Date: 19991105
Docket: T-2424-97
Ottawa, Ontario, the 5th day of November 1999
Present: The Honourable Mr. Justice Pinard
Between:
SYNDICAT DES EMPLOYÉ(ES) DE TERMINUS
VOYAGEUR COLONIAL LIMITÉE (CSN)
Applicant
- and -
LISE GOYETTE
-and-
NICOLE TOURVILLE
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
ORDER
The application for judicial review is dismissed with costs.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19991105
Docket: T-2424-97
Between:
SYNDICAT DES EMPLOYÉ(ES) DE TERMINUS
VOYAGEUR COLONIAL LIMITÉE (CSN)
Applicant
- and -
LISE GOYETTE
-and-
NICOLE TOURVILLE
-and-
CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER
PINARD J.:
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, for judicial review of an October 14, 1997 human rights tribunal decision that the applicant trade union committed an act of systemic discrimination toward a class of employees, namely, the telephone operators (the majority of whom are women), thereby depriving them of opportunities for employment or promotion within the company.
[2] The applicant trade union is an organization of employees within the meaning of the Canada Labour Code, R.S.C., 1985, c. L-2. As members of the applicant trade union, respondents Lise Goyette and Nicole Tourville complained that the applicant had discriminated against them on the basis of sex. It should be noted that a settlement was subsequently reached in respondent Nicole Tourville"s case, so respondent Lise Goyette alone is still responding to this application for judicial review.
[3] In two previous decisions relating to Lise Goyette and Nicole Tourville"s complaints, the first dated February 16, 1996, and the second dated May 21, 1997, the Tribunal exonerated the employer from any liability for systemic discrimination in this case.
[4] It is important to reproduce the conclusion of the decision at issue:
| The Tribunal finds that by accepting and executing the collective agreement signed on December 7, 1989, the Syndicat des employé(e)s de terminus de Voyageur Colonial Limitée (CSN) committed an act of systemic discrimination towards a class of employees, namely, the telephone operators (the majority of whom are women), thereby depriving them of opportunities for employment or promotion within the company. |
| Although the Union"s way of operating meets the needs of workers in general, the present Tribunal cannot support the position that the Syndicat des employé(e)s de terminus de Voyageur Colonial Limitée (CSN) negotiated conditions of work applicable to all employees when it created a parallel system which adversely affected a class of employees who are members of said Union, namely, the telephone operators (the majority of whom are women), thereby depriving them of the same opportunities for promotion within the company as are available to other employees. |
| The Tribunal, dealing exclusively with the issue of equal opportunity to a life free of discrimination practices based on prohibited grounds as listed in section 2 of the CHRA: |
| . . . the principle that any individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered or prevented from doing so by discriminatory practices based on . . . |
| and seeking to ensure that such protection is provided equally to all persons, and taking into account the fact that the new collective agreement signed by the parties on June 6, 1996 eliminated the two seniority regimes, that is, the straight and departmental seniority tracks, orders as follows as regards the case of Mrs. Lise Goyette, a declaration of settlement having been filed in the case of Mrs. Nicole Tourville. |
| On the basis of the reasons stated above in our conclusion, the Tribunal is of the opinion that the following compensation is appropriate in this case and orders the Syndicat des employé(e)s de terminus Voyageur Colonial Limitée (CSN) to pay to the Complainant the following amounts within 30 days of the date of the present decision: |
| 1. Hurt feelings: Pursuant to section 53(3)(b) of the CHRA, the Tribunal finds that the Complainant is entitled to compensation in the amount of $5,000 for hurt feelings sustained as a result of the discriminatory practice. |
| 2. Loss of salary and benefits: Pursuant to section 53(2)(c) the Tribunal orders the Respondent to reimburse the Complainant for the salary and benefits she lost from December 7, 1989 to June 6, 1996. |
| 3. Additional costs: Pursuant to section 53(2)(d) of the C.H.R.A. and because the Complainant represented herself, the Respondent is ordered to pay the sum of $3,000 for expenses incurred in filing the complaint as a result of the discriminatory practice. |
| 4. Interest: The Complainant is entitled to simple interest on the amounts awarded pursuant to paragraphs 2 and 3 above, at the prime rate of the Bank of Canada in effect on the date of filing of the complaint and up to the date of the present decision. |
| Should a problem arise in making the requisite calculations and should the parties fail to agree regarding the approach for determining these amounts, the Tribunal may meet at the request of either party to hear the evidence and resolve the conflict. |
[5] The relevant provisions of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the Act), are as follows:
| 7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination
(a) to exclude an individual from full membership in the organization;
(b) to expel or suspend a member of the organization; or
(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or limit employment opportunities or otherwise adversely affect the status of the individual, where the individual is a member of the organization or where any of the obligations of the organization pursuant to a collective agreement relate to the individual.
