Public Service Alliance of Canada v. Canada (Attorney General), 2005 FC 402

Date: 20050323

Docket: T-1096-04

Citation: 2005 FC 402

Ottawa, Ontario, March 23, 2005

Present:         Madam Justice Danièle Tremblay-Lamer                                 

BETWEEN:

                                      PUBLIC SERVICE ALLIANCE OF CANADA

                                                                                                                                          Applicant

                                                                           and

                                            ATTORNEY GENERAL OF CANADA

                                                                                                                                     Respondent

                                                                                                                                          T-1098-04

                                      PUBLIC SERVICE ALLIANCE OF CANADA

                                                                                                                                          Applicant

                                                                           and

                                            ATTORNEY GENERAL OF CANADA

                                                                                                                                     Respondent

                                                                                                                                          T-1099-04

                                      PUBLIC SERVICE ALLIANCE OF CANADA

                                                                                                                                          Applicant

                                                                           and

                                            ATTORNEY GENERAL OF CANADA

                                                                                                                                     Respondent

                                           REASONS FOR ORDER AND ORDER

[1]                The applicant, Public Service Alliance of Canada ("PSAC"), brings four applications for judicial review against decisions rendered by the Canadian Human Rights Commission (the "Commission") in respect of four separate complaints filed by the PSAC, each of which the Commission rejected.

[2]                The present dispute centers upon a series of agreements entered into by the federal government and certain provincial governments that had the effect of transferring employees from the former to the latter. Broadly speaking, the issue underlying all the present applications for judicial review concerns whether the federal government, by virtue of those agreements, wrongfully eschewed its obligations to provide adequate (i.e. non-discriminatory) remuneration to a particular group of employees. More specifically, in terms of the legal issues raised before the Court, three of the applications are exactly the same: all three focus on the Commission's decision to dismiss the complaints based on the terms of the agreement between the parties. The fourth application is different; quite apart from the terms of the agreements, it targets the Commission's decision to dismiss a complaint because the circumstances giving rise to the complaint occurred too long ago. The application corresponding to the fourth complaint (T-1097-04) will be considered in separate reasons, released concurrently.

FACTUAL BACKGROUND

[3]                In the 1990s, the federal government entered into a series of Employee Transfer Agreements ("ETAs") with provincial governments. In 1991 and 1992, ETAs were signed with the government of Québec and in 1997, several other ETAs were reached with the provinces of Alberta, Manitoba, New Brunswick and Québec.

[4]                Amongst the federal government employees (from several different governmental departments) that were the subject of these ETAs, was a group of clerical employees, comprised predominantly of women (the group "CR").

[5]                Each of the ETAs proscribed the terms and compensation of the employees. The employees were to be paid a salary at least equal to that received in their position as federal employees. The ETAs also contemplated wage adjustments if the Canadian Human Rights Tribunal (the "Tribunal") rendered a final decision in a pay equity complaint or a settlement was reached prior to the employee's transfer date. Wages would not be adjusted if the pay equity decision was rendered after the transfer.

[6]                On July 29, 1998, subsequent to the ETAs and the transfer of employees between federal and provincial governments, the Tribunal rendered a decision on the pay equity complaint recognizing that the federal government employees in the female-dominated CR group were not receiving equal pay for work of equal value to that performed by employees in male-dominated groups. The Tribunal order stated that the retroactive period for the wage adjustments was from March 8, 1985 to July 29, 1998 and that pay equity adjustments after July 29, 1998 would be incorporated into the base salary of employees.

[7]                To give effect to the Tribunal's order PSAC and the federal government entered into an "Implementation Agreement" on October 29, 1999. This agreement was incorporated into the Tribunal's order in November 1999 at the request of the parties.

[8]                Pursuant to the Implementation Agreement, and Article 9.4 in particular, employees belonging to the CR category received a lump sum payment for the period during which they were employees of the federal government.

