Judgments

[1994] 2 .F.C. 734

A-73-90

Her Majesty the Queen in Right of Canada (Appellant) (Defendant)

v.

Yvon R. H. Gingras (Respondent) (Plaintiff)

Indexed as: Gingras v. Canada (C.A.)

Court of Appeal, Pratte, Décary JJ.A. and Chevalier D.J.—Montréal, January 17 and 18; Ottawa, March 10, 1994.

Public Service — Official languages — Bilingualism bonus — Appeal from F.C.T.D. decision respondent entitled to bonus from 1980 to 1988 — Respondent member of RCMP, transferred to CSIS — Denied bonus though bilingual — Bilingualism Bonus Plan introduced for all eligible employees for whom TB employer — Applicable to RCMP members as persons employed in public service under PSSRA, Sch. I — No measure of discretion as to application — Decision to create Plan taken by proper authority — Plan can be set up against Crown by anyone eligible under it.

RCMP — RCMP member person employed in public service as RCMP department under FAA — Meaning of “employee” in Plan, s. 1 and in PSSRA distinguished — Exclusion of non-civilian, non-unionized members of RCMP under PSSRA not placing them outside definition of public service — RCMP members having special status as to method of appointment, oath, code of discipline, but still employees — RCMPA, s. 5 not making Commissioner employer in place of TB — Power to make appointments not essential attribute of status of employer herein.

Security intelligence — CSIS Director deciding to pay bilingualism bonus only to employees in administrative support category — RCMP, CSIS employees having different status — CSIS separate employer under enabling Act — Bilingualism Bonus Plan not automatically applying to CSIS employees — Director entitled under CSISA to adopt impugned policy.

Practice — Limitation of actions — Whether five-year prescription under Civil Code of Lower Canada, art. 2260(6) or six-year prescription under Ontario law — Doubtful whether cause of action arose in Quebec under Federal Court Act, s. 38(1) — Cause of action arising in Ontario as refusal by Treasury Board to pay respondent bilingualism bonus occurred in Ontario.

This was an appeal from a decision by Dubé J. that the respondent was entitled to the bilingualism bonus for the years 1980 to 1988 inclusive. The respondent was a member of the RCMP from August 16, 1962 to July 15, 1984, the date on which he transferred to the Canadian Security Intelligence Service (CSIS) until his retirement in 1988. The Bilingualism Bonus Plan, which was introduced by the Treasury Board in 1977, applied to all eligible employees in the Federal Public Service with few exceptions. Even though the respondent is bilingual, had passed all the necessary tests and held bilingual-designated positions throughout the years during which the Plan has been in effect, at no time was he paid the bilingualism bonus. The Trial Judge held that RCMP members were “employees for whom the Treasury Board is the employer” within the meaning of the Plan, that they were subsequently excluded from the Plan by an implied decision of the Treasury Board and that this exclusionary decision was unlawful. With respect to so-called non-civilian members of CSIS, the Trial Judge concluded that the CSIS employees were not covered by the Plan but that, in deciding to award the bonus only to employees who were in the administrative support category, the Director had acted contrary to the purposes of the official languages policy. The issues raised in this appeal were: 1) the legal nature of the Bilingualism Bonus Plan; 2) whether the Plan applies to RCMP members; 3) whether the Plan applies to CSIS employees; and 4) the period of prescription.

Held, the appeal should be allowed in part.

1) The decision to create the Bilingualism Bonus Plan was taken by the Treasury Board in its capacity as a committee of the Privy Council. The Plan contained no measure of discretion as to its application. It was not simply a statement of policy having no decision-making effect, such as is made every day. It was not an administrative direction intended only to interpret or apply a given statute or regulation. It was not a promise of a decision to be made in future. It was the decision itself which was taken by the proper authority and which that authority asked the public servants concerned to apply. The Bilingualism Bonus Plan can be set up against the Crown by anyone who is eligible to do so under the terms of the Plan.

2) By its own terms the Plan applies “to all eligible employees for whom the Treasury Board is the employer.” It is the interpretation of this phrase which was the point in dispute herein. The RCMP was among the “Departments and other portions of the public service of Canada in respect of which Her Majesty as represented by the Treasury Board is the employer” listed in Part I of Schedule I of the Public Service Staff Relations Act (PSSRA). In the executive branch of the federal government there is only one “employer” and that is Her Majesty the Queen in Right of Canada who delegates the exercise of her functions either to the Treasury Board, when a department or portion of the public service specified in Part I of Schedule I is concerned, or to a separate employer when a portion of the public service specified in Part II of Schedule I is concerned. Since the RCMP is a division or a section of the public service of Canada within the meaning of the Financial Administration Act and is a department within the meaning of that Act, its members are for the purposes of the Act “persons employed in the public service of Canada”. The definition of “employee” in section 2 of the PSSRA, by excluding RCMP members from the definition “person employed in the Public Service” for the purposes of that Act, confirms that the latter are in any case “persons employed in the Public Service”. The fact that, despite excluding both RCMP members and “non-civilian” employees of CSIS from the definition of an “employee”, Parliament persisted in including the RCMP in Part I and CSIS in Part II of Schedule I indicates that such inclusion has nothing to do with the definition of an “employee” in the Act. A distinction has to be made depending on whether one is dealing with the ordinary law or the internal law of the federal administration. The fact that a person is called an “employee” for the purposes of the internal law of the Government does not necessarily mean that he is an “employee” in the ordinary legal sense. Both in the ordinary law and in Canadian statutory law, RCMP members form a class apart as a consequence of their method of appointment, their oath and their code of discipline. This special status does not deprive them of their status as employees for the purposes of statutes relating to the organization of the federal Government: they may be special employees, but they are still employees. The fact that, by virtue of section 5 of the RCMPA, the RCMP Commissioner “under the direction of the Minister, has the control and management of the force and all matters connected therewith” does not make him an employer in place of the Treasury Board. The latter’s powers are scrupulously protected by subsection 7(6) of the FAA and it is only in exceptional cases, and by some means other than a mere assignment of those powers to some other authority, that such other authority will exercise them in its place. It is true that the Treasury Board does not enjoy the power to appoint RCMP members but the power to make appointments is not an essential attribute of the status of employer for the purposes of the legislation at issue. A member of the RCMP is, for the purposes of the Plan, a person employed both in the public service (wider concept taking in all aspects of the federal administration) and in the Public Service (narrower concept covering only those parts of the federal administration for which the employer was deemed to be Her Majesty represented by the Treasury Board).

