Bell Canada v. Communications, Energy and Paperworkers Union of Canada (C.A.) [1999] 1 F.C. 113
Date: 19981117
Docket: A-222-98
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
SEXTON J.A.
BETWEEN:
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Appellant
(Respondent)
- and -
CANADIAN TELEPHONE EMPLOYEES
ASSOCIATION and FEMMES-ACTION
Co-Appellants
(Respondents)
- and -
BELL CANADA
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
Heard at Ottawa (Ontario) on Tuesday, Wednesday, Thursday and Friday
October 13, 14, 15 and 16, 1998.
Judgment delivered at Ottawa (Ontario) on Tuesday, November 17, 1998.
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
SEXTON J.A.
Date: 19981117
Docket: A-222-98
CORAM: THE CHIEF JUSTICE
DÉCARY J.A.
SEXTON J.A.
BETWEEN:
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Appellant
(Respondent)
- and -
CANADIAN TELEPHONE EMPLOYEES
ASSOCIATION and FEMMES-ACTION
Co-Appellants
(Respondents)
- and -
BELL CANADA
Respondent
(Applicant)
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] At issue in this appeal is the decision made by the Canadian Human Rights Commission ("the Commission") on May 27, 1996 to request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal ("the Tribunal") in accordance with Section 49 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended up to July, 1996 ("the Act"). The Tribunal was to inquire into seven complaints filed against Bell Canada ("Bell") by the Communications, Energy and Paperworkers Union of Canada ("CEP") (previously known as Communications Workers of Canada ("CWC")), the Canadian Telephone Employees Association ("CTEA") and a group called Femmes-Action. Essentially, the complaints allege that Bell had followed a discriminatory practice, prohibited by section 11 of the Act, in establishing or maintaining "differences in wages between male and female employees employed in the same establishment who are performing work of equal value". The complaint by Femmes-Action also alleges discriminatory practice contrary to paragraph 10(b) of the Act (entering into discriminatory agreement).
[2] I note at the outset that the complaints are erroneously referred to by the parties and the Commission as "pay equity complaints". Section 11 refers to "differences in wages" ("disparité salariale") and its marginal note reads "equal wages" ("disparité salariale discriminatoire"). The words "pay equity" have yet to make their way into federal legislation or regulation and they are nowhere to be seen even in the most recent statute dealing with "employment equity" (Employment Equity Act, S.C. 1995, c. 44). On the other hand, provincial statutes have been using the "pay equity" concept for years, remarkably in legislation other than human rights codes (see Pay Equity Act, R.S.O. 1990, c. P.7; Pay Equity Act, C.C.S.M. c. P13; Pay Equity Act, R.S.P.E.I. 1988, c. P-2; Pay Equity Act, R.S.N.S. 1989, c. 337; Pay Equity Act, S.N.B. 1989, c. P-5.01 and Pay Equity Act, S.Q. 1996, c. 43). To avoid confusion the words used should be the very words adopted by the Motions Judge, i.e. "wage discrimination complaints".
[3] On June 14, 1996 Bell filed an application for judicial review of the May 27, 1996 decision of the Commission. It sought "an order in the nature of certiorari quashing the decision", "an order prohibiting any further proceedings by the Canadian Human Rights Commission in respect of the [...] complaints, or any of them [...]", "a declaration that the Canadian Human Rights Commission had no reasonable grounds for requesting the President of the Canadian Human Rights Tribunal [Panel] to name a Human Rights Tribunal [...]" or, "in the alternative, a declaration that Bell should not, in the circumstances of the Commission's present investigation, have to defend itself before a Canadian Human Rights Tribunal in respect of the [...] complaints or any of them". (A.B., vol. 2 at 1-2)
[4] The application was based on the following grounds:
| 1) The decision of the Canadian Rights Commission (the "Commission") to request the naming of a Human Rights Tribunal is wholly vitiated by the bias against the applicant Bell Canada ("Bell") which pervaded the Commission's investigation of the complaints brought by the respondents and which has denied Bell the procedural fairness in this investigation to which it is entitled; |
| 2) The Commission has erred in law and denied Bell procedural fairness by not exercising its power and duty under paragraph 41(d) of the Canadian Human Rights Act and not rejecting as vexatious and in bad faith the complaints by the Communications, Energy and Paperworkers Union of Canada ("CEP") and the Canadian Telephone Employees Association ("CTEA") that wages which they themselves had freely negotiated in collective agreements binding on them and on Bell under section 56 of the Canadian Labour Code were contrary to the Canadian Human Rights Act; |
| 3) The Commission has erred in law and denied Bell procedural fairness by not exercising its powers and duties under subsection 40(2) and paragraph 41(b) of the Canadian Human Rights Act and not denying the CEP and CTEA status as complainants, despite the absence of proof that any of the alleged victims of discrimination had consented to their so acting, and despite the existence of the alternative remedy of collective bargaining under the Canada Labour Code; |
| 4) The Commission found in 1984, in 1985 and again in 1987 that Bell was not discriminating in wages on the basis of sex and dismissed complaints by the same complainant union, CEP (then known as the Communications Workers of Canada) alleging that wages paid the female-dominated jobs chosen by the union were discriminatory as compared to the male-dominated jobs again chosen by the same union. Without any evidence of any discriminatory wage increases since the time of its previous decisions, without making any appropriate job to job comparison and in the absence of a statistically significant change in the relationship between wages of the male and female-dominated jobs, the Commission has erred in law and has acted arbitrarily in deciding that grounds now exist to request the naming of a Human Rights Tribunal to inquire into the complaints covering the same jobs. |
| 5) The Commission's decision to request the naming of a Human Rights Tribunal on an Investigation Report which was exclusively based upon a study of certain jobs at Bell carried out in 1991-1992 solely for purposes of collective bargaining between Bell, the CEP and CTEA constitutes an error of law. Because of the methods used in its preparation and the method of analysis adopted, this study never was a job to job study and is not capable of giving rise to any inference that Bell has paid wages which discriminate on the basis of sex contrary to the Canadian Human Rights Act; |
| 6) The Commission has erred in law and denied Bell procedural fairness by requesting the naming of a Human Rights Tribunal for the investigation of complaints by the CEP, CTEA and Femmes Action whose vagueness renders it impossible for Bell to make the full answer and defence which is its right; |
