Date: 20020711
Docket: T-683-01
Neutral citation: 2002 FCT 777
BETWEEN:
CONSTANCE AUCLAIR, MARIE-FRANCE MARLEAU
and SUZANNE WHITMORE
Applicants,
- and -
THE LIBRARY OF PARLIAMENT
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of Joseph W. Potter, sitting as an adjudicator appointed by the Public Service Staff Relations Board under the Parliamentary Employment and Staff Relations Act, R.S.C. 1985, c. 33 (2nd Supp.). The adjudicator decided that a "special pay adjustment" by Treasury Board to public service employees was not an "equal pay adjustment" with respect to pay equity complaints. For this reason the Library of Parliament employees are not entitled to this "special pay adjustment". The issue is whether the adjudicator's decision is patently unreasonable.
FACTS
1990 MOU
[2] On September 20, 1990 the Library of Parliament ("the Library") and the Public Service Alliance of Canada ("PSAC") entered into a Memorandum of Understanding ("MOU") which settled the matter of an "equalization of pay adjustment". The Library agreed to match payments "based on Equal Pay" to certain groups of its own employees with payments made by the Treasury Board to equivalent groups of employees. Future pay adjustments "based on Equal Pay" made by the Treasury Board would also be matched by the Library. In exchange, PSAC agreed to withdraw its pay equity complaints against the Library.
[3] In regards to future equal pay adjustments, the MOU reads, in part:
4) Furthermore, the Employer [the Library] undertakes to ensure that any future adjustments based on Equal Pay which may be made to the CR group and the ST-OCE subgroup in the Public Service will be paid to the above Library employees in the same manner as paid to the Treasury Board employees.
1998 Tribunal Decision
[4] On July 29, 1998, the Human Rights Tribunal rendered its decision on the PSAC pay discrimination complaints against the Treasury Board with respect to certain occupational groups in the public service, including the occupational groups referred to in the abovementioned MOU. The decision ordered that the Treasury Board make equal pay adjustments to these occupational groups and that the Treasury Board determine by mutual agreement with the PSAC, the actual wage adjustment for each of the occupational groups.
1998 Pay Equity Adjustments
[5] Approximately six weeks later, the Treasury Board issued a public announcement entitled "Collective Bargaining and Pay Equity - PSAC". The document, which was filed in evidence before the adjudicator, stated that the Treasury Board officials had begun discussions at the bargaining table with the PSAC with respect to the pay equity adjustments for the six occupational groups affected by the Tribunal decision. The Treasury Board further stated that it was prepared to offer $1.3 billion for retroactive pay equity adjustments. The document included "Questions and Answers" with respect to the pay equity Tribunal decision. Notable are the responses to questions 6 and 7 which state that while the government is proceeding with its application for judicial review, it will implement "some pay equity adjustments for employees". The government proposed to implement these pay equity adjustments "by the end of the year - December".
SPA Agreement
[6] On December 29, 1998 the Treasury Board and the PSAC entered into a "Memorandum of Agreement" on "Special Pay Adjustments" ("SPAs") for the occupational groups which were the subject of the Tribunal decision. The agreement was constructed so as to be without prejudice to the government's rights before the Federal Court by including six conditions with respect to the pay equity issue. However, the agreement included condition 2.4 that the Special Pay Adjustment "will ... be used in any calculation of any pay equity wage gap that may be required for any given year ... in the final resolution of the pay discrimination complaints".
1999 Pay Equity Agreement
[7] On October 19, 1999 this Court dismissed the government's application for judicial review of the Tribunal decision dated July 29, 1998. On October 29, 1999 the Treasury Board and the PSAC entered into an agreement for the purpose of implementing the Tribunal's decision. On November 16, 1999 the parties obtained a Consent Order from the Tribunal settling the pay equity complaints.
The Issue
[8] The SPAs, incorporated into the pay adjustment which settled the pay equity complaint against the Treasury Board, are the source of contention in the present case. The SPAs were incorporated into the base pay of each of the occupational groups referred to in the agreement, including the groups to which the Library employees are equivalent to in the MOU. However, the Library refused to apply to the SPAs pursuant to the MOU.
[9] The applicants, employees of the Library, submitted a grievance to the Public Service Staff Relations Board, on the ground that as per the 1990 MOU, the applicants should receive the same SPAs as the Treasury Board employees. The matter was referred to adjudication pursuant to the provisions of the Parliamentary Employment and Staff Relations Act.
[10] At the hearing before the adjudicator, the only viva voce evidence was from Margaret Jaekl, a classification and equal-pay officer with the PSAC, appearing on behalf of the applicant Library employees. She had knowledge of the pay discrimination case against the Treasury Board and the SPA Agreement.
Decision of the Adjudicator
[11] The decision of the adjudicator dated March 21, 2001 held that the grievours did not prove, on the balance of probabilities, that the Treasury Board SPAs were for pay equity reasons. In the Reasons for the Decision the adjudicator held at paragraph 37 that there is no evidence to support the proposition that the SPAs are for pay equity reasons. The adjudicator stated that the only significant evidence was the SPA agreement itself. The evidence of Margaret Jaekl, who testified that the SPA was negotiated in response to the pay equity complaint, was disregarded because she was not personally involved in the negotiation of the SPA Agreement.
