Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada (Local 70396)

Canadian Museum of Civilization Corporation v. Public Service Alliance of Canada (Local 70396)
Court (s) Database
Federal Court Decisions
Date
2006-06-06
Neutral citation
2006 FC 704
File numbers
T-679-05
Decision Content
Date : 2006-06-06
Docket: T-679-05
Citation: 2006 FC 704
Ottawa, Ontario, June 6, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
CANADIAN MUSEUM OF CIVILIZATION CORPORATION
Applicant
and
PUBLIC SERVICE ALLIANCE OF CANADA (LOCAL 70396)
and CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER AND ORDER
[1] This application for judicial review by the Canadian Museum of Civilization Corporation (CMCC) challenges a May 21, 2005 decision (Decision) of the Canadian Human Rights Tribunal (Tribunal). The Decision dismissed CMCC’s motion to strike those portions of a complaint (Complaint) made by the Public Service Alliance of Canada (PSAC) that alleged a violation by CMCC of section 11 of the Canadian Human Rights Act R.S.C. 1985 H-6 (Act).
BACKGROUND
[2] On March 6, 2000, PSAC made the Complaint to the Canadian Human Rights Commission (Commission) alleging that CMCC’s job evaluation plan (Plan) is gender-biased and contrary to sections 10 and 11 of the Act.
[3] The Plan has been implemented since April 1, 1997. PSAC claims that the Plan differentiates adversely against female jobs in comparison to male jobs of equal value. Certain factors that are known to measure aspects of jobs that are typically female are allegedly absent from the Plan and, conversely, other factors that typically favour predominantly male jobs are taken into consideration by the Plan.
[4] The Complaint alleges that a random mix of seven predominantly female and seven predominantly male jobs using a “gender-neutral” job evaluation plan jointly developed by PSAC and Deloite & Touche illustrates a gender bias in the Plan.
[5] It is important to note here that the Complaint did not specify which jobs were used for the random mix assessment. In addition, the Complaint did not indicate which predominantly female jobs are allegedly undervalued when compared to the predominantly male jobs.
[6] CMCC’s employees were at one time classified according to the Treasury Board Standard, which sorted jobs into various occupational groups, including Clerical Regulatory (CR) and General Technical (GT). It is alleged in the Complaint that the CR group was composed of predominantly female jobs and that the GT group was made up predominantly of male jobs. CMCC points out that, although there is some reference in the Complaint to CR and GT jobs, these classifications ceased to exist on April 1, 1997. The alleged discriminatory practice relates to the new Plan under which there is no breakdown of occupational groups using the old Treasury Board designations.
[7] CMCC contends that without a particularization of the female complainant group and the male comparator counterpart, PSAC's claim of discrimination under section 11 of the Act cannot be substantiated, especially when the Equal Wage Guidelines, 1986, SOR/86-1082, (Guidelines) adopted pursuant to subsection 27(2) of the Act are taken into account. According to section 12 of the Guidelines, where a complaint alleging differences in 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 it is compared must be predominantly of the other sex. CMCC claims that in order to comply with sections 12 and 13 of the Guidelines both the complainant group and its male comparator group must be precisely identified.
[8] Over the years CMCC has repeatedly conveyed its concerns to PSAC and the Commission regarding the lack of particularization of the relevant occupational groups. A first reference appears in CMCC’s initial response to the Complaint which was communicated to the other parties in June 2000. The same concerns were reiterated as recently as August 2004, in a Statement of Case filed by CMCC in preparation for a case management meeting. CMCC notes that at no time along the way did PSAC or the Commission provide it with the requested details until PSAC was told by the Chairman of the Tribunal to provide further particulars at a case conference held August 20, 2004.
