Date: 20020716
Docket: T-1219-00
Neutral citation: 2002 FCT 793
Ottawa, Ontario, July 16, 2002
Before: MICHEL BEAUDRY J.
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Plaintiff
and
SYNDICAT DES COMMUNICATIONS
DE RADIO-CANADA (FCN-CSN)
Defendant
and
CANADIAN HUMAN RIGHTS COMMISSION
Intervener
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by the Canadian Broadcasting Corporation (hereinafter "the Corporation") under s. 18.1(4) of the Federal Court Act to quash or reverse the decision of the Canadian Human Rights Commission (hereinafter "the Commission") on June 9, 2000, to deal with and inquire into the wage discrimination complaint filed by the Syndicat des communications de Radio-Canada (FCN-CSN) (hereinafter "the SCRC").
ISSUE
[2] Did the Commission err in law and exceed its jurisdiction when it decided on June 9, 2000, to deal with the complaint filed by the SCRC and to inquire into it? _ or in other words, does the gist of the dispute raised by the SCRC fall within the collective agreement concluded between the Corporation and the SCRC which was then within the exclusive jurisdiction of a grievance adjudicator, to the exclusion of the Commission?
FACTUAL BACKGROUND
- [3] On July 28, 1995, the Canada Labour Relations Board granted the Syndicat des journalistes de Radio-Canada the status of a bargaining agent for the personnel unit assigned to production and presentation of the Corporation's French programs. On January 8, 1996, the same Board approved the change of this union's name to its present name, the SCRC.
- [4] On June 22, 1998, a collective agreement was concluded between the parties and its expiry date was set for June 17, 2001.
[5] On November 19, 1998, the SCRC sent the Commission a complaint against the Corporation alleging wage discrimination in respect of job categories where a majority of employees were women.
- [6] On April 28, 1999, the SCRC filed a complaint with a different wording, alleging wage discrimination contrary to s. 11 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (hereinafter "the Act"). When the Corporation received a copy of the complaint it filed an objection with the Commission, asking the latter to cease any proceedings and state that it had no authority or jurisdiction to deal with the complaint.
- [7] As the result of extensive correspondence between the Corporation and the Commission, the latter on June 9, 2000, informed the Corporation that it would deal with and inquire into the complaint as filed. It is that decision which is the subject of the application for judicial review.
- [8] The Commission subsequently obtained leave to intervene in the case at bar.
- [9] By letter of May 16, 2002, the plaintiff decided not to raise in this Court the first four points at issue, preferring to reserve its right to file an application for judicial review on all these questions, after the Commission has completed its inquiry and rendered its decision.
- [10] Accordingly, that leaves only the question of the Commission's authority or jurisdiction to make a decision.
- [11] It should be noted that no group or individual grievance was filed before the complaint was sent to the Commission by the SCRC.
PLAINTIFF'S ARGUMENTS
- [12] The Corporation submitted that the alleged wage discrimination related to the wage clauses negotiated by the SCRC.
- [13] The same collective agreement contains a clause prohibiting discrimination on grounds of sex, as set out in clause 28.1.
- [14] The collective agreement also contains in clauses 11 and 14 a clause for final resolution of grievances by a grievance and arbitration.
- [15] The Canada Labour Code, R.S.C. 1985, c. C-27 (hereinafter "the Code"), contains a full privative clause for arbitral awards, thus indicating that Parliament intended that disagreements be finally resolved by an arbitrator.
- [16] The Act contains no privative clause in respect of the Commission or the Human Rights Tribunal.
- [17] The question of which the SCRC complained to the Commission results from the collective agreement, as according to the Corporation it is the wages which are allegedly discriminatory against a group with a majority of women, so constituting wage discrimination.
- [18] The Corporation relied on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and St. Anne Nackawic Pulp & Paper v. C.P.W.U., [1986] 1 S.C.R. 704. The Corporation stated that since Canadian Broadcasting Corporation v. Leila Paul, [1999] 2 F.C. 3 (T.D.) (hereinafter "CBC v. Paul"), the Code has been amended to identify and avoid duplicate remedies, giving a grievance arbitrator, in its submission, the exclusive right to decide disagreements between the parties.
