairs. To

arrive at its true meaning, you should know the circumstances with

reference to which the words were used; and what was the object

appearing from those circumstances which Parliament had in view.

[563] In the result, Government counsel’s assertion that the legislative intent of s.

9 is to be construed from a composite of ordinary and natural meaning,

Page: 209

contextual setting and purpose discernible within the “framework of

circumstances” of the statutory measure’s enactment is an accurate

description of the recognized statutory interpretative process. His assertion

is supported by R. v. Lewis, [1996] 1 S.C.R 921, which counsel enlists to

support that submission. In Lewis, Iacobucci J., writing on behalf of a

unanimous bench, addressed the meaning of “on” in the phrase “on the

reserve”. In so doing, endorsing the views expressed in the texts of

Professors P.-A. Coté and Ruth Sullivan, Iacobucci J. indicated in para. 66

of Lewis that the proper approach was to address the phrase’s meaning by

analyzing “the wording, context and purpose of the statutory provision”.

[564] It should be noted before proceeding to this three-pronged analysis that no

exception is taken with the propositions of counsel for NAPE that in face of

ambiguities courts should lean against statutory constructions that abrogate

collective agreements, and towards interpretations favouring realization of

Charter rights. These propositions neither obviate the need for analysis,

nor provide any instant resolution to the import of statutory measures,

however. They only apply where analysis of meaning leads to an impasse

of credible ambiguity. In other words, the statutory interpretative process

must first be conducted, and have resulted in conclusion that the language

employed is capable of being understood in more than one sense. This was

made clear in one of the authorities enlisted by counsel for NAPE to this

aspect of her submissions. Thus, in R. v. Zundel, [1992] 2 S.C.R. 731,

McLachlin J. summarized the case law on the application of the principle at

p. 771 as follows:

C

... where a legislative provision, on a reasonable interpretation of its

history and on the plain meaning of its text, is subject to two equally

persuasive interpretations, the Court should adopt that interpretation

which accords with the Charter and the values to which it gives

expression ....

[565] It will be noted that Zundel’s call to “history” and “plain reading” reflects

the approach to statutory interpretation sanctioned in Lewis, and other

authority, of focusing on plain meaning, context and purpose, whilst being

fully alert to the “framework of circumstances” under which the legislative

language under scrutiny was passed. The affirmability of the judge’s

upholding of the interpretation placed on s. 9 of the Public Sector

Restraint Act by the Arbitration Board’s majority will now be subjected to

that approach.

Page: 210

>

extinguishment finding’s affirmation:

[566] The judge’s treatment, summarized in preceding paras. 91 to 98, witnesses

adherence to that approach in his upholding of the Arbitration Board’s

majority ruling that s-s. 9(3) of the restraint legislation extinguished

Government’s obligation to provide pay equity adjustments up to the expiry

of the statutory restraints on March 31, 1991.

*

plain meaning factor:

[567] As preceding paras. 96 and 97 indicate, the judge commenced his inquiry

into the extinguishment arm of the statutory interpretation issue by looking,

through resort to dictionary definition, to the plain meaning of the words

“wage adjustment” in s-s. 9(3) in exposing the weakness of the failure of

NAPE to lend “consequence” in its construction of the import of these

words within that provision. Speaking strictly from the plain meaning of

those key words, the judge’s reasoning in that regard has coherence and

rationality. It affords compellingly persuasive support to his conclusion that

the critical phrase in s-s. 9(3), in identifying the date when the “1^stpay

equity wage adjustment” could be payable as “the date upon which the pay

equity wage adjustment is agreed upon”, had thereby stipulated the earliest

permissible wage adjustment payment date during the restraint period, in the

judge’s words, had to be held to the date “upon which the amount of the pay

equity adjustment is determined”.

*

contextual factor:

[568] The judge did not rest his conclusion on his assessment of plain meaning of

the critical wording of s-s. 9(3), however. As mentioned in the resumé of

the extinguishment aspect of his decision, he also placed weight on the

context of s-s. 9(3)’s enactment. Actually, a perusal of his reasoning

suggests he laid particular emphasis on the contextual factor. In doing so,

his analysis made mention that the Hansard confirmed “the details of the

Pay Equity Agreement were known to members of the Legislature”. This

led him to read “the language in Section 9 of the Act ... in the context of the

Pay Equity Agreement”, which resulted, in turn, in him concluding from the

provision’s contextual setting “that the phrase ‘pay equity wage adjustment’

in the Pay Equity Agreement refers to the amount of wage increase required

to achieve pay equity”.

Page: 211

[569] This emphasis upon knowledge of the “details” of the governmental

commitment to pay equity in the judge’s assessment of contextual impact

upon the import of s. 9's language is significant to appreciation of the Board

chairperson’s comment, quoted in preceding para. 21, that s-s. 9(3) designed

the method by which “pay equity adjustments were subject to restraint”.

Hence, knowledge of those “details” would have included awareness at the

date of the provision’s passage into law on April 18, 1991 that the amount

of the promised pay equity adjustment had not been determined until the

previous March 20^thwhen the consultants’ report was finalized. Although

the financial consultant’s report may have been finalized in the latter days of

March of that year, the evidence confirms it was not in Government’s

possession by the time of the restraint legislation’s enactment.

[570] The upshot of this state of legislative knowledge at the time of enactment

gives context to the judge’s observation that s-s. 9(3) provides a method of

subjecting the pay equity adjustments to restraint. Thus, in imputing

legislative knowledge that the quantum of adjustments, payable under the

Pay Equity Agreement to employees in the six bargaining units within the

public health sector, had not been determined until March 20, 1991, it is

quite logical to infer that the legislators understood s-s. 9(3)’s holding of the

“1^stpay equity adjustment date” of any “pay equity agreement ...

implemented” during the period of restraints to “the date on which the pay

equity wage adjustment is agreed upon” meant that the governmental

obligation to make the retroactive wage adjustment payments, which would

otherwise have fallen due, was extinguished. This is simply because “the

date on which the pay equity wage adjustment is agreed upon” had not

arrived before March 20, 1991. Therein lies the contextual explanation of

the chairperson’s observation recorded in preceding para. 21 that s-s. 9(3) of

the restraint legislation designed the method by which “pay equity

adjustments were subject to restraint”.

[571] By the same token, this contextual setting of legislative knowledge lends a

clear perspective of reasonableness to the judge’s upholding of the Board’s

extinguishment ruling on its judicial review. No exception can be taken that

that context lends significant weight to the judge’s holding that the restraint

legislation “and particularly Section 9 thereof, clearly extinguished

Government’s obligation ...”. Certainly, the knowledge which must be

imputed to the Legislature militates against any holding on judicial review

of patent unreasonableness of the Board’s conclusion that “(t)he language of

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s. 9 ... had the effect of extinguishing the obligations on government ... to

provide pay equity adjustments for the period April 1, 1988 to March 31,

1991". Likewise, this same bed of knowledge supports this Court affirming

the judge’s treatment of the contextual factor as reasonable.

