Docket: T-642-15
Citation:
2016 FC 882
Ottawa, Ontario, July 28, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
|
BETWEEN:
|
|
CANADA POST
CORPORATION
|
|
Applicant
|
|
and
|
|
CANADIAN
POSTMASTERS AND
ASSISTANTS
ASSOCIATION (CPAA)
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Canada Post Corporation [CPC or the applicant]
employs postmasters and their assistants in rural and suburban post offices
throughout Canada. These postmasters and their assistants are represented by
the Canadian Postmasters and Assistants Association [CPAA or the respondent].
They form the Revenue Postal Operations Group within the CPAA. The majority of
individuals employed in the Revenue Postal Operations Group are female
employees; it is a female-dominated group.
[2]
For more than thirty years CPAA has alleged pay
inequity between the Revenue Postal Operations Group [Complainant Group], and a
group represented by the Canadian Union of Postal Workers [CUPW] which the
respondent alleges is male-dominated and performs substantially the same work
for CPC as the Complainant Group.
[3]
More than twenty years ago CPAA initiated a complaint
with the Canadian Human Rights Commission [CHRC] alleging pay inequity between
the Complainant Group and the Postal Operations Internal and External Group within
CUPW. After more than twenty years the substantive aspects of the complaint
have not been addressed and in excess of 6,000 current and retired employees
affected by the alleged discrimination have not received an answer to their
complaint.
[4]
In March, 2015, after considering a lengthy CHRC
report [Section 41/49 Report or Report], the CHRC referred the Complaint to the
Canadian Human Rights Tribunal [Tribunal] without further investigation.
[5]
The issue of delay was a common thread that ran
through the CHRC report. After finding CPC, rather than CPAA, was often
responsible for the delays associated with the matter, the CHRC identified the
issue of delay as a factor justifying its decision to deal with the complaint
and refer it to the Tribunal rather than conducting further investigation.
[6]
CPC seeks judicial review of the CHRC Decision
to refer the complaint to the Tribunal.
[7]
The applicant, CPC, advances the position that
the CHRC acted in a procedurally unfair manner in failing to address their
submissions identifying deficiencies in the CHRC report. The applicant further
argues the CHRC’s misapprehension of the evidence and reliance on bald
assertions in alleging discrimination render the Decision unreasonable. I do
not agree. The CHRC decision was reasonable based on the record before it and
there was no breach of procedural fairness. I therefore dismiss the application
for the reasons that follow.
II.
Background
A.
The Complaint
[8]
This complaint has a long history rooted in a
1982 complaint the CPAA initiated with the CHRC that the parties agreed to
resolve in 1985. However, the CHRC refused to approve the settlement agreement,
reopening the investigation in 1989. The CHRC subsequently determined in 1991 that
it would take no further steps and dismissed the 1982 complaint.
[9]
In November, 1992, the respondent filed a second
complaint with the CHRC [Complaint] alleging that from September 1, 1992 the applicant
had discriminated against members of the female dominated Revenue Postal
Operations Group. It is this Complaint that is subject of the application for
judicial review.
[10]
The applicant requested the CHRC not deal with the
Complaint on the basis the CPAA had: (1) not exhausted alternative and
reasonably available review and grievance procedures; and (2) the Complaint had
been made in bad faith. In October, 1994 the CHRC refused to exercise its
discretion to dismiss the Complaint [1994 CHRC Decision] and the applicant
filed an application for judicial review with this Court.
B.
Judicial Review of 1994 CHRC Decision
[11]
Justice Rothstein dismissed the judicial review
application (Canada Post Corp v Canada (Canadian Human Rights Commissions),
[1997] FCJ No 578 at para 12, 130 FTR 241 (TD) [Canada Post FC]),
a decision that was upheld by a unanimous Federal Court of Appeal (Canada
Post Corp v Canada (Human Rights Commission), [1999] FCJ No 705, 169 FTR
138 (CA)). On June 25, 1999, the Supreme Court of Canada dismissed the
applicant’s application for leave to appeal that decision (Canada Post Corp
v Canada (Canadian Human Rights Commission), [1999] SCCA 323).
C.
1997 Memorandum of Agreement
[12]
The Complaint was not advanced pending
determination of the applicant’s judicial review application of the 1994 CHRC
Decision. However the parties did enter into a Memorandum of Agreement in
December of 1997 [1997 MOA] in furtherance of the collective bargaining
process. The 1997 MOA required the parties to: (1) implement a joint job
evaluation plan; (2) negotiate the rates of pay in the collective agreement
with the understanding those rates were equitable and respected the CHRA as of
March 20, 1997; and (3) review the matter of a wage gap with a pay equity
expert and to address any gap through negotiation.
D.
The Petersen Report
[13]
Further to the 1997 MOA, the parties retained a
pay equity expert, Mr. Petersen, to determine if there was a wage gap between a
sub-group of the PO Internal and External Group [PO4] and the Complainant Group.
Mr. Petersen prepared a report on April 8, 1998 [the Petersen Report].
[14]
The comparator group identified in the Complaint
was not the comparator group adopted in the Petersen Report. Rather the
Petersen Report focused on the PO4 sub-group within the larger PO group. In
addition, the Petersen Report focused solely on the issue of whether or not
there was a wage gap between the Complainant Group and the PO4 sub-group. The
Petersen Report did not consider whether the PO4 sub-group was male dominated
and reached no conclusion on this issue.
E.
Efforts to Resolve the Complaint
[15]
The Section 41/49 Report describes numerous failed
efforts to informally resolve the Complaint. These efforts included an attempt
at formal mediation and subsequently the involvement of a conciliator. In 2006
the CHRC: (1) deferred the Complaint to allow the parties to pursue resolution
as between them; and (2) provided if the parties failed to reach an agreement,
the respondent could request the CHRC exercise its discretion to deal with the
Complaint [2006 CHRC Decision]. Neither party sought judicial review of the
2006 CHRC Decision.
[16]
Subsequent to the 2006 CHRC Decision the parties
entered into a second Memorandum of Agreement [2006 MOA]. The 2006 MOA
acknowledged that the existing job evaluation plan was applicable to all
positions in the bargaining unit and that it was free of gender bias or
discrimination based on prohibited grounds under the CHRA. Like the 1997 MOA,
the 2006 MOA did not address the question of gender bias or discrimination
based on prohibited grounds under the CHRA for the period between the
initiation of the Complaint in 1992, and the 1997 MOA.