(2) Notwithstanding subsection (1), it is not a discriminatory practice for an employee organization to exclude, expel or suspend an individual from membership in the organization because that individual has reached the normal age of retirement for individuals working in positions similar to the position of that individual.
(3) For the purposes of this section and sections 10 and 60, "employee organization" includes a trade union or other organization of employees or local thereof, the purposes of which include the negotiation, on behalf of employees, of the terms and conditions of employment with employers.
10. It is a discriminatory practice for an employer, employee organization or organization of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
53. (2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:
(a) that the person cease the discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including
| (i) adoption of a special program, plan or arrangement referred to in subsection 16(1), or |
| (ii) the making of an application for approval and the implementing of a plan pursuant to section 17, |
in consultation with the Commission on the general purposes of those measures;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and
(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.
|
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| 7. Constitue un acte discriminatoire, s"il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
a) de refuser d"employer ou de continuer d"employer un individu;
b) de le défavoriser en cours d"emploi.
9. (1) Constitue un acte discriminatoire, s"il est fondé sur un motif de distinction illicite, le fait, pour une organisation syndicale :
a) d"empêcher l"adhésion plein et entière d"un individu;
b) d"expulser ou de suspendre un adhérent;
c) d"établir, à l"endroit d"un adhérent ou d"un individu à l"égard de qui elle a des obligations aux termes d"une convention collective, que celui-ci fasse ou non partie de l"organisation, des restrictions, des différences ou des catégories ou de prendre toutes autres mesures susceptibles soit de le priver de ses chances d"emploi ou d"avancement, soit de limiter ses chances d"emploi ou d"avancement, ou, d"une façon générale, de nuire à sa situation.
(2) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) le fait pour une organisation syndicale d"empêcher une adhésion ou d"expulser ou de suspendre un adhérent en appliquant la règle de l"âge normal de la retraite en vigueur pour le genre de poste occupé par l"individu concerné.
(3) Pour l"application du présent article et des articles 10 et 60, "organisation syndicale" s"entend des syndicats ou autres groupements d"employés, y compris leurs sections locales, chargés notamment de négocier avec l"employeur les conditions de travail de leurs adhérents.
10. Constitue un acte discriminatoire, s"il est fondé sur un motif de distinction illicite et s"il est susceptible d"annihiler les chances d"emploi ou d"avancement d"un individu ou d"une catégorie d"individus, le fait, pour l"employeur, l"association patronale ou l"organisation syndicale :
a) de fixer ou d"appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l"engagement, les promotions, la formation, l"apprentissage, les mutations ou tout autre aspect d"un emploi présent ou éventuel.
53. (2) À l"issue de l"instruction, le tribunal qui juge la plainte fondée peut, sous réserve du paragraphe (4) et de l"article 54, ordonner, selon les circonstances, à la personne trouvée coupable d"un acte discriminatoire :
a) de mettre fin à l"acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
| (i) d"adopter un programme, plan ou arrangement visé au paragraphe 16(1), |
| (ii) de présenter une demande d"approbation et de mettre en oeuvre un programme prévus à l"article 17; |
b) d"accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l"acte l"a privée;
c) d"indemniser la victime de la totalité, ou de la fraction qu"il juge indiquée, des pertes de salaire et des dépenses entraînées par l"acte;
d) d"indemniser la victime de la totalité, ou de la fraction qu"il juge indiquée, des frais supplémentaires occasionnés par le recours à d"autres biens, services, installations ou moyens d"hébergement, et des dépenses entraînées par l"acte;
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[6] Insofar as the Tribunal"s assessment of the facts is concerned, I am of the view that there was no significant error warranting this Court"s intervention. It is not for this Court to substitute its own assessment of the facts for such a tribunal"s where, as here, the applicant trade union has failed to establish that the Tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d ) of the Federal Court Act). In my view, in addition to the testimony of the respondents (Lise Goyette and Nicole Tourville) and two representatives of the applicant trade union, there was considerable evidence in this case to justify the Tribunal"s conclusion, including the collective agreements signed in 1980 and 1989, Exhibit I-2 (the straight seniority list as of March 28, 1991), Exhibit I-3 (the list of ticket agents as of March 28, 1991) and Exhibits P-9 and P-16 (including the list of ticket agents in 1993).