3) As CSIS is a “separate employer” and designated as such in Part II of Schedule I, its employees do not have Her Majesty represented by the Treasury Board as their employer. The Plan therefore does not automatically apply to CSIS employees, though that did not prevent the Director, exercising the powers of an employer, from deciding to apply it within CSIS. In the case at bar the Director made the decision, on March 5, 1985, to pay the bonus but only to those of his employees who were in the administrative support category. There is no doubt that the Director had the power under the CSISA to adopt the policy which he adopted. In his capacity as a former member of the RCMP the respondent was entitled to be paid the bonus by CSIS from July 16, 1984 to March 5, 1985, but not after that.

4) Acceding to the parties’ submission that the applicable law was that of the province of Quebec since it was in that province that nearly all the performance of the respondent’s “contract of employment” took place, the Trial Judge applied the five-year prescription period under article 2260(6) of the Civil Code of Lower Canada. As the respondent filed his first statement of claim on November 28, 1985, his claim could only relate to the bonus that was allegedly payable to him after November 28, 1980. It is doubtful whether the cause of action arose in Quebec within the meaning of subsection 38(1) of the Federal Court Act. The cause of action was the refusal by the Treasury Board to pay the respondent the bilingualism bonus and that refusal occurred in Ontario where the prescription is six years. It may be that in subsection 38(1) Parliament intended that the laws of a given province would only apply when the entire cause of action arose in that province and that the six-year prescription period should be systematically applied when the cause of action arose in more than one province.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15, 16, 17, 18, 19, 20, 21, 22.

Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 3, 7, 10.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 64.

Canadian Security Intelligence Service Act, S.C. 1984, c. 21, ss. 6, 8, 66(2), 93.

Civil Code of Lower Canada, art. 2260(6), 2261(3), 2262(3).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

Crown Liability Act, R.S.C., 1985, c. C-50, s. 36.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 37, 38(1).

Financial Administration Act, R.S.C. 1952, c. 116, s. 5(2).

Financial Administration Act, R.S.C. 1970, c. F-10, ss. 3(1), 5(1)(a),(b),(5), 7(l)(a),(c),(d),(f),(i),(6),(9).

Financial Administration Act, R.S.C., 1985, c. F-11.

Government Organization Act, 1966, S.C. 1966-67, c. 25.

National Defence Act, R.S.C. 1970, c. N-4.

Official Languages Act, R.S.C. 1970, c. O-2, ss. 31, 33, 36(3).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31.

Public Sector Compensation Act, S.C. 1991, c. 30, s. 3(2)(d).

Public Service Employment Act, S.C. 1966-67, c. 71.

Public Service Employment Act, R.S.C. 1970, c. P-32, s. 2(1),(2).

Public Service Staff Relations Act, S.C. 1966-67, c. 72.

Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 2 (as am. by S.C. 1984, c. 21, s. 93), Schedule I.

Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

Royal Canadian Mounted Police Act, R.S.C. 1952, c. 241.

Royal Canadian Mounted Police Act, S.C. 1959, c. 54.

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, ss. 5, 6(2), 7(2), 11, 21(2), 22, 53.

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R -10, ss. 2 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 1), 7(2).

Royal Canadian Mounted Police Regulations, C.R.C., c. 1391, ss. 45, 46, 47, 48, 49, 50.

Supplementary Retirement Benefits Act, R.S.C. 1970 (1st Supp.), c. 43.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 3(1)(c).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Brown v. Public Service Commission, [1975] F.C. 345; (1975), 60 D.L.R. (3d) 311; 9 N.R. 493 (C.A.); Flieger v. New Brunswick, [1993] 2 S.C.R. 651; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Canadian Air Traffic Control Association v. The Queen, [1985] 2 F.C. 84; [1985] CLLC 14,016; 57 N.R. 351 (C.A.); Streeting v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 426; (1988), 49 D.L.R. (4th) 145 (T.D.); Genest-Labarre v. The King (1935), 59 B.R. 151; Attorney-General for New South Wales v. Perpetual Trustee Co. (Ld.), [1955] A.C. 457 (P.C.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Bolling v. Public Service Staff Relations Board, [1978] 1 F.C. 85; (1977), 77 D.L.R. (3d) 318 (C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; St. Catharines Police Association and Board of Police Commissioners for the City of St. Catharines, Re, [1971] 1 O.R. 430 (H.C.).

APPEAL from Trial Division decision ([1990] 2 F.C. 68; (1990), 69 D.L.R. (4th) 55) holding that the respondent, who had been a member of the RCMP and later served with CSIS, was entitled to the bilingualism bonus for the years 1980 to 1988 inclusive. Appeal allowed in part.

COUNSEL:

Raymond Piché and Odette Bouchard for appellant (defendant).

Julius H. Grey and Elizabeth Lenghan for respondent (plaintiff).

SOLICITORS:

Deputy Attorney General of Canada for appellant (defendant).

Grey, Casgrain, Montréal, for respondent (plaintiff).

The following is the English version of the reasons for judgment rendered by

Décary J.A.: This appeal concerns the application to members of the Royal Canadian Mounted Police (the RCMP) and to employees of the Canadian Security Intelligence Service (CSIS), who are not part of the administrative support category, of the Bilingualism Bonus Plan (the Plan) introduced by the Government of Canada on October 15, 1977, retroactive to November 1, 1976.

The respondent was a member of the RCMP from August 16, 1962 to July 15, 1984, the date on which he transferred to CSIS. He retired on December 2, 1988. It was common ground that the respondent is bilingual, that he has passed all the necessary tests and that he has held bilingual-designated positions throughout the years during which the Plan has been in effect, that is since November 1976. However, at no time was he paid the bilingualism bonus.

In an especially terse amended statement of claim dated January 16, 1986, the principal allegations of which were as follows:[1]

3. For reasons illegal and inexplicable, RCMP and CSIS have been excluded due apparently to a decision of the RCMP Commissioner;

4. The Order-in-Council and directives ordering bilingual premiums entitle him to bilingual premiums; the Treasury Board which pays him is under the obligation to pay it;

5. The refusal to pay this is discriminatory, illegal, contrary to the Bill of Rights and the Canadian Charter of Rights;

6. He is entitled to retroactive pay of $800 per annum since November 1976, interest and future premiums ….

the respondent asked the Court to declare that he was entitled to the bonus, to order the appellant to pay it to him in future, to pay him $7,200 for the past period and to grant any appropriate relief pursuant to section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10].