- [19] The Corporation added that before the provisions of Part I of the Code were revised, a task force had made recommendations. In a report titled "Seeking Balance", that task force recommended that the Code be amended to avoid duplicate remedies in the grievance procedure and the use of other proceedings relating to employment.
- [20] The Corporation contended that since the amendment in s. 60 of the Code there is no further ambiguity and the arbitrator has exclusive authority over employment-related disputes between the parties.
- [21] Since the amendment, in the Corporation's submission, the arbitrator can make any orders necessary to dispose exclusively of disputes between parties who have already concluded a collective agreement.
[22] Finally, the Corporation asked that the Commission's decision be quashed as it was a dispute which was exclusively within the jurisdiction of an arbitrator, and not the Commission.
DEFENDANT'S ARGUMENTS
- [23] The latter referred to the statement of facts alleged by the plaintiff, adding that however it tried unsuccessfully to eliminate wage discrimination when the first collective agreement was negotiated.
- [24] The defendant submitted CBC v. Paul and Weber, supra, in its favour.
- [25] Under s. 41 of the Act, the Commission has complete power to decide whether a complainant must exhaust internal remedies or grievance settlement procedures contained in a collective agreement.
- [26] The Act takes priority when there is a conflict between two pieces of legislation.
- [27] If Parliament had decided to exclude the application of the Act, it would have done so clearly by a legislative provision to that effect.
- [28] Section 60 of the Code did not alter CBC v. Paul in any way. The amendment to the Code is only a codification of the existing law.
[29] Finally, s. 60 of the Code does not establish any priority for the arbitrator's jurisdiction over that of the Commission.
INTERVENER'S ARGUMENTS
- [30] The Commission submitted that, in accordance with s. 41(1) of the Act, it has jurisdiction to deal with any complaint laid before it unless it appears that the alleged victim of the discriminatory practice ought to exhaust grievance or review procedures otherwise reasonably available. In the Commission's submission, this statutory discretion implicitly means that once such procedures have been exhausted the Commission may decide to deal with the complaint.
- [31] With supporting authority, the Commission argued that it could not refuse to deal with a complaint solely because the matter has already been decided by a labour board.
- [32] In its favour, the intervener cited CBC v. Paul.
- [33] On s. 60 of the Code, the Commission argued that the section had not in any way altered the overriding nature of the Act. Citing authority, it found no implicit repeal of legislation on human rights there.
[34] Several judgments confirm the Commission's jurisdiction in the event of a conflict or overlap with a grievance procedure.
ANALYSIS
Standards of judicial review
[35] The standard of judicial review that applies here, and this was not disputed by the parties, is that of "correctness". I must therefore examine the decision in question from the point of view of its validity, not its reasonableness: see
Canada (Attorney General) v. Mossop,
[1993] 1 S.C.R. 554.
LEGISLATION
[36] Section 11(1) of the Act reads as follows:
| 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.
|
|
11. (1) Constitue un acte discriminatoire le fait pour le 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.
|
|
|
|
|
[37] Section 41(1) of the same Act provides in paras. (a), (b) and (c):
| 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
|
|
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 :
|
|
|
|
|
| (a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
|
|
a) la victime présumée de l'acte discriminatoire devrait épuiser d'abord les recours internes ou les procédures d'appel ou de règlement des griefs qui lui sont normalement ouverts;
|
|
|
|
|
| (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
|
|
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon les procédures prévues par une autre loi fédérale;
|
|
|
|
|
| (c) the complaint is beyond the jurisdiction of the Commission . . . [Emphasis added.]
|
|
c) la plainte n'est pas de sa compétence . . .
[Je souligne.]
|
|
|
|
|
[38] Section 60(1)(a.1) of the Code reads as follows:
| (a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement . . . [Emphasis added.]
|
|
a.1) celui d'interpréter et d'appliquer les lois relatives à l'emploi et de rendre les ordonnances qu'elles prévoient, même dans les cas où elles entrent en conflit avec la convention collective . . . [Je souligne.]
|
|
|
|
|
- [39] The collective agreement concluded between the plaintiff and the defendant contains a clause prohibiting discrimination on grounds of sex and a final grievance resolution clause by grievance and arbitration.
