Date: 20091104
Docket: T-61-09
Citation:
2009 FC 1126
Ottawa, Ontario, November 4,
2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ANDRÉ
DESCHÊNES
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is challenging the legality of the decision of the Canadian Human
Rights Commission (the Commission), dated December 3, 2008, not to deal with a
complaint of discrimination and wage disparity filed under the Canadian
Human Rights Act, R.S.C. 1985, c. H-6 (the Act) by four employees of the Canada
Revenue Agency (the Agency), including the applicant.
[2]
Essentially,
following the analysis and recommendation contained in the report by the
Investigations Directorate, and after considering the written submissions sent
subsequently by the applicant and by the Agency, the Commission determined that
the complaint was frivolous, and therefore inadmissible under paragraph 41(1)(d)
of the Act.
[3]
The
applicant, who is representing himself, is now criticizing the Commission for
having made an unreasonable decision and for having breached procedural
fairness by refusing to deal with the complaint in question.
[4]
The
Attorney General of Canada, named as respondent, submits that there is no
reason to intervene in this case because the impugned decision is reasonable
and there was no breach of procedural fairness by the Commission.
[5]
For
the following reasons, this application for judicial review must fail.
[6]
In
several paragraphs of his affidavit, the applicant is argumentative and
opinionated, which is proscribed by the rules of the Court (McNabb v. Canada
Post Corporation, 2006 FC 1130, at paragraph 52). That being said, given
that the respondent has not formally requested that these paragraphs be struck
out and that the applicant is representing himself, suffices it to note that
the Court will take this limitation into account.
[7]
The
Commission’s role is well known and consists essentially in assessing the
sufficiency of the evidence before referring a complaint to a human rights
tribunal. It is not the job of the Commission to determine whether the
complaint is made out. Rather its duty is to decide if, under the provisions of
the Act, an inquiry is warranted having regard to all the facts: Bell v.
Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian
Human Rights Commission), [1996] 3 S.C.R. 854, at paragraphs 52 and 53; Syndicat des employés de production du Québec et de
L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at page 899 (SEPQA).
[8]
Paragraph
41(1)(d) of the Act provides that a complaint may be declared
inadmissible if it appears to the Commission that ‘‘the complaint is trivial,
frivolous, vexatious or made in bad faith’’. At that stage, the question is
essentially one of fact, if not a question of mixed fact and law.
[9]
It
is not disputed that the applicable standard of review in the case at bar is
reasonableness: Morin v. Canada (Attorney General), 2007 FC
1355, at paragraph 25; Nowoselsky v. Canada (Attorney
General),
2008 FC 1251, at paragraph 10; Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir). In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law: Dunsmuir, at
paragraph 47.
[10]
That
said, matters of procedural fairness are reviewable against the standard of
correctness (Bateman v. Canada (Attorney General), 2008 FC 393,
at paragraph 20). Procedural fairness dictates that the
parties be informed of the substance of the evidence obtained by the
investigator which will be put before the Commission and that the parties be
provided the opportunity to respond to this evidence and make all relevant
representations in relation thereto: SEPQA, above; Lusina v.
Bell Canada, 2005 FC 134, at paragraphs 30 and 31 (Lusina).
[11]
In
their complaint, the complainants generally allege that the Agency is in
violation of sections 10 and 11 of the Act because it pursues discriminatory
classification policies and maintains differences in wages.
[12]
It
should be noted that section 10 of the Act prohibits discrimination in hiring
or promotion, while section 11 prohibits differences in wages between male and
female employees employed in the same establishment who are performing work of
equal value.
[13]
Let
us briefly review the criticisms levelled by the complainants against the
Agency and the way these were dealt with by the Commission, beginning with the
issue of wage disparity.
[14]
First,
the complainants allege that the Program Administration group (PM), of which
they are part, is paid less than the Audit group (AU), which is predominantly
male. According to their complaint, the employees in the PM group, of whom
about 60% are women, are paid less than those in the AU group, of whom about
65% are men, for work which is of practically equal value.
[15]
In
the case at bar, the Commission considered the case before it to be lacking an [translation] ‘‘essential element’’,
thereby rendering it ‘‘frivolous’’.
[16]
For
a wage disparity complaint to succeed, a complainant must show that a group is
composed predominantly of members of the same sex, that there is another group
performing work of equal value, that the other group is composed predominantly
of members of the opposite sex and that the two groups are employed in the same
establishment.
