Date:
20050708
Docket:
T-170-03
Citation:
2005 FC 959
Ottawa, Ontario, July 8, 2005
PRESENT: MADAM JUSTICE DANIÈLE
TREMBLAY-LAMER
BETWEEN:
ELIZABETH
BUCHANAN
Applicant
and
BELL
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial
review asking the Court to set aside a decision of the Canadian Human Rights
Commission (the Commission) dated December 27, 2002.
[2] The impugned decision dismissed the
complaints filed by Ms. Elizabeth Buchanan, the applicant, under subsection
44(3) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
FACTS
[3] The applicant has been employed by
Bell Canada, the respondent, since April 14, 1980. From November 4, 1991 to
April 25, 1994, she held a position as first liaison supply clerk ‘9’ in the
liaison and transmission department, following which she began working as a
business market client representative, a position she held until July 15, 2002.
[4] These two positions were organized
by the Canadian Telecommunications Employees’ Association (the CTEA), a trade
union.
[5] On September 30, 1992, the
applicant filed a complaint (the original complaint) with the Commission
alleging gender-based pay discrimination.
[6] In that complaint, she used the
technician ‘1’ position with Bell as a factor of comparison for establishing
discrimination.
[7] In September 1992, the CTEA filed a
complaint with the Commission alleging gender-based pay discrimination with
respect to all first liaison supply clerk ‘9’ positions, these positions being
predominantly female.
[8] On January 25, 1994, a group of
women, Femmes-Action, filed a complaint of gender-based pay discrimination with
the Commission, alleging that Bell Canada followed discriminatory practices in
regard to various groups of female-dominated jobs.
[9] On January 31, 1994, the
Communications, Energy and Paperworkers Union of Canada (the CEP) filed a
complaint with the Commission in relation to gender-based discriminatory
practices adopted at Bell Canada for various groups of female-dominated jobs.
[10] On February 9, 1994, following the
receipt of a final report of a joint study conducted by Bell Canada, the CTEA
and the CEP, the Commission recommended to the applicant that she amend her
complaint of September 30, 1992, to expand the comparison factor used to all
male-dominated jobs.
[11] On February 17, 1994, the applicant
filed an amended complaint (the amended complaint) with the Commission.
[12] On March 4, 1994, the CTEA filed a
general complaint with the Commission in regard to all female-dominated
clerical positions at Bell Canada.
[13] In the wake of the numerous
complaints filed with the Commission, Bell Canada, the CTEA and the CEP
attempted to settle their differences with mediation.
[14] This two-phase mediation process
began on March 15, 1994. The first phase ended on May 9, 1994, with the
release of the mediation report. The second phase, the negotiation phase
properly speaking, never took place. This was the stage at which the persons
who had filed individual complaints were to participate, personally or through
their representatives.
[15] Consequently, the applicant was
unable to participate in the mediation process that was undertaken.
[16] Notwithstanding the failure of the
mediation process, the Commission investigated and found some wage disparities
in regard to the position held by the applicant, in a report issued on November
14, 1995.
[17] The investigation report covered 62
individual complaints, three CTEA complaints and four systemic discrimination
complaints filed by Femmes-Action, the CEP and the CTEA.
[18] This report recommended as well that
the unions’ complaints be referred to a Human Rights Tribunal (the tribunal)
under section 49 of the Act.
[19] On April 26, 1996, the applicant was
informed that her individual complaints (original complaint and amended
complaint) would be referred to the Commission for review in the coming weeks.
[20] On May 22, 1996, the Commission
recommended that a tribunal be constituted to hear the wage parity complaints
filed by the CTEA, the CEP and Femmes-Action.
[21] On May 28, 1996, the Commission
informed the applicant that it was suspending the review of her individual
complaints until a decision had been issued on the complaints filed by the
CTEA, the CEP and Femmes-Action.
[22] On August 30, 2002, the respondent
and the CTEA (the applicant’s union) reached an out-of-court settlement (the
settlement). The complaints filed by the CEP and Femmes-Action were
maintained.
[23] That settlement was put to a vote of
the 29,000 eligible persons between September 21 and 25, 2002. Of the 24,458
former and current employees who cast a vote, 75.9% voted in favour of the
ratification of the settlement.
[24] The settlement gave the applicant
$12,034.06, to which was added at least $2,000 in settlement of her individual
complaint.
[25] The applicant chose not to accept
the settlement offer.
[26] On October 22, 2002, the CTEA
withdrew their complaints as a result of the settlement.
[27] On October 25, 2002, the Commission
informed the applicant that an additional report concerning her complaints
recommended that they be dismissed.
[28] The recommendation read as follows:
[translation]
It is recommended that, pursuant to
paragraph 44(3)(b) of the Canadian Human Rights Act, the
Commission dismiss the complaints;
Because, having examined all of the
circumstances surrounding the complaints, an investigation of these complaints
is not warranted;
Because the subject matter of these
complaints has already been addressed.
