Public Service Alliance of Canada v. Canada Post Corporation

Public Service Alliance of Canada v. Canada Post Corporation
Court (s) Database
Federal Court of Appeal Decisions
Date
2010-02-22
Neutral citation
2010 FCA 56
File numbers
A-129-08, A-130-08, A-139-08
Notes
Une correction fut apportée en juin 2011
Reported Decision
Decision Content
Date: 20100222
Dockets: A-129-08
A-130-08
A-139-08
Citation: 2010 FCA 56
CORAM: SEXTON J.A.
EVANS J.A.
RYER J.A.
Dockets A-129-08 and A-130-08
BETWEEN:
Public Service Alliance of Canada
Appellant
and
Canada Post Corporation and
Canadian Human Rights Commission
Respondents
Docket A-139-08
BETWEEN:
Canadian Human Rights Commission
Appellant
and
Canada Post Corporation
Public Service Alliance of Canada
Respondents
Heard at Ottawa, Ontario, on November 3, 2009.
Judgment delivered at Ottawa, Ontario, on February 22, 2010.
REASONS FOR JUDGMENT BY: SEXTON J.A. and RYER J.A.
DISSENTING REASONS BY: EVANS J.A.
Date: 20100222
Docket: A-129-08
A-130-08
A-139-08
Citation: 2010 FCA 56
CORAM: SEXTON J.A.
EVANS J.A.
RYER J.A.
Dockets A-130-08 and A-129-08
BETWEEN:
Public Service Alliance of Canada
Appellant
and
Canada Post Corporation and Canadian Human Rights
Commission
Respondents
Docket A-139-08
BETWEEN:
Canadian Human Rights Commission
Appellant
and
Canada Post Corporation
Public Service Alliance of Canada
Respondents
REASONS FOR JUDGMENT
SEXTON J.A. AND RYER J.A.
I. INTRODUCTION [1] For convenience, these reasons are organized under the following headings:
Paragraph
I. INTRODUCTION .............................................................................................................. 1
II. PROCEDURAL HISTORY ............................................................................................ 11
III. RELEVANT STATUTORY PROVISIONS ................................................................. 14
IV. BACKGROUND ............................................................................................................ 15
A. INVESTIGATION OF THE COMPLAINT ...................................................................... 15
B. THE TRIBUNAL INQUIRY .............................................................................................. 25
V. DECISIONS BELOW ..................................................................................................... 32
A. CANADIAN HUMAN RIGHTS TRIBUNAL ................................................................... 32
(a) Element One – the comparator group .................................................................................. 35
(b) Element Two – employment in the same establishment ......................................................... 39
(c) Element Three –work of equal value ................................................................................... 41
(d) Element Four – wage gap ................................................................................................... 60
(e) Remedy ............................................................................................................................. 64
B. FEDERAL COURT ........................................................................................................... 68
(a) Applicability of 1986 Guidelines .......................................................................................... 69
(b) Standard of Proof .............................................................................................................. 70
(c) Comparator Group ............................................................................................................. 78
(d) Presumption ....................................................................................................................... 79
(e) Damages ............................................................................................................................ 80
(f) Disposition .......................................................................................................................... 81
VI. ISSUES ........................................................................................................................... 82
VII. ANALYSIS .................................................................................................................... 84
A. THE ROLE OF THE COURT IN THIS APPEAL ............................................................. 84
B. WHETHER THE TRIBUNAL ERRED BY FAILING TO MAKE A
NECESSARY FINDING .................................................................................................. 85
(a) Standard of review ............................................................................................................ 87
(b) The general approach to analyzing elements of a case of wage discrimination ....................... 88
(c) The Tribunal’s approach to finding elements of a case of wage discrimination ....................... 98
(i) Element One – the comparator group............................................................................. 99
(ii) Element Two – employment in the same establishment ................................................ 101
(iii) Element Three – work of equal value ........................................................................ 103
C. WHETHER THE TRIBUNAL APPLIED THE INCORRECT
STANDARD OF PROOF ............................................................................................... 128
(a) Standard of Review........................................................................................................... 130
(b) Did the Tribunal apply the Correct Standard of Proof......................................................... 131
VIII. CONCLUSION AND DISPOSITION ..................................................................... 142
[2] The Public Service Alliance of Canada (“PSAC”) filed a complaint (the “Complaint”) against Canada Post Corporation (“CPC”) in 1983, alleging discrimination by CPC against “employees in the female-dominated Clerical and Regulatory Group” by paying “employees in the male-dominated Postal Operations Group” more than the Clerical and Regulatory Group employees for work of equal value, contrary to section 11 of the Canadian Human Rights Act.
