Canada Post Corporation v. Public Service Alliance of Canada

Canada Post Corporation v. Public Service Alliance of Canada
Court (s) Database
Federal Court Decisions
Date
2008-02-21
Neutral citation
2008 FC 223
File numbers
T-1750-05, T-1989-05
Notes
Reported Decision
Decision Content
Date: 20080221
Dockets: T-1750-05 / T-1989-05
Citation: 2008 FC 223
Ottawa, Ontario, February 21, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
T-1750-05
CANADA POST CORPORATION
Applicant
and
PUBLIC SERVICE ALLIANCE OF CANADA
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
AND BETWEEN:
T-1989-05
PUBLIC SERVICE ALLIANCE OF CANADA
Applicant
and
CANADA POST CORPORATION
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This case involves two applications for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal) upholding a 1983 complaint of wage discrimination brought by certain female employees at Canada Post. The Tribunal concluded that Canada Post violated section 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the CHRA) by paying its employees in the male-dominated Postal Operations (PO) Group more than its employees in the female-dominated Clerical and Regulatory (CR) Group for work of equal value. The Public Service Alliance of Canada (PSAC), the union representing the female employees, approximates that, with interest, the amount of compensation required from Canada Post to rectify the pay discrimination is $300 million.
[2] The first application, Docket T-1750-05, is by Canada Post for judicial review of the decision upholding the complaint of pay discrimination against Canada Post. The second application, Docket T-1989-05, is by PSAC for judicial review of the decision to discount by 50 percent the award of damages to employees in the female-dominated CR Group.
TABLE OF CONTENTS
Paragraph
I. FACTS................................................................................................................................... 3
A) The complaint...................................................................................................................... 3
B) Overview of the proceedings............................................................................................... 5
Paragraph
C) Investigation of the complaint by the Commission................................................................. 6
D) The Tribunal Hearing – 1992-2003.................................................................................... 20
E) Decision under review....................................................................................................... 26
II. ISSUES................................................................................................................................. 36
III. RELEVANT LEGISLATION............................................................................................... 37
IV. STANDARD OF REVIEW................................................................................................... 38
V. ANALYSIS.......................................................................................................................... 48
Issue No. 1: Did the Tribunal err in retroactively applying the Commission’s 1986 Guidelines to a complaint filed in 1983, rather than the guidelines that were still in force at the time of the complaint?........................................................................................................... 48
Issue No. 2: Did the Tribunal err in applying an incorrect standard of proof allegedly invented by the Tribunal?........................................................................................................... 106
Issue No. 3: Did the Tribunal err in finding that the PO Group was an appropriate comparator group for this complaint?............................................................................................. 166
Issue No. 4: Did the Tribunal err in holding that once a wage disparity for work of equal value is established, section 11 of the CHRA enacts a legal presumption of gender-based discrimination that can only be rebutted by the reasonable factors identified in section 16 of the 1986 Guidelines?..................................................................................... 212
Issue No. 5: Did the Tribunal err in finding that the damages could be discounted by 50 percent to account for uncertainties in the job information and non-wage forms of compensation? 233
LENGTH OF HEARING......................................................................................................... 256
VI. CONCLUSION.................................................................................................................. 267
VII. COSTS............................................................................................................................... 276
I. FACTS
A) The complaint
[3] The proceedings involved in this case are both lengthy and complex. On August 24, 1983, PSAC filed a complaint with the Canadian Human Rights Commission (the Commission), alleging that Canada Post had violated section 11 of the CHRA by paying employees in the male-dominated PO Group more than employees in the female-dominated CR Group. The complaint alleged that:
… 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.
[4] As remedy for this alleged discrimination, PSAC requested that all employees within the CR Group receive wages equal to those of PO Group employees, with interest, and that that remedy be made retroactive to October 16, 1981; the date that Canada Post was established as a Crown corporation. At the hearing, the parties agreed that the relevant dates for determining compensation spanned from August 24, 1982, one year prior to the complaint, until June 2, 2002.