[17]
The respondent continued to pursue the Complaint
and in November, 2009 advised the CHRC that an investigation was required. In
expressing this view the respondent also advised the CHRC that a separate pay
equity matter before the Federal Court of Appeal engaged issues relevant to the
Complaint - that matter involved a pay equity dispute with CPC where the
Comparator Group was the same Comparator Group identified in the Complaint (Canada
Post Corp v Public Service Alliance of Canada, 2010 FCA 56, 15 Admin LR
(5th) 157 [PSAC FCA]). On this basis the CHRC was asked to keep the file
open pending a decision in the PSAC FCA matter. The CHRC
responded it would leave the timing of any reactivation of the Complaint to the
respondent.
[18]
In February, 2010, the Federal Court of Appeal
issued a divided decision in PSAC, the majority finding in favour of CPC
with Justice Evans in dissent. Justice Evan’s dissent was upheld by a unanimous
Supreme Court of Canada in Public Service Alliance of Canada v Canada Post
Corp, [2011] 3 S.C.R. 572 [PSAC SCC] on November 17, 2011.
F.
Reactivation of the Complaint
[19]
In 2010 the respondent undertook efforts to
obtain information relevant to reactivation of the Complaint. In response the
applicant initially took the position it needed more time to review and respond.
However, in December, 2011 the applicant advised the respondent it considered
the file closed and would not formally respond or provide the information
requested. The respondent requested that the CHRC exercise its discretion to deal
with the Complaint.
[20]
In October, 2012 the CHRC wrote to the applicant
advising that: (1) the respondent had returned to the CHRC for reactivation of
the Complaint; (2) the matter will be resubmitted to the CHRC to decide whether
to proceed with the Complaint under section 41 of the CHRA; (3) the CHRC invited
CPC to provide its position on the issues for decision; and (4) the CHRC
attached information on the factors to be considered by the CHRC in making its
decision. The CHRC further advised it would not be addressing the substance of
the Complaint at that time but would be limiting its review to the issues
raised under subsection 41(1), and in particular referenced paragraphs 41(1)(a)
and 41(1)(d).
[21]
The CHRC received submissions from the parties
and issued the Section 41/49 Report finding that the Complaint required further
inquiry. The Report found that the Complaint was not frivolous, vexatious or
made in bad faith and the CHRC should exercise its discretion to deal with the
Complaint and not refer it to another procedure. The Report further concluded
it would not be in the public interest for the CHRC to conduct further
investigation on a number of grounds: (1) there was sufficient information to
warrant referral to the Tribunal; (2) the long delay associated with the
Complaint; (3) it was in the public interest that the Tribunal deal with
allegations of systemic discrimination affecting upwards of 6,000 employees requiring
expert evidence; and (4) all the matters warranted a full inquiry best
addressed by the Tribunal rather than further investigation from CHRC.
[22]
Based on the above noted conclusions the Report
recommended the CHRC: (1) deal with the allegations raised by Complaint for the
period between the initiation of the Complaint and March 20, 1997; and (2) that
it request the Tribunal to institute an inquiry into the Complaint pursuant to
subsection 49(1) of the CHRA.
[23]
After receiving submissions from the parties on
the Section 41/49 Report, the Acting Chief Commissioner of the CHRC adopted the
recommendations of the Section 41/49 Report. In adopting the Section 41/49
Report, it became the reasons of the CHRC (Canada (Attorney General) v Davis,
2009 FC 1104 at para 52, 356 FTR 258 [Davis FC]).
III.
Relevant Legislation
[24]
For ease of reference, relevant extracts from
the CHRA are set out in Appendix A of these Reasons.
IV.
Issues
[25]
The application raises the following issues:
A.
Was there a breach of procedural fairness?
B.
Was the CHRC Decision reasonable? This requires
consideration of the following sub-issues:
1.
Was the decision to deal with the complaint
reasonable?
2.
If the decision to deal with the complaint was
reasonable, was it also reasonable to refer the complaint directly to the
Tribunal?
V.
Standard of Review
[26]
The reasonableness standard of review will be
applied when considering the CHRC’s interpretation of its home statute and to
issues of fact and mixed fact and law. Issues relating to procedural fairness
will be reviewed on a standard of correctness.
[27]
The role of the CHRC is not adjudicative. The
adjudicative role is reserved to the Tribunal appointed under the CHRA (Cooper
v Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 at para 53,
140 DLR (4th) 193). Instead the CHRC screens and investigates complaints. It determines
whether a particular complaint should be considered by the Tribunal. The role
has been identified as involving: (1) the performance of an administrative and
screening function with respect to complaints of discriminatory practices; (2) the
acceptance, management and processing of those complaints; and (3) where a
complainant is to be referred to a human rights tribunal, the CHRC performs a
screening function similar to that of a judge in a preliminary inquiry. In
reviewing a decision of the CHRC, the Court only considers the reasonableness
of the “screening” decision (O’Grady v Bell
Canada, 2012 FC 1448 at paras 37 and 38, 423 FTR 18).
[28]
The CHRC’s interpretation of subsection 41(1) of
the CHRA, its home statute and the CHRC’s decisions under that provision are
reviewed on a reasonableness standard, subject to the exceptions identified in
Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir] (Public
Service Alliance of Canada v Canada (Attorney General), 2015 FCA 174 at
paras 28-29, 475 NR 232 [NAV Canada]). No such exception applies here.
[29]
The decision of the CHRC to refer a complaint to
the Tribunal for a determination on the merits under subsection 49(1) of the
CHRA is also a discretionary decision attracting the reasonableness standard of
review. In Halifax (Regional Municipality) v Nova Scotia (Human Rights
Commission), [2012] 1 S.C.R. 364 at para 43 [Halifax], Justice Cromwell
writing for a unanimous Supreme Court of Canada held that “The reviewing court’s approach must reflect the appropriate
level of judicial deference to both the substance of the administrative
tribunal’s decision and to its ongoing process.” Applying that
principle, Justice Cromwell stated at paragraph 45 that “the reviewing court should ask whether there was any
reasonable basis on the law or the evidence for the Commission’s decision to
refer the complaint to a board of inquiry.” This reflects judicial
reluctance to intervene in ongoing administrative proceedings (Halifax at
paras 49-52).
[30]
Where a question of procedural fairness arises
the matter is to be reviewed on a standard of correctness. Procedural fairness
concerns may arise where it is alleged the CHRC failed to consider the
submissions of a party (Canadian Museum of Civilization Corp v Public
Service Alliance of Canada, 2014 FC 247 at para 40, 450 FTR 161 [Canadian
Museum of Civilization]). However, in the subsection 41(1) context: “Procedural fairness dictates that the parties be informed of
the substance of the evidence obtained by the investigator which will be put
before the Commission and that the parties be provided the opportunity to
respond to this evidence and make all relevant representations in relation
thereto” (Deschênes v Canada (Attorney General), 2009 FC 1126 at
para 10).
VI.
Analysis
A.
Was There a Breach of Procedural Fairness?