[3] In 2005, the Canadian Human Rights Tribunal (the “Tribunal”) finally released a decision upholding the Complaint.
[4] In 2008, the Federal Court allowed an application for judicial review brought by CPC and directed that the Complaint be dismissed.
[5] In order for the Complaint to be upheld, the Tribunal itself determined, and it was not disputed, that among other things, it was required to make findings that the four elements of a case of wage discrimination had been established. The Tribunal described all four of these elements in its reasons. The third element is a finding that a comparison of the work of the two groups reveals that they were performing work of equal value. Again, it is not disputed that PSAC must establish this on a balance of probabilities.
[6] There are three steps that the Tribunal is required to take when determining whether each necessary element is satisfied. In the first step, the Tribunal must determine whether evidence relating to that element is admissible. In the second step, the Tribunal must determine the weight that should be given to that admissible evidence. This turns on the reliability of the admissible evidence. Finally, in the third step, the Tribunal must determine if that admissible evidence, taking into account its reliability, establishes the element on the appropriate standard of proof. The Tribunal erred in this case by failing to determine if the admissible evidence, taking into account its reliability, established the third element on a balance of probabilities. The Tribunal prematurely concluded its analysis of the third element at the second step after considering admissibility and weight.
[7] Instead of considering whether the third element was satisfied on a balance of probabilities, the Tribunal purported to apply the balance of probabilities standard in deciding that the job information pertaining to the work being compared, an essential component of the work of equal value requirement, was “reasonably reliable, albeit at the lower reasonably reliable sub-band level.” The Tribunal equated this to a 50% level of certainty. Even if the language used by the Tribunal could somehow be construed as being a finding of work of equal value, which we do not accept, the fact that the Tribunal used a 50% level of certainty means that whatever their conclusion was, it was something less than a balance of probabilities, which requires proof in excess of 50%.
[8] This is not a case about fundamental jurisprudential pay equity concepts. Rather it is a case in which a tribunal has made a reviewable error by awarding damages without establishing liability. Specifically, liability was not established because the Tribunal, after stipulating that four elements were required to find a case of wage discrimination, only proceeded to find three of those elements.
[9] We further note that the record and reasons of the Tribunal in this case are not adequate to permit an appellate court to properly resolve fundamental jurisprudential pay equity concepts. In addition to not making a finding on the third element, the Tribunal also erred by failing to define what work of equal value is and how the concept applied in this case. Such an explanation is necessary to arrive at a finding of liability and damages. An appellate court should not be put in the position of determining the definition of work of equal value and its application to the present case when the decision makers below have not addressed the matter. Hence, the record in this case does not lend itself to the making of authoritative statements on these concepts.
[10] Since the Tribunal has failed to make a finding on the third element of a case of wage discrimination and because both the Tribunal and this Court believe such a finding to be absolutely necessary in order to uphold the complaint, the appeals should be dismissed.
II. PROCEDURAL HISTORY [11] The three appeals (A-129-08, A-130-08 and A-139-08) before the Court relate to two applications for judicial review of a decision (the “Tribunal Decision”, 2005 CHRT 39) of the Tribunal finding that the respondent, CPC, had engaged in a discriminatory practice, as defined by section 11 of the Canadian Human Rights Act R.S.C. 1985, c. H-6 (the “Act”), by paying employees in the male dominated Postal Operations (“PO”) Group more than employees in the female dominated Clerical and Regulatory (“CR”) Group. The two applications for judicial review were heard together by Justice Kelen (“the Applications Judge”) in the court below (2008 FC 223).