*

purposive factor:

[572] The judge’s treatment of s-s. 9(3)’s purpose centered on consideration of the

objective “of section 9 in its entirety and the Act as a whole”. Thus, after

observing that the legislation limited “the cost to Government of salaries

and other benefits paid to public sector employees”, the judge’s decision

went on to state:

C

[126] ... Section 9 dealt with the treatment to be accorded pay equity

agreements as defined in subsection(5). Subsections (1) and (2)

forbade the retroactive implementation of pay equity agreements

thereby limiting Government’s liability. Subsection (3) had a primary

and a secondary purpose. The primary purpose was to permit the

negotiation or implementation of pay equity agreements despite the

other provisions of the Act. The secondary purpose was to impose a

limitation on the establishment of the “1^stpay equity wage adjustment

date”. In the context of the Act as a whole the likely intent of the

limitation would be to reduce Government’s financial exposure in the

implementation of pay equity agreements.

[573] No sustainable quarrel can be taken with this statement of purpose of s-s.

9(3), nor with its relevancy to the present inquiry into whether s. 9 of the

restraint legislation admits to being interpreted as extinguishing

governmental obligation to make pay equity adjustments which, but for the

legislative intervention, would have fallen due on the consultants’

finalization of quantification of the amounts payable. However, in her

submissions, NAPE’s counsel maintains s. 9 also had another purpose

which must be considered, namely: the abrogation of commitments in

collective agreements with which, in the absence of clear language that she

maintains is lacking in s. 9, legislation is presumed not to intend to interfere.

It will be noted that these positions of NAPE have already been addressed in

preceding para. 564 where it was concluded that credible ambiguity must be

construable in the legislation before any such presumptions became

operative. The judge dealt with counsel’s argument in the same vein.

Hence, while acknowledging the “indisputable” validity of both principles,

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he stated they “are only applicable where the language of the legislation is

ambiguous”. In the case of s. 9, he concluded there was no ambiguity

regarding extinguishment of Government’s obligation. As just noted, that

conclusion has already received affirmation.

[574] Returning to the judge’s statement of s-s. 9(3)’s purpose, the accuracy of its

description as a measure intended “to reduce Government’s financial

exposure in the implementation of pay equity agreements” cannot be

gainsaid. This, in turn, can be seen to further the restraint legislation’s

overall purpose of containing and reducing the forecasted escalating deficits

that threatened the Province’s economic security and well-being. As

Government counsel points out, the purpose of the limitation on the

implementation of the pay equity agreements was “to avoid payment

amounts that had not been paid as of the commencement of the restraint

period”. Accordingly, as in the case of the contextual factor, the purpose of

the restraint legislation buttresses the conclusion that no holding of patent

unreasonableness could be maintained on judicial review with respect to the

conclusion of the Board’s majority that s. 9's language extinguished

Government’s obligations for pay equity adjustments prior to March 31,

1991.

*

upshot of analysis:

[575] The judge conducted his review of the Arbitration Board’s extinguishment

finding on the appropriate standard applying judicially endorsed legal

principles. Construed in the light of its plain meaning, context and purpose,

the conclusion of the Board’s majority that s. 9 of the restraint legislation

extinguished Government’s obligations to make provision for pay equity

during the restraint period April 1, 1988 and March 31, 1991 cannot be said

to be a patently unreasonable interpretation. Accordingly, the judge’s

upholding of that conclusion on judicial review is affirmed. Attention will

now turn to the second arm of NAPE’s statutory interpretation challenge,

being issue (v) listed in preceding para. 108.

÷

the alternate position:

essence of position:

>

[576] As preceding para. 551 explains, NAPE’s alternate position is: even if s-s.

9(3) were construed as extinguishing Government’s obligations to make pay

Page: 214

equity wage adjustments prior to finalization of quantification of the

amounts payable in accordance with the Pay Equity Agreement’s terms, that

provision still required these obligations to be fulfilled after the consultants’

had agreed in their report on the amount of the pay equity wage adjustment.

[577] At first blush, it might appear somewhat paradoxical to argue obligations

accepted as extinguished by legislation can be construed nonetheless to be

payable under the same statutory measure. This is not exactly what is being

argued by counsel for NAPE, however. What really is being posited here is

that the wage adjustment dates, scheduled prior to the consultants’

determination of the amount of those adjustments on March 20, 1991, under

the Pay Equity Agreement, were extinguished; but not the obligations to

which those dates related. In effect, therefore, NAPE’s alternate measure

interprets s-s. 9(3) as suspending wage adjustment obligations until the first

wage adjustment date following finalization of the amounts payable by the

financial consultants as contemplated by the Agreement. This was April 1,

1991, which was the fourth pay equity wage adjustment date scheduled in

the Pay Equity Agreement, but would have been “the lst pay equity wage

adjustment date” under s-s. 9(3) of the restraint legislation inasmuch as “the

pay equity wage adjustment” had not been “agreed upon” in this case until

finalization of the financial consultants’ report on March 20, 1991.

[578] The essential crux of the alternative challenge to the judge’s statutory

interpretation, therefore, comes down to whether, given that the quantum of

the pay equity wage adjustments necessary to implement the pay equity

commitment was not determined until March 20, 1991, by the consultants,

April 1, 1991, it is to be treated as the fourth wage adjustment date payable

under the Pay Equity Agreement; or, “the 1^stpay equity wage adjustment

date” referenced to in s-s. 9(3) of the restraint legislation. If it be the

former, then the remainder necessary to achieve the full promised pay equity

would have fallen due on April 1, 1992, being the fifth anniversary of the

first effective payment date under the Agreement. Under such a scenario, s-

s. 9(3) is being construed as extinguishing the scheduled payment dates

prior to the consultants’ determination of the amount of the adjustments on

March 20, 1991; but not the obligations. In the result, the affected

employees would receive the wage adjustments otherwise payable in the

first three years under the Pay Equity Agreement, together with any

remainder necessary to fulfil the original commitment to fully implement

pay equity on the scheduled date of April, 1992. If April 1^st, 1991, is to be

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treated as the “1^stpay equity wage adjustment date”, then the judge’s view

that the schedule for commencement of the incremental payments had been

shifted by s-s. 9(3) will prevail, and his affirmation of the Board’s rejection

of NAPE’s alternate position on the statutory interpretation issue must be

sustained.

>

positions of counsel:

[579] In submitting that the Arbitration Board’s majority and the judge erred in

failing to find the wage adjustment that fell due on April 1, 1991, was to be

treated under s-s. 9(3) of the legislation as the adjustment payable in the

fourth year of the Pay Equity Agreement, counsel for NAPE was rejecting

the thesis that the restraint legislation should be construed to have wrought

a shift in the scheduled commencement of the incremental payments

prescribed under the Agreement from April 1, 1988 to April 1, 1991.

