Judgments

[2002] 1 F.C. 158

T-62-99

T-63-99

2001 FCT 840

Canadian Human Rights Commission and Canadian Union of Public Employees (Airline Division) (Applicants)

v.

Canadian Airlines International Limited and Air Canada (Respondents)

Indexed as: Canada (Human Rights Commission) v. Canadian Airlines International Ltd. (T.D.)

Trial Division, Hansen J.—Ottawa, June 22, 2000 and July 27, 2001.

Human Rights — Predominantly female flight attendants alleging wage discrimination compared with male comparator groups — Airlines’ position that groups not in same “establishment” for CHRA, s. 11 purposes — Tribunal finding groups not forming single establishment — Statutory framework, Tribunal decision explained — Institutional impartiality of Tribunal — Extent to which Equal Wages Guidelines (EWG) binding Tribunal — Whether collective agreements to be considered — As to meaning of “establishment”, Tribunal referring to Hansard report of Justice Minister’s remarks when legislation introduced — Tribunal ruling not within mandate to look into systemic discrimination against women in occupationally segregated workplaces and in effect to amend CHRA, s. 11 — Phrase “notwithstanding any collective agreement” in EWG, s. 10 not precluding consideration of collective agreements — Whether EWG, s. 10 restricting “establishment” to workers subject to common personnel, wage policy — Argument that Tribunal breached natural justice principles in refusing to hear evidence as to systemic wage discrimination, occupational segregation — Evidence of gender predominance in certain occupational groups irrelevant to Tribunal’s interpretation of “establishment” — Did not err in refusing to hear evidence — Tribunal interpreted “establishment” as liberally as possible without rewriting CHRA, s. 11 — Tribunal did not overly rely on Hansard evidence.

Construction of statutes — Human Rights Tribunal’s interpretation of phrase “notwithstanding any collective agreement” in Equal Wages Guidelines, s. 10 — Whether phrase free of ambiguity — Whether Tribunal’s interpretation contravening statutory interpretation principle in Interpretation Act, s. 16 — Phrase not meaning “notwithstanding any collective agreement to the contrary” — Plain, dictionary meaning — “in spite of” — inadequate to give meaning to “notwithstanding” in present context — Regard must be had to contextual use within provision, with respect to statute to which applies — To interpret s. 10 as requiring collective agreements be ignored would lead to inconsistent application of “wages” definition in CHRA, s. 11(7) — Human rights legislation to be interpreted generously but rewriting Act not permitted.

The Canadian Union of Public Employees (Airline Division) (CUPE) filed complaints on behalf of flight attendants against Air Canada and Canadian Airlines International Ltd., alleging that they discriminated against the predominantly female flight attendant groups by paying them lower wages and by having a salary structure that requires a longer time to reach maximum salary than the two male comparator groups identified in both complaints, in violation of section 11 of the Canadian Human Rights Act (CHRA).

Both respondents defended the complaints by maintaining, in part, that the three groups named in the complaints were not in the same “establishment” for the purposes of section 11 of the CHRA.

A Tribunal was appointed in response to investigation reports issued by the Commission. The fundamental issue before the Tribunal was whether the flight attendants were in the same “establishment” as the two male comparator groups. It was not mandated to consider the issue of equal pay for work of equal value. The Tribunal concluded that the three employee groups did not form a single establishment for the purposes of section 11 of the CHRA at either of the respondent companies.

This was an application for judicial review of that decision.

Held, the application should be dismissed.

Section 11 of the CHRA provided that it was discriminatory 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. Section 10 of the Equal Wages Guidelines, 1986 (enacted pursuant to subsection 27(2) of the CHRA) (EWG) provided that for the purpose of section 11 of the CHRA, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such a policy is administered centrally.

The questions were whether the Tribunal erred in its interpretation of “establishment” in section 11 of the CHRA, and whether the Tribunal erred in concluding that it was not bound by the EWG.

The use of the word “establishment” in section 11 of the CHRA (enacted in 1977) came to be understood and defined in geographical terms, to address the fact that in Canada, people performing work of equal value could legitimately be paid differently depending on the region in which they lived. In 1986, the EWG were introduced, with section 10 thereof worded so as to ensure that comparisons across bargaining units would not be precluded. It provided that, for the purposes of section 11 of the CHRA, employees of an establishment include, notwithstanding any collective agreement, all employees of the employer subject to a common personnel and wage policy.

The Tribunal did not err in concluding that section 10 of the EWG did not preclude a consideration of collective agreements. The phrase “notwithstanding any collective agreement” should not be read to mean “notwithstanding any collective agreement to the contrary”. Having regard to the plain meaning of section 10 and, in particular, to the inconsistencies which would result from excluding any consideration of collective agreements, the Tribunal was correct in its interpretation that section 10 does not preclude a consideration of the information contained in collective agreements. However, a consideration of the collective agreements forms only part of the analysis required to determine whether employees are subject to a common personnel and wage policy. The inquiry must also include a consideration of all personnel and wage policies found outside the collective agreements.

Section 10 of the EWG restricts the definition of “establishment” to employees subject to a common personnel and wage policy. The grammatical and ordinary meaning is that “employees of an establishment” include those subject to a common personnel and wage policy. There is no ambiguity in the language of the section that would lead to the conclusion that other definitions of “establishment” were contemplated. While the Tribunal erred in its interpretation of “establishment”, since that interpretation was, in the result, a functional definition of establishment, the error was not material to the outcome of this judicial review.

The Tribunal did not breach the principles of natural justice by refusing to hear evidence relating to systemic wage discrimination and occupational segregation. The factual evidence of the gender predominance in certain occupational groups was neither necessary nor relevant to the Tribunal’s interpretation of “establishment” in section 11 of the CHRA. Nor were these facts relevant to the Tribunal’s determination of whether the flight attendants were members of the same establishment as the comparator occupational groups. Here, the Tribunal ruled it would hear the social and historical context of systemic wage discrimination within the parties’ arguments and submissions. The Tribunal afforded the applicants the opportunity to present the contextual information in their submissions. The Tribunal’s reasons specifically acknowledged the applicants’ arguments on systemic discrimination against women in occupationally segregated workplaces. The Tribunal did not reject the soundness of the arguments, in fact, the Tribunal concluded that those arguments “could well justify a legislative amendment to the CHRA which would eliminate the concept of establishment”.

The Tribunal did not fail to give effect to the purpose of the CHRA in arriving at its interpretation of “establishment”. When the Commission issued the EWG in 1986, it opted for a functional definition of establishment. To exclude any consideration of collective agreements from the analysis would render the functional definition meaningless and would effectively result in a corporate definition of establishment. All parties to the dispute agreed that Parliament did not intend a corporate definition of establishment when it enacted section 11 of the CHRA. While the human rights legislation is to be interpreted generously so as to give effect to the purpose thereof, that does not permit rewriting of the statute. Given the constraints of the legislation, the Tribunal interpreted “establishment” as broadly and as liberally as possible without rewriting section 11 of the CHRA.

The Tribunal did not rely improperly on Hansard evidence in arriving at its conclusion that collective agreements are relevant in the inquiry as to whether employee groups are in the same establishment for the purposes of section 11 of the CHRA. Applicants have overstated the Tribunal’s reliance on the Minister’s remarks. The Tribunal based its interpretation of “establishment” and the relevance of collective agreements on a number of considerations, including its interpretation of section 10 of the EWG.

