Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency of Canada

Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency of Canada
Collection
Canadian Human Rights Tribunal
Date
2009-05-25
Neutral citation
2009 CHRT 16
Other citations
Reference: 2007 CHRT 56, December 13, 2007
File number(s)
T1111/9205, T1112/9305, T1113/9405
Decision-maker(s)
Jensen, Karen A.
Decision type
Ruling
Decision status
Interim
Grounds
Sex
Decision Content
Between:
Ruth Walden et al.
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Social Development Canada,
Treasury Board of Canada, and
Public Service Human Resources and Management Agency of Canada
Respondents
Decision
Member: Karen A. Jensen Date: May 25, 2009 Citation: 2009 CHRT 16
Table of Contents
I. What Is The Appropriate Manner To Redress The Discriminatory Practice?
A. The Respondents’ Proposal: The Creation of a New Nursing Subgroup
B. The Commission’s Proposal: The Advisors and the Adjudicators Share a Single Occupational Group or Classification called Medical Adjudication
C. The Complainants’ Proposal: Include the Adjudicators in an Existing NU Subgroup such as Community Health Nursing or Nurse Consultants
II. Compensation For Wage Loss
III. Compensation For Pain And Suffering
IV. Legal Expenses
[1] This is a decision regarding the appropriate remedies in complaints involving approximately 413 medical adjudicators in the CPP Disability Benefits Program. The Complainants are a group of predominantly female nurses who work with medical advisors, a group of predominantly male doctors, to determine eligibility for CPP disability benefits.
[2] The Complainants alleged that since they were first hired in 1972, they have been performing the same work as the medical advisors and yet have been treated very differently from the advisors in terms of professional recognition, remuneration, payment of licensing fees, and training and career advancement opportunities.
[3] In a decision dated December 13, 2007, the Tribunal found that while there was significant overlap in the functions that had been and were being performed by the advisors and the adjudicators, there were differences in the work that justified some, but not all, of the differential treatment between the two groups of employees. In particular, the Tribunal found that the Respondent had not provided a reasonable, non-discriminatory response as to why the advisors are recognized as health professionals and compensated accordingly, when their primary function is to make eligibility determinations and yet, when the adjudicators perform the same function, they are designated as program administrators and are compensated as such.
[4] Having found the complaints to be substantiated, the Tribunal granted the parties’ request to order that the discriminatory practice cease, but refrained from specifying the measures that should be taken to redress the practice. As per their request, the parties were given an opportunity to negotiate the appropriate measures to be taken with all of the stakeholders, with the Tribunal retaining jurisdiction over the remedy issues in the event that the matters were not resolved.
[5] The parties were given three months to negotiate a settlement of the outstanding remedy issues. However, an agreement was not reached.
[6] Therefore, a hearing was convened to address the following issues: (1) the appropriate manner to redress the discriminatory practice; (2) compensation for lost wages if any; (3) the compensation for pain and suffering experienced by the Complainants as a result of the discriminatory practice; and (4) any other outstanding issues with respect to remedy.
[7] The majority of the Complainants were represented by counsel. Those Complainants who were not represented by counsel did not appear at either the liability or the remedy stages of the hearings, although they had notice of both.
I. What Is The Appropriate Manner To Redress The Discriminatory Practice? [8] Section 53(2)(a) of the Canadian Human Rights Act (the CHRA or the Act) provides the Tribunal with the authority to make orders to redress the discriminatory practice or to prevent the same or a similar practice from occurring in the future.
[9] In its decision of December 13, 2007, the Tribunal found that while both the advisors and the adjudicators use their professional knowledge in the health sciences to determine eligibility for CPP disability benefits, only the advisors are classified as health professionals within the federal public service. The adjudicators are classified as program administrators (PM’s) within the Programme Administration (PA) classification, whereas the advisors are classified as medical officers (MOF’s) within the Medicine (MD) in the Health Services Group. Positions that are classified within the Health Services Group are recognized as involving the application of professional health care knowledge.
[10] From 1988 onward, the medical adjudicators have been seeking recognition as health care professionals through classification of their position in the Nursing (NU) Group within Health Services. These attempts have been unsuccessful.
[11] The Tribunal found that the Respondents’ refusal since March of 1978, to recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors constituted a discriminatory practice. The effects of the discriminatory practice were to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, including payment of their licensing fees, as well as training and career advancement opportunities.
