National Gallery of Canada v. Public Service Alliance of Canada, 2003 FC 1458

Date: 20031211

Docket: T-904-02

Citation: 2003 FC 1458

Ottawa, Ontario, December 11, 2003

PRESENT: THE HONOURABLE MADAM JUSTICE JOHANNE GAUTHIER

BETWEEN:

NATIONAL GALLERY OF CANADA

Applicant

- and -

PUBLIC SERVICE ALLIANCE OF CANADA,

LOCAL 70397

Respondent

- and -

CANADIAN HUMAN RIGHTS COMMISSION

Intervener

REASONS FOR ORDER AND ORDER

[1]        The National Gallery of Canada ("the Gallery") is applying for judicial review of a decision by the Canadian Human Rights Commission ("the Commission") to deal with a complaint filed by the Public Service Alliance of Canada, Local 70397 ("the Alliance") and conduct an inquiry.

[2]        In its complaint the Alliance alleged that the Gallery's job evaluation plan contained provisions discriminating against the majority female groups it represents.

[3]        In the submission of the Gallery, the Alliance undertook in its collective agreement to review the plan with the aid of a parity committee and submit any disputes and differences regarding this process to an arbitrator/mediator expressly designated in Appendix H of the collective agreement. The memorandum of understanding in Appendix H forms an integral part of the collective agreement and the arbitrator/mediator has the power to render a final and binding decision.

[4]        The Gallery submitted that the collective agreement expressly provided that this committee would ensure the plan is in accordance with the rules of proper classification, with section 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 ("the Act") and with the principle of universal and gender neutral application.

[5]        It appeared that a substantive problem arose when the committee had just begun its review work. On the one hand, the Alliance's expert considered that the very structure of the plan, which was prepared by a consultant ("Mercer"), was not acceptable. In his view, the entire thing had to be rewritten. On the other hand, the expert witness for the Gallery maintained that the plan was consistent with section 11 of the Act. Accordingly, only certain adjustments had to be made for it to be approved by the parity committee.

[6]        This difference was submitted to the arbitrator/mediator, who met with the parties several times. On September 22, 2000, after five meetings between the parties and the arbitrator, the Alliance filed a complaint with the Commission.

[7]        On November 1, 2000, the Gallery indicated to the Commission that it should not intervene in the discussion until the procedure laid down in the collective agreement was complete. On January 14, 2001, the arbitrator/mediator rendered a decision which he described as interim. At pages 33, 34 and 39 of that decision, he noted:

The above indicates to the undersigned mediator/arbitrator that the Mercer plans were not basically flawed in meeting the requirements of gender neutral and complying with Article 11 of the CHRA but could be amended to more clearly meet such criteria.

. . . . .

CONCLUSION ARRIVED AT BY THE MEDIATOR/ARBITRATOR

In view of the above, the undersigned mediator/arbitrator does not consider that the analytic criticism and the jurisprudence submitted constitute sufficient evidence in the case against the Job Evaluation Plan's conformity with the requirements outlined in Appendix H to condem the plan but raises sufficient queries to recognize that the Plan could be improved to dissipate the concerns of the Alliance and all of its members

. . . . .

the undersigned mediator/arbitrator orders the parties to recall the Joint Committee in meetings and to carry out fully its mandate in order to arrive at a jointly satisfactory Job Evaluation Plan modeled after the existing plan as at the date of the signature of the collective labour agreement on June 17, 1998.

In order to carry out the mandate of the Parity Committee, the Alliance should prepare a revised version of the Questionnaire and Guide taking into consideration the analytic criticisms, outlined in Mr. Durbers' reports and turning these into constructive criticisms particularly as follows:

. . . . .

Upon reception by the NGC of the reviewed Questionnaire and Plan, the Parity Committee should meet and exchange in view of resolving the dispute and arriving at a reviewed and amended Job Evaluation Plan, gender neutral and respecting the dictates of Article 11 of the Canadian Human Rights Act and be free of overlaps and double counting.

[8]        On August 30, 2001, a new Appendix H was signed by the parties at the same time as their new collective agreement: it indicated that the parties acknowledged that on January 14, 2000, the arbitrator Pierre N. Dufrêsne rendered a partial decision regarding application of Appendix H of the previous collective agreement and they would do everything possible to comply with that decision as soon as possible, so that the objectives of Appendix H of the previous collective agreement (making the plan in accordance with proper classification principles, section 11 of the Act and the rule of universal and gender neutral application) would be attained. The impact of such an agreement was not discussed in correspondence between the parties and the Commission.

[9]        On January 29, 2002, the Commission sent both parties an initial report from their investigator pursuant to section 41(1) of the Act, which recommended that the Commission conduct an inquiry into the complaint filed by the Alliance.