| 7) The Commission has erred in law and denied Bell procedural fairness by purporting to exercise its power to extend the one year time limit for the bringing of complaints under the Canadian Human Rights Act without any legal or factual basis for so acting, and has thereby deprived Bell of its substantive right under the Act not to have to defend itself against complaints based upon events more that one year in the past; |
| 8) The Commission's decision to request the naming of a Human Rights Tribunal is wholly vitiated by the procedural unfairness of the Commission's investigation into the complaints by the CEP, CTEA and Femmes Action, which lumped together the complaints now referred to a Human Rights Tribunal with numerous others covering different female-dominated jobs, different time periods and using different male-dominated jobs for comparison with the female-dominated ones. This procedure made it impossible for Bell to properly assert its different defences in fact an in law to each of the numerous different complaints purportedly investigated at the same time, and thereby denied it the procedural fairness to which it was entitled. |
| 9) The Commission has erred in law in requesting the naming of a Human Rights Tribunal to investigate the complaints of the CEP, CTEA and Femmes Action, which involve comparison of employees in different establishments, where the Canadian Human Rights Act and the Equal Wage Guidelines, issued thereunder and binding on the Commission, both limit allegations of discrimination in wages of the basis of sex to instances in which both the male and female employees are employed in the same establishment. |
| 10) The Commission has acted in error in making its own a fundamentally flawed and improper investigation report, which cannot be used to justify any request for the naming of a Human Rights Tribunal. |
| [...] |
| [A.B., vol. 2 at 2-4] |
[5] The two unions and Femmes-Action will be referred to as "the appellants" in these reasons. Femmes-Action was not represented at the hearing in the Trial Division nor was it represented before us.
[6] In paragraph 38 of his reasons, the Motions Judge stated the following conclusion:
| [38] The Court finds on the plethora of evidence tendered by the parties, not all of which is or can be reasonably recited here, and on the oral submissions of counsel, and the Court's brief dialogues with them, that, of the applicant's grounds for relief recited earlier [...], the applicant has established those expressed in items 2), 3), 4), 5), 6), 7), 8) and 10). These are ample grounds for granting the applicant the relief which it claims, seriatim (with no alternative), but granting the last claim with the preceding ones), as recited earlier [...] |
The relevant statutes and guidelines
[7] It will be useful at this stage to reproduce the text of the provisions that are most relevant to this appeal:
| Canadian Human Rights Act PART I PROSCRIBED DISCRIMINATION [...] Discriminatory Practices [...] 11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value. (2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed. [...] (6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section. [...] PART III DISCRIMINATORY PRACTICES AND GENERAL PROVISIONS [...] 40. (1) Subject to subsections (5) and (7), any individual or group of individuals having reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice may file with the Commission a complaint in a form acceptable to the Commission. (2) If a complaint is made by someone other than the individual who is alleged to be the victim of the discriminatory practice to which the complaint relates, the Commission may refuse to deal with the complaint unless the alleged victim consents thereto. (3) Where the Commission has reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, the Commission may initiate a complaint. (4) Where complaints are filed jointly or separately by more than one individual or group alleging that a particular person is engaging or has engaged in a discriminatory practice or a series of similar discriminatory practices and the Commission is satisfied that the complaints involve substantially the same issues of fact and law, it may deal with those complaints together under this Part and may request the President of the Human Rights Tribunal Panel to appoint a single Human Rights Tribunal pursuant to section 49 to inquire into those complaints. [...] 41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
[...] Investigation 43. (1) The Commission may designate a person, in this Part referred to as an "investigator", to investigate a complaint. (2) An investigator shall investigate a complaint in a manner authorized by regulations made pursuant to subsection (4). [...] 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation. (2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied
it shall refer the complainant to the appropriate authority. (3) On receipt of a report referred to in subsection (1), the Commission
[...] Human Rights Tribunal 49. (1) The Commission may, at any stage after the filing of a complaint, request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal, in this Part referred to as a "Tribunal", to inquire into the complaint if the Commission is satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted. (1.1) On receipt of a request under subsection (1), the President of the Human Rights Tribunal Panel shall appoint a Tribunal to inquire into the complaint to which the request relates. [...] Equal Wages Guidelines, 1986 SOR/86-1082 [...] Complaints by Individuals 11. (1) Where a complaint alleging a difference in wages is filed by or on behalf of an individual who is a member of an identifiable occupational group, the composition of the group according to sex is a factor in determining whether the practice complained of is discriminatory on the ground of sex. [...] Complaints by Groups 12. Where a complaint alleging different wages is filed by or on behalf of an identifiable occupational group, the group must be predominantly of one sex and the group to which the comparison is made must be predominantly of the other sex. [...] Canada Labour Code, Part III [...] DIVISION III EQUAL WAGES 182. (1) For the purposes of ascertaining whether a discriminatory practice under section 11 of the Canadian Human Rights Act is being or has been engaged in, section 249, 250, 252, 253, 254, 255 and 264 apply, with such modifications as the circumstances require, as if this Part expressly required an employer to refrain from that discriminatory practice. (2) Where an inspector has reasonable grounds at any time for believing that an employer is engaging or has engaged in a discriminatory practice described in subsection (1), the inspector may notify the Canadian Human Rights Commission or file a complaint with that Commission under section 40 of the Canadian Human Rights Act. [...] |
Loi canadienne sur les droits de la personne PARTIE I MOTIFS DE DISTINCTION ILLICITE [...]
