Canada Post Corporation v. Canadian Postmasters and Assistants Association (CPAA)

Canada Post Corporation v. Canadian Postmasters and Assistants Association (CPAA)
Court (s) Database
Federal Court Decisions
Date
2016-07-28
Neutral citation
2016 FC 882
File numbers
T-642-15
Decision Content
Date: 20160728
Docket: T-642-15
Citation: 2016 FC 882
Ottawa, Ontario, July 28, 2016
PRESENT: The Honourable Mr. Justice Gleeson
BETWEEN:
CANADA POST CORPORATION
Applicant
and
CANADIAN POSTMASTERS AND
ASSISTANTS ASSOCIATION (CPAA)
Respondent
JUDGMENT AND REASONS
I. Overview [1] Canada Post Corporation [CPC or the applicant] employs postmasters and their assistants in rural and suburban post offices throughout Canada. These postmasters and their assistants are represented by the Canadian Postmasters and Assistants Association [CPAA or the respondent]. They form the Revenue Postal Operations Group within the CPAA. The majority of individuals employed in the Revenue Postal Operations Group are female employees; it is a female-dominated group.
[2] For more than thirty years CPAA has alleged pay inequity between the Revenue Postal Operations Group [Complainant Group], and a group represented by the Canadian Union of Postal Workers [CUPW] which the respondent alleges is male-dominated and performs substantially the same work for CPC as the Complainant Group.
[3] More than twenty years ago CPAA initiated a complaint with the Canadian Human Rights Commission [CHRC] alleging pay inequity between the Complainant Group and the Postal Operations Internal and External Group within CUPW. After more than twenty years the substantive aspects of the complaint have not been addressed and in excess of 6,000 current and retired employees affected by the alleged discrimination have not received an answer to their complaint.
[4] In March, 2015, after considering a lengthy CHRC report [Section 41/49 Report or Report], the CHRC referred the Complaint to the Canadian Human Rights Tribunal [Tribunal] without further investigation.
[5] The issue of delay was a common thread that ran through the CHRC report. After finding CPC, rather than CPAA, was often responsible for the delays associated with the matter, the CHRC identified the issue of delay as a factor justifying its decision to deal with the complaint and refer it to the Tribunal rather than conducting further investigation.
[6] CPC seeks judicial review of the CHRC Decision to refer the complaint to the Tribunal.
[7] The applicant, CPC, advances the position that the CHRC acted in a procedurally unfair manner in failing to address their submissions identifying deficiencies in the CHRC report. The applicant further argues the CHRC’s misapprehension of the evidence and reliance on bald assertions in alleging discrimination render the Decision unreasonable. I do not agree. The CHRC decision was reasonable based on the record before it and there was no breach of procedural fairness. I therefore dismiss the application for the reasons that follow.
II. Background A. The Complaint [8] This complaint has a long history rooted in a 1982 complaint the CPAA initiated with the CHRC that the parties agreed to resolve in 1985. However, the CHRC refused to approve the settlement agreement, reopening the investigation in 1989. The CHRC subsequently determined in 1991 that it would take no further steps and dismissed the 1982 complaint.
[9] In November, 1992, the respondent filed a second complaint with the CHRC [Complaint] alleging that from September 1, 1992 the applicant had discriminated against members of the female dominated Revenue Postal Operations Group. It is this Complaint that is subject of the application for judicial review.
[10] The applicant requested the CHRC not deal with the Complaint on the basis the CPAA had: (1) not exhausted alternative and reasonably available review and grievance procedures; and (2) the Complaint had been made in bad faith. In October, 1994 the CHRC refused to exercise its discretion to dismiss the Complaint [1994 CHRC Decision] and the applicant filed an application for judicial review with this Court.
B. Judicial Review of 1994 CHRC Decision [11] Justice Rothstein dismissed the judicial review application (Canada Post Corp v Canada (Canadian Human Rights Commissions), [1997] FCJ No 578 at para 12, 130 FTR 241 (TD) [Canada Post FC]), a decision that was upheld by a unanimous Federal Court of Appeal (Canada Post Corp v Canada (Human Rights Commission), [1999] FCJ No 705, 169 FTR 138 (CA)). On June 25, 1999, the Supreme Court of Canada dismissed the applicant’s application for leave to appeal that decision (Canada Post Corp v Canada (Canadian Human Rights Commission), [1999] SCCA 323).
