Date: 20110613
Docket: A-477-10
Citation: 2011 FCA 202
CORAM: NADON
J.A.
LAYDEN-STEVENSON
J.A.
MAINVILLE
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
(representing SOCIAL DEVELOPMENT CANADA,
TREASURY BOARD OF CANADA and
PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT
AGENCY OF CANADA)
Appellants
and
CANADIAN HUMAN RIGHTS COMMISSION
Respondent
and
RUTH WALDEN et al
Respondents
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] Justice Kelen of the Federal Court (the judge) allowed two
consolidated applications for judicial review of a decision of the Canadian
Human Rights Tribunal (the tribunal). The tribunal declined to order
compensation for lost wages in relation to a discriminatory job classification
on the basis that the respondent complainants (the complainants) had not
established that wage loss resulted from the discriminatory practice. The
tribunal awarded compensation for pain and suffering to two of the
approximately 413 complainants. The judge set aside the tribunal’s decision
with respect to both compensation for lost wages and pain and suffering and
remitted the matter to a new panel for determination. The Attorney General of
Canada, representing the various relevant governmental departments (the Crown),
appeals from the judgment, in part. The Crown appeals with respect to the wage
loss aspect of the judgment but does not appeal with respect to the pain and
suffering portion. The judge’s reasons are reported at 2010 FC 1135, 377 F.T.R.
244. For the reasons that follow, I would dismiss the appeal.
Preliminary Observation
[2] This matter
gave rise to two final decisions from the tribunal because the proceeding was
bifurcated. The tribunal addressed the complainants’ complaint in phases: a
liability phase and a compensation phase. I will refer to the tribunal’s
decisions in relation to each phase as the “liability determination” and the
“compensation determination”. Curiously, notwithstanding that the decision
under appeal relates to the tribunal’s compensation determination, resolution
of the issue before the Court turns largely on the tribunal’s liability determination.
Background
[3] The
background giving rise to the underlying complaint is comprehensively described
in the tribunal’s liability determination (2007 CHRT 56) and need not be
repeated here. Succinctly, for context, the complainants comprise a group of
nurses working as “Medical Adjudicators” (adjudicators) in the Canada Pension
Plan (CPP) Disability Benefits Program. Ruth Walden (Walden) is one of the
complainants. The adjudicators, predominantly female, work alongside a group of
doctors, predominantly male, working as “Medical Advisors” (advisors).
Together, adjudicators and advisors determine individuals’ eligibility for
disability benefits under the CPP.
[4] Advisors
are classified under the Medicine Classification Standard (MD) within the
public service’s Health Services Occupational Group (SH). The SH includes, by
definition, positions that involve the application of medical or nursing
knowledge (among other professional specialities) to the safety and physical
and mental well-being of people. Adjudicators are classified under the Program
Administration Classification Standard (PM) within the public service’s Program
and Administrative Services Occupational Group (PA). The latter group includes
positions that primarily involve the planning, development, delivery or
management of administrative and federal government policies, programs,
services or other activities directed to the public or to the federal public
service. Although the use of the advisors’ professional knowledge (in the
determination of eligibility for disability benefits) is reflected in the
advisors’ classification, the adjudicators’ use of professional knowledge is
not similarly reflected in their classification. In addition to professional
recognition, advisors receive better compensation, benefits, training and
opportunities for advancement than do adjudicators. Since 1988, the
adjudicators have repeatedly and unsuccessfully sought better recognition
through reclassification as health practitioners within the SH.
[5] The
complainants alleged they were subject to discrimination on the basis of gender
(section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the
Act)) and that the Crown pursued a discriminatory practice that deprived them
of employment opportunities (section 10 of the Act). In its liability
determination, the tribunal concluded that the complainants’ allegations were
substantiated. The tribunal ordered the public service to cease the
discriminatory practice of failing to recognize the professional nature of the
work performed by the adjudicators in a manner proportionate to the
professional recognition accorded to the advisors. It granted the parties time
to negotiate an acceptable resolution but retained jurisdiction to determine
any outstanding matters if the parties were unable to come to an agreement. An
application for judicial review of the liability determination was dismissed by
Justice Mactavish: 2010 FC 490, 368 F.T.R. 85 (judicial review of liability
determination). An appeal from her judgment was discontinued.
[6] When the
parties were unable to reach an agreement concerning adequate remedies, the
tribunal scheduled a further hearing. In an interim ruling, the tribunal
granted the Crown’s request to adduce evidence regarding its proposal for
redressing the discriminatory practice. It also indicated the type of
comparative analysis that would be appropriate for purposes of the compensation
phase.