Instead, as has already been explained, counsel interprets s.9 as suspending

the Agreement’s operation within that three year period, and effectively

deferring the obligations within the suspension to the scheduled final

payment date on April 1, 1992.

[580] In advancing her position, counsel’s argument closely tracks the dissenting

view of the union nominee to the Arbitration Board on this alternate

statutory interpretation issue which is summarized in preceding paras. 42

and 43. Thus, she adopts the dissent’s reasoning leading to the conclusion

that “the balance of the pay equity adjustment was payable in accordance

with the Pay Equity Agreement” under the legislation in the 1992-93 fiscal

year. As already noted, this would result in that balance being payable April

1, 1992, being the fifth and last scheduled payment date under the

Agreement, and would include the three years of payment obligations

NAPE construed to have been suspensively deferred.

[581] Counsel also co-opts to her argument the union nominee’s position on

Article 4.01 of the collective agreement, likewise underscoring the

significance of finalization of the financial consultant’s report determining

the amount of the discrepancy in wages attributable to gender, whilst

arguing the continuation of differential wage rates constituted

discrimination contrary to that Article. Recognizing, again following the

dissent, that the statutory freezes on increases to pay scales did not end until

March 31, 1993, she earmarked April 1, 1993, when there were no statutory

restrictions on wage adjustments to redress the discrimination at which the

Page: 216

Agreement was aimed, as the date when full pay equity should have been

achieved under the collective agreement.

[582] This submission based on Article 4.01 is really a further alternative position

put forth by NAPE, and as such will be separately addressed. At this

juncture, it should be noted, however, that this further alternate would result

in receipt of the full pay equity one year later than under the argument based

exclusively on the legislation, and one year later than originally promised.

From a practical point of view, the one year lapse was neither here nor there

as far as the outcome sought through these proceedings is concerned since

by the time the Arbitration hearings were held in 1995 the full amount of the

pay equity would have been payable under either argument.

[583] In his rejoinder, counsel for Government insists there was no basis to

conclude that the legislation intended the payment that fell due on April 1,

1991, should be treated as the adjustment payable in the fourth years of the

Pay Equity Agreement as a result of the “pay equity wage adjustment”

having been “agreed upon”, on March 20, 1991, with finalization of the

consultants’ report. Instead, he argues, that based on “appropriate principles

of interpretation”, the wage adjustments were payable “in accordance with

the first rather than the fourth year of the Agreement”. Such conclusion, he

maintains, follows “from a consideration of the effect of s. 9(3) of the Act,

and the relationship between Article 4.01 of the Collective Agreement and

Schedule H”. The referenced schedule was attached to the Pay Equity

Agreement and had set out the incremental timetable in which pay equity

had been intended to be fully achieved commencing with wage adjustments

on April 1, 1988, and continuing on the 1^stdays of April thereafter to and

including 1992 when the final settlement was slated to be paid.

[584] In the result, from Government’s perspective, the judge was correct in

viewing s-s. 9(3) as effecting a shift in the timetable for commencement of

the incremental payments from April 1, 1988 to 1991. Accordingly, the

previous three pay equity wage adjustment commitments were erased with

the extinguishment of the obligations to pay them. The upshot of this would

result in no significant three year payout including deferred payments

having fallen due on April 1, 1992. Instead it would only have been the

adjustment due on the “1^stpay equity wage adjustment date”, in the words of

s-s. 9(3), which was the first adjustment contemplated under the Agreement.

>

assessment of positions:

Page: 217

[585] Assessment of the respective merits of the foregoing positions of counsel

will be approached on the same principles of statutory construction as

preceding paras. 561 to 565 applied to resolution of the extinguishment arm

of the statutory interpretation issue. Focus will accordingly be directed to

the plain meaning, contextual and purposive factors with an eye to the

“framework of circumstances” which this case presents and to which Lord

Denning stated statutory interpretations must be alert.

*

plain meaning factor:

[586] With due respect, it is difficult to see how the language of s-s. 9(3) can be

construed to support NAPE’s position that it effectuated a suspension of

scheduled dates for receipt of the pay equity wage adjustments, resulting in

the payment falling due on April 1^st, 1991, being treated as the fourth

adjustment under the Agreement, with concomitant payout of the three

deferred adjustments on April 1^st, 1992, which happened to be also the fifth

payment date for achieving full pay equity under the Agreement.

[587] The lack of the language’s support for the foregoing construction posited by

NAPE can be seen in the interrelationship within s-s. 9(3) between the

phrases “the 1^stpay equity wage adjustment date” and “the pay equity wage

adjustment” as they are utilized in that subsection. As preceding para. 23

already has observed, the chairperson viewed the former phrase as temporal,

and the latter as quantitative dealing with amount. This is a reasonable

construction of them.

[588] Hence when s-s. 9(3) states that pay equity agreements may be implemented

notwithstanding the restraints imposed in other provisions of the restraint

legislation, it is asserting the time of “the 1^stpay equity wage adjustment

date” shall be “the date on which” the amount of “the pay equity wage

adjustment is agreed upon” for any such pay equity agreement. The

stipulation of “1st” in the former phrase is significant. In signifying this is

the time of the first payment, it is reasonable to construe, as did the judge,

that a shift of the implementation procedure was effected by the language of

s-s. 9(3), and that the chairperson’s interpretation which was to that effect

was not patently unreasonable.

*

contextual factor:

[589] The foregoing construction from s-s. 9(3)’s language is supportable by the

context in which that restraint measure was enacted. Thus, the same

Page: 218

“extended budgetary explanation” given by the Minister of Finance that the

judge singled out in the extract from his decision reproduced in preceding

para. 79 as having been overlooked by the Arbitration Board’s chairperson

in the latter’s majority finding that s. 9's Charter violation was not saved

under s. 1, provides contextual support to the interpretation construable

from the plain wording of that subsection.

[590] From that budgetary explanation, it can be seen that the financial situation

confronting the Province at the time of s. 9's enactment on April 18, 1991,

was grave and serious, foreboding future difficulties in the provision of

essential educational, health and other basic social services if measures were

not taken to reduce foreseeable mushrooming deficits. In these

circumstances, drastic budgetary cuts were imperative. One of these was

elimination of the obligation to make provision for payment of wage

adjustments under the Pay Equity Agreement with effect from April 1, 1988,

as soon as the financial consultants had determined the quantum of those

adjustments.

[591] Furthermore, the circumstantial framework also shows that when the

restraint measure enacted on April 18, 1991, was introduced for legislative

consideration, it would have been known either that the consultants’

calculations had been finalized; or at least, if there were no direct

knowledge of the report’s completion, that the awaited submission of it to

the steering committee was imminent. In either case, it is logical to regard

the restraint measure of having been enacted in the expectation that the

retroactive liability which had been accruing under the Pay Equity

Agreement for wage adjustments would become payable in the current

1991-92 fiscal year, ie. in the first year of the restraints, unless action were

taken to extinguish the obligations that had accrued whilst awaiting the

consultants’ determinations.