[12] In A-129-08 and A-139-08, PSAC and the Canadian Human Rights Commission (“CHRC”) appeal the Applications Judge’s decision (the “Federal Court Decision”) that the Tribunal Decision be set aside. In A-130-08, PSAC appeals the Applications Judge’s dismissal of PSAC’s application for judicial review of the portion of the Tribunal Decision that reduced the damages awarded against CPC by 50 percent.
[13] The three appeals were heard together by this Court. These reasons will apply to each of the appeals. A copy of these reasons will be filed as reasons for judgment in the Court file for each of the appeals.
III. RELEVANT STATUTORY PROVISIONS [14] The statutory provisions that are relevant to the appeals are section 11 and subsections 27(2), 49(1) and 50(3) of the Act, paragraphs 18.1(3)(b) and 52(b) of the Federal Courts Act, R.S.C. 1985, c. F-7, sections 12 to 15 of the Equal Wages Guidelines, 1986, S.O.R./86-1082 (the “1986 Guidelines”). These provisions are reproduced in the appendix to these reasons.
IV. BACKGROUND A. Investigation of the Complaint
[15] On August 24, 1983, PSAC filed a Complaint with the CHRC which reads as follows:
It is alleged that the Canada Post Corporation as Employer, has violated Section 11 of the Canadian Human Rights Act by paying employees in the male-dominated Postal Operations Group more than employees in the female-dominated Clerical and Regulatory Group for work of equal value. The wage rates of the male-dominated Postal Operations Group exceed those of the female-dominated Clerical and Regulatory Group by as much as 58.9 percent for work of equal value. It is alleged that sex composition of the two groups has resulted in wage discrimination against the Clerical and Regulatory Group, contrary to Section 11.
Corrective Action:
1. That all employees within the CR Group employed by Canada Post Corporation receive wages, as defined in paragraph 11(6) [now section 11(7)] of the Canadian Human Rights Act, equal to the wages of employees within the PO Group performing work of equal value.
2. That this corrective action be made retroactive to October 16, 1981.
[16] The CR Group is made up of clerical and regulatory workers. Typical position titles for workers in the CR Group include benefits clerk, accounting clerk and accounts payable clerk. The PO Group consists of workers who sort and deliver mail. Typical position titles for workers in the PO Group include letter carrier, mail handler and manual sortation clerk.
[17] In essence, the Complaint alleges that the employees in the male-dominated PO Group were paid higher wages than the employees in the female-dominated CR Group who were performing work of equal value to that which was performed by PO Group employees. The determination of the equivalence of the value of the work that was performed by both groups requires an assessment of the value of that work having regard to the composite of skill, effort, responsibility and working conditions applicable to that work. Job evaluation is the field of expertise that deals with these types of assessments, which are called evaluations. The process of making these assessments is known as evaluating. Job evaluations are the product of a process in which a methodology, often called a plan, is applied to information about the content of jobs being evaluated.
[18] Prior to the filing of the Complaint, PSAC and CPC had been working together with respect to the development of a job evaluation system (“System One”) that was intended to permit an evaluation of the jobs of all the CPC employees represented by PSAC. Throughout 1984 and part of 1985, CHRC awaited the outcome of those efforts in the hope that System One could be of use with respect to the Complaint.
[19] Because of delays with respect to the development of System One, beginning in October 1985 the CHRC pursued its investigation of the Complaint more actively. To this end, the CHRC developed a questionnaire (the “Job Fact Sheet”) to gather data from CR Group and PO Group employees about, the skill, effort, responsibility and working conditions applicable to their jobs.