[31]
In preparing the Report, the CHRC undertook a
review of the Complaint under subsection 41(1) of the CHRA in advance of making
recommendations to the CHRC. In conducting the review the CHRC interviewed Mr.
Petersen in respect of the wage gap analysis he conducted pursuant to the 1997
MOA. The Report states that Mr. Petersen made the following statements:
- The 1997 MOA
demonstrated that the parties were aware of a pay equity problem up to
that time;
- The pay equity
problem was addressed moving forward, however the 1997 MOA did nothing to
address/settle the pay equity allegations leading up to the 1997 MOA;
- Although the
parties took opposing views on whether the Petersen Report was final, Mr.
Petersen confirmed his Report was final; and
- On the issue of
the gender composition of the different groups Mr. Petersen explained:
[I]t was already established/recognized by
the parties that CUPW was male-dominated while CPAA was female-dominated. That
is to say, neither party objected to the effect that the complainant group was
not female-dominated or that the comparator group was not male-dominated i.e.
they accepted that the complainant group was female dominated while the
comparator group was male-dominated. For that reason, his study did not conduct
a gender analysis but instead went directly to assessing whether a wage gap
existed using the CPAA job plan to measure both the complainant and the
comparator group (the PO4 group).
[32]
The applicant argues that the author of the Report
“mistakenly heard Mr. Petersen to say that the parties
accepted that the PO4 comparator group was male dominated.” The
applicant further argues the Report also fails to appreciate that the wage gap
analysis conducted by Mr. Petersen did not establish a wage gap with the PO
group, the comparator group identified in the Complaint.
[33]
The applicant’s counsel provided submissions to
the CHRC setting out the applicant’s view that Mr. Petersen’s statements had
been misunderstood in the Section 41/49 Report noting , “The Petersen analysis was performed using a female dominated
group (the complainants) and a neutral or female dominated group (the PO4s). As
such, it does not reveal any hint of gender bias” and thus the Petersen
Report could not be relied upon to conclude a wage gap existed between the CPAA
and the comparator PO Group as alleged in the Complaint. The applicant further
argued there was no information demonstrating that members of the PO group,
outside the PO4 sub-group, performed work comparable to CPAA members.
[34]
The applicant submits the CHRC was obligated to
address the submissions it made when adopting the Report. The applicant submits
the CHRC’s failure to do so renders the reasons deficient and “constitutes a violation of the principles of fundamental
justice.” The applicant cites jurisprudence which it recognizes involves
situations where the CHRC decision resulted in the dismissal of the complaint
and where an investigation occurred (Egan v Canada (Attorney General),
2008 FC 649, 341 FTR 1; Dupuis v Canada (Attorney General), 2010 FC 511,
368 FTR 269; Public Service Alliance v Canada (Treasury Board), 2005 FC
1297, 279 FTR 242). However, the applicant submits “there
is no reason why the requirement to refer to submissions regarding substantial
omissions and errors would not apply at the Section 41 and/or Section 49 stage”,
in the referral context.
[35]
I cannot agree. Even if the issue the applicant
raises is one of procedural fairness, the content of the duty of procedural
fairness is lower in a referral decision than in a dismissal decision and the
CHRC met that duty here.
[36]
I begin with Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], where Justice
L’Heureux-Dubé reaffirmed that the content of the duty of procedural fairness
varies based on the context of the case. Justice L’Heureux-Dubé set out five
non-exhaustive factors for determining the content of the duty of procedural
fairness owed: (1) the nature of the decision being made and the process
followed in making it; (2) the nature of the statutory scheme; (3) the
importance of the decision to the individual or individuals affected; (4) the
legitimate expectations of the person challenging the decision; and (5) “the choices of procedure made by the agency itself” (Baker
at paras 23-27). The Baker list is non-exhaustive and reflects “the principle that the individual or individuals affected
should have the opportunity to present their case fully and fairly, and have
decisions affecting their rights, interests, or privileges made using a fair,
impartial, and open process, appropriate to the statutory, institutional, and
social context of the decision” (Baker at para 28).
[37]
The jurisprudence on the CHRC has considered the
Baker factors and has distinguished between the content of the duty of
procedural fairness in situations where the CHRC dismisses a complaint and the
content of that duty where, as in this case, a complaint is referred to the
next stage in the process. A referral by the CHRC to the Tribunal is not a
final determination of a complaint and the CHRC’s duty to give reasons is less
onerous than where the decision results in the dismissal of a complaint (Davis
FC at paras 56 and 57).
[38]
In Canada (Attorney General) v Davis,
2010 FCA 134, 403 NR 355 Justice Layden-Stevenson, speaking for a unanimous
Federal Court of Appeal, states at paragraphs 5-7 :
[5] This Court has repeatedly stated
that the Commission enjoys considerable latitude when performing its screening
function on receipt of an investigator's report and that the courts must not
intervene lightly in its decisions at this stage. See: Bastide et al. v.
Canada Post Corporation, 2006 FCA 318, 365 N.R. 136 (citations to
supporting authorities omitted), leave to appeal refused, [2006] C.S.C.R. no.
466.
[6] The Commission must act in
accordance with natural justice. This requires that the investigation report
upon which the Commission relies be neutral and thorough and that the parties
be given an opportunity to respond to it: Sketchley v. Canada (Attorney
General), [2006] 3 F.C.R. 392 (F.C.A.) applying Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[7] While we do not endorse the
entirety of the application judge's reasons for judgment, we are satisfied that
he reached the appropriate conclusion based on the record before him. The
record discloses a true debate: there is evidence in support of each side's
position that is capable of being believed, and if believed, could be
determinative of the merits of the complaint.
[39]
Hence even where the issue is one of procedural
fairness, the Court accords latitude to the CHRC in the performance of its
screening function. The duty imposed on the CHRC is to provide a fair process
within the context of the decision being rendered.
[40]
The applicant relies on Herbert v Canada
(Attorney General), 2008 FC 969, 169 ACWS (3d) 393 [Herbert], where Justice
Russel Zinn held that the CHRC’s failure to consider a complainant’s
submissions that an investigation report contained substantial and material
omissions constituted a reviewable error. However, the result of the CHRC decision
in Herbert was to screen out the complaint which Justice Zinn described
as having “very significant consequences for a
complainant, who will most often have no other remedy for the alleged
discrimination” (Herbert at paras 17, 26 and 30).This case is distinguishable.
Here the CHRC Decision allows the Complaint to proceed to the next stage.