[9] An expert’s report obtained by the Commission (Haignière Report) and released in June 2003, studied whether the Plan tended to deprive women of employment opportunities in breach of section 10 of the Act. The findings were later incorporated into the Commission investigator's report. In PSAC's view, neither the Haignière Report nor the Commission investigator looked into or reported on any section 11 contravention. The Haignière Report did review several specific jobs, which were identified as either female or male, but no comparison was done of the relative rates of pay and values of the jobs. The Haignière Report recommended that a tribunal be appointed to inquire into the section 11 portion of the Complaint, but did not identify the complainant and comparator groups.
[10] In January 2004, the Commission referred the matter to conciliation. The conciliation failed and the Complaint was referred to the Tribunal for inquiry. CMCC had the opportunity, at that time, to seek judicial review of the Commission’s decision to refer the Complaint to the Tribunal but declined to do so. CMCC now says that there was no reason to challenge the referral because the jurisdictional and amendment issues raised in this application did not arise until after the referral to the Tribunal.
[11] PSAC provided CMCC with its Statement of Case in July 2004, which contained further particulars of the Complaint. Then, or on October 15, 2004, PSAC provided more detailed particulars of the complainant and comparator groups for the purposes of the section 11 portion of the Complaint.
[12] In February 2005, CMCC brought a motion before the Tribunal to strike the allegations in the Complaint that the Plan violates section 11 of the Act. The motion was dismissed by the Tribunal and it is this interlocutory ruling that is the basis of the present application before the Court.
APPLICANT’S SUBMISSIONS
[13] Under the Guidelines, CMCC says that each complainant and its corresponding comparator group must be analyzed against specific criteria to determine if a discrete human rights violation has occurred. In pay equity cases the Guidelines have the force of a statute. In essence, the analysis of each complainant and its corresponding comparator group potentially yields a distinct human rights violation, just as if one were analyzing a series of separate causes of action. This is why the Guidelines make it obligatory for any complaint under section 11 of the Act to disclose the separate complainant and its corresponding comparator groups. The failure to properly identify the complainant and comparator groups amounts to a failure to properly lay a complaint.
[14] PSAC’s original claim was asserted in March of 2000. Over the years that followed, CMCC repeatedly demanded that PSAC, and later the Commission, disclose the particulars of the section 11 aspects of the Complaint by identifying the complainant and comparator groups upon which PSAC relies. CMCC’s many requests for such further details were ignored or refused.
[15] In the fall of 2004, following the referral of the Complaint to the Tribunal, CMCC told the Tribunal about its concerns and asked for an order specifically compelling PSAC to disclose the complainant and comparator groups upon which its section 11 case was founded. The Tribunal agreed that this information should be provided and accordingly ordered PSAC to disclose it to CMCC.
[16] On October 15, 2004 PSAC sent a letter to CMCC purporting to comply with the Tribunal’s order requiring the identification of the complainant and comparator groups. However, CMCC says that PSAC’s letter asserted what amounted to a brand new complaint. In the letter, PSAC claimed for the first time that a whole series of new job titles represented the complainant and comparator groups upon which PSAC now wishes to rely. Those groups did not match the CR or GT groups set forth in the original Complaint and, as such, were not the subject of an investigation by the Commission or the independent expert the Commission hired to review the allegations contained in the Complaint. Nor had the Commission referred anything to the Tribunal which had been constructed in the way PSAC asserted its claim in its October 15, 2004 letter.
[17] In other words, CMCC says that on October 15, 2004, PSAC asserted what amounted to a brand new section 11 case which had not been the subject of an investigation by the Commission or the expert, and had not been part of the referral to the Tribunal. As such, the Tribunal had no jurisdiction to hear it. The Tribunal should have dismissed the section 11 aspect of the Complaint and granted CMCC’s motion. The Tribunal’s failure to do so was an error in law.
RESPONDENT PSAC’S SUBMISSIONS
[18] PSAC says that CMCC’s application for judicial review is premature. The interim procedural ruling should not be reviewed by this Court as the Tribunal has not had an opportunity to adjudicate the merits of the case at a full hearing.