[20] In the summer of 1986, the Job Fact Sheets were given to somewhere between 246 and 355 CR Group employees. The CHRC received 194 completed and usable Job Fact Sheets. To clarify responses to the Job Fact Sheets, the CHRC developed an interview guide (the “Interview Guide”). Follow-up interviews with the Job Fact Sheet respondents were completed by December 1986 in accordance with the Interview Guide. From April to September 1987, the CHRC evaluated the sample of the 194 CR Group employees using System One based on the information in the Job Fact Sheets and the follow-up interviews, notwithstanding that it had not been completed and PSAC advised against its use. Ultimately, these evaluations were not used in the final investigative process.
[21] Contrary to its original intention, the CHRC did not use the Job Fact Sheets and the Interview Guide to collect data from the PO Group employees similar to that obtained from the CR Group employees. This was partially because CPC questioned the CHRC’s proposed sample size and refused to permit PO Group employees to complete the Job Fact Sheets during normal working hours. Additionally, the PO Group employees were represented by a union other than PSAC, the Canadian Union of Postal Workers (“CUPW”), and CUPW refused the CHRC’s request that the PO Group employees fill-out the Job Fact Sheets outside normal working hours.
[22] To compensate for the lack of actual information with respect to the work performed by the PO Group employees, from July to October 1991, the CHRC created 10 generic job specifications for PO Group employees, using information provided by CPC in 1990 and 1991. While the CR Group sample included supervisors at the CR-5 level, the generic job specifications did not include the PO supervisors sub-group (“PO-SUP”) because the CHRC decided that it would be too onerous to fit the wide range of tasks performed by PO-SUP employees into the generic job specifications.
[23] In July 1991, using the 194 CR Group responses, the CR Group interviews and the PO Group generic job specifications, the CHRC began an evaluation using an off-the-shelf plan, the XYZ Hay Plan, for evaluating jobs for the purpose of a pay equity analysis. This plan was selected, at least in part, because System One could only be used to evaluate positions held by employees represented by PSAC, and a number of employees in the PO Group were represented by CUPW. As a result, the evaluation generated using this plan did not rely upon the earlier evaluation of the CHRC that utilized System One. In order to make the evaluation more manageable, the CHRC reduced the CR Group sample to 93 employees in September 1991.
[24] The CHRC’s evaluation (the “CHRC Evaluation”) was completed in November 1991. This evaluation formed the basis of the CHRC’s Final Investigation Report (the “Report”), dated January 24, 1992, which concluded that there was a wage difference when comparing the wages and job evaluations of the CR and PO Groups, as alleged in the Complaint. After considering the Report, the Commissioners of the CHRC referred the Complaint to the Tribunal for an inquiry on March 16, 1992, pursuant to subsection 49(1) of the Act.
B. The Tribunal Inquiry
[25] The Tribunal panel was struck on May 11, 1992 and hearings commenced on November 25, 1992. Written and oral submissions were completed on August 27, 2003. The Chair of the Tribunal retired in June 2004. Additional written submissions were made in August 2004. The Tribunal Decision was released on October 7, 2005, over two years after the conclusion of the hearing.
[26] After the Tribunal had begun hearing evidence, it became apparent that there were serious deficiencies in the CHRC Evaluation. As a result, PSAC engaged three professional job evaluators (the “Professional Team”), Dr. Bernard Ingster, Dr. Martin G. Wolf and Ms. Judith Davidson-Palmer. Dr. Wolf was the spokesperson of the group and the Tribunal qualified him as an expert in Hay-based job evaluation and Hay-based compensation. PSAC asked the Professional Team to review of the CHRC Evaluation and to undertake independent evaluations. Ultimately, both the CHRC and PSAC relied exclusively on the Professional Team’s evaluations to substantiate the Complaint.
[27] In May and June of 1993, the Professional Team conducted its initial evaluation (the “Phase One evaluation”). To conduct this evaluation, the Professional Team supplemented the information used in the CHRC Evaluation with information from its own interviews with CR Group employees that it conducted in May 1993. Where a respondent could not be reached, the Professional Team tried to interview a stand-in. It is not clear how many of the Professional Team’s interviews were conducted with stand-ins, but the Tribunal found that of a total of 93 possible telephone interviews, 59 were completed.
