Public Service Alliance of Canada v. Canada Post Corporation

Public Service Alliance of Canada v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2005-10-07
Neutral citation
2005 CHRT 39
File number(s)
TT299/1392
Decision-maker(s)
Leighton, Elizabeth A.G.
Decision Content
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CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL DES DROITS DE LA PERSONNE PUBLIC SERVICE ALLIANCE OF CANADA
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR DECISION
PANEL: Elizabeth Leighton
Gerald T. Rayner
2005 CHRT 39
2005/10/07
I. INTRODUCTION
A. The Complaint
B. The Investigation Stage
C. Population
D. Setting and Context, 1981 through 1991
II. LEGISLATIVE BACKGROUND
A. Nature of Human Rights Legislation
B. History of the Canadian Human Rights Act
III. THE FUNDAMENTAL ISSUES
A. Independence and Impartiality of the Tribunal
B. Retroactivity and Validity of the Guidelines
C. Proof by Presumption
D. Prima Facie Case
IV. EXAMINATION OF THE FUNDAMENTAL ISSUES
A. Independence and Impartiality of the Tribunal
B. Retroactivity and Validity of the Guidelines
(i) Background
(ii) How is the Concept of "retroactivity" pertinent to this Complaint?
a) Submissions of the Parties
b) Tribunal's Analysis
(iii) Are subsection 8(2) and sections 11-15 of the 1986 Guidelines Valid?
a) Submissions of the Parties
b) Tribunal's Analysis
C. Proof by Presumption
V. PRIMA FACIE CASE
A. Background and Elements of a Prima Facie Case for a Complaint brought under Section 11 of the Act
B. Does the Complainant group and the Comparator group represent, respectively a predominantly female occupational group and a predominantly male ocuupational group, suitable for comparison of work, under the Act?
C. Are the Complainant and the Comparator groups employed in the same `establishment'?
(i) Evolution of the Definition of Establishment
(ii) The `Airlines Case'
(iii) Impact on the Current Case of the Federal Court of Appeal Decision in the `Airlines Case'
D. Does the comparison of the work of the Complainant group and the Comparator group establish that the work being compared is equal in value? Are the jobs/positions data and the process comparing the work of the Complainant and the Comparator groups reliable?
(i) Background
(ii) Issues
E. Review of Job Information Collected and Methodology Used: Investigation Stage
(i) Commission's 1987 Job Evaluations
(ii) Commission's 1991 Job Evaluations
F. Review Of Job Information Collected And Methodology Used: Tribunal Stage
(i) The Professional Team
(ii) Phases 1 and 2
(iii) How were the Job Evaluations conducted by the Professional Team?
(iv) Two Additional Reviews
G. Reliability of Job Information Collected, Methodology Used and Job Evaluations conducted by the Commission and the Professional Team: - Positions of the Professional Team, Canada Post, the Alliance and the Commission
(i) The Standard of Reliability
(ii) Commission's 1987 Job Evaluations
(iii) Commission's 1991 Job Evaluations
(iv) Professional Team's 1993/1994 Job Evaluations
(v) The Professional Team's Position re: its 1993/1994 Job Evaluations
(vi) Canada Post's Position re: the Commission's 1991 and the Professional Team's 1993/1994 Job Evaluations
a) Ms. Winter's Testimony
b) Mr. Willis' Testimony
c) Mr. Wallace's Testimony
(vii) The Alliance's Position re:
a) Ms. Winter's Testimony
b) Mr. Willis' Testimony
c) Mr. Wallace's Testimony
(viii) The Commission's Position re: Canada Post's Expert Witnesses - Winter, Messrs. Willis and Wallace
H. Reliability of Methodology Used by the Professional Team: - Tribunal's Analysis
(i) Introduction
(ii) The Job Evaluation System Chosen
(iii) The Process
VI. RELIABILITY OF JOB INFORMATION SOURCES AND RESULTING JOB INFORMATION USED BY THE PROFESSIONAL TEAM
A. Background
B. FACTS I
(i) Composition
(ii) Submissions of the Parties and Expert Witnesses
(iii) Credibility of Evidence of Expert Witnesses
C. FACTS II
(i) Composition and Impact
D. FACTS I and II Compared to Reliability Standard of the Job Evaluation Industry
E. Tribunal's Analysis
(i) A Daunting Task
(ii) Definitions and Sub-bands of Acceptability
VII. WAGE GAP AND WAGE ADJUSTMENT METHODOLOGY
A. Introduction
B. Submissions of the Parties
(i) The Alliance
(ii) The Commission
(iii) Canada Post
(iv) Reply Submissions of the Alliance
(v) Reply Submissions of the Commission
C. Tribunal's Analysis
(i) Preliminary
(ii) Review of the Wage Adjustment Methodology Proposals
(iii) Sum-up
VIII. Non-Wage Forms of Compensation
A. Background
B. Submissions of the Parties
(i) The Commission's Position
(ii) The Alliance's Position
(iii) Canada Post's Position
(iv) Tribunal's Analysis
IX. Remedy
A. Background
B. Remedial Components
(i) Award of Lost Wages
