Canada (Attorney General) v. Walden

Canada (Attorney General) v. Walden
Court (s) Database
Federal Court Decisions
Date
2010-05-04
Neutral citation
2010 FC 490
File numbers
T-55-08
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20100504
Docket: T-55-08
Citation: 2010 FC 490
Ottawa, Ontario, May 4, 2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
RUTH WALDEN, ARLENE ABREY, GLORIA ALLAN, CINDEE ANDRUSIAK, ELIZABETH ANTONY, SANDRA ARMITAGE, KAREN ATTRIDGE, MARGARET HELEN ATTWOOD, AGNES BABA, KIMBERLY BARBER, GINGER BARNES (HAINES), PATRICIA BASSO, LINDA BATES, LÉA BEAUCHAMP-CHARLTON, ROXANNE BÉDARD, NICOLE BEGGS, SHERYL ANN BELL, AFFRENE BENJAMIN, SYLVIE BENOIT-LEMIRE, DIANA BERARDINETTI, GISÈLE BÉRIAULT, JOANNE BEVILACQUA, JOY BISHOP, ALTHEA BLAGROVE, DIANA BLANCHARD-MCALPINE, JOY BOBIER, SHARON BOLAND, JANET BO-LASSEN, LINDA BOND, CHRISTINE BONGERTMAN, SHARON BOOKER, ALINE BOUILLON, KRISTINE BOWES, ANNE BOYLAN CURRIE, LAURETTE BRADEMANN, JOAN BREUER, SUSAN BRIDGES, MORAG BROAD, CONNIE BROWN, NANCY BROWN, SUSAN BUOTT, JUDY BURKE, CINDY BUTLER, KARLA BUTTERFIELD, PAULA CALLAHAN, JAN CAMERON-GIONET, JOANNE CARROTHERS, DIANE CARSON, NINA CASTLE, ESTHER CAVANAGH, BRENDA CEASAR, MAGGIE CHAN, MICHELE CHARLEBOIS, PAUL CHARETTE, KATHLEEN SANDRA CHARETTE, TRUDY CHARRON, ELIZABETH CHASE, AMY CHEN, SHEILA CHRIST, GERALDINE CHRISTOPHER, SHELLEY CHUCKREY, CORY CIAMPA, CHRISTINE CLOUTIER, DANISE COLLINS, LINDA COLLINS, JACQUELINE COMBDEN, KYLA CONNERS, SALLY CONSTANTINE, FAY CORMIER, NORMA CORSTORPHINE, LISA COTA (BOWEN), LOIS COULTIS, TANISHA COULTIS, LYNDA CRAIG, MARTHA CROSS, MARIE CUDA, AGNES G. CUNNINGHAM, TRACY DAKIN, DIANNE DARCH, MIRANDA DARE, LYNN DARROW, CAROLE DAVIDSON, CHARLENE DAVIES (JENNER), CONNIE DAVIS, EMILY DEL CASTILLO, MARIAN DEVINE, JANICE DEYNE, JULIA DHILLON, JUBLEE DHISNA, JOANNE DIETRICH, MELISSA DINGWALL, DEBRA DOBBERTHIEN, JANET DONALDSON, FRANCES DONELY, CHERYL DOTY, MONIQUE DOUGLAS, SUSAN DRYSDALE, ELIZABETH DUHAIME, KIM DUKE, LINDA DULONG, BARBARA DUNCAN, LOUISE DUNCAN, SUSAN DUQUETTE, ANNA T. DURAND, ELAINE DURLING, CHARLENE DYKSTRA, DENISE ELY, DENISE FEAVER, BONNIE JEAN FENTON, ALLISON FERREIRA, ROXANNE K. FERRIER, VANDA FIKUS, PAM FITZSIMONDS, MICHELLE FLEURY, BARBARA FLYNN, DONNA FONTAINE (JONES), JEAN T. FORBES, LEE FRANCZAK, ELIZABETH FRANKLIN, BARBARA FRASER, RUTH FRAYNE, CONNIE FREEMAN, LAURIE FREEMAN, SUSAN FREW, SIMONE GARDEZY, FRANCES GARDINER, JUDY GAUTHIER, NICOLE GAUTHIER-TSCHUPRUK, KARRIE GEVAERT, CHANTAL GIGUERE-CARRIERE, KATIE GIRARD, RHODA GODIN, DZIDRA GOOR (DECEASED), NANCY GRAHAM, JACQUELINE GRATTON, HAZEL GRAY, SUZANNE GREEN, CARRIE GRONAU, JANET GUDEL, SHERRY GUIKAS, BRENDA GUTOSKE, ANGELA HALES, SHEILA HALLS, JEAN HALPENNY, VANESSA HAMBERGER, JAMIE HANLEY, PAUL HARRIS, SUSAN HARRIS, MARLENE HARRISON, BRENDA HART, LESLIE HASSAN, LISA HATCHER, MARIE-JEANNE HAWLEY, JACQUELINE HEALY-LENTZ, PATRICIA