[...] 11. Constitue un acte discriminatoire le fait pour l'employeur d'instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes. (2) Le critère permettant d'établir l'équivalence des fonctions exécutées par des salariés dans le même établissement est le dosage de qualifications, d'efforts et de responsabilités nécessaire pour leur exécution, compte tenu des conditions de travail. [...] (6) Il est interdit à l'employeur de procéder à des diminutions salariales pour mettre fin aux actes discriminatoires visés au présent article. [...] PARTIE III ACTES DISCRIMINATOIRES ET DISPOSITIONS GÉNÉRALES [...] 40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière. (2) La Commission peut assujettir la recevabilité d'une plainte au consentement préalable de l'individu présenté comme la victime de l'acte discriminatoire. (3) La Commission peut prendre l'initiative de la plainte dans les cas où elle a des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire. (4) En cas de dépôt, conjoint ou distinct, par plusieurs individus ou groupes de plaintes dénonçant la perpétration par une personne donnée d'actes discriminatoires ou d'une série d'actes discriminatoires de même nature, la Commission peut, pour l'application de la présente partie, joindre celles qui, à son avis, soulèvent pour l'essentiel les mêmes questions de fait et de droit et demander au président du Comité du tribunal des droits de la personne de charger, conformément à l'article 49, un tribunal unique de les examiner. [...] 41. Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants:
[...] Enquête 43. (1) La Commission peut charger une personne, appelée, dans la présente loi, "l'enquêteur", d'enquêter sur une plainte. (2) L'enquêteur doit respecter la procédure d'enquête prévue aux règlements pris en vertu du paragraphe (4). [...] 44. (1) L'enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l'enquête. (2) La Commission renvoie le plaignant à l'autorité compétente dans les cas où, sur réception du rapport, elle est convaincue, selon le cas:
(3) Sur réception du rapport d'enquête prévu au paragraphe (1), la Commission:
[...] Tribunal des droits de la personne 49. (1) La Commission peut, à toute étape postérieure au dépôt de la plainte, demander au président du Comité du tribunal des droits de la personne de constituer un tribunal des droits de la personne, appelé dans la présente partie le "tribunal", chargé d'examiner la plainte, si elle est convaincue, compte tenu des circonstances relatives à celle-ci, que l'examen est justifié. (1.1) Sur réception d'une demande présentée en application du paragraphe 44(3), le président du Comité du tribunal des droits de la personne constitue un tribunal chargé d'examiner la plainte visée par cette demande. [...] Ordonnance de 1986 sur la parité salariale DORS/86-1082 [...] Plaintes individuelles 11. (1) Lorsqu'une plainte dénonçant une situation de disparité salariale est déposée par un individu qui fait partie d'un groupe professionnel identifiable, ou est déposée au nom de cet individu, la composition du groupe selon le sexe est prise en considération avant qu'il soit déterminé si la situation constitue un acte discriminatoire fondé sur le sexe. [...] Plaintes collectives 12. Lorsqu'une plainte dénonçant une situation de disparité salariale est déposée par un groupe professionnel identifiable ou en son nom, ce groupe doit être composé majoritairement de membres d'un sexe et le groupe auquel il est comparé doit être composé majoritairement de membres de l'autre sexe. [...] Code canadien du travail, Partie III [...] SECTION III ÉGALITÉ DES SALAIRES 182. (1) Les articles 249, 250, 252, 253, 254, 255 et 264 s'appliquent, compte tenu des adaptations de circonstance, à la recherche et à la constatation des actes discriminatoires définis à l'article 11 de la Loi canadienne sur les droits de la personne, comme si ces actes étaient expressément interdits par la présente partie. (2) L'inspecteur qui a des motifs raisonnables de soupçonner un employeur d'avoir commis l'un des actes discriminatoires visés au paragraphe (1) peut en aviser la Commission canadienne des droits de la personne ou déposer une plainte devant celle-ci conformément à l'article 40 de la Loi sur les droits de la personne. [...] |
The facts
[8] While some of the facts are in dispute the following events and dates are not and will serve to put the matters at issue in their proper context.
[9] In the early 1980's a number of complaints were filed against Bell under Section 11 of the Act. They were investigated and dismissed by the Commission.
[10] "Pay equity" issues were discussed during the contract negotiations in 1988 between Bell and CEP as well as between Bell and CTEA. The parties agreed to examine the issues and two parallel processes were undertaken, one with each of the unions. This was consistent with the bilateral approach used in collective bargaining between Bell and the two unions.
[11] In 1989, Bell proposed a committee approach consisting of representatives from Bell and both of the unions. On April 26, 1991, Bell and the unions signed the "Terms of Reference" for a tripartite "Pay Equity Project" ("the Joint Study"). The purpose and scope of the Joint Study was "[t]o assess the equity in compensation systems for work performed in female dominated classes within the bargaining units represented by the CTEA and the CWC, in accordance with Chapter H-6, section 11 of the Canadian Human Rights Act". The Terms of Reference go on to describe "the mandate" as being "to complete a pay equity audit and report the findings to the appropriate group in each organization". (A.B., vol. 2 at 36) Section 2.4 of the Terms of Reference provided that "[t]he information that is shared and generated during the Pay Equity Project is only for the purposes of this study. All parties agree to safeguard all sensitive or confidential records". (A.B., vol. 2 at 36) Bell was to be responsible for the costs of the project.
[12] At the time the Terms of Reference were signed on April 26, 1991, none of the systemic complaints at issue in these proceedings had been filed. The only complaints then outstanding against Bell were two complaints by a total of eight individual employees comparing specific jobs.