[12] One of the principal ways that professional work is recognized in the federal public service is through the classification of positions. Positions are classified according to their primary function. Positions are first allocated to an Occupational Group, which is a collection of jobs that are grouped together based on common duties or similarity of work. Within an Occupational Group, there are Classifications that are more specific to the kinds of work that are done within that group. For example, within the Health Services Group there is the Nursing Classification, and the Medicine Classification, among others. Within the Classifications there are subgroups that further narrow the definition of the work done. For example, within the Nursing Classification, there is the Community Health Nursing subgroup. That group of employees provides community health nursing services, whereas the Hospital Nursing subgroup provides hospital nursing care.
[13] Initially, the represented Complainants and the Commission asserted that the only way to redress the discriminatory practice was to create a new Classification that might be called Medical Adjudication, which encompassed the work of both the adjudicators and the advisors. Only through the creation of a new Classification could the similarity and relative value of the professional work done by the adjudicators and the advisors be fully recognized and compensated, it was argued.
[14] However, at the conclusion of the hearing on the remedy issues, the represented Complainants changed their position, asserting instead that the appropriate redress would be to include them in an existing subgroup within the Nursing Classification. They stated that either the Community Health Nurse or the Nurse Consultant subgroups would be appropriate. The reasons provided for the proposal were that it would avoid the delays involved in establishing a new subgroup or classification, and would effectively redress the discriminatory practice.
[15] The Commission, on the other hand, maintained its position to the end that the only appropriate redress was to create a new Classification for both the advisors and the adjudicators since no other solution would fully address the issues raised in the liability decision.
[16] The Respondents proposed that a new Nursing subgroup be created for the medical adjudicators within the Health Services Occupational Group and the Nursing Classification. It might be called the Medical Adjudicators’ subgroup.
[17] What follows is a review of the evidence regarding each of the proposals provided by the parties.
A. The Respondents’ Proposal: The Creation of a New Nursing Subgroup [18] Ms. Patricia Power, Special Advisor to the Vice-President of Strategic Infrastructure, Organization and Classification at the Public Service Agency, one of the Respondents, testified that a number of different options were considered for redressing the discriminatory practice. The options included the creation of a new Occupational Group outside of the Health Services Group that would contain both the advisor and the adjudicator positions, the creation of a new Classification within the Health Services Group that would contain both positions and the creation of a new subgroup within the Nursing Classification for the adjudicators alone.
[19] Ms. Power testified that the option of creating a new Nursing subgroup was considered to be the best for the following reasons: (1) it provides effective redress for all of the issues raised in the Tribunal’s liability decision of December 2007; (2) it is the most expedient option; and, (3) it is the least disruptive in terms of its effects on other public service employees and on the public service classification system.
[20] With respect to the first issue – effective redress of the discriminatory practice – Ms. Power testified that creating a new subgroup of Nursing for the adjudicators within the Health Services Occupational Group will have the following effects:
Professional recognition – By including medical adjudication as a subgroup within the Health Services Occupational Group, it will be acknowledged and recognized that medical adjudicators apply their comprehensive knowledge of the professional specialty of nursing in the work that they do. Like the medical advisors, they will be recognized and classified as health care professionals. Remuneration commensurate with qualifications – In the Federal public service, the rates of pay for represented employees are set through collective bargaining. Ms. Power testified that once the new subgroup has been approved by the Minister, the bargaining agent for the adjudicators would likely change. The adjudicators would most likely be represented by the same bargaining agent as the medical advisors. Although there are different pay lines for each of the medical specialties in the Health Services Group, they are negotiated at the same bargaining table by the same bargaining agent. Compensation will be negotiated on the basis of the adjudicators’ classification as NU’s, not PM’s. The adjudicators will therefore, be in a position to receive remuneration that is commensurate with their classification as Nurses.
The payment of licensing fees – Classification within the Health Services Occupational Group would mean that, like the advisors, the adjudicators would have a separate line item in the budget for the payment of their licensing fees. Payment of the fees would not come out of the education budget as is currently the case. Training and career development – Ms. Powers testified that classification as health care professionals would put the nurses on the same footing as the doctors; training and career development would have its own place in the budget, and would be recognized as being as important as the training and career development of other health care professionals. Career advancement possibilities – In the liability portion of the hearing, Ms. Walden testified that her chances of obtaining a job as a nurse in the public service were not as good as they would be if she was classified as a health care professional, like the medical advisors. Ms. Power testified that the classification of medical adjudicators as health care professionals within the Health Services Occupational Group would resolve that issue.