[19] PSAC also says that the identification of occupational groups by PSAC following the referral of the Complaint to the Tribunal was simply the provision of further details regarding the nature of the Complaint, which did not alter the initial Complaint in any real or significant manner.
[20] PSAC points out that the precise wording of the Complaint is not determinative of what the Tribunal may be required to examine and assess. In the present case, reliance upon section 11 of the Act was known to CMCC from the outset and, accordingly, the steps taken by PSAC to specify occupational groups was simply the provision of further particulars with respect to the existing Complaint.
RESPONDENT COMMISSION’S SUBMISSIONS
[21] The Commission is not satisfied that this judicial review application satisfies the test for being premature. However, the Commission does take the position that this application should be dismissed as it is, in essence, a belated attempt to challenge the Commission’s decision to refer the Complaint to the Tribunal.
[22] The Tribunal has jurisdiction under the Act to conduct an inquiry into complaints referred to it by the Commission. The Tribunal does not have the authority to choose to accept complaints for inquiry. This is the role of the Commission.
[23] If CMCC had wished to argue that the Commission did not have the jurisdiction to refer the Complaint to the Tribunal, or that the referral of the Complaint to the Tribunal was otherwise improper, it should have commenced a judicial review application of the Commission’s decision to refer. CMCC failed to do this. As such, the Commission’s decision to refer the Complaint to the Tribunal cannot be the subject of review within these proceedings.
ISSUES
Is CMCC’s application to judicially review the Tribunal’s interlocutory ruling on the section 11 motion premature? What is the appropriate standard of review? Did the Tribunal commit a reviewable error when it dismissed CMCC’s motion to strike?
ANALYSIS
Is CMCC’s application to judicially review the Tribunal’s interlocutory ruling on the section 11 motion premature?
[24] Interlocutory rulings are not ordinarily open to judicial review. In Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 at para. 10 (C.A.), Justice Sexton stated as follows:
[...] As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal's proceeding should not be challenged until the tribunal's proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. [...]
[25] The general position regarding interlocutory rulings, as expressed by Justice Létourneau in Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333, was reiterated and confirmed by Justice Sexton in Zündel at paragraph 12:
…unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute.
[26] Special circumstances can arise, for example, where a tribunal’s jurisdiction is at issue or where the impugned decision is “finally dispositive” of a “substantive right” (see Bell Canada v. Canadian Telephone Employees Assn., [2000] F.C.J. No. 1094). Otherwise, an application to quash or vary an interlocutory decision will be considered premature.
[27] CMCC argues that PSAC’s October 15, 2004 letter amounted to an amendment to the Complaint, as opposed to further particulars, that substantially altered the scope and nature of the inquiry before the Tribunal. This had a significant effect on the rights of the parties. CMCC further argues that the Tribunal’s refusal to dismiss the section 11 aspects of the Complaint clearly involved an analysis of its own jurisdictional authority to entertain the Complaint at all. As such, CMCC asserts that special circumstances exist to warrant judicial review of the Tribunal’s interlocutory Decision.
[28] In Cook v. Onion Lake First Nation, [2002] C.H.R.D. No. 12, the Tribunal entertained and decided a jurisdictional argument of the kind put forward by CMCC in the present case:
…
11. The case law focuses on the facts of individual cases, rather than the law. It establishes that the word “complaint” must be interpreted broadly, in a manner that captures the full extent of the complainant's allegations. There is a point, however, where an amendment of a complaint can no longer be considered a "mere amendment" and becomes a substantially new complaint. [See Note 1 below] In such a situation, the Commission cannot be said to have requested an inquiry and the Tribunal has no jurisdiction to proceed. Note 1: As the words were used by Muldoon J. in Canada (A.G.) v. Canada (C.H.R.C.), infra, at page 99.
12. The Federal Court has dealt with the jurisdiction of the Commission to amend a complaint. Most recently, in Bell Canada v. C.E.P.U., [1998] F.C.J. No. 1609 (Q.L.), at paragraph 45, the Federal Court of Appeal stated that an investigator may have a duty to suggest that a complaint be amended to conform with the evidence.