- [40] Section 58 of the Code contains a full privative clause for arbitral awards.
[41] The most relevant cases for arriving at a solution of the case at bar are the following:
(a) CBC v. Paul;
(b) Québec (Procureure générale) v. Québec (La Commission des droits de la personne et des droits de la jeunesse), J.E. 2002-491 (Q.C.A.) (hereinafter "Québec v. CDLPJ") (application for leave to appeal filed with the Supreme Court, No. 29188);
(c) Ford Motor Co. of Canada v. Ontario (Human Rights Commission), [2001] O.J. No. 4937 (QL) (C.A.) (application for leave to appeal filed with the Supreme Court, No. 29073).
[42] In CBC v. Paul, Tremblay-Lamer J. ruled on the same point of law we have here, except that the amendment to s. 60 of the Code was not in effect. The question was whether the arbitrator had exclusive jurisdiction over a complaint alleging a breach of the Act, when there was in the collective agreement a prohibition similar to that incorporated in the Act. Tremblay-Lamer J. wrote, at 16:
[38] In Weber, the Supreme Court of Canada ruled that an arbitrator has the exclusive jurisdiction, subject to judicial review, to determine all differences arising out of a collective agreement.
[39] However, the Court was not addressing the situation where there is concurrent jurisdiction given by the legislator to another forum, as in the present case.
[40] Subsection 41(1) of the CHRA clearly gives jurisdiction to the Human Rights Commission to deal with any complaint arising from a collective agreement, unless it decides that the grievance procedure should be exhausted.
[41] Given the plain language of the Act, it is difficult to sustain the argument that the intention of the legislator was to limit the jurisdiction of the Commission. I note that the statute contains a number of provisions limiting the jurisdiction of the Commission and that each such limitations has been worded in express terms. [My emphasis.]
[43] Noting the paramountcy of the Act, Tremblay-Lamer J. held that only a clear legislative pronouncement could oust the application of s. 41(1)(a) of the Act (para. [51] of CBC v. Paul):
The jurisprudence of the Supreme Court is consistent with respect to the paramountcy of human rights legislation over other statutes. In light of the foregoing, only a clear legislative pronouncement can oust the operation of paragraph 41(1)(a) of the CHRA. [Emphasis in original.]
[44] Recently, the Quebec Court of Appeal handed down a majority judgment in Québec v. CDLPJ. In that case, Rousseau-Houle and Baudouin J.A. came to the conclusion that only an arbitrator had jurisdiction to dispose of a dispute following negotiation and an agreement
concluded between the Centrale des Syndicats du Québec (C.S.Q.), the Fédération des syndicats de l'enseignement ("the Fédération") and the mis-en-cause, the Comité patronal des négociations pour les commissions scolaires francophones ("the Comité"). The Quebec Court of Appeal quashed a decision by the Human Rights Tribunal, noting the principle of exclusive arbitral authority over the case, which arose essentially out of the implementation of the collective agreement. However, Baudouin J.A., concurring with his colleague, seemed somewhat uncertain. He wrote the following, at para. 139:
[TRANSLATION]
However, I would add that it seems somewhat strange to me that the legislator, having taken great pains to create an independent, specialized tribunal for human rights, did not see fit to clearly confer exclusive jurisdiction upon it. The division of this jurisdiction, since in other situations the Tribunal will still have jurisdiction, can only lead to the emergence of contradictory decisions which the higher courts, exercising their powers of review, will have to resolve, and be a source of future conflicts. Moreover, the exclusive power of the grievance arbitrator over discrimination, and so breaches of the Charter, seems to me perhaps the best way of preserving and guaranteeing protection and respect for human individual rights, since in labour law problems of this kind often arise in a situation where the collective rights defended and represented by the unions are directly in conflict with individual rights, and in certain readily conceivable situations this will unavoidably create conflicts of allegiance. [My emphasis.]