[21] With regard to the second reason as to why the creation of an NU subgroup is preferable from the Respondents’ point of view, Ms. Power testified that the creation of a new subgroup is expedient since it is the only viable option that would not likely require the creation of a new classification standard. Developing a new classification standard takes a considerable amount of time. It involves at least two to three years of extensive consultation and work. Since there are likely only one or two levels of adjudicator work, a new subgroup could be created almost immediately without the need to create a new classification standard.
[22] With regard to the third reason, Ms. Power testified that the creation of the new subgroup would not affect the advisors’ classification and would be in keeping with the public service’s classification principles. She stated that the advisors are appropriately classified at present. It would be unprecedented to carve out a little portion of jobs that are now allocated to the Medicine Classification and to reclassify the advisors as Adjudicators. Moreover, any change to the advisors’ job classification or Occupational Group definition would likely cause them some concern. Such changes should not be made without providing the advisors with an opportunity to speak to the issue. The advisors have not been given that opportunity.
B. The Commission’s Proposal: The Advisors and the Adjudicators Share a Single Occupational Group or Classification called Medical Adjudication [23] The Commission proposed that the advisors and the adjudicators share a Classification or Occupational Group. In the Commission’s view, this would redress the discriminatory practice of classifying the adjudicators differently even though they perform substantially similar work to that of the advisors. The Commission argued that this means of providing redress would be consistent with the public service’s practice of classifying positions on the basis of the primary function of the position, rather than on the qualifications of the person holding the job. Since the primary function of both the adjudicator and the advisor positions is to determine eligibility for CPP disability benefits, they should be classified in the same Group or Classification.
[24] The Commission did not produce evidence to support its proposal. Rather, it attempted to elicit evidence in support of the proposal through the cross-examination of Ms. Power and other Respondent witnesses.
[25] Counsel for the Commission asked Ms. Power if the Commission’s proposal of having the advisors and the adjudicators share an Occupational Group or a Classification would result in greater wage parity between those two groups than if they occupied different Classifications within Health Services. Ms. Power did not believe that sharing a Group or a Classification would result in a wage and benefit package that was closer to that of the advisors than if they were in different Groups or Classifications. She stated that since the adjudicators do not perform exactly the same work as the advisors, and they utilize different professional knowledge from the doctors, the adjudicators’ salary will be different from that of the advisors, regardless of whether they are in the same bargaining unit. It is their classification as nurses that will ensure that the adjudicators receive remuneration commensurate with their professional qualifications, not whether they are in the same bargaining unit or Occupational Group as the advisors.
[26] Ms. Power explained that the creation of a new Classification or Group that included both positions would take a long time because it requires the development of a new classification standard. Moreover, the creation of a new Classification or Group of this nature is not in keeping with the classification practices in the public service. Classifications tend to cross government departments and draw in positions based on the commonality of work that is performed across the breadth of the public service. A Classification or Group that included only 2 positions would be highly unusual and impractical.
[27] Ms. Power further testified that there are retention and recruitment problems with doctors across the core public service. These problems may be exacerbated by a change that would reclassify medical advisors from MD’s to MA’s (Medical Adjudicators) since they would no longer be classified as doctors in the public service. Given that health professionals, like the adjudicators and advisors, desire recognition and classification based on the professional knowledge that they utilize, this would not be a positive change.
C. The Complainants’ Proposal: Include the Adjudicators in an Existing NU Subgroup such as Community Health Nursing or Nurse Consultants [28] The represented Complainants stated that they are ambivalent with regard to the means of redressing the discriminatory practice, provided they are recognized as nurse professionals, and treated fairly relative to the advisors. However, they did assert a preference for being allocated to an existing Nursing subgroup such as Community Health Nursing (CHN) or Nurse Consultants. They argued that this could be accomplished by simply including a statement in the definition of the Nursing Classification like the one that is included in the Medicine Classification. That inclusion statement (called inclusion statement 5) permits all those who assess medical fitness for the determination of disability benefits and other federal government benefits to be placed within that Classification. According to the Complainants, if inclusion statement 5 were inserted into the definition of Nursing and into the Subgroup definitions of CHN or Nurse Consultants, the Complainants could easily be placed in one of those two subgroups.