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.
This was followed by the Trial Division in Tiwana v. Canada (C.H.R.C.), [2000] F.C.J. No. 1955 (F.C.T.D.), at paragraph 32, where the court allowed a complainant to amend a complaint of discrimination on the basis of age.
13. These cases deal with amendments during the course of an investigation, however. The situation changes once a complaint has been referred to the Tribunal. In I.M.P. Group Limited v. Dillman (1995), 24 C.H.R.R. D/529, for example, the Nova Scotia Court of Appeal criticized a Board of Inquiry for allowing an amendment that went beyond the facts of the original complaint. In paragraph 35, at page 332, the court stated as follows:
As counsel for the company says, it was not merely an extension, elaboration or clarification of the sexual harassment complaint already before the Board. To raise a new complaint at the hearing stage would circumvent the whole legislative process that is designed to provide for attempts at conciliation and settlement. This matter did not go through the preliminary stages of investigation, conciliation and referral by the Commission to an inquiry pursuant to s. 32(a) of the Act. The Board dealt with a matter which had never been referred to it.
The Commission would be the last to suggest that the Tribunal is entitled to enter into an inquiry without a referral from the Commission.
…
20. The rule regarding allegations of retaliation can probably be seen as an exception to the general practice regarding amendments. That practice appears to be that amendments will normally be allowed if they do not alter the substance of the complaint, as reflected in the material facts of the case. If the amendment prejudices the case for the respondent, on the other hand, it should not be allowed. The case law does not discuss how much prejudice is sufficient, but it must be real and significant. There must be “actual prejudice”. There may also be factors such as delay, which are implicitly prejudicial. This might include the loss of the investigation and conciliation processes.
…
22. This brings me to the present case. The first issue is whether the Tribunal has the jurisdiction to entertain the proposed amendment. The Respondent essentially argues that the amended complaint is based on allegations that were never considered by the Commission. The amendment accordingly introduces a new complaint, which was never referred to the Tribunal. The question in the case law is whether the amendment would alter the allegations of fact set out in the complaint. The simple answer appears to be yes.
23. The case put forward by the Complainant and Commission alleges that the decision as to who should be enrolled in the programme was tainted by some form of prejudice. Ms. Cook apparently feels that she was the victim of unfairness. The complaint relates to her treatment as an individual and states that she has been discriminated against personally. It does not question the design of the programme or the admission criteria.
24. The question whether the Life Skills Programme is inherently discriminatory is a separate issue. It was never part of the original complaint. The complaint and the particulars do not suggest that the programme’s admission criteria discriminate against applicants with alcoholism, in requiring that applicants be free of alcohol. Ms. Cook merely alleged that she was not allowed to enrol in the programme because she had hepatitis C. She did not question the requirement that the applicant “be drug and alcohol free for a minimum of six weeks”. In point of fact, Ms. Cook stated that she met this criteria.
25. The Respondent feels that it is now facing a new attack on a broader front, which calls the entire Life Skills Programme into question. This raises deep issues for Onion Lake, which requires that all employees refrain from the use of drugs and alcohol. The concern is that any attack on this aspect of the programme undermines one of the fundamental policies on which the reserve operates. This is a systemic issue that does not appear to have been canvassed in the investigation. It follows that the issue was never referred to the Tribunal and cannot be incorporated into the complaint. In my view, the Tribunal has no jurisdiction to deal with it.