HÉBERT, CAROLE HELEY, LARRAINE HENDERSON, MARGARET HENRY, SUSAN HERTZ, JANET HESS, MARILYN HEWITT, SANDRA HIGHGATE, MARIA HILLMAN, YVONNE HODDER, JEAN HODGSON, JOY HOLT, DONNA HOOPER, PAMELA HORNING, JUDY HOWARD, LYNDA G. HUESTIS, MARIAN E. HUMPHREY, CAROLYN HYNES, LISE IRELAND, DALE JAMESON, MAUREEN JOHANSSON, KATHARINE JOHNSON, MARY B. JOHNSON, DONNA JOHNSTON, PAULETTE JOLICOEUR-WELLS, BARBARA KADER-FARBER, KATIE KASSAM, RICHARD KAVANAGH, SHARON KEAN, MARY LYNNE KELLY, MARY LOU KIGHTLEY, GAIL LYNN KIRKPATRICK, CAROL KNOWLES, BETH KOEHLER, LOUISE KOEN, VERONIKA KREAGER, SALLY KRESS, GERI KRIETEMEYER, HIKKA KUOKKANEN, JOYCE KUTNIKOFF, LISA LACOMPTE, SHABINA LADHA, COLLEEN LAFLEUR, JENNIFER LAKE, RUTH LANKTREE, DENISE LAPLANTE, CATHY LAVERY, ANN LAWN, JO-ANNE LAWRENCE, JOANNA LAWSON, MARY ANN LAWTON-BETTS, CHRISTINE LEACOCK, FRANCOISE LEBEL, DONNA LEBLANC, GISÈLE LEBLANC, KAREN LEBLANC, NANCY LEBRETRON, COLLEEN LEDREW, ANNE LEE, CAROLE LEGROS, FLORENCE LESSARD, JOCELYNE LESSARD, MARSHA LETT, MARIELLE LEVESQUE, BERTRANDE LIBERTY, ELIZABETH LINGENFELTER, TIFFANY LINK, KATHLEEN LOGAN, SOPHIA LONG, SHIRLEY E. LOWTHIAN, JANET LUCKETT, JANINE LYNCH, JOAN MACEACHERN, HEATHER MACNEIL, DIANE MACPHERSON, ROSA MADSEN, ARLENE MAHADOO, CAROL ANN MAHAR, SUZANNE MALTAIS, GLENDA MANNING, SUSAN MANNING, JANET MARSH, DARLENE MARSHALL, MICHELLE MATWIY, SHARON MAUNDRELL, SHELLEY MAUNSELL, GAIL MCCARTHY, DIANE MCCLURE, LYNN MCGREGOR, NANCY MCGUIRE, KAREN MCILROY, SANDY MCKENNA, BARBARA MCKINNON, KEN MCKINNON, PAOLA MCKINNON, ANGELINE MCLAREN, FAY MCLAUGHLIN, ADELE MCLEAN, DEBORAH MCLEOD, CATHERINE MCPARLAN, BONNIE MCWHIRTER, MARGARET MEESTER, FARIDA MEGHANI, CAROLE MEGILL-BRESSAN, KAREN MEYER, CHRISTINA MILLER, SUSAN MITCHELL, NARGIS MITHA, ROBERT MORENCY, DAWN MORGAN, VICTORIA MORGENSTERN, CHUCK MORRIS, DOREEN MOURITS AARON, JENNIFER MUGFORD, SHERI-LYNN MUISE, ADRIAN MULHOLLAND, JANE MULLIN, PATRICIA MURPHY, TRACIE MURRAY, CHARLOTTE NEILL, GLORIA NEMETH, RENEE NOAH, BARBARA NOEL, ANNE NOLET, ROSEMARY NORDSTROM, COLLEEN NOYLE, JENNIE PAIUK, CHERI PALIN, FRANCIE PALMER, LYNN PARKER, TISHA PARRIS, FRANCES PAULIN, JOE PELLIZZARO, TAMMY PENNEL, VIKKY PENNEY, IRENE PEPIN, LINE PERIARD, BARB PERKIN, KATHERINE G. PETERS, MICHELE PETRAK, SUSAN PETTERSONE, KELLY PEZZOLA, KAREN PICK, MICHELLE PIEROWAY, SANDRA POLLETT, INESE POPE, ISABELLE PRENAT, DONNA PRICE, MOIRA PRIETO, MAUREEN RANDELL, DOREEN RASMUSSEN, JANISSA READ, ELMA RENDERS, CHARLOTTE RICHARDSON, EILEEN RICHARDSON, DONNA RIDEOUT, DONNA RIDOUT, JAMES (JIM) ROBERTS, HELEN ROBERTSON, DORIS ROBINSON, APRIL RODGERS, PAMELA ROSE, MAJIT ROSS, SHIRLEY ROSS, ANNE ROWE, MARY ROWSELL, KEVIN RUNDLE, HOLLY RURYK, ELEANOR RUTHVEN, JOHN RYAN, TRACEY RYAN, JOAN SAARINEN (MARTIN), KIM SAMSON, KAREN SAUNDERS, KELLY SAUNDERS, ANGELA SCHAFFER, THELMA SCHJERNING, DONNA SCHRANK, DIANE SCHUSTER, CAROL SCHWAB, CATHY SCOTT, ELIZABETH SEABROOK, SUSAN