[41]
In addition, the statutory scheme supports the
proposition that the content of the duty of procedural fairness in relation to
the CHRC’s duty to give reasons differs depending on the context. Subsection
42(1) of the CHRA states that when the CHRC decides not to deal with a
complaint it shall send a written notice of its decision to the complainant “setting out the reason for its decision.” Similar
provisions exist under subsections 17(4) and 18(3) of the CHRA. However, no
such provision exists when the CHRC decides to deal with a complaint and refer
the matter to the Tribunal under subsection 49(1). Hence, the CHRC is under an
explicit statutory duty to give reasons in the context of a dismissal decision,
but not if it decides to deal with a complaint or when the CHRC decides to
refer a complaint to the Tribunal for an inquiry.
[42]
While it may have been preferable had the CHRC
expressly addressed the applicant’s submissions, the CHRC’s failure to do so
does not equate to a breach of procedural fairness in the circumstances. In
this case the CHRC provided the parties with an opportunity to review and
respond to the Report it relied upon, and provided reasons for its decision. In
this regard I am in agreement with the respondent; the issue the applicant
raises is not one of procedural fairness but rather relates to the substance of
the CHRC’s decision, reviewable on the reasonableness standard (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708 at para 22 [Newfoundland Nurses]). The applicant’s real
issue is with the adequacy of the CHRC’s reasons. On a reasonableness review,
the adequacy of reasons is not an independent ground for setting aside a
decision (Newfoundland Nurses at para 14). The question to be answered
is whether the reasons “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
Nurses at para 16).
[43]
Even if I am wrong, and the failure to
explicitly refer to the applicant’s submissions engages a procedural fairness
issue, no breach of procedural fairness occurred here. The CHRC provided reasons
and “an investigator is not required to refer to
everything” (Bergeron v Canada (Attorney General), 2015 FCA 160
at para 76, 255 ACWS (3d) 955 [Bergeron]).
[44]
It is true that in Bergeron Justice
Stratas for a unanimous Federal Court of Appeal held at paragraph 67 that: “The law concerning the standard of review for procedural
fairness is currently unsettled.” However, Bergeron is distinguishable
for the same reason as the cases cited above; Bergeron’s holding that
the correctness standard applies also arises in a dismissal not a referral context.
[45]
I conclude that the CHRC discharged its
procedural fairness obligations by providing the parties a meaningful
opportunity to provide submissions prior to the issuance of the Report, on the
Report itself, and providing reasons for its decision. Since the CHRC Decision
was a referral decision under subsection 49(1) without further investigation
under subsection 43(1) of the CHRA that decision did not constitute a final
determination on the merits of the Complaint.
B.
Was the CHRC Decision Reasonable?
[46]
I next consider the reasonableness of the CHRC’s
decision to: (1) deal with the Complaint pursuant to subsection 41(1) of the
CHRA; and (2) refer the matter directly to the Tribunal pursuant to subsection
49(1) of the CHRA without further investigation. There is some overlap in these
two areas as the CHRC frequently relies on the same factual basis to support
its conclusions in relation to these two distinct decisions.
[47]
I conclude there was a reasonable basis in the
law and evidence for the CHRC to determine it was not plain and obvious that the
reactivation of the Complaint was trivial, frivolous or vexatious or in bad
faith under paragraph 41(1)(d) of the CHRA, or that an alternative means of
redress should be pursued under paragraph 41(1)(a). I also conclude it was
reasonable for the CHRC to refer the Complaint to the Tribunal under subsection
49(1) of the CHRA without further investigation.
(1)
Was the decision to Deal with the Complaint
Reasonable?
(a)
The Plain and Obvious Test
[48]
Canada Post FC is
routinely cited as setting out the test to be applied by the CHRC in the
context of subsection 41(1) of the CHRA. Justice Rothstein held at paragraph 3:
[3] A decision by the Commission
under section 41 is normally made at an early stage before any investigation is
carried out. Because a decision not to deal with the complaint will summarily
end a matter before the complaint is investigated, the Commission should only
decide not to deal with a complaint at this stage in plain and obvious cases.
The timely processing of complaints also supports such an approach. A lengthy
analysis of a complaint at this stage is, at least to some extent, duplicative
of the investigation yet to be carried out. A time consuming analysis will,
where the Commission decides to deal with the complaint, delay the processing
of the complaint. If it is not plain and obvious to the Commission that the
complaint falls under one of the grounds for not dealing with it under section
41, the Commission should, with dispatch, proceed to deal with it.
[49]
The plain and obvious test requires that “the allegations of fact contained in the complaint must be
taken as true” (Keith v Canada (Correctional Service), 2012 FCA
117 at paras 50-51, 431 NR 121). Similarly in applying the plain and obvious
test, the CHRC does not engage in a weighing of the evidence (NAV Canada
at para 34-37). The threshold for meeting the plain and obvious test is high (Canadian
Museum of Civilization at para 64).
[50]
As noted by Justice Kane “the focus of the Commission is whether there is sufficient
evidence before it to refer the complaint for further inquiry. It is not the
role of the Commission at the section 40/41 stage to look behind the facts and
to determine if a complaint is made out.” (Khapar v Air Canada,
2014 FC 138 at para 64, 449 FTR 1).
[51]
In this case the CHRC reasonably concluded that
none of the exceptions set out in subsection 41(1) applied to the reactivation
of the complaint and as a result it should not be brushed aside.
(b)
Alleged Discrimination
[52]
The applicant does not dispute that factual
assertions made in a complaint must be taken as true in the context of
subsection 41(1). However, the applicant argues in this case the allegations of
(1) the existence of a wage gap between the complainant group and the
comparator group and; (2) that the comparator group is male dominated are
nothing more than bald assertions. The applicant submits the CHRC cannot rely
on bald assertion in deciding to deal with the Complaint.
[53]
Although the CHRC may dismiss a complaint on the
basis of bald assertions or allegations, the Federal Court of Appeal has
cautioned the CHRC should not do so where the record reflects a live contest as
between the parties (McIlvenna v Bank of Nova Scotia, 2014 FCA 203 at
paras 14-16, 466 NR 195). The CHRC’s role when conducting a subsection 41(1)
analysis is not to concern itself with evidentiary disputes going to the merits
of the complaint. Where the CHRC does engage in a consideration of
contradictory factual submissions at the section 41 stage it will have acted
unreasonably (NAV Canada at paras 38, 74-75).
[54]
In this case the respondent not only asserted
discrimination in the form of pay inequity on the basis of gender, but advanced
material facts in support of the alleged discrimination. Those material facts
include: (1) the Petersen Report conclusion that there was a wage gap between
the respondent complainant group and the PO4 sub-group; (2) the PSAC FCA
decision found that the PO group, the very comparator group identified in the Complaint,
was male dominant; and (3) the long history of a “live
contest” as between the parties.