[10]      After considering the parties' comments, the Commission on May 15, 2002, informed the parties that it would rule on the complaint and it indicated:

-                notwithstanding the fact that the Arbitrator has retained jurisdiction in this matter, the Arbitrator has ruled on the issue of discrimination;

-               the pursuit of a remedy under the collective agreement does not preclude this Commission from investigating a complaint filed under the Canadian Human Rights Act; and

-                the respondent is federally regulated and thus falls within the Commission's jurisdiction.

[11]      The Gallery submitted that:

[TRANSLATION]

(i)         The Commission erred in its assessment of the facts when it concluded that the arbitrator/mediator had ruled on the question of discrimination.

(ii)        Because of this interpretation error, the Commission did not or could not exercise its jurisdiction and determine whether the complainant should have first exhausted the internal remedy available to it (paragraph 41(1)(a) of the Act).

(iii)       The Commission erred in fact and in law by deciding to proceed with its inquiry, as the arbitrator/mediator already hearing the case had exclusive jurisdiction under the collective agreement and section 58 of the Canada Labour Code, R.S.C. 1985, c. L-2 ("the Code") to decide any questions relating to the non-compliance of the plan with section 11 of the Act.

[12]      It is worth noting that in its correspondence with the Commission and in the application at bar, the Gallery made no argument based on section 41(1)(b) or (c) of the Act. The applicant's memorandum, the report of the investigator and the Commission's letter of May 15, 2002, are based entirely on paragraph 41(1)(a). However, at the hearing the Gallery argued that the Commission lacked jurisdiction even if the arbitrator had rendered a final decision and subsequently indicated to the Court that paragraph 41(1)(c) was also applicable, since the Commission had to dismiss the complaint if the latter was beyond its jurisdiction.

[13]      The Alliance argued that the Court should not intervene in the Commission's decision to inquire into the complaint.

[14]      On the question of error of fact, the respondent submitted that if there were two possible interpretations to the arbitrator/mediator's decision, the Court could not conclude that the Commission's decision was unreasonable and therefore should not quash the decision. The respondent further indicated that the determination of this question was not necessary to decide the application for judicial review at bar, since even if the arbitrator/mediator had not ruled on the question of discrimination, section 41 of the Act gave the Commission jurisdiction to intervene and investigate the complaint made by the Alliance.

[15]      The Commission submitted, as intervener, that it had jurisdiction to rule on this complaint. In its submission, the Act is clear. Neither the Code nor the collective agreement deprives it of the power to inquire into a discrimination complaint under the Act.

ANALYSIS

[16]      Before analyzing the merits of the instant application for review, the Court must decide whether that application is premature since, as the Alliance indicated, this is a very preliminary stage in the complaint handling process set out in the Act. There has not yet been any inquiry. If this was an interlocutory decision, are there any exceptional circumstances justifying judicial review at this stage?

[17]      The parties were agreed that unless the Court intervened to say that the Commission should dismiss the complaint, the Commission would ordinarily render another decision, this time under section 44 of the Act.

[18]      The relevant provisions of the Act are accordingly as follows:

[19]      As the wording of section 41 indicates, in general the Commission must deal with all complaints filed under the Act. The Commission does not decide on the substantive rights of the parties except when it dismisses a complaint under subsection 42(1) or paragraph 44(3)(b).

[20]      Section 42 of the Act only deals with decisions dismissing a complaint under subsection 41(1) and the Commission's duty to give reasons for such decisions.

[21]      As paragraph 44(2)(a) and (b) and (3)(ii) indicates, the Commission at this second stage (after an inquiry) must review the same circumstances as those mentioned in paragraph 41(1)(a), (b), (c), (d) and (e) and decide whether the complainant should be referred to another competent authority or his complaint dismissed. Decisions made under these sections are subject to judicial review.

[22]      In my view, unless there are exceptional circumstances (including a want of jurisdiction - Zündel v. Canada (Human Rights Commission) (C.A.), [2000] 4 F.C. 255), the Court should decline to review an application for judicial review of a decision to deal with a complaint made before an inquiry under subsection 41(1).

[23]      This accordingly means that I would have dismissed the instant application for judicial review if it was based only on an error in the application of paragraph 41(1)(a). Such an application would have been premature. As can readily be imagined in the circumstances, a final decision by the arbitrator/mediator in this accelerated arbitration proceeding should ordinarily have been rendered when the Commission reassesses the matter under section 44. A decision by the Court on question (i) described in paragraph [11] above will probably be futile. Further, the complaint may prove to be unwarranted, especially in view of the amendments to be approved by the parity committee.

[24]      It is important for the inquiry on possible infringements of rights recognized as fundamental under the Act to go forward as quickly as possible and the complaint handling process to take its course until a final decision is rendered by the Commission pursuant to section 44 of the Act.