SEARLE, JULIE SECORD, LEANNE SEETO, JEANNE SETLER, JANE SHENKAREK, MARGARET SHEPHERD, MARY JO SHOSTAK, PRISCILLE SIGOUIN, JO ANN SIMMONS, BRENDA SKANDERUP-BERGUM, DIANE SKODAK, BARBARA SMART, CATHERINE SMITH, BRENDA SPARKES, KIMBERLY SPURRELL, LAURA STANFORD-MARTIN, CAROL STANLEY, JUDY STANLEY, JACQUELINE ST-DENIS, CARLA STEINER, HEATHER STEWART, KAREN STEWART, PAULA STEWART, DIANE ST-JACQUES, JOANNE SUMMERS, NANCY SUMMERS, NABIL TARFA, ANDREA TAYLOR, CHERYL TAYLOR, SHIRLEY TEATHER, STEPHANIE TEMPEST, LINDA TEMPLETON, KATHERINE THACKER, BHAWNA THAKRAR, JENNIFER THIBODEAU, VICKI THOMPSON, JO ANN THORP, KELLY TOLE, VERNON TOEWS, JILL TURNOUR (ESPLEN), PATRICIA TYNDALL, TRINA ULRICH, HEATHER VADOVIC, LAURA VAN BUSKIRK, MARGARET VANDAALEN, GWEN VANDERHEYDE, JUDITH VAN HAMOND-BALL, KARI VANKOUGHNETT, DANA VANVLYMEN, ROSE VASTA, JOANNE VELLINGA, MARILYN VERSTRAETE, YASMIN WALJI, BRENDA WALKER, KAREN WALKER, CECIL WATERS, MICHELLE WATSON, DONELLY WATT, MARLENE WEEBER, MARCIA WEIR, ANNETTE WETHERLY, JUDY WHITEWAY, KAREN WIEBE, LYNN WILLIAMS, SHARON WILLIAMS, LORI WILLIAMSON, GWEN WILLS, SHANNA WILSON, SHARON WINTERS, CYNTHIA M. WITTY, MARGARET WOODROW, DEBORAH WORTMAN, COLLEEN WOZNY, ANNETTE WYLIE, ANNA YAN-SANG, BRENDA YOUNG, LEAH YOUNG
and
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Although there are some differences in the day-to-day responsibilities of Medical Advisors and Medical Adjudicators involved in the assessment of applications for Canada Pension Plan disability benefits, the “core function” of each position is the same. Both positions require the application of professional knowledge and expertise in determining applicants’ eligibility for benefits.
[2] Medical Advisors are medical doctors. Their positions are classified within the Health Services Group in the Public Service of Canada classification scheme, and they are compensated accordingly. A significant majority of Medical Advisors are male.
[3] Medical Adjudicators are registered nurses, and the vast majority of them are female. Their positions are classified within the Public Service’s Program and Administrative Services Group. This affects the compensation and benefits to which they are entitled.
[4] The human rights complaint filed by Ruth Walden and over 400 other complainants asks why it is that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program.
[5] No reasonable, non-discriminatory answer to this question was provided to the Canadian Human Rights Tribunal by Social Development Canada, the Treasury Board of Canada and the Public Service Human Resources Management Agency of Canada (collectively “the Government of Canada”). As a consequence, the Tribunal found that the Government’s refusal to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors amounted to a discriminatory practice within the meaning of both sections 7 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.
