Walden v. Canada (Social Development )

Walden v. Canada (Social Development )
Collection
Canadian Human Rights Tribunal
Date
2007-12-13
Neutral citation
2007 CHRT 56
File number(s)
T1111/9205, T1112/9305, T1113/9405
Decision-maker(s)
Jensen, Karen A.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
RUTH WALDEN ET AL.
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
SOCIAL DEVELOPMENT CANADA, TREASURY BOARD OF CANADA, AND PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA
Respondents
DECISION
2007 CHRT 56 2007/12/13
MEMBER: Karen A. Jensen
I. INTRODUCTION
II. SUMMARY OF THE DECISION
III. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THIS COMPLAINT
IV. WHAT IS THE APPROPRIATE TIME FRAME FOR THE COMPLAINTS
V. WHAT IS THE PROCESS FOR DETERMINING ELIGIBILITY FOR CPP DISABILITY BENEFITS
VI. WHAT IS REQUIRED TO ESTABLISH A PRIMA FACIE CASE UNDER SECTIONS 7 AND 10 OF THE CHRA
VII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 7 OF THE CHRA
VIII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 10 OF THE CHRA
IX. WHAT IS THE RESPONDENT'S EXPLANATION
X. CONCLUSION REGARDING LIABILITY UNDER SECTIONS 7 AND 10 OF THE ACT
XI. WHAT IS THE APPROPRIATE REMEDY IN THIS CASE
I. INTRODUCTION [1] Ruth Walden is one of 431 Complainants who believe that the Respondents have discriminated against them on the basis of their gender. The Complainants are a group of predominantly female nurses who work as medical adjudicators in the CPP Disability Benefits Program. For 35 years they have worked alongside doctors, a predominantly male group of workers, in a common enterprise - the determination of eligibility for CPP disability benefits.
[2] The Complainants say that the doctors (known as medical advisors) and nurses (known as medical adjudicators) do the same work: they apply their medical knowledge to determine eligibility for CPP disability benefits. When medical advisors perform that work, they are classified as health professionals within the Public Service classification system. However, when the medical adjudicators do this work, they are not classified as health professionals. Rather, they are designated as program administrators. As a result of their classification, medical advisors receive better compensation, benefits, training, professional recognition and opportunities for advancement than medical adjudicators.
[3] The Complainants assert that it is discriminatory to treat a female dominated group of workers differently from a male dominated group when they are performing the same or substantially similar work. They seek to be treated the same as medical advisors.
[4] The issues to be determined in this complaint are whether the Respondents have discriminated against the Complainants on the basis of their gender by: (1) treating them differently from the medical advisors contrary to s. 7 of the Canadian Human Rights Act; and/or (2) pursuing a practice that deprives the Complainants of employment opportunities, contrary to section 10 of the CHRA.
II. SUMMARY OF THE DECISION [5] The Complainants met the legal requirement to establish a prima facie case under s. 7 of the Act. To meet that requirement the Complainants were required to produce credible evidence which, in the absence of a reasonable explanation from the Respondents, would substantiate their complaints.
[6] The Complainants' evidence supported their allegation that since 1972, medical adjudicators have performed the same or substantially similar work as the medical advisors. They both apply their medical qualifications and expertise to determine eligibility for CPP disability benefits. Yet, only the medical advisors are classified as health professionals within the Health Services (SH) Group in the Public Service, and only the advisors receive the benefits and recognition that flow from that designation.
[7] The Complainants have also made out a prima facie case under s. 10 of the Act. To establish a prima facie case there must be credible evidence that the Respondent is pursuing a practice that deprives or tends to deprive individuals of employment opportunities.
[8] The Complainants' evidence supported their allegation that the Respondent's ongoing characterization of the Complainants' work as fundamentally different from that of the advisors' constitutes a practice that deprives the Complainants of employment opportunities.