[13] To ensure that the Joint Study complied with the Act and the Guidelines, the Commission was asked to be involved in the Joint Study. It was involved in almost every aspect of the work and participated in every stage including the development of the job information questionnaire and the job evaluation system, observation of the pilot testing of the questionnaire, the completion of the questionnaire and focus group reviews, review of the written comments of the supervisors and observation of some of the job evaluation sessions.
[14] A Final Report was issued November 23, 1992. (A.B., vol. 3 at 335) It found that there were "patterns of disparity" which revealed "that female-dominated jobs receive from $1.99 to $5.35 less per hour than male-dominated jobs of equal value". (at 347) The report was to be "submitted to company and union executives, who will look at how to improve the Pay Equity situation through the bargaining process" (at 337) and "used in negotiations aimed at reducing the disparities and improving the Pay Equity situation within Bell". (at 348)
[15] At the time the Final Report was issued, a number of complaints were outstanding against Bell, three of which had been filed by CTEA (complaints X00344, X00372 and X00417) and all of which had identified specific comparators. The three CTEA complaints in an amended form would be amongst the seven referred to the Tribunal on May 27, 1996.
[16] Following the issuance of the Final Report, Bell and the unions pursued their negotiations. In September 1993, Bell made a "pay equity" adjustment of approximately 1% of salary for each affected employee and announced it was planning a similar payment for September 1994. The unions were of the view that these adjustments did not close the wage gap. They tried to negotiate a settlement but were not successful. They therefore decided to each file a systemic complaint. CEP filed its complaint on January 31, 1994 (complaint X00456) and CTEA, on March 4, 1994 (complaint X00460). Earlier, on January 25, 1994, Femmes-Action had filed its own systemic complaint (complaint X00455). In none of these complaints was there any reference to specific comparators. The typical allegation was that Bell had discriminated "by paying less than male dominated jobs of equal value as demonstrated by the Joint Pay Equity Study". (A.B., vol. 2 at 58-76)
[17] In addition to filing its systemic complaint on March 4, 1994, CTEA amended the three complaints it had filed earlier (complaints X00344, X00372 and X00417) in such a way as to replace the reference to specific comparators with reference to the Joint Pay Equity Study as quoted in paragraph 16.
[18] On March 15, 1994, the Commission issued a Draft Investigation Report (A.B., vol. 2 at 64) and invited comments within sixty days. The report examined 55 complaints from 64 employees as well as the six systemic complaints filed by Femmes-Action, CTEA and CEP.
[19] On June 21, 1994 CTEA filed an additional systemic complaint (complaint X00469) with reference to the Joint Pay Equity Study as quoted in paragraph 16.
[20] Bell sent its written comments on June 30, 1994. (A.B., vol. 11 at 1870) It submitted, inter alia, that the complaints were untimely; that they did not identify what occupational groups were to be used for the purposes of comparison; that the Joint Study did not report any comparison between specific occupational groups and had not been conducted for that purpose; that the complaints did not identify any establishment; and that the subject-matter of the complaint should be dealt with in collective bargaining under the Canada Labour Code. Bell also argued that the unions were not groups of individual victims, that they shared joint responsibility for the wages they themselves had negotiated, that they had no status to act as "equal pay" complainants under the Act and that they were estopped from so acting.
[21] After unsuccessful mediation efforts, the Commission issued its Investigation Report on May 5, 1995 and invited written submissions by June 7, 1995. (A.B., vol. 2 at 77)
[22] Bell sent its reply on June 7, 1995. (A.B., vol. 2 at 119) While reiterating most of the comments it had made in its reply to the Draft Investigation Report, Bell also argued that the grouping of the complaints was unfair and that the investigation process was biased and tainted for the following reasons:
| i) The complaints were treated and investigated together, with no regard to their different nature and irrespective of timeliness or vagueness of the various complaints, and by the same investigator; |
| ii) Commission staff and the investigator herself actively counselled the complainants in respect to the complaints and their amendments, and even suggested the filing of new complaints, which she then accepted. Complaints were amended at the investigator's suggestion, and the "Investigation Report" is nothing more than a report by the investigator asking the Commission to justify the unfair procedure which involved the zeal of prosecution rather than the objectivity required for investigation. |
| Some complaints are so vague that it is impossible to defend them and further cover many establishments contrary to the specified provisions of the Canadian Human Rights Act (the "Act"). |
| Nonetheless the investigator "investigated" all the complaints in one single all-encompassing process, notwithstanding the objection raised that several of the complaints were vague, untimely and cover several different establishments. |
| The Investigation Report now recommends that all complaints irrespective of their validity or merit be dealt with as one group by the Commission. The investigator is therefore suggesting that the Commission make its own the unfair and biased process adopted by the investigator, rather than turning its mind to the merit of each individual complaint. Bell Canada submits that the resolution proposed cannot legally be approved by the Commission. |
| iii) The so-called "amendments" to the complaints, some of which were suggested and/or solicited by the investigator herself apparently based on information gathered in the course of the investigation, in fact fundamentally transform these complaints into new ones, ignoring at once the untimeliness of the complaints, the nature of the initial complaints and the unfairness of the process. |
| [A.B., vol. 2 at 121-22] |
[23] On November 15, 1995, the Commission issued a Revised Investigation Report (A.B., vol. 2 at 190) and invited written comments by December 14, 1995. The report identifies the following objections raised by Bell:
| 4. The respondent claims that the complaints are untimely, that compatibility with the outside market should be considered, that the unions could not file a complaint on wages which they themselves negotiated, that it should be demonstrated that Bell is a single establishment according to s. 11 of the Act, that other redress mechanisms are more appropriate, and that collective bargaining was more appropriate to resolve these issues than complaints with the Canadian Human Rights Commission. |
| 5. The respondent argues that the joint pay equity study was undertaken "for the specific purpose of being a guide to collective bargaining and for no other purpose". Further, "the study is specifically not a system used by the employer in assessing the value of work performed by employees employed in the same establishment;" the study is flawed and provides no basis for comparisons between specific occupational groups. |