(ii) Back-Pay - The Compensation Period
(iii) Interest
(iv) Post- Judgement Interest
(v) Special Compensation
(vi) Legal Costs
(vii) Retention of Jurisdiction
X. JOINT UNION-EMPLOYER LIABILITY FOR WAGE DISCRIMINATION
A. Canada Post's Submission
B. The Alliance's Position
C. The Commission's Position
D. Tribunal's Analysis
XI. ORDERS
I. INTRODUCTION A. The Complaint [1] The Public Service Alliance of Canada filed a complaint with the Canadian Human Rights Commission on August 24, 1983, 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 per cent 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:
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. That this corrective action be made retroactive to October 16, 1981.
B. The Investigation Stage [2] Once a complaint is received by the Canadian Human Rights Commission (the Commission), the general procedures followed are those enunciated in the Canadian Human Rights Act1 (the Act).
[3] When the Commission receives a complaint for filing under the Act, it may designate an investigator to conduct a preliminary review of the nature and details of the complaint. All parties to the complaint are involved in this review. The respondent's defences to the allegations in the complaint are an integral part of the review.
[4] When this review is completed, the Commission has the authority to determine that a valid defence has been submitted by the respondent, and that the complaint, therefore, cannot be substantiated. Alternatively, the Commission has the authority to appoint a conciliator for the purpose of attempting to bring about a settlement of the complaint. A third option is for the Commission to refer the complaint to the Canadian Human Rights Tribunal for an inquiry involving all parties, including the Commission as a representative of the public interest.
[5] In the case of a complaint brought under section 11 of the Act, the Commission's authority to conduct its investigation includes authority to gather pertinent job fact data. The Commission may request information from the respondent, such as lists of employees, job descriptions, and related job data including input from supervisory and management personnel and employee interviews. Even on-job-site observations may be requested.
[6] The receipt of job fact data is crucial to the Commission's consideration of the complaint and its final recommendation based on the facts it has before it. The value of the work of the male and female employees cited in the complaint needs to be established and compared, as do the wages of the male and female employees. The evaluation process must include consideration of the four factors specified in subsection 11(2) of the Act, namely: skill, effort, responsibility, and working conditions.
[7] The Commission's usual practice is to undertake the work evaluation process using a job evaluation committee, and the employer's own existing evaluation plan, provided it is suitable for a complaint brought under section 11 of the Act. Failing this, the Commission must find an alternative job evaluation plan which is unbiased, gender neutral, and appropriate for the task.
[8] The Commission must investigate, as well, the appropriateness of the comparator chosen and named in the complaint.
[9] Ultimately, the Commission must make its preliminary comparison of the job values and wages between the complainant and the comparator groups named in the complaint. An Investigation Report, based on the Commission findings, will then be drafted. Once the parties involved have vetted it, a Final Investigation Report, with its recommendations, will be presented to the Commissioners of the Commission who will make the final decision regarding the Commission's involvement with the complaint.
[10] In the case of the Complaint before this Tribunal, the Investigation Stage was prolonged. There were a number of reasons for this.
[11] As early as 1982, even before the Complaint was filed, the complainant, the Public Service Alliance of Canada (the Alliance), and the respondent, Canada Post Corporation (Canada Post), had agreed to work jointly on the development of a job evaluation plan, known as System One.
[12] Therefore, during 1984 and most of 1985, the Commission did not pursue its investigation of the Complaint actively. Instead, it made periodic checks on the state of the joint development of System One. Differences of opinion between the Alliance and Canada Post, including the withdrawal, at one point, of the Alliance from active participation in the evaluation development process, led to many delays and limited progress in developing the joint System One plan. Finally, the Commission decided to re-activate its investigation in October 1985.
