Date: 20050526
Docket: T-2390-03
Citation: 2005 FC 754
BETWEEN:
CHRIS McCORMICK
Applicant
and
MINISTER OF HEALTH and
THE PRESIDENT OF THE TREASURY BOARD OF CANADA
Respondents
REASONS FOR ORDER
HARRINGTON J.
[1] Registered nurses who are administered by, but not necessarily employed by, 19 First Nations Bands in Ontario claim they carry out the same work as their counterparts employed by the First Nations and Inuit Health Branch of Health Canada (FNIHB), and thus the Treasury Board. However, they are paid less. The principle of equal pay for equal work is a laudable one, but it is not the basis of this judicial review.
[2] Chris McCormick, Grand Chief of the Association of Iroquois and Allied Indians, filed a complaint with the Canadian Human Rights Commission that Health Canada was discriminating against certain Band-administered nurses.
[3] Although the ultimate goal is equal pay with FNIHB nurses, the route, by law, must be somewhat oblique.
[4] Section 11(1) of the Canadian Human Rights Act provides:
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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.
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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.
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[5] The Band nurses constitute a female predominant occupational group. The FNIHB nurses are likewise female dominated. Section 11 of the Act does not deal with wage differences within the same gender. There must be a male comparator job class.
[6] The technical basis of the complaint is that the Band nurses perform the same work as unionized nurses employed in the Public Service whose work was found in the past to be equal in value to male predominant groups in the Public Service. Chief McCormick's complaint on behalf of the nurses follows in the wake of the settlement of a pay equity complaint against the Treasury Board in which nurses in the female-dominated nursing group alleged they received less pay than members in the male-dominated computer systems administration group for work of equal value. As a result of that settlement, the unionized nurses received increases in pay. Thus, while Band nurses and nurses in what is now known as FNIHB once received the same pay, the FNIHB nurses are now paid more.
[7] As a prerequisite of the Canadian Human Rights Commission taking jurisdiction, the male and female employees must have the same "employer" and must be employed in the same "establishment".
[8] The Investigator charged with the responsibility of looking into the matter recommended, pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act, that the Commission not deal with the complaint. He was of the view that the Band nurses were, for the purposes of the Act, employees of the respondents, but that they did not work in the same establishment as the FNIHB nurses and consequently in the same establishment as the male-dominated group. Section 41(1)(c) provides:
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41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
...
(c) the complaint is beyond the jurisdiction of the Commission;
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41. (1) Sous réserve de l'article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu'elle estime celle-ci irrecevable pour un des motifs suivants_:
[...]
c) la plainte n'est pas de sa compétence;
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[9] The parties were given the opportunity to comment thereon. Following submissions first by Chief McCormick, then by the respondents, and a rebuttal by Chief McCormick, the Commission decided not to deal with the complaint as recommended by its Investigator. This is a judicial review thereof.
ISSUES
[10] There are two prime issues. One is whether the Band nurses are employed by Health Canada. The other is whether they are employed in the same establishment as male employees who may be performing work of equal value.
[11] The applicant submits that the Commission got it right on the employer issue and wrong on the establishment issue. The respondents' position is exactly the reverse.
[12] The applicant submits the Court should hold both groups of nurses, and by extension a male comparator group, are in the same establishment and then do what the Commission should have done, which is to refer the complaint to the Canadian Human Rights Tribunal on the basis that a full inquiry into the complaint is warranted.
[13] In the alternative, should the Court not be satisfied that the two groups are in the same establishment, the matter should be referred back to the Commission for redetermination on the grounds that procedural fairness was not followed in that the Commission did not take into account a great deal of the material submitted on behalf of the Band nurses.
[14] The respondents ask that the application for judicial review be dismissed because the Commission was correct in determining that the Band nurses were not in the same establishment as a male comparator group. There was no breach of procedural fairness on the part of the Commission.
[15] In addition, they submit that it is open to the Court to also dismiss the application on the grounds that the Band nurses and the FNIHB do not have the same employer. The Band nurses are employed by the 19 Bands involved, not by Health Canada.
SAME ESTABLISHMENT
[16] I consider it more appropriate to first deal with the submission of the applicant which is that the Commission was wrong in holding that the Band nurses and the FNIHB nurses (and therefore the male group to which they were previously compared) are not in the same establishment.
[17] Both parties submit, and I agree, that the standard of review on this issue is that of correctness. As noted by Rothstein J.A. in Canadian Human Rights Commission v. Canadian Airlines International Ltd., [2004] 3 F.C.R. 663 (C.A.), at paragraph 7:
The parties agree that the appropriate standard of review to be applied to the Tribunal's decision is correctness. The Tribunal was engaged in an issue of statutory interpretation--the meaning of establishment in subsection 11(1) of the Act and what the statute and the Guidelines required or permitted the Tribunal to consider to determine if employee groups are in the same establishment. Curial deference does not apply to a tribunal's interpretation of human rights legislation. See Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.), at paragraph 73, per Evans J. (as he then was).