C. 1997 Memorandum of Agreement [12] The Complaint was not advanced pending determination of the applicant’s judicial review application of the 1994 CHRC Decision. However the parties did enter into a Memorandum of Agreement in December of 1997 [1997 MOA] in furtherance of the collective bargaining process. The 1997 MOA required the parties to: (1) implement a joint job evaluation plan; (2) negotiate the rates of pay in the collective agreement with the understanding those rates were equitable and respected the CHRA as of March 20, 1997; and (3) review the matter of a wage gap with a pay equity expert and to address any gap through negotiation.
D. The Petersen Report [13] Further to the 1997 MOA, the parties retained a pay equity expert, Mr. Petersen, to determine if there was a wage gap between a sub-group of the PO Internal and External Group [PO4] and the Complainant Group. Mr. Petersen prepared a report on April 8, 1998 [the Petersen Report].
[14] The comparator group identified in the Complaint was not the comparator group adopted in the Petersen Report. Rather the Petersen Report focused on the PO4 sub-group within the larger PO group. In addition, the Petersen Report focused solely on the issue of whether or not there was a wage gap between the Complainant Group and the PO4 sub-group. The Petersen Report did not consider whether the PO4 sub-group was male dominated and reached no conclusion on this issue.
E. Efforts to Resolve the Complaint [15] The Section 41/49 Report describes numerous failed efforts to informally resolve the Complaint. These efforts included an attempt at formal mediation and subsequently the involvement of a conciliator. In 2006 the CHRC: (1) deferred the Complaint to allow the parties to pursue resolution as between them; and (2) provided if the parties failed to reach an agreement, the respondent could request the CHRC exercise its discretion to deal with the Complaint [2006 CHRC Decision]. Neither party sought judicial review of the 2006 CHRC Decision.
[16] Subsequent to the 2006 CHRC Decision the parties entered into a second Memorandum of Agreement [2006 MOA]. The 2006 MOA acknowledged that the existing job evaluation plan was applicable to all positions in the bargaining unit and that it was free of gender bias or discrimination based on prohibited grounds under the CHRA. Like the 1997 MOA, the 2006 MOA did not address the question of gender bias or discrimination based on prohibited grounds under the CHRA for the period between the initiation of the Complaint in 1992, and the 1997 MOA.
[17] The respondent continued to pursue the Complaint and in November, 2009 advised the CHRC that an investigation was required. In expressing this view the respondent also advised the CHRC that a separate pay equity matter before the Federal Court of Appeal engaged issues relevant to the Complaint - that matter involved a pay equity dispute with CPC where the Comparator Group was the same Comparator Group identified in the Complaint (Canada Post Corp v Public Service Alliance of Canada, 2010 FCA 56, 15 Admin LR (5th) 157 [PSAC FCA]). On this basis the CHRC was asked to keep the file open pending a decision in the PSAC FCA matter. The CHRC responded it would leave the timing of any reactivation of the Complaint to the respondent.
[18] In February, 2010, the Federal Court of Appeal issued a divided decision in PSAC, the majority finding in favour of CPC with Justice Evans in dissent. Justice Evan’s dissent was upheld by a unanimous Supreme Court of Canada in Public Service Alliance of Canada v Canada Post Corp, [2011] 3 SCR 572 [PSAC SCC] on November 17, 2011.
F. Reactivation of the Complaint [19] In 2010 the respondent undertook efforts to obtain information relevant to reactivation of the Complaint. In response the applicant initially took the position it needed more time to review and respond. However, in December, 2011 the applicant advised the respondent it considered the file closed and would not formally respond or provide the information requested. The respondent requested that the CHRC exercise its discretion to deal with the Complaint.
[20] In October, 2012 the CHRC wrote to the applicant advising that: (1) the respondent had returned to the CHRC for reactivation of the Complaint; (2) the matter will be resubmitted to the CHRC to decide whether to proceed with the Complaint under section 41 of the CHRA; (3) the CHRC invited CPC to provide its position on the issues for decision; and (4) the CHRC attached information on the factors to be considered by the CHRC in making its decision. The CHRC further advised it would not be addressing the substance of the Complaint at that time but would be limiting its review to the issues raised under subsection 41(1), and in particular referenced paragraphs 41(1)(a) and 41(1)(d).
