[1998] 3 F.C. D-26
Bell Canada v. Communications, Energy and Paperworkers Union of Canada
T-1414-96
Muldoon J.
17/3/98
34 pp.
Application for certiorari quashing CHRC decision to appoint Tribunal to inquire into pay equity complaints against applicant, order prohibiting any further proceedings by CHRC in respect thereof, declaration CHRC had no reasonable grounds for appointment of Tribunal for complaint, or declaration applicant should not have to defend itself before Tribunal in respect thereof—Issue correct interpretation of Canadian Human Rights Act, s. 11: discriminatory practice for employer to establish and maintain differences in wages between male and female employees employed in same establishment and performing work of equal value—Proof of complaint requiring comparison be effected to establish equal value of complainant's work, and work of another employee of other gender, paid more for performing such work, in same establishment—Job-to-job comparison prescribed manner of showing existence of discriminatory practice—Application allowed—CHRC went off rails in its dissatisfaction with present Act, especially s. 11, seeming minded to force amendment, if not de jure, then (in usurpation of legislative role) de facto—After many pay equity complaints to attack wage rates negotiated in collective bargaining dismissed, two unions (CTEA and CEP) and Bell reached agreement on conducting joint study of methods of remuneration set out in collective agreements negotiated by parties covering bargaining units represented by two unions—Study line-to-line type, depicting wage trends, not job-to-job—CHRC became involved in study, on condition it treat information obtained thereby as privileged and confidential—However, CHRC later used information to establish "systemic complaints" against Bell—CHRC even solicited other complaints and advised unions to file new complaints concerning unspecified allegedly male-dominated jobs—Also, complaints amended at CHRC's suggestion, replacing comparator jobs by "male dominated jobs of equal value as demonstrated by Joint Pay Equity Study"—CHRC also engaged in strenuous efforts to induce complainants to radically recast complaints as "systemic" ones naming "all male dominated" jobs instead of comparators—CHRC decided to refer equal pay complaints against Bell to Tribunal—CHRC erred in law in not rejecting complaints filed by CEP, CTEA and Femmes Action attacking very wages they themselves had negotiated in collective bargaining with Bell; in not rejecting complaints despite fact all untimely and no reasonable ground to disregard time bar; in not rejecting complaints despite entire absence of evidence capable of giving rise to inference Bell has paid wages discriminating on basis of sex, contrary to Act, s. 11; in not rejecting complaints despite fact referring to employees of Bell in different establishments subject to different wage and employment policies; in not rejecting complaints despite lack of particulars necessary for Bell to properly defend itself; in not rejecting complaint by CEP despite previous nodiscrimination findings by CHRC in 1984, 1985 and 1987 and absence of evidence of change in relationship between male and female dominated jobs among Bell employees represented by CEP—CHRC's new approach to wage discrimination complaints, using concept of male-preponderant jobs and female-preponderant jobs instead of specific comparators, contrary to Act—How could there now be valid complaints by female employees whose complaints all dismissed in early 1980s, when collective bargaining has since given them greater pay increases than male employees who were comparators when complaints dismissed in 1980s?—Bell abused by CHRC and taken advantage of—Basis of comparison of "generic jobs" not in accordance with Act or guidelines, and inflicting such conditions on Bell in matter before CHRC unlawful and unfair—Even seems unions who agree to women's disparately small wages in collective agreements with applicant could be guilty of discriminatory practice—With respect to time-barred complaints, without any demonstration by CHRC it considered time extension appropriate in circumstances, complaints cannot be adjudicated as extended: such extension beyond one year statute barred—So, CHRC has received and approved of improperly formulated complaints against Bell in defiance of Act, s. 11, and CHRC has acted unfairly to Bell by causing Tribunal to be appointed for purpose of adjudicating such time-barred, improper complaints—Decision quashed—Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 11.