[55]
The Report acknowledged the parties take
substantially different positions on how these facts are to be interpreted and
whether or not they ultimately support the respondent’s allegations of
discrimination. However, taken at face value these facts reasonably establish a
link to claimed discriminatory conduct for the purpose of the CHRA. This is not
a case where the complainant merely asserted that such a link existed (Love
v Canada (Privacy Commissioner), 2014 FC 643 at para 69, 459 FTR 11). It
was reasonable for the CHRC to conclude based on the record that it was not
plain or obvious that there was no reasonable basis for the complaint or the
complaint had been settled.
(c)
Frivolous, Vexatious or Pursued in Bad Faith
[56]
Similarly it was reasonable for the CHRC to
conclude it was not plain and obvious that the respondent’s request to
reactivate the Complaint was trivial, frivolous, vexatious or made in bad faith
for the purpose of paragraph 41(1)(d) of the CHRA.
[57]
It has been the respondent’s position that the
1997 MOA had not been fully implemented, and that the Petersen Report failed to
facilitate a resolution of any inequities in this regard. Neither the 1997 MOA nor
the 2006 MOA purported to address pay equity concerns retrospectively. As such,
they did not address the issue of pay equity between September 1, 1992, and
March 20, 1997, the earliest date to which the 1997 MOA applied.
[58]
The CHRC also concluded much of the delay
experienced in dealing with the Complaint was attributable to the applicant.
This included repeated refusals to provide the CHRC and the respondent with requested
and relevant information. I discuss these issues further in the section on
delay below.
[59]
The CHRC also considered the respondent’s
decision to await the Supreme Court of Canada’s decision in PSAC SCC before
pursuing reactivation of the Complaint, a fact the applicant took issue with at
the CHRC. In its November, 2009 letter to the CHRC the respondent advised that
it was of the preliminary view the Complaint should be reactivated. The
respondent then expressed a preference to await the Federal Court of Appeal
decision in the PSAC matter if the CHRC agreed. In response, not only
did the CHRC not take issue with this further delay in reactivation but it left
the timing fully in the hands of the respondent. While the CHRC might well have
adopted a more proactive approach to the possibility of reactivation, the
failure to do so does not undermine the CHRC finding that “it is not plain and obvious that the complainant’s decision
to wait for the conclusion of the litigation in PSAC rendered the
request to reactivate the complaint one of bad faith given the important
parallels between PSAC and the present complaint.”
[60]
Finally, and as noted above, the CHRC also
recognized the continuing dispute between the parties as to what the Petersen Report
represented in respect of the issues of a comparator group wage gap and male
dominance. Succinctly put, and without assessing the merits of the parties’
respective positions, the CHRC recognized that the Petersen Report and the 1997
and 2006 MOAs had failed to facilitate a resolution of the Complaint. This was
the key take away in the subsection 41(1) context, a take away the CHRC
understood and appreciated. The merits of the parties’ respective positions
have been left for the Tribunal.
(d)
Misapprehension of the Evidence and the
Applicant’s Submissions
[61]
The applicant advances two arguments relating to
the CHRC’s substantive findings under paragraph 41(1)(d) of the CHRA. The
applicant argues the CHRC erred in adopting the Report without referencing the applicant’s
submissions that the Report misconstrues Mr. Petersen’s evidence. The applicant
further argues “there is simply insufficient
information to provide reasonable grounds for believing that there was a
violation of section 10 or 11 of the CHRA”.
(i)
Did the Report Misconstrue Mr. Petersen’s
Evidence?
[62]
I conclude there was no error in the Report’s
discussion of Mr. Petersen’s evidence. However, even if I am wrong in reaching
that conclusion any error did not render the decision unreasonable.
[63]
The error the applicant alleges is reflected in
the following passage from the Report [Passage]:
Mr. Petersen explained that it was already
established/recognized by the parties that CUPW was male-dominated while CPAA
was female-dominated. That is to say, neither party objected to the effect that
the complainant group was not female-dominated or that the comparator group was
not male-dominated i.e. they accepted that the complainant group was
female-dominated while the comparator group was male dominated. For that
reason, his study did not conduct a gender analysis but instead went directly
to assessing whether a wage gap existed using the CPAA job plan to measure both
the complainant and comparator group (the PO4 group).
[64]
Relying on Mr. Petersen’s affidavit, the
applicant argues Mr. Petersen did not advise the CHRC the parties had accepted
the PO4 sub-group was male-dominated. However, that is not what the Passage
states. The Passage states the parties recognized CUPW as being male-dominated.
While this statement might be viewed as ambiguous in a context where it is
unclear whether the reference to CUPW is a reference to the PO4 sub-group or
the PO Group, identified as the comparator group in the Complaint or CUPW as
whole, it is not necessarily inconsistent with Mr. Petersen’s affidavit
statements. This is highlighted by Mr. Petersen’s cross-examination where he
states:
28. Q. At some point in early 1998 is it
fair to say that you were given an indication that there was a CUPW position
that was male dominated?
A. I wouldn’t say that was true. As far as I
remember, the issue of male dominance really didn’t come up. At the time it
was a feeling that we’re doing this because CUPW is male dominated [emphasis
added]. That’s kind of the feeling out there. There were no figures.
[65]
Hence I find that the Report did not contain a
misstatement of Mr. Petersen’s interview evidence.
[66]
Even if I were to accept that the CHRC
incorrectly interpreted Mr. Petersen as stating the parties agreed the PO4 jobs
were male-dominated, that alleged error and misstatement in one part of the
Report does not taint the entire Report’s analysis or render the ultimate decision
of the CHRC unreasonable.
[67]
The subsection 49(1) decision demonstrates the
CHRC unquestionably understood that the parties continued to dispute the
findings of the Petersen Report and the question of whether the Complaint’s
comparator group, the PO group was male-dominated. The CHRC also understood the
parties had agreed not to have Mr. Petersen address the issue of gender
dominance in completing his wage gap analysis. In effect the Report did not
base its conclusion on the flawed premise that the parties agreed that either the
comparator PO group or the PO4 sub-group was male-dominated, but rather
considered, as one factor only, that the parties may agree that the comparator
group was male-dominated. Indeed, the CHRC was careful to qualify its language as
“the parties may now agree”, in recognition of
the history of this matter. Finally, and appropriately the CHRC did not attempt
to reconcile the different position of the parties or address the merits of the
evidence and render a final determination to the effect that the elements of a
section 10 and/or 11 complaint were made out. Instead the CHRC relied on the
Petersen Report as a factor in deciding not to dismiss the Complaint at the
subsection 41(1) stage and to refer the Complaint to the Tribunal under
subsection 49(1) of the CHRA.
[68]
I also note that the alleged error is not reproduced
in the CHRC Decision The omission of the portion of the Report which the
applicant alleged was in error arguably demonstrates that the issue was not viewed
by the CHRC as necessary to the outcome of the final decision. This absence
from the CHRC Decision implies that the CHRC considered the applicant’s
submissions on the alleged error in the Report and did not rely on it, instead
focusing on the real issue: the Petersen Report failed to do what it was
supposed to do, facilitate a settlement of the matter.