[17]
Under
subsection 11(2) of the Act, 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 under which the work is performed.
Under the criteria established in the Equal Wage Guidelines, 1986 SOR/86-1082
(Guidelines), a group with over 500 members is predominantly female if 55% of
its members are women while a group with 100 to 500 members is predominantly
female if 60% of its members are women.
[18]
According
to the complainants, the comparator groups must be employees in PM positions
and those in AU positions: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C.
146 (T.D.).
[19]
To
illustrate their point, the complainants compared the PM-0727 position, at the
PM‑03 level (the position held by the applicant and other complainants),
which is 56% male, with the AU‑0144 and AU‑0145 positions (Tax
Auditor, AU positions), which are also predominantly held by men. And there,
indeed, lies the problem, because, in the Commission’s opinion, the complaint
is lacking a cause of action based on the wage disparity between men and women
who are members of professional groups performing work of equal value in the
same establishment.
[20]
In
the case at bar, following the Commission’s logic, which relies on the findings
of the investigation report and the positions taken by the complainants and the
Agency, whichever professional group is chosen, an essential element remains
missing in the case of the complaint under review.
[21]
On
the one hand, if the Commission accepts the group identified by the
complainants, namely the PM group, as the identifiable professional group, the
complaint would lack an essential element, i.e., information about the work
performed by the group.
[22]
On
the other hand, if the Commission accepts the group identified by the
respondent as the identifiable professional group, namely the PM-0727 group,
i.e., the group for which the complainants provided information about the work
performed, the complaint would lack the essential element of being a complaint
filed by a predominantly female group. In fact, the PM-0727 group had 331
members when the complaint was filed, of whom 145 were women, which is below
the 60% threshold mentioned in the Guidelines.
[23]
The
Commission’s reasoning is based on the Act and the evidence in the record, and
the applicant has not persuaded me that it was unreasonable under the circumstances.
[24]
Therefore,
I find that the applicant’s arguments cannot succeed. Even if the applicant established
that the PM group is predominantly female, in contrast to the AU group, he
failed to submit sufficient details about the work of equal value performed by
female employees compared to male employees. The information he provided
pertains exclusively to work performed by employees in PM-0727 positions, at
the PM-03 level, a group that is predominantly male.
[25]
Alternatively,
if the information about the nature of the work performed and the working
conditions of the other positions in the PM group is essential to reviewing the
complaint, then the applicant submits that the Commission breached procedural
fairness by not verifying for itself whether there were members of the PM
group, other than those in PM-0727 positions, who were performing work of equal
value and who were earning less than members of the AU group, including AU-0145
and AU-0144 positions.
[26]
Moreover,
the applicant notes that, for an investigation to be fair, it must be neutral
and thorough (Slattery v. Canada (Human Rights Commission), [1994] 2 F.C.
574 (T.D.)). The applicant submits that the investigation was not thorough
because, when he filed the complaint, he had indeed indicated to the
investigator that the professional group he had identified as being
discriminated against was the PM group as a whole, and not only the employees
in PM-0727 positions at the PM-03 level.
[27]
The
allegation that a principle of procedural fairness had been breached must also
be dismissed.
[28]
First,
the onus lies on the complainant to prove prima facie discrimination or the existence of wage
disparity (Bateman, above, at paragraph 25; Sketchley v. Canada
(Attorney General), 2005 FCA 404, at paragraph 86). In
this case, however, the complainants were content to simply provide information
about the work performed in PM-0727 and AU positions.
[29]
Procedural
fairness did not require the Commission’s investigator, at that stage, to
conduct a comparative analysis of the work performed by the professional groups
concerned based on evidence that was not already in the record or on
information that had not yet been submitted by the parties. The investigator,
in drawing up his report, was entitled to consider only those details provided
by the complainants in support of their wage disparity complaint.
[30]
The complainants had the opportunity to complete their file and to
provide additional information with regard to the work performed by the other
members of the PM group. On May 8, 2008, a copy of the investigator’s report
was sent to the applicant along with a letter inviting him to make submissions.
Not once did the applicant ever request leave to file a response exceeding the
usual 10 pages.
[31]
Moreover, on June 2, 2008, the applicant made submissions
indicating that he had [translation] ‘‘carefully
read the May 8 report’’, but his submissions do not address the work performed
by the PM group as a whole. Furthermore, the Commission sent the Agency’s
submissions to the applicant and invited him to make additional submissions.