By a judgment dated January 4, 1990 Dubé J. allowed the respondent’s action and, applying against him the five-year prescription imposed by article 2260(6) of the Civil Code of Lower Canada (the Civil Code), declared that he was “entitled to the bilingualism bonus for the years 1980 to 1988 inclusive.”[2] Dubé J. said regarding members of the RCMP that they were “employees for whom the Treasury Board is the employer” within the meaning of the Plan, that they were subsequently excluded from the Plan by an implied decision of the Treasury Board and that this exclusionary decision was unlawful because it was made at the instance of a third party, here the RCMP Commissioner, and because it was made for reasons unrelated to the purpose of the Plan. With reference to so-called non-civilian members of CSIS, Dubé J. concluded that CSIS employees were not covered by the Plan but in deciding to award the bonus only to employees who were in the administrative support category, primarily for the reasons which led the RCMP Commissioner to persuade Treasury Board to exclude RCMP members, the Director had also acted contrary to the purposes of the official languages policy. Dubé J. further dismissed the allegation of discrimination based on sections 3, 7 and 10 of the

Canadian Human Rights Act[3] and, since April 17, 1985, on section 15 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter).

The appellant made arguments which I will group as follows, in the order selected by her: (1) RCMP members and employees of CSIS are not “employees for whom the Treasury Board is the employer” and the Plan is accordingly not applicable to them; (2) this exclusion is not unlawful or discriminatory; (3) the Plan is not a regulatory provision and does not give rise to a cause of action that can be heard by the courts; (4) the applicable prescription is the one or two-year prescription imposed by articles 2262(3) and 2261(3) of the Civil Code.

Unless the contrary is indicated I will be referring to the text of the legislation in effect when the Plan was introduced in 1977, which is largely to be found in the 1970 Revised Statutes.

I—Bilingualism Bonus Plan

The Official Languages Acts of 1969 and 1988[4] contain no provision regarding the introduction of a bilingualism bonus plan. In other words, there was nothing in those Acts to require the Government to set up such a plan, if it did so there was nothing to require it to make the plan applicable to all eligible employees in the federal Public Service and nothing prevented it from abolishing or modifying any plan it created, which the Official Languages Commissioner in fact urged it to do year after year in his annual report.

On September 30, 1977 the Treasury Board and the Public Service Commission informed “Deputy Ministers and Heads of Agencies and Corporations” by a circular having No. 1977-46 of “revisions” which the “Government” had announced to “its policies concerning official languages in the Public Service” of Canada. That circular applied “to all departments and agencies listed in Part I of Schedule I of the Public Service Staff Relations Act” as well as to “those corporations [sic] included in schedules `B’ and `C’ of the Financial Administration Act.”[5] The circular went on to add that corporations and agencies other than those mentioned above “are responsible for taking appropriate measures to ensure that the provisions of the Official Languages Act are respected and that appropriate federal official language policies are implemented.”[6]

It is worth noting at the outset that Part I of Schedule I of the Public Service Staff Relations Act[7] (Schedule I) referred to in the circular listed “Departments and other portions of the public service of Canada in respect of which Her Majesty as represented by the Treasury Board is the employer.” The “Royal Canadian Mounted Police” was among them. Additionally, Part II of the same Schedule listed “Portions of the public service of Canada that are separate employers.” When CSIS was established in 1984, section 93 of its enabling Act [Canadian Security Intelligence Service Act, S.C. 1984, c. 21] provided that it would join the ranks of the “separate employers” listed in this Part II.

The “Statement of Policies” on “Official Languages in the Public Service of Canada” which was attached to the circular took up some 176 pages, in addition to appendices. The Attorney General, who tabled this Statement, only filed the table of contents and pages 143 to 149, which described the “Bilingualism Bonus Plan.”[8] At the hearing counsel for the parties agreed that the filing of the other pages of the document would not be of any use to the Court. It goes without saying that the reasons that follow apply only to the part of the Statement of Policies dealing with the Plan.

The “Bilingualism Bonus Plan” was Policy IV.19.[9] I quote the following passages:

POLICY IV.19: THE BILINGUALISM BONUS PLAN

A Bilingualism Bonus Plan for employees who meet the required proficiency of bilingual positions will be introduced on October 15, 1977 and, where applicable, will be effective retroactively to November 1, 1976. The annual amount of the bonus will be $800.

INTERPRETATION:

1.   The Bilingualism Bonus shall be payable to all eligible employees for whom the Treasury Board is the Employer and Governor-in-Council appointments when such employees occupy positions which have been designated as bilingual and the employee has been certified by the Public Service Commission as meeting the established language proficiency requirements for the position.

2.   Notwithstanding Section (1), the Bilingualism Bonus shall not be payable to:

(a)  Employees in the Translation Group except for those whose positions have been designated as bilingual for reasons other than in respect of the performance or supervision of duties specified in the inclusion section of the Translation Group definition;

(b)  employees who are to continue to receive the frozen ST pay differential, under conditions as specified in paragraph 15 of this Policy section;

(c)  persons appointed by the Governor-in-Council at the SX 4 or equivalent salary level, and above;

(d)  a person who falls under one of the following in that he or she is

(i) a person locally engaged outside Canada;

(ii) a person whose compensation for the performance of the regular duties of the position of office consists of fees of office, or is related to the revenue of the office in which the person is engaged;

(iii) a person not ordinarily required to work more than one-third of the normal period for persons doing similar work;

(iv) a person employed on a casual or temporary basis unless such person has been so appointed for a period of more than six months;

(v) a person under a professional or personal service contract.

This Plan was introduced for a temporary period that was to end on December 31, 1983. That period was extended and the Plan still exists today, without any relevant amendment having been made to its sections 1 and 2.

On October 4, 1977 the Treasury Board circulated for inclusion in the Personnel Management Manual a modified version of the Plan.[10] That version referred to “TB 752255 of 23 September 1977” and noted that “[w]ith few exceptions, the Bilingualism Bonus will be provided to all certified bilingual employees”.

On December 9, 1977, in a memorandum he sent his commanders and section heads regarding “Government of Canada Revised Languages Policies”, the RCMP Commissioner (the Commissioner), Mr. R. H. Simmonds, gave the following explanation:

4. One of the major elements of the revised policies is the payment of the Bilingualism Bonus, retroactive to 1 November 1976, to all Public Servants meeting the language requirements of identified bilingual positions. While the Revised Official Languages Policies contain authority to pay this bonus to Public Servants, that authority does not extend to members of the Force, the Canadian Forces and certain Crown Corporations and Agencies, nor is it Treasury Board’s intention that it apply to them. Action is already being taken to pay the bonus to Public Servants working in the Force. However, the Force will not be seeking authority from Treasury Board to pay the bonus to members, for several reasons:

(a) members of other police forces in Canada do not receive a bilingual bonus and as pay research and negotiation for members of the Force is related to the police community, our equation must be with them,

(b) in a cohesive organization such as the Force, the payment of such a bonus would become a divisive element as it would create situations in which members of equal rank and responsibility working side by side could receive differing remuneration because one or several of them had either the good fortune to grow up in a milieu which was favourable to learning the second official language or had the equally good fortune to learn it at public expense. [A.C., Vol. 1, at pp. 78-79.]