[21] The CHRC received submissions from the parties and issued the Section 41/49 Report finding that the Complaint required further inquiry. The Report found that the Complaint was not frivolous, vexatious or made in bad faith and the CHRC should exercise its discretion to deal with the Complaint and not refer it to another procedure. The Report further concluded it would not be in the public interest for the CHRC to conduct further investigation on a number of grounds: (1) there was sufficient information to warrant referral to the Tribunal; (2) the long delay associated with the Complaint; (3) it was in the public interest that the Tribunal deal with allegations of systemic discrimination affecting upwards of 6,000 employees requiring expert evidence; and (4) all the matters warranted a full inquiry best addressed by the Tribunal rather than further investigation from CHRC.
[22] Based on the above noted conclusions the Report recommended the CHRC: (1) deal with the allegations raised by Complaint for the period between the initiation of the Complaint and March 20, 1997; and (2) that it request the Tribunal to institute an inquiry into the Complaint pursuant to subsection 49(1) of the CHRA.
[23] After receiving submissions from the parties on the Section 41/49 Report, the Acting Chief Commissioner of the CHRC adopted the recommendations of the Section 41/49 Report. In adopting the Section 41/49 Report, it became the reasons of the CHRC (Canada (Attorney General) v Davis, 2009 FC 1104 at para 52, 356 FTR 258 [Davis FC]).
III. Relevant Legislation [24] For ease of reference, relevant extracts from the CHRA are set out in Appendix A of these Reasons.
IV. Issues [25] The application raises the following issues:
A. Was there a breach of procedural fairness?
B. Was the CHRC Decision reasonable? This requires consideration of the following sub-issues:
1. Was the decision to deal with the complaint reasonable?
2. If the decision to deal with the complaint was reasonable, was it also reasonable to refer the complaint directly to the Tribunal?
V. Standard of Review [26] The reasonableness standard of review will be applied when considering the CHRC’s interpretation of its home statute and to issues of fact and mixed fact and law. Issues relating to procedural fairness will be reviewed on a standard of correctness.
[27] The role of the CHRC is not adjudicative. The adjudicative role is reserved to the Tribunal appointed under the CHRA (Cooper v Canada (Canadian Human Rights Commission), [1996] 3 SCR 854 at para 53, 140 DLR (4th) 193). Instead the CHRC screens and investigates complaints. It determines whether a particular complaint should be considered by the Tribunal. The role has been identified as involving: (1) the performance of an administrative and screening function with respect to complaints of discriminatory practices; (2) the acceptance, management and processing of those complaints; and (3) where a complainant is to be referred to a human rights tribunal, the CHRC performs a screening function similar to that of a judge in a preliminary inquiry. In reviewing a decision of the CHRC, the Court only considers the reasonableness of the “screening” decision (O’Grady v Bell Canada, 2012 FC 1448 at paras 37 and 38, 423 FTR 18).
[28] The CHRC’s interpretation of subsection 41(1) of the CHRA, its home statute and the CHRC’s decisions under that provision are reviewed on a reasonableness standard, subject to the exceptions identified in Dunsmuir v New Brunswick, [2008] 1 SCR 190 [Dunsmuir] (Public Service Alliance of Canada v Canada (Attorney General), 2015 FCA 174 at paras 28-29, 475 NR 232 [NAV Canada]). No such exception applies here.
[29] The decision of the CHRC to refer a complaint to the Tribunal for a determination on the merits under subsection 49(1) of the CHRA is also a discretionary decision attracting the reasonableness standard of review. In Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), [2012] 1 SCR 364 at para 43 [Halifax], Justice Cromwell writing for a unanimous Supreme Court of Canada held that “The reviewing court’s approach must reflect the appropriate level of judicial deference to both the substance of the administrative tribunal’s decision and to its ongoing process.” Applying that principle, Justice Cromwell stated at paragraph 45 that “the reviewing court should ask whether there was any reasonable basis on the law or the evidence for the Commission’s decision to refer the complaint to a board of inquiry.” This reflects judicial reluctance to intervene in ongoing administrative proceedings (Halifax at paras 49-52).
