Bell Canada v. Communications, Energy and Paperworkers Union of Canada, docket T-1414-96

Date: 19980317

Docket: T-1414-96

BETWEEN:

BELL CANADA,

     Applicant,

     - and -

     COMMUNICATIONS, ENERGY

     AND PAPERWORKERS UNION OF

     CANADA, CANADIAN TELEPHONE

     EMPLOYEES ASSOCIATION, and

     FEMMES ACTION,

     Respondents.

     - and -

     CANADIAN HUMAN RIGHTS COMMISSION,

     Intervener.

     REASONS FOR ORDER

MULDOON, J.

[1]      This application for judicial review of certain decisions of the Canadian Human Rights Commission (CHRC) came on for a scheduled two-day hearing on November 24, 1997, but continued for four days, and involves a plethora of documents, including case-books and other paper.

[2]      Having achieved limited intervener status on October 11, 1996, by order of Mr. Justice Denault, the CHRC was represented at the hearing by its counsel.

[3]      The named respondent, Femmes Action, was not represented at the hearing.

[4]      Toward the end of 1997, Madam Justice McGillis disposed of an application by the President of the Canadian Human Rights Tribunal for leave to intervene in these proceedings. Relying on the leading case of Northwestern Utilities Limited et al. v. The City of Edmonton [1979] 1 S.C.R. 684">[1979] 1 S.C.R. 684 - a judgment of the Supreme Court of Canada - she dismissed the President's application.

[5]      According to Bell Canada's application record (BAR), filed June 14, 1996, the applicant (also, herein Bell) moves for:

1)      an order in the nature of certiorari quashing the decision of the [CHRC] dated May 27, 1996 to request the President of the Canadian Human Rights Tribunal to name a single Human Rights Tribunal to inquire into the complaints by the respondents against the applicant in the Commission's files X-00344, X-00372, X-00417, X-00455, X-00456, X-00460 and X-00469. This decision, for which no reasons were given, was communicated to the applicant on May 30, 1996.

2)      an order prohibiting any further proceedings by the [CHRC] in respect of the respondents' complaints, or any of them, in the Commission's said files.

3)      a declaration that the [CHRC] had no reasonable grounds for requesting the President of the Canadian Human Rights Tribunal to name a Human Rights Tribunal for the respondents' complaints, or any of them, in the Commission's said files.

4)      in the alternative, a declaration that Bell should not, in the circumstances of the Commission's present investigation, have to defend itself before a Canadian Human Rights Tribunal in respect of the respondents' complaints or any of them.

[6]      The application expresses itself to be based on the following grounds:

1)      The decision of the [CHRC] (the "Commission") to request the naming of a Human Rights Tribunal is wholly vitiated by the bias against the applicant Bell Canada ("Bell") which pervaded the Commission's investigation of the complaints brought by the respondents and which has denied Bell the procedural fairness in this investigation to which it is entitled;

2)      The Commission has erred in law and denied Bell procedural fairness by not exercising its power and duty under paragraph 41(d) of the Canadian Human Rights Act and not rejecting as vexatious and in bad faith the complaints by the Communications, Energy and Paperworkers Union of Canada ("CEP") and the Canadian Telephone Employees Association ("CTEA") that wages which they themselves had freely negotiated in collective agreements binding on them and on Bell under section 56 of the Canadian Labour Code were contrary to the Canadian Human Rights Act;

3)      The Commission has erred in law and denied Bell procedural fairness by not exercising its powers and duties under subsection 40(2) and paragraph 41(b) of the Canadian Human Rights Act and not denying the CEP and CTEA status as complainants, despite the absence of proof that any of the alleged victims of discrimination had consented to their so acting, and despite the existence of the alternative remedy of collective bargaining under the Canada Labour Code;

4)      The Commission found in 1984, in 1985 and again in 1987 that Bell was not discriminating in wages on the basis of sex and dismissed complaints by the same complainant union, CEP (then known as the Communications Workers of Canada) alleging that wages paid the female-dominated jobs chosen by the union were discriminatory as compared to the male-dominated jobs again chosen by the same union. Without any evidence of any discriminatory wage increases since the time of its previous decisions, without making any appropriate job to job comparison and in the absence of a statistically significant change in the relationship between wages of the male and female-dominated jobs, the Commission has erred in law and has acted arbitrarily in deciding that grounds now exist to request the naming of a Human Rights Tribunal to inquire into the complaints covering the same jobs.

5)      The Commission's decision to request the naming of a Human Rights Tribunal on an Investigation Report which was exclusively based upon a study of certain jobs at Bell carried out in 1991-1992 solely for purposes of collective bargaining between Bell, the CEP and the CTEA constitutes an error of law. Because of the methods used in its preparation and the method of analysis adopted, this study never was a job to job study and is not capable of giving rise to any inference that Bell has paid wages which discriminate on the basis of sex contrary to the Canadian Human Rights Act;

6)      The Commission has erred in law and denied Bell procedural fairness by requesting the naming of a Human Rights Tribunal for the investigation of complaints by the CEP, CTEA and Femmes Action whose vagueness renders it impossible for Bell to make the full answer and defence which is its right;

7)      The Commission has erred in law and denied Bell procedural fairness by purporting to exercise its power to extend the one year time limit for the bringing of complaints under the Canadian Human Rights Act without any legal or factual basis for so acting, and has thereby deprived Bell of its substantive right under the Act not to have to defend itself against complaints based upon events more than one year in the past;

8)      The commission's decision to request the naming of a Human Rights Tribunal is wholly vitiated by the procedural unfairness of the Commission's investigation into the complaints by the CEP, CTEA and Femmes Action, which lumped together the complaints now referred to a Human Rights Tribunal which numerous others covering different female-dominated jobs, different time periods and using different male-dominated jobs for comparison with the female-dominated ones. This procedure made it impossible for Bell to properly assert its different defences in fact and in law to each of the numerous different complaints purportedly investigated at the same time, and thereby denied it the procedural fairness to which it was entitled.

9)      The Commission has erred in law in requesting the naming of a Human Rights Tribunal to investigate the complaints of the CEP, CTEA and Femmes Action, which involve comparison of employees in different establishments, where the Canadian Human Rights Act and the Equal Wage Guidelines, issued thereunder and binding on the Commission, both limit allegations of discrimination in wages on the basis of sex to instances in which both the male and female employees are employed in the same establishment.

10)      The Commission has acted in error in making its own a fundamentally flawed and improper investigation report, which cannot be used to justify any request for the naming of a Human Rights Tribunal.

[7]      The respondents and the CHRC all consider that Bell is wrong in its complaints and urge that Bell's motion be dismissed.

[8]      What is principally at issue in this case is the correct interpretation of section 11 of the Canadian Human Rights Act, R.S.C. 1985, Chap H-6 (the Act):

11.(1) It is a discriminatory practice for an employee to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.

(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions which the work is performed.

(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment.

(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.

(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

(7) For the purposes of this section, "wages" means any form of remuneration payable for work performed by an individual and includes

(a)      salaries, commissions, vacation pay, dismissal wages and bonuses;

(b)      reasonable value for board, rent, housing and lodging;

(c)      payments in kind;

(d)      employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and

(e)      any other advantage received directly or indirectly from the individual's employer.

[9]      In effect, this provision condemns those persons, firms and corporations who discriminate against female or male employees by paying them differently for work of equal value. The applicant does not agree with this principle, but alleges that the CHRC has improperly changed the complaints, formerly found not to be well founded, in order to avoid the very enquiry which is mandated by section 11, among others. In order to make out proof of a complaint, there must be a comparison effected in order to establish equal value of the complainant's work, and the work of another employee of the other gender, who is paid more for performing such work, in the same establishment. A job-to-job comparison is the prescribed manner of showing (or failing to show) the existence of the discriminatory practice.