[9] The burden then shifted to the Respondent to provide an explanation for the conduct that has been found to be, on the face of it, discriminatory.
[10] The Respondents provided a reasonable explanation that rebutted part of the Complainants' prima facie case, but not all of it. While there is a significant overlap in the functions of the two positions, there are also some important differences. Within the common enterprise of eligibility determination, medical advisors exercise an oversight and advisory role that is not performed by the adjudicators. This results in some differences in the job tasks performed by advisors and adjudicators. These differences explain the distinction in the job titles and explain some of the differences in compensation and benefits.
[11] However, the differences are not significant enough to explain the wide disparity in treatment and, more particularly, they do not explain why the advisors are recognized as health professionals and the adjudicators are not. The core function of both positions is applying professional knowledge to determine eligibility for CPP disability benefits. The Respondents have failed to provide a reasonable, non-discriminatory explanation as to why this function is medical work when the advisors do it, and program administration work when the adjudicators do it.
[12] The Respondents also failed to show that classifying the medical adjudicators as health professionals within the Health Services Group would cause them undue hardship. Therefore, I have found that the complaints are substantiated.
III. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THIS COMPLAINT? [13] In 1966, the Canada Pension Plan (CPP or the Plan) came into being. Along with pension benefits, the Plan offered disability benefits to workers. A person was eligible for disability benefits if he or she had contributed to CPP for a minimum of 5 years and had a severe and prolonged mental or physical disability.
[14] In about 1971, medical doctors were hired to determine applicants' eligibility for CPP disability benefits. There were so many applications that the doctors were unable to process the applications on a timely basis. A backlog developed. For this reason, in 1972, the Director of the program hired registered nurses to work with the doctors to determine eligibility for disability benefits.
[15] The determination of eligibility for CPP disability benefits requires the use of medical knowledge to fully understand and assess the documentation submitted in support of the application. Both medical advisors and medical adjudicators have always used their professional knowledge to determine eligibility for CPP disability benefits. Neither position involves the provision of direct patient care.
[16] The use of medical advisors' professional knowledge in the determination of eligibility is reflected in the classification of their position within the Public Service of Canada. The adjudicators' use of their professional knowledge of nursing is not reflected in their classification.
[17] The classification of positions in the Public Service is important. It determines, among other things, the professional recognition, pay and benefits, and opportunities for continuing education and career advancement that the incumbent will receive. Positions are classified according to the primary function of the position. They 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 Classification Standards that are more specific to the kinds of work that are done within that group. For example, within the Health Services (SH) Group there is the Nursing (NU) Classification Standard, and the Medicine (MD) Classification Standard, among others. Within the Program and Administrative Services (PA) Group, there is the Programme Administration (PM) Classification Standard, among numerous others.
[18] Medical advisors are classified as MD's within the Health Services Group. The Health Services Group definition includes positions that involve the application of medical or nursing knowledge (among other professional specialties) to the safety, and physical and mental well-being of people. Medical advisors have always been included in this 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] Medical adjudicators have always been classified as PM's within the Program and Administrative Services (PA) Group. The PA Group comprises positions that primarily involve the planning, development, delivery or management of administrative and federal government programs to the public. Positions within the PA Group do not involve the application of a comprehensive knowledge of professional specialties such as nursing or medicine.
[20] From 1988 until just recently, the medical adjudicators have been seeking recognition as health professionals through classification of their position in the Nursing (NU) Group within Health Services. These attempts have been unsuccessful. Over the years, a number of classification reviews have been undertaken by the Respondents Treasury Board and Public Service Human Resources Management Agency of Canada (PSHRMAC; now CPSA), and in each case the classification of the medical adjudicator position has been confirmed in the PM group.
[21] In 2004, Ruth Walden filed a human rights complaint with the Canadian Human Rights Commission. Between 2004 and 2007, 430 other medical adjudicators filed human rights complaints alleging the same discriminatory conduct and requesting the same remedy.