[25]      The Gallery and the Commission were agreed that if the Commission did not have jurisdiction to decide the complaint, the Court should intervene forthwith and quash the decision. I agree. However, as I have said, if the Commission has jurisdiction to deal with the Alliance's complaint the Court does not intend to review its decision under paragraph 41(1)(a), since there are no exceptional circumstances to warrant such intervention at this preliminary stage.

[26]      All three parties agreed that the standard of review applicable to a decision by the Commission on a question of jurisdiction such as the one at bar is that of the correct decision.

[27]      However, as required by the Supreme Court of Canada, I must nonetheless proceed to determine, using pragmatic and functional means, whether it is in fact that standard which applies in the case at bar.

[28]      The Act contains no privative clause and says nothing about a right to appeal the Commission's decisions. The latter are reviewable under section 18 of the Federal Court Act.

[29]      So far as the Commission's expertise compared with that of the Federal Court is concerned, as the Supreme Court of Canada said in Cooper v. Canada (Human Rights Commission), [1996] 3 F.C.A. 854, the Act gives the Commission no general power to rule on questions of rights. In certain sections, such as paragraph 41(1)(c), it gives the Commission the power to interpret and apply its enabling Act. Ordinarily, under paragraph 41(1)(c), the Commission has to determine whether the complaint before it concerns a federal activity or undertaking. In the case at bar, its analysis is limited to that level. In view of this limited expertise of the Commission, there is no reason to accord any special deference.

[30]      The purpose of the Act is to ensure that all individuals are treated equally and to protect them against certain discriminatory acts described in the Act in connection with federal activities or undertakings. Section 41 sets out the Commission's duty to deal with all complaints received, except those which in the Commission's opinion should be dismissed for one of the reasons stated.

[31]      The question of jurisdiction raised by the Gallery is a question that requires a review of rather complex general rules of law. What is necessary is not simply to interpret the Act, but to analyze the impact of other legislation (the Labour Code) on the Commission's jurisdiction. It goes beyond just the limits of the Act.

[32]      In view of this analysis, I confirm that I will apply the standard of the correct decision.

[33]      The parties appeared to agree that the Alliance's complaint would ordinarily fall within the Commission's jurisdiction. However, the Gallery argued that as the gist of the [TRANSLATION] "dispute" before the Commission relates to a matter covered by the collective agreement, it can no longer be the subject of a complaint or inquiry under the Act or a decision by the Human Rights Tribunal.

[34]      The principal allegation in the complaint of September 22, 2000, reads as follows:

The job evaluation plan of the National Gallery of Canada stands as a policy or practice that deprives or tends to deprive female employees of the Gallery of employment opportunities on the ground of sex. As well, the application of this job evaluation practice constitutes differential treatment in the course of employment in relation to female employees on the ground of sex. As such, use of this job evaluation plan constitutes a violation of Section 7 and 10 of the Canadian Human Rights Act.

[35]      The Alliance then indicated that the details of its complaint were set out in an expert report. This was the same report as was submitted to the arbitrator/mediator by the Alliance and on the basis of which the January 14, 2001 decision was rendered. It is important to note that the Supreme Court of Canada has on several occasions repeated that to determine whether a dispute results from a collective agreement, one has to look not at the way in which the legal questions may be stated but rather at the facts surrounding the dispute between the parties (see Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, supra, at paragraph 43, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, at paragraph 25).

[36]      In my opinion, based on the factual background the gist of the complaint before the Commission concerns a matter covered by the collective agreement. However, that is the gist of the complaint, not the gist of a dispute before the Commission, since the Commission is not a decision-making body and only the Human Rights Tribunal can render a binding decision. The Court is not satisfied that the complaint handling procedure administered by the Commission can be described as a "dispute". However, as the parties did not raise this point, I will analyze the question submitted as if this were a dispute.

[37]      The gist of the complaint is the same as the gist of the dispute submitted to the arbitrator/mediator. The dispute before the arbitrator/mediator resulted from a factual situation expressly covered in the collective agreement. Although instead of relying on section 11 of the Act the Alliance submitted its complaint under sections 7 and 10 of the Act, that does not have the effect of altering the gist of the "dispute", which derives expressly or by implication from the interpretation, application, administration [and] non-performance of the collective agreement (see e.g. Regina Police Assn. Inc., supra, paragraph 25, and Parry Sound (District), Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] SCC No. 42).

[38]      Accordingly, it would be artificial to attempt to treat the nature of the complaint before the Commission in any other way. However, this leads me to wonder whether in the case at bar we are not at the limits of the test stated in Weber, supra, as despite this conclusion regarding the gist of the complaint the Court cannot conclude that the Commission has no further jurisdiction to deal with this complaint.

[39]      In Weber, supra, the Supreme Court of Canada had to determine whether the legislative scheme providing for binding arbitration of all disputes relating to the collective agreement precluded the parties from submitting those disputes to the ordinary courts of law (Regina Police Assn. Inc., supra, paragraph 22).