[30] Where a question of procedural fairness arises the matter is to be reviewed on a standard of correctness. Procedural fairness concerns may arise where it is alleged the CHRC failed to consider the submissions of a party (Canadian Museum of Civilization Corp v Public Service Alliance of Canada, 2014 FC 247 at para 40, 450 FTR 161 [Canadian Museum of Civilization]). However, in the subsection 41(1) context: “Procedural fairness dictates that the parties be informed of the substance of the evidence obtained by the investigator which will be put before the Commission and that the parties be provided the opportunity to respond to this evidence and make all relevant representations in relation thereto” (Deschênes v Canada (Attorney General), 2009 FC 1126 at para 10).
VI. Analysis A. Was There a Breach of Procedural Fairness? [31] In preparing the Report, the CHRC undertook a review of the Complaint under subsection 41(1) of the CHRA in advance of making recommendations to the CHRC. In conducting the review the CHRC interviewed Mr. Petersen in respect of the wage gap analysis he conducted pursuant to the 1997 MOA. The Report states that Mr. Petersen made the following statements:
The 1997 MOA demonstrated that the parties were aware of a pay equity problem up to that time; The pay equity problem was addressed moving forward, however the 1997 MOA did nothing to address/settle the pay equity allegations leading up to the 1997 MOA; Although the parties took opposing views on whether the Petersen Report was final, Mr. Petersen confirmed his Report was final; and On the issue of the gender composition of the different groups Mr. Petersen explained:
[I]t was already established/recognized by the parties that CUPW was male-dominated while CPAA was female-dominated. That is to say, neither party objected to the effect that the complainant group was not female-dominated or that the comparator group was not male-dominated i.e. they accepted that the complainant group was female dominated while the comparator group was male-dominated. For that reason, his study did not conduct a gender analysis but instead went directly to assessing whether a wage gap existed using the CPAA job plan to measure both the complainant and the comparator group (the PO4 group).
[32] The applicant argues that the author of the Report “mistakenly heard Mr. Petersen to say that the parties accepted that the PO4 comparator group was male dominated.” The applicant further argues the Report also fails to appreciate that the wage gap analysis conducted by Mr. Petersen did not establish a wage gap with the PO group, the comparator group identified in the Complaint.
[33] The applicant’s counsel provided submissions to the CHRC setting out the applicant’s view that Mr. Petersen’s statements had been misunderstood in the Section 41/49 Report noting , “The Petersen analysis was performed using a female dominated group (the complainants) and a neutral or female dominated group (the PO4s). As such, it does not reveal any hint of gender bias” and thus the Petersen Report could not be relied upon to conclude a wage gap existed between the CPAA and the comparator PO Group as alleged in the Complaint. The applicant further argued there was no information demonstrating that members of the PO group, outside the PO4 sub-group, performed work comparable to CPAA members.
[34] The applicant submits the CHRC was obligated to address the submissions it made when adopting the Report. The applicant submits the CHRC’s failure to do so renders the reasons deficient and “constitutes a violation of the principles of fundamental justice.” The applicant cites jurisprudence which it recognizes involves situations where the CHRC decision resulted in the dismissal of the complaint and where an investigation occurred (Egan v Canada (Attorney General), 2008 FC 649, 341 FTR 1; Dupuis v Canada (Attorney General), 2010 FC 511, 368 FTR 269; Public Service Alliance v Canada (Treasury Board), 2005 FC 1297, 279 FTR 242). However, the applicant submits “there is no reason why the requirement to refer to submissions regarding substantial omissions and errors would not apply at the Section 41 and/or Section 49 stage”, in the referral context.
[35] I cannot agree. Even if the issue the applicant raises is one of procedural fairness, the content of the duty of procedural fairness is lower in a referral decision than in a dismissal decision and the CHRC met that duty here.
[36] I begin with Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker], where Justice L’Heureux-Dubé reaffirmed that the content of the duty of procedural fairness varies based on the context of the case. Justice L’Heureux-Dubé set out five non-exhaustive factors for determining the content of the duty of procedural fairness owed: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) “the choices of procedure made by the agency itself” (Baker at paras 23-27). The Baker list is non-exhaustive and reflects “the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (Baker at para 28).