The applicants’ argument, that the Tribunal erred in interpreting “establishment” so as to maintain coherence between the CHRA and the Canada Labour Code, was premised on the applicants’ overly-narrow characterization of the Tribunal’s decision that one bargaining unit or one collective agreement will always equate to one establishment. That characterization was inaccurate. The Tribunal’s interpretation of establishment was based on its interpretation of the definition of establishment found in section 10 of the EWG and its interpretation of section 11 of the CHRA.

The Tribunal did not err in law in concluding that it was not bound by the EWG. This issue was moot given the Tribunal’s finding that even if the Guidelines were totally binding on the Tribunal and did fetter its quasi-judicial decision-making powers, the same interpretation of the Guidelines would be applied by the Tribunal. The Tribunal’s conclusion regarding the binding nature of the Guidelines played no part in its interpretation of “establishment” nor in the application of its interpretation to the respondent companies.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, Part III.

Canada Labour Standards Regulations, C.R.C., c. 986, Sch. I (as am. by SOR/91-461).

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 9(2), 11, 27(2) (as am. idem, s. 20), (3) (as am. idem), 50(3)(c) (as am. idem, s. 27).

Equal Wages Guidelines, 1986, SOR/86-1082, ss. 10, 16(j).

Interpretation Act, R.S.C., 1985, c. I-21, s. 16.

Statutory Instruments Act, S.C. 1970-71-72, c. 38.

CASES JUDICIALLY CONSIDERED

applied:

Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (1999), 180 D.L.R. (4th) 95; 176 F.T.R. 161 (T.D.); Engineered Buildings Ltd. and City of Calgary, Re (1966), 57 D.L.R. (2d) 322 (Alta. S.C. (A.D.)); Mitchell (Re) (1996), 25 B.C.L.R. (3d) 249; 13 E.T.R. (2d) 136 (S.C.); Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; (1996), 133 D.L.R. (4th) 449; 18 B.C.L.R. (3d) 1; 37 Admin. L.R. (2d) 1; 194 N.R. 81.

distinguished:

Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra) (1998), 38 C.C.E.L. (2d) 161; 146 F.T.R. 106 (F.C.T.D.); affd (1999), 41 C.C.E.L. (2d) 3; 235 N.R. 195 (F.C.A.).

referred to:

Money v. Alberta (Registrar of Motor Vehicles) (1995), 170 A.R. 321; 29 Alta. L.R. (3d) 63; 12 M.V.R. (3d) 94 (Q.B.); Mattabi Mines Ltd. v. Mine Assessor (1990), 72 O.R. (2d) 88; 37 O.A.C. 314 (C.A.); Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, et al., [1982] 2 S.C.R. 888; (1982), 144 D.L.R. (3d) 673; 83 CLLC 14,023; 47 N.R. 34; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161.

AUTHORS CITED

Canada. Commission of Inquiry on Equality in Employment. Report of the Commission on Equality in Employment. Ottawa: Supply and Services Canada, 1984 (Commissioner: Rosalie Silberman Abella).

Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Minutes of Proceedings and Evidence, Issue No. 12 (18 May 1977).

Canadian Human Rights Commission. Background Notes on Proposed Guidelines: Equal Pay for Work of Equal Value. Ottawa, 1985.

Canada. Task Force on Equal Pay. Equal Pay for Work of Equal Value: Report of the Task Force. Ottawa: Canadian Human Rights Commission, 1987.

New Shorter Oxford English Dictionary on Historical Principles. Oxford: Clarendon Press, 1993.

APPLICATION for judicial review of a Human Rights Tribunal’s decision (Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [1998] C.H.R.D. No. 8 (QL)), in the context of complaints of wage discrimination, that the predominantly female flight attendant groups working for the respondents were not, respectively, in the same “establishment” as the two male comparator groups. Application dismissed.

APPEARANCES:

Douglas J. Wray for applicant, Canadian Union of Public Employees.

Andrew J. Raven and Salim Fakirani for applicant, Canadian Human Rights Commission.

Roy L. Heenan, Thomas E. F. Brady and Elizabeth Camiré for respondents Canadian Airlines International Limited and Air Canada.

SOLICITORS OF RECORD:

Caley & Wray, Toronto, for applicant, Canadian Union of Public Employees.

Raven, Allen, Cameron & Ballantyne, Ottawa, for applicant, Canadian Human Rights Commission.

Heenan Blaikie, Montréal, for respondents Canadian Airlines International Limited and Air Canada.

The following are the reasons for order rendered in English by

Hansen J.:

Introduction

[1]        This is an application for judicial review brought by the Canadian Human Rights Commission (the Commission) and the Canadian Union of Public Employees (Airline Division) (CUPE) seeking to quash a decision of the Human Rights Tribunal (the Tribunal) dated December 15, 1998 [Canadian Union of Public Employees, Airline Division) v. Canadian Airlines International Ltd., [1998] C.H.R.D. No. 8 (QL)].

Background

[2]        In November 1991, CUPE filed a complaint on behalf of flight attendants against Air Canada, alleging that Air Canada discriminated against the predominantly female flight attendant group by paying them lower wages and by having a salary structure that requires a longer time to reach maximum salary than the male comparator groups identified in the complaint in violation of section 11 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (CHRA). The two male comparator groups identified in the complaint were:

(a) the First and Second Officers (pilots) who fly Air Canada’s aeroplanes and,

(b) the workers who are members of the International Association of Machinists and Aerospace Workers (IAMAW) and who provide maintenance and other technical services in and around Air Canada’s aeroplanes and places of operation.

[3]        In July 1992, CUPE filed a similar complaint against Canadian Airlines International Limited (Canadian) on behalf of flight attendants working at Canadian.

[4]        Air Canada and Canadian (the respondents) defended the complaints by maintaining, in part, that the three groups named in the complaints are not in the same “establishment” for the purposes of section 11 of the CHRA.

[5]        The Commission commenced its investigation, but in early 1993, the respondents filed notices of motion in this Court for an order prohibiting the Commission from proceeding with its investigation. The parties resolved the matter on the basis that the issues surrounding the word “establishment” in section 11 of the CHRA would first be dealt with by the Commission, and if need be, by a Tribunal if one was appointed pursuant to the CHRA.

[6]        On August 15, 1996, a three-person Tribunal was appointed in response to investigation reports issued by the Commission (CHRC Investigation Reports X00380 and X00348). These reports recommended a Tribunal examine the interpretation and application of the word “establishment” in section 11 of the CHRA. The Tribunal’s hearings commenced in January 1997 and terminated in May 1998. The fundamental issue before the Tribunal was whether the flight attendants working for the respondents were in the same “establishment” as the two male comparator groups. The Tribunal was not mandated to consider the issue of equal pay for work of equal value with respect to the three employee groups.

[7]        The Tribunal concluded the three employee groups did not form a single establishment for the purposes of section 11 of the CHRA at either of the respondent companies.

[8]        Other than in the summary of the Tribunal decision, these reasons will refer collectively to the Commission and CUPE as the applicants.

The Statutory Framework

[9]        A statement of the purpose of the CHRA is found in section 2 [as am. by S.C. 1998, c. 9, s. 9] of the Act. It reads:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

[10]      Section 11 of the CHRA states:

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.

(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.

(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment.