[29] There are also some helpful words on the issue of amendments and jurisdiction from Justice Muldoon in Canada (A.G.) v. Canada (Canadian Human Rights Commission), [1991] F.C.J. No. 334 at p. 10:
Therefore, insofar as the report related to a matter, alleged sexual harassment, which was extraneous to the complaint - any complaint - upon which the investigator was required to make a report, the Commission had no statutory authority under subparagraph 44(3)(a)(i) to make the request of the President of the Human Rights Tribunal Panel to do anything whatever. Why? It is because the Tribunal might lawfully enquire into the complaint to which the report relates, all right, but only such a complaint, and not some extraneous complaint (even although its factual allegations are mentioned in the report) which complaint came into existence only after the report was completed. The complaint, all of whose circumstances the Commission regarded warranting an enquiry, in subparagraph (a)(i), is the original complaint to which the investigator's report relates. It would be otherwise of course if the statutory provision related to “any additional but subsequently formulated complaint based on allegations or facts roughly contemporaneous with those incorporated into the complaint to which the report relates”, for that indeed is what the sexual harassment complaint is. It is not a mere amendment like that of April 25, 1988. It cannot lawfully be invoked as a subject of a Tribunal's enquiry in contemplation of subparagraph 44(3) (a)(i) of the C.H.R.A.
[30] Clearly, then, at the Tribunal stage an amendment could alter the allegations set out in the Complaint to such a degree that it amounts to a new subject of inquiry that has not been referred to the Tribunal by the Commission. I agree with CMCC that the Tribunal’s Decision raises an important jurisdictional issue that should be dealt with at this stage. Consequently I do not believe this application is premature.
What is the appropriate standard of review?
[31] In Brown v. Royal Canadian Mounted Police, 2005 FC 1683, [2005] F.C.J. No. 2124, Justice Hansen stated the following, at paragraph 17, regarding the standard of review as it relates to decisions of the Tribunal:
I am in agreement with the conclusion reached by Justice Gibson in International Longshore & Warehouse Union (Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 that the standard of review of decisions of the Tribunal regarding questions of law is correctness and with respect to questions of mixed fact and law is reasonableness simpliciter. As the determinative issue raises a question of mixed fact and law, the decision will be reviewed on a standard of reasonableness.
[32] I agree with the PSAC’s submission that in the present matter the Tribunal’s Decision is one of mixed fact and law and that the standard of review is reasonableness simpliciter. The Tribunal made findings of fact with respect to the content of PSAC’s Complaint and then applied the appropriate legal tests to determine whether the information provided to CMCC was sufficient for it to know the case it must meet in the section 11 portion of the Complaint. The Tribunal applied the law to its findings of fact and determined that the additional information provided to CMCC with respect to the section 11 aspects constituted further particulars to the existing Complaint and that the Complaint was properly before the Tribunal for a full hearing on the merits. However, even if a correctness standard is applied, I believe the Tribunal Decision on this issue was correct for reasons that I will now explain.
3. Did the Tribunal commit a reviewable error when it dismissed CMCC’s motion to strike?
[33] The fundamental issue here is to decide, first of all, the nature and scope of the Complaint that was referred to the Tribunal by the Commission. The Complaint itself reads as follows:
ALLEGATION
The Canadian Museum of Civilization uses a new job evaluation plan which is flawed and results in the underpayment of female jobs in relation to male jobs of comparable value in contravention of sections 10 and 11 of The Canadian Human Rights Act.
PARTICULARS
In terms of both design and application, the respondent’s job evaluation plan differentiates adversely against predominantly-female jobs in comparison to predominantly-male jobs of equal value, by virtue of the absence of certain factors which are known to measure aspects of jobs which are typically female as well as the presence of factors which typically favour predominantly-male jobs.
For example, the measurement of Knowledge though the quantification of required levels of education and experience and the absence of any measure of the responsibility for information resources or of the exposure to psychological and emotional risks or hazards leads to systemic bias in the evaluation of predominantly-female jobs. Moreover, the Effort factor is biased in favour of predominantly-male jobs by virtue of its definition, several factors favour hierarchy, and most degree definitions are vague.
Prior to converting to the new job evaluation plan, employees were classified in a number of occupational groups, including CR and GT. These two groups are predominantly-female and –male jobs, respectively. Both jobs provide “support” services for more senior level jobs and are comparable in terms of the overall role which they are assigned within the organization.