B) Overview of the proceedings
[5] The following is an overview of the lengthy history surrounding these proceedings:
1) August 24, 1983 – PSAC files its complaint with the Commission;
2) 1984-1991 – The Commission investigates PSAC’s complaint by gathering relevant job information and performing job evaluations;
3) January 24, 1992 – The Commission releases its “Final Investigation Report” and recommends that the complaint be referred to the Tribunal for hearing;
4) November 25, 1992 to August 27, 2003 – The Tribunal hears the complaint over the course of 415 hearing days; and
5) October 7, 2005 – The Tribunal releases its 273-page decision.
C) Investigation of the complaint by the Commission
Introduction
[6] The Commission’s investigation into PSAC’s complaint lasted eight years, between 1984 and 1992. As the Tribunal states at paragraph 5 of its decision, complaints brought under section 11 of the CHRA give the Commission the authority to gather “pertinent job fact data”:
¶ 5 In the case of a complaint brought under section 11 of the [CHRA], 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.
[7] In relation to PSAC’s 1983 complaint, the Commission hoped to make use of a job evaluation system being jointly developed by PSAC and Canada Post. The evaluation system, known as System One, was “intended for use by employees represented by [PSAC] bargaining units throughout Canada Post”: Tribunal Decision at paragraph 367. The Commission’s plan to utilize System One was discontinued, however, after development was delayed by differences of opinion between the parties. PSAC later withdrew from the development of the system, and both parties eventually concluded that System One was an inappropriate evaluation system because it could not be used to evaluate the comparator PO Group, which was represented by other bargaining units.
[8] As a result, in October 1985 the Commission began developing a “Job Fact Sheet” questionnaire, which it intended to use in gathering current job data for both the complainant and comparator positions. That compiled data would then form the basis of the Commission’s subsequent evaluations.
Commission’s collection of CR Group job information in 1986
[9] The principal sources of job information intended for use by the Commission in evaluating the CR Group positions consisted of successive lists of employee print-outs furnished by Canada Post and the Commission’s “Job Fact Sheet,” which was to be completed by employees sampled from the employee lists.
[10] The Commission opted for a random sampling of CR Group employees because it believed that a “full census of the total CR population of about 2,300 would be unmanageable in terms of time and money”: Tribunal Decision at paragraph 369. The Commission’s original proposed sample consisted of 355 CR Group positions. During the summer of 1986, the Commission received 194 completed and usable “Job Fact Sheets” from CR Group employees, and those completed questionnaires were to become the basis for the Commission’s CR Group evaluation.
[11] At the same time, the Commission also developed an “Interview Guide,” which was intended to “guide the Commission’s investigator during follow-up interviews which were to be conducted with the incumbents, to clarify answers given on the Job Fact Sheet”: Tribunal Decision at paragraph 370. The Commission conducted and completed all interviews by December 1986.
[12] From April to September 1987, Commission staff evaluated the sample of 194 CR Group positions using the data collected in 1986. However, as the Tribunal explained at paragraph 17 of its decision, these evaluations were later set aside and not used in the final investigation process.
Commission’s collection of PO Group job information in 1991
[13] The Commission had originally intended to use the same “Job Fact Sheet” and “Interview Guide” used with respect to the CR Group in its collection and analysis of job information relating to the comparator PO Group. However, acquiring job information for the PO Group positions proved exceedingly difficult for a number of reasons. As the Tribunal explained at paragraph 18:
¶ 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.
[14] Because of its inability to reach an agreement with Canada Post on sample sizes and data collection instruments for the comparator PO Group, the Commission decided in 1991 to base its evaluation of the PO Group on ten “generic” PO jobs, which did not include any actual positions, but “represented the ten mostly homogeneous jobs done by PO incumbents”: Tribunal Decision at paragraph 375. Much of the information used to create the ten “generic” PO jobs was drawn from “job specifications,” which had been provided to the Commission by Canada Post.
[15] In creating the ten “generic” PO jobs, the Commission dropped the PO supervisors because of a belief that it would be difficult to reconcile many of the supervisory titles into job specifications “without a sampling of incumbents and use of a Job Fact Sheet”: Tribunal Decision at paragraph 376. The result of this decision created an inconsistency between the ten “generic” PO jobs and the CR Group sample, which had included supervisors at the CR-5 Level.