[28] In September 1994, the Professional Team attempted to conduct interviews for 97 of the CR Group positions that were omitted from the CHRC Evaluation and 55 of these interviews were completed. The information obtained in these interviews, combined with information gathered by the CHRC, was used by the Professional Team in November and December 1994 to evaluate the 97 CR Group positions that were omitted from the CHRC Evaluation. This second evaluation was called the Phase Two evaluation.
[29] Based on its Phase One and Phase Two evaluations, members of the Professional Team prepared two reports. The first report (the “Professional Value Report”), dated January 1995, was prepared by Dr. Wolf in consultation with Dr. Ingster and Ms. Davidson-Palmer. The Professional Value Report concludes at page 6:
Based on the findings of the total evaluation process in Phases One and Two, the consultants concluded that the rigorous application of the Hay Guide Chart-Profile Method of job evaluation produced substantial evidence that 122 of the 194 incumbents (62.9%) holding CR positions included in this study were in jobs with content greater than one or more of the ten PO jobs covered by these analyses.
In light of further information provided by CPC, the Professional Team later revised the 62.9% figure to 34.2%.
[30] The second report (the “Professional Wage Gap Report”), dated February 1995, was prepared by Dr. Wolf alone. The Professional Wage Gap Report calculates the relationships between the hourly rates of pay of PO Group jobs and the value of PO Group jobs, as determined by the Professional Team’s evaluations for 1983, 1989 and 1995, using several different approaches. The Professional Wage Gap Report concludes that, under any of its approaches, there is “a significant gap between the wages paid to CR’s and to PO’s performing work of equal value.”
[31] To support its position that the methods of the CHRC and the Professional Team were insufficient to substantiate the Complaint, CPC called three expert witnesses, Ms. Nadine Winter, Mr. Norman Willis and Mr. P.G. Wallace. The three experts’ critiques of the Professional Team’s method highlighted the failure of the Professional Team to follow the industry standard application of the Hay Method and the inapplicability of the Hay Method to clerical and blue collar positions.
V. Decisions Below A. Canadian Human Rights Tribunal
[32] In its reasons, the Tribunal addressed the following four fundamental issues:
(a) Does the ability of the CHRC to issue Equal Wage Guidelines that are binding on the Tribunal create a reasonable apprehension of bias?
(b) Can the 1986 Guidelines be applied to the Complaint, even though it was filed in 1983?
(c) Can factors other than those identified in the 1986 Guidelines be used to rebut the presumption that when men and women are paid different wages for work of equal value, that difference is based on sex?
(d) Has the complainant established a prima facie case of discrimination under section 11 of the Act on a balance of probabilities?
[33] In view of our disposition of this appeal, it will only be necessary to consider the Tribunal’s analysis with respect to the last issue.
[34] In paragraph 254 of its reasons, the Tribunal determined that each element of section 11 of the Act had to be substantiated on a balance of probabilities in order to substantiate the Complaint. In assessing the value of the work that is being compared, the Tribunal found, at paragraph 255 of its reasons, that the criterion in subsection 11(2) of the Act—the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed—was required to be used. The Tribunal went on to state, at paragraph 256 of its reasons, that discrimination based on sex will be presumed when a difference in wages has been found to exist between male and female employees, employed in the same establishment, performing work of equal value. At paragraph 257 of its reasons, the Tribunal set forth its determination of the four elements that were required to be proven, on a balance of probabilities, to establish a prima facie case of discrimination as alleged in the complaint:
(1) The complainant occupational group is predominantly of one sex and the comparator occupational group is predominantly of the other sex. In this Complaint, that means the complainant CR's must be predominantly female and the comparator PO's must be predominantly male.
(2) The female-dominated occupational group and the male-dominated occupational group being compared are composed of employees who are employed in the same establishment.