[69]
It would be inappropriate to quash the CHRC
Decision merely due to some potential defects in the Complaint as well as the
Petersen Report which the CHRC has recognized are in dispute, a dispute the
Tribunal is mandated to address and determine on a fuller record (Emmett
at para 51; Canada (Attorney General) v Skaalrud, 2014 FC 819 at
para 39, 462 FTR 134 [Skaalrud]).
(ii)
Did the CHRC err by not Explicitly Addressing
the Applicant’s Submissions?
[70]
The applicant argues “Given
the significance of CPC’s submissions on the Section 41/49 Report, CPC was
entitled to detailed reasons beyond the adoption of the Section 41/49 Report.”
[71]
The applicant’s expectation that the CHRC should
have provided more reasons referring to the applicant’s submissions is not
persuasive and is not a standalone ground for judicial review (Newfoundland
Nurses at para 14). In effect the applicant submits the CHRC was required
to address the merits of the dispute between the parties and resolve aspects of
the factual dispute before being in a position to adopt the Report.
[72]
Justice Campbell’s decision in Canadian
National Railway Co v Casler, 2015 FC 704 at para 28 [Casler]
demonstrates that the CHRC should not pre-empt the Tribunal’s process by
effectively assuming an adjudicative role seeking to resolve a dispute between
the parties. The CHRC is focused on the question of whether there is sufficient
evidence to refer a complaint not resolving disputes on findings of fact (Casler
para 29).
[73]
This view was also expressed by Justice Roy at
para 29 of Skaalrud where he notes in the subsection 49(1) context that “The role of the Commission is very limited and its
discretion is quite broad. One has to be careful and come back to what the
Commission is actually doing. It merely decides that, ‘having regard to all the
circumstances of a complaint, an inquiry is warranted.’”
[74]
This reasoning applies here. The applicant’s
opportunity to advance its arguments relating to the interpretation,
sufficiency and weight of the evidence will arise before the Tribunal, it is
not a matter to be addressed by the CHRC (Emmett at para 52).
(e)
Failure to Exhaust Grievance or Review
Procedures
[75]
Here again the CHRC undertook a comprehensive
review of the history of the Complaint and the positions advanced by the
parties. It concluded it is unclear if the grievance process can deal with a
complaint dating back to 1992. It further notes it has discretion to refuse to
refer parties to a collective bargaining process (Bell Canada v
Communications, Energy and Paperworkers Union of Canada, [1998] FCJ No 1609
at para 51, 167 DLR (4th) 432 (CA)).
[76]
It is apparent that the history of the Complaint
and the challenges the CHRC had encountered gathering key information were relevant
to the decision reached under paragraph 41(1)(a) of the CHRA. The CHRC noted:
In the course of the complaint, the
commission has been unable to obtain key information to proceed with further
investigation: throughout the period from 1992 to 2002, the commission was unable
to fully investigate the merits of the complaint in part because necessary job
information to conduct a wage gap analysis (job evaluation plans, breakdown of
the employees in the relevant groups and explanation of the wage differences)
was not provided despite numerous requests.
[77]
Once again the CHRC was aware of the
diametrically opposed positions of the parties in respect of the Petersen Report
and also recognized it was not its role in the context of subsection 41(1) to address
those opposing views. Rather it simply acknowledged the Petersen Report and the
1997 and 2006 MOAs had failed to settle the matter. It considered the
circumstances surrounding the Complaint, including the number of individuals
potentially impacted, the delays involved and the resources invested, in
concluding the CHRC should deal with the Complaint. This decision was
reasonable.
(2)
Was the Decision to refer the Complaint to the
Tribunal Reasonable?
[78]
Subsection 49(1) provides that “At any stage after the filing of a complaint the Commission
may request the Chairperson of the Tribunal to institute an inquiry into the
complaint if the Commission is satisfied that, having regard to all the
circumstances of the complaint, an inquiry is warranted.” This provision
provides the CHRC with broad discretion (Halifax at para 21; Skaalrud
at paras 23-24). In concluding that a referral to the Tribunal is warranted
based on the information or evidence before it, the CHRC only concluded the
evidence and information requires consideration and weighing by the Tribunal.
[79]
There was a rational basis in the law and evidence
for the CHRC to decide to refer the Complaint to the Tribunal under subsection
49(1) of the CHRA (Halifax at para 45).
[80]
Once again the CHRC recognized the parties’ failure
to resolve the Complaint for over two decades, including with the assistance of
the CHRC. The CHRC’s referral of the Complaint to the Tribunal constitutes an
implicit recognition of the futility of the matter remaining at the CHRC stage.
Indeed the delay, the balance of which the CHRC did not attribute to the respondent,
was evidence that resolution would not occur at the CHRC stage. The
long-standing protracted dispute between the parties formed the context for the
CHRC’s referral decision from a factual, legal and policy perspective. The CHRC
reasonably found that there was a public interest in referral to the Tribunal in
light of the delays.
[81]
Furthermore the CHRC identified the following
facts which demonstrate sufficient information of a live dispute on pay equity
and underscore the reasonableness of the decision to refer the matter to the Tribunal:
A.
No dispute appears to exist that the CPAA group
is female-dominated;
B.
The CHRC had previously determined that the
complainant and comparator groups were part of the same establishment and the
applicant did not pursue a review of that decision;
C.
The Petersen Report provided evidentiary support
that the complainant and comparator groups performed work of the same or
similar value;
D.
The Petersen Report identified a wage gap, and “the evidence currently available to the Commission suggests
that a wage gap existed prior to the signing of the 1997 MOA between the
complainant and comparator group”; and
E.
With respect to the question of whether the
comparator group was male-dominated:
i.
PSAC FCA held at
paragraph 180 “It is undisputed that the PO group as a
whole and each of the three sub-groups meet the requirements of being
predominantly male”; and
ii.
The CHRC recognized that whether the
comparator group (PO) was male-dominated may still be in dispute “although the parties may now agree that Mr. Petersen and/or PSAC
has settled this question.”
[82]
The applicant relied on the CHRC’s alleged
misapprehension of the Petersen Report to argue that the allegation of section 10
and/or 11 discrimination is nothing more than a bald assertion, an issue that
is addressed above. The applicant also argued there is no information to
conclude a wage gap exists between the PO Group, and the CPAA group. I simply
cannot agree. The findings set out above demonstrate that there was sufficient
information for the CHRC to refer this pay equity dispute to the Tribunal for
the purpose of subsection 49(1) of the CHRA. The reasons show the CHRC
understood the parties continued to disagree, and that the matter would be one
which the Tribunal would need to resolve. It did not refer the matter forward
on the assumption that the PO and PO4 group was male-dominated or that a wage
gap actually existed, but on the basis that sufficient information existed to
support those propositions. This was reasonable.