Commission’s 1991 evaluations of the collected job information
[16] In September 1991, the officer in charge of the Commission’s investigation was asked to reduce the original sample of 194 CR Group positions to a more manageable number in order to expedite the evaluation process. After studying the situation, the number of CR Group positions was revised to 93, and this became the new sample number that the Commission used in its 1991 evaluations.
[17] The Commission evaluated the job information for the 93 CR Group positions and the ten “generic” PO jobs using an “off-the-shelf Hay XYZ Evaluation Plan” (the Hay Plan). The Hay Plan is recognized as an authoritative basis for evaluating and comparing jobs for the purpose of a pay equity analysis such as the one undertaken by the Commission. For its evaluation of the 93 CR Group positions, the Commission relied on the “Job Fact Sheet” information collected in 1986, as well as the interview results, job descriptions, and organization charts. With respect to the ten “generic” PO jobs, the Commission relied on job specifications compiled from information provided by Canada Post in 1990 and 1991, as well as job descriptions and job profiles.
[18] The Commission completed its job evaluations in November 1991. On December 16, 1991, the Commission issued a draft “Investigation Report,” and asked the parties to submit any comments on the draft by January 6, 1992. Comments were submitted by both parties by late January 1992, but none of these were included in the Commission’s “Final Investigation Report,” dated January 24, 1992.
Commission’s conclusion and referral to the Tribunal in 1992
[19] In its “Final Investigation Report,” the Commission 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,” and recommended the complaint be referred to the Tribunal for further inquiry. After considering this recommendation, and having regard to all the circumstances of the complaint, the Commissioners, on March 16, 1992, referred the complaint to the Tribunal, which would assign the matter to a specific panel for a hearing. On May 1, 1992 a panel was established and, on November 25, 1992, the panel commenced hearings that would last more than a decade, until August 27, 2003.
D) The Tribunal Hearing – 1992-2003
[20] After the Tribunal began hearing evidence in late 1992, PSAC engaged a team of professional job evaluators (the Professional Team) to “provide an expert review of the Commission’s 1991 evaluations … and to undertake independent evaluations”: Tribunal Decision at paragraph 382. The Professional Team was comprised of three individuals: Dr. Bernard Ingster; Ms. Judith Davidson-Palmer; and Dr. Martin G. Wolf, who was the group’s spokesperson and was qualified by the Tribunal as an expert in Hay-based job evaluation and Hay-based compensation. PSAC’s mandate for the Professional Team was to “apply the Hay Method to the job content in accordance with the ‘best practices’ of senior level Hay consultants considered to be expert in the use of the process”: Tribunal Decision at paragraph 384.
[21] Ultimately, when it became apparent that the Commission’s 1991 job information and evaluations were seriously deficient or, in the words of Dr. Wolf, “abominable,” it was the Professional Team’s evaluations that became the foundation upon which PSAC relied in attempting to substantiate the complaint.
[22] The Professional Team’s analysis was conducted in two phases. First, in May and June 1993, the Professional Team re-evaluated the 93 CR Group positions and ten “generic” PO jobs that formed the basis of the Commission’s “Final Investigation Report.” Second, in November and December 1994, the Professional Team evaluated a further 101 CR Group positions, which “represented the remaining balance from the Commission’s original 1987 sample of 194”: Tribunal Decision at paragraph 385.
[23] During Phase 1 of its investigation, the Professional Team conducted telephone interviews with a number of the employees in the Commission’s 1986 CR Group sample. The major purpose of these interviews was to seek additional information about the work environment of each interviewee’s position, since it was the Professional Team’s opinion that “the working conditions factor was the least well-documented aspect of the 1986 Job Fact Sheet and other materials the Team had at hand”: Tribunal Decision at paragraph 390. The interview results and other CR and PO job information were then evaluated by the Professional Team in May and June 1993.
[24] During Phase 2 of its investigation, the Professional Team again conducted telephone interviews in an attempt to gain additional information respecting the remaining CR Group positions from the Commission’s original 1986 sample. Evaluations of these remaining CR Group positions were conducted in November and December 1994.
