Date: 20110316
Docket: T-436-10
Citation: 2011 FC 314
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, March 16, 2011
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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SYNDICAT DES COMMUNICATIONS
DE RADIO-CANADA
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Applicant
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and
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ATTORNEY GENERAL OF CANADA AND THE CANADIAN
BROADCASTING CORPORATION
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision by the Canadian Human
Rights Commission dated February 22, 2010, to not deal with the portion of the
complaint on the
“assistantship” group on the grounds that
this part of the complaint is beyond its jurisdiction in accordance with
paragraph 41(1)(c) of the Canadian Human Rights Act, R.S.C., 1985,
c. H-6 (Act).
FACTS
[2]
On
April 28, 1999, the Syndicat des communications de Radio-Canada (SCRC) filed a
complaint with the Human Rights Commission alleging that predominantly female
groups are subject to systemic pay discrimination by the Canadian Broadcasting
Corporation contrary to section 11 of the Act. This discrimination has
purportedly existed since August 7, 1995, but the SCRC is seeking remedial
measures as of March 8, 1995, the date the Act was implemented at the Canadian
Broadcasting Corporation.
[3]
Several
objections and legal proceedings followed, including before this Court. The SCRC
also made several changes to the composition of the “assistantship” group during
the review of the complaint.
[4]
On
November 24, 2008, Sylvie St-Onge filed an investigation report in which she provided
a detailed analysis of the jobs in the “assistantship” category and studied the
four criteria set out in the Commission’s policy for a group of jobs to form an
occupational group. She noted the following:
1) With
respect to common characteristics, “assistantship” jobs vary significantly and
include different duties.
2) Requirements
(education, language, culture, etc.) vary from one job to another.
3) There
is no similar career path between “assistantship” job holders and the SCRC has submitted
no evidence to this end.
4) The jobs
are not grouped together for remuneration purposes: there are different wage
scales, some jobs are contractual, etc.
[5]
She
found that the evidence submitted by the parties did not seem to support the
position of the SCRC that the jobs in the “assistantship” group form an occupational
group, but that certain “assistantship” job subgroups could possibly form an occupational
group.
DECISION UNDER REVIEW
[6]
After
examining the report and the subsequent representations, the Commission decided,
pursuant to paragraph 41(1)(c) of the Act, to not deal with the portion
of the complaint on the “assistantship” group on the grounds that these jobs are
not part of an occupational group.
[7]
The
Commission specified the four criteria that need to be satisfied in order for a
group of jobs to form an occupational group. The Commission noted that there is
no indication that the SCRC did not have access to the information on analyzing
the occupational group of “assistantship” jobs. It is not the investigator’s responsibility
to improve a complaint that is deficient on its face. Without probative
evidence that the jobs in the “assistantship” group form an occupational group,
this part of the complaint was not addressed.
POSITIONS OF THE PARTIES
Position of the
applicant
[8]
The
applicant argues that the investigation report demonstrates that several pieces
of evidence exist and that certain job groupings could constitute an occupational
group.
[9]
The
applicant states that the fact that the group was improperly defined cannot interfere
with
the jurisdiction of the Commission. According
to the applicant, while it is true that the Commission is not required to improve
a complaint in the absence of essential evidence, it does have the duty of
clarifying its scope when there is sufficient evidence in the record allowing
for occupational groups to be formed, and it must ensure that such groups are
correct. The mischaracterization of a group does not render the complaint
deficient on its face. This is a question of law that must be settled by the
courts (Hodge v. Canada, [2004] 3 S.C.R. 357, and Granovsky v. Canada (Minister
of Employment and Immigration), [2000] 1 S.C.R. 703).
[10]
At
the hearing, the applicant cited several excerpts from the investigation report
to support its position that it submitted sufficient evidence to establish the
existence of occupational groups. According to the applicant, it was up to the Commission
to consider it and to form one or more groups based on this evidence before submitting
everything to the Tribunal. In this respect, the applicant cited page 10 of the
investigator’s report, which states the following:
Admittedly, according to the Guide to
Pay Equity and Job Evaluation (Chapter 1, pp. 7-8): “Occupational groups
may be defined either narrowly or broadly, but must make sense and must not be
defined so broadly that they lump together jobs that are very different.” It
seems that we have such a situation here. Incidentally, to avoid lapsing into
such a biased generalization, the Guide recommends: “Where doubt exists . . . it is
generally preferable to opt for smaller groups.”
[11]
The
applicant then referred to the letter dated June 22, 2007, in which it
maintained before the investigator that “ . . . the 1995 merger of certification
units enabled and still enables career interchangeability, mobility and change among
the various jobs and that evidence for this will be provided to the tribunal”. Similarly,
the applicant referred to the fifth paragraph of page 13 of the
report, where it is written that: “[e]xcept
for certain subgroups for these jobs (e.g., Captioners, Senior Captioners) a “similar”
career path among holders of these 15 jobs is hard to identify”. The applicant
did not submit evidence to indicate that certain evidence existed and was
acknowledged by the investigator, instead limiting itself to stating that
evidence would be provided before the Tribunal.