Following conversion to the new job evaluation system the results favoured the predominantly-male GT, although the predominantly-female CR group was performing work of comparable value to the organization. The conversion results for each group are as follows:
Level
CR
GT
Wages
(maximum salary)
#
%
#
%
2
22
34.9
$28,530.23
3
32
50.8
1
2.4
$35,072.00
4
9
14.3
6
14.3
$37,737.82
5
7
16.7
$43,418.18
6
18
42.9
$49,111.11
7
8
19.0
$56,666.67
8
2
4.8
$66,880.70
While half of the CR group was converted to level 3, only 1 GT employee was converted to this level. All other GT employees were classified at levels 4 through 8, with fully 43% classified at Level 6.
The “male” bias illustrated in the post-conversion results of the new job evaluation plan used by the Canadian Museum of Civilization was confirmed by an evaluation of a random mix of predominantly-female – and –male jobs using a gender-neutral job evaluation plan jointly developed by the Public Service Alliance of Canada and Deloitte & Touche. This plan was used to rate 7 predominantly-female jobs matched against 7 predominantly-male jobs all representing a varied mix of administrative and technical work. Two predominantly-female and 2 predominantly-male jobs rated similarly under the job evaluation plan used by the Canadian Museum of Civilization were rated in favour of the predominantly-female jobs using the job evaluation plan developed jointly by the Public Service Alliance of Canada and Deloitte & Touche. In addition, 3 predominantly-male jobs rated higher than 3 predominantly-female jobs under the employer’s plan were rated either similarly or in favour of the predominantly-female jobs under the joint plan.
[34] It is clear to me that the Complaint is to the effect that the Plan is flawed in a way that contravenes both sections 10 and 11 of the Act. In particular, we are told that “in terms of both design and application, the respondent’s job evaluation plan differentiates adversely against predominantly-female jobs in comparison to predominantly-male jobs of equal value ….” The balance of the Complaint goes on to demonstrate, by way of example and sampling, that there is some justification for this basic premise. There is no indication that the examples and details provided are meant to be exhaustive of the ways in which the Plan is flawed and contravenes sections 10 and 11. The particulars are provided to justify the initiation of the investigative process into the ways in which the Plan differentiates in an adverse fashion against predominantly-female jobs in comparison to predominantly-male of equal character. CMCC did not allege that there was anything wrong with the Commission considering a complaint formulated in this way, even though it has repeatedly asked for more details on the section 11 aspects. The Complaint itself anticipates that more details will be provided because it merely seeks to justify its basic premise by way of example and sample.
[35] The Haignière Report studied whether the Plan tended to deprive women of employment under section 10 of the Act and recommended that a tribunal be appointed to inquire into the section 11 portion of the Complaint. But the Haignière Report did not amend or modify the Complaint. It merely provided the Commission with the justification it needed to refer the full Complaint to the Tribunal. Once again, CMCC did not, at this stage, seek to have the form of the Complaint or any decision of the Commission based in the Haignière Report judicially reviewed. It merely required more details about the section 11 aspects of the Complaint.
[36] The investigator’s report of September 15, 2003 identified the primary issue in the Complaint as “the existence of gender bias in the design and development of the respondent’s job evaluation system (section 10). As a result, predominantly-female occupational groups are paid less than predominantly-male occupational groups performing work of equal value (section 11.)” The investigator then came to the following conclusions and recommendations based upon the findings in the Haignière Report:
46. Based on the consultant’s findings and pursuant to section 10, a further inquiry by a Tribunal is required.
47. Depending upon Tribunal’s decision and pursuant to section 11, a wage gap analysis can be undertaken, following a job evaluation, to determine if any adjustments are required in the pay structure to eliminate pay inequities that may exist.
Recommendation
48. It is recommended, pursuant to section 44(3)(a) of the Canadian Human Rights Act, that the Commission request the appointment of a Human Rights Tribunal to inquire in to the complaint because,
· Having regard to all the circumstances of the complaint, an inquiry into the respondent’s job evaluation is warranted.