[10]      Thus far the positions of the parties would seem to be clear, if their relationships, including complaints of discriminatory practices, were, or had been, conducted according to law, especially section 11 of the Act. It appears however that the Commission went off the rails in what seems to be an attitude of dissatisfaction with the Act, especially section 11, as it is, The CHRC seems minded to force an amendment, if not de jure, then (in usurpation of the legislative rôle) de facto.

[11]      The relatively recent history of the parties' relationships is germane. The Communications, Energy and Paperworkers Union of Canada (the CEP), in the early 1980s, was known as the Communications Workers of Canada (CWC) and there is continuity of identity between the former CWC and the present respondent CEP.

[12]      The background is set out clearly in Bell's application record, BAR, paras. 4 to 7 inclusive:

4.      In the early 1980's the CEP (Under its former name of Communications Workers of Canada (the "CWC")) began using the device of complaints under the Act to attack wage rates it had itself negotiated in collective bargaining. In 1981 its Vice President - Ontario Region brought two complaints alleging that the wages paid to the generally female employees in the Operator Services and House Servicewoman Groups it represented were discriminatory under the Act when compared to those of the generally male Materialman and Building Serviceman Groups it also represented. The work of the generally female groups was alleged to be of equal value to that performed by the generally male groups. The Secretary of the CWC's Local 50 filed a further complaint in 1981 making the same allegation concerning the wages paid to the Operator Services Group and to the Building Services Group.

Affidavit of Francine Bibby, June 14, 1996 paragraphs 2, 3 and 4 (Bibby Affidavit) and Exhibits 1, 2, 3 and 4 thereto, Application Record, Vol. VII, pp. 1494-1496, 1497-1504.

5.      All of these complaints were dismissed on their merits by the Commission after thorough investigations lasting between three and six years. It was found that Bell was not paying unequal wages to its female employees when compared with the specified comparator jobs, and that there was no discrimination under the Act as alleged.

Bibby Affidavit, paragraphs 6, 7 and 8 and Exhibits 10, 11 and 12 thereto, Application Record, Vol. VII, pp. 1495, 1513-1575.

6.      The CEP's Vice President - Ontario Region attempted to bring an untimely judicial review application against the Commission's dismissal of one of his complaints in December, 1985. The Federal Court of Appeal denied his motion for an extension of time to bring a judicial review application because the Court was unanimously "of the view that he has failed to establish that he would have a reasonably arguable case if the application were permitted to proceed".

Bibby Affidavit, paragraph 10 and Exhibit 13 thereto, Application Record, Vol. VII, pp. 1425 and 1576.

7.      In fact, since that time, the wages of Bell's employees in female dominated jobs have generally increased at a faster rate than those of its employees in male dominated jobs.

Ibid, paragraph 11, p. 1425.

(BAR vol. XI, pp. 2 & 3)

Later on, in the early 1990s, some female employees, represented by the respondent, the Canadian Telephone Employees Association (the CTEA), complained to the CHRC alleging discrimination by Bell of the kind described in Section 11 of the Act.

Affidavit of André Beaudet, June 14, 1996, para. 2 and ex. 1, BAR, vol. I, pp. 17 and 30.

Memo from B. Hargadon to file, June 27, 1991, BAR, vol. VIII, pp. 1672-74.

[13]      Three of the CTEA complaints to the CHRC attacked wages which it had itself (or CEP) negotiated in collective bargaining with Bell, according to André Beaudet's affidavit, para. 4 and exs. 2, 3 and 4. These complaints were subsequently amended to remove specific comparators and to make general, unspecific allegations of the kind Bell rejects by, and in, this litigation.

[14]      While bargaining in 1990 CEP and Bell agreed to establish a joint Pay Equity Committee, about which the CEP had already consulted the Commission about the manner of carrying out the study. The Commission responded that it "must not be seen to be leading the parties to such a study because of possible future complaints", but retained copies of the parties' collective agreements of two bargaining units represented by CEP, Crafts & Services, and Operator Services and Dining Service Employees, all set out in the note to BAR, vol. XI, para. 11, p. 4.

[15]      Next, the joint committee became tripartite as set out in BAR, vol. XI, paras. 12 and 13, pp. 4 & 5, thus:

12.      In April 1991, Bell, the CEP and the CTEA reached an agreement on conducting a joint study of the methods of remuneration set out in the collective agreements negotiated by the parties covering the two bargaining units represented by the CEP as well as the two represented by the CTEA. This agreement was embodied in the "Pay Equity Project Terms of Reference ("Terms of Reference")" dated April 26, 1991. Among its terms was the following:

"2.4 The information that is shared and generated during the Pay Equity Project is only for the purposes of this study. All parties agree to safeguard all sensitive or confidential records."

Beaudet Affidavit, paragraph 5 and Exhibit 5 thereto, Application Record, Vol. I, pp. 18 and 36.

13.      The purpose of this joint study was the carrying out of a general pay equity study of the four bargaining units represented by the CEP and CTEA for the purposes of collective bargaining. Its results could serve as general guidelines for Bell and the two unions in their future collective bargaining. To Bell's understanding, this was the sole purpose of the study and this understanding is reflected in the conclusion of the Final Report dated November 22, 1992 of the joint committee which carried out the study which stated that:

The findings [of the study] will now be turned over to the executives of the company and each union. The results will be used in negotiations aimed at reducing the disparities and improving the Pay Equity situation within Bell

Beaudet Affidavit, December 20, No. 2, paragraphs 3-5 and Exhibits 1 and 2 thereto, Application Record, Vol. II, pp. 364, 368, 385.

[16]      Of note are the facts recited in paras. 18 et seq. of BAR, vol. XI, as follows:

18.      The joint study was completed in November 1992. It covered a selection of jobs found in Bell's various establishments in Quebec and Ontario and in all four of the bargaining units represented by the CTEA and CEP. Given the joint study's purpose of developing general guidelines for the parties' future collective bargaining, it was of the "line to line" type, that is, the study compared two regression lines based on the variables of job evaluation points and wages. One of the lines was drawn for the selection of male dominated jobs, the other for the selection of female dominated ones.

Beaudet Affidavit, paragraph 9 and Exhibit 6 thereto, Application Record, Vol. I, pp. 18 and 40.

19.      Because the joint study was of this line to line type, it did not involve a comparison between any two particular jobs such as is made in a study of the "job-to-job" type. In a job-to-job study, a comparison is made of the wages paid for a given job rated at a certain number of job evaluation points with the wages paid for another job rated at a certain number of job evaluation points. Only a job-to-job study can permit a statistically sound conclusion that one job is underpaid in comparison to another job.

Ibid and Affidavit of André Beaudet, December 20, 1996 (Beaudet Affidavit, December 20, No. 1), paragraphs 8-9 and Exhibit 2 thereto, Application Record, Vol. II, pp. 329-330 and 335; Affidavit of David C. Stroiney, June 13, 1996 (Stroiney Affidavit), paragraphs 2-9 and Exhibit 4 thereto, Application Record, Vol. VII, pp. 1362-1363 and 1424; Affidavit of Roland Thériault, June 13, 1996, paragraphs 2-11 and Exhibit 5 thereto, Application Record, Vol. VII, pp. 1431-1433 and 1489; Affidavit of Shirley Elizabeth Mills, December 20, 1996, paragraphs 16-21 and Exhibit H thereto, Application Record, Vol. VIII, pp. 1585-1587 and 1659.

20.      Accordingly, the joint study, although depicting wage trends, does not provide information from which the conclusion can be drawn that any particular job populated largely by women is underpaid in comparison to any other particular job of equal value populated largely by men, or vice versa. Such a conclusion can only be drawn from a study of the job-to-job type of the "job to line" type, in which a particular job is compared to a male or female regression line.