[7] In its
compensation determination, the tribunal ordered that a new nursing
classification subgroup be created for the adjudicators. The tribunal also
detailed a number of problems with the evidence relating to compensable wage
loss. The referenced evidence related to two witnesses. The first was the
complainants’ witness, an expert in job evaluation and compensation systems.
His report, based on the tribunal’s liability determination, its interim ruling
and the job descriptions for the two positions, contained a comparative
analysis of the work of the advisors and adjudicators. The second was the
Crown’s witness, a human resources consultant with expertise in job
classification, compensation and organizational design. Her evidence was
confined to a critical analysis of the expert’s report. More specifically, the
Crown’s witness emphasized that the existence of wage loss had to be
empirically tested and could not be based on inferences drawn from the
liability decision. The tribunal basically accepted the critique proffered by
the Crown’s witness and concluded that the results of the expert’s study could
not be regarded as reasonably accurate.
[8] The tribunal
ultimately concluded that the complainants had failed to meet their burden of
establishing the existence and quantum of compensable wage loss and declined to
order compensation. It further declined to order the Crown to conduct a job
evaluation study or to allow the complainants a further opportunity to gather
additional evidence of wage loss. Both the Canadian Human Rights Commission
(the Commission) and the complainants commenced applications for judicial
review of the tribunal’s compensation determination.
The Federal Court
Decision
[9] The
two applications for judicial review were consolidated. The Commission and the
complainants advanced the same basic position in their respective applications
to the Federal Court. Before addressing the merits of the applications before
him, the judge reviewed the tribunal’s liability determination and Justice
Mactavish’s reasons for judgment on judicial review of the liability
determination. He explained that the crux of the liability determination was
the discriminatory treatment that resulted from the fact that the adjudicators did
not receive recognition for their work as health professionals. The judge noted
that there was no challenge to the tribunal’s determination that the most
appropriate way to address the Crown’s discriminatory practice was to create a
new nursing subgroup in the SH. The judge also made the following observation
at paragraph 50 of his reasons for judgment:
[T]he Tribunal’s Liability
Decision, and the Federal Court Judgment of Justice Mactavish upholding the
Tribunal’s Liability Decision, held that the discriminatory classification of
the medical adjudicators as Program Managers resulted in the medical
adjudicators receiving less pay[,] fewer professional development opportunities
and fewer employment benefits than available to nurses and doctors classified
within the Health Services Occupational Group. Accordingly, there can be no
dispute that the medical adjudicators did suffer a loss of income and benefits
due to the discriminatory job classification. Accordingly, the issue for the
Tribunal regarding appropriate remedies was the quantification of the loss of
wages and benefits. (See also Justice Mactavish’s Judgment at paragraph 146
confirming loss of income due to the discriminatory practice).
[10] Noting
the Crown’s submission – that the tribunal found discrimination because of the
manner in which the adjudicators had been classified but made no determination
as to the existence of losses flowing from that classification – the judge held
instead that the tribunal found discriminatory treatment because it identified
certain elements of that treatment, including the lower salary and benefits
paid to adjudicators. He relied on a number of excerpts from the tribunal’s
liability determination and the judicial review of liability determination to
support that conclusion (reasons at paras. 50-57; liability determination at
paras. 121, 143; judicial review of liability determination at paras. 136, 143,
146, 150). Turning to the applications before him, the judge concluded that
they could be resolved by addressing only the tribunal’s determinations
relating to compensation for lost wages and for pain and suffering. As noted
previously, the pain and suffering portion does not form part of this appeal.
[11] With
respect to the applicable standard of review, the judge characterized the issue
as whether the tribunal erred in imposing an incorrect standard of proof upon
the complainants. He concluded that the standard of review was correctness.
[12] After
summarizing the evidence on the issue of wage loss and acknowledging that the
tribunal had rejected the complainants’ evidence, the judge concluded that the
tribunal erred in law by finding that the complainants had failed to establish
on a balance of probabilities that wage loss resulted from the Crown’s
discriminatory practice. He found that the tribunal erred in holding the
complainants to a more onerous standard of proof because it required them to prove
the quantum of wage loss on a balance of probabilities despite that it had
earlier determined that the discriminatory practice resulted in wage loss. In
view of that earlier finding, the judge concluded that the tribunal had a duty
to either assess the lost income or wages on the evidence before it, or refer
the matter back to the parties to prepare better evidence on that issue.