(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.

(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.

(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.

(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes

(a) salaries, commissions, vacation pay, dismissal wages and bonuses;

(b) reasonable value for board, rent, housing and lodging;

(c) payments in kind;

(d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and

(e) any other advantage received directly or indirectly from the individual’s employer.

[11]      Subsection 27(2) [as am. idem, s. 20] of the CHRA provides:

27. (1) …

(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.

[12]      Subsection 27(3) [as am. idem] of the CHRA further states:

27. (1) …

(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.

[13]      The Equal Wages Guidelines, 1986, SOR/86-1082, (EWG 1986) were created pursuant to subsection 27(2) of the CHRA. Section 10 of the EWG 1986 states:

10. For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such a policy is administered centrally.

The Tribunal Decision

[14]      The following is a summary of the Tribunal’s reasons for concluding the three employee groups did not form a single establishment pursuant to section 11 of the CHRA.

(a) The Question of Institutional Impartiality of the Human Rights Tribunal.

[15]      Counsel for the respondents argued that the Tribunal is not institutionally independent if it is bound by guidelines issued by the Commission, an interested party before it. This lack of independence, the respondents argued, means that the Tribunal cannot provide a hearing before an independent tribunal in accordance with the principles of fundamental justice guaranteed by paragraph 2(e) of the Canadian Bill of Rights, R.S.C., 1985, Appendix III. The Commission responded that the EWG 1986 were developed in consultation with employers, unions, and others affected by the guidelines to safeguard against a reasonable apprehension of bias. Further, the Clerk of the Privy Council, in consultation with the Minister of Justice, examined these guidelines to ensure they were authorized by the CHRA pursuant to the Statutory Instruments Act, S.C. 1970-71-72, c. 38. The Commission also argued that as a multi-functional agency, it fulfills a number of roles, which includes investigation advocacy and regulation, but not adjudication. The adjudicative role is for the Tribunal alone to exercise.

[16]      In its lengthy analysis, the Tribunal reasoned that if the guidelines were binding, it would be a contravention of paragraph 2(e) of the Canadian Bill of Rights, and contrary to the principles of fundamental justice in section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. Further, if the guidelines were binding on the Tribunal, the guidelines would also be binding on the supervisory courts, which would undermine judicial independence and separation of powers, because courts would be bound to follow guidelines issued by an executive agency of government.

[17]      The Tribunal concluded that the EWG 1986 are binding on the Tribunal in the sense that the Tribunal is bound to consider the Guidelines, which it can choose to use in its interpretation of the CHRA. However, where there are sound legal reasons not to do so, the Tribunal cannot be forced to follow the Guidelines. Based on this analysis, the Tribunal held that the Guidelines do not fetter its quasi-judicial decision-making power and rejected the respondents’ argument with respect to the Tribunal’s institutional independence.

(b) The application of the EWG 1986 as guiding principles for the interpretation of section 11 of the CHRA and the scope of the EWG 1986.

[18]      The Tribunal commented that even as a guiding principle, section 10 of the EWG 1986 was filled with ambiguity. The Tribunal noted section 10 defines an establishment to include workplaces which have a common personnel and wage policy whether administered centrally or not. This leaves room, the Tribunal reasoned, for other definitions of establishment.

[19]      The Tribunal then questioned whether in the inquiry as to whether employees of an employer are subject to a common personnel and wage policy, the wording of section 10 precludes any consideration of collective agreements. The Tribunal noted if Parliament’s intent was to exclude consideration of collective agreements, section 10 could have been drafted using language such as “notwithstanding any collective agreement to the contrary” to reflect this intent.

[20]      The Tribunal recognized that in unionized workplaces many policies concerning wages and personnel are found in collective agreements. The remaining personnel and wage policies established under retained management rights in a unionized workplace would not usually amount to a common personnel and wage policy across bargaining units. Additionally, there could be management strategies on wage negotiations and other issues related to the collective bargaining process. The Commission and CUPE took the position that general policies established under retained management rights and any other management strategies related to the collective bargaining process would constitute a common personnel and wage policy.

(c) The application of the EWG 1986 to the respondents as argued by the Commission and CUPE.

[21]      The Commission and CUPE identified a number of the respondents’ general policies that were indicative of a common wage policy. These policies include a pension plan, employee travel passes, vacation policies, time off and leave of absence policies, general employee benefit programs relating to health, disability and dental plans. At Canadian, in particular, the corporate-wide concessions sought from each of the employee groups reflects a management strategy on wage negotiations, even though the concessions were not obtained from each of the groups.

[22]      The Commission and CUPE also cited the respondents’ harassment policies, employee assistance programs, theft policies, and absenteeism policies as evidence of common personnel policies. According to the Commission and CUPE, these types of personnel and wage policies, point to a common personnel and wage policy despite different implementations in the various collective agreements.

[23]      Although the Commission and CUPE acknowledged different implementations of these policies in the relevant collective agreements, they maintained that the distinctions relate to factors such as operational requirements and job functions of a particular group, the result of negotiations and bargaining power, historical discrimination. and the heavily regulated nature of the industry.

[24]      The Commission and CUPE also argued that a review of the collective agreements at Canadian on employee benefits regarding life insurance and health, disability and dental plans reveals that the three employee groups receive substantially the same benefits.

[25]      Finally, the common employee travel pass systems at each of the respondent companies constitutes “wages” within the meaning of subsection 11(7) of the CHRA.

(d) The Tribunal’s conclusion on the common personnel and wage policies at the respondent companies.

[26]      The Tribunal noted the Commission and CUPE chose to rely on general policies, but not on collective agreements where significant differences in wage policies exist with respect to the employee groups. Instead, the Commission and CUPE relied on employee benefits in the collective agreements to establish a common wage policy.

[27]      As well, the Tribunal commented on the selective nature of the reference to subsection 11(7) in relation to travel passes. Having regard to subsection 11(7) of the CHRA and its detailed formulation of the meaning of “wages”, the Tribunal found it would be illogical for it to ignore the details of salaries, vacation pay, and other relevant information because they are contained in a collective agreement, yet consider minor wage benefits found outside the collective agreement.

[28]      The Tribunal concluded that a consideration of the relevant collective agreements must form part of its inquiry.

(e) The Tribunal’s interpretation of “establishment”

[29]      The Tribunal then went on to give meaning to “establishment” in section 11 of the CHRA. The Tribunal began by referring to Hansard to point out that the Minister of Justice, when introducing the Bill which became the CHRA, said the word “establishment” was used “because it has been used in the Labour Code, and there is a body of case law, both under the Labour Relations Act and of the Courts, relating to the use of those words” (Minutes of Proceedings and Evidence of the Justice and Legal Affairs Committee, May 18, 1977, Issue No. 12, at page 19). The Tribunal concluded from this that Parliament did not intend a corporate definition of establishment, which would deem all employees of a corporation to be within a single establishment. Rather, the Minister’s remarks appeared to indicate the relevance of collective bargaining units or industrial establishments in interpreting section 11 of the CHRA.

[30]      The Tribunal noted that despite the Commission and CUPE’s arguments, their definition of “establishment” inevitably lead to a corporate definition. For example, the Commission and CUPE argued the Tribunal should focus on general human resource philosophy and policies, and on the “integration of functions into the core technology”, “organizational culture”, “soft contracting” and “interrelatedness”. The Commission and CUPE further asserted that whether employees are involved in the same operating line of business or core function of the employer should be the “first and foremost” criteria. In this case, that core function would be “the business of transporting passengers and cargo by air domestically and internationally”.