Ibid.

21.      While this joint study was being prepared and carried out, the Commission was in close contact with Bell, the CTEA and the CEP, in part due to interest of the unions and the Commission in finding means of bringing a so-called "systemic complaint" of wage discrimination against Bell.

Memo to File from P. Durber, A/Director, Employment and Pay Equity Branch, June 23, 1991, Application Record, Vol. VIII, p. 1678; Bell to Commission, August 2, 1991, ibid, p. 1682; Commission to Bell, August 6, 1991, ibid, p. 1685; Memo from B. Hargadon, Equal Pay Section to P. Durber, October 1, 1991, ibid, p. 1702; Memo to File, October 22, 1991, ibid, p. 1704; Commission to Bell, June 17, 1992, ibid, p. 1721; Commission Investigation Report, May 15, 1995, Application Record, Vol. I, paragraphs 92-93, pp. 96-97.

22.      As part of the Commission's involvement in the joint study, it was given access to certain very confidential information contained in it on condition, as the Commission itself recognized in its internal documents, that it treat this information as such privileged and confidential and not divulge it to other parties.

Memo from B. Hargadon, Pay Equity Section, to D. Lacoste, Senior Consultant, December 18, 1992, Application Record, Vol. IX, p. 1740; Bell to Commission, August 2, 1991, ibid, Vol. VIII, p. 682; documents cited at paragraph 49, infra.

23.      After the issuance of the joint study's Final Report in November 1992, the Commission began considering how to make use of the information at its disposal from the joint study to procure and support so-called "systemic complaints" against Bell.

Commission Notes of Meeting with Bell and CTEA, January 10, 1993, Application Record, Vol. IX, p. 1752; "Bell's Case-Issues for Discussion with Legal", January 17, 1993, ibid, p. 1755; Memo to File from D. Lacoste, Senior Consultant, Pay Equity, January 27, 1993, ibid, p. 1756.

24.      Such complaints, as conceived by the Commission, involved an allegation that certain allegedly female dominated jobs, sometimes specified and sometimes not, were of equal value to unspecified male dominated jobs. The Commission proposed to procure and investigate such complaints despite its clear recognition from the beginning that it "did need specific comparators to proceed with a complaint" under the Canadian Human Rights Act. This recognition was reflected in the fact that all of the complaints accepted for investigation by the Commission as of the end of December 1992 sought to compare one specific job to another specific job.

P. Duber, A/Director Employment and Pay Equity Branch, June 23, 1991, Application Record, Vol.. VIII, p. 1678; Memo from B. Hargadon to P. Durber, Chief Equal Pay, October 1, 1991, ibid, p. 1702; Ibid, Vol. IX, List of Complaints as of December 23, 1992.

25.      Regardless of this recognition of the requirements of the Canadian Human Rights Act, the Commission began proceeding in early 1993 with its design for "systemic" complaints against Bell by seeking to "combine" various complaints against Bell. The Commission's reason for doing so is candidly stated in a memo from the Commission's investigator:

The Complainants identified specific comparators. According to the results of Bell's study, these comparators are not equal to the complainants' jobs. We did our own evaluations and determined that they were of equal value. However, we decided to use the results of Bell's study instead of our own. Bell argues that the complaint is not founded because the jobs are not of equal value.

. . .

We can stretch s.14 [of the Equal Wages Guidelines 1986] to justify using all the male jobs named as comparators.

However, we are using the whole male line not only the comparators named in the 4 complaints. S.15(2) [of the Guidelines] says we can use a male line but only when there is no direct comparison. Here, if we use our results there is a direct comparison. If we use the results of Bell's study, there is no direct comparison and that could justify using the male line, but if there is no direct comparison with the comparators, there is also no complaint.

Bell's Case Issues for Discussion with Legal, January 27, 1993, Application Record, Vol. IX, p. 1753

26.      As the Commission later put the matter:

". . . most of the complaints with Bell have not been substantiated that is the male comparators were higher.

However if we take the level to line we have something to go with."

Memo to File from Brian [Hargadon], June 11, 1993, Application Record, Vol. IX, p. 1771; "Notes compiled before our meeting July 16, 1993" by B. Hargadon, ibid, p. 1773-1774.

27.      The Commission was then, as Bell subsequently learned (see paragraphs 42 and 48) engaged in soliciting other complaints and advised the unions to file new complaints concerning unspecified allegedly male dominated jobs while the Commission was supposedly undertaking a neutral investigation of several individual employee complaints and on particular CTEA complaints which referred to specific comparator jobs.

Beaudet Affidavit, paragraphs 29-30, Application Record, Vol. I, p. 22

28.      This activity by the Commission was followed by the filing of a complaint by the CEP on January 31,1994 alleging discrimination by Bell against "predominantly female groups in [the] Craft & Services bargaining unit by paying them less than male dominated jobs of equal value" (Commission file X-00456). The complaint alleged that discrimination beginning November 23, 1992, more than one year before the date of the complaint, which was thus untimely under section 41(e) of the Canadian Human Rights Act.

Complaint by CEP, January 31, 1994 in Commission file X-00456, Exhibit 7 to Beaudet Affidavit, Application Record, Vol. I, p. 58.

29.      On January 25, 1994 a group of Bell employees calling themselves Femmes Action filed a complaint with the Commission alleging that a wage disparity existed between employees in Bell's Operator and Dining Services Group and "les groupes d'emplois à prédominance masculine" (Commission file X-00455). All of the employees on whose behalf Femmes Action purported to act formed part of the Operator and Dining Services or Craft and Services groups represented by the CEP and the two persons signing the complaint were actively involved in the CEP. One of them, Odette Gagnon, had in fact signed the collective agreement between the CEP and Bell covering the Operator and Dining Services Group in her capacity as a union official. The complaint specified no date on which the alleged discrimination had begun, merely that it had continued "depuis nombreuses années".

Beaudet Affidavit, paragraphs 19 and 20, Application Record, Vol. I, pp. 20-21 and Exhibit 12 thereto, ibid. p. 63.

30.      Both of the two bargaining units mentioned in this complaint were represented by the CEP, which had freely negotiated all of the wages of all of the employees covered by this complaint for the entire period purportedly covered by it.

Beaudet Affidavit, paragraph 15, Application Record, Vol. I, p. 20 and Exhibits 6, 7, 10 and 11 to cross-examination of Réjean Bercier, March 5, 1997.

31.      On March 4, 1994 the CTEA filed a complaint, prepared for its signature by the Commission, alleging that Bell "discriminates against the predominantly female clerical groups by paying them less than male dominated jobs" (Commission file X-00460). On the same day, the CTEA also filed what purported to be amendments to its outstanding complaints against Bell in the Commission's files X-00344, X-0372 and X-00417. These purported amendments exactly followed drafts faxed to the CTEA by the Commission the day the amendments were filed. Whereas these complaints as originally filed had all alleged that a specific job alleged to be female dominated was being paid less than another specific job alleged to be male dominated and of equal value, the purported amendments adopted the formula used by the Commission in complaint X-00460 and replaced the comparator jobs by the phrase "male dominated jobs of equal value as demonstrated by the Joint Pay Equity Study". Like the CEP's complaint of January 31, 1994 referred to in paragraph 28, the CTEA's complaint alleged discrimination beginning November 23, 1992, more than one year before the date of the complaint. It was thus untimely under section 42(e) of the Canadian Human Rights Act.

Beaudet Affidavit, paragraph 16, Application Record, Vol. I, p. 20 and Exhibits 8, 9, 10 and 11 thereto, ibid, pp. 59-62; D. Lacoste to L. Wu, V.P. CTEA, February 7, 1994, Application Record, Vol. IX, pp. 1789-1793; D. Lacoste to L. Wu, March 4, 1994, Application Record, Vol. X, pp. 1823-1828.