The Statutory Provisions
[13] The
relevant statutory provisions are attached to these reasons as Schedule “A”.
The Standard of Review
[14] This
Court’s role, on appeal from an application for judicial review in the Federal
Court, is to determine whether the judge identified the applicable standards of
review and applied them correctly: Dr. Q. v. College of Physicians and Surgeons
of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 266; Canada
(Revenue Agency) v. Telfer, 2009 FCA 23, [2009] D.T.C. 5046.
Analysis
[15] The
judge’s approach to the standard of review is problematic. As noted above, he
concluded that the standard of review was correctness. I will return to this
aspect of his reasons later. For the moment, I will focus on the judge’s
characterization of what he found to be the tribunal’s error. On the one hand,
he described the error as the selection of an incorrect standard of proof
(reasons at paras. 40, 64) while, on the other hand, he suggested the error was
the tribunal’s imposition of an incorrect onus or burden of proof on the
complainants (reasons at paras. 47, 59, 60). Despite what I would describe as
an unfortunate choice of language by the judge, and contrary to the submissions
of the parties, I see no reference in the judge’s reasons to suggest that he
advocated a standard of proof other than the balance of probabilities.
[16] It is settled
law that the burden of proof in the human rights context is the same as in the
civil context: he or she who alleges bears the burden of proving on a balance
of probabilities: Ontario Human Rights Commission v.
Simpsons-Sears Limited, [1985] 2 S.C.R. 536 (O’Malley). See also: F.H
v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (McDougall). Read
holistically and fairly, the judge’s reasons indicate that he considered the
essence of the tribunal’s error to be that it asked itself the wrong question.
He concluded that it had already determined the existence of compensable wage
loss. Therefore, the only question before it was the amount of the wage loss.
In short, in the judge’s view, the error lay in the tribunal’s requirement that
the complainants again establish the existence of wage loss. For reasons
to be discussed later, I agree with the judge in that respect.
[17] Returning
to the judge’s choice of the applicable standards of review, his conclusions do
not materially affect his ultimate determination. However, for clarity, brief
comments are warranted. The parties agree that the selection of the appropriate
legal test is reviewable on a standard of review of correctness and I will say
no more about that. However, to the extent that the judge may have considered
that the assessment of compensation for wage loss under paragraph 53(2)(c) of
the Act is reviewed for correctness, I respectfully disagree. Such an
assessment constitutes a question of mixed fact and law. It is dependent upon
the factual circumstances; it concerns the tribunal’s appreciation and
assessment of the evidence; it arises in connection with the tribunal’s
enabling statute; and it falls within the tribunal’s expertise. The applicable
standard of review is reasonableness. The tribunal’s decision must demonstrate
justification, transparency and intelligibility and fall within a range of
possible, acceptable outcomes defensible in respect of the facts and the law: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
[18] In this
case, the tribunal did not err simply by coming to an unreasonable assessment
of compensation for wage loss. Rather, its decision is flawed because it
proceeded on an improper assumption that materially affected its determination
as to compensation under paragraph 53(2)(c) of the Act. The tribunal’s
compensation determination shows that it placed a burden on the complainants to
demonstrate the existence of compensable wage loss (paras. 74, 147, 148,
151). As stated earlier, I concur with the judge’s conclusion that the tribunal
had already determined the existence of wage loss in its liability
determination.
[19] I
acknowledge, as the Crown asserts, that the tribunal did not clearly articulate
an express factual finding as to compensable wage loss in its liability
determination. However, reasons are not to be parsed, but are to be read in
totality. On a proper reading of the tribunal’s reasons, the tribunal
implicitly determined the existence of the requisite wage loss. At paragraphs
120 and 121 of its liability determination, the tribunal stated:
[120]
The advisors bring a different kind of knowledge to the program,
perform
some different tasks and have been given different responsibilities
than
the adjudicators. This provides a reasonable and non-discriminatory
explanation
for some of the differences in salary and benefits. It also explains
why the advisor and the adjudicator
positions might occupy different levels within a classification standard
in Health Services.
[121] However, the differences in
the work responsibilities of the respective
positions are not extensive enough to
explain the wide disparity in treatment
between the advisors and the
adjudicators.