[12] Selected excerpts from the decision are as follows:
Evidence
[8] Margaret Jaekl, a classification and equal-pay officer with the PSAC, testified that she believed the SPA was negotiated in response to the PSAC's global complaint on pay equity. In other words, it was to be regarded as a down payment on the amount of money owing to certain employees as part of the pay equity complaint.
[9] The pay equity complaint was resolved in October 1999, following a Consent Order issued by a Human Rights Tribunal (Exhibit U-2).
[10] Chart 1 in Exhibit U-2 reveals that the annual pay-equity adjustment amounts decreased substantially in 1997 and 1998 for the comparator Treasury Board groups. The reason for that, according to Ms. Jaekl, was that the SPA was offsetting the wage gap. If the SPA was not to be factored in, Ms. Jaekl would have expected the pay equity adjustment to be higher.
[11] In cross-examination, Ms. Jaekl stated that she was not a member of the team which negotiated the SPA.
Reasons for Decision
[37] Furthermore, the employer states that, in order for these grievances to succeed, there must be clear and cogent evidence to support the proposition that the SPA is based on equal pay. Since the grievors bear the onus of establishing their claim, and since there is no evidence to support the proposition they made, they did not discharge their burden of persuasion.
[38] Unfortunately, no one who negotiated the SPA testified. Any member of the negotiating team who negotiated [the Agreement] on behalf of the PSAC may have been able to verify the claim made here, but no such witness was proffered. Consequently, the only evidence before me in this regard is the [MOA].
[39] As the grievors bear the onus in this case, it is incumbent upon them to show clearly that the SPA is a "future adjustment based on Equal Pay" as described in paragraph 4 of the MOU and is therefore subject to payment. I concur with the employer that the grievors have not met the onus.
[40] [...]I am not satisfied, on a balance of probabilities, that the SPA was an increase to the rates of pay negotiated by the Treasury Board and the PSAC for pay equity reasons.
STANDARD OF REVIEW
[13] Hugessen J. in Professional Institute of the Public Service of Canada v. Senate of Canada, [1993] F.C.J. No. 1426 (F.C.A.) at paragraph 3 sets out that determinations regarding collective agreements are squarely within the jurisdiction of the adjudicator. With regard to that and the strong privative clause at section 72 of the Act, the Court will not interfere with a decision of the adjudicator, within his area of expertise, unless it is clearly and obviously defective. Accordingly, the standard of review in this matter is patent unreasonableness.
ROLE OF THE ADJUDICATOR
[14] The role of an adjudicator appointed by the Public Service Staff Relations Board under the Parliamentary Employment and Staff Relations Act is to hear and adjudicate on grievances under this Act. The relevant sections of that Act are:
Definitions
3. In this Part,
"adjudicator"
"adjudicator" means, subject to subsection 66(4), a member of the Board assigned to hear and determine a grievance referred to adjudication and includes, where the context permits, a board of adjudication established under section 65 and an adjudicator named in a collective agreement for the purposes of that agreement;
[...]
"grievance"
"grievance" means a complaint in writing presented in accordance with this Part by an employee on his own behalf or on behalf of the employee and one or more other employees...]
Définitions
3. Les définitions qui suivent s'appliquent à la présente partie.
"arbitre"
"arbitre" Sous réserve du paragraphe 66(4), commissaire chargé d'entendre et de régler un grief renvoyé à l'arbitrage, ainsi que, selon le contexte, le conseil d'arbitrage constitué au titre de l'article 65 ou la personne ainsi dénommée dans une convention collective aux fins de celle-ci.
[...]
"grief"
"grief" Plainte écrite déposée conformément à la présente partie par un employé, soit pour son propre compte, soit pour son compte et celui de un ou plusieurs autres employés. Les dispositions de la présente partie relatives aux griefs s'appliquent par ailleurs:
Appointment of Adjudicators
Members to adjudicate
64. The Board shall assign such members as may be required to hear and adjudicate on grievances referred to adjudication under this Part.
[...]
72. (1) Except as provided in this Part, every order, award, direction, decision, declaration or ruling of the Board, an arbitrator appointed under section 49 or an adjudicator is final and shall not be questioned or reviewed in any court.
(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board, an arbitrator appointed under section 49 or an adjudicator in any of its or his proceedings.
or otherwise, to question, review, prohibit or restrain the Board, an arbitrator appointed under section 49 or an adjudicator in any of its or his proceedings.
Nomination des arbitres
Désignation des commissaires
64. La Commission désigne, en tant que de besoin, les commissaires pour entendre et juger les griefs renvoyés à l'arbitrage en application de la présente partie.
[...]
72. (1) Sauf exception dans la présente partie, toute ordonnance, décision arbitrale ou autre, instruction ou déclaration de la Commission, d'un arbitre nommé en vertu de l'article 49 ou d'un arbitre de griefs est définitive et non susceptible de recours judiciaire.