[25] In its final report, the Professional Team concluded that there existed a significant wage gap between employees in the female-dominated CR Group and employees in the male-dominated PO Group, for work of equal value. Dr. Wolf testified before the Tribunal that while there were numerous shortcomings in the available job information, he believed that the information was “adequate,” and was confident in both the process utilized by the Professional Team, and in the validity of their evaluations.
E) Decision under review
[26] On October 7, 2005, approximately 27 months after the close of the hearing, the Tribunal released its 273-page decision. During the course of the hearing, which spanned almost 11 years and involved 415 hearing days, the Tribunal heard testimony from both expert and lay witnesses, and was presented with over 1000 exhibits, including expert reports, videos, training manuals, and physical objects. The transcript of the hearing exceeds 46,000 pages. It should also be noted that the decision was rendered by only two panel members, as the Tribunal Chair, Benjamin Schecter, resigned in June 2004, after the hearing was completed.
[27] In its decision, the Tribunal made five determinations relevant to these applications.
1st Determination: Retroactive application of the wage guidelines
[28] The Tribunal found that the appropriate wage guidelines to apply to PSAC’s complaint were the Equal Wages Guidelines, 1986, S.O.R./86-1082 (1986 Guidelines), despite the fact that the original complaint was made in 1983, three years prior to the implementation of the 1986 Guidelines. While all parties agreed that the 1986 Guidelines could not be applied retroactively, the Tribunal concluded that their application was dependent on the nature of the fact situation before the Tribunal. In this instance, and relying on the work of Professor Ruth Sullivan in Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994), the Tribunal held that because the facts before it were of a “continuing” nature, the 1986 Guidelines applied to the complaint, and their application was not retroactive.
2nd Determination: Standard of proof for the reliability of PSAC and Commission evidence
[29] The Tribunal held that one of the elements to be proven in establishing a case of systemic wage discrimination is whether the complainant and comparator occupational groups are performing work of equal value. The Tribunal stated that this will only be the case if the work 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”: Tribunal Decision at paragraph 257. Further, the Tribunal held at paragraph 69 that the work value evidence must meet the civil standard of proof, the balance of probabilities.
[30] In reaching its decision, the Tribunal assessed the reliability of the job evaluation system employed, the process followed, and the job information and sources upon which the evaluations were premised. Despite finding numerous problems with the reliability of each of the aforementioned “material facts,” the Tribunal reached the following conclusions:
1) that, on the balance of probabilities, the Hay Plan, utilized by the Professional Team in its evaluations, was a “suitable” scheme that would “address the issues of this ‘pay equity’ Complaint in a reasonably reliable manner”: Tribunal Decision at paragraph 571;
2) that it was “more likely than not” the evaluation process used by the Professional Team was “reasonably reliable”: Tribunal Decision at paragraph 593; and
3) that the job information used by the Professional Team in its job evaluations was “reasonably reliable, albeit at the ‘lower-reasonably reliable’ sub-band level”: Tribunal Decision at paragraph 700.
[31] Canada Post submits that the Tribunal’s conclusions distort the civil standard of proof by “inventing and applying a novel standard of ‘sub-bands of reasonable reliability’ of evidence.” Canada Post also argues that the Tribunal developed this standard in order to find liability in the face of evidence that it acknowledged was deficient, and rather than conclude that the case for discrimination could not be established, the Tribunal sought to account for these deficiencies by discounting the award of damages by 50 percent; an issue that is the subject of PSAC’s application for judicial review in Docket T-1989-05.
3rd Determination: Appropriateness of the comparator occupational group
[32] Relying on the definition of sex predominance in the 1986 Guidelines, the Tribunal concluded that the CR Group was female dominant, that the PO Group was male dominant, and accepted PSAC’s choice of comparator groups.
4th Determination: Legal presumption of sex discrimination
[33] The Tribunal found that section 11 of the CHRA creates a presumption that a wage gap established under the legislation is caused by systemic gender-based discrimination, and that that presumption can only be rebutted by the “close-ended” list of factors found in section 16 of the 1986 Guidelines. Canada Post argues that even if such a presumption exists, the rebuttable factors available to the employer should be “open-ended,” and not limited to those contained in the 1986 Guidelines.