32.      As was the case with the complaint filed by the CEP on January 31, 1994, all of the wage rates complained of by the CTEA in its new and purportedly modified complaints had been freely negotiated by the CTEA in collective bargaining with Bell.

Exhibits 4 and 5 to cross-examination of Linda Wu on her affidavits of November 8 and December 20, 1996, February 26, 1997

33.      No proof of consent to the filing of the complaints by the CTEA of CEP by any of their members was provided to the Commission and no such consents were in fact sought by the unions.

Transcript of Cross-examination of Linda Wu, February 26, 1997, pp. 118-119; Transcript of Cross-examination of Réjean Bercier, March 5, 1997, pp. 52-53.

34.      Contemporaneously with the filing of these complaints by the CEP, CTEA and Femmes Action, the Commission engaged in strenuous efforts to induce the various individuals who had filed complaints against Bell alleging that they were not being given equal pay for work of equal value by reason of their sex, and naming specific jobs as comparators, to radically recast their complaints as "systemic" ones naming "all male dominated" jobs instead of comparators.

35.      The Commission's investigators had not wanted specific comparators, and they favoured simply ignoring the individual complaints as filed and following "normal Commission practices of averaging male wage lines through a wage line as envisaged by section 15 of the Guidelines, and not to make job-to-job comparisons that might seem to be required if the narrow framing of a series of individual complaints were to be out ambit". The investigators relied upon the information in the joint study, provided to them on a without prejudice basis by Bell, to form the basis of these new complaints.

Memo from P. Durber to R. Morgan, January 13, 1994, Application Record, Vol. IX, pp. 1777-1778.

36.      Consultations with the Commission's legal department led the investigators to a reluctant recognition that:

Legally we could be forced to stick to the wording of the complaints. In the absence of a systemic complaint from the CTEA, the safest approach would be to get the individual complaints modified . . . If the complaints are not changed, we could recommend adjusting the salaries based on the male line of the study, and ignore the specific comparators used in the complaint.

These reflections suggested themselves to the Commission because:

- the complaints named specific male jobs as comparator[s]

- in the pay equity study, the complainants are not equal to comparators named on the complaint form.

Summary of Position and Action Taken by Commission concerning Modification of the Complaints from clerks, by D. Lacoste, Senior Pay Equity Consultant, February 15, 1994, Application Record, Vol. IX, pp. 1794-1795; Memo from P. Durber to D. Lacoste, January 27, 1994, ibid, p. 1780; Memo from D. Lacoste to P. Durber, January 13, 1997, ibid, p. 1777.

37.      Meetings with groups of the individual complainants in February 1994 found the latter reluctant to make the "amendments" urgently sought by the Commission, as they ran a risk of seeing their complaints ultimately dismissed in either case. As the Commission put the matter to one group:

The risks of not changing the complaint were that their complaint[s] might be dismissed because in the Pay Equity Study they are not equal to the comparators that they chose. The risks of changing their complaint just before our releasing the investigation report are that this might be perceived as manipulation on our [i.e. the Commission's] part and as trying to win a case which could be lost on a technical aspect.

Summary of Position Taken by Commission covering Modification of the Complaints from clerks, by D. Lacoste, Senior Pay Equity Consultant, February 15, 1994, Application Record, Vol. IX, p. 1794; D. Lacoste to S. Fitzhenry, January 31, 1994, ibid, p. 1781.

38.      During the month of February 1994, the Commission was also preparing its report on the complaints against Bell, including those which it was soliciting but which it had not yet received from the CTEA. Some anxiety was felt about an early release of this document because the Commission did not "know what the specific wage gaps are in fact".

P. Durber to M. Keeley, February 28, 1994, Application Record, Vol. X, p. 1807; P. Durber to M. Keeley, February 16,1994, ibid, p. 1806.

39.      On March 15, 1994, the Commission released a document it entitled "Draft Investigation Report" ("Draft Report"). This purported to be a report of a full investigation of all of the complaints mentioned herein against Bell, including those filed by Femmes Action on January 25, 1994, the CEP on January 31, 1994 and the CTEA on March 4, 1994, all of which contained extremely vague and complex allegations of "systemic" discrimination by Bell. The report also purported to have investigated the complaint by Femme Action, despite the fact that it involved over 1,000 individuals all of whom sought to have their unspecified jobs compared to undefined "groupes des emplois à prédominance masculine".

Beaudet Affidavit, paragraph 23, Application Record, Vol. I, p. 21 and Exhibit 13 thereto, ibid, pp. 64-75.

40.      The Draft Report concluded that there were reasonable grounds to believe that Bell had discriminated as alleged in every one of the complaints, including, of course, those which the Commission acknowledged in its internal documents were unfounded. In putting forward these conclusions, the Commission necessarily relied, in the absence of any general study of its own of the jobs covered by the complaints, on the joint study by Bell, the CTEA and the CEP. This document and the various date and technical reports forming part of it had, of course, been provided to the Commission on a strictly confidential basis by Bell.

Supra, paragraphs 22, 38, 39; Beaudet Affidavit, paragraph 24, Application Record, Vol. I, p. 21; Beaudet Affidavit, December 20, No. 2, paragraph 14, ibid, Vol. II, p. 366.

41.      Although it recommended proceeding with all the complaints against Bell, the Draft Report did acknowledge that many of the individual complaints filed in 1990-91 were untimely since they were based on events occurring, for example, in 1986.

Beaudet Affidavit, paragraph 25, Application Record, Vol, I, p. 21.

42.      Bell filed a reply and comments on this Draft Report, in accordance with the Commission's invitation, on June 30, 1994. This reply pointed out, among other matters, that the supposedly impartial investigator had improperly taken an active role in counselling new complaints against Bell; the untimely nature of the complaints; their excessive vagueness; the fact that none of the wages complained of as discriminatory had been fixed by Bell, but rather were the result of collective bargaining with the unions which were attacking their own collective agreements; and the unsuitability of the joint study as evidence of discrimination under the Canadian Human Rights Act.

Bell to Commission, June 30, 1994, Application Record, Vol. X, pp. 1856-1869.

(pp. 6 to 14)

*** *** ***

44.      Shortly after the release of the Draft Report on March 15, 1994, Bell and the complainants in the various complaints covered by the report entered into a mediation process as provided for under section 47 of the Canadian Human Rights Act. This mediation, which was unsuccessful in resolving the complaints, lasted until November 1994.

Beaudet Affidavit, paragraph 27, ibid, p. 22

45.      During this mediation process the Commission continued its efforts to solicit changes in the complaints filed by individuals. The situation is aptly summarized in a letter to the Commission from counsel for one group of such complainants:

Our understanding is that a proposal has been made to the individuals to amend their complaints by changing the comparator from specific male dominated jobs to "all male dominated jobs of equal value". As we understand it, the CHRC proposes that the complaints be changed because of the Respondent's position that the positions held by Cable Locate Operators is not equal in value to the comparators used. We further understand that the CHRC proposes to answer this argument by amending the complaints so that they become systemic complaints rather than complaints about the inequality between specific jobs.

Apparently the upside of changing the complaints is that if the Cable Locate job is compared to a broader category of jobs, there is a better chance that they will be successful in their complaints if the matters go to a Tribunal. Their jobs would be compared to all male dominated jobs of equal value as opposed to specific jobs. The chances of the complaints being dismissed would be diminished.

...

One of the down sides of changing the complaints is that the CHRC has been criticized by the Federal Court for manipulating complaints. Our clients would be concerned that an argument would be raised by Bell that the complaints should not proceed because they have been manipulated. Is that a possibility? If the argument is raised are there any precedents to indicate how the issue would be resolved?

Lawrence, Lawrence & Stevenson to the Commission, June 28, 1994, Application Record, Vol. X, pp. 1849-1850.