| [A.B., vol. 2 at 193] |
and dismisses them as follows:
| 7. This investigation found that the unions represent alleged victims of discrimination, that no other review procedure is appropriate to resolve the complaints, that no other Act of Parliament provides an appropriate procedure to resolving the complaints, that the unions did not act in bad faith in filing these complaints, that the respondent's whole operation constitutes a single establishment and that, therefore, the objections raised by the respondent should not be sustained. |
| [A.B., vol. 2 at 194] |
[24] The report goes on to explain why the staff of the Commission had suggested to some complainants to amend their original complaints:
| 68. Most of the individuals from the CTEA filed their complaint prior to the conclusion of the joint pay equity study and even prior to the initiation of that study. At that time, they filed their complaint and chose their comparators based on their knowledge of the jobs close to them. |
| [...] |
| 70. To further complicate the issue, some complainants used the generic job title or job level in their complaint, while others used the specific job titles, and that in either French or English, depending on the language used in the complaint. |
| 71. It is also important to remember that each individual complainant is also covered by a group complaint filed by their union, CTEA, in 1991-92 which does not always use the same wording to identify the comparators. Therefore, each individual was covered by at least two complaints which did not necessarily name the same comparator. (Some complainants are now covered by five different complaints). |
| 72. Prior to the mediation process, it seemed logical and practical to most parties to use the results of the joint pay equity study as a common base to negotiate pay equity adjustments. (Some individuals have expressed doubt on this point). |
| 73. This approach also resolved the possible discrepancy in calculating the wage gap between female predominant jobs classified at the same level because with this approach the same male comparators would be used, as opposed to the specific male comparator named in each complaint. |
| 74. It is with that intention that staff of the Commission contacted all the complainants on whether they wished to file a new complaint using the same wording to identify the male comparators. Most individual complainants preferred to keep their original complaint because they were afraid that it would change the retroactive period for their pay adjustments. |
| [A.B., vol. 2 at 204] |
[25] The report also dismisses in the following terms the argument raised by Bell to the effect that the unions cannot be complainants with respect to wages they had themselves negotiated:
| 96. The respondent states that the complaints filed by the unions should not be accepted because: |
| " the unions are equally responsible for the actual wages, and therefore the unions cannot be considered as good faith complainants; |
| " the unions did not provide proof of consent of victims; |
| " the unions negotiated the wages which they now claim to be discriminatory. |
| 97. The unions have the right to represent their members by filing a complaint with the Commission. The Commission has accepted other complaints from unions such as the Public Service Alliance of Canada. It is clear that a bargaining agent has as much right to represent members in a complaint before the Commission as it does in collective bargaining. |
| 98. Staff of the Commission would accept a complaint filed by a union and would not investigate the methods by which the union obtained approval from its membership unless there were reasons to believe that the membership was against filing the complaint. |
| 99. In a decision rendered on February 24, 1984, a Human Rights Tribunal (Local 916, Energy and Chemical Workers v. Atomic Energy of Canada Limited) stated: |
| The respondent has requested that the union, because it has accepted the wage rates as set by the collective agreement and because it acts as bargaining agent for both groups whose wages are sought to be compared, should be added as a respondent or a co-respondent along with the company, rather than continue in its present status as complainant. They contend that a company which bargains collectively no longer has any right to set wage rates unilaterally, and that by agreeing to the wages set for both local 916 and 785 through the collective bargaining process, the union should not be permitted to now attack those very wage rates to which they have already agreed. |
| ... While it is true that the company cannot set wage rates unilaterally, it does not necessarily follow that the parties are thereby equal. It is also true that the strike weapon is a strong one, and if the union had proceeded with the wage complaint through bargaining, it could have used this tool. However, we do not agree with the respondent that failure by the union to go this route has made them complicitous in setting discriminatory wage rates,... |
| [A.B., vol. 2 at 207-08] |
[26] The report deals at length with other issues raised by Bell, such as the timeliness of the complaints, the alternate redress of collective bargaining, the market comparisons, the single establishment, the consolidation of the complaints, the validity of the joint study and its use as an investigation tool and the method of calculation of the wage gap.
[27] Bell sent its written submissions on December 21, 1995. (A.B., vol. 2 at 223) As they are essentially the same as those raised in Bell's application for judicial review and already found in paragraph 4 of these reasons, there is no point repeating them here.
[28] CTEA, CEP and some individual complainants also filed some written submissions. The Commission sent copies of all submissions to Bell and to the unions. Bell was asked to reply by January 18, 1996, which it did. (A.B., vol. 2 at 276) On February 22, 1996, the Commission wrote to Bell again, giving other reasons why in its view its investigator had not exhibited any bias. (A.B., vol. 2 at 279) Bell replied on March 25, 1996. (A.B., vol. 2 at 281)
[29] On May 15, 1996, the Commission informed Bell by telephone of its decision to refer the complaints to the President of the Human Rights Tribunal Panel, allegedly without mentioning which particular complaints were being so referred. The Commission issued a press release on May 22, 1996. It officially informed Bell by letter dated May 27, 1996 (A.B., vol. 2 at 297) of its decision to refer the seven complaints at issue and to request, pursuant to subsection 40(4) of the Act, that a single tribunal be appointed.1
[30] The Commission did not give formal reasons for its decision. The Act does not require the Commission to give reasons and in any event, as noted by Sopinka J. in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at 903, the reasons for the Commission's decision may be found in the very extensive report of the investigator which the Commission adopted and which was in the hands of Bell. I shall therefore assume that the reasons of the Commission are those found in the Revised Investigation Report.