5th Determination: Tribunal’s reduction of damages
[34] Finally, despite finding that the evidence proffered by PSAC and the Commission was sufficient to establish the claim for discrimination, the Tribunal found that the award of damages should be reduced by 50 percent to account for various “uncertainties” in both the job information utilized by the Commission and the Professional Team, as well as in the non-wage forms of compensation. As the Tribunal stated at paragraph 944:
¶ 944 Recognizing these elements of uncertainty in the state of the job information and non-wage benefits documentation, the Tribunal finds that it cannot accept the full extent of the wage gap as claimed by [PSAC] and endorsed by the Commission.
[35] Accordingly, the Tribunal concluded at paragraph 949 that:
¶ 949 … the finally determined award of lost wages for each eligible CR employee … should be discounted by 50% in line with the lower reasonable reliability status of the relevant job information and non-wage forms of compensation.
II. ISSUES
[36] As outlined above, there are five issues to be considered in these applications:
1) Whether the Tribunal erred in retroactively applying the Commission’s 1986 Guidelines to a complaint filed in 1983, rather than the guidelines that were in force at the time of the complaint;
2) Whether the Tribunal erred in applying an incorrect standard of proof allegedly invented by the Tribunal;
3) Whether the Tribunal erred in finding that the PO Group was an appropriate comparator group for this complaint;
4) Whether the Tribunal erred in holding that once a wage disparity for work of equal value is established, section 11 of the CHRA enacts a legal presumption of gender-based discrimination that can only be rebutted by the reasonable factors identified in section 16 of the 1986 Guidelines; and
5) Whether the Tribunal erred in finding that the damages could be discounted by 50 percent to account for uncertainties in the job information and non-wage forms of compensation.
III. RELEVANT LEGISLATION
[37] The legislation relevant to these applications is the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA); the Equal Wages Guidelines, 1978, S.I./78-155 (1978 Guidelines); and the Equal Wages Guidelines, 1986, S.O.R./86-1082 (1986 Guidelines). The relevant provisions have been attached to the end of this judgment as Appendix “A.”
IV. STANDARD OF REVIEW
[38] In Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court affirmed the primacy of the pragmatic and functional approach when determining the appropriate standard of review. The Court held that the appropriate standard is determined by engaging in an analysis of four factors, which include:
1) the presence or absence of a privative clause or statutory right of appeal;
2) the expertise of the Tribunal relative to that of the reviewing court on the issue in question;
3) the purpose of the legislation and the provision in particular; and
4) the nature of the question – i.e., law, fact, or mixed fact and law.
[39] In relation to the first factor, the CHRA does not contain a privative clause or a statutory right of appeal. This factor is therefore treated as neutral, requiring neither greater nor less deference be accorded to the Tribunal.
[40] With respect to the second factor (the Tribunal’s expertise), Mr. Justice La Forest of the Supreme Court, writing concurring reasons in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, made the following statement at page 585:
… The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. …
[41] In Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) (PSAC), Mr. Justice Evans also recognized the “significant expertise” of the Tribunal in relation to its findings of fact, stating at paragraph 86:
¶ 86 These observations are, of course, applicable to the Tribunal members whose decision is under review here. I would note, however, that the Tribunal held over 250 days of hearings, many of which apparently resembled educational seminars conducted by the expert witnesses for the benefit of the parties and the Tribunal, studied volumes of documentary evidence and lived with this case for seven years. It is reasonable to infer from this that the members of the Tribunal were likely to have a better grasp of the problems of operationalizing the principle of pay equity in the federal public service than a judge would probably be able to acquire in the course of even an 8 1/2 day hearing of an application for judicial review.
Accordingly, considerable deference will be accorded to the Tribunal’s factual findings.