[40]      In Regina Police Assn. Inc., supra, the Supreme Court of Canada used the same approach it had used in Weber, but this time to determine which of the two legislative schemes (the collective agreement or the Police Act, 1990, S.S. 1990-91, c. P-15.01 of Saskatchewan and its regulations) should apply to a dispute involving members of the police force. However, in that case the decision to apply the exclusive jurisdiction model was facilitated by the fact that, expressly or by implication, the two schemes covered the question of overlap.

[41]      Clause 8 of the collective agreement expressly excluded from its scope cases in which provisions of the Police Act applied, while the Police Act provided in subsection 60(3):

[42]      Having decided that the nature of the dispute which was the subject of the grievance before the arbitrator was essentially disciplinary, a matter covered by the Police Act, the Supreme Court of Canada could readily apply the exclusive jurisdiction model and affirm the arbitrator's decision to dismiss the grievance.

[43]      It is worth noting that the Supreme Court of Canada indicated in that case that the decision-making body (here, the Commission), in order to determine whether it has jurisdiction, must identify Parliament's intention as set out in the legislative scheme or schemes governing the parties (Regina Police Assn. Inc., supra, paragraph 23). It further appeared that the exclusive jurisdiction model was adopted to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature (Regina Police Assn. Inc., supra, paragraph 26). The Court also tells us (see paragraph 34) that we should avoid formalistic interpretations of the provisions that would deny the decision-making body jurisdiction when it was clearly the intention of the legislature that this body should hear the dispute.

[44]      In the present situation, Parliament clearly intended that the Commission would deal with complaints involving matters covered by collective agreements, since several of the discriminatory acts described in the Act are activities ordinarily covered by such agreements, and hence subject to compulsory arbitration, namely policies and guidelines on promotions, training, transfers and salaries.

[45]      Subsection 41(1) specifically provides for the possibility that the situation complained of to the Commission can also be the subject of a grievance.

[46]      Not only was the legislature aware of the possibility of an overlap, it chose to give the Commission the discretion to decide whether in a given case it was better for the grievance procedure to be exhausted first (see Canada (Attorney General) v. Boutillier, [1999], 1 F.C. 459, paragraph 32). Accordingly, this means that it intended the Commission to be able to deal with a complaint during or after exhausting the grievance procedure (41(1)(a)). It also indicated that the Commission has discretion to decide whether a complaint could be heard with advantage (initially or at any stage) pursuant to some other federal statute (41(1)(b)). This necessarily implies the possibility of concurrent jurisdiction.

[47]      Accordingly, the Court cannot subscribe to the limiting interpretation of section 41 put forward by the Gallery, according to which section 41 cannot be applied to a complaint the gist of which is a matter covered by the collective agreement.

[48]      This is not the first time that the argument has been made. It was dismissed by Tremblay-Lamer J. in Canadian Broadcasting Corporation v. Paul, [1999] 2 F.C. 3, and by Beaudry J. in Canadian Broadcasting Corporation and Syndicat des communications de Radio-Canada, [2002] F.C.J. No. 1060: though it is true that the facts in those cases were not identical to those before this Court, the reasoning and conclusion of both judges seems very persuasive.

[49]      Although the Court recognizes the important function of arbitration in labour relations and the broad interpretation that must be given to the Labour Code, it cannot disregard the choice made by Parliament. It cannot conclude that the Commission lacks jurisdiction to deal with a complaint which clearly alleges a discriminatory act mentioned in the Act, even though the gist of such a complaint also has to do with a question covered by the collective agreement.

[50]      The application for judicial review is dismissed with costs.

ORDER

THE COURT ORDERS:

1.         The application for judicial review is dismissed with costs.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

FILE:                                                                           T-904-02

STYLE OF CAUSE:                                                   National Gallery of Canada

- and -

Public Service Alliance of Canada

- and -

Canadian Human Rights Commission

PLACE OF HEARING:                                             Ottawa, Ontario

DATE OF HEARING:                                               October 8, 2003

REASONS FOR ORDER:                                        Johanne Gauthier J.

DATE OF REASONS:                                               December 12, 2003

APPEARANCES:

Nancy Boyle                                                                 FOR THE APPLICANT

Geneviève Desmarais

James Cameron                                                             FOR THE RESPONDENT

Andrea Wright                                                               FOR THE INTERVENER

SOLICITORS OF RECORD:

Desjardins, Ducharme, Stein, Monast                             FOR THE APPLICANT

Montréal, Quebec

Raven, Allen, Cameron & Ballantyne                             FOR THE RESPONDENT

Ottawa, Ontario

Canadian Human Rights Commission                             FOR THE INTERVENER

Ottawa, Ontario