THE COMPLAINTS AND THE DECISIONS OF THE COMMISSION

[9]                In January 2000, the applicant submitted three complaints before the Commission alleging that various federal governmental bodies instituted practices that discriminated against the CR group of employees, comprised predominantly of women, by signing ETAs with the various provincial governments. Complaint 20000258 was made against the Ministry of Human Resources and Development Canada, the Employment-Insurance Commission and Treasury Board, and corresponded to the ETAs entered into with the Alberta, New Brunswick and Manitoba provincial governments. Complaint 20000257 was made against the same three federal government entities, and corresponded to the ETA signed with the Québec provincial government. And complaint 20000451 was made against the Ministry of Citizenship and Immigration and Treasury Board, and corresponded to the ETA signed with the Québec provincial government.

[10]            On May 3, 2004, pursuant to subparagraph 44(3)(b)(i) of the Canada Human Rights Act, R.S.C. 1985, c. H-6 (the "Act"), the Commission found that none of these three complaints merited an inquiry before a Tribunal "because the terms of the Implementation Agreement entered into by PSAC and Treasury Board did not provide for the adjustment of base rates of pay of the transferred employees". The Commission's decisions in respect of complaints 20000258, 20000257 and 20000451 in turn gave rise to applications T-1096-04, T-1098-04 and T-1099-04, which I will hereinafter refer to collectively as the "2000 complaints".

ANALYSIS

The Standard of Review

[11]            The Commission dismissed the 2000 complaints pursuant to subparagraph 44(3)(b)(i), which reads,

[12]            The operative wording of this provision - "having regard to all the circumstances" - is indicative of the discretion given to the Commission at this stage of the complaint process. Nevertheless, all decisions rendered by administrative bodies, including discretionary ones, are subject to the principles of the pragmatic and functional approach (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226). The application of the factors envisaged by that approach - the (non)existence of a privative clause, the relative expertise of the administrative body, the nature of the provision that is at issue and the statute as a whole, and the nature of the problem before the body - is the key for determining the level of deference intended by Parliament. Different decisions by the same administrative entity, pursuant to the same legislative authority, may in theory ultimately attract different standards of review.

[13]            While the "general rule" is that "Parliament did not want the courts at this stage to intervene lightly in the decisions of the Commission" (Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (F.C.A.), [1998] F.C.J. No. 1609 at para. 38 (F.C.A.)(QL)), it is incumbent upon this Court to apply the pragmatic and functional approach to the case at bar, particularly given the specific arguments raised by the applicant in support of the correctness standard.^[1]

[14]            The first factor suggests less curial deference: there is no privative clause in the Act. However, the second and third factors point in the opposite direction. The Commission has expertise in the very function it is empowered to perform under s. 44(3)(b), that is, its screening function. LaForest J. described this function in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 at para. 53, contrasting the Commission with the adjudicative functioning of appointed tribunals and the judiciary alike:

The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it. Justice Sopinka emphasized this point in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 at p. 899:

The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 33(3)(b) [now s. 44(3)(b)] that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39 [now s. 49]. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage.

[15]            The applicant emphasizes the fourth factor in the analysis - the nature of the problem or decision - to support its contention that correctness governs, arguing that the decision reached by the Commission was premised on its interpretation of legal contracts and the orders of the Tribunal, that is, questions of law. With respect I disagree.

[16]            Here, the Commission dismissed the 2000 complaints because "the terms of the Implementation Agreement entered into by PSAC and Treasury Board did not provide for the adjustment of base rates of pay of the transferred employees". While tied to the language of the agreements and the orders made by the Tribunal (the interpretation of which is not, I note in passing, equivalent to the exercise of statutory interpretation), this conclusion was informed by the factual context in which the Implementation Agreement and the ETAs were agreed upon and the orders made by the Tribunal. In short, the Commission's decisions were not based on pure questions of law. Rather, in my opinion, the decisions are better characterized as a question of mixed fact and law.^[2] And, taken in tandem with the above factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter.