[592] Faced with the expectation that this retroactive liability would fall due in the

1991-92 fiscal year, the restraints were also being legislatively imposed in

the context of the looming escalating deficitary situation which posed grave

threat to the prospects of governmental capacity to provide essential

services, and to the general economic security and well being of the

Province, unless immediate counteracting actions were taken. This

constrained Government to address commitments it made arising from

benefits which were payable to all public sector employees. The

circumstantial backdrop of the restraint legislation’s passage also indicates

Page: 219

that amongst those commitments was the retroactive liability for pay equity

which would fall payable in the 1991-1992 fiscal year.

[593] In the context of all these circumstances, it is reasonable to expect a

governmental decision to shift the effective date of the wage adjustments

under the Pay Equity Agreement from April 1, 1988, to April 1, 1991. In so

doing, it must have been recognized by the legislators that the systemic

gender discrimination visited upon employees standing to benefit under the

Pay Equity Agreement would effectively be continued for another three

years. In the result, the context lends support to the construction, which is

borne out by s-s. 9(3)’s language, that April 1, 1991, should be regarded as

“the lst pay equity wage adjustment date” referenced in that provision,

thereby shifting the incremental implementation procedure, and

consequently extinguishing the obligation to provide the retroactive

adjustments. Therefore, from the context’s standpoint, the judge’s viewing

of the chairperson’s majority interpretation that s-s. 9(3) extinguished pay

equity obligations, and not just the scheduled payment dates, as not being

patently unreasonable, and as therefore sustainable, is not assailable through

NAPE’s alternate argument. To the contrary, the contextual setting of s-s.

9(3)’s enactment supports that interpretation. In the result the provision

must be taken to be treated as the “1^stpay equity wage adjustment date”

shifting, as the judge reasoned, the schedule for commencement of the

incremental payments.

*

purposive factor:

[594] It now remains to address whether the purpose of the legislation also lends

support to that interpretation. In this regard, it is important to keep in mind

that the legislation’s objective of containing and reducing the forecasted

ominous budgetary deficits was itself aimed at dispensing economic storm

clouds harbingering serious hardships. The restraints on implementations of

pay equity wage adjustments, and the freezes on salary scales, would have

been enacted in expectation that they would constitute significant steps

towards parrying the spectre of those hardships.

[595] At the same time, those legislative restraints would have been regarded as

necessary measures of assurance of continuing capacity to provide essential

services, whilst at the same time allowing scope to embed pay equity and

other wage scale increases into the structural financial framework of the

Province. That that expectation was ultimately realized insofar as the wage

Page: 220

adjustments originally promised in the Pay Equity Agreement is concerned

is noted at the outset of this judgment, in preceding para. 3, which mentions

that satisfactory arrangements were made for payment of the adjustments,

save those falling due in the fiscal years April 1, 1988 to March 31, 1981,

with which this appeal is concerned. The legislative purpose having been to

extinguish the obligations otherwise accruing within that three year span, it

is reasonable to conclude that the Legislature would have contemplated any

respringing of those obligations as risking re-gathering of those storm

clouds.

[596] Hence, as in the case of its context, the restraint legislation’s overall

purpose supports construing s-s. 9(3)’s language as meaning that April 1,

1991, should be treated as the “lst pay equity adjustment date” referenced in

that subsection; and, not as the fourth wage adjustment date payable under

the Pay Equity Agreement. Accordingly, the judge’s view that s-s. 9(3)

effected a shift in the timetable for commencement of the incremental

payments from April 1, 1988 to the same day in 1992, leading to his

dismissal of the alternate position for quashing the Arbitration Board’s

decision on the grounds of patent unreasonableness is supported by the

provisions’ statutory purpose.

[597] In the result, based on the foregoing analysis of plain meaning of s-s. 9(3),

as well as the context and purpose of the enactment, NAPE’s alternate

position, which accepts the scheduled obligations to make the first three pay

equity adjustments were extinguished, but argues the Government was still

obliged under the legislation to meet them on April 1, 1991, cannot be

sustained. This position does not cast the chairpersons conclusion that s. 9

had the effect “of extinguishing the obligations on government ... to provide

pay equity adjustments for the period April 1, 1988, to March 31, 1991", in

any patently unreasonable light. Thus, the judge’s upholding of that

conclusion on judicial review, and his affirmation that the full entitlement

that had accrued over that three year period was not payable on a reasonable

construction of s. 9 is supported by the purpose of s. 9 and of the Act as a

whole.

÷

the further alternate position:

[598] As preceding paras. 581-582 notes, counsel for NAPE is putting forth a

further alternative position based on Article 4.01 of the representative

collective agreement which, like the alternative challenge, also tracks the

Page: 221

union nominee’s dissenting reasoning. The part of the dissenting reasoning

on this aspect of the union nominee’s decision is summarized in preceding

para. 43. In a nutshell, it camps upon the employer’s undertaking in Article

4.01 that there “shall be no discrimination” affecting wage rates by reason

of gender. From this the union nominee concluded that once the financial

consultants had finalized determination of “... the amount of the discrepancy

attributable to gender ...” in their report of March 20, 1991, the continuance

of “pay differential rates ... on the basis of sex” contravened that Article.

[599] While likewise maintaining that the full amount required to achieve full pay

equity was payable to all affected employees under Article 4.01 when the

consultants’ report was completed on March 20, 1991, as had the union

nominee before her, counsel conceded that there was a valid legislative

restriction imposed by s. 5 of the restraint legislation on increases in pay

scales which ended on March 31, 1993. She acknowledged that this freeze

would have resulted in precluding reliance on Article 4.01 until April 1,

1993. It is for this reason that this further alternate position earmarks April

1, 1993, as the date when the full amount necessary to achieve pay equity

was payable under that provision of the Collective Agreement.

[600] With due respect this submission of counsel overlooks that s. 9, as well as s.

5, of the legislation, would have had a superceding effect on pay equity

entitlement provisions in the collective agreements. As has just been

discussed, s. 9's effect was to extinguish entitlement to the full amount of

the adjustments prior to the consultants’ report’s finalization. Canadian

Legislatures are empowered to abrogate rights as long as they act within

their constitutional powers, and do not violate Charter rights, or can

establish justification if they perpetrate infringement of such rights. In

extinguishing the affected rights in this case the legislature was acting

within its justifiable powers. This is a full answer to the article 4.01

argument.