[6] This is an application for judicial review of that decision. For the reasons that follow, I have concluded that the Tribunal did not err as alleged by the Government, and that its decision was reasonable. As a consequence, the application for judicial review will be dismissed.
II. Background
[7] In order to appreciate the Government of Canada’s arguments, it is necessary to have some understanding of the roles and responsibilities of both Medical Adjudicators and Medical Advisors. It should be noted that the Government does not challenge any of the Tribunal’s factual findings in this regard. What it takes issue with is the analysis flowing from these findings, and the conclusions arrived at by the Tribunal.
[8] The Canada Pension Plan came into being in 1966. The Plan provides various forms of benefits to contributors, including disability benefits. Individuals are eligible for disability benefits if they have contributed to the Plan for at least five years, and have a “severe and prolonged mental or physical disability”: see paragraph 42(2)(a) of the Canada Pension Plan. R.S.C. 1985, c. C-8.
[9] Because five years of contributions were required before an application for disability benefits could be brought, it was not until 1971 that medical doctors were hired to assess claimants’ eligibility for benefits. As a result of the high volume of applications, these doctors were unable to process all of the applications in a timely manner, and a backlog soon developed. In 1972, registered nurses were hired to work with the doctors in assessing applicants’ eligibility for disability benefits.
[10] All of these individuals originally worked for Health and Welfare Canada. As the allocation of responsibilities between Ministries has changed over the years, responsibility for the administration of the Canada Pension Plan shifted first to Human Resources Development Canada, and then to Social Development Canada.
[11] The evidence before the Tribunal was that approximately 80% of the medical doctors involved in the determination of CPP disability claims are male. In contrast, 95% of the nurses involved in the assessment of applications for disability benefits are female.
[12] Whether the assessment of a claim for disability benefits is carried out by a doctor or by a nurse, medical knowledge on the part of the assessor is required to understand and evaluate the documentation submitted in support of the application. Neither Medical Advisors nor Medical Adjudicators ever provide any direct care to patients.
[13] As the Tribunal noted, the classification of positions within the Public Service of Canada is important, as it determines the professional recognition, pay, benefits, and opportunities for continuing education and career advancement that employees will receive.
[14] In determining how a position should be classified within the Public Service system, regard is had to the primary function of the position in question. Positions are first allocated to an Occupational Group. Occupational Groups are comprised of jobs that are grouped together on the basis that they involve common duties or similar work. Occupational Groups are sub-divided into Classification Standards that reflect the specific type of work performed.
[15] The Health Services Occupational Group is defined as including “positions that involve the application of medical or nursing knowledge (among other professional specialties) to the safety, and physical and mental wellbeing of people”. The Health Services (SH) Group includes a Nursing (NU) Classification Standard and a Medicine (MD) Classification Standard, among others.
[16] The Program and Administrative Services (PA) Occupational Group includes the Programme Administration (PM) Classification Standard, among many others. This Occupational Group is made up of positions that “primarily involve the planning, development, delivery or management of administrative and federal government programs to the public”.
[17] Doctors assessing applications for CPP disability benefits are known as “Medical Advisors” and are classified as MD’s within the Health Services Group. Nurses assessing such applications are known as “Medical Adjudicators” and are classified within the Program and Administrative Services Group.
[18] According to the Tribunal, Medical Advisors have always been part of the Health Services Group because “the definition of ‘medical officer’ has historically included positions that have, as their primary purpose, responsibility for the assessment of medical fitness for the determination of disability and other federal government benefits”.
[19] In contrast, Medical Adjudicators have always been classified as “PM’s” within the Program and Administrative Services Group. The Tribunal found that positions within the PA Group “do not involve the application of a comprehensive knowledge of professional specialties such as nursing or medicine”.
[20] Medical Adjudicators have long felt that they have been treated unfairly in this regard. From 1988 until shortly before the Tribunal hearing, Medical Adjudicators had repeatedly sought to be recognized as health professionals by having their positions reclassified as part of the Nursing Classification Standard within the Health Services Group, without success. While classification reviews were carried out by the Treasury Board and the Public Service Human Resources Management Agency of Canada, each review confirmed that Medical Adjudicators were properly classified within the PA group. The Public Service Labour Relations Board (or “PSLRB”) came to a similar conclusion in a 2006 decision.
III. The Human Rights Complaints
[21] Ruth Walden filed her human rights complaint with the Canadian Human Rights Commission in 2004. Her complaint alleged that she was being subjected to discrimination on the basis of her sex, contrary to the provisions of sections 7 and 10 of the Canadian Human Rights Act. Copies of the relevant statutory provisions are attached as an appendix to these reasons.