[17]            As such, the applications for judicial review corresponding to the 2000 complaints should only succeed if the decisions were "unreasonable", which the Supreme Court of Canada has defined as follows in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. [footnotes omitted]

The Reasonableness of the Decisions

[18]            The following materials were before the Commission when it made its decisions in respect of each of the 2000 complaints:

- Signed complaint form;

- Investigator's Report dated January 20, 2004;

- Letter dated March 9, 2004, to Piero Narducci (of the Commission) from David Yazbeck (solicitor for the applicant);

- Decision from the Nova Scotia Court of Appeal: Dartmouth (City) v. Nova Scotia (Pay Equity Commission), [1994] N.S.J. No. 438 (N.S.C.A.);

- Letter dated February 17, 2004 to Piero Narducci (of the Commission) from Gray Gillespie (Acting Executive Director of the Risk Management Division, Treasury Board Secretariat);

- Letter dated March 23, 2004 to Piero Narducci (of the Commission) from David Yazbeck (solicitor for the applicant);

- Letter dated March 23, 2004 to Piero Narducci (of the Commission) from Gray Gillespie (Acting Executive Director of the Risk Management Division, Treasury Board Secretariat); and,

- Chronology.

[19]            In this "somewhat probing" review (Ryan, supra) of the Commission's decisions, three elements referred to repeatedly in the above materials stand out: (1) the ETAs; (2) the July 29, 1998 Tribunal order; and, (3) the Implementation Agreement (more precisely, Articles 9.4 and 11 of the Implementation Agreement, which were before the Commission).^[3] To accomplish the task that I am faced with - assessing the reasonableness of the Commission's decisions in respect of the 2000 complaints - it is necessary to track the arguments made by each party relating to these three elements.

[20]            The applicant primarily concentrates on the effect of the ETAs, which it alleges had the effect of "freezing illegal wages" for the transferred CR employees and thus perpetuating discrimination. The applicant stresses that it had no role in the formation of the various ETAs, and the evidence shows that PSAC indicated to the respondent that the ETAs would have a discriminatory impact for transferred employees in the event that a pay equity decision or settlement resulted post-transfer date.

[21]            Further, the applicant takes the position that the Implementation Agreement in no way resolves the issue underlying the 2000 complaints, that is, the discriminatory base salaries of transferred employees in the CR group. Article 9.4 of the Implementation Agreement, by its own wording, deals only with lump sum payments for "situations of separation/severance". Such payments are available regardless of whether a particular employee is transferred, thus, the applicant submits, this provision cannot be interpreted as being an exhaustive remedy for the employees captured in the 2000 complaints.

[22]            On the contrary, Article 11 of the Implementation Agreement, reflects the intention that other avenues of redress could be pursued. Article 11.1 states that an error review process could be undertaken "where the application of the prescribed implementation rules does not take into account all possible circumstances of current and former employees [...]". At the same time, the applicant's understanding, as demonstrated in the evidence, was that the Implementation Agreement did "not preclude individuals from exercising their rights to redress mechanisms" (Article 11.3) such as filing the instant complaints before the Commission.    

[23]            The respondent, in contrast, takes the position that the Implementation Agreement, in conjunction with the order by the Tribunal dated July 29, 1998, effectively decided the matter. The respondent underlines the fact that the Implementation Agreement, which PSAC willingly entered into, clearly limits the benefit of the adjustments to base salaries to a specific date (namely, July 29, 1998) that is after the transfer date. The remedy of lump sum payments embodied in Article 9.4 is thus exhaustive of the respondent's obligations to the transferred employees. Further, as stated in the second order of the Tribunal (which is simply a reproduction of the Implementation Agreement), this agreement was considered to resolve all outstanding issues between the parties. This is what underpinned the Investigator's Report and the decision made by the Commission.

[24]            In my view, however, the respondent's logic is problematic on two levels. Firstly, the logic is circular: to suggest, in effect, that the lump sum payment remedy contemplated by Article 9.4 of the Implementation Agreement is exhaustive is not consistent when read together with Article 11, which specifically allows for further recourse, either internally or via some external body such as the Commission. It is possible that Article 11 was not intended to apply to the transferred employees (though I note that the provision clearly refers to "former employees"), yet the lack of evidence to support this contention combined with the Investigator's failure to even mention Article 11 in its report is puzzling.