46.      During this mediation process, the Commission had certain communications with the mediator without Bell's knowledge, enclosing its reply to the Draft Report to the mediator and discussing with her methods to "exercise some pressure on Bell" during the mediation process. By September 1994, the Commission's efforts were focussed on calculating Bell's liability and on how to counter Bell's possible defences to the complaints against it before a Tribunal.

Fax with enclosures from Commission to J. Davidson-Palmer, June 3, 1994, Application Record, Vol. IX, pp. 1846-1869; P. Durber to M. Keeley, November 21, 1994, ibid, p. 1775; Briefing Memo from M. Keeley, Director General, Employment and Pay Equity to M. Yalden, Chief Commissioner, September 7, 1994, Application Record, Vol. X, pp. 1884-1887.

*** *** ***

61.      On February 26, 1996 the Commission forwarded Bell copies of certain decisions which had then been recently rendered by a Canadian Human Rights Tribunal in equal pay complaints and requesting its comments on them. Bell replied with comments on the decisions by letter on March 25, 1996.

Beaudet Affidavit, paragraphs 51-52 and Exhibits 37 and 38 thereto, Application Record, Vol. I, pp. 28, 286-292.

62.      The Commission did not communicate further with Bell on the equal pay complaints against it until May 15, 1996 when the Commission Director, Pay Equity, informed Bell by telephone that the Commission had decided to refer certain equal pay complaints against Bell to a Tribunal. On May 22, 1996 the Commission issued a press release stating that it had asked for the naming of a Tribunal to inquire into the equal pay complaints filed by the CTEA, CEP and Femmes Action. Two days later, an interview with the Commission's Director, Pay Equity, was published in the Ottawa Citizen newspaper in which the latter castigated a number of employers (specifically naming Bell) for "fighting pay equity" and stating that the job evaluation study had shown predominantly female jobs to be less well paid than "male dominated jobs of equal value".

Beaudet Affidavit, paragraphs 54-55 and Exhibits 30 and 40, Application Record, Vol. I, pp. 28, 293-294.

63.      Bell, which had yet to be informed of which complaints had been referred to a Tribunal, wrote to the Commission on May 29, 1996 and requested, in the light of the Commission's press release and interview, that the Commission provide it with a copy of the decision to refer certain complaints to a Tribunal. On May 30, 1996 the Commission forwarded Bell a letter dated May 27, 1996, informing Bell of its decision to refer complaints filed by Femmes Action, the CTEA and the CEP to a Tribunal.

Beaudet Affidavit, paragraphs 56-57 and Exhibits 41 and 42 thereto, Application Record, Vol. I, pp. 29, 295-298.

(BAR, vol. XI, pp. 20-21)

[17]      The above passages recited and those which accompany them, interspersed, are accepted as well documented by the Court and the Court bases any necessary inferences drawn in formulating these reasons and dispositive order on the facts recited in Bell's application record, vol. XI, which in all are too voluminous to recite here. The applicant, Bell, summarizes its complaints against the CHRC and its methods in para. 66 of BAR, vol. XI, on p. 21 (being p. 1928 of the BAR vols. I to XI). Paragraph 66 runs:

66.      In summary, the facts as outlined above show that the complaints by the unions are made against wages they themselves have bargained, rely on a joint pay equity study conducted by Bell with those unions for the purposes of guiding their collective bargaining, and that the Commission:

i)      conducted no proper investigation of the equal pay complaints it received;

ii)      instead actively counselled entirely different complaints against Bell, while at the same time purporting to act and participating as advisor to Bell and its unions in their joint pay equity study, which was intended and conducted for purposes of their collective bargaining;

iii)      improperly and in breach of confidence and privilege relied on data, results and technical information from that study to support complaints it had itself tailored for the complainants in an effort to reflect that information;

iv)      first gained access to technical and detailed bargaining study results by persuading Bell and its unions to explore that information together in a confidential mediation process stated to be without prejudice to the parties, issued its investigation reports, and afterwards sought to access to that information on an unrestricted basis in disregard of section 47(3) of the Act.

(p. 21)

[18]      Further, Bell asserts in BAR, vol. XI, pp. 23-24 (pp. 1930-31) that the Commission did err in law by:

i)      not rejecting the complaints filed by the CEP, CTEA and Femmes Action as vexatious and made in bad faith when these unions' complaints attacked the very wages they had themselves negotiated in collective bargaining with Bell;

ii)      not rejecting the complaints filed by the CEP, CTEA and Femmes Action despite the fact that they were all untimely and no reasonable ground existed for depriving Bell of its substantive right not to have to defend itself against complaints under the Act based on events more than one year in the past;

iii)      not rejecting the complaints filed by the CEP, CTEA and Femmes Action despite an entire absence of evidence capable of giving rise to an inference that Bell has paid wages which discriminate on the basis of sex contrary to section 11 of the Act;

iv)      not rejecting the complaints filed by the CEP, CTEA and Femmes Action despite the fact that on their faces they referred to employees of Bell in different establishments subject to different wage and employment policies, when section 11 of the Act requires that comparisons be made only between the wages of persons employed in the same establishment;

v)      not rejecting the complaints filed by the CEP, CTEA and Femmes Action despite the lack of particulars necessary for Bell to properly defend itself against them;

vi)      not rejecting the CEP's complaint despite previous findings by the Commission in 1984, 1985 and 1987 that the wages Bell paid to female dominated jobs chosen by the CEP did not discriminate on the basis of sex contrary to section 11 of the Act and the absence of any evidence of a change in the relationship between wages for male and female dominated jobs among Bell employees represented by the CEP.

[19]      Bell poses the question:

     Did the Commission deny Bell procedural fairness by lumping together for investigation the various complaints filed by the CEP, CTEA and Femmes Action with numerous others covering different jobs, different time periods and different comparators? The answer to this question is statutory. Counsel for CTEA refers to subsection 40(4) of the Act (transcript, Nov. 27/97 (4th) p. 44). She is correct, probably, provided the complaints be lawfully and properly formulated. If so, Bell's concern is probably groundless, if not, enquiry into them by the Tribunal ought to be stopped. But Bell must demonstrate that prejudice and any other prejudice alleged by it.

[20]      Counsel asserted that this issue has already been heard by the Tribunal and is the subject of judicial review proceedings. By now, perhaps, it is resolved.

[21]      Bell asserts in its BAR, vol. XI, at p. 24 (1931) that the Equal Wage Guidelines 1986 are ultra vires of the CHRC, but when this issue was raised by CTEA's counsel, Bell's counsel stated "for the purposes of today's [i.e. these present] proceedings we could [and do] go on the basis of assuming, without deciding, that the Guidelines are valid * * * for the purposes of this argument" (transcript, Nov. 27/97 (4th) p. 47). Ergo it is unnecessary for this Court to dispose of the matter of the validity, if any, of the Equal Wages Guidelines 1986. Bell's counsel asks only to note "our objection consistently to them".

[22]      Upon the whole of this case, this Court is persuaded that Bell's assertions of the errors in law listed in paragraph [18] above, on the part of the Commission are correct. The CHRC has in recent years espoused a new political philosophy with regard to wage discrimination complaints, if not the whole subject of allegedly discriminatory wage disparities. Perhaps under the rubric of "pay equity" it is not so new. Instead of specific comparators, it appears that the CHRC, either leading, or egged on by the other respondents has adopted a new concept of male-preponderant jobs and female-preponderant jobs, including, of course, those jobs which happen to be held exclusively either by women or by men, if and when such there be. Counsel for Bell is, however, quite correct in insisting that this nouvelle vague is exactly what is not contemplated by section 11 of the Act recited above in paragraph [8]. Section 11 contemplates discrimination as between specific comparators.