[18] The first named respondent in that case was Air Canada, which is how the parties referred to it during argument. I will do so as well. Leave to appeal to the Supreme Court was granted. The hearing is currently scheduled for later this year.
[19] Section 11 of the Act must be read together with section 10 of the Equal Wage Guidelines ("EWG") which states:
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For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such policy is administered centrally.
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Pour l'application de l'article 11 de la Loi, les employés d'un établissement comprennent, indépendamment des conventions collectives, tous les employés au service de l'employeur qui sont visés par la même politique en matière de personnel et de salaires, que celle-ci soit ou non administrée par un service central.
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[20] The word "establishment" may have several different meanings, depending on the context. It may be that it derives from "industrial establishment" in labour law. In his concurring reasons in Air Canada, Evans J.A. went into the history of section 11 of the Act and section 10 of the EWG, as did Hansen J. in first instance (Canada (Human Rights Commission) v. Canadian Airlines International Ltd., [2002], 1 F.C. 158).
[21] Hansen J. was of the view that the two groups of flight attendants, being predominantly female, were not in the same establishment as the two predominantly-male comparator groups, consisting of pilots and maintenance aircraft employees.
[22] She said at paragraph 70:
Having regard to the plain meaning of s. 10 and, in particular, to the inconsistencies which would result from excluding any consideration of collective agreements, the Tribunal was correct in its interpretation that s. 10 does not preclude a consideration of the information contained in collective agreements. It must be emphasized, however, that a consideration of the collective agreements forms only part of the analysis required to determine whether employees are subject to a common personnel and wage policy. The inquiry must also include a consideration of all personnel and wage policies found outside the collective agreements.
[23] The Court of Appeal came to a different view. It held that a determination that the employee groups at issue were in the same establishment was a precursor to the substantive exercise of comparing the value of work being performed and respective remuneration. The precise details of working conditions and remuneration, as found in collective agreements, were matters to be considered at the substantive stage.
[24] Rothstein J.A., speaking for Nadon J.A. and himself, said at paragraphs 32 and 37:
32. In order to share a common personnel and wage policy, the employee groups being compared must be subject to the same general principles or approach guiding the employer in wage and personnel matters. That is, there must be evidence that the employer treats the employee groups as being part of a single, integrated business. If there is such evidence, the employees are in the same establishment. In such a case, an inquiry looking more closely at the details of the nature of their work, their working conditions and their remuneration is then justified.
37. For these reasons, I think that the Tribunal was in error when it had regard to the details of the collective agreements of the pilots, technical operations personnel and flight attendants to determine if they are in the same establishment. Rather, the Tribunal should have examined whether the same general principles or approach guided the employer in personnel and wage matters affecting the groups in question. ...
[25] He then turned to the evidence, especially a document entitled "Air Canada's Labour Relations Policy and Principles" which he considered to be conclusive of the issue. It was written in general terms, dealt with personnel and wage matters and was applicable to all employees, making no distinction between different groups.
[26] He went on to say:
40. I think this document is evidence of the type of common personnel and wage policy to which section 10 of the Guidelines refers. It demonstrates that Air Canada treated all of its employee groups, including the ones at issue in this appeal, as being part of a single, integrated business with a common objective. Air Canada did not bring to the attention of the Court evidence to the contrary. Indeed, its position was largely based on comparing the details of collective agreements.
41. I am of the respectful opinion that the Tribunal erred by considering the details of these collective agreements and not being guided by the above document in the making of its decision. Had it been, it would have found that the employee groups sought to be compared were subject to a common personnel and wage policy and therefore were employed in the same establishment.
[27] Evans J.A. agreed on this point as he said at paragraph 68:
I agree with my colleague that the central issue in this case is one of statutory interpretation and that if the Tribunal's interpretation is wrong, its decision must be set aside for error of law. I also agree that the word "include" in section 10 of the Guidelines does not contemplate that employees who are not subject to "a common personnel and wage policy" may nonetheless be employed "in the same establishment".
[28] It is significant that the Federal Court of Appeal's decision was only handed down after the Commission decided Chief McCormick's complaint was beyond its jurisdiction.
[29] The Commission did not give reasons in support of its decision. It is well established, however, in such cases that the Investigator's report then becomes its reasons. (Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Bell Canada v. Communications, Energy and Paperworkers Union of Canada (C.A.), [1999] 1 F.C. 113.)
[30] After citing the Air Canada decision in first instance, the Investigator analyzed all personnel and wage policies, including applicable collective agreements, to determine if there was a single establishment. He noted a number of factors favouring a single establishment and others which did not. He found that Band nurses were administered according to a complex mix of First Nation Bands and FNIHB personnel and wage policies. Some of the Bands had a position designated to direct the day to day of health services and the activities of registered nurses, others had the nurse position report to the Band Council, and relied on the respondents' staff for direction. Even the largest Bands used the respondents' Nursing Policy and Practicing Manual, although the evidence is clear that Bands had reserved the right to develop their own. The FNIHB nurses are unionized, the Band nurses are not.