[7] As for the law, in my opinion there is no basis for the applicant"s argument that a trade union can neither be held exclusively liable, without the employer, for systemic discrimination toward a class of employees, nor alone be under a duty to accommodate. I see no support for this position in the Supreme Court of Canada decision in Central Okanagan School District No. 23 v. Renaud , [1992] 2 S.C.R. 970, to which the applicant referred. On the contrary, the following passage from that decision, at page 989, appears to suggest that a trade union which causes a discriminatory effect can incur liability:
| . . . Moreover, any person who discriminates is subject to the sanctions which the Act provides. By definition (s. 1) [of the British Columbia Human Rights Act, S.B.C., 1984, c. 22] a union is a person. Accordingly, a union which causes or contributes to the discriminatory effect incurs liability. In order to avoid imposing absolute liability, a union must have the same right as an employer to justify the discrimination. In order to do so it must discharge its duty to accommodate. |
[8] Moreover, the applicant was unable to cite any other decision or author in support of its argument.
[9] Thus, given that the Act itself contains no provision barring a trade union"s exclusive liability in such a matter, I am of the view that under exceptional circumstances such as the circumstances of this case, a trade union can be held solely liable for systemic discrimination.
[10] With respect to the compensation awarded, the applicant challenged the Tribunal"s right to order it to reimburse respondent Lise Goyette for the salary and benefits she lost, which in its view could be required of only an employer. Again, neither the Act, decisions nor authors support that argument. Suffice it to refer to the text itself of subsection 53(2) of the Act, which in clear terms explicitly requires that "the person found to be engaging or to have engaged in the discriminatory practice . . . compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice". In this case, because it was found to be engaging or to have engaged in a discriminatory practice, the applicant trade union could be required to reimburse respondent Lise Goyette for the salary and benefits lost from December 7, 1989 to June 6, 1996.
[11] Last, the opinions expressed during the hearing before the Tribunal on the law and liability with respect to compensation did not preclude the proper application of the Act, including subsection 53(2) thereof, in the Tribunal"s final decision. Respondent Lise Goyette"s comment that employers are normally liable for reimbursing wages, and Tribunal member Marie-Claude Landry"s remark that the Tribunal lacked jurisdiction to order reimbursement of respondent Lise Goyette"s costs related to the prosecution of her complaint, did not impair procedural fairness, as the applicant failed to establish that the stating of those opinions was materially prejudicial to it.
[12] For all these reasons, as the applicant failed to establish that the Tribunal made an error subject to judicial review by this Court, the application is dismissed with costs.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 5, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2424-97
STYLE OF CAUSE: Syndicat des employés de terminus Voyageur
Colonial Ltée v. Lise Goyette et al.
PLACE OF HEARING: Montréal
DATE OF HEARING: October 5, 1999
REASONS FOR ORDER OF: The Honourable Pinard J.
DATED: November 5, 1999
APPEARANCES:
Marie Pépin FOR THE APPLICANT
Lise Goyette FOR RESPONDENT LISE GOYETTE
on her own behalf
No appearance FOR RESPONDENT NICOLE TOURVILLE
| No appearance FOR RESPONDENT CANADIAN HUMAN RIGHTS COMMISSION |
SOLICITORS OF RECORD:
Sauvé & Roy FOR THE APPLICANT
Montréal, Quebec
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