[22] Over the next three years, more than 400 other Medical Adjudicators joined with Ms. Walden in the complaint.
[23] A review of Ms. Walden’s complaint form discloses that the focus of her complaint is on the classification issue.
[24] Ms. Walden asserts that “CPP doctors have always been recognized as medical professionals under the federal job classification scheme”, and are compensated accordingly. In contrast, Ms. Walden says that “CPP nurses have never been recognized as health care professionals by our employer. We are called Medical Adjudicators or Service Delivery Specialists but are classified as Program Managers/Program Administrators (PM3)”. According to Ms. Walden “[t]his classification does not recognize our status as Registered Nurses” and results in Medical Adjudicators receiving lower pay than that received by other nurses working for the federal government, and also provides them less in the way of professional development opportunities.
[25] Ms. Walden’s complaint discusses the work performed by Medical Advisors and Medical Adjudicators over the years, and concludes with the statement that “[p]ut simply, my employer is saying that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”. According to Ms. Walden, treating two groups of health care professionals differently when they are employed for the same purpose amounts to sex discrimination.
IV. The Tribunal’s Decision
[26] In a lengthy and detailed decision, the Tribunal examined the nature of the work performed by both Medical Advisors and Medical Adjudicators since the inception of the CPP, as the work performed by each group evolved over time.
a) The Tribunal’s Findings with Respect to the Establishment of a Prima Facie Case
[27] The Tribunal concluded that the complainants had established a prima facie case that the work that Medical Adjudicators have performed since1972 was the same as or substantially similar to the work performed by Medical Advisors. According to the Tribunal, the “core function” of both types of position is the application of professional knowledge to determine eligibility for disability benefits under the Canada Pension Plan.
[28] The Tribunal further concluded that the Medical Adjudicators had been denied professional recognition as health professionals by being classified as Program Administrators. This resulted in the denial of salary and benefits, including vacation allowance, payment of professional fees, educational and training opportunities and career advancement that would have flowed from the classification of Medical Adjudicator positions within the Health Services Group.
[29] Given the statistical evidence of strong gender predominance within the Medical Adjudicator group, the Tribunal found that the classification of Medical Adjudicators within the Program and Administrative Services Group rather than the Health Services Group negatively affected a disproportionate number of women.
[30] According to the Tribunal, these findings were sufficient to establish a prima facie case of discrimination under the provisions of section 7 of the Canadian Human Rights Act.
[31] The Tribunal also found that the complainants had established a prima facie case of discrimination under section 10 of the Act. That is, the Tribunal found that the Government of Canada had, since 1972, pursued a practice of treating Medical Advisors and Medical Adjudicators as though they were doing different work, and classifying them accordingly, when they were doing substantially similar work. Because this practice had a disproportionate impact on women, this was sufficient to establish the connection between the impugned practice and the prohibited ground of discrimination.
[32] As a consequence, the Tribunal found that the burden shifted to the Government of Canada to provide a reasonable, non-discriminatory explanation for its conduct.
b) The Tribunal’s Consideration of the Government’s Explanation
[33] The Tribunal considered the evidence adduced by the Government of Canada with respect to the similarities and differences between the Medical Adjudicator and Medical Advisor positions. While the Tribunal accepted that there were some differences between the two types of positions, these differences were not, in the Tribunal’s view, extensive enough to explain the wide disparity in treatment between Medical Advisors and Medical Adjudicators.
[34] In particular, the Tribunal found that the Government of Canada failed to provide a reasonable, non-discriminatory explanation as to why it is that Medical Advisors are recognized as health professionals, and compensated accordingly, when their primary function is to make eligibility determinations, and yet, when Medical Adjudicators perform the same primary function, they are designated as Program Administrators and are paid half the salary of Medical Advisors.
[35] The Tribunal rejected the Government’s contention that the 2006 decision of the PSLRB holding that Medical Adjudicator positions did not belong in the Health Services Group provided a reasonable explanation for the differential treatment.
[36] The PSLRB found that although Medical Adjudicators used their medical knowledge in assessing applications for CPP disability benefits, they did not provide direct health care to applicants. As a consequence, the Board found that Medical Adjudicators were more properly classified as Program Administrators.
[37] The Tribunal observed that the PSLRB was not called upon to compare the classification of Medical Adjudicators to the classification of Medical Advisors, nor did it consider the classification issue in the context of the Canadian Human Rights Act. As a consequence, the Tribunal concluded that the PSLRB decision was of limited assistance in deciding the issue before it.