[22] The majority of the Complainants were represented by counsel during the hearing. Approximately 17 Complainants were not represented during the hearing. Those Complainants who were not represented by counsel were provided with information about the hearing through regional representatives.
IV. WHAT IS THE APPROPRIATE TIME FRAME FOR THE COMPLAINTS? [23] Each Complainant alleges that the discriminatory conduct began on the date that she or he was hired, and has continued either until the present time (if the individual is still employed in the CPP Disability Benefits Program), or when her or his employment with the Program ended.
[24] Counsel for some of the Complainants provided a list of the dates of hire for those Complainants whom he represented. The earliest date is August of 1979. The latest date mid-February of 2007. The dates of hire for those Complainants who did not retain counsel were not provided to the Tribunal. Albina Elliott, one of the first nurses hired in 1972, testified during the hearing. Counsel for some of the Complainants stated that Ms. Elliott had filed a complaint. However, her name does not appear on the list of Complainants that was provided to the Tribunal by the Commission and counsel for the Complainants.
[25] During the hearing, counsel for some of the Complainants argued that although the complaint forms indicate that the discriminatory conduct began when the Complainants were hired, the Tribunal can and should make a finding that the impugned conduct began in 1972, when the first nurse was hired and classified as a PM.
[26] I disagree with this argument.
[27] The Canadian Human Rights Act came into force in March of 1978. The Courts and this Tribunal have consistently held that the CHRA does not have retrospective application to conduct and practices that occurred before the Act or its amendments came into force (Robichaud [1987] 2 S.C.R. 84, at para. 20; Nkwazi v. Canada (Correctional Services Canada), [2001] C.H.R.D. No. 1, TD 1/01 at para. 233; cited with approval in: Chopra v. Canada (Attorney General), 2007 FCA 268, at para. 50).
[28] In Latif v. Canadian Human Rights Commission [1980] 1 F.C. 687, the Federal Court of Appeal held that the newly enacted CHRA had retrospective application only in a very limited sense. It applied to conduct that began before the Act came into force and continued for a short time after its enactment (Latif, at para. 34). This was to enable the Commission to deal with complaints that were ongoing at the time the Act came into force. In that very limited sense, the Court held, the Act could have retrospective application to discriminatory practices begun before the Act came into force but continuing on or shortly after that date. Otherwise, the Court held, the CHRA does not apply retroactively. (On the issue of limited retrospectivity generally, see: Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, at para. 113).
[29] Accordingly, I conclude that the Respondents' potential liability in the present case is limited to conduct and practices following the coming into force of the CHRA.
[30] The Respondents contended that their potential liability for discriminatory conduct or practices should be further limited to one year prior to the filing of Ms. Walden's complaint. That would mean the limitation of liability to 2003 and onward. On that basis, the Tribunal would be required to dismiss the complaints of those Complainants who left the CPP disability benefit program prior to 2003.
[31] In my view, it would not be appropriate to do this. It is important, I think, to distinguish between a determination of the Respondents' liability for discriminatory conduct pursuant to sections 7 and 10 of the Act, and the exercise of the Tribunal's discretion under s. 53(2) of the CHRA to compensate victims for losses caused by the discriminatory conduct. They are related, but separate questions. The question of liability for discriminatory conduct should, in my view, be considered separately from the remedy that may flow from that determination.
[32] In this case, the Complainants allege systemic discrimination. By its nature, systemic discrimination occurs over time and cannot be isolated to a single action or statement (Public Service Alliance of Canada v. Canada (Department of National Defence) (NPF) [1996] 3 F.C. 789 at para. 16). For that reason, it is not appropriate in this case to fix an arbitrary date upon which the discriminatory conduct will be deemed to have commenced for the purposes of determining liability. Instead, the Tribunal must examine the evidence and make a determination, on the balance of probabilities, as to whether discriminatory conduct occurred and if so, when the conduct occurred.