[37] The jurisprudence on the CHRC has considered the Baker factors and has distinguished between the content of the duty of procedural fairness in situations where the CHRC dismisses a complaint and the content of that duty where, as in this case, a complaint is referred to the next stage in the process. A referral by the CHRC to the Tribunal is not a final determination of a complaint and the CHRC’s duty to give reasons is less onerous than where the decision results in the dismissal of a complaint (Davis FC at paras 56 and 57).
[38] In Canada (Attorney General) v Davis, 2010 FCA 134, 403 NR 355 Justice Layden-Stevenson, speaking for a unanimous Federal Court of Appeal, states at paragraphs 5-7 :
[5] This Court has repeatedly stated that the Commission enjoys considerable latitude when performing its screening function on receipt of an investigator's report and that the courts must not intervene lightly in its decisions at this stage. See: Bastide et al. v. Canada Post Corporation, 2006 FCA 318, 365 N.R. 136 (citations to supporting authorities omitted), leave to appeal refused, [2006] C.S.C.R. no. 466.
[6] The Commission must act in accordance with natural justice. This requires that the investigation report upon which the Commission relies be neutral and thorough and that the parties be given an opportunity to respond to it: Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392 (F.C.A.) applying Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[7] While we do not endorse the entirety of the application judge's reasons for judgment, we are satisfied that he reached the appropriate conclusion based on the record before him. The record discloses a true debate: there is evidence in support of each side's position that is capable of being believed, and if believed, could be determinative of the merits of the complaint.
[39] Hence even where the issue is one of procedural fairness, the Court accords latitude to the CHRC in the performance of its screening function. The duty imposed on the CHRC is to provide a fair process within the context of the decision being rendered.
[40] The applicant relies on Herbert v Canada (Attorney General), 2008 FC 969, 169 ACWS (3d) 393 [Herbert], where Justice Russel Zinn held that the CHRC’s failure to consider a complainant’s submissions that an investigation report contained substantial and material omissions constituted a reviewable error. However, the result of the CHRC decision in Herbert was to screen out the complaint which Justice Zinn described as having “very significant consequences for a complainant, who will most often have no other remedy for the alleged discrimination” (Herbert at paras 17, 26 and 30).This case is distinguishable. Here the CHRC Decision allows the Complaint to proceed to the next stage.
[41] In addition, the statutory scheme supports the proposition that the content of the duty of procedural fairness in relation to the CHRC’s duty to give reasons differs depending on the context. Subsection 42(1) of the CHRA states that when the CHRC decides not to deal with a complaint it shall send a written notice of its decision to the complainant “setting out the reason for its decision.” Similar provisions exist under subsections 17(4) and 18(3) of the CHRA. However, no such provision exists when the CHRC decides to deal with a complaint and refer the matter to the Tribunal under subsection 49(1). Hence, the CHRC is under an explicit statutory duty to give reasons in the context of a dismissal decision, but not if it decides to deal with a complaint or when the CHRC decides to refer a complaint to the Tribunal for an inquiry.
[42] While it may have been preferable had the CHRC expressly addressed the applicant’s submissions, the CHRC’s failure to do so does not equate to a breach of procedural fairness in the circumstances. In this case the CHRC provided the parties with an opportunity to review and respond to the Report it relied upon, and provided reasons for its decision. In this regard I am in agreement with the respondent; the issue the applicant raises is not one of procedural fairness but rather relates to the substance of the CHRC’s decision, reviewable on the reasonableness standard (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708 at para 22 [Newfoundland Nurses]). The applicant’s real issue is with the adequacy of the CHRC’s reasons. On a reasonableness review, the adequacy of reasons is not an independent ground for setting aside a decision (Newfoundland Nurses at para 14). The question to be answered is whether the reasons “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland Nurses at para 16).
[43] Even if I am wrong, and the failure to explicitly refer to the applicant’s submissions engages a procedural fairness issue, no breach of procedural fairness occurred here. The CHRC provided reasons and “an investigator is not required to refer to everything” (Bergeron v Canada (Attorney General), 2015 FCA 160 at para 76, 255 ACWS (3d) 955 [Bergeron]).