[31]      The Tribunal held that most, if not all corporations have an organizational culture, and a core function, and therefore a consideration of these factors lead to a corporate definition of establishment. Similarly, the criterion of “interrelatedness” of the groups, as evidenced by corporate policies being applicable to all groups, leads directly to a corporate definition. Most corporate policies formulated under reserved management rights in unionized workplaces apply across bargaining units. The Tribunal further reasoned that all corporations with unionized workplaces will have bargaining strategies co-ordinated at some level within the corporate hierarchy.

[32]      The Tribunal responded to the final argument in the following manner (at paragraphs 87-88):

Finally, CUPE argued that the work location of all three employee groups in, on or around the respondent’s various aircraft, the daily interaction and co-ordination between the Flight Attendants of both companies and the employees from the other bargaining units, the colour of the uniforms of Air Canada employees … the name tags with corporate insignia, the Air Canada “CIC Information System” which all employees had access to, the Air Canada recurrent training that Pilots and Flight Attendants took together, the numerous references and definitions in various Company manuals applicable to all three employee groups, the various joint employee committees within Canadian Airlines and Canadian Airlines company newsletters … . proved that the employees in the three groups in questions were all employed within one establishment.

… this Tribunal did not see how most companies bound by section 11 of the CHRA would also not have similar interrelatedness with all their various unionized employee groups.

[33]      The Tribunal found, therefore, that the EWG 1986 and section 11 of the CHRA do not point to a corporate definition of “establishment”. The Tribunal went on to say that to the extent the EWG 1986 propose a functional definition of “establishment” and section 11 of the CHRA maintains “establishment” as the basis for comparing work of equal value in determining whether there is wage discrimination, collective agreements are relevant to a determination of the existence of a single “establishment”.

[34]      Although the general corporate polices established under retained management rights and statutory obligations, such as human rights policies, are relevant, the search for common personnel and wage policies does not stop there.

[35]      The Tribunal concluded (at paragraph 94):

Therefore, a logical and functional definition of “establishment” in the context of section 11 of the CHRA as “guided” by the ambiguous provisions of section 10 of the E.W.G., 1986, would be that establishments can be defined as functional units where employees are covered by common wage and personnel policies, including general human resources policies, but not excluding consideration of collective agreements in unionized workplaces.

[36]      The Tribunal also stated it would have reached the same conclusion even if the EWG 1986 were binding. Finally, the Tribunal noted this interpretation preserves the coherence between the CHRA and the Canada Labour Code [R.S.C., 1985, c. L-2].

(f) Application of the Tribunal’s interpretation of “establishment” to the respondent companies.

[37]      The Tribunal noted that much of the Commission and complainant’s evidence would result in most employers covered by section 11 of the CHRA being a single establishment. However, section 11 and subsection 11(3) demonstrate Parliament’s intent that employers may have more than one establishment.

[38]      The Tribunal commented that all three groups, the pilots, flight attendants, and technical operations personnel, have had three certified bargaining units for many years, and each group has its own collective agreement. In certifying these bargaining units, the Canada Labour Relations Board had to consider whether the separate units have a common interest in a number of areas, including wages, hours, and working conditions.

[39]      The respondents argued that the bargaining units at their respective companies reflect the mutuality of interests of the employees and the very different working conditions and qualifications of the three groups. They further argued that these units also correspond to the internal divisions in the companies and in the airline industry, which are used for wage comparisons, working conditions, and employment policies.

[40]      The Tribunal accepted the respondents’ arguments stating (at paragraph 100):

This Tribunal finds that the present bargaining units at Air Canada and Canadian Airlines comprised of pilots, flight attendants and technical operations employees negotiate separate collective agreements which contain the vast majority of the wage and personnel policies applicable to each of the functional branches of the respondent companies. These collective agreements, taken together with the branch specific manuals, prevent the creation of a single establishment comprising the pilots, flight attendants and technical operations at Air Canada and Canadian Airlines. The existence of general human resource policies and common negotiating strategies at each of the respondent companies that may apply to all employees, unless superseded by the relevant collective agreement, cannot by themselves establish a single establishment comprising the pilots, the flight attendants and technical operations at each of the respondent companies.

[41]      The Commission and complainant, having failed to demonstrate any semblance of essential personnel and wage policies across bargaining units, had not satisfied the accepted burden and onus of proof.

(g) Does the Tribunal’s interpretation of “establishment” comply with general principles of interpretation of human rights laws, including section 11 of the CHRA?

[42]      The Tribunal acknowledged the broad, remedial and purposive approach required when interpretating a quasi-constitutional statute like the CHRA. However, it also noted there are limits to this approach. To accept the meaning of “establishment” in section 11 of the CHRA that the Commission and CUPE argued, the Tribunal would ultimately be rewriting section 11 by allowing a corporate definition of “establishment”. Any rewriting of section 11 is for Parliament, not for the Tribunal to carry out. The Tribunal also rejected the respondents’ interpretation of establishment, that it be given the same meaning as “industrial establishment”, as found in the regulations [Canada Labour Standards Regulations, C.R.C., c. 986, Sch. I (as am. by SOR/91-461)] passed pursuant to Part III of the Canada Labour Code [R.S.C., 1985, c. L-2].

[43]      Finally, in response to the Commission and CUPE arguments regarding systemic discrimination against women in occupationally segregated workplaces the Tribunal wrote (at paragraph 105):

… if presented in Parliament and other fora, could well justify a legislative amendment to the CHRA which would eliminate the concept of establishment. This being stated, it must equally be firmly stated that it was beyond the mandate of this Tribunal to examine systemic discrimination against women in occupationally segregated workplaces under the CHRA in general and from that examination proceed to redefine the concept of establishment under section 11 of the CHRA which would counter such systemic discrimination. This is essentially a legislative function.

[44]      Finally, the Tribunal commented that essentially CUPE had been unable, through collective bargaining, to integrate principles of equal pay for work of equal value into wage settlements with flight attendants in the collective agreement, so was now trying to put this principle into force through section 11 of the CHRA. However, the definition of establishment stands in the way. The Tribunal agreed that while redrafting section 11 of the CHRA may be desirable, that task was for Parliament.

Conclusion

[45]      The Tribunal concluded the three employee groups did not form a single establishment for the purposes of section 11 of the CHRA at either of the respondent companies.

Issues

[46]      1. Did the Tribunal err in law in its interpretation of “establishment” in section 11 of the CHRA?

(a) Did the Tribunal err in law in its interpretation of section 10 of the EWG 1986?

(i) Specifically, does the phrase “notwithstanding any collective agreement” in section 10 preclude a consideration of collective agreements?

(ii) Does section 10 of the EWG 1986 restrict the definition of establishment to employees subject to a common personnel and wage policy?

(b) Did the Tribunal breach the principles of natural justice by refusing to hear evidence relating to systemic wage discrimination and occupational segregation?

(c) Did the Tribunal fail to give effect to the purpose of the CHRA in arriving at its interpretation of establishment?

(d) Did the Tribunal place undue reliance on Hansard evidence?

(e) Did the Tribunal err in interpreting establishment so as to maintain coherence between the CHRA and the Canada Labour Code?