[42] The third factor, the nature of the legislation and the provisions in question, also suggests the Tribunal’s decision should be accorded some deference. Mr. Justice Evans made clear in PSAC, above, at paragraph 53, that the CHRA is a quasi-constitutional statute whose provisions are to be given a “broad and liberal interpretation so as to further its underlying purposes.” Further, the construction of section 11 of the CHRA, in particular, which legislates the principle of pay equity without addressing its implementation, leaves “considerable scope to the Commission and the Tribunal” in deciding how the principal is to be “operationalized” in an employment context: PSAC at paragraph 76. As Mr. Justice Evans stated at paragraphs 83-84 of PSAC:
¶ 83 Reverting to section 11, I cannot attribute to Parliament an intention that, by enacting the principle of equal pay for work of equal value, it thereby provided a definitional blueprint of such specificity that its implementation in any given context inevitably involves the Tribunal in questions of statutory interpretation, and hence of law, that are reviewable on a standard of correctness in an application for judicial review.
¶84 The fact that the implementation of a statutory provision calls for a range of technical expertise much broader than that possessed by courts of law is a clear indication that more than general questions of law, legal reasoning or quasi-constitutional values are involved.
[43] The fourth factor to be considered is the nature of the question or questions before the Court. The Federal Court of Appeal has concluded that, in relation to the different questions decided by a tribunal under the CHRA, questions of law should be accorded no deference, questions of fact should be accorded great deference, and questions of mixed fact and law should be accorded some deference: Lincoln v. Bay Ferries Ltd., 2004 FCA 204, 322 N.R. 50; Morris v. Canada (Canadian Armed Forces), 2005 FCA 154, 334 N.R. 316.
[44] In the case at bar, the first issue is one of mixed fact and law, as the Tribunal must characterize the particular fact situation and then apply the appropriate guidelines to that situation. The second issue is also a question of mixed fact and law, as the Court must determine on the facts whether the Tribunal applied the appropriate standard of proof to the material evidence in determining whether a prima facie case of pay discrimination has been proven. The third issue is a question of mixed fact and law since the Tribunal must consider the evidence presented before it while applying the principles relating to the choice of a comparator group that are found within the applicable guidelines. The fourth issue is a question of statutory interpretation, and is a clear question of law. The fifth and final issue is a question of mixed fact and law, since the CHRA grants broad discretionary power to the Tribunal in relation to damages, and since such an award is largely dependent on the facts of the case. However, there is a legal element to the Tribunal’s decision, as it must interpret and apply the legal standard of proof on liability before assessing damages.
[45] Having been guided by the pragmatic and functional approach mandated by the Supreme Court in Dr. Q, above, I conclude that:
1) the issue of whether the Tribunal erred in retroactively applying the Commission’s 1986 Guidelines to a complaint filed in 1983 will be reviewed on a standard of reasonableness simpliciter;
2) the issue of whether the Tribunal erred in applying an incorrect standard of proof will be reviewed on a standard of reasonableness simpliciter. However, challenges to the Tribunal’s factual findings regarding this issue will only be set aside if found to be patently unreasonable;
3) the issue of whether the Tribunal erred in finding the PO Group to be an appropriate comparator will be reviewed on a standard of reasonableness simpliciter;
4) the issue of whether the Tribunal erred in holding that once a wage disparity is established, section 11 of the CHRA enacts a legal presumption of gender-based discrimination that can only be rebutted by the reasonable factors in section 16 of the 1986 Guidelines will be reviewed on a standard of correctness; and
5) the issue of whether the Tribunal erred in discounting the damage award by 50 percent to account for uncertainties in the evidence will be reviewed on a standard of reasonableness simpliciter.
[46] In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, the Supreme Court interpreted the standards of reasonableness simpliciter and patent unreasonableness. Mr. Justice Iacobucci, writing for the Court at paragraphs 48-49, stated that under a standard of reasonableness simpliciter, a reviewing court must uphold an administrative decision if the reasons adequately support the ultimate conclusion:
¶ 48 Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, [[1997] 1 S.C.R. 748], at para. 61). In Southam, at para. 56, the Court described the standard of reasonableness simpliciter:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. …
¶ 49 This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and “look to see” whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons….
[Emphasis in original.]
[47] The standard of patent unreasonableness, however, requires that even more deference be granted by a reviewing court. As Mr. Justice Iacobucci held at paragraph 52 of Ryan:
¶ 52 The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted “in the immediacy or obviousness of the defect”. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” … A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.