(2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action de la Commission, d'un arbitre nommé en vertu de l'article 49 ou d'un arbitre des griefs.
ANALYSIS
[15] The adjudicator had a duty to perform a two-part analysis: first, to interpret the nature of the 1990 MOU, and second, to review the complete evidence and come to a decision as to whether the SPAs fell within the meaning of "equal pay" adjustments in the 1990 MOU.
[16] The Canadian Human Rights Tribunal decided on July 29, 1998 that the Treasury Board had violated section 11(1) of the Canadian Human Rights Act, which reads:
Equal Wages
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.
Disparité salariale discriminatoire
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.
[17] This decision called for the Treasury Board to make adjustment payments to rectify this discrimination.
[18] Exhibit U-1 before the adjudicator was the SPA Agreement dated December 29, 1998. This document contains several references to pay equity and the outstanding pay equity complaints.
[19] Exhibit U-3 before for the adjudicator is the Treasury Board document dated September 16, 1998 entitled "Collective Bargaining and Pay Equity - PSAC" which states:
It is our intention to table a proposal that will adjust ongoing salaries for the six occupational groups affected by the Tribunal ruling [...]Regarding the retroactive pay equity payments, the $1.3 billion offer remains on the table and it is hoped that PSAC will be willing to discuss this outside of the regular bargaining process [...]
Although the government is seeking judicial review of the Tribunal ruling, our intention is to reach a settlement with PSAC so that we can make pay equity payments to employees who have been waiting too long [...]
[20] The witness Margaret Jaekl, delivered viva voce evidence before the adjudicator. This witness was in a position to know the history of the pay equity issue between the parties. She testified that the SPA Agreement was negotiated as a down-payment on the amount of money owing as part of the pay equity complaints. She also testified that the SPA Agreement was not a "classification or reclassification agreement". This viva voce evidence is consistent with Exhibit U-3, the Treasury Board public announcement that it be making "pay equity payments" by the end of December, 1998, the exact date of the SPA Agreement.
[21] It is reasonably open to the Court to draw an adverse inference from the failure of a party to adduce evidence contradicting an opposing party's submissions. The respondent elected to call no evidence. If the respondent had evidence to demonstrate that the SPA Agreement was not related to pay equity, it is logical that the respondent would have called that evidence. See Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), as referred to by Tremblay-Lamer J. in Milliken & Co. v. Interface Flooring Systems (Canada) Inc., [1998] 3 F.C. 103, [1998] F.C.J. No. 135 (F.C.T.D.).
[22] I am satisfied that the documentary and viva voce evidence established a prima facie case that the SPA Agreement was with respect to pay equity. At that point, the onus shifted to the respondent to call evidence to the contrary, which the respondent undoubtedly would have done if the respondent had any evidence to rebut.
CONCLUSION
[23] The adjudicator's decision is patently unreasonable in that:
i. The grievours established a prima facie case, and thereby satisfied their onus of proof on the balance of probabilities, that the SPA Agreement was with respect to an "equal pay adjustment" as contemplated in the 1990 MOU;
ii. The adjudicator's decision at paragraph 37 that "there is no evidence"is patently unreasonable in that the evidence consisted of documentary evidence and valid probative viva voce evidence;
iii. The adjudicator erroneously disregarded the probative evidence of the PSAC witness, a classification and equal-pay officer, with knowledge of the SPA Agreement.
iv. The adjudicator erroneously disregarded other clear evidence, both direct and circumstantial, that the SPA was an increase to the rates of pay for pay equity reasons. The adjudicator disregarded the Treasury Board announcement that it would implement some pay equity adjustments for employees "by the end of the year - December", following the Human Rights Tribunal Decision dated July 29, 1998. The SPA Agreement dated December 29, 1998 was obviously the pay equity adjustment which the government had referred to in the announcement. This conclusion is reinforced by the fact that the SPA Agreement repeatedly refers to the pay equity issue.
[24] For these reasons, the application is allowed with costs, the decision of the adjudicator is set aside, and the matter is referred back to the adjudicator with a direction that the grievance be allowed.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
JULY 11, 2002
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-683-01
STYLE OF CAUSE: CONSTANCE AUCLAIR, MARIE-FRANCE MARLEAU
and SUZANNE WHITMORE
Applicants
- and -
LIBRARY OF PARLIAMENT
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 18, 2002
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: JULY 11, 2002
APPEARANCES BY: Mr. Andrew Raven
For the Applicants
Mr. Lynn Harnden
For the Respondent
SOLICITORS OF RECORD: RAVEN, ALLEN, CAMERON & BALLANTYNE
Barristers and Solicitors
1600 - 220 Laurier Avenue West
Ottawa, Ontario K1P 5Z9
For the Applicants
EDMOND HARNDEN
Barristers and Solicitors
Glebe Chambers
707 Bank Street
Ottawa, Ontario K1S 3V1
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020711
Docket: T-683-01
BETWEEN:
CONSTANCE AUCLAIR, MARIE-FRANCE MARLEAU and SUZANNE WHITMORE
Applicants
- and -
LIBRARY OF PARLIAMENT
Respondent
REASONS FOR ORDER
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