[38] The Tribunal did not accept the explanation offered by Patricia Power, the Acting Director General of Classification, Policy and Strategy at the Public Service Human Resources Management Agency of Canada, for the differences in the way that Medical Advisor and Medical Adjudicator positions were classified.
[39] Ms. Power testified that Medical Advisors are included within the Health Services Group because they meet the Health Services Group Definition and the Medicine Classification Standard. Medical Adjudicators are not included within the Health Services Group because they do not meet the Health Services Group Definition or the Nursing Classification Standard.
[40] According to Ms. Power, in order to be included within the Health Services Group Definition, a position must meet the “umbrella definition” for the Health Services Group Definition, and then fall within an “inclusion statement” for the MD or the NU Classification Standards.
[41] The umbrella definition for the Health Services Group provides that the Group is comprised of positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people.
[42] Ms. Power stated that Medical Advisor positions meet the umbrella definition for the Health Services Group, while Medical Adjudicator positions do not. Ms. Power explained that this is because medical adjudication does not involve the use of nursing knowledge to provide direct patient care.
[43] However, the Tribunal observed that Medical Advisors also do not use their medical knowledge to provide direct patient care in a clinical setting. As a result, the Tribunal found that if Medical Adjudicators do not meet the umbrella definition of the Health Services Group because they do not provide direct patient care, then neither do Medical Advisors.
[44] Ms. Power explained that Medical Advisors come within the MD Classification Standard within the Health Services Group because these positions match one of the “inclusion statements” for that Standard. That is, “inclusion statement 5” allows for the inclusion of positions within the MD Classification Standard that involve “the assessment of medical fitness for the determination of disability and other federal government benefits …” It appears that there is no comparable inclusion statement for the NU classification within the Health Services Group.
[45] Such an inclusion statement was incorporated into a new definition of the Health Services Group during the Universal Classification System process in 1999. Ms. Power testified that had this new definition been applied to Medical Adjudicator positions, it would have allowed Medical Adjudicators to be classified within the Health Services Group.
[46] However, the new definition was subsequently modified and inclusion statement 5 was not applied to the Adjudicators because it would have meant that Medical Adjudicators would no longer be part of the bargaining unit represented by the Public Service Alliance of Canada, but would instead be represented by the Professional Institute of the Public Service of Canada.
[47] Ms. Power explained that in 1993, Treasury Board had been mandated under the Public Service Reform Act to reduce the number of Occupational Groups within the Public Service. One of the conditions set out in the legislation was that the reduction in Groups was not to result in changes to bargaining unit affiliation. To preserve bargaining unit affiliation, inclusion 5 was explicitly excluded from the NU Classification Standard, and was included in the MD Standard.
[48] Ms. Power conceded that if the 1999 UCS process introduced or re-introduced gender bias into the classification process, it would have been Treasury Board’s responsibility to re-define the Group Definitions and Classification Standards in order to remove the bias. She also acknowledged that Treasury Board has the exclusive authority to determine classifications in accordance with section 7 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, and that the approval of the affected bargaining agents is not required to make changes to the Classification Standards.
[49] The Tribunal found that the need for bargaining agent approval was nevertheless part of the explanation provided by Treasury Board and the Public Service Human Resources Management Agency of Canada for refusing to change the NU Classification Standard or the Health Services Occupational Group definition.
[50] That is, in 2004, Social Development Canada presented a “Business Case” seeking the reclassification of the Medical Adjudicator positions into a proposed new sub-group to be created within the NU Classification Standard in the Health Services Group, recognizing that the work performed by Medical Adjudicators falls within the scope of nursing practice. Part of the response of Treasury Board and the Public Service Human Resources Management Agency of Canada was that such a change could only occur with the support of the affected bargaining agents.
[51] This response reiterated that the primary purpose of Medical Adjudicator positions was not the application of nursing knowledge to the safety and physical well-being of people or the assessment of medical fitness, but was rather the administration of a government program.
[52] The Tribunal found as a fact that if Medical Advisors are considered to be applying their medical knowledge to the safety and physical well-being of people and assessing medical fitness in determining eligibility for benefits for the purposes of determining their classification, then so too should Medical Adjudicators. As a consequence, the Tribunal found that the Government of Canada had failed to provide a reasonable and non-discriminatory explanation for the differential application of classification principles as between Medical Advisors and Adjudicators.
[53] The Tribunal thus held that the Government had failed to explain its refusal to recognize the professional nature of work done by a predominantly female group of workers performing essentially the same core function as a predominantly male group of workers whose work does receive professional recognition.