[44] It is true that in Bergeron Justice Stratas for a unanimous Federal Court of Appeal held at paragraph 67 that: “The law concerning the standard of review for procedural fairness is currently unsettled.” However, Bergeron is distinguishable for the same reason as the cases cited above; Bergeron’s holding that the correctness standard applies also arises in a dismissal not a referral context.
[45] I conclude that the CHRC discharged its procedural fairness obligations by providing the parties a meaningful opportunity to provide submissions prior to the issuance of the Report, on the Report itself, and providing reasons for its decision. Since the CHRC Decision was a referral decision under subsection 49(1) without further investigation under subsection 43(1) of the CHRA that decision did not constitute a final determination on the merits of the Complaint.
B. Was the CHRC Decision Reasonable? [46] I next consider the reasonableness of the CHRC’s decision to: (1) deal with the Complaint pursuant to subsection 41(1) of the CHRA; and (2) refer the matter directly to the Tribunal pursuant to subsection 49(1) of the CHRA without further investigation. There is some overlap in these two areas as the CHRC frequently relies on the same factual basis to support its conclusions in relation to these two distinct decisions.
[47] I conclude there was a reasonable basis in the law and evidence for the CHRC to determine it was not plain and obvious that the reactivation of the Complaint was trivial, frivolous or vexatious or in bad faith under paragraph 41(1)(d) of the CHRA, or that an alternative means of redress should be pursued under paragraph 41(1)(a). I also conclude it was reasonable for the CHRC to refer the Complaint to the Tribunal under subsection 49(1) of the CHRA without further investigation.
(1) Was the decision to Deal with the Complaint Reasonable? (a) The Plain and Obvious Test [48] Canada Post FC is routinely cited as setting out the test to be applied by the CHRC in the context of subsection 41(1) of the CHRA. Justice Rothstein held at paragraph 3:
[3] A decision by the Commission under section 41 is normally made at an early stage before any investigation is carried out. Because a decision not to deal with the complaint will summarily end a matter before the complaint is investigated, the Commission should only decide not to deal with a complaint at this stage in plain and obvious cases. The timely processing of complaints also supports such an approach. A lengthy analysis of a complaint at this stage is, at least to some extent, duplicative of the investigation yet to be carried out. A time consuming analysis will, where the Commission decides to deal with the complaint, delay the processing of the complaint. If it is not plain and obvious to the Commission that the complaint falls under one of the grounds for not dealing with it under section 41, the Commission should, with dispatch, proceed to deal with it.
[49] The plain and obvious test requires that “the allegations of fact contained in the complaint must be taken as true” (Keith v Canada (Correctional Service), 2012 FCA 117 at paras 50-51, 431 NR 121). Similarly in applying the plain and obvious test, the CHRC does not engage in a weighing of the evidence (NAV Canada at para 34-37). The threshold for meeting the plain and obvious test is high (Canadian Museum of Civilization at para 64).
[50] As noted by Justice Kane “the focus of the Commission is whether there is sufficient evidence before it to refer the complaint for further inquiry. It is not the role of the Commission at the section 40/41 stage to look behind the facts and to determine if a complaint is made out.” (Khapar v Air Canada, 2014 FC 138 at para 64, 449 FTR 1).
[51] In this case the CHRC reasonably concluded that none of the exceptions set out in subsection 41(1) applied to the reactivation of the complaint and as a result it should not be brushed aside.
(b) Alleged Discrimination [52] The applicant does not dispute that factual assertions made in a complaint must be taken as true in the context of subsection 41(1). However, the applicant argues in this case the allegations of (1) the existence of a wage gap between the complainant group and the comparator group and; (2) that the comparator group is male dominated are nothing more than bald assertions. The applicant submits the CHRC cannot rely on bald assertion in deciding to deal with the Complaint.
[53] Although the CHRC may dismiss a complaint on the basis of bald assertions or allegations, the Federal Court of Appeal has cautioned the CHRC should not do so where the record reflects a live contest as between the parties (McIlvenna v Bank of Nova Scotia, 2014 FCA 203 at paras 14-16, 466 NR 195). The CHRC’s role when conducting a subsection 41(1) analysis is not to concern itself with evidentiary disputes going to the merits of the complaint. Where the CHRC does engage in a consideration of contradictory factual submissions at the section 41 stage it will have acted unreasonably (NAV Canada at paras 38, 74-75).