2. Did the Tribunal err in law in concluding that it was not bound by the EWG 1986?

Standard of Review

[47]      The standard of review of the Tribunal’s decision with respect to an issue of statutory interpretation, a question of law, is well established in the jurisprudence. As stated by Evans J. (as he then was) in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.), at paragraph 73:

The standard of review to be applied to the Tribunal’s interpretation of its enabling legislation is not open for debate in this Court. The Supreme Court of Canada has firmly established that the doctrine of curial deference does not apply to tribunals’ interpretation of human rights legislation, including the Canadian Human Rights Act, and that it is the function of the reviewing court to interpret for itself the provisions of the Act that are in dispute: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. This means that, if the reviewing court’s interpretation differs from that of the Tribunal, then the Tribunal has erred in law and its decision is liable to be set aside.

[48]      In the present case, although the Tribunal’s process included fact finding, none of its findings of fact were challenged by the applicants on the application for judicial review. Accordingly, it is not necessary to comment on the applicable standard of review regarding the Tribunal’s findings of fact.

Issue 1: Did the Tribunal err in law in its interpretation of “establishment” in section 11 of the CHRA?

[49]      Before turning to the five questions to be addressed within the scope of this issue, a brief history of the introduction and use of the word “establishment” in section 11 of the CHRA and its subsequent definition in section 10 of the EWG 1986 is useful.

[50]      The CHRA was enacted in 1977. The use of the word “establishment” in section 11 of the CHRA came to be understood and defined in geographical terms. Specifically, a geographical definition was adopted to address the fact that in Canada, people performing work of equal value could be paid differently depending on the region in which they lived. As the Commission stated in the Report of the Task Force or Equal Pay, Equal Pay for Work of Equal Value, (Ottawa: Canadian Human Rights Commission, March 1978) at page 11:

The introduction of the word “establishment” in Section 11 was deemed to be an attempt to introduce the factor of regional differences in wage levels as a legitimate reason for differences in wages between employees.

The geographical definition of establishment lasted from 1977 to 1986.

[51]      In 1984, Justice Abella released the Commission of Inquiry Report on Equality in Employment (Report of the Commission on Equality in Employment, Ottawa: Supply and Services Canada, October 1984) (Commissioner: R. S. Abella J.). In this report, Justice Abella specifically called for the elimination of “establishment” within section 11 of the CHRA.

[52]      In 1986, the EWG 1986 were introduced. Rather than maintaining a geographical definition of establishment, paragraph 16(j) was added to the Guidelines. Paragraph 16(j) states the following:

16. For the purpose of subsection 11(3) of the Act, a difference in wages between male and female employees performing work of equal value in an establishment is justified by

…

(j) regional rates of wages, where the wage scale that applies to the employees provides for different rates of wages for the same job depending on the defined geographic area of the workplace.

[53]      As mentioned above, section 10 of the EWG 1986 was also introduced at this time, attempting to give meaning to the word “establishment” in section 11 of the CHRA.

[54]      Before the final version of section 10 of the EWG 1986 was adopted, the Commission circulated its first draft of the guidelines in its paper Background Notes on Proposed Guidelines: Equal Pay for Work of Equal Value (Ottawa: Canadian Human Rights Commission, March 1985). The Commission indicated in the paper that it proposed to adopt a functional definition of establishment. The draft guidelines read as follows (at page 22):

Employees of an employer shall be considered to be in the same establishment when they are subject to a common set of personnel and compensation polices, regulations and procedures; and when these policies, regulations and procedures are developed and controlled centrally even though their administration may be delegated to smaller units of organization.

[55]      This draft was sent to those affected by the guidelines for comments. The Public Service Alliance of Canada, for example, stated the following:

While we appreciate the C.H.R.C.’s attempt to remove geographic considerations from the determination of establishment, we do have a number of concerns about the proposed guidelines in this area.

We do not feel that the dual requirement of “a common set of personnel and compensation policies, regulations and procedures” and central control of these is appropriate since the interpretation could be made that employees in different bargaining units and/or excluded employees have differing sets of such policies, regulations and procedures.

We would prefer that the recommendation of the Commission on Equality be adopted and all reference to establishment be dropped from Section 11. [Letter from Daryl Bean, National President, PSAC, to R. G. L. Fairweather, Chief Commissioner, CHRC, June 26, 1985, Ottawa.]

[56]      Despite the concern voiced by PSAC and others that “establishment” could be defined by bargaining units and collective agreements, the word “establishment” remained in section 11 of the CHRA. However, the wording of section 10 of the EWG 1986 was changed to ensure that comparisons across bargaining units would not be precluded.

Issue 1(a): Did the Tribunal err in its interpretation of section 10 of the EWG 1986?

(i) Specifically, does the phrase “notwithstanding any collective agreement” in section 10 preclude a consideration of collective agreements?

[57]      At the core of this dispute is the relevance of collective agreements for the purpose of identifying the employees of an employer subject to a common personnel and wage policy. As noted earlier, the Tribunal concluded section 10 does not preclude a consideration of collective agreements, nor does it restrict the definition of “establishment” to those employees subject to a common personnel and wage policy. For ease of reference, section 10 is repeated here:

10. For the purpose of section 11 of the Act, employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment, all employees of the employer subject to a common personnel and wage policy, whether or not such a policy is administered centrally.

[58]      The Tribunal found that section 10 was not free of ambiguity; if the drafters had intended to exclude any consideration of collective agreements, clear language, such as, “notwithstanding any collective agreement to the contrary” could have been used.

[59]      The respondents submit the Tribunal’s interpretation of “notwithstanding any collective agreement” is correct. They contend section 10 of the EWG 1986 mandates a factual inquiry into the existence of a common personnel and wage policy that includes a consideration of personnel and wage policies, both inside and outside the scope of collective agreements.

[60]      The applicants maintain that section 10 of the EWG 1986 clearly precludes any consideration of collective agreements. They submit the additional words “to the contrary” are not necessary. According to the applicants, “notwithstanding” in subsections 9(2) and 11(1) of the CHRA is intended to indicate an exception “to the contrary” with respect to an earlier provision. In their view, since the meaning of these two subsections is unambiguous, the drafters found it unnecessary and superfluous to include the words “to the contrary” in section 10 of the EWG 1986. They argue the Tribunal’s interpretation of “notwithstanding” is contrary to the principle of statutory interpretation embodied in section 16 of the Interpretation Act [R.S.C., 1985, c. I-21] which provides:

16. Where an enactment confers power to make regulations, expressions used in the regulations have the same respective meanings as in the enactment conferring the power.

[61]      I do not find this argument persuasive. While I agree that “notwithstanding” in subsections 9(2) and 11(1) indicates an exception to an earlier provision, in my view it does nothing more than create that exception. In Engineered Buildings Ltd. and City of Calgary, Re (1966), 57 D.L.R. (2d) 322, at page 325 the Alberta Supreme Court, Appellate Division held that “notwithstanding anything in this Act” means “that where the facts come within that subsection no other part of the Act applies”. Similarly, in Mitchell (Re) (1996), 25 B.C.L.R. (3d) 249, at paragraph 17 the British Columbia Supreme Court concluded that “a provision beginning with `notwithstanding X’ creates an exception to X”.