[54] Given that the Government failed to adduce any evidence relating to the cost of accommodating the Medical Adjudicators, the Tribunal also found that a bona fide occupational requirement had not been established.
c) The Tribunal’s Conclusion on Liability
[55] The Tribunal concluded that the complainants had established that the Government of Canada’s refusal, since March of 1978, to recognize the professional nature of the work performed by Medical Adjudicators in a manner proportionate to the professional recognition accorded to the work of Medical Advisors, constituted a discriminatory practice within the meaning of both sections 7 and 10 of the Canadian Human Rights Act.
[56] According to the Tribunal, the effect of this discriminatory practice was to deprive Medical Adjudicators of professional recognition and remuneration commensurate with their qualifications. The Tribunal also found that Medical Adjudicators were denied the payment of their licensing fees, and the training and career advancement opportunities that were provided to Medical Advisors.
[57] The Tribunal did not decide the issue of remedy at the time that it made its liability finding, but remained seized of the matter in the event that the parties were unable to resolve the issue between them. I am advised that the Tribunal has since rendered additional remedial decisions. These decisions are the subject of applications for judicial review and are not before me at this time.
[58] With this understanding of the matters giving rise to this application, I will next consider the issues raised by the Government, commencing with the Government’s arguments regarding what it says are the implications of the “reformulation” of the complaint by the complainants and the Commission.
V. The “Reformulation” of the Complaint
[59] The Government asserts that Medical Adjudicators have historically sought to be classified as part of the Nursing Classification Standard within the Health Services Group. It was only when the complainants and the Commission delivered their Statement of Particulars in 2007 that the focus of the case changed to suggest that Medical Adjudicators do the same work as Medical Advisors, and the differential treatment between the two groups therefore amounts to discrimination.
[60] It is very clear from the wording of Ms. Walden’s human rights complaint that the fundamental basis for her complaint is her claim that although Medical Advisors and Medical Adjudicators perform similar functions, Medical Adjudicators have always been denied the professional recognition accorded to Medical Advisors, as well as the compensation and benefits to which they believe they are entitled.
[61] It is also very clear from the complaint form that the complainants are of the view that the source of this adverse differential treatment lies in the application of the Government’s classification scheme. This is illustrated by the summary provided at the conclusion of the complaint where Ms. Walden states that “[p]ut simply, my employer is saying that when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”.
[62] I will revisit this issue when dealing with the question of whether the Tribunal erred in finding that liability should be assessed as of March of 1978. At this point, I would simply observe that while I agree that the Statement of Particulars could have been expressed more clearly as it related to the classification issue, there is no question but that the Government understood the nature of the allegations against it, and the case that it had to meet.
[63] I note from a review of the opening statements of counsel for both the Commission and for the complainants that their position before the Tribunal was that although the Government classification scheme was neutral on its face, it was being applied to Medical Adjudicators in a discriminatory fashion. It was also clearly asserted that the work performed by Medical Advisors was the same as that done by Medical Adjudicators: see the transcript of Tribunal hearing at pages 36-40 and 55-59. No concern was raised by counsel for the Government at the commencement of the Tribunal hearing that this represented a change in the position of the complainants and the Commission, or that he was taken by surprise in any way.
[64] Counsel for the Government confirmed that this was not a situation where it was prejudiced in some way by a change in the position of the complainants and the Commission, or that different evidence could have been led if it had properly understood the nature of the claim. In response to questions from the Court, counsel expressly confirmed that the issue was not one of fairness, and that the Government understood the nature of the allegations and the case that it had to meet.
[65] Rather, as I understand counsel’s concern, it is that the Tribunal’s analysis is flawed, and does not properly respond to the issues that it was called upon to decide. I will deal with this allegation as I examine each of the issues raised by the Government.
VI. Did the Tribunal Err in its Choice of Comparator Group?
[66] The Government argues that in identifying an appropriate comparator group for the purposes of this complaint, the Tribunal should have had regard to the level of skill, effort and responsibility involved in the position of female Medical Adjudicator and the comparator group. In this regard, the Government cites the decision of the British Columbia Human Rights Tribunal in Prpich v. Pacific Shores Nature Resort Ltd., 2001 BCHRT 26.
[67] The Government says that in carrying out its discrimination analysis, the Tribunal should properly have compared the situation of female Medical Adjudicators to that of male Medical Adjudicators, as these are the two groups actually performing similar work, requiring comparable levels of skill, effort and responsibility.
[68] The Government further contends that the fact that these two groups have always been treated in an identical fashion highlights the fact that the complainants are not suffering from gender-based adverse differential treatment. As a result, the complainants failed to establish a prima facie case of discrimination.