÷

disposition of issue:

[601] The judge’s holding that no basis exists to conclude that the majority of the

Arbitration Board made patently unreasonable reviewable constructions of

s. 9 of the restraint legislation, should be affirmed. In the first place, the

judge did not err in agreeing with the Board’s conclusion that s-s. 9(3) of

the restraint legislation extinguished Government’s obligation in the Pay

Equity Agreement to provide pay equity adjustments for the period from

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April 1, 1988 to March 31, 1991. Neither did he err in concluding that

Government was not required to pay the wage rate due in the fourth year of

the Pay Equity Agreement, nor the three extinguished adjustments

scheduled for payment in the fifth year under it, by virtue of either the

restraint legislation or the collective agreement, as argued by counsel for

NAPE.

[602] In the result, this judgment has reached the stage of having completed its

treatment of the substantive issues of jurisdiction, constitutional validity and

statutory interpretation, listed as issues (i) to (v) in preceding para. 108.

Attention will now turn to NAPE’s challenge to the use made of Hansard

throughout these proceedings which is number (vi) on that list.

The Hansard issue

÷

scope of the challenge:

[603] Hansard plays a prominent role in the foregoing treatment of the substantive

issues of the constitutional validity and meaning of the legislative language

in s. 9 of the restraint legislation. This is because considerable use was

made of the legislative record of the Finance Minister’s “extended

budgetary explanation” of the circumstances which had led to the cabinet

decision to introduce the restraint bill into the Assembly. This resort

pinpointed the objective of the impugned restraint measure and the

contextual setting of its enactment which was essential to resolution of the

justifiability of its Charter infringement and of its statutory meaning.

[604] Heretofore this judgment has assumed on arguendo basis that the law

permitted the recourse that was made to Hansard in these proceedings,

whilst noting that the challenge registered against its use by the judge would

be subsequently addressed. Before proceeding to deal with this Hansard

issue, it should be acknowledged there is some room for doubt that that

challenge was meant to extend question of the restraint legislation’s

constitutional justifiability. This is because NAPE’s factum explicitly

concedes that the chairperson’s reliance on Hansard in his “analysis under s.

1 of the Charter ... demonstrates correct usage of extrinsic evidence”. It

would follow from this that no exception was being taken with the judge’s

avail to the legislative history of the restraint measure’s enactment in

endorsing the chairperson’s majority decision. However, during her oral

submissions, counsel for NAPE appeared to be questioning reliance on

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legislative history as evidence of legislative purpose in the process of

assessing whether legislation impugned under the Charter is redeemable

under s. 1. This impression of extension of the Hansard challenge is

reflected in preceding paras. 412-413, and elsewhere in this judgment.

[605] It is freely acknowledged that this impression is at odds with authority

quoted by counsel in her factum sanctioning the use of Hansard as evidence

of purpose in Charter challenges, and that it is conceivable that the

contrary stance perceived from her oral submissions may be

misapprehension. Nevertheless, in order to assure that all challenges raised

in this appeal have been fully canvassed, the ensuing discussion will

proceed on assumption that the challenge extends to Hansard’s use in the

analysis under s. 1 of the Charter, which premise will be addressed, albeit

summarily.

÷

historical perspective:

[606] Historic reticence has traditionally existed over the use of the Hansard of

debates in judicial interpretations of the import and meaning of statutory

measures. An outline of the genesis of this reluctance is provided by

Professor P-A Côtè in Chapter 4 of his text: The Interpretation of

Legislation in Canada, 3rd Ed., (Toronto: Carswell, 2000). As that text

notes, prior to the Charter’s advent, that reluctance even extended to the

inadmissibility of parliamentary history in judicial interpretations in

constitutional cases. The case highlighted in the text on this point is

Attorney General of Canada v. Reader’s Digest Assoc. (Canada) Ltd.,

[1961] S.C.R. 775. That authority involved an application for a declaration

that provisions of Canadian excise tax legislation, and regulations

promulgated under it, were ultra vires of the Parliament of Canada. In his

judgment concurring with the Court’s majority Cartwright J. upheld the

rejection of inadmissibility of a pronouncement made on behalf of

Government by the Minister of Finance concerning legislative intent. Thus,

reflecting the historical reticence to allow recourse to Hansard, Cartwright J.

wrote in p. 792:

C

In my opinion the learned Chief Justice of the Superior Court was

right in rejecting the evidence which is the subject-matter of this

appeal. It was conceded and is clear on the authorities that the

statement of the Minister in introducing the bill would be

inadmissible in aid of the interpretation of the statute as finally passed

Page: 224

into a law. I can discern no difference in principle to afford a

sufficient reason for holding it to be admissible where, the words of

the statute being plain, it is sought to show that Parliament was

encroaching upon a field committed exclusively to the provincial

legislature.

[607] However, writing in the last decade of the 20^thCentury, Professor Côtè

observed at p. 465 of his text that, “absent a constitutional context”, the

principle of inadmissibility of parliamentary history had by then become

“riddled with derogations and exceptions to such a point that we may ask

whether it is on its last legs, if not completely finished”. Tacit confirmation

of this viewpoint can be gleaned from the following acknowledgement by

Cory J. in R. v. Heywood, [1994] 3 S.C.R. 761 at pp. 788-889:

C

Despite the apparent merits of the rule that legislative history is

inadmissible to determine legislative intent in statutory construction,

this Court has on occasion made use of such materials for this very

purpose.

[608] This transit from foreclosure of any recourse to ministerial statements in

interpreting the words of a statute to the practice of resorting to legislative

history in construing statutory import and purpose may be viewed as part of

the passage from stricter adherence to the literal approach in statutory

interpretations to a purposive approach to legislative meaning. Under the

former approach, inquiry is confined to the plain ordinary meaning of the

legislative language employed, eschewing extrinsic evidence of purpose

from sources such as Hansard. In the latter one, the context in which the

statutory measure was enacted together with the purpose that prompted its

introduction are considered along with the language giving expression to

the statutory intent.

[609] As has already been noted in preceding para. 563, the purposive approach

which was endorsed in Lewis has been followed in the analysis of the

statutory meaning of s. 9 of the restraint legislation in this case. The literal

approach, displaced in transit by the more flexible approach referred to in

Heywood, Lewis and other authorities, was articulated by Duff C.J. in The

King v. Dubois, [1935] S.C.R. 378 at p. 381 thusly:

C

... The judicial function in considering and applying statutes is one of

interpretation and interpretation alone. The duty of the court in every

case is loyally to endeavour to ascertain the intention of the

legislature; and to ascertain that intention by reading and interpreting

Page: 225

the language which the legislature itself has selected for the purpose

of expressing it.

[610] It is not being suggested here that historical reference establishes any clear

cut passage from the literal to purposive approach to statutory interpretation.

However, it does show that in earlier times, as the foregoing passage from

Dubois evinces, interpretation of meaning was generally confined to

construction of the legislative language itself. Professor Côtè points out in

pp. 477-478 of his text that signs of relaxation of the rule of strict

construction of penal statutes actually began to appear at the beginning of

the last century. Neither, as he also suggests there, should provisions in

contemporary Interpretation Acts directing that statutes be given a liberal

construction promoting their objects be taken to foreclose consideration of

the plain and ordinary meaning of their language. In truth, neither approach

is mutually exclusive of the other. The directions in Interpretation Acts to

liberal and remedial construction promoting the legislative objective is tied

to the statutory wording. Iacobucci J. succinctly made this point in the

context of construing municipal enabling legislation under scrutiny in R. v.