[13] From late 1985 and through 1986, the Commission was active in developing a Job Fact Sheet, a questionnaire intended for use in gathering current job data for the complainant positions - jobs in the Clerical and Regulatory Group (CR's), a group noted in the Complaint as "female-dominated", and for the named comparator positions - jobs in the Postal Operations Group (PO's), noted in the Complaint as "male-dominated".
[14] During this time, Canada Post expressed serious concern to the Commission about the design and content of the proposed Job Fact Sheet. Additionally, Canada Post expressed to the Commission its reservations about the investigation process in general. The Commission had indicated that the Job Fact Sheet was to be answered by a sample of the CR group first. It was intended, eventually, to be a prime job data-gathering tool for the Commission's investigation.
[15] At the same time that it was expressing its reservations about the Commission's investigation process, Canada Post did answer the Commission's requests for job data information by providing employee printouts and other information. It cautioned that job descriptions and organization charts which were required as attachments to the Job Fact Sheet would often be out-of-date. The Alliance advised the Commission that the job descriptions should be union-approved.
[16] By December 1986, a sample of CR employees at Canada Post had completed the Job Fact Sheet, and had been interviewed by Commission staff, using an Interview Guide created by the Commission to clarify answers given on the Job Fact Sheet. Additionally, during the interview process, relevant supervisory staff had been interviewed to clarify answers given by the incumbents sampled.
[17] From April to September 1987, a number of Commission staff evaluated the sample of 194 CR positions using the data collected in 1986. System One was the basis for these evaluations, although it was an uncompleted plan, and the Alliance had advised against its use for evaluation purposes. These evaluations were eventually set aside, and not used in the final investigation process.
[18] Protracted correspondence, meetings and discussions ensued from late 1987 through to mid-1991 between the Commission and Canada Post concerning the sampling of, and job data collecting from, the PO comparator group. The Commission was unsuccessful in seeking the co-operation of the relevant comparator group unions to collect this information. Moreover, Canada Post questioned the size of the proposed sample of the PO comparator positions, and declined to have the Job Fact Sheet completed by PO employees on company time.
[19] Meanwhile, the Alliance was increasingly concerned with the limited progress in the Commission's investigation of the Complaint. The Commission had threatened, on at least two occasions, to invoke section 58 of the Act, to obtain, from Canada Post, information it required to continue its investigation. Meetings involving senior managers from the Commission and from Canada Post were subsequently held, leading to the development, by the Commission, of a preliminary set of 10 "generic" PO job specifications.
[20] Eventually, the Commission was able to finalize its 10 "generic" PO job specifications based upon data obtained from Canada Post. This took place from July to October 1991. Although Canada Post indicated that the creation of these "generic" jobs excluded several PO jobs, there never was a resolution to this difficulty. Intervening events, such as a union strike in August 1991, extended the investigation time even more. The Commission moved forward, pushed by the concerns of the Alliance which were made evident by its threat to bring an application for mandamus under the Act to compel the Commission to complete its investigation. Its staff commenced the evaluation of CR and PO Benchmark positions, after which the 10 "generic" PO jobs were to be evaluated and the original sample of 194 CR positions was to be re-evaluated.
[21] In the midst of this activity, the Commission's senior investigator was temporarily re-assigned from his position as head of this investigation to address other priorities. To complete the work expeditiously, the PO Supervisory positions were dropped from the Complaint, and the CR sample was reduced from 194 to 93 positions. A consultant was added to Commission staff for the evaluation process which was using, as its evaluation tool, the XYZ Hay Job Evaluation Plan, an off-the-shelf plan. System One could not be used as it had never been accepted by the union, and it was never meant to be used to compare jobs represented by unions other than the Alliance. Moreover, Canada Post had also advised the Commission that System One would not be suitable for evaluating PO jobs.
[22] The Commission completed its CR and PO job evaluations and its investigation work in November 1991. There was no briefing session with Canada Post before the draft Investigation Report was released to the parties on December 16, 1991, along with a request to submit any comments by January 6, 1992. Comments were submitted by both parties by late January 1992; the Commission's Final Investigation Report, dated January 24, 1992, did not incorporate any of them. The Final Report concluded that there was a demonstrable wage difference when comparing wages and job values in the male and female-dominated groups named in the Complaint. The Report recommended referral of the Complaint to the Canadian Human Rights Panel (now known as the Canadian Human Rights Tribunal).