[23]      Examples can be found in the affidavit of Francine Bibby, BAR, vol. VII, tab 12, p. 1494. She attaches some 1980s complaints as examples of the "new" political philosophy, and its slaughter by the CHRC under the presidency of Mr. R.G.L. Fairweather. Indeed in one instance of the disappointed applicants seeking section 28 judicial review after the expiry of the time limit, (A-521-85, May 12, 1986), a strong panel of the Court of Appeal unanimously held that although the applicant satisfactorily explained the delay, he failed to establish a reasonably arguable case upon which to proceed.

[24]      Mrs. Bibby's paragraph 11 illustrates how employment group classifications' disparities are appropriately reduced by the process of collective bargaining. How is it that discrimination complaints on behalf of female employees were all dismissed in the early 1980s, that since then those employees (or new female employees in the same classifications) have since received greater percentages of pay increases than received by the male employees who were the comparators when complaints were dismissed, and how is it that there could then be valid complaints subsequently of pay disparity? Mrs. Bibby was not cross-examined.,

[25]      It may be that the philosophy of wage-discrimination resolution espoused by the CHRC and the respondents produces greater efficiency through economies of scale. However until Parliament espouses that philosophy and so enacts, in words clearly able to be so interpreted, this Court will abide by section 11 as it has existed up to now. Indeed "greater efficiency" and "economies of scale" are only sometimes productive of fairness and justice, and this appears not to be one of those instances. However, let it not be thought that Bell has achieved pay-equity perfection, as disclosed on p. 12 of the Pay Equity Joint Committee's final report. (BAR, vol. II, tab 3, p. 0347.)

[26]      Of course, this conclusion is not at odds with the judgment of the Supreme Court of Canada in Action Travail des Femmes v. C.N.R., [1987] 1 S.C.R. 1114, for wage disparities among Bell's employees are not shown to be "systemic". Women do not constitute a small minority, but rather a "critical mass" among Bell's employees, many of whom enjoy higher wages than enjoyed by men, and many of whom are in supervisory capacities.

[27]      During the month of December, 1997, a minor brouhaha erupted among the various counsels herein over the applicant's counsel's letter dated December 8, 1997, delivered "by hand" to the Montréal registry but addressed directly to this judge. This is bad form. The last words addressed by counsel to a judge are expressed in open Court unless all adverse counsel consent to one or some of their number writing to the judge on the subject of the litigation. The applicant's counsel said that he wrote because there was no more time left at the end of the fourth day of this "two-day" proceeding. He referred to passages in the well-known decision concerning the Syndicat des employés de production du Québec et de l'Acadie found at tab 103 of volume V, joint book of authorities, cited as S.E.P.Q.A. v. Canada, [1989] 2 S.C.R. 879.

[28]      It will be remembered that the S.E.P.Q.A. dispute arose over the CHRC's interpretation of section 11 of the Act upon which the investigator based his report: that was, he "considered the group rather than individual members and examined the system rather than focussing on individual complaints. * * * He recommended that the complaint be rejected by the Commission as unsubstantiated. * * * The Commission considered these [appellant's] submissions and the investigator's report and, without a hearing, dismissed the complaint as unsubstantiated pursuant to s.36(3) of the Act. The Federal Court of Appeal dismissed the appellant's s.28 application [for judicial review]." (S.C.R. p.880).

[29]      The Supreme Court in that S.E.P.Q.A. case dismissed the appellant's appeal, with Madam Justice Wilson and L'Heureux-Dubé fully dissenting, and Chief Justice Dickson dissenting in part. Mr. Justice Sopinka expressed the majority decision for himself and Justices Lamer and LaForest.

[30]      The applicant's counsel drew to the Court's attention this passage from Madam Justice L'Heureux-Dubé's dissent (S.C.R. p. 925):

Section 11, however, differs from ss. 7 and 10. Its scope of protection is delineated by the concept of "equal value". That provision does not prevent the employer from remunerating differently jobs which are not "equal" in value. Wage discrimination, in the context of that specific provision, is premised on the equal worth of the work performed by men and women in the same establishment. Accordingly, to be successful, a claim brought under s. 11 must establish the equality of the work for which a discriminatory wage differential is alleged.

In other jurisdictions which have adopted equal pay for equal work legislation, no prima facie case of wage discrimination can be made solely by presenting evidence of segregation. * * * [citations omitted].

The applicant's counsel submitted that the above "reasoning on this point is in accordance with that of the majority, for whom the late Mr. Justice Sopinka wrote, at page 903 of the case."

[31]      Because the S.E.P.Q.A. judgment is in the public domain, and among the parties' jointly submitted of authorities, but also because the respondents' counsels seemed inflamed by the unfortunate conduct of the applicant's counsel, the Court invited all the opposing counsels to respond. Counsel for the CEP did so. It was a brief response, thus:

In response to Mr. Roy L. Heenan's December 8, 1997 letter, we simply wish to direct the Court's attention to the following passages in S.E.P.Q.A. v. C.H.R.C., [1989] 2 S.C.R. 879, which place the portions quoted by Mr. Heenan in their proper context: pp. 925-26 (lines h to a); pp. 926-27 (lines i to b) (dissenting judgment of L'Heureux-Dubé J.) and p. 888 (lines c to j) (majority judgment of Sopinka J.)

(February 24, 1998)

[32]      The first passage by L'Heureux-Dubé, J. which CEP's counsel cites, begins where the applicant's counsel left off, that is, "[citations omitted]". So,

(for the United States, see Corning Glass Works v. Brennan, 417 U.S. 188 (1974); for the United Kingdom see Waddington v. Leicester Council for Voluntary Services, [1977] 2 All E.R. 633 (E.A.T.)) Commenting on the

Canadian legislation generally, Walter S. Tarnopolsky, Discrimination and the Law in Canada (1982), at p. 417 states:

The onus is clearly upon the complainant to prove "equal work" or "similar or substantially similar" work.

For these reasons, with respect to the narrow question raised by appellant, evidence of professional segregation in and of itself does not seem to constitute a prima facie case under that provision, unless of course such evidence independently establishes the equal worth of the work under consideration, which is not the case here.

(S.C.R.: p. 925 h to p. 926 a)

*** *** ***

Of key importance for the purpose of this appeal, as I said earlier, is the concept of "work of equal value". That concept is simple only in appearance.

One element of difficulty is the concept of equality. The prohibition against wage discrimination is part of a broader legislative scheme designed to eradicate all discriminatory practices and to promote equality in employment. In this larger context s. 11 addresses the problem of the undervaluing of work performed by women. As this objective transcends the obvious prohibition against paying lower wages for strictly identical work, the notion of equality in s. 11 should not receive a technical or restrictive interpretation. However, the degree of similarity which is required under that provision is not for this Court to decide here.

(S.C.R.: p. 926 i to p. 927 b)

So much for the dissenting opinion, which in the last paragraph above was also cited, in response, by CTEA's counsel.

[33]      The passage by Sopinka, J. for the majority in S.E.P.Q.A. which CEP's counsel cites as does CTEA's counsel in opposition, runs:

Enclosed with the letter was a copy of his report which explained the methodology, including references to the Aiken Plan, and the results of its application. Furthermore, the discrepancies referred to above were fully identified. Under the heading "Discussion", the investigator explained that in investigating the matter, it was necessary to consider the group rather than individual members and to examine the system rather than focussing on individual complaints. This is based on the Commission's interpretation of s.11 of the Act. This interpretation is adopted because of the Commission's view that s. 11 is so worded as to prevent "ratcheting" and other wage adjustments that are not in accordance with good compensatory practice. For example, ten different male employees performing dissimilar work and being paid different salaries, nevertheless may all be performing work of equal value to a lesser paid female employee. If the female employee were entitled to limit a complaint under s. 11 to a comparison of her wages only to those of the highest paid male, her wages would be adjusted to be equal to those of the highest paid male. Thereafter all other males could require adjustment of their wages to be equal to those of the female who would then be receiving the highest wage rate. The result of such an approach would be that all employees would eventually move to the highest wage rate. Administered in this way, s. 11 would not be a guarantee of equal pay between sexes, but a guarantee of equal pay for work of equal value irrespective of sex.