[12]
The
applicant also referred the Court to pages 19 and 22 of the investigator’s
report to support its submission that the Commission committed an error.
[13]
Finally,
in stating that the Commission’s decision is patently unreasonable under the
circumstances, the applicant relied heavily on the investigator’s general
finding on page 28 of her report, where she states following:
The evidence provided by the parties . .
. does not seem to show that “Assistantship” group jobs form an “occupational
group.” However, on the basis of the four criteria analyzed, it is possible that,
on this job list, certain job subgroups or even jobs taken individually may be
considered an occupational group.
[14]
The
applicant therefore argues that the Commission’s decision is unfounded and
irrational because it does not explain why the findings and conclusions of the
investigation with respect to the possibility that job subgroups could form an occupational
group were not accepted.
Position of the
respondents
[15]
First,
the respondents are requesting that paragraphs 3 to 6 of the applicant’s affidavits
be struck because they contain personal opinions.
[16]
With
respect to the issue, the respondents are stating that the collective complaint
is filed pursuant to sections 12 to 15 of the Equal Wages Guidelines, 1986,
according to which an identifiable occupational group of predominantly one sex
must be compared to another occupational group of the other sex. If the Commission
determines that the complainant group is not an occupational group, there is no
obligation in the Act or the Guidelines to seek or form another group. The
burden is on the complainant to first demonstrate the existence of a group of
predominantly one sex with duties similar to those of a group of the other sex,
and then to prove that the group is an occupational group.
[17]
The
Commission’s role is to determine whether there is sufficient evidence to
justify an inquiry by the Tribunal. The Commission need not seek another group
or evidence other than that submitted. The respondents cite Justice Martineau’s
decision in Deschênes v. Canada (Attorney General), 2009 FC
1126, [2009] F.C.J. No. 1374 (QL). They add that the Commission and the
investigators are neutral and that their role is not to improve a complaint that
is deficient on its face.
[18]
The
respondents claim that the decisions cited by the applicant, Hodge and
Granovky, are irrelevant. In these judgments, the Supreme Court of Canada ruled
on the determination of a group in the context of an analysis in accordance
with section 15 of the Charter, not in the context of an occupational group
under the Guidelines.
[19]
They
add that during the process, the applicant was able to clarify the jobs
included in the
“assistantship” group three times. The
Commission committed no error.
[20]
The
respondents also state that the applicant’s argument is based on the investigator’s
representations relating to a possibility. The applicant has submitted no justification
in support of its finding. Furthermore, the respondents argue that the
investigator did not have to propose that job groupings could form a new
occupational group.
ANALYSIS
Issue
[21]
The
issue raised by this application for judicial review is the following: Is the Commission’s
decision that it does not have the jurisdiction to hear the part of the
complaint on the “assistantship” jobs reasonable?
Standard of review
[22]
Both
the applicant and the respondents agree that the applicable standard of review
in the case at bar is that of reasonableness, pursuant to Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 62. In Deschênes, above,
which deals with a complaint dismissed under paragraph 41(1)(d) of the
Act, Justice Martineau states at paragraph 9 that “[i]t is not disputed that the
applicable standard of review in the case at bar is reasonableness”.
Affidavits
[23]
With
regard to this Court’s case law and the admission by the applicant’s counsel
during the hearing with respect to paragraphs 3, 5 and 6 of the affidavits by François Morin
and
Alex Levasseur, the Court orders paragraphs
3 to 6 of these two affidavits to be struck.
The jurisdiction of the
Commission
[24]
A
situation similar to the case before this Court was discussed in Deschênes,
above. In that case, the applicant challenged the Commission’s decision to
dismiss his application on the grounds that it was trivial and therefore not
admissible under paragraph 41(1)(d) of the Act. At paragraph 7 of the
decision, Justice Martineau discussed the Commission’s role and stated the
following:
The
Commission’s role is well known and consists essentially in assessing the
sufficiency of the evidence before referring a complaint to a human rights
tribunal. It is not the job of the Commission to determine whether 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: Bell v.
Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian
Human Rights Commission), [1996] 3 S.C.R. 854, at paragraphs 52 and 53; Syndicat
des employés de production du Québec et de L'Acadie v. Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879, at page 899 (SEPQA).
[25]
The
Commission’s jurisdiction was also analyzed by Justice Layden-Stevenson in Lusina v. Bell
Canada, 2005 FC 134, 268 F.T.R. 227, at paragraphs 26 to 29:
The role and function of the CHRC is to accept, manage and process
complaints of discriminatory practices. It is an administrative and screening
body with no appreciable adjudicative role. Its function is not to decide if a
complaint is made out but to determine if, under the provisions of the CHRA, an
inquiry is warranted having regard to all of the facts: Cooper v. Canada
(Canadian Human Rights Commission), [1996] 3 S.C.R. 854.
In arriving at its decision, the CHRC is entitled to consider the
investigator's report, such other underlying material as it, in its discretion,
considers necessary and the representations of the parties. The CHRC is then
obliged to make its own decision based on this information: Syndicat des
employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R.
879 (SEPQA).