[29] The Complainants argued that the advantage of placing them in either the CHN or Nursing Consultant subgroups instead of creating a new nursing subgroup is that it could be done by Tribunal order rather than going through the process described by Ms. Power to implement a new subgroup. This would make the implementation of the remedy more expeditious in the Complainant’s view.
[30] In my view, the problem with this approach is that the adjudicators’ work does not fit the Subgroup definition for Community Health Nursing, and there is no evidence on the record that would permit me to determine whether the adjudicators’ work would fit the definition of the Nursing Consultant subgroup.
[31] According to the Subgroup definition for Community Health Nursing, that work involves the provision of health guidance and nursing care to individuals, families and groups in the home and community directed towards the prevention of disease and the promotion and maintenance of health; the provision of consultative services.
[32] Medical adjudication does not appear to meet that definition since Community Health Nursing is directed specifically towards home and community health care. There was no evidence regarding the meaning of the last part of the definition – the provision of consultative services. Therefore, I have no way of knowing whether the consultative services relate to home and community health or may be more general than that.
[33] However, Ms. Power did testify that a new Nursing subgroup had to be created because even with the addition of inclusion statement 5 into the NU definition, the adjudicators’ work does not fit the existing NU subgroup definitions.
[34] In contrast, the Medical Officer subgroup definition (which is the medical advisors’ subgroup) is clearly more general than the CHN definition. It states that the work of a Medical Officer involves the performance, provision of advice on, supervision, or direction of professional and scientific work in one or more fields of medicine. Even without inclusion statement 5, one can see how the advisors’ work would more readily fit the subgroup definition of Medical Officer than the work of the adjudicators would fit the subgroup definition of Community Health Nursing.
[35] The Complainants also suggested that they be included within the NU consultant subgroup. However, there is no evidence as to what the definition of this position is and whether the adjudicators fit the definition.
[36] It was incumbent upon the Complainants to present evidence establishing the appropriateness of the remedial option they were advocating. They failed to do so.
Ms. Power’s Credibility [37] The Complainants and the Commission attempted to discredit Ms. Power’s testimony by stating that there was a fundamental contradiction between the testimony that she gave in the liability portion of the hearing and the testimony she gave in the remedy portion. Therefore, her evidence, in its entirety, was not credible, according to the Complainants and the Commission.
[38] In the liability phase of the hearing, Ms. Power testified that it was impossible to classify the adjudicators as Nurses using the existing definitions and standards because the adjudicators’ work did not fit the Occupational Group definition for Health Services and did not fit any of the existing subgroup definitions.
[39] Then, in the remedy phase, Ms. Power testified that, provided certain changes are made, it would now be possible to classify the adjudicators as Nurses. Ms. Power testified that the creation of the new subgroup would require the definition of Nursing to be changed so that direct patient care is no longer a requirement for inclusion in the Classification. In addition, she stated that it may be necessary to introduce inclusion statement 5 into the Nursing definition, which is provided in the Medicine Classification definition, and which allows advisors to be included in the MD Classification.
[40] Ms. Power testified that there may also have to be changes to the MD and PA definitions to ensure that the adjudicator work did not fall within these Classifications.
[41] In my view, there is no contradiction in Ms. Powers’ testimony during the two phases of the hearing. Her testimony in the first phase was based on the definitions and standards as they were at the time. At that time, the Respondents did not believe that their classification practice with respect to the adjudicators was discriminatory. Ms. Power’s testimony in the second phase was based on the Tribunal’s finding that the Respondents’ classification practice was discriminatory and that action had to be taken to redress it. In view of those findings, the Respondents proposed changes to the definitions that they thought would provide effective redress.
[42] Ms. Power indicated that the Respondents could and would make the necessary changes to create a new nursing subgroup for the adjudicators, if ordered to do so by the Tribunal. I find nothing contradictory in the statements made by Ms. Power with regard to the possibility of reclassifying the adjudicator position.
[43] The Complainants submitted that the evidence of Ross MacLeod, the Director General of Service Delivery in the Human Resources Branch at HRSDC, was more credible and to be preferred over that of Ms. Power. Mr. MacLeod testified about the Service Management Structural Model, which is a new way of organizing the service delivery arm of the HRSDC portfolio to provide better service for Canadians. The Model requires standardized organizational designs and revised job descriptions that will ensure that wherever they are, Canadians can receive the same type of service.
