1. Definitions
1.1. For the purposes of this Settlement Agreement, of which the preamble and schedules are an integral part, the following terms shall have the following meanings:
- Approved Member
- A Member whose Claim is approved by the Claims Office or the Court;
- Approved Member Representative
- A representative of a Member whose claim is approved by the Claims Office or the Court;
- Claims Office
- The Treasury Board of Canada Secretariat Claims Office;
- Class Action
- The class action commenced by Ezmie Bouchard in the Superior Court, District of Quebec, case number 200-06-000214-174;
- Court
- The Superior Court of Quebec in the district of Quebec City presided by the Honourable Jean-François Émond or the judge assigned to hear the application for approval of this Settlement Agreement.
- Fiscal Year 2016/2017
- February 24, 2016, to March 31, 2017;
- Fiscal Year 2017/2018
- April 1, 2017, to March 31, 2018;
- Fiscal Year 2018/2019
- April 1, 2018, to March 31, 2019;
- Fiscal Year 2019/2020
- April 1, 2019, to March 31, 2020;
- Form
- The claim form attached to this Settlement Agreement as Schedule A;
- Member
- As defined in the judgment authorizing the class action without distinguishing between Members of the First Subclass and the Second Subclass: “All persons who had an employment relationship with the Government of Canada at any time during the Class Period, excluding those subject to the grievance procedure under Part 2 (sections 206, 208 and 209) of the Public Service Labour Relations Act” (now the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2) For greater certainty, former public servants (retired, resigned or otherwise) are Members only to the extent that they are not excluded under this definition.
- Member Representative
- A person duly authorized to act on behalf of a deceased or incapacitated Member;
- Phoenix Damage Agreements
The following Phoenix Damage Agreements between the Treasury Board and its bargaining units and similar agreements with separate agencies as defined in the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2:
- Agreement between the Core Public Administration Bargaining Agents (“the Bargaining Agents”) and the Treasury Board (“the Employer”) concerning damages caused by the Phoenix pay system (approved June 12, 2019);
- Agreement between the Public Service Alliance of Canada (PSAC) (“the Bargaining Agent”) and the Treasury Board of Canada (“the Employer”) (approved October 23, 2020);
- Agreement between the Core Public Administration Bargaining Agents (“the Bargaining Agents”) and the Treasury Board of Canada (“the Employer”) with regard to the Catch-up Clauses in the June 2019 Memorandum of Understanding on Damages caused by the Phoenix Pay System (approved March 3, 2021);
- Agreement between The National Police Federation (NPF) (“The Bargaining Agent”) and The Treasury Board of Canada (“The Employer”) (approved August 6, 2021).
- Settlement Agreement
- This Settlement Agreement, the preamble and the schedules thereto;
1.2. The Compensation Period for purposes of calculating financial compensation shall begin on February 24, 2016, at 12:00 a.m. and end on March 31, 2020, at 11:59 p.m.
2. Compensation, pay in arrears and legal fees for plaintiff’s counsel
Compensation awarded to Recognized Members
2.1. The Defendant shall compensate Recognized Members in the form of a lump sum payment as follows:
- Fiscal year 2016/2017: a maximum of $350.00;
- Fiscal year 2017/2018: a maximum of $175.00;
- Fiscal year 2018/2019: a maximum of $175.00;
- Fiscal year 2019/2020: a maximum of $175.00.
2.2. To be eligible for compensation under paragraph 2.1, the Member must have worked at least one day during the given fiscal year for any of the departments and organizations listed in Schedule B attached hereto and have experienced pay problems.
2.3. A Member who is eligible for compensation or has received compensation pursuant to the Phoenix Damage Agreements will not be entitled to receive compensation under this Settlement Agreement for the corresponding fiscal year.
2.4. Compensation will be paid without interest or additional compensation.
2.5. The compensation paid to a Recognized Member will be reduced to cover any other applicable statutory deductions, including any amount owing or to be owed to the Fonds d’aide aux actions collectives. The compensation to which a Member may be entitled will be used to reduce any amount owing to the federal government, if any. The compensation will not be reduced by any amount received under the following programs established by the federal government: Compensation for out-of-pocket expenses, Claims for compensation for impacts on income tax and government benefits, Claims for an advance of government benefits, Reimbursement for costs of tax advice.
2.6. It is understood that no other compensation will be paid to Recognized Members.
2.7. The compensation is not pensionable under the Public Service Superannuation Act, R.S.C., 1985, c. P-36.
Payment of Pay in Arrears
2.8. Members’ payment in arrears shall be processed by their respective compensation teams, by the Department of Public Works and Government Services (also known as Public Services and Procurement Canada) or the department or organization they worked for.
2.9. Payments shall be made only through the existing federal government pay system.
Fees
2.10. For legal fees, the Defendant agrees to pay the Plaintiff’s counsel, in addition to the compensation to Members, a single payment of one million four hundred thousand dollars within sixty days of the judgment approving this Settlement Agreement. Court revision of the legal fees, if any, will not invalidate the settlement.