(3) The value of the work being compared between the two occupational groups has been assessed reliably on the basis of the composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed. The resulting assessment establishes that the work being compared is of equal value.
(4) A comparison made of the wages being paid to the employees of the two occupational groups for work of equal value demonstrates that there is a difference in wages between the two, the predominantly female occupational group being paid a lesser wage than the predominantly male occupational group. This wage difference is commonly called a “wage gap”.
In these reasons, these four elements are referred to as “element one”, “element two”, “element three” and “element four” respectively.
(a) Element One – the comparator group
[35] Relying on sections 12 and 13 of the 1986 Guidelines, the Tribunal held that the PO Group was a male dominated occupational group and the CR Group was a female dominated occupational group. The Tribunal found that in 1983, just over 80 percent of the 2,316 employees in the CR Group were female. At the same time, just over 75 percent of the 50,912 employees in the PO group were male. In 1992, the time of the referral of the Complaint to the Tribunal, the CR Group was over 83 percent female and the PO Group was over 71 percent male.
[36] CPC challenged the selection of the PO Group as a comparator on the grounds that the PO Group employees should not be viewed as a single group. They opposed the use of a comparator group hand-picked by PSAC and featuring the highest paid group of women working for CPC. Instead, CPC suggested that the PO-4 level of the PO Group should be used as the comparator since it was the most representative of the PO Group. Since the PO-4 level was 53 percent male and 47 percent female in 1983, it was not male dominated under the 1986 Guidelines and hence CPC argued that the first element of the prima facie case of discrimination was not established. Furthermore, CPC argued that PSAC selected the PO Group as a comparator because it was highly paid and that this was inappropriate “cherry picking”.
[37] The Tribunal rejected the argument that the PO Group should not be viewed as a single group, because the federal government job classification inherited by CPC from the Post Office Department of the Government of Canada is important in the designation of an “occupational group” under the 1986 Guidelines. The Tribunal also rejected CPC’s suggestion that the complainant was “cherry picking” the comparator group. It noted that the PO Group represented approximately 80 percent of the CPC workforce and that by virtue of its size, its selection therefore could not have constituted “cherry picking”. Additionally, the only other possibilities, the General Labour and Trades and General Services Groups, represented only a small percentage of CPC employees, and the Tribunal found there was no evidence that their work was at all similar to that performed by employees in the CR Group.
[38] At paragraph 283 of the Tribunal Decision, the Tribunal stated its conclusion with respect to this element of subsection 11(1) of the Act, as follows:
Accordingly, the Tribunal finds that the complainant, a predominantly female occupational group, and the comparator, a predominantly male occupation group, are appropriately designated under section 11 of the Act and the 1986 Guidelines as representative groups for comparison of work generally performed by women and work generally performed by men. Therefore, the first element necessary to the establishment of a prima facie case under section 11 of the Act has been met. [Emphasis added.]
(b) Element Two – employment in the same establishment
[39] The Tribunal next considered whether the CR and PO Groups were both employed in the same establishment and in particular, whether a geographical or functional definition of establishment was applicable. In the Tribunal’s view, employees are in the same geographical establishment where they work in the same building, municipality or district. In contrast, employees are in the same functional establishment where they are subject to a common set of personnel and wage policies. Relying on this Court’s decision in Canada (Canadian Human Rights Commission) v. Canadian Airlines International Ltd., 2004 FCA 113, 238 D.L.R. (4th) 255, the Tribunal eschewed a geographical definition of establishment and adopted a functional one.
[40] The Tribunal then determined that the evidence before it demonstrated that the CPC was a well integrated business with considerable corporate level policy direction, leading it to reach its conclusion with respect to this element. Specifically, at paragraphs 353 and 354 respectively of its reasons, the Tribunal stated:
Therefore, the Tribunal finds that all employees of Canada Post have been, as applicable, subject to the various common corporate policy directives issued by the Corporation, including those respecting personnel and wage policies. As a result, the Tribunal finds that, for the purposes of section 11 of the Act, the employee groups representing the complainant and the comparator are employed in the same establishment.