[23] The Commissioners considered the Final Investigation Report and, having regard to all the circumstances of the Complaint, decided, on March 16, 1992, to institute an inquiry into the Complaint by means of a referral to the Canadian Human Rights Tribunal which would assign the matter to a specific Tribunal panel for a hearing.
[24] The Tribunal panel was established on May 11, 1992, a Pre-hearing Conference was held September 21, 1992, and hearings and deliberations got underway on November 25, 1992. The written and oral submissions were completed on August 27, 2003, although written submissions concerning the Decision of the Federal Court of Appeal in the `Airlines Case' [Canadian Human Rights Commission v. Air Canada, Canadian Airlines International Limited and Canadian Union of Public Employees (Airline Division), [2004] F.C.J. No. 483] were submitted in mid-August 2004. In June 2004, the original Chair of this Tribunal, Benjamin Schecter, resigned.
C. Population Complainant and Comparator Groups
[25] The Commission's Final Investigation Report, dated January 24, 1992, indicates that the total population (with the break-down by job category of each of the complainant and comparator
groups) was as follows (presumably as of a particular date during the Investigation Stage, although no effective date is mentioned in the Report):
Complainant Group (Clerical and Regulatory Group)
CR 2 260
CR 3 950
CR 4 950
CR 5 150
Total Clerical and Regulatory Group 2,3l0
Comparator Group (Postal Operations Group)
Internal Mail Processing and Complementary Postal Service Sub-group
PO INT 2 1,283
INT 3 2
INT 4 18,020
INT 5 1,205
20,510
External Mail Collection and Delivery Services Sub-group
PO EXT 1 17,549
EXT 2 2,224
EXT 3 48
19,821
Supervisory Sub-group
PO SUP 1 549
SUP 2 1,343
SUP 3 427
SUP 4 331
SUP 5 96
SUP 6 22
2,768
Total Postal Operations Group 43,099
[26] By way of comparison, the total population levels of the complainant and comparator groups as presented in the documentation (undated) supporting the August 24, 1983 Complaint are as follows:
Clerical and Regulatory Group (Complainant) - CR's 2,316
Postal Operations Group (Comparator) - PO's
PO INT 25,056
PO EXT 21,661
PO SUP 4,195
PO Total 50,912
D. Setting and Context, 1981 through 1991 [27] To assist in understanding this lengthy and complex case, the Tribunal considers it important that the historical setting and context be identified. In particular, what was going on in the "world" in which all three parties were operating during the crucial years 1981 through 1991?
[28] The Canadian Human Rights Act was enacted on July 14, 1977 and proclaimed in force on March 1, 1978. Section 11 of the Act took effect on March 1, 1978. When this Complaint was filed with the Commission on August 24, 1983, a number of other individual and group complaints alleging discrimination under section 11 of the Act had already been brought by the Alliance, and other public and private sector unions. Tribunals were appointed to hear some of the cases but the majority were settled after negotiation, using Commission facilitators, and with the consent of the Commission.
[29] The Act, a quasi-constitutional human rights statute, enunciates general principles concerning the prohibition of discrimination on particular grounds. It established a Canadian Human Rights Commission which was given the authority to be actively involved in the evolution of the Act through its handling of complaints, and its development and issuance of Guidelines, under subsection 27(2). Additionally, the Commission was required to undertake or to support research programs relating to its duties, and to foster public understanding and recognition of the purposes of the Act, while discouraging and reducing the various discriminatory practices the Act addresses. All of this, undoubtedly, placed challenging demands on the Commission and its staff during this early period. At the same time, this was a period of increasingly tight fiscal management at both the provincial and federal levels of government.
[30] Collective bargaining was introduced to the Canadian Public Service in March 1967 under the aegis of the Public Service Staff Relations Act2 (PSSRA) which provided that the government and the Public Service Commission had to promulgate and declare occupational job categories in groups, as a preliminary to formal unionization of government employees. Each job category had to be defined by listing the groups of employees making up that category. Employees at the Post Office, which was a Department of the Canadian government at the time, were included in the same categories and groups as employees in other government departments, except for employees who were directly involved in the handling of mail. This unique group bore the title, "mail handlers" and included postal clerks, letter carriers, mail dispatchers, supervisory mail handlers, and several other functions involved in the sortation and delivery of mail.