2.11. The plaintiff and her counsel agree that this settlement agreement is not subject to the approval of the Fonds d’aide aux actions collectives (the Fonds). The refusal by the Fonds to approve the amount to be refunded, which is equivalent to the amount of financial aid received by the plaintiff’s counsel for fees and disbursements, including expert fees and applicable tax, or the claim by the Fonds of any amount or balance, will not be a ground for termination of this settlement agreement.
2.12. Notices to Members concerning the approval of this Settlement Agreement and the subsequent notice of judgment approving this Settlement Agreement, including the Form, if any, shall be provided to Members by the Defendant, who shall bear all publication and transmission costs.
2.13. Subject to Court approval, notices to Members will be posted on the Government of Canada’s website (canada.ca) and the websites of all departments and organizations listed in Schedule B, every day for thirty consecutive days, on the social media accounts of the Government of Canada and of the departments and organizations listed in Schedule B, on the Superior Court’s Registry of class actions website, and on the website of the Plaintiff’s counsel.
3. Claims process and claims office management
3.1. Claims Office
- 3.1.1. The Treasury Board Secretariat’s Claims Office will be responsible for processing and payment of all claims in accordance with this Settlement Agreement.
- 3.1.2. An online claims portal shall be created for Members to file a claim. This portal shall be active within seven days following the Settlement Agreement approval judgment.
- 3.1.3. Within ninety (90) days of the last accepted or denied claim being fully processed, a Claims Office representative shall provide a sworn statement that no claims are pending.
- 3.1.4. Within thirty (30) days of receipt of the sworn statement referred to in subparagraph 3.1.3, and subject to any challenge made pursuant to section 4 of this Settlement Agreement, the Plaintiff’s counsel agrees to file an application for a judgment of closure, releasing the Claims Office from any obligations under the Settlement Agreement.
- 3.1.5. All claims submitted to the Claims Office are subject to the Privacy Act, R.S.C., 1985, c. P-21.
- 3.1.6. No legal action or proceeding may be commenced against the Claims Office or any of its employees, agents, partners, associates, representatives or their respective assigns in respect of any matter relating in any way to the Settlement Agreement, the administration of the Settlement Agreement terms and the payments, except with the approval of the Court.
3.2. Deadline for submitting a claim
- 3.2.1. The claim Form must be submitted through the portal or by mail to the Claims Office within six (6) months of the Settlement Agreement being approved. The link to the portal and/or the Form will be attached to the notice to Members of the approval of the Settlement Agreement.
3.3. Claims procedure
- 3.3.1. To be compensated, a Member must complete and submit to the Claims Office a signed Form setting out:
- their full name, mailing address, email address, telephone number (home, mobile, office), date of birth, Personal Record Identifier (PRI);
- that they worked on one day in any given fiscal year (s) covered by this Settlement Agreement;
- that they experienced pay problems;
- that they agree they will not receive compensation if they are eligible for compensation or have received compensation pursuant to the Phoenix Damage Agreements and, if so, for which fiscal year(s).
- 3.3.2. An incomplete or incorrectly completed Form shall not constitute grounds for denying compensation to a Member or Member Representative under this Settlement Agreement. Upon receipt of an incomplete or incorrectly completed Form, the Claims Office shall contact the Member or Member Representative, if possible, and allow the Member or Member Representative to correct any errors in the Form within 30 days.
- 3.3.3. If the claim remains incomplete and more than thirty (30) days have passed since the Claims Office’s last communication, the Claims Office may reject the claim.
3.4. Claims made by the Representative of a deceased or incapacitated Member
Claims made on behalf of the estate of a deceased or incapacitated Member may be submitted by a legal representative. Copies of documents attesting to the representative’s eligibility to act on behalf of the claimant or estate must be provided according to the applicable laws.
3.5. Claims Office decision
- 3.5.1. The Claims Office will begin processing claims within a reasonable time, no later than the date of the deadline for making a claim.
- 3.5.2. The Claims Office shall communicate an unfavourable decision, with reasons, in writing to the Member or Member Representative.
- 3.5.3. A favourable or unfavourable decision will be posted in the portal for Members who submitted their claim online, and sent by mail for Members who submitted their claim by mail. Members who submitted their claim online will be notified by email that the decision has been posted in the portal.
- 3.5.4. Subject to section 4, the Claims Office’s decision shall not be subject to judicial review or other proceedings.
4. Review and continuing jurisdiction
4.1. Within thirty (30) days of the Claims Office’s written decision denying the claim in whole or in part, the Member or Member Representative may request the review of the decision by providing written notice to the Claims Office that they disagree and stating the reasons for requesting a review. The request for review can be sent by email or by mail. The request must be filed with or received by the Claims Office within the thirty-day period. The Claims Office’s decision will state the right and time limit to file a request for review.
4.2. The review will be heard by the Court and will be limited to the interpretation and application of the Settlement Agreement by the Claims Office, and excludes review of terms and conditions of compensation set forth in this Settlement Agreement and approved by the Court.