[54] In this case the respondent not only asserted discrimination in the form of pay inequity on the basis of gender, but advanced material facts in support of the alleged discrimination. Those material facts include: (1) the Petersen Report conclusion that there was a wage gap between the respondent complainant group and the PO4 sub-group; (2) the PSAC FCA decision found that the PO group, the very comparator group identified in the Complaint, was male dominant; and (3) the long history of a “live contest” as between the parties.
[55] The Report acknowledged the parties take substantially different positions on how these facts are to be interpreted and whether or not they ultimately support the respondent’s allegations of discrimination. However, taken at face value these facts reasonably establish a link to claimed discriminatory conduct for the purpose of the CHRA. This is not a case where the complainant merely asserted that such a link existed (Love v Canada (Privacy Commissioner), 2014 FC 643 at para 69, 459 FTR 11). It was reasonable for the CHRC to conclude based on the record that it was not plain or obvious that there was no reasonable basis for the complaint or the complaint had been settled.
(c) Frivolous, Vexatious or Pursued in Bad Faith [56] Similarly it was reasonable for the CHRC to conclude it was not plain and obvious that the respondent’s request to reactivate the Complaint was trivial, frivolous, vexatious or made in bad faith for the purpose of paragraph 41(1)(d) of the CHRA.
[57] It has been the respondent’s position that the 1997 MOA had not been fully implemented, and that the Petersen Report failed to facilitate a resolution of any inequities in this regard. Neither the 1997 MOA nor the 2006 MOA purported to address pay equity concerns retrospectively. As such, they did not address the issue of pay equity between September 1, 1992, and March 20, 1997, the earliest date to which the 1997 MOA applied.
[58] The CHRC also concluded much of the delay experienced in dealing with the Complaint was attributable to the applicant. This included repeated refusals to provide the CHRC and the respondent with requested and relevant information. I discuss these issues further in the section on delay below.
[59] The CHRC also considered the respondent’s decision to await the Supreme Court of Canada’s decision in PSAC SCC before pursuing reactivation of the Complaint, a fact the applicant took issue with at the CHRC. In its November, 2009 letter to the CHRC the respondent advised that it was of the preliminary view the Complaint should be reactivated. The respondent then expressed a preference to await the Federal Court of Appeal decision in the PSAC matter if the CHRC agreed. In response, not only did the CHRC not take issue with this further delay in reactivation but it left the timing fully in the hands of the respondent. While the CHRC might well have adopted a more proactive approach to the possibility of reactivation, the failure to do so does not undermine the CHRC finding that “it is not plain and obvious that the complainant’s decision to wait for the conclusion of the litigation in PSAC rendered the request to reactivate the complaint one of bad faith given the important parallels between PSAC and the present complaint.”
[60] Finally, and as noted above, the CHRC also recognized the continuing dispute between the parties as to what the Petersen Report represented in respect of the issues of a comparator group wage gap and male dominance. Succinctly put, and without assessing the merits of the parties’ respective positions, the CHRC recognized that the Petersen Report and the 1997 and 2006 MOAs had failed to facilitate a resolution of the Complaint. This was the key take away in the subsection 41(1) context, a take away the CHRC understood and appreciated. The merits of the parties’ respective positions have been left for the Tribunal.
(d) Misapprehension of the Evidence and the Applicant’s Submissions [61] The applicant advances two arguments relating to the CHRC’s substantive findings under paragraph 41(1)(d) of the CHRA. The applicant argues the CHRC erred in adopting the Report without referencing the applicant’s submissions that the Report misconstrues Mr. Petersen’s evidence. The applicant further argues “there is simply insufficient information to provide reasonable grounds for believing that there was a violation of section 10 or 11 of the CHRA”.
(i) Did the Report Misconstrue Mr. Petersen’s Evidence? [62] I conclude there was no error in the Report’s discussion of Mr. Petersen’s evidence. However, even if I am wrong in reaching that conclusion any error did not render the decision unreasonable.