[44] Mr. MacLeod testified that in a period of less than 2 years, the Service Management Structural Model team has classified and developed 22 job descriptions, and is working on an additional 18 to 20. He stated that ultimately the adjudicators’ job description will also be modified. However, the team will wait until the present complaints have been resolved before modifying the adjudicators’ job description to conform to the Service Management Structural Model. Mr. MacLeod stated that the team will respond as required to a decision from this Tribunal.
[45] Counsel for the Complainants asserted that, contrary to Ms. Power, Mr. MacLeod provided evidence that it is relatively simple and straightforward to reclassify positions in the public service. Therefore, the Complainants asserted, the Tribunal should reclassify the position as it sees fit, without any consideration to the potentially negative consequences and disruptions to the public service about which Ms. Power testified. In the Complainants’ view, the Service Management Structural Model team can deal with the repercussions of the Tribunal’s decision, as Mr. MacLeod has clearly indicated they are willing to do.
[46] I disagree with Complainant counsel’s interpretation of Mr. MacLeod’s evidence. In my view, he simply said that, working within the particular parameters set out by the Service Management Structural Model, his team was well on their way to accomplishing their goals. He certainly did not suggest that the Tribunal could issue any order it saw fit without regard to the evidence provided by Ms. Power. Nor did he present an alternative proposal as to how to redress the discriminatory practice. Indeed, he was not called to testify about the appropriate means to correct the discriminatory practice; he was called to testify that once the Tribunal had determined how to redress the discriminatory practice, the team would deal with the decision within the context of their mandate.
[47] Therefore, I reject counsel’s suggestion that Mr. MacLeod’s evidence contradicted that of Ms. Power’s and that Mr. MacLeod’s evidence is to be preferred. The two witnesses testified about different issues and did not contradict one and other.
[48] Moreover, I find that Ms. Power’s testimony was credible, consistent and withstood the test of cross-examination very well.
[49] The Commission and the Complainants were unable to demonstrate how Ms. Power’s solution fails to provide full redress. The Commission argued that the creation of a new Nursing Subgroup would not guarantee that the Complainants will receive remuneration commensurate with their professional qualifications; it will merely put them in a position to negotiate that. It was argued that the Tribunal should go further than simply putting the adjudicators in a good negotiating position in order to effectively redress the discriminatory practice.
[50] Although there is no guarantee with respect to the amount of compensation that the adjudicators will receive through collective bargaining, Ms. Power indicated that the adjudicators’ new compensation will reflect the fact that they have been reclassified as nurses. The Commission’s proposal to put the advisors and the adjudicators in the same Classification or Occupational Group would not guarantee a particular wage rate any more than being placed in a new NU subgroup would. Like the Respondent’s proposal, it would simply put them in a position to negotiate a wage rate that is commensurate with their professional qualifications. Moreover, I accept Ms. Power’s evidence that the adjudicators would not receive greater wage and benefit parity with the advisors merely by being in the same Classification or Occupational Group.
[51] Nor would the adjudicators’ wage rate be guaranteed by allocating their work to the CHN or Nurse Consultant subgroups, as proposed by the Complainants, unless the Tribunal assigned a specific level to the adjudicators. In order to assign a level of work to the adjudicators, the Tribunal would need to have a reasonably accurate estimate of the value of the adjudicators’ work relative to other jobs in the public service and the CPP Disability Benefits unit. As will be discussed in greater detail in the next section, it is not possible to do this with the information that has been provided to the Tribunal.
[52] The proposals put forward by the Commission and the Complainants are not superior in terms of their ability to correct the discriminatory practice. Moreover, they would likely produce negative effects on human resource management in the public service. The Commission’s proposal would have a significant impact on the advisors since they too would be reclassified. The advisors have not been given an opportunity to speak to this issue. The Complainants’ proposal of placing the adjudicator position in either the Community Health Nursing or Nurse Consultant Subgroups would provide recognition as health professionals, but the problem that formed the genesis of this case would persist: the work of the Complainants would be mischaracterized, and their duties, responsibilities and functions would be shoe-horned into a category that was never intended to contain them. Who can say what new inequities would be spawned by such a make do solution? Surely the remedial goals of the CHRA require a form of redress better tailored to the actual needs of the situation.