V. ANALYSIS
Issue No. 1: Did the Tribunal err in retroactively applying the Commission’s 1986 Guidelines to a complaint filed in 1983, rather than the guidelines that were still in force at the time of the complaint?
Index for Issue No. 1
Subject
Paragraph #
Tribunal Decision
55
Position of Canada Post
63
Position of PSAC
75
Position of the Commission
85
Court’s Conclusion
89
The Guidelines
[48] The CHRA was proclaimed in force on March 1, 1978. Section 11 of the CHRA outlines the general principles regarding the discriminatory practice of paying different wages to male and female employees who are performing work of equal value. Subsection 27(2) empowers the Commission to prescribe guidelines for the purpose of enforcing the CHRA.
[49] The 1978 Guidelines were the initial set of guidelines prescribed by the Commission under authority of the CHRA. The 1978 Guidelines define the meaning of the four criteria in subsection 11(2) of the CHRA for valuing work (skill, effort, responsibility, and working conditions), and the “reasonable” factors justifying the payment of different wages to male and female employees.
[50] On November 18, 1986, the 1986 Guidelines were prescribed by the Commission. Their purpose, as outlined in the Explanatory Note accompanying their release, was to:
… prescribe (a) the manner in which section 11 of the [CHRA] is to be applied; and (b) the factors that are considered reasonable to justify a difference in wages between men and women performing work of equal value in the same establishment.
[51] The 1986 Guidelines are more robust than those issued in 1978. Among the additions, the 1986 Guidelines:
1) expand the number of reasonable factors that justify the payment of different wages to men and women under subsection 11(3) of the CHRA (contained in section 16 of the 1986 Guidelines);
2) define when employees are working in the same establishment for the purposes of section 11 (section 10);
3) explicitly provide for the use of indirect comparator groups for comparing job value when no direct comparator groups are available (section 15);
4) set out when an employer’s job evaluation plan is to be used (section 9); and
5) set out criteria for determining when a comparator group is considered male or female based on a sliding scale of sex predominance (sections 13-14).
[52] The complaint in the case at bar was laid by PSAC on August 24, 1983. The Tribunal held that the appropriate guidelines were the 1986 Guidelines. At paragraph 167 of its decision, the Tribunal stated:
¶ 167 Accordingly, the Tribunal concludes that the 1986 Guidelines are applicable to the issues to be addressed in the current Complaint. The question of the retroactivity of these Guidelines is not applicable to this Complaint, brought under section 11 of the [CHRA]. The facts involved are ongoing, or continuing, and, as such, do not give rise to a concern about retroactivity. Additionally, the Tribunal finds that there is no infringement of Canada Post’s vested rights because of the applicability of the 1986 Guidelines.
The parties agree there can be no retroactive application of the Guidelines
[53] The legal principles respecting the presumption against retroactivity are not in dispute. The Tribunal and all parties agree that the 1986 Guidelines are akin to regulations: see the Supreme Court of Canada’s decision in Bell Canada v. Canadian Telephone Employees Assn., 2003 SCC 36, [2003] 1 S.C.R. 884. In that case, it was found that there is a presumption against the retroactive application of the 1986 Guidelines, as well as other guidelines issued by the Commission. As stated by the Court at paragraph 47:
¶ 47 … the Commission’s guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. Since the Act does not contain explicit language indicating an intent to dispense with this presumption, no guideline can apply retroactively. This is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline. …
Accordingly, if this Court finds the Tribunal applied the 1986 Guidelines retroactively, then the Tribunal erred.
[54] The definition of retroactivity is stated by the Supreme Court of Canada in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at paragraph 39:
¶ 39 The terms, “retroactivity” and “retrospectivity”, while frequently used in relation to statutory construction, can be confusing. E. A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at pp. 268-69, has offered these concise definitions which I find helpful:
A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event. [Emphasis in original.]
The Tribunal’s decision to apply the 1986 Guidelines
(i) Continuing Facts
[55] The Tribunal held that the 1986 Guidelines, and not the 1978 Guidelines, were the appropriate guidelines to be appli