…

11. You will note at page 160 of “A Statement of Policies” (Policy V.I.4) that, as part of the shift of authority introduced by the revised policies, I am now responsible and accountable for the Force complying with the provisions of the Official Languages Act, achieving the Government’s official languages objectives, and for reporting annually on our future plans and progress achieved. [A.C., Vol. 1, at p. 83.]

On June 28, 1984 the Canadian Security Intelligence Service Act received royal assent.[11] The respondent was transferred to the new agency at that time. On August 7, 1984 his counsel asked the Director of CSIS, Mr. Finn, to recognize that his client was entitled to the bilingualism bonus. On March 5, 1985 Mr. Finn replied as follows:[12]

It is important to appreciate that, unlike the usual situation elsewhere in government, the Treasury Board is not the employer in the Canadian Security Intelligence Service (“the Service”). The Service is a separate employer and, as such, the Director has the exclusive authority under subsection 8(1) of the CSIS Act to appoint employees and to provide for the terms and conditions of their employment. Generally speaking, I, as the Director, exercise all of the powers and perform all of the duties and functions of both the Treasury Board relating to personnel management under the Financial Administration Act and the Public Service Commission by or pursuant to the Public Service Employment Act.

As the Director of CSIS, I have decided that the bilingual bonus will be provided to qualified employees occupying designated positions in the Administrative Support Category of CSIS. Treasury Board has also identified excluded groups who do not receive the bilingual bonus. The Treasury Board policy on the bilingualism bonus applies only to those departments, agencies and crown corporations listed in Part I, Schedule I of the Public Service Staff Relations Act, and Canada Post and the National Research Council. The Service, of course, is not listed in Part I of Schedule I, but rather in Part II.

As your client, Mr. Gingras, occupies a position at a professional level within CSIS, he does not qualify for the bilingual bonus in his present capacity.

Because you mentioned the RCMP, I should like to draw one final matter to your attention. In the period immediately preceding the creation of the Service in July 1984, while your client was still a member of the RCMP, he was not entitled to a bilingual bonus under the Force’s official languages policy. Subsection 66(2) of the CSIS Act provides that persons in your client’s situation should have employment benefits in the Service equivalent to those that the person had had immediately prior to the coming into force of the legislation until such time as those benefits are modified, in this case, by the Service.

II—Points at issue

The issues raised by the instant appeal are the following. Does the Plan cover RCMP members and non-civilian employees of CSIS? If it covers them, were they subsequently excluded by a proper authority? If it does not cover them or they have subsequently been excluded by a proper authority, is that non-inclusion or exclusion unlawful or discriminatory?

The paucity of the evidence presented as to the exact nature and origin of the decision establishing the Plan has not made the Court’s task any easier. It appears from the reference to “TB 752255 of 23 September 1977” contained in the amended version of the Plan dated October 4, 1977 that the decision was made by the Treasury Board, probably in its capacity as a committee of the Queen’s Privy Council for Canada responsible inter alia for acting on behalf of the Privy Council in respect of all matters relating to “general administrative policy in the public service of Canada” and “the organization of the public service or any portion thereof.”[13]

If the Plan created by the Treasury Board in 1977 covers members of the RCMP (as CSIS was not established until 1984, I will deal with it below), the question is whether the Treasury Board itself or the Governor in Council pursuant to subsection 5(5) of the Financial Administration Act subsequently amended the Plan so as to exclude members of the RCMP I have found no evidence of such an amendment.

There were, it is true, the statements of the Commissioner in paragraph 4 of his memorandum that it was not Treasury Board’s intention to apply the Plan to members of the RCMP, but the Commissioner is not the Treasury Board’s spokesman and had a clear interest in attributing such an intention to the Board.

It appeared from the testimony that no written decision has ever been given by the Treasury Board in any form regarding non-payment of the bonus to RCMP members and that non-payment of the bilingualism bonus to them was based on decisions communicated orally by no one knows who, no one knows when.[14] The witness Guénette referred to notes of a meeting he had seen in the RCMP files indicating that at discussions between the Treasury Board and the Commissioner the latter indicated that “he preferred to have no bilingualism bonuses in his shop.”[15] We do not know whether those discussions took place before or after the decision to create the Plan was made. The same witness admitted that he “could not put his hand on the specific letters signed by the Commissioner.”[16] I am not prepared to accept that a mere oral decision could alter the particularly detailed application of the Plan.

Additionally, there is nothing to indicate that the Governor in Council amended or revoked the Treasury Board decision by Order as required by subsection 5(5) of the Financial Administration Act.

In these circumstances I have no choice but to conclude that the exclusion of RCMP members from the Plan could only have been because someone somewhere at some time that cannot be identified concluded “by deduction”, to use the words of the witness Guénette, that is by interpretation of the words “employees for whom the Treasury Board is the employer”, that the Plan did not apply to RCMP members. In short, the exclusion if it exists is not the result of a new decision: it can only be the result of interpretation of the only decision that was ever made.

III—Whether Plan applies to RCMP members

By its own terms the Plan applies “to all eligible employees for whom the Treasury Board is the employer.” It is the interpretation of this phrase which is the point in dispute here. Counsel for the parties invited the Court to interpret it as if it were a legislative or regulatory provision.

I would observe at the outset that the expression is unfortunate as strictly speaking the Treasury Board is not the employer of anyone. What was intended, in my opinion, is that the Plan should apply to those eligible employees of the federal public service of whom Her Majesty, represented by the Treasury Board, is the employer. This is in fact how counsel for the appellant understood it, arguing that the respondent is not an employee and that in any case the Treasury Board is not his employer.

To fully understand what an “employee” is in the jargon of the federal government and the cases in which the Treasury Board is deemed to be the “employer”, we must look at the structure created by Parliament in the late sixties.

At the hearing, counsel for the appellant properly noted the distinction that should be made between “public service” (“public administration” in the more contemporary language of the Financial Administration Act, R.S.C., 1985, c. F-11) and “Public Service” (“public service”, in the same language), the first and wider concept taking in all aspects of the federal administration and the second, narrower, concept covering only those parts of the federal administration for which the employer was deemed to be Her Majesty represented by the Treasury Board. Learned counsel accordingly invited the Court to distinguish between the Treasury Board acting in its capacity as manager of the entire federal administration and when it acts in its capacity as employer for only certain parts of the federal administration.