The issues
[31] As noted earlier, the Motions Judge accepted eight of Bell's ten allegations. Only allegations No. 1 (that the decision was "wholly vitiated by the bias against [...] Bell [...] which pervaded the Commission's investigation") and No. 9 (that the alleged discrimination had not occurred in "the same establishment" within the meaning of section 11) did not find favour with him, although it appears from his reasons, at paragraph 36, that he agreed with Bell's argument with respect to the "same establishment issue".
[32] The appellants essentially submit that the Motions Judge erred in deciding the case as if the Commission had been adjudicating on the merits of the complaints, in ignoring the proper role of an investigator under the Act and in relying for his finding of procedural unfairness solely on the evidence submitted by Bell. These submissions are well taken.
[33] For sake of clarity, I have found it helpful to divide Bell's grounds of attack into four categories: the merits of the complaints; the exercise by the Commission of its discretionary powers; the fairness of the investigation and decision-making process; and the status of the unions to file complaints under section 11 of the Act.
[34] Before addressing each of these categories in turn, a few words are warranted on the degree of deference owed to the findings of fact made by the Motions Judge on the basis of only affidavit and other documentary evidence. While he did refer in his reasons to "the plethora of evidence tendered by the parties" (see para. 6, supra), he referred exclusively in his lengthy reasons to evidence filed by Bell, including parts of an affidavit that had been struck out by an earlier order of the Court, and nowhere does he explain what led him to quote exclusively from that evidence. Furthermore, since he applied a wrong principle of law in reaching his decision, as we shall see, he approached the evidence with an inappropriate frame of mind. In these circumstances his findings of fact have no binding effect on this Court.
- The merits of the complaints
[35] It is settled law that when deciding whether a complaint should be referred to a tribunal for inquiry under sections 44 and 49 of the Human Rights Act, the Commission acts "as an administrative and screening body" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at 893, La Forest J.) and does not decide a complaint on its merits (see Northwest Territories v. Public Service Alliance of Canada (1997), 208 N.R. 385 (F.C.A.)). It is sufficient for the Commission to be "satisfied that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted" (subsections 44(3) and 49(1)). This is a low threshold and the circumstances of this case are such that the Commission could have validly formed an opinion, rightly or wrongly, that there was "a reasonable basis in the evidence for proceeding to the next stage" (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), supra, para. 30 at 899, Sopinka J., approved by La Forest J. in Cooper, supra, at 891).
[36] The conclusions of the Joint Study combined with the Commission's own findings were sufficient to suggest the possibility that some discrimination contrary to section 11 had occurred. Nothing more is asked at this preliminary stage. The Commission was satisfied that the Joint Study had some merit. It was satisfied that despite an undertaking of confidentiality in the Terms of Reference the results of the Joint Study could be used in the Commission investigation of the complaints. These were matters of opinion. There is enough contradictory evidence in the various affidavits to satisfy the Court that the Commission did not act in a patently unreasonable way in seeing some merit in the conclusions of the Joint Study and in finding that the confidentiality agreement was not as extensive as was suggested by Bell. This Court need not agree with the Commission's opinions. Nor should it speculate as to the eventual fate of the Joint Study before the Tribunal.
[37] The Motions Judge erred in totally ignoring sections 43, 44 and 49 of the Act and in his premise that "[w]hat is principally at issue in this case is the correct interpretation of section 11 [...]" (Para. 8 of his reasons) That was simply not the issue at this stage. The decision attacked is the decision to request the appointment of a Human Rights Tribunal. It will be the duty of the tribunal to determine whether the complaints are well founded or not and the tribunal will in no way be bound by the interpretation given to section 11 by the investigator and presumably adopted by the Commission. Those who expected this Court to resolve issues with respect to the interpretation and application of section 11 without the benefit of the decision of a tribunal on this issue in the instant case will be disappointed; whatever was said by the Motions Judge should be considered as obiter and I make no observations upon any of it.
- Exercise of discretion
[38] The Act grants the Commission a remarkable degree of latitude when it is performing its screening function on receipt of an investigation report. Subsections 40(2) and 40(4) and sections 41 and 44 are replete with expressions such as "is satisfied", "ought to", "reasonably available", "could more appropriately be dealt with", "all the circumstances", "considers appropriate in the circumstances" which leave no doubt as to the intent of Parliament. The grounds set out for referral to another authority (subsection 44(2)), for referral to the President of the Human Rights Tribunal Panel (paragraph 44(3)(a)) or for an outright dismissal (paragraph 44(3)(b)) involve in varying degrees questions of fact, law and opinion (see Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 at 698 (F.C.A.), Le Dain J.), but it may safely be said as a general rule that Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission.
[39] In the case at bar, the Commission was satisfied that the complaints were of such a nature as to be consolidated pursuant to subsection 40(4) for the purposes of the inquiry. That finding was very much open to it in the circumstances.
[40] The Commission was also satisfied that the complaints were not out of time. This finding is also unassailable on the facts of the case. As noted by Hugessen J.A. in Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 at 802 (F.C.A.), systemic discrimination, the one alleged in the instant case, by its very nature extends over time. I was concerned by the fact that the complaint by Femmes-Action (A.B., vol. 2 at 63) did not, contrary to the other complaints, mention a specific date for the beginning of the alleged discrimination. The words "depuis de nombreuses années" are clearly not adequate in a complaint filed under the Act. I am satisfied, however, looking at the whole of the complaint, that the starting date was, as in the case of the other complaints, the date of issuance of the Final Report of the Joint Study, i.e. November 23, 1992.
[41] The Commission was also satisfied that the complaints were specific enough. Bell had known for months that systemic complaints were in the making and the Revised Investigation Report contained enough information to enable Bell, at this stage, to be apprised in a general way of what it would be facing before the tribunal. Whether or not further particulars should be ordered by the tribunal in order to enable Bell to make a full answer to the complaints is an issue which is not before us in this appeal.