[63] The error the applicant alleges is reflected in the following passage from the Report [Passage]:
Mr. Petersen explained that it was already established/recognized by the parties that CUPW was male-dominated while CPAA was female-dominated. That is to say, neither party objected to the effect that the complainant group was not female-dominated or that the comparator group was not male-dominated i.e. they accepted that the complainant group was female-dominated while the comparator group was male dominated. For that reason, his study did not conduct a gender analysis but instead went directly to assessing whether a wage gap existed using the CPAA job plan to measure both the complainant and comparator group (the PO4 group).
[64] Relying on Mr. Petersen’s affidavit, the applicant argues Mr. Petersen did not advise the CHRC the parties had accepted the PO4 sub-group was male-dominated. However, that is not what the Passage states. The Passage states the parties recognized CUPW as being male-dominated. While this statement might be viewed as ambiguous in a context where it is unclear whether the reference to CUPW is a reference to the PO4 sub-group or the PO Group, identified as the comparator group in the Complaint or CUPW as whole, it is not necessarily inconsistent with Mr. Petersen’s affidavit statements. This is highlighted by Mr. Petersen’s cross-examination where he states:
28. Q. At some point in early 1998 is it fair to say that you were given an indication that there was a CUPW position that was male dominated?
A. I wouldn’t say that was true. As far as I remember, the issue of male dominance really didn’t come up. At the time it was a feeling that we’re doing this because CUPW is male dominated [emphasis added]. That’s kind of the feeling out there. There were no figures.
[65] Hence I find that the Report did not contain a misstatement of Mr. Petersen’s interview evidence.
[66] Even if I were to accept that the CHRC incorrectly interpreted Mr. Petersen as stating the parties agreed the PO4 jobs were male-dominated, that alleged error and misstatement in one part of the Report does not taint the entire Report’s analysis or render the ultimate decision of the CHRC unreasonable.
[67] The subsection 49(1) decision demonstrates the CHRC unquestionably understood that the parties continued to dispute the findings of the Petersen Report and the question of whether the Complaint’s comparator group, the PO group was male-dominated. The CHRC also understood the parties had agreed not to have Mr. Petersen address the issue of gender dominance in completing his wage gap analysis. In effect the Report did not base its conclusion on the flawed premise that the parties agreed that either the comparator PO group or the PO4 sub-group was male-dominated, but rather considered, as one factor only, that the parties may agree that the comparator group was male-dominated. Indeed, the CHRC was careful to qualify its language as “the parties may now agree”, in recognition of the history of this matter. Finally, and appropriately the CHRC did not attempt to reconcile the different position of the parties or address the merits of the evidence and render a final determination to the effect that the elements of a section 10 and/or 11 complaint were made out. Instead the CHRC relied on the Petersen Report as a factor in deciding not to dismiss the Complaint at the subsection 41(1) stage and to refer the Complaint to the Tribunal under subsection 49(1) of the CHRA.
[68] I also note that the alleged error is not reproduced in the CHRC Decision The omission of the portion of the Report which the applicant alleged was in error arguably demonstrates that the issue was not viewed by the CHRC as necessary to the outcome of the final decision. This absence from the CHRC Decision implies that the CHRC considered the applicant’s submissions on the alleged error in the Report and did not rely on it, instead focusing on the real issue: the Petersen Report failed to do what it was supposed to do, facilitate a settlement of the matter.
[69] It would be inappropriate to quash the CHRC Decision merely due to some potential defects in the Complaint as well as the Petersen Report which the CHRC has recognized are in dispute, a dispute the Tribunal is mandated to address and determine on a fuller record (Emmett at para 51; Canada (Attorney General) v Skaalrud, 2014 FC 819 at para 39, 462 FTR 134 [Skaalrud]).
(ii) Did the CHRC err by not Explicitly Addressing the Applicant’s Submissions? [70] The applicant argues “Given the significance of CPC’s submissions on the Section 41/49 Report, CPC was entitled to detailed reasons beyond the adoption of the Section 41/49 Report.”
[71] The applicant’s expectation that the CHRC should have provided more reasons referring to the applicant’s submissions is not persuasive and is not a standalone ground for judicial review (Newfoundland Nurses at para 14). In effect the applicant submits the CHRC was required to address the merits of the dispute between the parties and resolve aspects of the factual dispute before being in a position to adopt the Report.
[72] Justice Campbell’s decision in Canadian National Railway Co v Casler, 2015 FC 704 at para 28 [Casler] demonstrates that the CHRC should