The centrepiece of the organization of the federal government is the Financial Administration Act. It sets up a committee of the Queen’s Privy Council for Canada which it calls the “Treasury Board” (subsection 3(1)). The Treasury Board may act for the Privy Council in any matter relating to, inter alia, “(a) general administrative policy in the public service of Canada”; “(b) the organization of the public service or any portion thereof”; “(c) financial management”; and “(e) personnel management in the public service, including the determination of terms and conditions of employment of persons employed therein” (subsection 5(1)).

Subsection 7(1) of the Act states the following:

7. (1) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service ….

(a) determine the manpower requirements of the public service…

…

(c) provide for the classification of positions and employees in the public service;

(d) determine and regulate the pay to which persons employed in the public service are entitled …

(e) provide for the awards …

(f) establish standards of discipline …

…

(i) provide for such other matters, including terms and conditions of employment not otherwise specifically provided for in this subsection, as the Treasury Board considers necessary for effective personnel management in the public service.

In its turn, subsection 7(3) states that:

7. …

(3) The Governor in Council may, in respect of any portion of the public service that is a separate employer, authorize … the chief executive officer thereof to exercise and perform, in such manner and subject to such terms and conditions as the Governor in Council directs, any of the powers and functions of the Governor in Council or the Treasury Board in relation to personnel management in that portion of the public service ….

Subsection 7(6) states that:

7. …

(6) The powers and functions of the Treasury Board in relation to any of the matters specified in subsection (1) do not extend to any such matter that is expressly determined, fixed, provided for, regulated or established by any Act otherwise than by the conferring of powers or functions in relation thereto on any authority or person specified in such Act, and do not include or extend to any power or function specifically conferred on, or any process of personnel selection required or authorized to be employed by, the Public Service Commission by or under the authority of the Public Service Employment Act.

For the purposes of section 7,

7. …

(9) … 

“public service” has the meaning given the expression “Public Service” in the Public Service Staff Relations Act, and includes any portion of the public service of Canada designated by the Governor in Council as part of the public service for the purposes of this section;

“separate employer” means a separate employer within the meaning of the Public Service Staff Relations Act.

It is worth noting that in section 2 the Act defines “public officer” as including:

2. …

… a Minister and any person employed in the public service of Canada

and “department” as meaning:

2. …

(a) any of the departments named in Schedule A,

(b) any other division or branch of the public service of Canada … designated by the Governor in Council as a department for the purposes of this Act,

…

(d) any corporation named in Schedule B ….

Neither Schedule A nor Schedule B mentioned the RCMP but by an Order in Council dated March 31, 1952, renewed on December 22, 1965, it was designated a “department” for the purposes of the Financial Administration Act.

Two other statutes must be read in conjunction with the Financial Administration Act.

By its section 3 the Public Service Staff Relations Act applies “to all portions of the Public Service.” The following definitions are found therein, in section 2:

2. …

“employee” means a person employed in the Public Service, other than

(a) a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act,

(b) a person locally engaged outside Canada,

(c) a person whose compensation for the performance of the regular duties of his position or office consists of fees of office, or is related to the revenue of the office in which he is employed,

(d) a person not ordinarily required to work more than one-third of the normal period for persons doing similar work,

(e) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that Force under terms and conditions substantially the same as those of a member thereof,

(e.1) an employee of the Canadian Security Intelligence Service who is not within the occupational category described as administrative support,[17]

(f) a person employed on a casual or temporary basis, unless he has been so employed for a period of six months or more,

(g) a person employed by or under the Board, or

(h) a person employed in a managerial or confidential capacity,

and for the purposes of this definition a person does not cease to be employed in the Public Service by reason only of his ceasing to work as a result of a strike or by reason only of his discharge contrary to this or any other Act of Parliament.

…

“employer” means Her Majesty in right of Canada as represented by,

(a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and

(b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned.

…

“Public Service” means the several positions in or under any department or other portion of the public service of Canada specified from time to time in Schedule I.

…

“separate employer” means any portion of the public service of Canada specified from time to time in Part II of Schedule I ….[18]

Schedule I of the Act contains a Part I, “Departments and other portions of the public service of Canada in respect of which Her Majesty as represented by the Treasury Board is the employer.” The Royal Canadian Mounted Police is mentioned in Part I.

Schedule I of the Act contains a Part II, “Portions of the public service of Canada that are separate employers.” When it was established in 1984 the Canadian Security Intelligence Service was listed in Part II.

The Public Service Employment Act,[19] which creates the Public Service Commission, contains the following definitions in subsection 2(1):

2. (1) …

“department” means a department named in Schedule A to the Financial Administration Act and any division or branch of the Public Service designated by the Governor in Council as a department for the purposes of this Act.

…

“employee” means a person employed in that part of the Public Service to which the Commission has the exclusive right and authority to appoint persons ….

…

“Public Service” has the same meaning as in the Public Service Staff Relations Act.

Subsection 2(2) of the Act states the following:

2. …

(2) For the purpose of being eligible to enter competitions and for the purposes of sections 11 and 13, the following persons shall be deemed to be persons employed in the Public Service, namely:

(a) members of the Royal Canadian Mounted Police;

…

(b.1) employees of the Canadian Security Intelligence Service….[20]

A careful reading of these provisions leads me to make the following observations:

1. In the executive branch of the federal government there is only one “employer” and that is Her Majesty the Queen in right of Canada;

2. As a general rule,[21] Her Majesty does not exercise her functions of employer herself or through the Governor in Council: instead she delegates the exercise thereof either to the Treasury Board, when a department or portion of the public service specified in Part I of Schedule I is concerned, or to a separate employer when a portion of the public service specified in Part II of Schedule I is concerned;

3. Parliament has adopted an objective, simple and easily verifiable test to determine those persons in respect of whom Her Majesty will be represented as employer by the Treasury Board and those in respect of whom she will be represented as employer by a separate employer; it has drawn up two lists in legislation and not in a regulation, namely Schedules I and II; although these lists are given in a schedule to the Public Service Staff Relations Act, they serve purposes other than those of that Act: thus the Financial Administration Act (see subsection 7(9)) and the Public Service Employment Act (see the definition of “Public Service” in subsection 2(1)) refer expressly or by necessary implication to Schedule I; a reference made to Schedule I therefore does not necessarily imply a reference to the Act with which it is associated;