[42] Bell's argument to the effect that the complaints were vexatious and had been made in bad faith is related to the fact that the unions had themselves negotiated the wages at issue in the complaints. I will deal with this argument when dealing with the issue of the status of the unions.
- Procedural fairness
[43] With respect to procedural fairness, the Commission did precisely what the jurisprudence of this Court, as recently as in Slattery v. Canadian Human Rights Commission (1996), 205 N.R. 383 (F.C.A.), has told it to do. The Commission gave Bell a copy of the Draft Investigation Report, of the Investigation Report and of the Revised Investigation Report. It gave Bell the full opportunity to respond to each of these reports and Bell seized the opportunity every time. Following the receipt of the submissions by the parties on the Investigation Report, the Commission circulated each party's submissions to the other parties. Following the release of the Revised Investigation Report, all parties were provided with an opportunity to comment on the submissions of the other parties to the Revised Report. The Revised Report examined each and every argument that had been raised by Bell in its written comments. The Commission considered the Revised Report, Bell's submissions on it and further submissions by Bell before finally reaching its decision. What more could it have done?
[44] Bell's allegations with respect to the role played by the investigator in suggesting amendments to some of the complaints (supra, para. 22) assume that the investigator in preparing her report is acting or should be acting independently of the Commission and is or should be neutral to both parties. This is not so. As Sopinka J. observed in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), supra, para. 30 at 898:
| The investigator, in conducting the investigation, does so as an extension of the Commission. I do not regard the investigator as someone independent of the Commission who will then present evidence as a witness before the Commission. Rather the investigator prepares a report for the Commission. This is merely an example of the principle that applies to administrative tribunals, that they do not have to do all the work themselves but may delegate some of it to others [...] |
[45] Where, therefore, an investigator in the course of investigating a complaint is provided with some evidence, not of her making, that there is a possible ground for discrimination which the complaint, as formulated, might not have encompassed, it becomes her duty to examine that evidence, to alert the parties as to the impact of that evidence on the investigation and even to suggest that the complaint be amended. To require the investigator in such a case to recommend the dismissal of the complaint for being flawed and to force the filing of a new complaint by the complainant or the initiating of a complaint by the Commission itself under subsection 40(3) of the Act, would serve no practical purpose. It would be tantamount to importing into human rights legislation the type of procedural barriers that the Supreme Court of Canada has urged not be imported. It is of interest to note that in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 977-78, albeit in a different legislative context, no issue appears to have been raised with respect to the fact that the investigator had himself amended a complaint which he had found to be deficient, in order to include an additional section of the British Columbia Human Rights Act.
[46] Bell relies heavily on the passage in Cooper, supra, para. 35 at 891, where La Forest J. expresses the view that "[w]hen deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry", to argue that an investigator can no more suggest to amend a complaint than a judge at a preliminary inquiry can. The analogy, which was in any event qualified by the word "somewhat", was perhaps not the most felicitous in the circumstances as La Forest J. went on, at p. 893, to describe the Commission "as an administrative and screening body, with no appreciable and adjudicative role".
- Status of the unions
[47] Bell has challenged the status of the unions to bring a complaint based on two grounds. First, Bell claims that the unions, as a representative of complainants, must, pursuant to subsection 40(2) of the Act, obtain the consent of the complainants. Second, Bell argues that the unions' complaints are vexatious and were made in bad faith within the meaning of paragraph 41(d) of the Act since they are attacking the very wages they negotiated in their collective agreements with Bell. These two issues are addressed below. The accepted practice of granting unions status as a "group of individuals" in subsection 40(1) of the Act has not been questioned in this appeal.
[48] This specific challenge does not, of course, apply to the complaint filed by Femmes-Action, whose status as "a group of individuals" has never been questioned and which did not negotiate the collective agreements. Therefore, even if Bell were to succeed on this argument, the complaint by Femmes-Action would still have a life of its own.
[49] The simple answer to Bell's first ground is that subsection 40(2) permits the complaint to go forward even where consent is not obtained. In the case at bar, it is clear that the Commission considered the issue of consent and decided that it was not required in the circumstances. (supra, para. 25) It could therefore deal with the complaints. There is no suggestion that it was unreasonable for the Commission not to seek the consent of the alleged victims. The whole history of the case suggests that the alleged victims had endorsed the actions of their unions throughout.
[50] Bell's second ground has many facets. While based on paragraph 41(d) (vexatious and bad faith), it implicitly relates also to subsection 44(2), which in turn reproduces word for word the grounds found in paragraphs 41(a) (exhaustion of grievance procedures) and 41(b) (other more appropriate procedure).
[51] With respect to paragraph 41(a), the unions quite rightly point out that the Act should not force them to carry the issue of equal wages for equal value to an impasse in the collective bargaining process before they can represent the complaints of some of their members. The Commission has a wide discretion under that paragraph and I see no reason to interfere.
[52] With respect to paragraph 41(b), an alternative procedure provided for under another Act of Parliament could be section 182 of the Canada Labour Code. (supra, para. 7) That ground had not been advanced by Bell. It was raised by the Court at the hearing as it appeared to be inextricably connected in the circumstances to the argument with respect to paragraph 41(a). Clearly, in my view, section 182 of the Canada Labour Code does not mandate that any complaint by an employee for discriminatory practice under section 11 of the Canadian Human Rights Act be filed through the inspector. That procedure is at best an alternative means of filing a complaint with the Commission. The inspector, in any event, is not a person who can "deal with" a complaint within the meaning of paragraph 44(2)(b) nor can it be an "appropriate authority" to whom a complaint could be referred for possible determination.
[53] Bell's last ground is that the complaints were vexatious and made in bad faith within the meaning of paragraph 41(d), because unions should be estopped from attacking the wages they themselves have negotiated.