[32]
Considering
that the investigator’s report was sent to the applicant along with the Agency’s
submissions, I cannot conclude that there was a breach of the principles of
procedural fairness. This is completely consistent with the case law (Lusina,
above at paragraphs 30 and 31). While it is true that the complainants
were not represented by counsel, this in no way changes the fact that the
investigator must act with the utmost neutrality. It is not the role of the
investigator to try to improve a complaint that is deficient on its face.
Incidentally, the allegations made by the applicant at the hearing to the
effect that the investigator was biased have no objective basis and must also
be disregarded.
[33]
This
brings us to the second part of the complaint, which deals with the discrimination
issue and the way it was handled by the Commission.
[34]
The
complainants further allege in their complaint that the educational
requirements with regard to staffing are such that employees in the PM group, who
are required to have a high school diploma or an acceptable combination of
training, education and experience, are paid less than employees in the AU
group, who either need to have a degree from a recognized university with an
accepted specialization in accounting, or be an accredited member of a
professional accounting association (CGA, CMA, CA).
[35]
Since
the PM group has more women than men in it, according to the complainants, this
distinction itself discriminates against women, which is contrary to section 10
of the Act. As a remedy, the complainants are seeking an increase in the
educational requirements for the PM-0727 position and the pay increase that a
reclassification would bring with it, as well as a statement to the effect that
people currently employed in PM-0727 positions be exempted, in perpetuity, from
having to meet this new requirement for the position, as well as for any other
position where equivalent work is being performed.
[36]
As
for the allegations of discrimination made pursuant to section 10 of the Act,
the Commission is of the view that these too are ‘‘frivolous’’ because the
Agency [translation] ‘‘has
already acted on the complainants’ concerns’’. Once again, this last finding
falls within the range of possibilities reasonably open to the Commission.
[37]
It
should be recalled here that the Commission may decline to investigate a
complaint if it appears to the Commission that another available remedy exists.
As such, on February 6, 2007, the Commission advised the complainants that the
investigation would be suspended, under paragraph 41(1)(a) of the Act,
because another available remedy existed, in this case pursuing one or more
grievances against the alleged discrimination suffered by employees in the
group referred to in the complaint.
[38]
The
fact is that, in March 2006, the applicant, along with several other employees
in PM‑0727 positions, filed three grievances regarding duties, interim
pay and educational requirements for the PM-0727 position.
[39]
For
the purposes of this proceeding, there is no need to examine the first two
grievances, which were dismissed on January 18, 2007, by the Assistant Commissioner
of the Agency’s Human Resources Directorate. In the third grievance, it was
requested that the educational requirements for PM-0727 positions be raised. It
was also requested that those in PM-0727 positions be deemed to have met the
position’s new requirements, that the positions be reclassified and that the
pay rate be adjusted accordingly. Therefore, the remedies sought in the third
grievance correspond to the requests made before the Commission.
[40]
In
this case, further to the grievance relating to the educational requirements,
the Agency agreed to proceed with a detailed analysis of the impacts of a
change in the educational requirements for PM-0727 positions. In fact,
discussions with the bargaining agent representing the group’s employees have
already been held.
[41]
On
October 14, 2007, the applicant wrote to the Commission for the purposes of
reactivating the wage disparity complaint, since the grievance filed with the
Agency had never addressed this issue. However, the applicant added nothing new
with regard to the discrimination component which had given rise to the filing
of a classification grievance.
[42]
In
short, the Commission determined that it would not deal with the complaint
under section 10, because [translation]
‘‘the respondent has already acted on the complainants’ concerns’’. This
decision does not strike me as being unreasonable under the circumstances.
[43]
To
date, there is no evidence that management has made any final decision
regarding the educational requirements for the PM-0727 position following the
completion of its analysis. That said, it was reasonable for the Commission to
not deal with the complaint. If the Agency has not, to date, followed up on the
analysis referred to above, it is up to the applicant or his bargaining agent
to seek an explanation from the Agency, to pursue any unresolved grievances and
to request that the matter be referred to an adjudicator, if applicable.
[44]
For
the reasons stated above, the application for judicial review must be dismissed.
The respondent did not claim costs; therefore, no costs will be awarded.
JUDGMENT
THE COURT DECLARES,
ORDERS AND ADJUDGES that the applicant’s application for judicial review be dismissed
without costs.
‘‘Luc
Martineau’’
Certified
true translation
Sebastian
Desbarats, Translator
Email this Content