4. Parliament has chosen to indicate by legislation rather than by regulation the persons for whom the Treasury Board, on behalf of Her Majesty, will be the employer and those for whom it will not: any change of status in this regard therefore can only be made by legislation;

5. The RCMP is a division or a section of the public service of Canada within the meaning of the Financial Administration Act and is a department within the meaning of that Act; its members are therefore for the purposes of the Act “persons employed in the public service of Canada”; further, the definition of “employee” in section 2 of the Public Service Staff Relations Act, by excluding members of the RCMP from the definition “person employed in the Public Service” for the purposes of that Act, confirms that the latter are in any case “persons employed in the Public Service”;

6. The RCMP (and not merely its civilian personnel) is listed in Part I of Schedule I among the departments and other portions of the public service of Canada for which Her Majesty, represented by the Treasury Board, is the employer;

7. CSIS is listed in Part II of Schedule I among those portions of the public service of Canada which are separate employers;

8. A comparison of Parts I and II of Schedule I indicates that Parliament took great care to determine exactly what “portions” of the public service it would list in that Schedule and there is nothing to suggest that the reference to the RCMP made in Part I of Schedule I should be interpreted as a reference only to the civilian staff of the RCMP; Schedule I designates “portions” in their entirety and when it intends to refer only to part of a portion it does so expressly (“Staff of the Exchequer Court” and “Staff of the Supreme Court” in Part I, in 1970; “Staff of the Federal Court” and “Staff of the Supreme Court” and “Staff of the Non-Public Funds, Canadian Forces” in Parts I and II, respectively, in 1985); it would in any case be somewhat unusual for Parliament to have listed the RCMP in Part I solely on account of its civilian personnel when as we know the RCMP is essentially an institution made up of officers and members—as if Parliament had given priority to the assistant over the principal; it would also be strange if, after taking care in the Public Service Staff Relations Act to exclude the RCMP from the word “employee”, Parliament had failed to make this same exclusion when the time came to prepare Schedule I; further, the fact that, despite excluding both RCMP members and “non-civilian” employees of CSIS from the definition of an “employee”, Parliament persisted in including the RCMP in Part I and CSIS in Part II indicates that inclusion in either Parts I and II of Schedule I has nothing to do with the definition of an “employee” in the Act;

9. A member of the RCMP is therefore a person employed in the public service, in a portion thereof, the employer of whom is Her Majesty represented by the Treasury Board, which also makes him a person employed in the Public Service; the fact that such a member is not an employee for the purposes of the Public Service Staff Relations Act does not in any way alter his status as a public service employee; I entirely concur in the approach taken by the Trial Judge, who considered that “the exclusion of non-civilian, non-unionized members of the RCMP for the purposes of application of the general provisions of the Public Service Staff Relations Act is solely and specifically related to the purpose of that Act, namely setting out collective labour relations in the Public Service. This exclusion does not have the effect of placing these members of the RCMP outside the definition of ‘public service’”;[22]

10. As an RCMP member is appointed by the Commissioner rather than by the Public Service Commission he is not an employee within the meaning of the Public Service Employment Act, but Parliament, by virtue of the very fact that he is an employee of the public service, has made special provision for him to participate in Commission competitions, leave the RCMP without penalty and become an employee of the Public Service within the meaning of that Act;

11. There is one final textual argument which suggests that the word “employee” in section 1 of the Plan should not be given the meaning of the word “employee” in the Public Service Staff Relations Act: if that had been the case it would not have been necessary in section 2 of the Plan to exclude “notwithstanding section (1)” the persons described in subparagraphs (i), (ii), (iii) and (iv) of paragraph (d), since those persons are already excluded from the definition of “employee” in paragraphs (b), (c), (d) and (f) of that definition; moreover, this relationship between the wording of the Plan and the Public Service Staff Relations Act indicates the extent to which the drafters of the Plan had the language of the Act in mind.

The appellant placed great emphasis on the fact that Parliament has seen fit in certain statutes to indicate that for certain purposes members of the RCMP are “servant[s]” of the Crown,[23] “employed” by the Crown[24] or persons holding “insurable employment”.[25] In the submission of counsel for the appellant this means that RCMP members are so far from being “servants” or “employees” that Parliament had to say expressly that it considered them to be so when that was its intention. I am not of this view.

A distinction has to be made depending on whether one is dealing with the ordinary law or what I would call the internal law of the federal administration. The fact that a person is called an “employee” for the purposes of the internal law of the Government does not necessarily mean that he is an “employee” in the ordinary legal sense and that is what led Parliament to make the clarifications contained in the four aforementioned statutes.

In the ordinary law public servants form a special category of employees and by a long tradition the ordinary rules of contract are not applicable to them.[26] The members of the police forces fall even more clearly outside these rules, as Viscount Simonds noted in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ld.):[27]

There appears to their Lordships to be ample justification for saying, as was said in the High Court, that the service of a constable is “different in nature” or “on a different plane” from the domestic relation, that it is “different both in its nature and its incidents, and that, even if some of the incidents which the law implies in the ordinary contract of service are present also in the relation of the constable to the Crown, there is a fundamental difference which makes it necessary to approach with caution the question whether a form of action available in the one case is available in the other also.

Though it is possible that certain distinctions have become obsolete over the years the fact remains that it is understandable for Parliament, in view of the special and ambiguous status of members of the RCMP in the ordinary law, to take care from time to time and for special purposes, which generally go beyond the scope of the internal operation of the Government, to specify that RCMP members are or are not “servants” or “employees” of the Crown.

It was thus necessary, in order to make the Crown liable to third parties for acts committed by members of the RCMP, to specify that the latter were “servants” of the Crown, since without that they would not under the aforementioned decisions have been so regarded.

Similarly, the question could have arisen in connection with discrimination and unemployment insurance as to whether RCMP members were “employees” in the ordinary legal sense assumed by the two relevant statutes, which were laws of general application. It is true that paragraph 3(1)(c) of the Unemployment Insurance Act, 1971 suggests, when it is read with paragraphs (a) and (b), that the “employment” of a member of the RCMP is not under Her Majesty, but it must be kept clearly in mind that the employment covered by paragraphs (a) and (b) is “by one or more employers, under any … contract of service” and that without the clarification added in paragraph (c), members of the RCMP would in view of the aforementioned decisions probably not be qualified under paragraph (b).[28]

I am not saying that members of the RCMP are employees like any others. It is clear that both in the ordinary law and in Canadian statutory law, as a consequence of their method of appointment, their oath and their code of discipline, they form a class apart. I am simply saying that this special status does not deprive them of their status as employees for the purposes of statutes relating to the organization of the federal Government: they may be special employees, but they are still employees.