[31] The daily movement of massive volumes of different types of mail in a country the size of Canada, with its different time zones and variety of climatic conditions, requires a vast, well-coordinated operational network. Inevitably, such a network includes thousands of corporate or contracted people and thousands of postal outlets in both urban and rural areas, in addition to many mail-processing facilities across the country. The state of employee relations is obviously a vital element in operating such a complex network successfully. Prior to the enactment of the PSSRA in 1967 and the subsequent certification of various unions to represent particular occupational groups of employees within the then Post Office Department, employees tended to be represented, informally, by staff associations. The earliest of such postal associations is believed to have been formed in 1889.
[32] In the 1960's and 1970's, the Post Office Department experienced one of its most unsettled periods of labour relations. While this was a period when the postal code system was introduced (1971) and mechanized mail processing technology was evolving, it was also a period of many management-employee disputes leading to several major strikes.
[33] The Post Office Department was succeeded by Canada Post Corporation with the proclamation of the Canada Post Corporation Act3 on October 16, 1981. One of the objects of the new Corporation, specified in the enabling legislation, was "...the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada...".4 Creation of the Crown Corporation appeared to have the support of all national political parties and most organized labour, business and consumer organizations. There also seemed to be a consensus that one of a number of desirable objectives for the new Corporation would be the reform of its collective bargaining structure in the interests of achieving labour peace.
[34] Upon becoming a Crown Corporation, the bargaining units certified under the PSSRA were deemed to be bargaining units under the Canada Labour Code5, and the bargaining agents representing these bargaining units were to remain in place, presumably to provide a transitional period of relative stability and an opportunity for the new Corporation to reorganize. This did, however, pre-empt an early start to the reform of the collective bargaining process which was further delayed by the passage, in 1982, of the federal `6 and 5' cost control legislation. The Canada Labour Relations Board (CLRB) issued a policy statement in February 1984 calling for an overall review of the bargaining unit structure of the Corporation at an appropriate time in the future. This review finally got underway in May 1985 when the Corporation filed its application with the CLRB for study of the appropriateness of all of its then existing bargaining units.
[35] The 1985 CLRB study took the form of a Bargaining Unit Review Process (BURP) with the first phase of hearings concluding in December 1987; CLRB's first decision was released on February 10, 1988. The CLRB heard from eight unions involving twenty-six bargaining units (representing about 58,000 employees), and ordered that they all be consolidated into four bargaining unions and four bargaining units. The four unions are as follows:
Canadian Postmasters and Assistants Association (CPAA)
Canadian Union of Postal Workers (CUPW), comprising the Letter Carriers Union of Canada (LCUC), the International Brotherhood of Electrical Workers (IBEW), the General Labour and Trades Group, the General Services Group, and the original CUPW
Public Service Alliance of Canada (PSAC), representing administrative, technical and professional employees, involving the combination of 15 separate units into one collective bargaining unit
Association of Postal Officials of Canada (APOC), representing operational supervisory employees but excluding lead hands and first-line managers
[36] It was not until 1988 that the bargaining unit consolidation occurred and the 1989-1992 round of labour negotiations was the first held with representatives of the consolidated units - some eight years after achieving Crown Corporation status. Understandably, while the BURP study was on-going, negotiations continued between the Corporation and the original 26 bargaining units. In fact, there were active negotiations during this period with LCUC, CUPW, CPAA, APOC and PSAC, some overlapping with each other and some with special mediation assistance. Despite vigorous negotiations, three strikes occurred in the 1980's, one of which involved PSAC.
[37] The 1989-1992 round of negotiations between the Corporation and CUPW were particularly challenging for all parties, leading to unsuccessful mediation, rotating strikes and Parliamentary back-to-work legislation in 1991. Agreements were concluded during this same period with the other three unions - CPAA, APOC and PSAC - without work stoppages.
II. LEGISLATIVE BACKGROUND A. Nature of Human Rights Legislation [38] Human rights legislation is a child of the 1970's. Although at the beginning of the twentieth century, there had been demands, often by women, for equality rights, it would be decades before legislation, both provincial and federal, addressed discrimination in general.