[45] In a very articulate dissent, Michel Robert J.A. felt that the appeal should be dismissed as, in his view, the case did not turn on implementation or interpretation of the collective agreement but on negotiation which subsequently led to an agreement. At para. 75, he wrote:
[TRANSLATION]
Concluding in the case at bar that the gist of this matter is the interpretation or implementation of the collective agreement amounts to allowing the parties to agree on a clause governing hundreds of employees in breach of rights conferred by the Charter, which is strictly prohibited. It hardly needs repeating that Charter rights regarding discrimination are public law and that infringements of them are prohibited . . . [My emphasis.]
- [46] In Ford Motor, supra, at para. 47, the Ontario Court of Appeal unanimously held that human rights legislation is quasi-constitutional and can only be excluded by a clear pronouncement to that effect.
- [47] Later in the same case, at para. 54, Abella J.A. considered that if Parliament had intended to give the grievance arbitrators exclusive powers over human rights, it would have said so in the Act.
[48] The three judges concluded that the Ontario Human Rights Commission and the grievance arbitrator had concurrent jurisdiction in (para. 59):
The Commission now has authority under s. 34(1)(a) of the Code to decide, in its discretion, not to deal with a complaint where it is of the view that the complaint "could or should be more appropriately dealt with" under another Act. Labour arbitrators now have statutory authority under the Labour Relations Act to apply the Code. Since the Commission has statutory authority under the Code to defer to another forum, the legislative intent has clearly shifted from according exclusive jurisdiction to the Commission for Code violations to offering concurrent jurisdiction to labour arbitrators when complaints arise from disputes under a collective agreement. [My emphasis.]
[49] What should we say now about the Corporation's argument in the case at bar that the amendment to s. 60 of the Code gives the arbitrator exclusive jurisdiction in interpretation of the implementation or failure to implement a collective agreement?
- [50] Unfortunately, I cannot concur in the view of the plaintiff, as I feel that if Parliament had intended to exclude the Commission's jurisdiction it would have done so expressly and would have indicated this in its amendment to s. 60 of the Code. In the case at bar, I cannot draw this conclusion as the amendment to s. 60 of the Code makes absolutely no reference to withdrawing the jurisdiction from the Commission.
- [51] I concur in the opinion of my colleague Tremblay-Lamer J. and that of Michel Robert J.A. and the judges of the Ontario Court of Appeal that in order to overturn s. 41(1)(a) of the Act clear and unambiguous legislation is necessary.
- [52] Accordingly, I conclude that the gist of the matter is not determined by implementation or interpretation of the collective agreement, but by the negotiation which took place between the parties, namely the Corporation and the SCRC.
- [53] Consequently, for all these reasons, this application for judicial review is dismissed. As the law has not been finally settled by the courts, and in view of the two applications for leave to appeal the judgments of the Quebec and Ontario Courts of Appeal judgments to the Supreme Court, no costs will be awarded.
[54] At the same time, I cannot help noting, as Baudouin J.A. did, that I find the present situation strange. It seems to me that in order to ensure lasting industrial peace in employer and union dealings it would be in Parliament's interest to give a single authority jurisdiction to decide disputes involving employment and human rights.
ORDER
THE COURT ORDERS that:
1. This application for judicial review is dismissed, without costs.
| |
"Michel Beaudry"
Judge
|
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-1219-00
STYLE OF CAUSE: CANADIAN BROADCASTING CORPORATION
and
SYNDICAT DES COMMUNICATIONS
DE RADIO-CANADA (FCN-CSN)
and
CANADIAN HUMAN RIGHTS COMMISSION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 21 and 22, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATED: July 16, 2002
APPEARANCES:
Suzanne Thibaudeau FOR THE PLAINTIFF
Marie Pepin FOR THE DEFENDANT
Philippe Dufresne FOR THE INTERVENER
SOLICITORS OF RECORD:
Heenan, Blaikie FOR THE PLAINTIFF
Montréal, Quebec
Sauvé et Roy FOR THE DEFENDANT
Montréal, Quebec
Canadian Human Rights Commission FOR THE INTERVENER
Ottawa, Ontario
Email this Content