The appellant also put forward a textual argument based on section 11 of the amended version of the Plan. That section reads as follows:[29]

11. The Bilingualism Bonus shall be considered as part of an employee’s salary only for the purposes of the following:

Public Service Superannuation Act

…

Supplementary Retirement Benefit Act [and eleven other Acts or Plans].

I am not persuaded by this argument. In its original version of September 30, 1977 this section (then section 10) only referred to seven Acts or plans.[30] A week later, in its amended version, it referred to thirteen Acts or plans including the Supplementary Retirement Benefits Act,[31] which applies to members of the RCMP. Clearly in my view no conclusion can be drawn in law from this section.

The appellant relied heavily on section 5 of the Royal Canadian Mounted Police Act, which provides that the Commissioner “under the direction of the Minister, has the control and management of the force and all matters connected therewith.”

The fact that such authority is vested in the Commissioner does not make him an employer in place of the Treasury Board. The latter’s powers are scrupulously protected by subsection 7(6) of the Financial Administration Act and it is only in exceptional cases, and by some means other than a mere assignment of those powers to some other authority, that such other authority will exercise them in its place. In the case at bar, section 5 of the Royal Canadian Mounted Police Act is a simple assignment of power to the Commissioner which accordingly does not in itself confer any actual authority on the Commissioner over matters which are specified in subsection 7(1) of the Financial Administration Act and as to which the Treasury Board appears to have exercised its powers.[32]

In any case, whatever the Commissioner’s powers may be under the Royal Canadian Mounted Police Act, it is clear that they do not extend to the powers and duties listed in paragraphs (a), (c), (d) and (i) of subsection 7(1) of the Financial Administration Act, which are significant attributes of the status of employer, since under subsections 6(2), 7(2) and sections 11 and 22 of the Royal Canadian Mounted Police Act those powers and duties will continue to be exercised by the Treasury Board. Subsection 22(1) in particular provides that “The Treasury Board shall establish the pay and allowances to be paid to the members of the force.” It is true that the Treasury Board does not enjoy the power to appoint members of the RCMP, but it does not have that power in the departments either and yet it remains the employer (as Her Majesty’s representative): that power belongs to the Public Service Commission. The power to make appointments is therefore not an essential attribute of the status of employer for the purposes of the legislation at issue.[33]

What is more, provisions similar to those of section 5 of the Royal Canadian Mounted Police Act are to be found in section 6 of the Canadian Security Intelligence Service Act. CSIS is deemed to be a “separate employer” and the powers and duties conferred on the Treasury Board and the Public Service Commission by the Financial Administration Act, Public Service Employment Act and Public Service Staff Relations Act are in section 8 expressly conferred on its Director as an express exception to the said Acts. Just as the Director of CSIS is an “employer” so the RCMP Commissioner is not.

One final word on this point: in taking care to specify in subsection 36(3) of the 1969 Official Languages Act that the Act applied to the Royal Canadian Mounted Police, Parliament wished to ensure that the RCMP would not take advantage of the confusion surrounding its legal status to evade the constraints of official bilingualism. This reference to the RCMP was very clearly directed at the institution as a whole. In interpreting the Bilingualism Bonus Plan as I do, I am simply concluding that the Plan is in keeping with the Act on which it is based, which seems to me to be a natural course to take.

In short, however one regards the legal relationships between the Crown and the persons who serve it, whatever distinctions exist in this regard between members of the RCMP and other Crown servants and whatever the special legislation in which Parliament has thought it necessary to remove such distinctions and to make RCMP members “employees” or “servants” in the traditional sense of the ordinary law, I conclude like Dubé J. that a member of the RCMP is for the purposes of the Plan a person employed both in the public service and in the Public Service and that his employer is Her Majesty represented by the Treasury Board. In these circumstances I do not think it is necessary to consider the allegations of illegality and discrimination made by the respondent. In my opinion, the Trial Judge ruled to no purpose on this point.

IV—Whether Plan applicable to CSIS employees

Despite their obvious affinities and the fact that they are generally covered by common exceptions in certain legislation, the RCMP and CSIS are not subject to the same provisions as regards their status within the federal Government and their relationships with Treasury Board. As I have already noted CSIS under its enabling Act is much more independent and is a “separate employer”, while the RCMP, which basically under its enabling Act enjoys very little independence, must be content with having Her Majesty represented by the Treasury Board as employer. I do not know what led Parliament to act in this way—counsel for the appellant was not able to assist the Court on this point at the hearing—and I will simply note that their status is different and arrive at my decision accordingly.[34]

As CSIS is a “separate employer” and designated as such in Part II of Schedule I, it goes without saying that its employees do not have Her Majesty represented by the Treasury Board as their employer. The Plan therefore does not automatically apply to CSIS employees, though this does not prevent the Director exercising the powers of an employer from deciding to apply it within CSIS.

In the case at bar the Director made the decision, probably on March 5, 1985, the date on which he informed the respondent of it, to pay the bonus but only to those of his employees who were in the administrative support category.

Between his taking up his duties on July 16, 1984 and the making of this decision on March 5, 1985 the respondent was entitled to the bonus under the provisions of subsection 66(2) of the Canadian Security Intelligence Service Act, which state that a member of the RCMP who was transferred to CSIS on the date of the coming into force of the section was entitled to “employment benefits equivalent” to those he was receiving at that time, until such time as a decision of CSIS terminated them.

However, the respondent argued that this decision to terminate them is void because, if I understand correctly, it was contrary to the rules of administrative law and since April 17, 1985 discriminatory within the meaning of section 15 of the Charter, in that it was based on the same reasons as those put forward eight years earlier by Commissioner Simmonds, and these according to the Trial Judge conflicted with the objective sought in establishing the Plan.

There is no merit in these arguments by the respondent. The only evidence he submitted in support of his allegation was the letter I have already set out, in which the Director of CSIS informs the respondent of the policy adopted on the bilingualism bonus by CSIS. There is no doubt that the Director had the power under the Canadian Security Intelligence Service Act to adopt the policy which he adopted, and there is nothing in the letter to establish a connection between the position of the CSIS Director and that of the RCMP Commissioner or to suggest that he exercised this power unlawfully. This allegation is quite simply gratuitous and the Trial Judge erred in allowing it.