[39] Discrimination in the area of work was addressed after the First World War when the International Labour Organization was founded in 1919. At about that time, the Canadian government legislated a minimum wage for women.
[40] The Universal Declaration of Human Rights6 was proclaimed by the General Assembly of the United Nations in December 1948. It was viewed, at the time, as the first step in the formulation of an "international bill of human rights" that would have legal as well as moral force. Article 23 of this Declaration reads in part that "[e]veryone, without any discrimination, has the right to equal pay for equal work".
[41] By 1951, the principle of equal pay for work of equal value was articulated by the International Labour Organization in its C100 Equal Remuneration Convention7. This Convention was ratified by Canada in 1972 and signalled Canada's commitment to the active pursuit of the human rights of workers, including the principle of "equal pay for work of equal value". This commitment was reaffirmed when Canada ratified in 1976 the United Nations International Covenant on Economic, Social and Cultural Rights8, the International Covenant on Civil and Political Rights9, and the Optional Protocol to the International Covenant on Civil and Political Rights10. These United Nations Covenants made a reality of the dream for an "International Bill of Human Rights".
[42] Article 7 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to "[f]air wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work".11
[43] In 1970, Canada established a Royal Commission to inquire into the Status of Women. The Royal Commission's Report focused on continuing discrimination involving women in the workplace.12 Female participation in the Canadian workforce had continued to grow over the decades, increasing during the 20-year period 1960 - 1979 by the same percentage as it had taken sixty years to achieve between 1901 and 1961.
[44] Canada's commitment to eliminate discrimination in the workplace was enlarged to include a broader definition of human rights by the promulgation of the Canadian Human Rights Act in 1978 and, in 1981, by Canada's signing of the United Nations Convention on the Elimination of all Forms of Discrimination against Women.13
[45] The general goals of human rights legislation are the prevention of discrimination and the promotion of public education to eliminate discrimination. These goals are based on society's belief in equality rights for its members. After the fact, they are an attempt to make victims of discrimination "whole" either through consensual or mandated resolution. Dickson, C.J. noted in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that the general purpose of the Canadian Human Rights Act, as set out in section 2, is "...the promotion of equal opportunity unhindered by discriminatory practices...".14
[46] A legislative protection of human rights demands statutory interpretation which is broad and purposive, which is made in "...a manner consistent with its overarching goals...".15 In other words, an interpretation of human rights legislation must advance the purpose of that legislation to educate the public and to eradicate discrimination. To do this, the interpretation should give the legislation a generous reading, avoiding a narrow, overly technical analysis. Such an interpretation will construe the rights in the legislation broadly and liberally, while interpreting the legislation's restrictions and exceptions in a stricter manner.
[47] The Supreme Court of Canada noted in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 that:
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such a nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.16
[48] This characterization of the Canadian Human Rights Act as quasi-constitutional demands a thoughtful and modern approach to its interpretation. The following commentary, taken from
E.A. Dreidger, Construction of Statutes17and Ruth Sullivan, Dreidger on the Construction of Statutes18 indicates the modern, contextual approach to statutory interpretation:
...the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, and the intention of Parliament.19
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.20
The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute as a whole. The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statute law produced by a legislature...Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.21
[49] In addition to these commentaries, the Supreme Court has underlined the need to use the Interpretation Act, as did Iacobucci, J. when he indicated that:
I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act `shall be deemed to be remedial' and directs that every Act shall `receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit'.22
[50] In addition to a consideration of the nature of human rights legislation, and the consequent principles of statute interpretation when dealing with such special legislation, this Tribunal must also, during its decision-making process, consider the history of the Canadian Human Rights Act. That history is examined in the next several paragraphs.