[54] The estoppel argument appears to be a novel proposition in the context of section 11 complaints. It seems to have been raised, and accepted, in a case dealing with sections 16 and 18 of the Saskatchewan Human Rights Code, the counterparts (in a different form) of section 10 of the federal Act. The Saskatchewan Court of Appeal, in a majority decision, found that a union was an unsuitable representative to file a class complaint against an employer under section 16 of the Code because section 18 imposed a similar legal duty on the union as well; the union could not pretend to represent fairly the full interests of the class because these very interests would require it to also file a complaint under section 18, i.e. a complaint against itself (Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission) (1997), 150 D.L.R. (4th) 207).
[55] In reaching its decision, the Saskatchewan Court of Appeal relied on the decision of the Supreme Court of Canada in Renaud, supra, para. 45, for the proposition that a union and an employer may be jointly and equally liable for discrimination. In Renaud, both the employer and the union had been named as defendants in complaints made under sections 8 and 9 of the British Columbia Human Rights Act, the counterparts (but with possibly important distinctions) of sections 7 and 9 of the federal Act.
[56] I do not find these decisions helpful where, as here, a complaint is filed with respect to a form of discrimination " different wages for work of equal value " which legally attracts the liability of the employer only. The provisions at issue in Canada Safeway Ltd., supra , para. 54 (sections 16 and 18 of the Saskatchewan Human Rights Code) imposed a similar legal duty on the employer and on the trade union and the Code itself did not contain an express provision like section 11 which prohibits equal wage discrimination. For reasons of its own Parliament has chosen, in section 11, to make the employer alone liable for differences in wages with respect to work of equal value. It would fly in the face of the clear wording of the Act and the obvious intent of Parliament to find the unions equally liable either implicitly under section 11 or indirectly through sections such as section 10 for having participated in the establishment of different wages with respect to work of equal value. It may at first blush appear to be self-serving and unethical for a union to use the mechanism of a complaint under section 11 to force for all practical purposes the revision of a collective agreement it has freshly negotiated, but absent bad faith " the Motions Judge did not make a specific finding of bad faith in the instant case2 " it is not legally wrong. The Court applies the Act as it is, not as it might have been.
Disposition
[57] For the above reasons, I have reached the conclusion that the appeal should be allowed, that the decision of the Motions Judge should be set aside, that Bell Canada's application for judicial review should be dismissed and that the decision of the Canadian Human Rights Commission dated May 27, 1996 to request the President of the Human Rights Tribunal Panel to appoint a single Human Rights Tribunal to inquire into the seven complaints filed by Femmes-Action, by the Communications, Energy and Paperworkers Union of Canada and by the Canadian Telephone Employees Association should be restored.
[58] The Communications, Energy and Paperworkers Union of Canada and the Canadian Telephone Employees Association should be granted their costs in the appeal. There should be no costs for or against the intervener.
"Robert Décary"
J.A.
"I agree.
Julius A. Isaac C.J."
"I agree.
J. Edgar Sexton J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-222-98
| STYLE OF CAUSE: Communications et al. v. Canadian telephone et al. |
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 13,14,15,and 16 1998
| REASONS FOR JUDGMENT BY: Décary J.A. |
CONCURRED IN BY: The Chief Justice
Sexton J.A.
DATED: November 17 , 1998
APPEARANCES:
Mr. Peter C. Engelmann for the Appellant
Mr. Richard Ellis
Mr. Gary Steinberg for the Co-Appellant
Ms. Fiona Campbell
Mr. Roy Heenan
Mr. Thomas Brady
| Ms. Joy Noonan for the Respondent |
Mr. René Duval
| Ms. Julie Beauchemin for the Intervener |
Page 2
SOLICITORS OF RECORD:
Caroline Engelmann for the Appellant
Gottheil
Barristers & Solicitors
Ottawa, Ontario
| Koskie Minskie for the Co-Appellant |
| Barristers & Solicitors |
Toronto, Ontario
Heenan Blaikie for the Respondent
Barristers & Solicitors
Montreal, Quebec
| Mr. René Duval for the Intervener |
Canadian Human Rights Commission
Ottawa, Ontario
__________________1 With respect to complaints X00344 and X00372, the Commission omitted the words "as amended" in its decision, leaving the impression that only the original complaints had been referred by the Commission to the President of the Human Rights Tribunal Panel. Counsel for Bell acknowledged before the Motions Judge that he had thought right from the start that this was a "mistake" and he did not in his factum raise any issue as to the impact of such a mistake either on the validity of the two complaints or on the validity of the decision of the Commission as a whole. The Court was satisfied at the hearing that the mistake had not caused any prejudice to Bell which knew all along that the seven systemic complaints were at issue. The mistake, surely, can be easily corrected before the tribunal. The Commission was obviously nonchalant in its endorsement of the investigation report and sterile debates would have been avoided had the Commission taken greater care when formalizing its decision. Administrative sloppiness, however, is not in and of itself cause for judicial intervention.
2 There is, indeed, evidence that the unions made a continuous attempt to close the wage gap in collective bargaining and that Bell was unwilling to make anything more than a token gesture to close the wage gap. Even in the 1995 negotiations, when the results of the Joint Study revealed a significant problem, Bell was only willing to establish a reserve fund of approximately 1% of its payroll. Under its plan, it would take at least fifteen years to close the gap. On the other hand, the unions made a continuous effort to press Bell into accepting the results of the Joint Study and into adopting the view that the gap should be closed in four or five years. However, Bell was unwavering in its position. (See Wu Affidavit, A.B., vol 16, tab 2; Bercier Affidavit, A.B., vol. 12, tab 1; Cross-examination of Bercier, A.B., vol. 12, tab 5 at 53, 70; see also A.B., vol. 14, tab 45 and A.B., vol. 15, tab 34).