[62]      To construe “notwithstanding” as including the additional meaning of “to the contrary” would require that the word notwithstanding was being used to resolve an inconsistency or conflict between the relevant provisions. But in the provisions referred to by the applicants, no such inconsistencies or conflicts exist. Therefore, the use of “notwithstanding” in these instances signals only an exception to an earlier provision. Subsection 11(1) states it is a discriminatory practice to maintain different wages for male and female employees performing work of equal value. Subsection 11(4) simply creates an exception where certain facts exist, namely, if the difference in wages is based on a factor prescribed by the EWG 1986. Similarly, subsection 9(1) provides that it is a discriminatory practice for an employee organization to exclude, expel, or suspend an individual from membership in the organization on a prohibited ground of discrimination. Subsection 9(2) creates an exception where the individual has reached normal retirement age.

[63]      Accordingly, I reject the applicants’ submission that the phrase “notwithstanding any collective agreement” should be read to mean “notwithstanding any collective agreement to the contrary”.

[64]      The applicants also take the position that the Tribunal’s interpretation of section 10 does not give effect to the plain meaning of the word “notwithstanding”, which is “in spite of” or “without prevention by”. They argue that “notwithstanding any collective agreement”, therefore, means that the contents of collective agreements are of no relevance and should be ignored in the inquiry into the existence of common personnel and wage policies.

[65]      According to the New Shorter Oxford English Dictionary on Historial Principles, 1993 ed., “notwithstanding” means “In spite of, without regard to or prevention by”. The courts, in a number of instances, have accepted that the plain meaning of “notwithstanding” is “in spite of”. (See, for example: Money v. Alberta (Registrar of Motor Vehicles) (1995), 170 A.R. 321 (Q.B.); Mattabi Mines Ltd. v. Mine Assessor (1990), 72 O.R. (2d) 88 (C.A.); Engineered Buildings Ltd. and City of Calgary, Re (1966), 57 D.L.R. (2d) 322 (Alta. S.C. (A.D.).)

[66]      While I accept that the plain meaning of “notwithstanding” is “in spite of”, the plain meaning of the word notwithstanding on its own is insufficient to give meaning to its use here. Regard must be had to its contextual use within the provision itself and with respect to the statute to which it applies. The phrase within which the word notwithstanding appears states: “employees of an establishment include, notwithstanding any collective agreement applicable to any employees of the establishment”. The “notwithstanding” phrase within the context of section 10 as a whole, simply adds additional information about the “employees of an establishment”. The additional information provided is that, even if, the employees are subject to a collective agreement, they are still in the establishment if they are subject to a common personnel and wage policy. Accordingly, section 10 directs an inquiry into the existence of a common personnel and wage policy, however, the scope of the inquiry is not circumscribed by collective agreements. The wording of section 10 alone does not preclude any consideration of collective agreements. The inquiry contemplated by section 10 requires an analysis of all the personnel and wage policies applicable to the employees to ascertain if there are commonalities.

[67]      However, to ignore the contents of collective agreements for the purpose of identifying employees within the same establishment, which the applicants assert is the correct interpretation of section 10, would lead to inconsistent applications of the definition of wages found in subsection 11(7) of the CHRA, which reads as follows:

11. …

(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes:

(a) salaries, commissions, vacation pay, dismissal wages and bonuses;

(b) reasonable value for board, rent, housing and lodging;

(c) payments in kind;

(d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and

(e) any other advantage received directly or indirectly from the individual’s employer.

[68]      The logical consequence of the applicants’ argument would be that wage comparisons for the purpose of subsection 11(1) would include a consideration of all the elements of remuneration listed in subsection 11(7), but at the same time, the search for wage commonalities to determine which employees fall within one establishment would exclude a consideration of the elements of remuneration listed in subsection 11(7) if they were contained in collective agreements.

[69]      The following example further illustrates the inconsistency that would flow from the applicants’ position with respect to collective agreements. At the Tribunal hearing, the applicants identified a number of general policies in place at the respondent companies indicative of a common personnel and wage policy. However, they also acknowledged that some of the general policies on which they wanted to rely could be overridden by collective agreements. How can it be said that a policy is of general application, without looking inside the collective agreements to determine if that “general policy” actually does apply to the group of employees covered by that collective agreement?

[70]      Having regard to the plain meaning of section 10 and, in particular, to the inconsistencies which would result from excluding any consideration of collective agreements, the Tribunal was correct in its interpretation that section 10 does not preclude a consideration of the information contained in collective agreements. It must be emphasized, however, that a consideration of the collective agreements forms only part of the analysis required to determine whether employees are subject to a common personnel and wage policy. The inquiry must also include a consideration of all personnel and wage policies found outside the collective agreements.

(ii) Does section 10 of the EWG 1986 restrict the definition of establishment to employees subject to a common personnel and wage policy?

[71]      The question remains, however, as to whether definition of “establishment” in section 10 of the EWG 1986 is intended to be exhaustive. The Tribunal held that section 10 did not exclude other definitions of establishment saying “[t]he provisions state that the definition of an establishment includes workplaces which have a common personnel and wage policy whether administered centrally or not”.

[72]      The respondents point out that since section 10 states “employees of an establishment include” [emphasis added] and not includes the definition is restricted to those employees subject to a common personnel and wage policy. The applicants maintain, however, that being cognizant of the limitations surrounding the functional definition of establishment, the Commission must have intended to define establishment in a manner that included, but was not restricted to, employees subject to a common personnel and wage policy.

[73]      While I accept that as a result of the consultation process, the Commission was aware of the concerns regarding a functional definition of establishment, there is no evidence to indicate that the Commission intended to give “establishment” in section 10 anything other than a functional definition. Having regard to the use of the word “include” rather than “includes”, it is clear that the subject of the verb “include” is “employees”. The grammatical and ordinary meaning of the text is that “employees of an establishment” include those employees subject to a common personnel and wage policy. There is no ambiguity in the language of the section 10 that would lead to the conclusion that other definitions of establishment were contemplated.

[74]      Although, I disagree with the Tribunal’s interpretation of section 10 in this regard, since the Tribunal’s interpretation of establishment is, in the result, a functional definition of establishment, the error is not material to the outcome of this judicial review.

Issue 1(b): Did the Tribunal breach the principles of natural justice by refusing to hear evidence relating to systemic wage discrimination and occupational segregation?

[75]      During the hearing, the Tribunal ruled on the admissibility of certain evidence regarding occupational segregation and its relationship to systemic wage discrimination. When Mr. Durber, a witness for the Commission, began to testify about issues of occupational segregation, the respondents objected, arguing it was not relevant to the issue of “establishment”, but went instead to the merits of the case. The Tribunal ruled against the admission of the evidence stating:

This Tribunal was established with one primary mandate and that is to determine the meaning of “establishment” within section 11 of the Canadian Human Rights Act. The process of this Tribunal could come to a grinding halt if, in the process of determining what is the meaning of “establishment”, so called contextual issues have to be brought into the evidentiary process. There could be no end to the issues that could be brought in and we could be here for a very long time.

For that reason, this Tribunal determines that it will fulfill its mandate by accepting only evidence related to establishment and any contextual argumentation can take place in the course of legal argument. We are a specialized Tribunal. We have the ability to understand context. It is for that reason we will only accept evidence relating to the meaning of “establishment” within the terms of our mandate and our letters of appointment. [Hearing transcript, at pp. 745-746.]