[53] Therefore, I accept Ms. Power’s testimony that the creation of a new Nursing Subgroup represents a reasonable and effective means of redressing the discriminatory practice and ensuring that it does not occur again in the future. It represents an effective redress option. Moreover, it creates the least disruption to and negative consequences for the broader public service.
[54] It must be noted however, that the proposal to create a new Nursing Subgroup right away does run counter to a suggestion made by Mary Daly, the expert witness who testified on behalf of the Respondent at the remedy stage.
[55] Ms. Daly is a human resource consultant with a strong domain expertise in classification, compensation and organizational design. She was asked to provide an assessment of an expert report by Scott MacCrimmon, a human resource consultant who testified on behalf of the represented Complainants with respect to the wage loss resulting from the discriminatory practice.
[56] In her report and testimony, Ms. Daly provided a thorough critique of Mr MacCrimmon’s methodology for assessing wage loss and stated that, in her professional view, his conclusions were not reliable. She did not, however, provide an alternative assessment of whether the Complainants suffered any wage loss as a result of the discriminatory practice. Rather, she stated that to determine whether there was any wage loss, and also the appropriate redress, one would have to do a full diagnostic of the work of CPP disability claims adjudication.
[57] Ms. Daly suggested that a full diagnostic might reveal that the creation of a new subgroup within Nursing was not necessary. It could establish that the adjudicators should remain in the PM group, but that management practices must be improved.
[58] When asked in final argument what he made of this apparent difference in the testimony of his two witnesses, counsel for the Respondents indicated that in an ideal world, one might begin with Ms. Daly’s suggested diagnostic to determine whether the creation of a new subgroup was indeed necessary. However, given that Ms. Power had provided evidence of action that could be taken immediately to correct the discriminatory practice, he submitted that this action - the creation of the new subgroup - constitutes the best solution in the circumstances.
[59] I agree with counsel for the Respondents. Ms. Power provided credible evidence to support the Respondents’ proposal that a new Nursing Subgroup would redress the discriminatory practice. I do not think that Ms. Daly’s proposal to undertake a full diagnostic is necessary given the satisfactory nature of the Respondents’ proposal to create a new nursing subgroup.
[60] For these reasons and based on the evidence that was presented to me I find, on a balance of probabilities, that the most appropriate way to redress the discriminatory practice identified in the Tribunal’s December 2007 decision is to create a new Nursing subgroup for the medical adjudication position(s). I order that such a subgroup be created and that the adjudicator work be placed in this subgroup. I further order that work on the creation of the new NU subgroup commence within 60 days of the date of this decision.
II. Compensation For Wage Loss [61] Subsection 53(2)(c) provides the Tribunal with the authority to order that the person found to have been engaging in a discriminatory practice compensate the victim for any or all of the wages that the victim was deprived of as a result of the discriminatory practice.
[62] The Tribunal found that the Respondents had failed to provide the Complainants with remuneration commensurate with their professional qualifications. The Complainants were paid as Program Administrators, not as Health Care Professionals. However, there was no evidence provided during the liability phase as to what the wage loss might be, if any, resulting from the discriminatory practice.
[63] In the preceding section, I found that the appropriate way of redressing the discriminatory practice was to create a new Nursing subgroup. The problem, of course, is that the Nursing subgroup did not exist in the past. Therefore, it is difficult to determine if there was any wage loss when there is no past salary line for that subgroup to compare with the adjudicators’ past compensation. One way of dealing with this problem is to determine the value of the adjudicator position relative to the value of other positions performing similar work. A comparison would then be made between the adjudicators’ past remuneration and the past remuneration of positions that are of comparable value.
[64] The Respondents proposed to do just that at the outset of the remedy hearing. They sought leave of the Tribunal to call evidence comparing the value of the adjudicators’ work with the value of work performed by similar nursing positions in the public service.
[65] In a Ruling dated June 6, 2008 the Tribunal granted the Respondents’ request to call evidence but stated that because the remedy must flow from the discriminatory practice, a comparison of the relative value of the work performed by the adjudicators and the advisors was required. The Tribunal stated, however, that a determination of the value of the work performed by the adjudicators relative to that of the advisors did not preclude a comparison of the value of the adjudicators’ work to the value of other nursing positions in the public service.