In particular, the Respondent has failed to provide a reasonable
non-discriminatory response to the following question: why have the advisors
been recognized as health professionals, and compensated accordingly,
when their primary function is to make eligibility determinations and yet, when
the adjudicators perform the same primary function, they are designated as program
administrators and are paid half the salary of the advisors? (my
emphasis)
[20] The
“differences in the work responsibilities” to which the tribunal refers are
those described in paragraphs 117-119 of its liability determination. The “wide
disparity in treatment” to which the tribunal refers in paragraph 121 is the
difference in “salary and benefits” described in the earlier paragraph.
[21] The
tribunal’s consideration of the Crown’s explanation for other aspects of
differential treatment and lost employment opportunities is addressed in
separate locations in the tribunal’s reasons. For example, paragraph 136 of the
liability determination deals specifically with the Crown’s explanation for the
differences in professional recognition between the two groups. Similarly,
paragraph 137 deals explicitly with the Crown’s explanation concerning
differences in the payment of professional fees, educational/training
opportunities and the provision of career advancement opportunities.
[22] Further,
the summary provided in the initial paragraphs of the liability determination
is instructive. I refer specifically to the following paragraphs:
[2] The Complainants say that the
doctors (known as “medical advisors”) and nurses (known as “medical
adjudicators”) do the same work: they apply their medical knowledge to
determine eligibility for CPP disability benefits. When medical advisors
perform that work, they are classified as health professionals within the
Public Service classification system. However, when the medical adjudicators do
this work, they are not classified as health professionals. Rather, they are
designated as program administrators. As a result of their
classification, medical advisors receive better compensation, benefits,
training, professional recognition and opportunities for advancement than
medical adjudicators.
…
[5] The Complainants meet the legal
requirement to establish a prima facie case under s. 7 of the Act. To
meet that requirement the Complainants were required to produce credible
evidence which, in the absence of a reasonable explanation from the
Respondents, would substantiate their complaints.
[6] The Complainants’ evidence
supported their allegation that since 1972, medical adjudicators have performed
the same or substantially similar work as the medical advisors. They both apply
their medical qualifications and expertise to determine eligibility for CPP
benefits. Yet, only the medical advisors are classified as health professionals
within the Health Services (HS) Group in the Public Service, and only the
advisors receive the benefits and recognition that flow from that
designation.
…
[10] The Respondents provided a
reasonable explanation that rebutted part of the Complainants’ prima facie
case, but not all of it. While there is a significant overlap in the
common enterprise of eligibility determination, medical advisors exercise an
oversight and advisory role that is not performed by the adjudicators. This
results in some differences in the job tasks performed by advisors and
adjudicators. These differences explain the distinction in the job titles and explain
some of the differences in compensation and benefits.
[11] However, the differences are not
significant enough to explain the wide disparity in treatment and, more particularly,
they do not explain why the advisors are recognized as health professionals and
the adjudicators are not. The core function of both positions is
applying professional knowledge to determine eligibility for CPP disability
benefits. The Respondents have failed to provide a reasonable,
non-discriminatory explanation as to why this function is medical work
when the advisors do it, and program administration work when the
adjudicators do it. (my emphasis)
[23] The tribunal’s determination that the
differences explain “some” of the disparity in “compensation and benefits”
leads to the inevitable conclusion that the differences do not explain all of
the variance in those subcategories of differential treatment. Notably, apart
from the excerpts from the tribunal’s reasons canvassed above, there are a
number of other references contained in the judge’s reasons (paras. 53-57) to
support the finding of wage loss. Further, there are also additional relevant
paragraphs in the reasons of Justice Mactavish (judicial review of liability
determination at paras. 28, 34, 55 and 56). I reiterate that the Crown did not
pursue its appeal of Justice Mactavish’s judgment.
[24] In my view, the
inescapable result arising from the various references found throughout the
tribunal’s liability determination is that, read as a whole, the tribunal’s
reasons constitute a determination, albeit an implicit one, that some wage loss
or benefits loss had been established as a result of the discrimination.
[25] For these
reasons, I find the judge’s decision that the tribunal erred in concluding that
the complainants had the burden of establishing both “the existence and quantum
of wage loss” at the second phase of the hearing to be proper. I note
peripherally that the compensation determination suggests that the tribunal may
have been unduly influenced by the testimony of the Crown’s witness (that wage
loss resulting from the discriminatory practice must be empirically tested) and
that it retreated from its earlier finding in the liability determination as a
result (para. 119).
[26] Yet,
that does not end the matter for the Crown further submitted that, if it is
found that the tribunal erred in concluding that the complainants had to
establish wage loss, the appeal should nonetheless be allowed on the basis that
the complainants did not establish the quantum of wage loss. Although this
argument is superficially appealing, it must be rejected in view of the
complainants’ responsive submission.