[33] This does not mean, however, that the Tribunal cannot impose a limit on the compensable losses caused by the discriminatory practice in the event that the complaints are substantiated. Indeed in the recent case of Chopra v. Canada (Attorney General), 2007 FCA 268, the Federal Court of Appeal indicated that the discretionary power under s. 53(2)(c) to award any or all of the losses suffered, leaves it open to the Tribunal to impose a limit on losses caused by the discriminatory practice. In my view, it was in the context of a consideration of the appropriate exercise of the Tribunal's discretionary powers under s. 53(2), that the Court in NPF stated that it was reasonable, in that case, to limit compensation for lost wages to one year prior to the filing of the complaint. However, at this stage in the determination of liability, a one year limitation is not appropriate.
[34] For all of these reasons, liability will be assessed from March 1978 to the present time. Nevertheless, for the limited purpose of analyzing the work that was, and is, being done by the medical adjudicators and the advisors, and the circumstances that gave rise to the alleged discriminatory conduct, it is necessary to examine the whole history of the case from 1972 to the present.
V. WHAT IS THE PROCESS FOR DETERMINING ELIGIBILITY FOR CPP DISABILITY BENEFITS? [35] To understand the issues in this case, it is helpful to have a basic understanding of the process for determining eligibility for CPP disability benefits. There are two conditions for eligibility: the applicant must have made sufficient contributions to CPP, and the disability must be prolonged and severe.
[36] The process for determining eligibility for CPP disability benefits was, and still is, as follows:
an individual makes an application for benefits; an initial determination is made about whether to grant the benefits on the basis of the eligibility criteria; if the application is denied, the applicant may apply for a reconsideration of the decision; if benefits are denied at the reconsideration stage, the applicant may appeal the decision to the Review Tribunal (RT) (formerly known as the Review Committee); if benefits are again denied at the RT stage, the applicant may apply for leave to appeal to the Pension Appeals Board (PAB); if the applicant is granted benefits at the RT stage, the Minister in charge of the CPP program may apply for leave to appeal the RT decision; both the applicant and the Minister may apply to the Federal Court of Appeal for judicial review of the PAB decision; at any stage of the process, an applicant may submit additional or new medical or non-medical information. The decision-maker at that particular stage considers the information in determining eligibility for CPP disability benefits.
[37] The following flow chart may be helpful in visualizing the CPP disability benefit determination process. It is important to bear in mind, however, that 90% of all applications for CPP disability benefits are conclusively determined at the initial or reconsideration levels. Relatively few cases are appealed to the RT or PAB. Even fewer cases are the subject of applications for judicial review.
Initial -> Reconsideration -> Review -> Pension Appeals -> Federal Court
Determination Tribunal Board of Appeal
VI. WHAT IS REQUIRED TO ESTABLISH A PRIMA FACIE CASE UNDER SECTIONS 7 AND 10 OF THE CHRA? [38] A discriminatory practice is defined under s. 7 of the Act as adverse differentiation on the basis of a prohibited ground of discrimination. To establish a prima facie case under s. 7, the Complainants must present evidence that they are being adversely differentiated on the basis of their gender. With respect to s. 10(a) of the Act, evidence must be presented of a policy or practice that deprives, or tends to deprive, the Complainants of an employment opportunity based on a prohibited ground of discrimination.
[39] Statistical evidence that apparently neutral conduct negatively affects a disproportionate number of members of a protected group is sufficient to establish a prima facie case under sections 7 and 10. For example, in Chapdelaine v. Air Canada, 1987 CanLII 102 (C.H.R.T.); appeal on other grounds at (1991), 15 C.H.R.R. D/22 (C.H.R. Rev. Trib.), the complainants, both women, possessed all of the qualifications necessary to be pilots for Air Canada save only that they failed to meet the height requirement. The Tribunal accepted statistical evidence regarding the height of men and women in the general population, and concluded that although, perhaps on its face neutral, the effect of the application of the height requirement was to deprive 82% of all Canadian women and 11% of all Canadian men between the ages of 20 and 29 of the opportunity for employment as a pilot. Therefore, the Tribunal found that the policy affected women differently from men. Evidence of a disproportionate impact of the rule on women was sufficient to establish a prima facie case under ss. 7 and 10 of the Act.