4.3. Upon timely receipt of the notice referenced in paragraph 4.1, the Claims Office will send a copy of the notice to the Plaintiff’s counsel and the Court along with
- a copy of the Claims Office’s decision;
- all written submissions and supporting documents;
- any other Claim-related evidence the Claims Office has in its possession;
- any other information or documents the Court may request.
4.4. The Court will hear the dispute on a date to be determined by the Court.
4.5. The Court’s judgment will be final and not subject to appeal.
5. Final release in favour of the defendant
5.1. The Defendant’s settlement offer was made in consideration of the Defendant obtaining a full, final and complete release with respect to the Compensation Period as mentioned at paragraph 1.2.
5.2. Class Members who did not opt out within the Opt-Out Period give a full and final release to the Defendant, its departments, entities, employees, agents, directors and other officers, past and present, successors and assigns, and its insurers, from all claims, demands, liabilities and causes of action, of whatever nature, under civil law, common law, public law, Charter or statutory law, for all damages, contributions, compensation, costs, disbursements or expenses, expenses and interest of every kind and nature—pecuniary or non-pecuniary, exemplary or punitive—including stress, distress and inconvenience, whether past, present or future, arising directly or indirectly from or in connection with the authorization judgment or the facts alleged in the statement of claim. Class Members who did not opt out within the Opt-Out Period agree not to commence any proceedings against the Defendant or any other person who may have a claim against the Defendant for warranty, compensation, contribution or damages.
5.3. For greater certainty, it is understood that the release referred to in paragraph 5.2 includes any proceedings, regardless of type or name (claim, action, appeal, grievance, complaint or challenge) and regardless of the judicial or administrative tribunal or court in which it is pursued.
5.4. The Plaintiff and her counsel agree to cooperate with the Defendant in any proceedings that may be necessary to enforce the release resulting from the Settlement Agreement in the proposed Delorme Class Action.
5.5. For greater certainty, it is understood that the Settlement Agreement shall in no way constitute an admission of liability by the Defendant, either as a matter of fact or law, and that this Settlement Agreement shall not be introduced into evidence in any proceeding other than this one, past, present or future.
5.6. Each Recognized Member or Recognized Member Representative shall also sign a specific release on the Form in order to receive compensation from the Claims Office.
5.7. The Settlement Agreement and any documents (including any drafts), proceedings, discussions or negotiations used directly or indirectly in connection therewith shall not be named, admitted or introduced into evidence in any pending or future civil, criminal or administrative proceeding or action, except as follows and in accordance with the terms of this Settlement Agreement:
- To obtain any judgment, order or direction of the Court in connection with this Settlement Agreement;
- If the Defendant is required to defend a released claim or otherwise demonstrate res judicata with respect thereto;
- When required by law.
5.8. For greater certainty, it is understood that the approval judgment shall order and declare that the release described in this section of the Settlement Agreement constitutes a transaction within the meaning of sections 2631 et al. of the Civil Code of Quebec and is binding on all Members who have not opted out.
6. Miscellaneous provisions
Presentation
6.1. This Settlement Agreement has been divided into sections and paragraphs and headings have been included; this is for reference purposes only and does not affect the interpretation of this Settlement Agreement.
6.2. The terms “herein, hereof, hereunder” and similar expressions refer not to any particular paragraph or portions hereof, but to this Settlement Agreement.
6.3. Unless the context otherwise requires, references herein to paragraphs and schedules are to the paragraphs and schedules of this Settlement Agreement.
Scope
6.4. In this Settlement Agreement, words importing the singular include the plural and vice versa. Words importing the feminine gender shall include the masculine gender and vice versa.
Deadline
6.5. If the day on which any action is to be taken hereunder is not a business day, such action shall be taken on the next business day.
Enforceability
6.6. This Settlement Agreement, when approved, shall be binding on all Members who have not opted out.
Comprehensive agreement
6.7. This Settlement Agreement, including its schedules, constitutes a transaction within the meaning of section 2631 of the Civil Code of Quebec, and is binding on all Parties and Members, and shall supersede any prior negotiation or agreement between the Parties.
Modification
6.8. This Settlement Agreement and the dates and deadlines set forth herein may be modified only with the approval of the Court.
Miscellaneous provisions
6.9. All dollar amounts referred to are in Canadian dollars.
6.10. The invalidity or illegality of any provision shall not affect the remaining provisions of the Settlement Agreement, which shall be deemed independent of each other.
6.11. This Settlement Agreement shall be governed by and construed in accordance with the laws of Quebec and applicable federal laws.
6.12. This Settlement Agreement and the schedules have been drafted in French, and in the event of any conflict between the French and English versions of this Settlement Agreement, the French version shall prevail.
6.13. Each signatory declares that they are fully authorized to agree to the terms and conditions of this Settlement Agreement and to execute it on behalf of the Party for which they are signing.
6.14. The Parties may sign the Settlement Agreement and any documents related thereto in multiple copies by electronic signature. In such case, each copy shall constitute an original. Such copies shall together constitute one and the same Settlement Agreement.
6.15. No amount payable to a Member under the Settlement Agreement may be assigned, and any assignment is absolutely void.