[29] On December 27,
2002, the Commission informed the applicant that [translation] “in view of the circumstances pertaining to your
complaints”, all of which were listed; it was not taking action on them under
subsection 44(3) of the Act.
ISSUES
[30] The issues
relate to the scope of the “circumstances of the complaint” that the Commission
must consider when inquiring into a complaint under subsection 44(3) of the
Act, and in particular they raise the following points:
- Does the Commission’s inquiry fulfil the
requirements of procedural fairness?
- Was it reasonable for the Commission to
rely on an out-of-court settlement between the union and the company in order
to justify the dismissal of the individual complaint filed by a member of that
union against that company?
ANALYSIS
[31] The main concern
underlying this application as a whole is as follows: The settlement reached
between Bell Canada and the CTEA concerning the union’s complaint of systemic
discrimination does not solve the discrimination that the applicant claims to
have suffered in her individual complaint.
[32] Although I agree
that the fact that a settlement was reached does not automatically mean that
the applicant’s complaint should be dismissed, I am nevertheless not persuaded
that the Commission’s inquiry, and the decision that resulted from it, were
deficient. On the contrary, for the reasons that follow, the Commission, in my
opinion, was in a position to find that there was no need to conduct a further
inquiry in view of “all the circumstances”, an important one being the
settlement in question.
1.
Requirements
of procedural fairness
[33] Questions of
procedural fairness are addressed not to the result obtained or to the decision
that is being judicially reviewed but rather to the process that is taken to
reach them. Consequently, they do not require the pragmatic and functional
approach (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539;
Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249).
What procedural fairness does require in a particular context must be assessed
by taking into account many factors (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817) and the Court must
determine whether this threshold has been achieved.
[34] In Baker,
ibid., the Supreme Court of Canada described the factors that are
relevant in determining the content of the obligation of procedural fairness.
These factors are the following: (1) the nature of the decision being made and
process followed in making it; (2) the nature of the statutory scheme and the
terms of the statute pursuant to which the body operates; (3) the importance of
the decision to the individual or individuals affected; (4) the legitimate
expectations of the person challenging the decision; (5) the choices of
procedure made by the agency itself.
[35] The purpose of
the statutory scheme is essentially the protection of equality by eliminating
discriminatory practices based on a prohibited ground such as sex; the Act also
provides expressly: “It is a discriminatory practice for an employer to
establish or maintain differences in wages between male and female employees
employed in the same establishment who are performing work of equal value.”
(See section 2, subsections 3(1) and 11(1) of the Act.)
[36] The Commission
has considerable discretion but, to the extent that it thinks there are
reasonable grounds for believing that a person is
engaging or has engaged in a discriminatory practice, it is required to deal
with any complaint that is filed with it (see subsections 40(1) and 41(1) of
the Act).
[37] In doing so, the Commission may
appoint an investigator with the power to conduct a detailed examination and to
report on the merit of each complaint (see subsection 43(1) of the Act).
Obviously, assuming that a particular complaint is not frivolous, was not filed
after the expiration of a deadline or could not more appropriately be dealt
with according to a procedure provided for under another Act of Parliament (see
subsection 41(1) of the Act), the complainant is entitled to expect that his or
her complaint will be examined and investigated carefully.
[38] In other words, procedural fairness
requires that the Commission conduct its investigation in a neutral and
thorough way (Slattery v. Canada (Human Rights Commission), [1994] 2
F.C. 574 (T.D.), aff’d (1996), 205 N.R. 383 (C.A.)). The applicant’s argument
based on procedural fairness is based solely on this point.
[39] The applicant relies primarily on an
investigator’s report (exhibit P-14) dated November 14, 1995, in which it
was concluded that there was sufficient evidence of pay discrimination against
certain groups of employees, including the group to which the applicant
belonged, to recommend that a tribunal be constituted to adjudicate the various
individual and systemic complaints filed against Bell.
[40] As a result of the settlement
reached in 2002 between the CTEA and Bell, the applicant argues, nothing was
done to really assess whether the questions raised in her individual complaint
had been addressed in that settlement. Consequently, she says, the
investigation cannot be characterized as thorough.
[41] This initial submission is
unfounded, in my opinion.
[42] First of all, the content of the
obligation of procedural fairness depends on the context and implies the
striking of a balance between opposing interests. The thoroughness of the
investigation that can be expected must accordingly be assessed from the
standpoint of administrative efficiency and considerations of effectiveness.
Mr. Justice Nadon, as he then was, made the following argument in Slattery,
supra, at page 600:
In determining the degree of thoroughness of
investigation required to be in accordance with the rules of procedural
fairness, one must be mindful of the interests that are being balanced: the
complainant’s and respondent’s interests in procedural fairness and the CHRC’s
interests in maintaining a workable and administratively effective system.