Accordingly, the second element necessary to the establishment of a prima facie case under section 11 of the Act has been met. [Emphasis added.]
(c) Element Three – work of equal value
[41] The Tribunal framed the question with respect to this element as whether the comparison of the work of the Complainant group and the Comparator group establish that the work being compared is equal in value. Further, the Tribunal stated, at paragraph 355 of its reasons:
… To be able to come to a reasonable conclusion concerning the value of the work performed by the complainant and the comparator occupational groups, the evaluation process as a whole must be reliable, on a balance of probabilities.
[42] The Tribunal accepted the importance of undertaking job evaluations with reliable job information and with a reliable job evaluation plan. At paragraph 358 of its reasons, the Tribunal reproduced a portion of a booklet, entitled “Implementing Pay Equity in the Federal Jurisdiction”, that was put into evidence by the CHRC. The Tribunal accepted the booklet as a general guide with respect to the collection and processing of information that should, given an acceptable job evaluation plan and competent evaluators, result in the determination of reliable values of work being assessed and compared. The first sentence of the booklet that was reproduced by the Tribunal, in paragraph 358 of its reasons, reads as follows:
Job evaluation plans are the key to determining what constitutes “work of equal value”.
Later, the following sentence appears:
Because pay equity is premised on the assumption that the worth of different positions across an organization should be compared, use of a single plan to evaluate all jobs is essential.
[43] The Tribunal also noted that the booklet was not developed for use in a litigious context.
[44] The Tribunal then specified, at paragraph 362 of its reasons, the issues that it intended to address with respect to this element of the requirements of subsection 11(1) of the Act:
Consequently, the issues which will be addressed are as follows:
1. What job evaluation system, or plan, was used to undertake the evaluation of the CR and PO jobs/positions, and how reliable was it?
2. What process was used and how reliable was it in analyzing the collected job data/information for purposes of assigning values to the CR and PO jobs/positions considered?
3. What job data/information was collected, and from what sources, and how reliable was it?
4. What were the resulting values attributed to the various CR and PO jobs/positions, and how reliable were they?
[45] The Tribunal turned its mind to the basis upon which it was required to approach the resolution of these issues, stating, at paragraph 410 of its reasons, that there is support for “a flexible case-by-case approach to the determination of how the concept of equal pay for work of equal value is to be effected”.
[46] At paragraph 411 of its reasons, the Tribunal quoted from the decision of Justice Hugessen in Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789, [1996] F.C.J. No. 842 (C.A), which places the burden of proof in pay equity disputes at the ordinary civil burden of a balance of probabilities. At paragraph 412, the Tribunal framed the issue before it:
These rulings support a call for a standard of reasonableness, there being no such thing as absolute reliability. The application of such a standard will depend very much on the context of the situation under examination. The issue is, then, given all the circumstances of the case before this Tribunal, is it more likely than not that the job information, from its various sources, the evaluation system and the process employed, and the resulting evaluations are, despite any weaknesses, sufficiently adequate to enable a fair and reasonable conclusion to be reached, as to whether or not, under section 11 of the Act, there were differences in wages for work of equal value, between the complainant and comparator employees concerned?
[47] In this paragraph, which is in the portion of the Tribunal’s reasons dealing with the question of whether the work being compared is equal in value, the Tribunal frames the issue as whether four things, namely, the job information, the evaluation system, the process employed and the resulting valuations are sufficiently adequate to permit a conclusion to be reached with respect to whether or not there are differences in wages for work of equal value. In particular, the Tribunal focuses on whether these four things are reasonably reliable.
[48] At paragraph 555 of its reasons, the Tribunal reaffirms its focus on “reasonable reliability”, stating:
Each of the elements necessary in testing reasonable reliability should be examined. In other words, the job evaluation system chosen should be reasonably reliable, the process and methodology used in evaluating the relevant jobs/positions should be reasonably reliable, and the job Information and its sources should be reasonably reliable. The findings of the Tribunal should be based on the civil standard of a balance of probabilities.