[40] The comments of Madame Justice L'Heureux-Dubé in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission) [1989] 2 S.C.R. 879 (SEPQA) at paras. 80-82, although written in dissent and in obiter, are also instructive in the present context. In that case, Justice L'Heureux-Dubé stated that to establish a prima facie case under ss. 7 and 10, statistical evidence of professional segregation of the kind provided in that case is a most valuable tool. The evidence in SEPQA was that a predominantly female group of employees, who were working under similar conditions and at jobs having the same objective, were paid less than a predominantly male group of employees. That, said Justice L'Heureux-Dubé, was sufficient to establish a prima facie case under ss. 7 and 10 of the CHRA, but not sufficient to establish a prima facie case under s. 11. Under s. 11, the Complainant must provide evidence that the work is of equal value in addition to providing evidence of professional segregation.
[41] This is not a section 11 complaint. Therefore, to establish a prima facie case, the Complainants need not provide evidence of the equal value of the work. Rather, to establish a prima facie case under s. 7 of the CHRA, it is sufficient for the Complainants to present evidence that they constitute a predominantly female group of workers who are performing the same or substantially similar work as the predominantly male group of medical advisors, and yet are treated differently than the advisors. To establish a prima facie case under s. 10, it is sufficient to present evidence of a practice that has a disproportionate impact on women by depriving them of employment opportunities that are available to men who are performing the same or substantially similar work.
VII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 7 OF THE CHRA? (i) What is the appropriate comparator group?
[42] The appropriate comparator group is implicit in the requirement for establishing a prima facie case: it is the group of predominantly male workers who are performing the same or substantially similar work to that of the Complainants. That group is the medical advisors. There is no other group of predominantly male employees in the CPP Disability Benefits program whose work could arguably be described as the same as or substantially similar to that of the adjudicators.
(ii) What is the evidence of gender predominance?
[43] Before they are hired, medical adjudicators are required to provide proof that they are licensed to practice as a Registered Nurse in Canada. There was no dispute that 95% of nurses are women. The predominance of women in nursing and the requirement to produce a nursing license before being hired as an adjudicator results in an overwhelming preponderance of women in the medical adjudicator position. Currently, according the Respondents, 95% of all medical adjudicators are women.
[44] The Respondents produced evidence that 80% of medical advisors are men.
(iii) What is the evidence that the work of the medical advisors is the same or substantially similar to that of the medical adjudicators?
[45] There are three distinct time periods in this case, marked by key events that affect the nature of the work done by the medical advisors and adjudicators. The prima facie case will be analyzed according to this temporal framework.
1972- 1989
[46] From 1972 to 1989, final determinations regarding eligibility for CPP disability benefits were made by the Director of the Disability Program, based on the recommendations of a Disability Determination Board. The Board was composed of at least two persons, one of whom was required to be a duly qualified medical practitioner (Canada Pension Plan Regulations, Consolidated Regulations of Canada 1978, c. 385, s.71(1)).
[47] Albina Elliott, one of the first nurses hired in 1972, testified that both adjudicators and advisors assessed applications and signed recommendations to the Director. When the applications came in, they were placed in files on shelves. Medical advisors and adjudicators went to the shelves and took the file that was closest to them regardless of the complexity of the file. He or she would independently review the file and make a recommendation to grant or deny benefits. Ms. Elliott testified that the adjudicators were required to have a medical advisor sign off on their recommendations.