Greenbaum (M.), [1993] 1 S.C.R. 674 where he stated at p. 688:

C

... a court should look to the purpose and wording of the provincial

enabling legislation when deciding whether or not a municipality has

been empowered to pass a certain by-law.

[611] It is against this backdrop of the law, therefore, that attention will now

center directly on NAPE’s contention that the judge erred in concluding the

Arbitration Board’s majority made no error in referring to Hansard in its

interpretation of s. 9 of the restraint legislation. The complaint will first be

considered in the context of Hansard’s use with a view to determining the

Charter violation was saved under s. 1. Then, the issue will be addressed

in the context of its use in the interpretation of the meaning of the words of

that restraint measure.

÷

Hansard and the Charter:

[612] If, in fact, NAPE’s challenge of the use of Hansard was extended to the

constitutional context of the Charter, it is answered in the authority to

which preceding para. 605 refers as having been quoted in NAPE’s factum.

That case is Reference re Criminal Code (Man.), [1990] 1 S.C.R. 1123. It

involved assessment of an attack on the constitutionality of prostitution laws

enacted in the Criminal Code. Having found one of the targeted provisions

Page: 226

had infringed s. 2(b) of the Charter, inquiry turned to justifiability under s.

1. In reasoning that the impugned measure’s objective of general

curtailment of visible solicitations for the purpose of prostitution was

unduly intrusive, Dickson C.J.C. endorses the legitimacy of resorting to

legislative history in statutory interpretations in the context of justifiability

under s. 1 of the Charter of the violated protected right and freedom. He

signified this endorsation in the following passage from his judgment on pp.

1137-8:

C

It is legitimate to take into account the fact that earlier laws and

considered alternatives were thought to be less effective than the

legislation that is presently being challenged. When Parliament

began its examination of the subject of street soliciting, it was

presented with a spectrum of views and possible approaches by both

the Fraser Committee and the Justice and Legal Affairs Committee.

In making a choice to enact s. 195.1(1)(c) as it now reads, Parliament

had to try to balance its decision to criminalize the nuisance aspects

of street soliciting and its desire to take into account the policy

arguments regarding the effects of criminalization of any aspect of

prostitution. The legislative history of the present provision and, in

general, of legislation directed to street solicitation is both long and

complicated. The legislative scheme that was eventually

implemented and has now been challenged need not be the “perfect”

scheme that could be imagined by this Court or any other court.

Rather, it is sufficient if it is appropriately and carefully tailored in

the context of the infringed right. I find that this legislation meets the

test of minimum impairment of the right in question.

[613] It can be concluded from the foregoing passage, therefore, that the practice

to which Heywood referred, of making use of legislative history to

determine legislative intent in statutory constructions in the context of

applications of s. 1 of the Charter, had been endorsed three years earlier in

Criminal Code (Man.). It follows that this endorsation would include

resort to extrinsic evidence such as the legislative history gleanable from

Hansard. It is noted that such recourse to the record of legislative debates

would be in keeping with judicial policy to allow wide evidentiary latitude

in addressing justifications under s. 1 of the Charter of fundamentally

entrenched rights’ violations.

Page: 227

[614] It, therefore, must be concluded that the use of Hansard in determination of

the intent and purpose of statutory measures for Charter applications has

authoritative sanction. Accordingly, if the complaint over the judge’s

proceeding on the footing that the Board made no error in referring to

Hansard extends to the use made of it in the Charter context, that challenge

must respectfully be rejected.

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÷

Hansard and s. 9's import:

[615] As the foregoing brief sketch of it is intended to underscore, the

contemporary approach to statutory interpretation has evolved from one to

be ascertained within the four corners of the legislation, in Dubois’ words,

by “reading and interpreting” the language, to one of factoring legislative

context and purpose into judicial construction of statutory instruments as

well as the wording. There is no doubt regarding the importance of the

purposive component in present-day conception of the proper approach to

statutory construction. This is verifiable in the passage quoted from

Greenbaum (M.) in preceding para. 610. Neither is there any room to

doubt the importance of purpose in the contemporary approach to legislative

interpretations from other authorities such as Heywood, and Lewis whose

direction to analysis on “wording, content and purpose” guided the

approach to assessments of the challenges to the prior interpretations at bar.

[616] This Court has already had occasion to discuss the function of purpose in

contemporary constructions of statutory instrument in R. v. Boutcher

(2001), 202 Nfld. & P.E.I.R. 243. That case, like Greenbaum (M.),

involved interpretation of a penal statute. Boutcher’s majority judgment

commented upon how the canon of strict construction of penal legislation

came to be relaxed with the advent of the purposive approach, and how the

two meld together so that legislative objective receives definition of its

scope and is applied “in accordance with the strictures of the legislative

wording” (see para. 62 of Boutcher). It should also be added that

advertence to purpose serves as a screen through which one’s impressions

of the plain meaning of the legislative text may be tested. All of this

indicates, as earlier noted, that the strict literal and more liberal purpose

approaches to statutory interpretations are not mutually exclusive, but

interact one with the other to better assure that judicial statutory

construction promotes legislative objectives.

[617] While the legislation under scrutiny in this appeal may be viewed as having

punitive aspects, it is not strictly speaking classifiable as a penal statute.

This does now, however, detract from the importance of complying with

Greenbaum’s instruction to look to “the purpose and wording” of s. 9 of

the Public Sector Restraint Act, as was done in construing it. There would

appear to be scarcely no more fertile field for ascertaining the purpose of a

legislative measure than in the introductory and closing addresses as

recorded in Hansard of the Minister responsible for piloting the bill

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containing it through its various stages toward enactment. These addresses

will almost invariably explain the governmental policy reasons prompting

its introduction, and respond to questions that have arisen in the course of

debate regarding the extent of its intended purpose. As observed in

Boutcher, it appears somewhat incongruous, and not a little off-putting at

times, to read in judicial decision that legislative measures could not have

been meant to express the very purpose which those responsible for their

formulation, and their textual content, state they mean. There would appear

to be no richer source of legislative purpose than the Hansard of the

introductory and closing statement of the Minister responsible for steering

the statutory measures through the Legislative Assembly.

[618] Hence on the basis of reason, fortified by such judicial authorities as

Greenbaum, Lewis and Heywood, the challenge to the judge’s affirmation

of the Arbitration Board’s use of Hansard in its interpretation of s. 9 of the

restraint legislation, being issue (vi) in this appeal, must be rejected. In the

result, the assumption that resort could be made to Hansard, made in the

dispositions of the two statutory interpretation issues, was a valid premise.