[83]
The applicant argues that “there is simply no reasonable basis in law or in fact to
refer the Complaint to Tribunal.” This is simply not so. The CHRC
reasonably relied on the PSAC FCA for finding evidence existed
that the PO group was male-dominated. Based on the Petersen Report, there was
evidence of a wage gap between the PO4 sub-group and CPAA. The record
documents the applicant’s consistent refusal to provide the relevant
information to the CHRC or the respondent that would have more clearly
addressed the wage gap question, notwithstanding repeated requests for such
information. The record also reflects the applicant’s unilateral conclusion
that the 1997 MOA and the 2006 MOA’s coupled with the Petersen Report had
resolved the issue and its resultant refusal to engage further on the issues. The
applicant simply cannot rely on its unilateral determination that the Complaint
has been resolved to submit the decision was unreasonable. In my view the applicant’s
reluctance to engage in the fact finding process reinforces the reasonableness
of the CHRC’s Decision to refer the matter to the Tribunal.
[84]
The CHRC also reasonably determined it more
appropriate for the Tribunal to investigate the matters in dispute as they required
the hearing of expert and other evidence. The CHRC recognized this Complaint
continues to raise complex questions which the parties vigorously dispute and
the Tribunal is in the best position to answer those questions.
[85]
In its submissions the applicant argues that
instead of a referral to the Tribunal that “At the very
least, the Commission should have referred the Complaint to investigation to
resolve the issues raised by the Corporation in its submissions about Mr.
Petersen’s statements and the wage gap analysis”, counsel for the
applicant repeated this assertion in oral argument. This position ignores the
record, which demonstrates a failure to advance the Complaint and suggests that
the Tribunal will not investigate or inquire into the applicant’s allegations.
The CHRC referred the matter to the Tribunal because it was of the opinion the
Tribunal was best placed to conduct any further investigation or inquiry on the
factual and legal issues the applicant raised in its submissions.
[86]
Once the CHRC decided to deal with the Complaint
under subsection 41(1) it then had two options. It could refer
the Complaint for further investigation at the CHRC stage, or refer the matter
directly to the Tribunal, as it did.
[87]
While the applicant may disagree with the option
adopted by the CHRC in this case, the CHRC’s discretionary decision was not
unreasonable. The issues are complex; there has been little substantive
progress in resolving the Complaint over two decades despite the engagement of
the CHRC complaint process, the collective bargaining process, and the
involvement of a conciliator. More than 6,000 individuals have been impacted by
the alleged discrimination. In addition, the CHRC attributed much of the delay
in dealing with this matter to the applicant. The applicant acknowledged in
oral submissions it may have at least appeared intransigent in pursuing
a meaningful resolution of the Complaint, a position the applicant justifies
based on its conclusion that the Complaint has been resolved.
[88]
The applicant argues the jurisprudence
establishes a referral to the Tribunal without investigation is exceptional. In
support of this position the applicant relies on the decisions of this Court in
Air Canada Pilots Assn, and Skaalrud, noting that in both decisions
it was more appropriate to refer matters directly to an inquiry because almost
identical cases raising similar issues about the same employer policies were
already before the Tribunal. Upon review of the decisions cited I find nothing
that supports the applicant’s view that this Court viewed the exercise of the
CHRC’s authority under subsection 49(1), as exceptional. Instead Justice Roy in
Skaalrud at paragraph 23 discusses the significant degree of deference
to be afforded to the CHRC in the exercise of its broad discretion to refer
matters to the Tribunal. Moreover, while this is not a case where identical
complaints are already before the Tribunal, the CHRC here relied on the finding
in PSAC FCA that the PO group was male-dominated for the purpose of
justifying referring the matter to the Tribunal. In addition, even if a
referral under subsection 49(1) without investigation is exceptional, a view I
do not ascribe to, this would be one of those exceptional cases.
[89]
The applicant also relied on this Court’s
decision in Canada (Attorney General) v Grover, 2004 FC 704, 252
FTR 244 [Grover], where Justice Harrington found that a referral to the
Tribunal was unreasonable. However, as noted by Justice Russell in Canadian
Museum of Civilization Corp v Public Service Alliance of Canada, Local 70396,
2006 FC 703 at para 69, 294 FTR 163, Grover does not consider a decision
under subsection 49(1) of the CHRA but rather involves a decision made under subsection
44(3) of the CHRA and is distinguishable on that basis alone.
[90]
In addition, while the Court holds in Grover
that there was an onus on the CHRC to investigate
the complaint before deciding either to refer it to the Tribunal or to dismiss
it, that decision was made in the context of multiple related complaints where
the CHRC failed to turn its mind to the specific merits of the complaint,
relying instead on previous investigations to refer the complaint to the
Tribunal. No such circumstance arises here.
[91]
The jurisprudence coupled with the factual
circumstances underscore that the CHRC’s Decision not to engage in further
investigation where the parties have adopted diametrically opposed positions
that would serve to potentially further delay a substantive determination of
the Complaint was reasonable. The applicant’s arguments in this regard reflect
nothing more than a disagreement with the Decision. Disagreement is not basis
for this Court to intervene (Dunsmuir at paras 47 - 49).
VII.
Delay as a Common Thread in the Report
[92]
As noted above, delay is a theme in the Report.
The applicant argued before the CHRC that the twenty-three year delay
constituted a ground for dismissing the Complaint: “it
is submitted that based on the significant delay and the serious prejudice that
would be caused to the Corporation, the 1992 Complaint must be dismissed.”
[93]
The CHRC was not persuaded by the applicant’s
arguments, and instead found the issue of delay supported dealing with the
Complaint and referring it to the Tribunal.
[94]
For the purpose of paragraph 41(1)(d), the
Report found the reactivation of the Complaint was not vexatious due to delay: “The complainant argues that the respondent is responsible
for much, if not most, of the delays with the complaint. The complainant’s
position appears to be supported by a review of the file’s history.” The
CHRC set out many incidents from the filing of the Complaint to the 2006 CHRC
Decision where (1) the CHRC would request relevant documents from the applicant
but the applicant would refuse to provide them; (2) the applicant refused to
participate in the process; and (3) where the applicant would simply delay
responding to the CHRC.
[95]
The CHRC also noted neither party filed a
judicial review application of the 2006 CHRC Decision to decline to deal with
the Complaint at that time, while leaving open the possibility for the
respondent to seek to reactivate the matter.
[96]
In addition, the CHRC also appears to have
accepted the respondent’s submissions that the further delays between 2006 and
2012 occurred in part due to the respondent’s difficulties in dealing with the
applicant “including as it relates to the sharing of
information.”