B. History of the Canadian Human Rights Act [51] As already noted, the Canadian Human Rights Act was enacted in 1977, and proclaimed in force in early 1978. Even though over 25 years have passed, equality rights remain the subject of litigation and discussion. Mme Justice L'Heureux-Dube, speaking after receiving an Honourary LL.D. from the Law Society of Upper Canada in 2002, noted that:
The isms and phobias - racism, sexism, homophobia, and the malevolent rest - are all fountainheads of discrimination and harassment. They have no place in this era of human rights. ...Equality will be the battle of the millennium. At times, equality's standard bearers will feel like they are standing alone and will be harshly criticized for their positions. But, for those who do what is right, affirmation and solidarity come in due course. For it is my firm belief that justice without equality is no justice at all.23
[52] Section 2 of the Canadian Human Rights Act addresses the goal of equality. It notes that the purpose of the Act is to:
...give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
[53] The Minister of Justice at the time, the Honourable Ron Basford, indicated in May 1977 during the Parliamentary debates which preceded the enactment of the Act, and more particularly, section 11 of the Act, that:
There will no doubt be some problems ...[with] the concept [of equal pay for work of equal value]. The federal government has adopted a different approach: that we should legislate the principle and, through the Commission and through its efforts at setting out guidelines, solve those problems...as to how that is to be implemented and how it is to be brought about.24
[54] In other words, section 11 of the Act is an enunciation of a principle, without legislating stringent rules indicating how that principle is to be effected. The Honourable Ron Basford stated that this section of the proposed Act was fashioned to address the specific problem of the occupational segregation of women, with its accompanying historical lower wage rates which were based on the undervaluing of women's work in the marketplace. The need to address this problem had been one of the underlying reasons for the International Conventions of the mid-twentieth century, and was a key recommendation of the Report of the Royal Commission on the Status of Women.25
[55] From these International Conventions and the Royal Commission Report, the broad concept arose of basing wages on the value of work being done. Section 11 of the Act deals with the principle that there should be no discrimination in wage rates based on sex. The basis for the wage should be the value of the work being done.
[56] As the Canadian commitment to International Conventions, and to the recommendations of its own federally-appointed Royal Commission, was addressed by section 11 of the Act, its purpose must be seen in that historical light.
[57] Accordingly, section 11, although complaint-driven, as is the Act in general, may be interpreted as Parliament's means of addressing systemic discrimination based upon sex, in employment.
[58] Although the principle of "equal pay for work of equal value" is the basis for section 11, the Act does not articulate how the principle is to be implemented. While section 11 spells out for the complainant the criteria to be used to assess value of work - that is, the composite of the four factors of skill, effort, responsibility, and working conditions - the evaluation process to be employed is not articulated.
[59] The Commission is given broad authority to deal with the intricacies of section 11, such as the ability to issue binding guidelines concerning certain concepts in the section. This guideline-making power creates what can be described as statutory rules to guide the interpretation of section 11, analogous to the creation of regulations for other legislation.
[60] The Complaint before this Tribunal demands an interpretation of all aspects of section 11. It is believed to be the first complaint based on section 11 of the Act, referred to the Canadian Human Rights Tribunal, to require such a comprehensive review.
III. THE FUNDAMENTAL ISSUES [61] There are four fundamental issues to be addressed as the Tribunal examines this Complaint. These are identified below, and will be examined in detail in Sections IV, V and VI of this Decision.
A. Independence and Impartiality of the Tribunal [62] Is the Tribunal an institutionally independent and impartial quasi-judicial body? In particular, does the Act create a reasonable apprehension of institutional bias in the Tribunal because it gives the Commission power to issue Equal Wages Guidelines26 (the Guidelines), which are binding on the Commission, a party before the Tribunal, and binding on the Tribunal?
B. Retroactivity and Validity of the Guidelines [63] Can a statute be applied retroactively or retrospectively? Can a delegated power to issue subordinate legislation, such as the Guidelines, be exercised retroactively or retrospectively?
[64] What is the test for the validity of subordinate legislation? Are subsection 8(2) and sections 11 to 15 of the 1986 Guidelines27 valid?
C. Proof by Presumption [65] Evans, J. noted that:
[S]ubsection 11(1) can ... be seen to have tackled the problem of proof by enacting a presumption that, when men and women are paid different wages for work of equal value, that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it.28
[66] Although all parties in this Complaint accept the above statement by Mr. Justice Evans, the question arises: Is this presumption a presumption rebuttable by factors other than those identified in the Guidelines?
D. Prima Facie Case [67] Has the complainant established a prima facie case of discrimination, based on section 11 of the Act?
[68] A prima facie case has been defined as follows:
...one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.29
[69] The standard of proof to determine whether such a prima facie case has been established by the complainant is the civil standard, a balance of probabilities. Once a prima facie case has been established by the complainant, the evidentiary burden shifts to the respondent to show a justification for the discrimination, using the balance of probabilities as the standard of proof.
IV. EXAMINATION OF THE FUNDAMENTAL ISSUES A. Independence