[619] This judgment will now move to the seventh and final issue that preceding

para. 108 lists for consideration in this appeal.

The bias issue

[620] Although this issue is a preliminary one, it is being considered last. This

was already noted in preceding para. 108, where it was indicated that the

reasons for the order of its consideration would be explained. The primary

reasons are that this issue was raised by Government in its cross-appeal;

and, with it being apparent at this juncture that the judge’s affirmation of

the disposition of the Arbitration Board’s majority is sustainable, the bias

issue through which Government attacked that disposition has no immediate

practical significance. However, inasmuch as the question of bias does go

to the integrity of these proceedings, and in the event that this appeal does

not mark an end to them, it appears apropos to state this judgment’s reaction

to the bias issue.

Page: 230

>

prior determination:

[621] It will be recalled that this issue arose as a result of the chairperson having

advised at the outset of the Arbitration Board’s hearing that his spouse was

a member of the Newfoundland and Labrador Nurses Union employed in

the public sector. This resulted in a submission from Government that he

should disqualify himself from the proceedings due to reasonable

apprehension of bias. As earlier indicated, the members of the Arbitration

Board unanimously dismissed that submission. The judge’s subsequent

affirmation of that unanimity was appealed by Government in this Court.

>

positions of counsel:

[622] Government’s continued challenge rests on reasonable apprehension of bias.

No allegation of actual bias was made at any stage of these proceedings.

While conceding no grievance from the nurse’s bargaining unit in which the

chairperson’s spouse had membership was amongst those before the Board,

counsel for Government argues this is not a determinative factor of the

reasonable apprehension of bias issue. In this submission, he relies on the

fact, already noted in preceding para. 17, that one grievance was deemed

representative of all grievances in dispute for the purpose of the arbitration

at bar. From this standpoint, he argues the Board’s decision would be

regarded by a reasonably informed bystander as setting a pay equity

precedent for any bargaining unit within the public health care sector,

thereby meeting the generally accepted test for reasonable apprehension of

bias. On this reasoning counsel insists the membership of the chairperson’s

spouse in the nurses’ bargaining unit was a sufficiently close connection to

raise a reasonable apprehension of bias, despite the collective agreement of

that unit not being amongst those in dispute through the grievance at bar.

[623] Counsel for NAPE responds that the connection is too remote to ground

such an apprehension. In doing so, she relies on the judge’s reasoning

upholding the Board’s unanimous ruling. In his ruling, the judge pointed to

an extract from a collective agreement executed on January 13, 1995,

between Government and the Nurse’s Union to which the chairperson’s

spouse belonged that was before him. The judge had underscored it had

been agreed in that agreement that the first pay equity adjustment date was

to be the date of its execution, namely July 13, 1995.

[624] Thus, under the collective agreement from which the chairperson’s spouse

stood to benefit, pay equity was not slated to come into effect until the

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legislated restraints, on which the grievances at bar centered, expired on

March 31, 1992. Moreover, there was no evidence that the date for the

expiry of the Nurses Union’s restraint period would have extended beyond

that date by reason of its commencement date for which, as preceding para.

10 explains, the restraint legislation lent scope. In those circumstances, the

judge held the hypothetical reasonable bystander “would recognize that the

Board’s decision could not affect the NLNU membership, and therefore

could not reasonably perceive bias”.

>

affirmation of bias holding:

[625] No exception can be taken with the reasonable bystander text for grounding

a finding of apprehension of bias. The Supreme Court of Canada had

occasion to enunciate it in Newfoundland Telephone v. Nfld. (Public

Utilities Board), [1992] 1 S.C.R. 623, which addressed the consequences of

a finding of reasonable apprehension of bias from strong statements made

by a commissioner of the Province’s Public Utilities Board regarding the

telephone utility’s policies respecting executive salaries in general, and that

of the Telephone Company’s president in particular. At p. 636, Cory J., on

behalf of a unanimous bench, had the following to say respecting the

reasonable apprehension of bias test:

C

Although the duty of fairness applies to all administrative bodies, the

extent of that duty will depend on the nature and function of the

particular tribunal .... The duty to act fairly includes the duty to

provide procedural fairness to the parties. That simply cannot exist if

an adjudicator is biased. It is, of course, impossible to determine the

precise state of mind of an adjudicator who has made an

administrative board decision. As a result, the courts have taken the

position that an unbiased appearance is, in itself, an essential

component of procedural fairness. To ensure fairness the conduct of

members of administrative tribunals has been measured against a

standard of reasonable apprehension of bias. The test is whether a

reasonably informed bystander could reasonably perceive bias on the

part of an adjudicator.

[626] The nature and function of labour arbitration boards charged with

interpreting rights under collective agreements, and with passing on the

constitutional validity of legislation affecting basic fundamental Charter

rights, are classifiable as adjudicative. Consequently, the same high degree

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of fairness, free from even apprehensions of bias, as is exacted from public

utility boards, is to be expected from those bodies. Hence, although the

foregoing test was formulated with a different type of administrative

tribunal in mind, the test against which the integrity of the decisions at bar

must be screened is the test articulated by Cory J. in Newfoundland

Telephone.

[627] It is also accepted that the consequences of falling short of that test must be

disqualification of the individual whose membership on the administrative

tribunal gives rise to reasonable apprehension of bias, and in that body’s

disposition being subjected to vitiation. However, there must, at the same

time, be a sufficient nexus or connection between the stigmatizing

circumstances and the dispute’s subject matter to warrant any conclusion

that “a reasonably informed bystander could reasonably perceive bias ...”.

[628] There is nothing that this judgment can usefully add to the judge’s

reasoning for dismissing the challenge to the chairperson’s qualifications to

have presided over the Arbitration Board. As did counsel for NAPE, this

judgment adopts the judge’s reasoning and disposition of that issue. The

underlying reason for its adoption is that the restraint legislation had no

effect on the pay equity commitment to the Nurses’ Union. The collective

agreement under which the chairperson’s spouse worked was not part of the

arbitration and the legislation had no direct impact upon it. Hence, the

connection was too remote to give scope for reasonable apprehension of

bias by a reasonable informed bystander. Therefore, Government’s

contention that the judge erred “in finding there was no reasonable

apprehension of bias on the part of the chair from the employment of the

chair’s spouse” is unsustainable.

Disposition of issues:

[629] Summaries of the substantive reasoning for disposing of the issues in this

appeal have already been given at the end of the respective treatments of

each category of them. There will be no need to duplicate those résumés. It

is sufficient to state the results of the seven issues listed in preceding para.

108, the upshot of which leads to dismissal of the appeal from the judge’s

decision to grant Government’s application for judicial review of the

Arbitration Board’s majority decision, which had allowed NAPE’s

grievances alleging unjustifiable refusal to pay the retroactive wage

Page: 233

adjustments that Government had been obliged to provide under the Pay

Equity Agreement.