It is of note that the Tribunal did not refer to the fourth item that it referred to in paragraph 412 of its reasons, namely the “resulting evaluations”.
[49] The Tribunal went on to determine that reasonable reliability was present on a balance of probabilities.
[50] With respect to the job evaluation system and the process, the Tribunal, at paragraphs 571 and 593 respectively, stated:
Therefore, the Tribunal finds that, on a balance of probabilities, the Hay Plan, whether using the factor comparison method or other approaches, is, in the hands of competent evaluators as were the members of the Professional Team, a suitable overall job evaluation scheme which will address the issues of this “pay equity” Complaint in a reasonably reliable manner.
Therefore, the Tribunal finds that it is more likely than not that the evaluation process which the Professional Team used in its work was reasonably reliable.
[51] The Tribunal acknowledged that the determination of reasonable reliability with respect to the matter of job information was a daunting task and in paragraph 673, framed the question as follows:
… But, given the somewhat painful and prolonged circumstances of the case before this Tribunal, was the job information “good enough” on a balance of probabilities, to generate reasonably reliable job/position values that, in turn, could be used to demonstrate whether there was a wage gap?
[52] To assist in its determination of whether the job information used by the Professional Team was reasonably reliable, at paragraph 679 of its reasons, the Tribunal referred to a passage from S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law Book Inc., 1991) at 13-2:
In Anglo-Canadian law ... the courts have consistently held that if the plaintiff establishes that a loss has probably been suffered, the difficulty of determining the amount of it can never excuse the wrongdoer from paying damages. If the amount is difficult to estimate, the tribunal must simply do its best on the material available, though of course if the plaintiff has not adduced evidence that might have been expected to be adduced if the claim were sound, the omission will tell against the plaintiff. In Ratcliffe v. Evans, Bower L.J. said:
As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.
[53] Inspired by this idea of making the most of the evidence before the decision maker, the Tribunal arrived at a “spectrum” of reasonable reliability, with one end of the spectrum being very reliable and the other end being minimally reliable. Using this spectrum, at paragraph 683 of its reasons, the Tribunal asked “while the job information may not meet the degree of reliability that should normally be sought for a ‘pay equity’ situation, is it ‘adequate’…for this situation?” The Tribunal then analyzed the information before it and concluded at paragraph 689:
The Tribunal must confess that navigating the job information through the straits of “reasonable reliability” has not been a relaxing passage. Yet balancing the evidence presented by all parties and expert witnesses, and under the unique circumstances of this case in the realm of proscribed discrimination human rights legislation . . . the job information, in the hands of the Professional Team, was more likely than not, ‘reasonably reliable,’ or ‘adequate’ as that Team described it, despite certain imperfections.
[54] Though it already appeared to have ruled that the claimants had met the burden of establishing reliability, the Tribunal then further elaborated on the meaning of “reasonable reliability”. At paragraph 693 of its reasons, it defined “reasonable reliability” as “information that is consistently, moderately dependable or in which moderate confidence can be put”. The Tribunal then stated that reliability generally should be viewed as a band, with no one fixed point always considered “reasonable”. Rather, it posited three sub-bands of reasonable reliability: “upper reasonable reliability,” “mid reasonable reliability” and “lower reasonable reliability” (Tribunal Decision at paragraph 697). According to the Tribunal, all three of these sub-bands meet the standard of “reasonable reliability,” but the upper sub-band is preferred.
[55] Working with these sub-bands, the Tribunal characterized the evidence before it as falling in the lower reasonable reliability sub-band. Thus, the Tribunal was able to reiterate the conclusion that it came to in paragraph 689 of its reasons, stating at paragraph 700 of its reasons:
Hence, it was more likely than not that the job information utilized by the Professional Team in conducting its job evaluations of the CR and PO positions/jobs pertinent to this case, was reasonably reliable, albeit at the “lower reasonably reliable’ sub-band level”.
[56] The Tribunal’s reasons then progressed under