[69] The Tribunal rejected this argument as unreasonable, holding that male Medical Adjudicators are not a separate group, but are part of the predominantly female group of Medical Adjudicators. By virtue of their membership in this group, male Medical Adjudicators are themselves subject to any potential discriminatory difference in treatment vis-à-vis Medical Advisors.
[70] According to the Tribunal, a comparison of male Medical Adjudicators’ work with that of the female Medical Adjudicators would also not be a meaningful indicator of equal treatment of the overwhelmingly female population in the group. The Tribunal observed that the complainants alleged that their inferior working conditions were a function of the strong gender predominance of their occupational group. This allegation could not be properly tested by examining the working conditions of the small male minority within their ranks.
a) What Standard of Review Applies to the Tribunal’s Choice of Comparator Group?
[71] The first question to be decided in considering the Government’s argument is the appropriate standard of review to be applied to the Tribunal’s choice of Medical Advisors as the appropriate comparator group.
[72] The Government submits that the choice of comparator group is a question of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” as contemplated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 60. As a consequence, the Government says that this aspect of the Tribunal’s decision should be reviewed against the standard of correctness.
[73] In contrast, the Canadian Human Rights Commission argues that the Tribunal’s choice of comparator group should be reviewed against the standard of reasonableness. The complainants have made no submissions in this regard.
[74] The determination of the relevant comparator group in a specific case depends heavily on the facts of the particular case at hand. It does not involve a question of law of central importance to the legal system as a whole.
[75] Nor is the choice of comparator group a matter outside of the Tribunal’s specialized area of expertise. Indeed, the Supreme Court of Canada has determined that the identification of the relevant comparator in a given case is a core function that lies at the very heart of the Tribunal’s expertise: Canada (Human Rights Commission) v. Canadian Airlines International Ltd., 2006 SCC 1, [2006] 1 S.C.R. 3 at para. 42. As such, a high degree of deference is owed to the Tribunal’s finding in this regard: Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2010] F.C.J. No. 272 at para. 182, per Evans J.A., dissenting, but not on this point.
[76] In reviewing a decision against the reasonableness standard, the Court must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law: see Dunsmuir at para. 47 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
[77] With this in mind, I will next consider whether the Tribunal’s choice of Medical Advisors as the relevant comparator group was reasonable.
b) Was the Tribunal’s Choice of Comparator Group Reasonable?
[78] Equality is an inherently comparative concept. In order to determine whether there has been adverse differential treatment on the basis of a proscribed ground, it is therefore necessary to compare the situation of the complainant group with that of a different group.
[79] A review of Ms. Walden’s complaint form discloses that the essence of the complaint is the allegedly inferior treatment of Medical Adjudicators - a female-dominated occupational group - relative to the treatment accorded to a different, male-dominated occupational group, namely Medical Advisors. In particular, Ms. Walden and the other complainants object to the lack of professional recognition accorded to Medical Adjudicators relative to that accorded to Medical Advisors under the Federal Public Service job classification scheme.
[80] While the issues of classification and compensation are undoubtedly intertwined, this is not simply a wage discrimination case. While the complainants are undoubtedly concerned about their level of compensation and the extent of their employment benefits, they have also complained of the professional recognition allegedly denied to Medical Adjudicators as a result of their exclusion from the Health Services Group.
[81] The complaint is not about preferential treatment allegedly accorded to male Medical Adjudicators vis-à-vis female Medical Adjudicators. Indeed, any adverse differential treatment suffered by Medical Adjudicators relative to Medical Advisors would be experienced equally by both male and female Medical Adjudicators. As Justice Evans observed in his dissenting opinion in Canada Post, above, it is entirely possible to have males who are disadvantaged by being members of a female-dominated occupational group: at para. 185.
[82] As a consequence, comparing the situation of female Medical Adjudicators to that of male Medical Adjudicators would not allow for a meaningful examination of the fundamental basis for the complaint, and would thus make little sense. The Tribunal’s identification of Medical Advisors as the appropriate comparator group was reasonable.
[83] I do not agree with the Government that the fact that there may be differences in some of the day-to-day duties and responsibilities of Medical Advisors and Medical Adjudicators necessarily means that Medical Advisors cannot be the appropriate comparator group for the purposes of the Tribunal’s discrimination analysis.
[84] The evidence before the Tribunal was that positions are allocated to an Occupational Group having regard to the primary function of the position in question. According to Ms. Power, positions within the Health Services Group involve the application of a comprehensive knowledge of professional specialties in the fields of medicine or nursing to the safety and physical and mental well-being of people. As a result, an examination of the fundamental nature or primary or “core” function of the work performe