[630] The issues and results are as follows:

C

(i)

Did the decision under appeal err in holding the Board lacked

jurisdiction to hear the grievances? YES

(ii) Did the decision under appeal err in finding that s. 9 of the

Public Sector Restraint Act infringes s. 15(1) of the Charter?

NO

C

(iii) Did the decision under appeal err in holding the violation of s.

15(1) of the Charter was saved under s. 1 of the Charter?

NO

(iv) Did the decision under appeal err in agreeing with the Board’s

conclusion that s-s. 9(3) of the restraint legislation extinguished

Government’s obligation in the Pay Equity Agreement to

provide pay equity adjustments for the period from April 1,

1988 to March 31, 1991? NO

C

(v) Did the decision under appeal err in agreeing with the Board’s

conclusion that Government was not required to pay the wage

rate due in the fourth year of the Pay Equity Agreement? NO

(vi) Did the decision under appeal err in concluding the Board

made no error in referring to Hansard in its interpretation of s.

9 of the restraint legislation? NO

(vii) Did the decision under appeal err in finding there was no

reasonable apprehension of bias on the part of the Chair from

the employment of the Chair’s spouse? NO

Penultimate Commentary

[631] The time elapsed between the appeal’s hearing and this judgment’s filing is

attributable to its complexity, coupled with it having been preempted by

other judgments that exacted attention. This case is illustrative of the

difficulty in imposing artificial deadlines of general application for delivery

of judgments. The backdrop of this case affords opportunity to comment on

that subject.

[632] Recently, there has been developed a general policy of guidelines which,

reflecting the terms in which that policy is couched, has come to be

described in terms of the “return time” for rendering judgments. The

formulation of these guidelines has been the product of concern within and

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without the judiciary over the time it sometimes takes for the delivery of

judicial decisions. The fact that this concern is not of recent vintage, but

has been harboured down through the years, does not detract from its

legitimacy.

[633] Without disputing the concern’s legitimacy, there are two points regarding

the attempt at its remedy through the “return time” policy. The first relates

to its efficacy. This case provides a concrete example of why it is

impractical, if not impossible, to attempt to lay down general yardsticks

governing reasonable time spans for the delivery of judgments. The

complexity of the multi-faceted issues raised in this appeal rendered

unrealistic expectation of response to the finite time limits contemplated in

the “return time” policy. It is true that a measure of flexibility is

incorporated into the policy for involved and complicated dispositions.

However, the policy nonetheless contemplate finite time limits that are

impractical to set in the abstract, without advertence to the particular case at

hand.

[634] It is doubtful, even under the widest latitude the policy might afford, that the

time frame taken for delivery of this judgment would meet the policy’s

temporal test. Yet, that time span was necessary if justice was to be done to

the importance and substance of the substantial issues which this appeal

engages. Given that the assumption of judicial office is conditioned on the

singularly personal oath to do justice to all, and notwithstanding recognition

of the legitimacy of the concerns over timely filings of judgments, and

respect for those having responsibility for developing general policies, a

judge can hardly be driven off from taking the time necessary to render

justice by compliance with any artificial time limits. Hence, the inefficacy

of “return time” rules of general application.

[635] Apart from the policy’s inefficacy, there is an even more important reason

for reservation over the policy’s attempt to meet the concern over timeliness

in the rendering of judicial decision. It stems from the fact that the

emphasis recently placed within the judiciary on “return time” for judgment

has resulted in that catch-phrase becoming, if not a watchword, a cliché that

has translated into external pressures to expedite judicial decisions. There is

latent danger in this. It has potential to negatively impact upon the quality

of decision and on judicial independence, both of which have relevance to

discharge of the judicial commitment to do justice. In connection with the

latter, as LaForest J. incisively put it in para. 329 of his dissenting opinion

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in Re Provincial Court Judges, judicial independence “redounds to the

benefit of the judged, not the judge”. The “judged” do not reap the benefit

if external pressures result in judgments of quality below the standards

which the public is entitled to expect; or, worse still, if they result in errors.

[636] For these reasons, without discounting the legitimacy of the concerns that

gave rise to it, there is reason for caution over the prospect that the

pressures exerted through the external setting of artificial time frames for

filings of judicial decisions will have a counter-productive effect. While

there is indisputably validity to the time-honoured adage that justice delayed

is justice denied, there is equal merit to the reality that justice is ultimately

realized through the quality of judicial decision drafted in an atmosphere of

judicial independence. While noone can disabuse the legitimacy of concern

over the length of time in the delivery of justice, it is submitted that the most

that can be expected from judges conscientiously bent on their

responsibilities is that quality judgments be rendered in the earliest possible

time frame necessary to formulate and deliver them. Time is only a

threshold consideration. If it signals a chronic concern, then other

considerations come into play.

[637] It is for these reasons that it is respectfully submitted the imposition of

artificial deadlines of general application for the delivery of judgments

should be approached with studied caution. Deadlines and quantity cannot

out trump judicial independence and quality, without deleterious effects on

the measure of justice.

Conclusion

[638] While the judge’s holding that the Board lacked jurisdiction to hear the

grievances challenging the constitutional validity of s. 9 of the Public

Sector Restraint Act must be set aside, his conclusion that the Board erred

in finding the infringement of s. 15(1) of the Charter was not saved by s. 1

of the Charter is upheld. His conclusion that the restraint legislation

extinguished obligation under the Pay Equity Agreement to provide pay

equity adjustment for the period from April 1, 1988 to March 31, 1991, is

also upheld, as well as his disposition of the other issues raised in this

appeal. In the result, the appeal and cross-appeal are dismissed.

[639] In reaching this conclusion, both the Government and NAPE have been

successful in different issues raised in this appeal. This judgment must

conclude, as it began, in expressing appreciation for the quality of both

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counsels’ representations. The issues in this appeal were not only of high

importance to the parties, but also were of significant public consequences.

In all of these circumstances it is felt that this is a case for exception to the

general rule that costs should follow the cause. In light of the special

circumstances of this litigation, whatever the result, it would appear that the

coffers of neither party should be depleted by the costs of the other.

[640] Accordingly, the appeal and cross-appeal should be dismissed with each

party bearing its own costs.

W.W. Marshall, JA

Steele, JA

[641] I agree with the disposition of the issues as expressed by Justice Marshall in

para. 630 of his decision and, accordingly, I would affirm the judgment

under appeal. I also agree that the appeal and cross-appeal be dismissed

with each party bearing its own costs.

_____________________________

G.L. Steele, JA

Roberts, JA

[642] I agree with Marshall, JA for the reasons given, that the chambers judge

erred in holding that the arbitration board lacked jurisdiction to hear the

grievance. I also agree with Marshall, JA that the trial judge was correct on

all other issues. I would, accordingly, dismiss the appeal and cross-appeal

and make no order as to costs.

Page: 237

____________________________

D.M. Roberts, JA