[31] He concluded:
39. The Band administered nurses and FNIHB nurses being part of the same establishment, however, is not evident. Many of the policies and practices of the larger respondent organization are followed by the First Nation Bands; however, the FNIHB nurses are covered by a collective labour contract between Professional Institute of Public Service of Canada and Health Canada while the non-unionized Band administered nurses come under the control of 19 different personnel and wage policies controlled by the First Nations Bands. Therefore the personnel and wage policies in total are not comparable and do not flow from a common policy.
40. In addition, in order to investigate this complaint under section 11 of the Canadian Human Rights Act the comparator group of male-dominated occupational groups employed in the public service of Canada who allegedly are performing work of equal value must be in the same establishment.
[32] I find the Commission was correct in holding it was without jurisdiction because the two groups of employees were not in the same establishment. The same conclusion would have been reached without looking at collective agreements. To use the words of Rothstein J.A. the employer did not have "the same principles or approach".
PROCEDURAL FAIRNESS
[33] Some 250 pages of material submitted by Chief McCormick, in response to a query by the investigation, did not form part of the record before the Commission as they are not listed in the certified record pursuant to Federal Courts Rule 318. The documents cover a wide range of health issues and some lend support to the Investigator's finding that all the nurses had the same employer. There is nothing, however, to support the proposition that the nurses work in the same "establishment".
[34] The applicant had two opportunities to comment on the Investigator's report, and did so. No reference was made to the documents in question and no suggestion made that the Investigator's report was faulty because the documents were not mentioned by him.
[35] As noted by the Federal Court of Appeal in Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455, only the Investigator's report and the representations of the parties are necessary for the Commission's decision. Anything else is in its discretion. Section 44 of the Act does not require the members of the Commission to examine the complete record of the investigation. See also Bradley-Sharpe v. Royal Bank of Canada, 2001 FCT 1130, [2001] F.C.J. No. 1561, (QL), at paras. 14 and 15. Had the applicant in its commentary on the Investigator's report requested the Commission to consider the documents, the situation may well have been different. (Tremblay v. Canada (Attorney General), 2005 FC 339, [2005] F.C.J. No. 421, (QL).)
[36] Given that the reasons for the Commission's decision are those set out in the Investigator's report, the issue now becomes whether he considered them. It is well established that a decision-maker is presumed to have looked at all the pertinent documents unless there is evidence to the contrary (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (FCA)(QL)). In any event, there is nothing in the material which suggests that had it been properly considered the Investigator would have formed a different view with respect to "establishment".
THE EMPLOYER
[37] In the circumstances, it is not necessary for me to come to decide whether Health Canada is the employer of the nurses administered by the 19 bands. That is an issue of mixed fact and law so that the Commission's decision should stand unless found unreasonable. Nevertheless, I must say I seriously doubt that the Band nurses are employed by Health Canada. The purpose of the funding agreement with the Bands is to facilitate First Nations in taking greater control over their communities. They control the delivery of community health service, hire the nurses and may pay different wages, Band by Band, which has led to some movement of personnel.
[38] The Investigator cited 19 separate contribution funding agreements, Band by Band. He noted that the following was included in the agreements:
"This is an agreement for the performance of a service and the Recipient is engaged under the Agreement as an independent contractor for the sole purpose of providing a service. Neither the Recipient nor any of the Recipient's personnel is engaged by the Agreement as an employee, servant or agent of Her Majesty. The Recipient agrees to be solely responsible for any and all applicable, reports, payments, deductions, or contributions required to be made including those required for Canada or Quebec Pension Plans, Unemployment Insurance, Worker's Compensation or Income Tax."
[39] The Band nurses are not directly party to the agreements and they are not determinative of the issue. However, the paragraph just quoted appears to reflect the reality, and to reflect the evidence. Perhaps the "employer" did not subject the employees to "the same principles of approach" because there were actually 20 employers, not just one.
[40] If First Nations Band nurses are paid less than their counterparts elsewhere, it may be a because the total funding is inadequate or because of the way the 19 Bands allocate their resources. Neither justifies a pay equity complaint under section 11 of the Canadian Human Rights Act.
[41] For the foregoing reasons, the application shall be dismissed, with costs.
"Sean Harrington"
Judge
Ottawa, Ontario
May 26, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2390-03
STYLE OF CAUSE: CHRIS McCORMICK
AND
MINISTER OF HEALTH and
THE PRESIDENT OF THE TREASURY BOARD OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 18, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MAY 26, 2005
APPEARANCES:
Yavar Hameed FOR APPLICANT
Monika Lozinska FOR RESPONDENTS
SOLICITORS OF RECORD:
Yavar Hameed FOR APPLICANT
Ottawa, Ontario
John H. Sims, Q.C. FOR RESPONDENTS
Deputy Attorney General of Canada
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