[25]            Secondly, and more fundamentally, it is plain that the Implementation Agreement in no way addresses the essence of the 2000 complaints. As the applicant points out by way of example:

[A]n employee who had been working for the federal government for 3 years prior to her transfer would receive a severance payment equal to about one month's salary per year of service. If this employee works 20 years for the provincial government to which she was transferred at a discriminatory wage rate, the 3 months of salary she received as a severance pay does not even begin to compensate her for the wage discrimination [that she would continue to endure pursuant to the operation of the ETAs].

[26]            Still, the respondent takes the position that PSAC, by entering the Implementation Agreement, itself willingly deprived the CR group employees of the benefit of the adjustment to base salaries. However, this misconstrues the agreement and the nature of the July 29, 1998 Tribunal order.

[27]            To reiterate, the Implementation Agreement grew out of the July 29, 1998 Tribunal order. From the perspective of employees remaining under the employ of the federal government, the order was in a sense straightforward: discriminatory wage rates having been shown, employees were to receive a lump sum payment to account for the discriminatory wages they received in the past; and, going forward from the date of the decision, adjustments were to be made to their base salaries.

[28]            To place paramount importance on the date of the Tribunal's order then, as the respondent has done before this Court, in my opinion, misunderstands what the Tribunal intended to resolve. The Tribunal was not concerned with the circumstances of employees no longer working for the federal government. Not surprisingly then, there is no attention to the fact that by formulating the remedy in this manner (retroactive lump sum payments together with prospective salary adjustments), employees who were devolved from the federal public service prior to the date of the decision (and because of the terms of the ETAs) would not get the benefit of base salary adjustments. In short, nowhere in that 1998 order are the circumstances of the employees transferred pursuant to the ETAs addressed. Hence, the 2000 complaints.

[29]            In the end, too many questions regarding the intent of the parties and the proper effect of the ETAs and the Implementation Agreement remain. These questions are crucial to understanding the essence of the complaints made by the applicant, and thus the determination as to whether a Tribunal should be constituted.

[30]            It must be remembered that the task at this stage for the Commission is not decide to whether the complaint is made out: see for e.g., Cooper, supra. The Commission must instead screen the complaints and decide whether there exists a reasonable basis or sufficient evidence to merit the appointment of a tribunal. In my view, the Commission's decision to dismiss the 2000 complaints under subparagraph 44(3)(b)(i), on the evidence before it, was unreasonable.

[31]            For these reasons, the applications for judicial review with respect to the 2000 complaints, namely, applications T-1096-04, T-1098-04, T-1099-04, are allowed. The decision of the Commission is set aside and the matter is remitted back for reconsideration. The whole with costs.

                                               ORDER

THIS COURT ORDERS that the applications for judicial review with respect to the 2000 complaints, namely, applications T-1096-04, T-1098-04, T-1099-04, are allowed. The decision of the Commission is set aside and the matter is remitted back for reconsideration. The whole with costs.

                                                                   "Danièle Tremblay-Lamer"   

J.F.C.

                                     FEDERAL COURT

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                 T-1096-04, T-1098-04, T-1099-04

STYLE OF CAUSE:                                     Public Service Alliance of Canada

and

Attorney General of Canada

PLACE OF HEARING:                                Ottawa, Ontario

DATE OF HEARING:                                   March 2, 2005

REASONS FOR ORDER

AND ORDER OF    The Honourable Madam Justice Danièle Tremblay-Lamer

DATED:                    March 23, 2005

APPEARANCES:

David Yazbeck

James Cameron                                            FOR APPLICANT

Marie-Josée Montreuil                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron, Ballantyne,

& Yazbeck

Ottawa, Ontario                                              FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario                                              FOR RESPONDENT