The allegation of discrimination is so tenuous that it does not merit close scrutiny. The respondent did not say what kind of discrimination was involved and submitted no evidence other than superficial and unsupported statistics. If it is discrimination based on language the claim would probably have to be dismissed as language is not one of the grounds described in section 15: it seems unlikely to me that a person could by means of so-called discrimination based on use of the official languages obtain more under subsection 15(1) of the Charter than what he would be entitled to under the language guarantee as defined in sections 16 to 22; and if there was discrimination it would not be discrimination based on language or, strictly speaking, national or ethnic origin, but discrimination based on the fact that bilingual employees perform administrative duties and other employees policing duties. That does not prima facia provide any basis for intervention under the Charter. In any case, the lack of serious evidence of discrimination is such that the claim based on the Charter is clearly frivolous in the case at bar.

In his capacity as a former member of the RCMP the respondent was entitled to be paid the bonus by CSIS from July 16, 1984 to March 5, 1985, but not after that.

V—Legal nature of Bilingualism Bonus Plan

In a very short paragraph on page 39 of his forty-page submission, counsel for the appellant argued the following:

216…. the Bilingualism Bonus Plan as it appears in the statement of the Government of Canada Revised Official Languages Policies is no more than a statement of government policy. That statement is not a source of law for anyone and so cannot provide a cause of action for the respondent.

This argument is surprising simply because it is made by the Crown in the circumstances of the case at bar. The decision to create the Plan was taken, as we have seen above, by the Treasury Board in its capacity as a committee of the Privy Council. The Plan has been in place for some fifteen years. Considerable amounts of public money, duly authorized, have been invested in it.[35] To use the words of the Commissioner in paragraph 4 of his memorandum of December 9, 1977, this Plan is “[o]ne of the major elements of the revised policies.” Counsel for the appellant was careful not to suggest that the Plan had been created illegally or that the payments made to thousands of eligible employees since November 1976 had been made by choice, wrongfully or in error.

The time is past in administrative law when an individual could be met by an objection by the Government as to the form or description chosen by the latter to express a decision that it had validly made with the intention of being bound. The fact of the matter here is that the Treasury Board, a committee of the Privy Council duly authorized to do so, made the decision to create the Plan. The Plan contained no measure of discretion as to its application. It was not simply a guide to be used to indicate how discretion should be exercised.[36] It was not simply a statement of policy having no decision-making effect, such as is made every day. It was not an administrative direction intended only to interpret or apply a given statute or regulation. It was not a promise of a decision to be made in future. It was the decision itself which was taken by the proper authority and it was the decision itself which that authority asked the public servants concerned to apply.

I have come to the conclusion that the Bilingualism Bonus Plan can be set up against the Crown by any one who is eligible to do so under the terms of the Plan.

Prescription

Subsection 38(1) of the Federal Court Act[37] provides that:

38. (1) Except as expressly provided by any other Act, the laws relating to prescription and the limitation of actions in force in any province between subject and subject apply to any proceedings in the Court in respect of any cause of action arising in such province, and a proceeding in the Court in respect of a cause of action arising otherwise than in a province shall be taken within and not after six years after the cause of action arose.

The question therefore is, first, as to the cause of action and second, in what province if any that cause of action arose.

At the request of the parties Dubé J. held that the applicable law was that of the province of Quebec since it was in that province that nearly all the performance of the respondent’s “contract of employment” took place. When he then had to choose between the five-year prescription period created by article 2260(6) of the Civil Code of Lower Canada, which is the ordinary legal deadline where “hire of labour, or … the price of … work” is concerned, and the two-year period for workmen’s wages created by article 2261(3) of the said Code, which is an exceptional deadline, the Trial Judge applied the five-year period. Dubé J.’s conclusion is in accordance with the decisions of the Quebec Court of Appeal[38] which treats public service employees like persons hiring out their labour for purposes of the prescription of their remedies against the Crown.

As the respondent filed his first statement of claim on November 28, 1985, his claim can only relate to the bonus that was allegedly payable to him after November 28, 1980.

I am not persuaded by this that the “cause of action” in the case at bar arose in Quebec within the meaning of subsection 38(1). In what does the cause of action here consist if not the refusal by the Treasury Board to pay the respondent the bilingualism bonus, and in that case the refusal occurred in Ontario, where the Treasury Board has its headquarters and where the prescription is six years?—or in what does the cause of action here consist if not the fact that the Treasury Board refused in Ottawa to pay the bonus to the respondent who worked both in Quebec and in Saskatchewan? I admit I have some hesitation in arriving at a conclusion in the case of an act of the federal Government affecting all eligible members of the RCMP wherever they work in Canada, that the prescription period in respect of this one decision varies depending on whether a member of the RCMP served in one province or another. I do not rule out the possibility that in subsection 38(1) Parliament intended that the laws of a given province would only apply when the entire cause of action arose in that province and that the six-year prescription period should be systematically applied when the cause of action arose in more than one province. The English text, which uses the words “arising otherwise than in a province” (my emphasis) is quite different from the French text, which uses the words “ailleurs que dans une province” (my emphasis) and supports the conclusion just stated.

In any case, the point was not argued in this Court and counsel for the respondent was content with a five-year prescription, whereas in either of the cases discussed above it would be six years. The question remains open.

In desperation counsel for the appellant argued at the hearing that the only remedy the respondent was entitled to was that mentioned in sections 45 et seq. of the Royal Canadian Mounted Police Regulations[39] and open to “every member who feels he has been injured or aggrieved.” However, this remedy forms part of the section of the regulations dealing with “discipline” and at first glance would not appear to apply to a claim for payment of the bilingualism bonus. It is true that section 50 of the Regulations states that “Notwithstanding sections 45 to 49, a member may make a complaint pursuant to the Official Languages Act directly to the Commissioner of Official Languages for Canada”, which suggests that the concept of “discipline” should not be taken too literally. However, even if one were to accept that the Commissioner of Official Languages has jurisdiction under the 1969 Act to hear a complaint by a member of the RCMP relating to the Bilingualism Bonus Plan he only has the power to make a “report” and “recommendations” (sections 31 and 33) and it is clear that exercise of this power would not be of any specific assistance to the respondent.

Judgment

I would accordingly allow the appeal in part and vary the trial judgment to read as follows:

The action is allowed with costs. Court finds that the plaintiff is entitled to the bilingualism bonus from November 28, 1980 to March 5, 1985.

As to the costs of the appeal, it is clear that although the appellant has won her case in part her main argument has been dismissed. On the other hand, the respondent dragged the Court and the appellant at great cost to the Government through allegations of a breach of section 15 of the Charter so nebulous that they were doomed to failure from the outset. In these circumstances I would not award any costs to the appellant and would award the respondent only half the costs of the appeal.

Pratte J.A.: I concur.

Chevalier D.J.: I concur.

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