Indeed, the following words from Mr. Justice Tarnopolsky’s treatise Discrimination
and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally
applicable with regard to the determination of the requisite thoroughness of
investigation:
With the
crushing case loads facing Commissions, and with the increasing complexity of
the legal and factual issues involved in many of the complaints, it would be an
administrative nightmare to hold a full oral hearing before dismissing any
complaint which the investigation has indicated is unfounded. On the other
hand, Commission should not be assessing credibility in making these decisions,
and they must be conscious of the simple fact that the dismissal of most
complaints cuts off all avenues of legal redress for the harm which the person
alleges.
Deference must be given to administrative
decision-makers to assess the probative value of evidence and to decide to
further investigate or not to further investigate accordingly. It should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted. Such an approach is consistent with the deference allotted to
fact-finding activities of the Canadian Human Rights Tribunal by the Supreme
Court in the case of Canada (Attorney General) v. Mossop, [1993] 1
S.C.R. 554.
[43] There is no indication that
important evidence was overlooked or that there were significant omissions in
the course of the investigation conducted in this case. Nor is there any
indication that the applicant was deprived of the opportunity to make
submissions or to be informed of the substance of the respondent’s defence,
which is also required by procedural fairness in the investigation (Syndicat
des Employés de Production du Québec et de l’Acadie v. Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879; Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.)).
[44] More importantly, the substance of
the applicant’s complaint was not just ignored. On the contrary, her complaint
was stayed in 1996, without protest from her, pending a decision on the CTEA
complaint, because the issues overlapped: at the heart of each investigation
(at least insofar as the applicant’s situation was concerned) was a comparison
between the wages earned by the applicant’s female-dominated group of employees
and the wages of a group of male‑dominated employees performing
equivalent tasks. This did not change between 1996 and the date of the settlement,
in 2002. While perhaps far from ideal from the standpoint of settling the
complaint, the alleged six or seven year interruption of the investigation on
the applicant’s complaint did not, in my opinion, compromise the substance of
the investigation.
[45] However, following the settlement, a
later investigation was conducted in relation to the pending individual
complaints (including the applicant’s complaint). The report pertaining to this
investigation (exhibit P-27) clearly reflects the investigator’s opinion that
the questions raised in the applicant’s complaint were the same as those raised
in the CTEA complaint, and, pursuant to that settlement, the applicant’s
complaint was therefore settled:
[translation]
The complainant(s) are all members of the
CTEA. The complaints of a systemic order X00344, X00372, X00417, X00460 and
X00469, referred to the Tribunal by the Canadian Human Rights Commission for
investigation, dealt with the same subject as the individual complaints.
On October 22, 2002, the CTEA withdrew its
complaints of systemic discrimination after a settlement had been obtained with
the mis-en-cause, Bell Canada. The settlement stipulates that each individual
complainant will receive an additional payment of $2,000. Consequently, the individual
complaints on the same subject have been resolved.
[46] In my opinion,
it is impossible in these circumstances to contend that the investigation was
not thorough. To require the Commission to investigate and report on each
individual complaint would amount to sacrificing entirely the interests of
administrative efficiency, given the Commission’s conclusion that the merits of
the individual complaints were dealt with in the context of the CTEA complaint.
The applicant may question the reasonableness of that conclusion but the
argument based on procedural fairness must be rejected.
2.
Reasonableness
of the decision
[47] In dismissing the applicant’s
complaint, the Commission cited subparagraph 44(3)(b)(i) of the
Act, which reads:
|
44. (3) On
receipt of a report referred to in subsection (1), the Commission
|
44. (3) Sur réception du rapport d’enquête prévu au
paragraphe (1), la Commission :
|
|
…
|
[…]
|
|
(b) shall dismiss the complaint to which the
report relates if it is satisfied
|
b) rejette la plainte, si elle est convaincue :
|
|
(i) that, having
regard to all the circumstances of the complaint, an inquiry into the
complaint is not warranted, or...
|
(i) soit que, compte tenu des circonstances
relatives à la plainte, l’examen de celle-ci n’est pas justifié,
[…]
|
[48] This provision
gives the Commission extensive discretion and the importance of this inquiry
function to the comprehensiveness of the statutory scheme as a whole is well
established (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R.
854; Bell Canada, supra). Nevertheless, there is no privative
clause sheltering the decisions rendered under subsection 44(3) and, in this
case, the dismissal of the complaint by the Commission was based on a finding
of mixed law and fact, that is on the conclusion as to whether the issues
raised in the applicant’s complaint were the same as those dealt with in the
context of the CTEA complaint and the subsequent settlement relating thereto.