[76]      The applicants submit that by refusing to hear the evidence, the Tribunal breached the principles of natural justice. They rely on the Supreme Court of Canada’s reasoning in Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, et al., [1982] 2 S.C.R. 888, at page 904, which held that “a refusal to hear admissible and relevant evidence is so clear a case of excess or refusal to exercise jurisdiction that it needs no further comment”. The applicants advanced the position that although the CHRA confers on the Tribunal a wide jurisdiction with respect to the receipt of evidence, this authority does not extend to the exclusion of relevant evidence. The applicants state that since the purpose of section 11 of the CHRA is to redress systemic wage discrimination, contextual evidence is essential to understand and interpret “establishment”. The applicants also argue the Tribunal erred in law by excluding the evidence for an improper purpose, namely, that to hear it would require an excessive amount of time.

[77]      In rebuttal, the respondents argue as follows: first, the Tribunal was correct in its ruling, since the evidence the applicants sought to have admitted was relevant only to the merits of the wage rate discrimination complaint, a matter beyond the Tribunal’s mandate. Second, the respondents posit that the Tribunal had permitted the applicants to make full argument on the factors giving rise to systemic wage discrimination, including occupational segregation, and the Tribunal had fully considered them. Third, the witness through whom the Commission sought to tender the evidence had not been qualified as an expert witness.

[78]      Before addressing these issues, it is necessary to be aware that prior to the hearing’s commencement, the Tribunal was asked to rule on a number of preliminary matters. Specifically, the respondents sought a ruling on the admissibility of expert evidence as to the intention of the legislature regarding the meaning of establishment. The respondents took the position that it should not be admissible. The Tribunal ruled as follows (at paragraph 21):

…the parties to this hearing can seek to introduce expert opinion which may extend to aspects of the ultimate issue as long as the experts have been properly qualified by the Tribunal and the Tribunal has determined that such expert opinion could be helpful, relevant, and reliable.

[79]      At the hearing, the Commission sought to have Mr. Durber, the Director of the investigations into the complaints at issue in these proceedings, qualified as an expert witness. For reasons not relevant to this discussion, the Tribunal refused to qualify Mr. Durber as an expert witness.

[80]      At the time of the objection, which resulted in the ruling now under consideration, Mr. Durber was being examined-in-chief on his report on the investigation into the complaint against Air Canada. He was referred to paragraph 8, which dealt with the reasonable grounds for the complaint and, in particular, to his statement that the potential comparators, the machinists and pilots, were groups known to be male. This statement had not been contradicted during the course of the investigation. When questioned on the source of his information regarding the gender predominance of these groups, Mr. Durber stated the first source was the complainants’ belief, but then he had taken steps to corroborate that belief. When the applicants’ counsel inquired as to what steps were taken, the respondents’ counsel objected.

[81]      The Tribunal spent a considerable amount of time clarifying the parties’ positions regarding the parameters of its mandate and the Commission’s position with respect to the relevance of the evidence it wished to lead. Commission counsel stated the evidence was being led to clarify the threshold question of the reasonable grounds for the complaint. Counsel further elaborated their position, stating:

Having made that clarification, the existence of occupational segregation in the groups in question, in the Commission’s submission, is relevant to the question of establishment. Yes, it will also be dealt with as part of the prima facie case if and when we get to that portion of these proceedings, but, nonetheless, it is relevant to the question of establishment.

It’s the Commission’s position that the question of occupational segregation generally and occupational segregation in the units in question here—the groups in question here is a very important fact in understanding the place which the term “establishment” takes in the equal pay regime set up under section 11. It’s going to be the Commission’s position and argument—and I think this is relatively clear from our particulars, which you have—establishment, it’s going to be the Commission’s argument, operates as a term in the Act to limit the scope of comparisons.

Where you have occupational segregation, how you define that term becomes very important. So, questions and evidence and information relating to occupational segregation, from the Commission’s point of view, is relevant and it is important for this Tribunal to receive that evidence.

[82]      The Tribunal sought to clarify further the applicants’ positions as to whether it was necessary to establish and deal with the concept of occupational segregation before addressing the issue of “establishment”. Commission counsel appeared to concede that the Tribunal need not make a finding of occupational segregation before turning to the issue of “establishment”. Nonetheless, is was essential that the Tribunal understand occupational segregation and its role in systemic wage discrimination. CUPE counsel adopted the Commission’s position, and the respondents maintained the position stated earlier.

[83]      The transcript shows that during the course of its submissions, the Commission shifted positions on the nature and the purpose of the evidence they wished to introduce. First, through Mr. Durber, they sought to prove the gender predominance in certain occupational groups at Air Canada. Then, they sought to tender general contextual evidence to show that historically women have suffered systemic wage discrimination as a result of occupational segregation and the undervaluation of their work.

[84]      I agree with the respondents’ submission that the factual evidence of the gender predominance in certain occupational groups was neither necessary nor relevant to the Tribunal’s interpretation of “establishment” in section 11 of the CHRA. Nor were these facts relevant to the Tribunal’s determination of whether the flight attendants were members of the same establishment as the comparator occupational groups. Section 11 of the CHRA limits the scope of comparison to those employees within the same establishment. This threshold test must be met before the issue of the gender predominance of an identifiable occupational group becomes relevant. Therefore, the Tribunal did not err in refusing to hear this evidence.

[85]      As to the general contextual evidence, the applicants argue that a Tribunal has an obligation to hear both “specific and general evidence”. They rely on the decision in Canada (Canadian Human Rights Commission) v. Canada (Department of National Health and Welfare) (re Chopra) (1998), 38 C.C.E.L. (2d) 161 (F.C.T.D.), affirmed on appeal [(1999), 41 C.C.E.L. (2d) 3 (F.C.A.)], in which the Court [at paragraph 22] held that “[t]he Tribunal erred in disallowing the applicants from adducing general evidence of a systemic problem as circumstantial evidence to infer that discrimination probably occurred in this particular case as well”.

[86]      In my view, the decision in re Chopra, supra is distinguishable on its facts. In that case, the Tribunal refused to hear statistical evidence regarding the applicant’s workplace; the evidence had been intended to show that visible minorities were not represented according to their availability at certain levels. The applicant had hoped to use the evidence to show that because the employer’s workplace practices were generally discriminatory, it was reasonable to infer that discrimination had occurred in the applicant’s case. Although the evidence was general, in that it did not relate to the applicants’ particular circumstances, it was evidence as to the existence of certain facts. In contrast, the evidence the applicants sought to introduce in the present case related to systemic discrimination generally, and to the knowledge and theories underpinning this type of discrimination.

[87]      Paragraph 50(3)(c) [as am. by S.C. 1998, c. 9, s. 27] of the CHRA provides the statutory framework for the receipt of evidence by a Tribunal. It states that in relation to a hearing or inquiry, a Tribunal may:

50. (3) …

(c) subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law;

[88]      While this provision confers on a Tribunal a broad discretion regarding the form of and the manner in which it receives evidence and releases it from the constraints of the general rules of evidence, the provision does not relieve the Tribunal of its obligations with respect to the principles of procedural fairness. In the present case, the Tribunal ruled it would hear the social and historical context of systemic wage discrimination within the parties’ arguments and submissions. The Tribunal afforded the applicants the opportunity to present the contextual information in their submissions. The Tribunal’s reasons specifically acknowledged the applicants’ arguments on systemic discrimination against women in occupationally segregated workplaces. The Tribunal did not reject the soundness of the arguments, in fact, the Tribunal concluded that those arguments “could well justify a legislative amendment to the CHRA which would eliminate the concept of establishment”.