[48] Alfred Gregory, a physician who has been employed as a medical advisor in the CPP Disability Benefits Program since 1980, also testified that medical advisors were required to sign off on recommendations made by adjudicators during this time period. He stated, however, that medical adjudicators and advisors worked as colleagues; the adjudicators' professional judgment and recommendations on files were generally accepted.
[49] Dr. Gregory testified that both medical adjudicators and advisors performed the same core function during this time period - assessing applications and making recommendations for CPP disability benefits. He stated that this core function has always required the use of medical knowledge, training and experience by both medical advisors and medical adjudicators. Occasionally, medical advisors provided advice to the medical adjudicators on difficult files.
[50] Dr. Gregory testified that since the inception of the program, medical advisors have gradually ceded the work that they have done in determining eligibility for benefits to the medical adjudicators. At first only the medical advisors made the initial assessments. Then the medical adjudicators were hired, and they did initial applications as well. After that, the medical advisors handled only the reconsiderations and the Review Committee work. However, over time, that work too was given to the medical adjudicators.
[51] Dr. Gregory stated, by way of example, that prior to 1983, only medical advisors prepared the case summaries that were presented to the Review Committee. The Review Committee, composed of three members from the community, heard appeals from reconsideration decisions. The case summary that was provided to the Review Committee, outlined the chronology of the file, explained the medical issues, summarized the case law, and provided a recommendation regarding eligibility to the Committee.
[52] In about 1982, the medical advisors indicated that they did not like preparing the case summaries. Ms. Elliott was asked to assume responsibility for this work. She was trained by a medical advisor and in April of 1983, she assumed full responsibility for preparing case summaries. The approval of a medical advisor was not required before she sent them to the Review Committee. Subsequently, additional nurses were hired to assist Ms. Elliott in preparing the case summaries.
[53] Dr. Gregory testified that when the medical advisors and the medical adjudicators were making initial determinations and reassessments, and preparing case summaries for the Review Committee, there was no difference in the functions that the two were performing. When Ms. Elliott did this work she was classified as a program administrator (PM). When Dr. Gregory did this work he was classified as a MOF or medical officer (MD).
1989 - 1999
[54] In 1989, changes were made to the CPP Regulations which permitted a single adjudicator to make final decisions on eligibility for disability benefits (Canada Pension Plan Regulation, amendment SOR/89-345, s. 7 of the Schedule). The new Regulations, which are still in force today, include a Regulatory Impact Statement which states that the adjudication of and final decision on disability applications will be done by specially trained adjudicators with professional medical backgrounds (e.g. nurses, paramedics) and experience in the field of disability adjudication (Workers Compensation, Quebec Pension Plan). Staff physicians will be available at all times for consultation on contentious cases (SOR/89-345: Canada Gazette Part II, Vol. 123, No. 15).
[55] Even though the Regulations stipulated that the adjudicators would be making the final decisions with regard to disability applications, the evidence established that from 1989 until about 1999, both medical advisors and medical adjudicators continued to make final determinations on initial applications and reconsiderations. Both were able to make final decisions without the signature or approval of the other.
[56] In about 1996, the adjudication of initial applications and reconsiderations was regionalized. As a result, from 1996 - 1999, most of these determinations, which were once the exclusive responsibility of medical advisors, were now being made in the regional offices by medical adjudicators. There were no medical advisors in the regional offices. However, there were still medical advisors in Ottawa who made final determinations on initial applications and reconsiderations until 1999.
[57] In 1988, the Medical Expertise Division (MED) in Ottawa was created to handle appeals to the Pension Appeals Board (PAB) and to provide expert medical advice on difficult files. Both medical advisors and medical adjudicators worked in MED to prepare for the PAB hearing. The Pension Appeals Board was, and still is, composed of three judges who make eligibility determinations at the final stage of appeal in the CPP Disability Benefit Program. Medical advisors testify under oath or affirmation before the PAB about the medical issues in the file.