[27] Relying
on this court’s decision in Public Service Alliance of Canada v. Canada
(Department of National Defence), [1996] 3 F.C. 789 (C.A.) (PSAC),
the complainants characterized this matter as “an onus case.” That is, they
maintained that since they had established the existence of wage loss, the onus
shifted to the Crown to lead evidence as to quantum.
[28] I have three
observations to make regarding the respective submissions of the parties. First, the PSAC
case concerned a complaint under section 11 of the Act. This is not a section
11 case; it is a case concerning sections 7 and 10 of the Act. There is a
statutory presumption with respect to section 11. That is not the case in
relation to sections 7 and 10. No authority was cited in support of the
complainants’ position in this respect.
[29] Second, the
proposition advanced by the complainants appears to run contrary to the
reasoning in both O’Malley and McDougall. That is, he or she who
alleges bears the burden of proving on a balance of probabilities. The general
rule, however, is not absolute. The rationale underlying the requirement in O’Malley
and PSAC – that the employer should bear the burden of proof because the
employer is in possession of the necessary information to show either undue
hardship (O’Malley) or job changes that would affect the wage gap (PSAC)
– was explained by the Supreme Court in Snell v. Farrell, [1990]
2 S.C.R. 311 at paragraphs 30-33. Basically, if there is a significant
imbalance in the access of the parties to evidence relating to a particular
point, this imbalance can justify shifting the burden to the party with
substantially greater access to the relevant evidence. This leads me to my
third observation.
[30] The
tribunal’s reasons are silent on this issue. In the absence of the issue being
addressed by the tribunal, the Federal Court, and by extension this Court, is
ill-equipped to determine whether the circumstances are such that the Crown is
substantially better placed to access evidence relating to the quantum of
compensable wage loss. The jurisprudence requires a significant gap before
shifting the burden of proof. It is the tribunal, not the court, which
possesses familiarity with the factual circumstances and the respective
capacities of the parties to produce the evidence that the tribunal considers
necessary to adjudicate the matter. The question is not an insignificant one
and the tribunal’s ruling will be of utmost importance to the parties.
[31] In my view,
in the circumstances, it would be inappropriate for this Court to pronounce on
the issue of whether the burden of proof
should shift. It would be equally inappropriate to accept the Crown’s argument
that its appeal should be allowed on the basis advanced.
Conclusion
[32] Although
I have taken a somewhat different path, I have arrived at essentially the same
conclusion as the judge. I note that the judge’s reasons state that the
tribunal must “assess the lost income or wage losses on the material before it,
or refer the issue back to the parties to prepare better evidence on what the wage
losses would have been, but for the discriminatory practice.” The formal
judgment of the Federal Court sets aside the tribunal’s compensation
determination and refers it back to a new panel of the tribunal in accordance
with the reasons for judgment. In my view, the question of quantum of wage loss
and the nature of proof required for the purposes of paragraph 53(2)(c) is a
matter best left to the tribunal, given its expertise in the interpretation of
the Act. Consequently, I would leave it to the tribunal to determine how to go
about conducting the redetermination of the compensation phase of the hearing.
As I understand the situation, the pain and suffering aspect of the
compensation determination is presently before the tribunal.
[33] For
these reasons, I would dismiss the appeal with costs to the respondent
complainants. I would not award costs to the Commission.
"Carolyn
Layden-Stevenson"
“I
agree M. Nadon J.A.”
“I
agree Robert M. Mainville J.A.”
SCHEDULE “ A”
to the Reasons dated xx, xx, 2011
in A-477-10
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Canadian Human Rights Act (R.S.C.1985, c. H-6)
7. It is a discriminatory practice, directly or
indirectly,
(a) to refuse to employ or continue to employ any
individual, or
(b) in the course of employment, to differentiate adversely
in relation to an employee, on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer,
employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment,
referral, hiring, promotion, training, apprenticeship, transfer or any other
matter relating to employment or prospective employment, that deprives or
tends to deprive an individual or class of individuals of any employment
opportunities on a prohibited ground of discrimination.
11.
(1) 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.
Assessment
of value of work
(2)
In assessing the value of work performed by employees employed in the same
establishment, the criterion to be applied is the composite of the skill,
effort and responsibility required in the performance of the work and the
conditions under which the work is performed.