[37] So clearly what was anticipated at this stage was further inquiry by the Tribunal into the section 10 allegations and, depending upon the outcome of that process, a possible wage gap analysis under section 11. The whole matter was referred to the Tribunal on this basis. CMCC did not seek to judicially review the form of the Complaint, the decision to refer, or the process of inquiry recommended by the investigator. All CMCC required was more detail about the section 11 basis of the Complaint.
[38] It is true, of course, that the Complaint did not give CMCC the particulars it needed to deal fully with the general accusation that the Plan was flawed because it was in breach of both section 10 and section 11 of the Act. But those particulars have now been provided.
[39] CMCC says that, on a factual basis, what the Commission referred to the Tribunal was not what CMCC now finds itself having to address after the particulars were provided. Hence, the Tribunal has no jurisdiction to deal with matters that were not referred to it by the Commission.
[40] But it appears to me from the evidence adduced, and in light of the way this matter has progressed, that both sides have been clear from the beginning that they are dealing with a Plan that PSAC says is generally flawed because it is gender biased and breaches section 10 and 11 of the Act. The full particulars were not provided in the Complaint and CMCC has had difficulties obtaining the particulars it needs. But I don’t think it can be said that the Complaint itself was amended, or became a different Complaint, once the particulars contained in the October 15, 2004 letter from PSAC were provided. The provision of additional, elaborative details was contemplated by the initial Complaint (which merely provided an example to the Commission to justify investigation). The fact that changes in detail were expected is also confirmed by actions of all parties involved, including CMCC. In terms of the Dillman case, the way this matter has evolved over the years makes it clear to me that what PSAC provided in its October 15, 2004 letter were the comparator details that both sides knew would have to be provided before the Section 11 aspects of the Complaint (if the Tribunal should feel section 11 even comes into play) can be dealt with and, as such, this was merely an extension, elaboration and clarification of the basic gender-bias Complaint.
[41] Once the matter was placed in the hands of the Tribunal, a process was underway that would clarify the details of the positions taken by all parties involved. CMCC has been saying all along that PSAC’s approach to section 11 means that more detail is required on comparator groups. The Tribunal agreed and made sure that PSAC provided the relevant information.
[42] CMCC’s actions throughout this process suggest that it knows the Complaint has not changed, but that it is entitled to receive the information required by Guidelines 12 and 13 before it is called upon to fully answer the Complaint. It has now been given that information.
[43] As part of the present application, CMCC is now insisting upon a degree of formality in the framing of the Complaint that is not required by the Act, the prevailing jurisprudence, or the way the Commission and the Tribunal have set up the inquiry process in this case. What is more, CMCC has not attacked the way this matter has been referred to the Tribunal and the two-step approach referred to in the investigator’s report. That approach anticipates that any analysis under section 11 is dependant upon the outcome of the section 10 findings.
[44] CMCC has taken the Court to those provisions of the Act and the Guidelines that deal with comparator groups and has cited relevant case law. In relation to section 13 of the Guidelines and its relationship to section 11 of the Act, CMCC highlights the following from Public Service Alliance Commission v. Canada (Treasury Board), [1998] C.H.R.D. No. 6 at para. 267:
We find in a s. 11 complaint the discrimination claimed is made on the basis of gender. Therefore to be a valid complaint the complainant group and the comparator group must meet the qualifications set down in s. 13 of the Guidelines. Section 13 of the Guidelines lays out the requirement that the complainant group must be predominantly of one sex and the group that is identified in the complaint as the comparator group must be predominantly of the opposite sex. This is the essential element which must be achieved in order for the complaint to be viewed as valid and worthy of investigation by the Commission.