[58] Ruth Walden, one of the Complainants, was hired in 1993 to work as a medical adjudicator in MED. She continues to work in MED. Ms. Walden testified that the doctors and nurses in MED worked together to work up the file for a PAB hearing. This involved reviewing the file, seeking additional medical information if necessary, and making a decision as to whether the case should be settled before it goes to the PAB.
[59] Dr. Gregory and Ms. Walden testified that the primary function of both adjudicators and advisors in MED, and in the regions during this time period, was to apply their comprehensive medical knowledge to determine eligibility for CPP benefits. Dr. Gregory testified that there was no difference in the work done by medical adjudicators making final eligibility determinations in the regions from the work done by medical advisors in Ottawa who were making eligibility determinations during this period.
1999 - Present
[60] By 1999, all medical advisors employed in the CPP Disability Benefits Program had migrated to MED. Since that time, the final adjudication of all disability benefits at the initial and reconsideration levels has been handled by the medical adjudicators. In Manitoba and Saskatchewan, medical adjudicators represent the Minister in hearings before the Review Tribunal (RT). Medical advisors are involved in the initial, reconsideration and Review Tribunal stages of disability determination only when there is a request for their advice, or there is a backlog of applications to be processed. Dr. Gregory testified that medical advisors provide advice on only 1-2% of the files at the initial, reconsideration or RT stage. Backlogs occur infrequently.
[61] Dr. Gregory testified that since 1999, the majority of the work done by medical advisors in MED involves preparing for, and appearing before the PAB. This involves an extensive review of the file, preparation of a case summary and testifying under oath or affirmation before the PAB.
[62] Since 1999, one of the Complainants, Elizabeth Franklin, has represented the Minister responsible for the CPP Disability Benefit Program before the Review Tribunal in Manitoba and Saskatchewan. Before she attends an RT hearing, Ms. Franklin prepares a case summary for the Tribunal which includes an analysis of the medical and legal issues in the file. She then appears before the Tribunal, asks questions of the witnesses and answers questions from the Tribunal. Ms. Franklin explains the Minister's position and the medical issues in the case to the Tribunal. She points out inconsistencies in the oral testimony. Ms. Franklin is authorized to offer a settlement, without prior approval, to the applicant prior to the commencement of the hearing if she is of the view that the applicant's case is a strong one.
[63] The description of the work that medical advisors do to prepare for, and appear before the PAB was read to Ms. Franklin. Ms. Franklin stated that, other than testifying under oath or affirmation, the work that she does at the RT stage is the same as the work of the medical advisors at the PAB stage. Both the advisor and the adjudicator present the Minister's position at the hearing, both are required to explain the basis for the previous decision from which the appeal is being sought, and both are called upon by the decision-makers to explain medical conditions, terminology and diagnoses.
[64] Dr. Gregory testified that in the Medical Expertise Division, both medical advisors and adjudicators work on cases that are appealed to the PAB. He testified that the primary function of both positions in MED is disability determination.
[65] Both medical advisors and adjudicators may be involved in outreach and policy development work. Dr. Gregory works with other medical advisors on policy development and analysis. Ruth Walden testified that she knew of at least one medical adjudicator who is working in the policy development area. The medical adjudicator's job description stipulates that adjudicators may participate in or lead teams engaged in training and policy development.
[66] Dr. Gregory does outreach and networking with other divisions in the government, and with professional and medical associations. The medical adjudicator's job description states that the adjudicators may also represent the CPP Disability Benefit program in consultations with internal and external clients/stakeholders (including MP's, the medical community, representatives of insurance companies, special interest groups, the Canadian public) to provide advanced technical knowledge of program eligibility and medical issues.
(iv) Conclusion Regarding the Similarity of the Work of Medical Adjudicators and Advisors
[67] Based on the foregoing evidence, I am satisfied that the Complainants have established a prima facie case that the work they have done since March of 1978, and are still doing at the present time, is the same or substantially similar to the work of the medical advisors.