[97]
Indeed, the record demonstrates the respondent
continued to pursue resolution of the Complaint between 2006 and 2012, until
requesting the CHRC reactivate the Complaint in 2012. Throughout that period
the record also demonstrates little if any willingness on the part of the
applicant to engage on the issues. In December, 2011, after repeatedly advising
the respondent more time was needed to review and respond to the requests for
relevant information, the applicant advised the respondent it considered the
file closed. In doing so the applicant also advised it would not provide
information the respondent had been seeking for years or formally respond to
the respondent’s requests.
[98]
The conclusion that the delay was largely
attributable to the applicant was reasonably open to the CHRC. Neither before
the CHRC nor on judicial review did the applicant argue the CHRC misconstrued
the factual events. Rather in its reply to the Report, the applicant strongly
objected to the CHRC’s characterization “that the delay
in the proceeding with this matter is largely the fault of CPC because it
refused to provide necessary information.” Instead, the applicant
emphasized its right to make a preliminary objection and “it was entirely appropriate for Canada Post to refuse to
provide documentation to the Commission” while the appeal of Canada
Post FC was ongoing.
[99]
Disagreement with the characterization of the
factual events does not alter the occurrence of those events, nor does it
prevent the CHRC from drawing reasonable inferences from those facts and
relying on those inferences to justify its conclusions. By finding delay was
substantially not the fault of the respondent, the CHRC was in a position to rely
on delay as a factor justifying its final conclusions.
[100] Indeed, the CHRC also relied on delay as a factor for the purpose of
paragraph 41(1)(a) of the CHRA and in the exercise of discretion to refer the
matter to the Tribunal for an inquiry rather than conducting further
investigation.
[101] In its Memorandum filed in support of this application, the
applicant submitted the Court should dismiss the application due to inordinate
delay. In oral argument, counsel for the applicant advised CPC was no longer
relying on delay as a standalone ground for judicial review. Instead counsel
for the applicant submitted delay formed part of the context of this matter.
[102] The Court agrees, delay was and is essential to the context of this
matter. The applicant’s change of position on judicial review does not alter
that delay was a theme in the Report that informed the final decision, and it
was open to the CHRC to rely on delay as a factor for deciding to deal with the
Complaint and refer the same to the Tribunal.
[103] I find it necessary to briefly address some of the applicant’s
arguments on the issue of delay, arguments which were also advanced before the
CHRC, even though the applicant withdrew reliance on these arguments as a
standalone basis for this Court’s intervention.
[104] The applicant argued the passage of time would undermine its ability
to defend the matter at the Tribunal because of alleged faded memories of the
key witnesses. I disagree with this argument for two reasons. First, it was
open for the CHRC to determine the key evidence in this pay equity matter is
the raw data rather than witness testimony. Second, I agree with Justice
Campbell’s reasoning in Casler at paras 32-36 that the Tribunal is in
the best position to make a finding on prejudice arising from faded memory
since the Tribunal, not the CHRC, nor this Court hears the witnesses and decides
whether the faded memory is significant enough to make a finding of prejudice.
[105] In written submissions, the applicant relied on Blencoe v British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 to argue the delay in
this matter would bring the human rights system into dispute. However, I find
the CHRC reasonably addressed this issue in the Report after accepting the
respondent’s submissions that much of the delay occurred due to the applicant’s
conduct and that “It would appear more likely that a
negative impact on the human rights system could occur if the Commission
decided not to deal with the complaint given the complexity of the issues, the
complexity of a pay equity investigation and the issues between the parties
that remain unresolved.” While the applicant had the right to make the
preliminary objections under subsection 41(1) that contributed to prolonging
this matter, this does not mean the time expended on those objections can
support an argument for dismissal of the Complaint for delay.
VIII.
Conclusion
[106] While I have concluded that the CHRC Decision was reasonable, I cannot
leave this matter without addressing the serious impact the delay in this case
has on the repute of the administration of justice.
[107] In Canada Post FC, Justice Rothstein addressed what he
described as “extraordinary delay” at paragraph 20. When considered almost
twenty years later his words stand as an indictment of the effectiveness of the
pay equity complaint process in this case:
[20] From the ongoing litigation, it is
apparent that the pay equity issue has not yet been resolved and that there is
no prospect of an early resolution on the horizon. For whatever reason, the
parties have not moved the matter forward more rapidly. It would be
presumptuous of me to attribute motives or fault on either of them without more
information. However, the Commission has allowed itself to become a participant
in this extraordinary delay of a matter which arose some fifteen years ago and
which the parties agreed, twelve years ago, that resolution was necessary and
would take place.
[108] Justice Rothstein goes on to address the importance of the timely
resolution of complaints, noting that competent and efficient management
includes moving complaints to conclusion on a timely basis (Canada Post FC
paras 22-24).
[109] Despite Justice Rothstein having flagged the importance of timely
resolution, this complaint remains unresolved nineteen years later. The system
has failed over 6,000 individuals who have been waiting for over twenty years
for a determination of a complaint that alleges they have been financially
impacted as the result of systemic gender discrimination. This case is an
unfortunate example of the Pay Equity Complaint Process not serving the
individual members of the claimant group, the parties, the broader public or
the interests of justice.
[110] In the Section 41/49 report the CHRC, in analysing the impact of
delay concludes that “it would appear more likely that
a negative impact on the human rights system could occur if the Commission
decided not to deal with the complaint”. While that conclusion was
reasonably available to the CHRC, the simple fact is the damage has already
been done. As noted by Justice Evans in PSAC FCA at paragraphs 166-167:
[166] [T]he underlying purpose of section
11 of the Act is to eliminate the financial consequences of systemic gender
discrimination in the labour market resulting from occupational segregation.
However, with the benefit of hindsight, it now seems to have been a mistake for
Parliament to have entrusted pay equity to the complaint-driven, adversarial,
human rights process of the Canadian Human Rights Act.
[167] There is now much to learn from the
experience of provincial pay equity regimes, which seem not to have been
plagued with the same problems of protracted litigation as the federal scheme.
In the interests of all, a new design is urgently needed to implement the
principle of pay equity in the federal sphere. For criticisms of the present
arrangements, and recommendations for reform, see the Final Report of the Pay
Equity Task Force, Pay Equity: A New Approach to a Fundamental Right (Ottawa:
Public Works and Government Services Canada, 2004).
[111] As did Justice Rothstein in Canada Post FC, I conclude, without
commenting on the merits of the Complaint, by imploring the parties and future decision-makers
to ensure this matter proceeds as expeditiously as possible.
[112] In oral argument, the parties advised that they had come to an
agreement on costs and did not require the Court to address the issue.
Email this Content