The CHRA grants the CHRC a remarkable degree of latitude when it
is performing its screening function on receipt of an investigative report. As
a general rule, it may be said that Parliament did not want the Court, at this
stage, to intervene lightly in the decisions of the CHRC: Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.), leave to appeal dismissed, [1999] 2
S.C.R. v (Bell). Thus, the scope for
judicial review of the decisions of the CHRC is narrow: Canada Post Corp. v.
Canada (Canadian Human Rights
Commission)
(1997), 130 F.T.R. 241 (F.C.T.D.) aff'd.
(1999), 245 N.R. 397 (F.C.A.), leave to appeal dismissed, [2000] 1 S.C.R. viii
(Canada Post).
The Court's task is not to re-examine the evidence and come to its
own conclusion. The standard of review of a decision of the CHRC to dismiss a
complaint requires a very high level of deference by the Court unless there be
a breach of the principles of natural justice or other procedural unfairness or
unless the decision is not supportable on the evidence before the CHRC: Bourgeois
v. Canadian Imperial Bank of Commerce, [2000] F.C.J. No. 388 (T.D.) aff'd.,
[2000] F.C.J. No. 1655 (F.C.A.) (Bourgeois).
[26]
Paragraph
41(1)(c) of the Act states that a complaint is not admissible if “the
complaint is beyond the jurisdiction of the Commission”. In Hartjes v.
Canada (Attorney General), 2008 FC 830, 334 F.T.R. 277, Justice Snider
discusses the issue of the jurisdiction of the Commission pursuant to this
paragraph and states the following at paragraph 14:
. . . I observe that s. 41(1)(c) of the CHRA provides the
Commission with considerable discretion. Specifically, s. 41(1)(c) provides
that “the Commission shall deal with any complaint filed with it unless in
respect of that complaint it appears to the Commission that . . . the complaint
is beyond the jurisdiction of the Commission” [emphasis added]. The use of
the words “it appears to the Commission” infers the exercise of discretion.
[27]
As
indicated in the case law, the Commission has the discretionary authority to
dismiss a complaint that is beyond its jurisdiction. In this case, the
Commission dismissed the complaint on
the grounds that the “assistantship” group was
not an occupational group. The applicant contends that the Commission should
have reorganized the subgroups of the “assistantship” group to form
occupational groups and should have thus assumed jurisdiction in regard to the
complaint. The applicant’s proposal raises a serious question of interference by
the Commission.
[28]
The
issue of the neutrality of investigators was addressed in Lusina, above,
in which Justice Layden-Stevenson mentions the following at paragraph 31:
To
establish such a fair basis, the investigator must satisfy two conditions:
neutrality and thoroughness. Where the parties make submissions in response to
an investigator's report, the parties may be able to compensate for omissions
[in the investigator's report] by bringing such omissions to the attention of
the decision-maker. Judicial review is warranted only where complainants are
unable to rectify such omissions. Circumstances where further submissions
cannot compensate for an investigator's omissions include circumstances where
the omission is of such a fundamental nature that merely drawing the
decision-maker's attention to the omission cannot compensate for it: Ibid
(Slattery).
[29]
Similarly,
Justice Martineau added at paragraph 32 of Deschênes, as cited by the Commission
in its decision, that “[w]hile it is true that the complainants were not
represented by counsel, this in no way changes the fact that the investigator
must act with the utmost neutrality. It is not the role of the investigator to
try to improve a complaint that is deficient on its face.”
[30]
We
are of the opinion, as the Commission mentioned in its reasons, that it is not
the role of the Commission or the investigator to improve the applicant’s
complaint. In this case, it would have indeed been an improvement, and not a
clarification, as the applicant is arguing. In fact, the excerpts from the
investigator’s report cited by the applicant reveal only one piece of evidence
that
could demonstrate the existence of an
occupational group, that is, that of captioners, and with respect to only one
of the four criteria.
[31]
Furthermore,
the investigator’s general statement that, in the presence of very different
jobs, it is preferable to opt for smaller groups does not relieve the applicant
of the obligation to establish the existence of these occupational groups, as
the burden of proof is on it by virtue of the Act.
[32]
Hodge and Granovsky
do not apply in the case at bar given the fact that these decisions deal with
the application of section 15 of the Charter.
[33]
The
Commission rendered its decision in light of the investigator’s report and
subsequent comments submitted by the parties. The SCRC, upon receipt of the
investigator’s report, did not submit to the Commission that certain jobs in
the “assistantship” group constituted one or more occupational groups. Moreover,
it even, in some cases, chose to not submit evidence with respect to some of
the four criteria, merely stating that evidence would be provided before the Tribunal.
Under these circumstances, the Commission cannot be faulted for relying on the
investigator’s report and on the few conclusive elements therein to determine that
it could not rule on the part of the complaint dealing with the “assistantship”
group.
[34]
We
are of the opinion that the Commission’s decision is perfectly reasonable under
these circumstances. The Court cannot agree with an interpretation of the Act
that imposes an obligation on the Commission that does not belong to it.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed with costs against the applicant.
“André F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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