[68] The Complainants' evidence indicated that since the inception of the CPP Disability Benefit Program, the primary responsibility and function of both the medical advisors and the medical adjudicators has been to use their professional expertise and knowledge to determine eligibility for CPP disability benefits at all stages of the process, and/or to prepare for, and represent the Minister in appeals.
[69] Specifically, both advisors and adjudicators have performed the following functions at various points throughout the three time periods in this complaint:
making recommendations and decisions on initial applications involving varying degrees of complexity and difficulty in terms of the medical and legal issues involved; making recommendations and decisions on reconsideration applications that were also varied in terms of their level of complexity and difficulty; preparing case summaries for the Review Committee, or as it was later called, the Review Tribunal; requesting additional medical and non-medical information from applicants and others on an application for CPP disability benefits; preparing a file for the Pension Appeals Board; making an offer to settle or a recommendation to settle (without prior approval); working on policy and outreach.
[70] Over the three time periods, the amount of time spent by the advisors and the adjudicators performing the overlapping functions has shifted. However, the evidence established that from 1972 until 1999, there were medical advisors and medical adjudicators whose primary function was to make recommendations or final determinations on initial and reconsideration applications and to prepare case summaries for the Review Committee. The work on initial applications and reconsiderations represented a considerable amount of the advisors' and adjudicators' workloads since over 90% of all applications are conclusively determined at one of those two levels. As time went on, more and more adjudicators were hired and the medical advisors spent less time working on initials, reconsiderations and RT work and more time on PAB appeals. But, from 1972 - 1999, there were always advisors and adjudicators who performed substantially the same function of determining eligibility at the initial and reconsideration levels, as well as preparing case summaries for the RT.
[71] Since 1999, medical adjudicators in the regions have been doing substantially the same work that advisors performed from 1972-1999: the final determination of eligibility for CPP disability benefits at the initial and reconsideration levels.
[72] Also since 1999, medical advisors and medical adjudicators have performed similar functions in MED preparing cases for the PAB hearing. The work that the medical adjudicators have done in Manitoba since 1999 to prepare for and present a case before the Review Tribunal is substantially similar to the work done by the medical advisors in preparing for and testifying before the Pension Appeal Board.
(v) What is the differential treatment?
a) Professional Recognition
[73] Medical advisors have always been recognized as health professionals under the Public Service classification scheme, whereas medical adjudicators have not. Although neither position involves hands-on patient care, they both require professional knowledge about permanent disabling conditions.
[74] The knowledge required to perform a function is not generally relevant to the allocation of a particular position to an Occupational Group within the Public Service Classification system. However, in the case of the Health Services Group, the definition explicitly states that for a position to be classified within that Group, the position must primarily involve 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.
[75] The application of medical advisors' knowledge of relevant professional specialties in the determination of eligibility for CPP benefits has always been reflected in the medical advisors' classification as MD's within the Health Services Group. However, the application of the medical adjudicators' knowledge of relevant professional specialties has never been reflected in their classification as program administrators (PM) within the Program Administration (PA) Group.
b) Salary and Benefits
[76] Ms. Walden testified that medical advisors have always been paid roughly twice as much as medical adjudicators and receive a yearly retention bonus which the adjudicators do not receive. The difference in pay is reflected in the adjudicators' comparatively lower pension benefits at retirement.
[77] Ms. Walden stated that health professionals in the Health Services Group, including medical advisors, have always received more vacation allowance than medical adjudicators. The Respondent did not dispute this.
c) Payment of Professional Fees and Educational/Training Opportunities
[78] The Respondent Social Development Canada (SDC) has paid the licensing fees for medical advisors on a yearly basis. Payment of the advisors' fees does not come out of the training and education budget line for the medical advisors in the CPP Disability Benefit Program.
[79] In contrast, until 1999, the medical adjudicators paid their own fees to maintain their nursing licenses and were not entitled to reimbursement from SDC. They grieved t