[66] In the June 2008 Ruling, the Tribunal stated that it may be that the comparison between the advisors and the adjudicators reveals that the value of the adjudicators’ work is equivalent to that of the NU-CHN-02 or NU-CHN-03 positions or to that of another position. In that case, the Respondents might argue that the adjudicators’ wage loss should be determined on the basis of a comparison with the wages of the CHN positions at the relevant time. The Tribunal also stated that the Complainants and the Commission were free to lead evidence of a different nature, and to argue that the wage loss should be differently calculated.
[67] In the end, however, there was a problem with the Respondents’ evidence and they decided not to call evidence of a comparison that was done of the relative value of the adjudicators, the advisors and other Nursing positions in the public service. Rather, it was the represented Complainants who presented evidence of a comparison of the value of the advisors’ work to that of the adjudicators. The Respondents presented the evidence of a human resource expert, Mary Daly, who criticized the Complainants’ expert report, but did not provide an alternative assessment.
[68] The Tribunal must determine then, whether the Complainants’ evidence establishes that the value of the adjudicator position is such that if the adjudicators are properly classified as health care professionals, there is a wage gap between what the adjudicators actually earn and what they would earn as NU’s.
What is the standard of proof required to establish a right to compensation? [69] In PSAC v. Canada (Department of National Defence) (the DND case) [1996] 3 F.C. 789, the Court of Appeal stated that the standard of proof for establishing damages is the balance of probabilities. The complainants must show that their position is more likely than not.
[70] The DND case involved a judicial review of a Tribunal decision regarding a s. 11 complaint. Section 11 provides that it is a discriminatory practice to maintain wage differences between male and female employees who are performing work of equal value. The union filed a complaint in February of 1987, alleging that the respondent, the Department of National Defence, was not paying certain female employees wages equal to those paid to certain male employees performing work of equal value. The respondent conceded that it had committed a discriminatory practice contrary to the Canadian Human Rights Act and that such discrimination was systemic.
[71] The respondent agreed to pay wage adjustments from June 1, 1987 onward, but not for a retroactive period. Following a hearing, the Tribunal concluded that it did not have the authority to grant retroactive relief under the Canadian Human Rights Act. The Tribunal also held that it was inappropriate to reach back in time to redress historic wrongs because there was no certainty with regard to the extent of the wage gap.
[72] The Court of Appeal held that the Tribunal does, in fact, have the authority to grant retroactive relief under the Act. Moreover, certainty in the proof of wage loss is not required; the standard of proof is the balance of probabilities. The Court noted that it is well settled law that once it is known that a plaintiff has suffered a loss, a court cannot refuse to make an award simply because the proof of the precise amount of the loss is difficult or impossible. The judge must do the best he or she can with the evidence that is available (see also: Public Service Alliance of Canada v. Canada (Treasury Board), [1998] C.H.R.D. No. 6, (aff’d: Canada (Attorney General) v. Public Service Alliance of Canada [2000] 1 F.C. 146) in which the Tribunal applied the Court of Appeal’s approach in DND to determining wage loss under s. 53(2)(c) of the Act).
[73] In Public Service Alliance of Canada v. Canada (Treasury Board), the Tribunal held that the standard of proof must be governed by a standard of reasonableness. That is, the Tribunal will assess whether the results of the job evaluation process are reasonably accurate. In the judicial review of the Tribunal decision, the Federal Court did not take issue with this approach.
[74] Notwithstanding that the above-noted cases deal with complaints under s. 11 of the Act, I think that the principles are applicable to the present case. The Tribunal must determine whether the Complainants have established, on a balance of probabilities that had they been treated as though they were doing substantially similar work to that of the advisors and classified accordingly, they would have been paid more than they were as PM’s. If the answer to this question is yes, the Tribunal must then determine whether the Complainants have proved, on a balance of probabilities, the extent of the wage loss that they suffered as a result of the discriminatory practice.
[75] The Complainants presented the evidence of Scott MacCrimmon, an expert in job evaluation, in support of their contention that had the Respondents treated the Complainants in a non-discriminatory manner, the advisors would have earned only 15 – 25% more than the adjudicators, instead of the 50% more that they actually earned. The estimate of the wage differential was based on a comparison of the relative value of the two positions.
Scott MacCrimmon’s Evidence [76] Mr. MacCrimmon has more than 33 years of consulting experience in compensation systems. He has served as project director for many large job evaluation, job classifica