(S.C.R.: p. 888 c to j)

What appears to be described in the immediately above cited passage is an example of "ratcheting". [effet de cliquet].

[34]      When one appreciates the true, and limited issues stated by Mr. Justice Sopinka, at p. 889 of S.E.P.Q.A., one is inclined to think, as did Chief Justice Dickson, that the cited passages invoked by the opposing counsels herein are really interesting and probably helpful obiter dicta. The Chief Justice is recorded on pp. 885-86 as follows:

I agree with the reasons of my colleague, Justice Sopinka with one reservation. In my view, this appeal can be entirely disposed of on jurisdictional and procedural grounds, and accordingly, I do not find it necessary or appropriate to deal with the correctness of the Canadian Human Rights Commission's interpretation of s. 11 of the Canadian Human Rights Act, S.C. 1976-77, c. 33. The Commission chose not to give reasons for its decision to dismiss the complaint as unsubstantiated. The focus of the appellant's attack before this Court was on procedural and jurisdictional grounds and in the Federal Court of Appeal, the interpretation of s. 11 was not addressed. Accordingly, I concur with Sopinka J. but express no view with respect to the interpretation of s. 11.

(S.C.R. pp. 885-86)

[35]      Bell has been abused by the CHRC here and taken advantage of. It entered into the pay equity study with the respondent unions on the accepted condition that the results of such study were to be used by the parties for the purpose of collective bargaining. The affidavit dated June 14, 1996, of André Beaudet is lengthy and telling. It appears in BAR, vol. I, tab 3, commencing at p. 017. Some pertinent passages are:

1.      Je suis à l'emploi de la requérante Bell Canada ("Bell") depuis 1973, où j'occupe la fonction de Chef divisionnaire - structuration et évaluation des postes depuis 1985. À ce titre, et en tant que membre du Comité conjoint mis sur pied par Bell, l'Association canadienne des employés de téléphone intimée (l'"ACET") et le Syndicat canadien des communications de l'énergie et du papier intimé (le "SCEP"), afin d'évaluer certains postes chez Bell à des fins de négociation collective, je suis en mesure d'affirmer que tous les faits énoncés ci-après sont vrais et j'en ai une connaissance personnelle.

*** *** ***

4.      En 1991 et 1992, l'ACET logea auprès de la Commisison des plaintes concernant les salaires qu'elle avait elle-même déterminés avec Bell par voie de négociation collective. Chacune de ces plaintes, logées les 27 juin 1991, ler avril 1992 et 22 octobre 1992, alléguait que les titulaires de postes déterminés à prédominance féminine étaient moins bien rémunérées que les titulaires de postes déterminés à prédominance masculine et ce, en raison de leur sexe. Or, les salaires faisant l'objet de ces plaintes étaient ceux contenus dans la convention collective intervenue entre Bell et l'ACET en date du ler juin 1990 et dans la convention collective intervenue entre Bell et le SCEP en date du 11 février 1991. Des copies de ces plaintes logées par l'ACET les 27 juin 1991 (dossier de la Commission numéro X-00344), ler avril 1992 (dossier de la Commission numéro X-00372) et 22 octobre 1992 (dossier de la Commission numéro X-00417) me sont montrées à l'instant et constituent respectivement les pièces 2, 3 et 4 au soutien de mon affidavit.

5.      En 1991, Bell, l'ACET et le SCEP ont convenu d'entreprendre une étude conjointe des modèles de rémunération reflétés dans les salaires que ces syndicats avaient déterminés avec Bell par voie de négociation collective. Cette étude visait à élaborer des lignes directrices destinées aux parties en vue des prochaines négociations collectives. Le seul objectif de cette étude était de servir de guide aux parties aux fins de négociation collective et n'avait aucun autre but. Une copie du document "Pay Equity Project Terms of Reference", en date du 26 avril 1991, m'est présentement montrée et constitue la pièce 5 au soutien de mon affidavit.

6.      Les parties ont convenu de retenir les services d'un cabinet conseil de consultants qui jouera un rôle déterminant à chacune des étapes de l'étude, y compris, par exemple, au niveau du choix de la méthode d'évaluation et l'énumération ainsi que la considération des facteurs d'évaluation. Le rôle du consultant est décrit en détail à la page 10 du Rapport final du Comité d'équité conjointe salariale en date du 23 novembre 1992 (le "Rapport final"). Une copie de ce rapport n'est montrée à l'instant et constitue la pièce 6 au soutien de mon affidavit.

7.      Le consultant retenu le fut à l'insistance du SCEP dans le cadre des négociations collectives alors en cours, et après que le SCEP ait rejeté tous les autres consultants suggérés.

8.      Bell n'aurait jamais accepté ce consultant n'eut été de l'insistance du SCEP dans le cadre des négociations collectives. De plus, elle le fit parce que le seul objectif de l'étude était de servir de guide aux négociations collectives futures.

9.      L'enquête générale consignée dans le Rapport final, reproduit comme pièce 6 au soutien de mon affidavit, fut complétée en novembre 1992. Elle portait seulement sur l'analyse de certains postes repères chez Bell, établissant une comparaison des courbes salariales entre les postes repères à prédominance masculine et les postes repères à prédominance féminine. Cette étude était du type courbe à courbe. Par conséquent, elle ne reposait pas sur une comparaison entre postes spécifiques à prédominance masculine et féminine. Conformément au but qu'elle visait, cette étude n'a pas eu pour résultat de déterminer si certains postes spécifiques à prédominance féminine étaient sous-payés par rapport à quelque poste spécifique que ce soit à prédominance masculine ou en relation avec des postes de valeur égale. Elle ne visait qu'à guider les prochaines négociations collectives.

10.      De plus, le rapport final fut préparé par un comité conjoint aux seules fins de négociation, ce qui est reflété par le fait, par exemple, que certains membres du STCC et de l'ACET sur ce comité faisaient partie de leur comité de négociations de convention collective. Bell n'aurait pas accepté une telle composition du comité si le but avait été autre que de servir de guide pour les négociations collectives.

*** *** ***

12.      Le Rapport final se fondant sur une enquête courbe à courbe, plutôt que sur une comparaison par paire (emploi à emploi) ou un plan d'évaluation des emplois, il ne contenait aucune donnée permettant de conclure qu'il existait une disparité salariale entre les titulaires de postes désignés à prédominance masculine et ceux de certains postes désignés à prédominance féminine, alors que ceux-ci exécutaient des fonctions équivalentes. Ce type de conclusion ne peut résulter que d'une étude basée sur une comparaison par paire (emploi à emploi) ou sur la comparaison d'un poste particulier à une ligne de régression masculine ou féminine.

13.      En juin 1991, la Commission avisa Bell que lors de son enquête portant sur les plaintes individuelles mentionnées au paragraph 2 des présentes, elle s'appuierait sur le Rapport final lorsqu'il serait disponible. À sa demande expresse, la Commission se vit confier un rôle dans l'élaboration et l'approbation de certains aspects techniques de cette étude. La Commission entreprit cette tâche et fut informée des résultats de l'étude des documents de travail techniques y afférents sur une base strictement confidentielle.