So, in my view, the applicable standard of review in this case is that of
reasonableness simpliciter.
[49] The Federal
Court of Appeal and this Court have, with very few exceptions, applied this
standard on numerous occasions to the decisions rendered under paragraph 44(3)(b):
see Gee v. Canada (Minister of National Revenue), [2002] F.C.J. No. 12
(F.C.A.); MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL); Doucet
v. Byers Transportation System Inc., [2005] F.C.J. No. 974 (QL); Public
Service Alliance of Canada v. Canada (Attorney General), [2005] F.C.J. No.
514 (QL); a contrario, McConnell v. Canada (Canadian Human Rights
Commission), [2004] F.C.J. No. 1005 (QL).
[50] In the case at
bar, the Commission based its decision on the following considerations:
[translation]
·
the complaints filed by the
Canadian Telephone Employees’ Association (CTEA) against Bell Canada on behalf
of their members, and on your behalf, concerned systemic wage discrimination
within Bell Canada;
·
the systemic complaints of
the CTEA involved issues raised in your complaints;
·
your complaints could
benefit from the CTEA’s investigation into the systemic complaints that began
in 1996 and continued until a settlement was reached; and for this reason your
complaints were held in abeyance;
·
unexpectedly and without the
Canadian Human Rights Commission’s involvement, the CTEA and Bell Canada
reached an out-of-court settlement to resolve the systemic complaints;
·
an overwhelming majority of
CTEA members approved the settlement in a ratification vote;
·
you will receive at least
$2,000 under the terms of the settlement; and
·
written submissions were
received by the parties in the case.
[51] The applicant
argued that a fair number of those considerations showed why the Commission
erred in its decision. Her core submission is that her individual complaint was
not addressed in the settlement that was reached and that accordingly the
Commission’s decision was based on an irrelevant consideration and thus cannot
withstand the standard of review.
[52] I disagree.
[53] The Commission
clearly has the right to review the terms of a settlement when making a
decision under paragraph 44(3)(b): Gamhum v. Canada (Canadian Human
Rights Commission) (re Canada (Canadian Armed Forces)), [1996] F.C.J. No.
1254 (QL). In fact, the statutory scheme clearly contemplates this.
[54] However, the
consideration of the settlement in the context of the dismissal of the
applicant’s complaint is not, in my opinion, tantamount to deciding what
constitutes adequate compensation for each individual, a question which, the
applicant says, can be decided only by a tribunal. A legal decision as to
compensation that is owing can only result from a court judgment that the
complaint was substantiated (see subsection 53(2) and section 54 of the Act),
and, in view of the settlement, no such judgment was ever rendered in this
case.
[55] The existence of
the settlement may, however, serve to support the theory that a more extensive
inquiry is not warranted. The fact that about 75% of the employees covered by
the CTEA systemic complaint voted in favour of ratifying the settlement terms
tends to show its reasonableness.
[56] The applicant
essentially states that the terms of the settlement may not be reasonable in
her case. However, there is no indication that the particular circumstances or
allegations cited in the applicant’s individual complaint distinguish it from
the complaints dealt with in the course of the inquiry relating to the CTEA
complaint and the settlement thereof.
[57] On the contrary,
since the employee categories to which the applicant and the other individual
complainants belonged were included in the latter complaint, the constitution
of one or more other tribunals to hear the 62 individual complaints would have
entailed the assessment of the same evidence, required the same expert testimony
and raised the same questions of fact and of law as the CTEA complaints,
withdrawn on October 22, 2002, six years after having been referred to the
tribunal. In short, this is not a case in which the applicant or a particular
group of employees were marginalized or completely excluded from the complaint
process (a contrario, Public Service Alliance, supra).
[58] On the sole
basis of the complexity of the pay discrimination issues and of the resources
allocated to the inquiry relating to the systemic complaint of the CTEA, I find
that the Commission struck a fair balance between the public’s interest in the
maintenance of a viable and effective administrative system and the necessity
that persons have their complaints carefully reviewed, which the Commission is
bound to do (Gamhum, supra; Gee, supra). Absent
considerations distinguishing the applicant’s complaint from the CTEA’s
complaint, which was filed in particular on behalf of her group of employees,
it is simply illogical to contend that the Commission wrongly exercised its
extensive discretion in ruling that there was no need to conduct a further
inquiry in view of “all the circumstances”.
[59] There is
therefore no reason that would warrant the intervention of this Court, since
the decision is not unreasonable, that is, “there is no line of analysis within
the given reasons that could reasonably lead the tribunal from the evidence
before it to the conclusion at which it arrived” (Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247, para. 55).
[60] The application
for judicial review is dismissed.
ORDER
THE COURT
ORDERS that the application for
judicial review be dismissed.
Judge
Certified true translation
François Brunet, LLB, BCL
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