[45] But CMCC’s argument in the present application is not that there was anything wrong with the Commission’s decision to investigate the Complaint or its referral decision, or with the form of the Complaint when those decisions were made; the argument is that the information on comparators provided by PSAC on October 15, 2004 changed the nature of the Complaint and introduced an amendment that had not been referred to the Tribunal by the Commission. For the reasons stated above, I do not regard the provision of information by PSAC on the ways in which the Plan breaches section 11 of the Act as an amendment to the basic Complaint. CMCC did not challenge the referral decision, so it must be taken to have accepted that the Complaint qualified under section 11 and Guideline 12 and 13 at the time of referral. And the Complaint, from the way it is drafted and the way the parties have proceeded, obviously anticipated that the full details on section 11 would come later.
[46] In Canada (A.G.) v. Canada (Canadian Human Rights Commission) Justice Muldoon was dealing with a situation where the complainant filed a complaint alleging racial discrimination. Later a sexual harassment and sex discrimination allegation was added. He found that the Commission failed to consider that the sexual discrimination part of the complaint was new and different from the original complaint that alleged racial discrimination. Hence, that aspect of the Commission’s decision referring the sexual discrimination allegation to a tribunal was quashed.
[47] In my view, the facts in the present application present a very different situation. In this case, the general Complaint has not changed, but the Guideline 12 and 13 information has been elaborated and clarified. The full details have been provided and CMCC knows the case it has to meet in relation to the flawed Plan that PSAC alleges is in breach of section 10 and 11 of the Act.
[48] Nor does CMCC say that the new comparator information provided by PSAC render the Complaint invalid as being in non-compliance with the Act and the Guidelines. It merely says that the additional comparator information changes the Complaint so that it is not the same Complaint referred to the Tribunal by the Commission.
[49] But, as I have already set out, it was obvious in the Complaint itself that PSAC had not provided the full details because it only gave examples sufficient enough to begin the investigative process. CMCC did not seek judicial review of the Complaint as being in breach of Guideline 13, and it did not attack the referral decision that was made on the basis of the Complaint, even though further detail was obviously needed before the Complaint could be dealt with. It is too late to attack the process now that the details CMCC has been asking for all along have been provided. CMCC now knows the details of the case it has to meet. But it has always known the Complaint, which was that the Plan was flawed and breached section 10 and 11 of the Act because in terms of both design and application the Plan differentiates adversely against predominantly female jobs in comparison to predominantly male jobs of equal value by virtue of the absence of certain factors which are known to measure aspects of jobs which are typically female as well as the presence of factors which typically favour predominantly male jobs.
[50] I do not believe that the additional information provided by PSAC changed the Complaint or amounted to an amendment that took the Complaint outside the scope of the referral. The Complaint began as a gender bias allegation aimed at the Plan and it remains a gender bias allegation aimed at the Plan. Nor do I see how CMCC has been prejudiced in any way by this process which it obviously tolerated and approved over the years during which it sought the further elaboration and clarification on the section 11 aspects of the Complaint.
[51] It follows from what I have said that I do not regard the Tribunal as having committed a reviewable error in its Decision.
[52] This conclusion is supported, I believe, by the reasoning of the Tribunal in Gaucher v. Canada (Armed Forces) 2005 CHRT 1:
[…]It is inevitable that new facts and circumstances will often come to light in the course of the investigation. It follows that complaints are open to refinement. As long as the substance of the original complaint is respected, I do not see why the Complainant and the Commission should not be allowed to clarify and elaborate upon the initial allegations before the matter goes to a hearing.
I think that human rights tribunals have adopted a liberal approach to amendments. This is in keeping with the Canadian Human Rights Act, which is remedial legislation. It should not be interpreted in a narrow or technical manner. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.J. No. 75 (QL), at para. 50, for example, the Supreme Court approved of an amendment to a complaint that “simply brought the complaint into conformity with the proceedings”. I think that I am presented with a similar situation. It is merely a matter of ensuring that the form of the complaint accurately reflects the substance of the allegations that were referred to the Tribunal.
[53] In the present application, I believe that CMCC is seeking to have the section 11 aspects of the Complaint removed by recourse to an unnecessarily formal approach to the Act and the Guidelines; an approach that