[36]      Given the purpose of the study agreed by all the parties to it, the basis of its comparisons (not in accord with section 11 of the Act) and the confidentiality of certain disclosures mentioned by Mr. Beaudet, the other parties hereto have not behaved honourably toward the applicant, but more to the joint, the CHRC's treatment of Bell, in law, was unfair. This Court agrees with counsel's argument on "same establishment" found in transcript 4, pp. 177-83. The basis of comparison of "generic jobs" was not in accordance with the Act or guidelines, and inflicting such conditions on Bell in the matter before the CHRC was unlawful and unfair. The above conclusion is almost admitted in the investigator's report countersigned by the pay-equity director of the CHRC on p. 222, BAR, vol. I, tab 34. The virtual admission is found on p. 217, same volume and tab:

150.      The job requirements of the several job titles were combined before doing the evaluation. Grouping several job titles into one generic job for the purpose of determining its value is appropriate when the employee has to perform the duties of all the job titles on a rotational basis. In this case, there is no automatic rotation between jobs within the generic job title. This could have possibly inflated the results of the evaluations of the generic male jobs.

151.      Several approaches were considered at that time to facilitate job comparison between male and female jobs identified in the complaints:

-      For each generic job, split the total number of completed questionnaires according to job title and recompile the results. (This was not easily feasible.)

-      Recollect the data on a smaller scale. (At that time, this was considered as causing undue delay.)

-      Instead of evaluating the generic job, evaluate one typical job using the information available from the questionnaires completed. (Commission staff chose this approach.)

152.      To validate the results of the joint pay equity study, staff of the Commission completed their own evaluations of the jobs in the first four clerical complaints using the job evaluation system developed for the joint-study and the data gathered during the study. This evaluation committee was comprised of Danielle Lacoste, Senior Pay Equity Consultant, Brian Hargadon, Pay Equity Consultant, and Maryanne Kampouris, an independent consultant.

153.      The results of the Commission's evaluations are not identical to the results of the joint pay equity study. However, these results do not detract from the overall results produced by the joint study, nor the conclusion that the latter are viewed as valid. The differences are explained by the fact that staff of the Commission used specific jobs as opposed to generic jobs used for the joint pay equity study.

154.      It is important to remember that CHRC used this approach as a test of the validity of the joint pay equity study. Given the exploratory nature of Commission evaluations, the results which showed an overall gap similar to that in the joint pay equity study, and given the greater reliability of the latter results, Commission evaluations have not formed the basis for investigation findings.

155.      Commission staff decided to prefer the results of the joint pay equity study because it took a broader approach to evidence on pay equity instead of the results of evaluations by the Commission staff.

[37]      Now it is somewhat difficult to establish bias here, as alleged by Bell, but it is easy to establish unfairness by the CHRC in its abuse of Bell's openness with its unions (who did not protest!) and the CHRC's abuse of confidentiality, all in defiance of section 11 of the Act. It appears that the unions and the CHRC also violated subsection 47(3) of the Act.

[38]      The Court finds on the plethora of evidence tendered by the parties, not all of which is or can be reasonably recited here, and on the oral submissions of counsel, and the Court's brief dialogues with them, that, of the applicant's grounds for relief recited earlier herein in paragraph [6], the applicant has established those expressed in items 2), 3), 4), 5), 6), 7), 8) and 10). These are ample grounds for granting the applicant the relief which it claims, seriatim (with no alternative), but granting the last claim with the preceding ones), as recited earlier herein in paragraph [5].

[39]      The applicant makes a plausibly strong case for inferring that the complaints of the CEP of January 11, 1994 and Femmes Action of January 25, 1994 as well as the CTEA of March 4, 1994 were drafted by the CHRC and signed by the complainants. It is not a case directly proved, and since it is essentially denied, the Court simply abstains from making that finding, because it is not absolutely necessary to the disposition of this originating motion. Abstention should not be regarded, however, as an adverse finding. (There is powerful argument by Bell, in transcript 4, pp. 173-75 for such a finding.)

[40]      The Court does (without saying that the CHRC corruptly composed or drafted the complaints), nevertheless, adopt and ratify the points of proof, argument and jurisprudence expressed in paragraphs 81 through 90 in BAR, vol. XI, pp. 1936-40.

[41]      Was the CHRC bringing a closed mind to the investigation of the matter before it? It certainly seemed to be determined to put a strained interpretation on section 11 with its long-standing requirement of specific comparators. It also appears that such a strained interpretation has not yet been adopted by Parliament of which the CHRC is a creature.

[42]      As Mr. Justice Joyal noted in Attorney General of Canada v. PSAC, PIPS, CHRC & H.R. Tribunal, T-1059-91 (August 26, 1991):

* * * By an elaborate exercise of esoteric language in a dialectic of fairly recent vintage, the statement of claim concludes that the only possible result of the Tribunal's inquiry, bound as it is by the Guideline, would be a finding on the basis of proportional pay for work of proportional value, a finding which on its face could not be in accordance with the equal pay and equal value equation provided by statute.

(JBA, vol. I, tab 19, p. 4)

Parliament remains the authoritative legislature, not the CHRC, not the parties and not this Court.

[43]      And what can be the posture of the respondent unions who agree to women's disparately small wages, as they complain, in collective agreements with the applicant? Could the respondents be guilty of discriminatory practice? The Supreme Court of Canada thought so in Central Akanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 at p. 973. In terms of doctrine, the law has been stated thus:

A union can be liable for both direct and adverse effect discrimination arising from the application of a term of a collective agreement. Both types of discrimination expose a union to liability for damages such as wage loss . . .

*** *** ***

At the very least, the union appears to be required to bargain to an impasse on provisions in an agreement which could have a discriminatory effect on particular disadvantages groups.

Mr. MacNeil, M. Lynk, P. Engelmann: Trade Union Law in Canada (Aurora: Canada Law Book, 1995) at pp. 11-12 and 16-17.

(BAR, vol. XI, p. 1949)

[44]      It appears that Bell has not been found to have committed a discriminatory practice in any wage complaint which features specific comparators pursuant to subsection 11(1). Do the respondents actually jeopardize themselves in pursuing complaints not in conformity with the statutory provision? It matters not to the Court, so long as the statute of Parliament be properly observed. The CHRC's overriding the limitation period pursuant to the Act's paragraph 41(e), without reasons, compounds its unfairness and extends the jeopardy to which the respondents are exposed. Who is to complain against them? Without any demonstration by the Commission that it "considered" such extension "appropriate in the circumstances" the complaints cannot be adjudicated as extended: such extension beyond one year is statute barred.

[45]      The Canadian Human Rights Commission has received and approved of improperly formulated complaints against Bell, (which Bell has pointed out were improperly formulated) in defiance of section 11 of the Act, and the Commission has acted unfairly to Bell by causing a tribunal to be appointed for the purpose of adjudicating such time barred, improper complaints. That is a decision which the Commission made in defiance of the statute and of fairness: it ought not to have been made. It will be quashed.

[46]      The applicant's originating notice of motion does not ask for costs, but only "such further and other relief as may seem just". Nor were costs asked for by any party, or the intervener, at the hearing of this natter in Ottawa. The question of whether this Court might have found "special reasons pursuant to rule 1618", is moot, because the "victor" never asked for costs in these proceedings for judicial review. In order to avoid further delay in releasing these reasons, the Court now invokes rule 337(2)(b), and (7) and directs that, subject to what follows, the applicant's solicitors are to prepare a draft form of order (form 30) to implement the foregoing conclusions, and to tender it to the registry with a request that this judge peruse it for signature. The applicant's solicitors, before tendering such form of order, in the hope of obtaining the respondents' respective solicitors' consents as to form shall consult with them on the proposed order. If such consents cannot be obtained, then the applicant's solicitors will have to accept that the respondent's solicitors will be entitled to pose to this judge their objections in a motion pursuant to rule 324. All parties and counsel will, no doubt, remember that rule 324 proceedings are not protected by rule 1618. The Court, thus far, compliments all counsels upon their professional performances.

                                

                                 Judge

Ottawa, Ontario

March 17, 1998