Separate
establishments
(3)
Separate establishments established or maintained by an employer solely or
principally for the purpose of establishing or maintaining differences in
wages between male and female employees shall be deemed for the purposes of
this section to be the same establishment.
Different
wages based on prescribed reasonable factors
(4)
Notwithstanding subsection (1), it is not a discriminatory practice to pay to
male and female employees different wages if the difference is based on a
factor prescribed by guidelines, issued by the Canadian Human Rights
Commission pursuant to subsection 27(2), to be a reasonable factor that
justifies the difference.
Idem
(5)
For greater certainty, sex does not constitute a reasonable factor justifying
a difference in wages.
No
reduction of wages
(6)
An employer shall not reduce wages in order to eliminate a discriminatory
practice described in this section.
Definition
of “wages”
(7)
For the purposes of this section, “wages” means any form of remuneration
payable for work performed by an individual and includes
(a)
salaries, commissions, vacation pay, dismissal wages and bonuses;
(b)
reasonable value for board, rent, housing and lodging;
(c)
payments in kind;
(d)
employer contributions to pension funds or plans, long-term disability plans
and all forms of health insurance plans; and
(e)
any other advantage received directly or indirectly from the individual’s
employer.
53 (2)
If at the conclusion of the inquiry the member or panel finds that the
complaint is substantiated, the member or panel may, subject to section 54,
make an order against the person found to be engaging or to have engaged in
the discriminatory practice and include in the order any of the following
terms that the member or panel considers appropriate:
(c)
that the person compensate the victim for any or all of the wages that the
victim was deprived of and for any expenses incurred by the victim as a
result of the discriminatory practice;
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Loi canadienne sur les droits de la
personne (L.R.C.
1985, ch. H-6)
7. Constitue un acte discriminatoire,
s’il est fondé sur un motif de distinction illicite, le fait, par des moyens
directs ou indirects :
a) de refuser d’employer ou de
continuer d’employer un individu;
b) de le défavoriser en cours d’emploi.
10. Constitue un acte discriminatoire,
s’il est fondé sur un motif de distinction illicite et s’il est susceptible
d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une
catégorie d’individus, le fait, pour l’employeur, l’association patronale ou
l’organisation syndicale :
a) de fixer ou d’appliquer des lignes
de conduite;
b) de conclure des ententes touchant le
recrutement, les mises en rapport, l’engagement, les promotions, la
formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi
présent ou éventuel.
11. (1) Constitue un acte
discriminatoire le fait pour l’employeur d’instaurer ou de pratiquer la
disparité salariale entre les hommes et les femmes qui exécutent, dans le
même établissement, des fonctions équivalentes.
Critère
(2) Le critère permettant d’établir
l’équivalence des fonctions exécutées par des salariés dans le même
établissement est le dosage de qualifications, d’efforts et de
responsabilités nécessaire pour leur exécution, compte tenu des conditions de
travail.
Établissements distincts
(3) Les établissements distincts qu’un
employeur aménage ou maintient dans le but principal de justifier une
disparité salariale entre hommes et femmes sont réputés, pour l’application
du présent article, ne constituer qu’un seul et même établissement.
Disparité salariale non discriminatoire
(4) Ne constitue pas un acte
discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes
et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance
de la Commission canadienne des droits de la personne en vertu du paragraphe
27(2).
Idem
(5) Des considérations fondées sur le
sexe ne sauraient motiver la disparité salariale.
Diminutions de salaire interdites
(6) Il est interdit à l’employeur de
procéder à des diminutions salariales pour mettre fin aux actes
discriminatoires visés au présent article.
Définition de « salaire »
(7) Pour l’application du présent
article, « salaire » s’entend de toute forme de rémunération payable à un
individu en contrepartie de son travail et, notamment :
a) des traitements, commissions,
indemnités de vacances ou de licenciement et des primes;
b) de la juste valeur des prestations
en repas, loyers, logement et hébergement;
c) des rétributions en nature;
d) des cotisations de l’employeur aux
caisses ou régimes de pension, aux régimes d’assurance contre l’invalidité
prolongée et aux régimes d’assurance-maladie de toute nature;
e) des autres avantages reçus
directement ou indirectement de l’employeur.
53
(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte
fondée, peut, sous réserve de l’article 54, ordonner, selon les
circonstances, à la personne trouvée coupable d’un acte discriminatoire :
c)
d’indemniser la victime de la totalité, ou de la fraction des pertes de
salaire et des dépenses entraînées par l’acte;
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