[89]      In these circumstances, and for the reasons above, the Tribunal’s ruling did not breach the principles of natural justice. For the same reasons, I reject the applicants’ argument that the Tribunal’s refusal to hear the evidence was based on an improper motive.

Issue 1 (c): Did the Tribunal fail to give effect to the purpose of the CHRA in arriving at its interpretation of establishment?

[90]      The jurisprudence has established that human rights legislation, being quasi-constitutional in nature, must be interpreted in a broad, liberal, and purposive manner. In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at page 1134 Dickson C.J. stated:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.

[91]      Dickson C.J. went on to articulate the purpose of the CHRA, as stated in section 2 of the Act, as follows:

The purpose of the Act would appear to be patently obvious, in light of the powerful language of s. 2. In order to promote the goal of equal opportunity for each individual to achieve “the life that he or she is able and wishes to have”, the Act seeks to prevent all “discriminatory practices” based, inter alia on sex. It is the practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination.

[92]      When Parliament enacted section 11 of the CHRA, it adopted the principle of equal pay for work of equal value. Section 11 of the CHRA makes it a discriminatory practice for an employer to distinguish its wage rates between male and female employees, within the same establishment, who are performing work of equal value. As Evans J. (as he then was) stated in Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.), at page 215, the underlying purpose of section 11 is to redress “the existence of a wage gap that disadvantages women, as a result of gendered segregation in employment and the systemic undervaluation of the work typically performed by women”.

[93]      The applicants submit the Tribunal’s narrow interpretation of “establishment” fails to give effect to the purpose of the CHRA and ignores Parliament’s intent in enacting section 11. They argue Parliament could not have intended the term “establishment” to be interpreted in a manner that would deny access to section 11 of the CHRA to women who are occupationally segregated within a bargaining unit. The applicants maintain the Tribunal’s interpretation of “establishment” allows the existence of separate collective agreements or bargaining units to dictate the boundaries of an establishment, and indirectly, to determine the scope of the application of the principle of equal pay for work of equal value.

[94]      In my opinion, this argument is premised on the applicants’ assertion that the Tribunal’s interpretation of establishment means that an establishment will always equate to one bargaining unit or one collective agreement. This is an overly narrow and inaccurate characterization of the Tribunal’s decision. The Tribunal defined establishment as follows (at paragraph 94):

Therefore, a logical and functional definition of “establishment” in the context of section 11 of the CHRA as “guided” by the ambiguous provisions of section 10 of the E.W.G., 1986, would be that establishments can be defined as functional units where employees are covered by common wage and personnel policies, including general human resources policies, but not excluding consideration of collective agreements in unionized workplaces.

[95]      This definition does not equate an establishment to one collective agreement or bargaining unit. It is the functional definition of establishment found in section 10 of the EWG 1986.

[96]      The applicants’ argument is also premised on the conclusion that a consideration of collective agreements in the inquiry into the existence of a common personnel policy will always result in an establishment being limited to those employees within one bargaining unit. In my view, this is an extrapolation from a result based on the evidence in relation to the respondent companies. This will not necessarily be the result in all cases. As the respondents pointed out, in those workplaces where one union negotiates several collective agreements with one employer at the same table, there may indeed be commonalities in personnel and wage policies.

[97]      When the Commission issued the EWG 1986, it opted for a functional definition of “establishment”. To exclude any consideration of collective agreements from the analysis would render the functional definition meaningless and would effectively result in a corporate definition of establishment. All parties to this dispute agreed that Parliament did not intend a corporate definition of establishment when it enacted section 11 of the CHRA.

[98]      I appreciate that human rights legislation must be interpreted in a manner which will give effect to the purpose of the legislation. However, as La Forest J. stated in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at page 601, “[t]he words of the Act must be interpreted generously, but this does not permit rewriting the Act”.

[99]      In my opinion, given the constraints of the legislation, the Tribunal interpreted establishment as broadly and as liberally as possible without rewriting section 11 of the CHRA.

Issue 1 (d): Did the Tribunal place undue reliance on Hansard evidence?

[100]   The applicants argue the Tribunal incorrectly interpreted “establishment”, because it relied unduly on the following comment of the then Minister of Justice, made on the introduction of the Bill that later became the CHRA:

We used “establishment” because it has been used in the Labour Code, and there is a body of case law, both of the Labour Relations Act and of the Courts, relating to the use of those words. (Minutes of Proceedings and Evidence of the Justice and Legal Affairs Committee, May 18, 1977, at p. 12:19.]

[101]   The Tribunal then observed [at paragraph 74]:

This evidence of Parliamentary intent clearly militates against the corporate definition of establishment. Rather, it seems to point to the relevance of collective bargaining units or industrial establishments in determining the meaning of establishment in section 11 of the CHRA.

[102]   The applicants submit the Tribunal relied on a statement that was either incorrect or misinformed. Although the Canada Labour Code uses the word “establishment” in various places, there is no body of case law in relation to the word “establishment”. The applicants also assert that nothing in the former Minister’s statement points to the relevance of collective bargaining units or industrial establishments.

[103]   In my opinion, the applicants have overstated the Tribunal’s reliance on the Minister’s statement. The reasons evidence the fact that the Tribunal gave the comment little weight. I would even go so far as to say it gave the comment no more than passing acknowledgment, so to argue its correctness is of little assistance. In addition, the Tribunal recognized by referring to Supreme Court of Canada jurisprudence that there are limitations to the use of Hansard evidence. The Tribunal concluded [at paragraph 76] that “while little weight should be attached the statement by the Minister of Justice concerning the meaning of establishment in section 11 of the CHRA, it can not be ignored completely either”. The Tribunal construed the Minister’s statement was evidence that at the time the legislation was drafted, a corporate definition of “establishment” was clearly not contemplated, a finding that is consistent with the applicant’s submissions.

[104]   While I accept the applicants’s position that the Minister’s statement does not establish the relevance of collective bargaining units, I do not accept that the Tribunal gave any significant or inappropriate weight to the former Minister’s statement when it determined the existence of a common personnel and wage policy can and must include collective agreements negotiated in unionized workplaces. Aside from the Tribunal’s observation that it seems to point to the relevance of collective bargaining units, the reasons make no further reference to the former Minister’s statement. I note, as well, that in the same observation, the Tribunal referred to the relevance of industrial establishment, yet ultimately rejected the industrial establishment definition of “establishment”.

[105]   I cannot conclude the Tribunal relied improperly on Hansard evidence in arriving at its conclusion that collective agreements are relevant in the inquiry as to whether employee groups are in the same establishment for the purposes of section 11 of the CHRA. The Tribunal based its interpretation of establishment and the relevance of collective agreements on a number of considerations, including its interpretation of section 10 of the EWG 1986.

Issue 1 (e): Did the Tribunal err in interpreting establishment so as to maintain coherence between the CHRA and the Canada Labour Code?

[106]   The applicants submit the Tribunal’s erroneous interpretation of establishment stems from its express desire to maintain legislative coherence between the CHRA and the Canada Labour Code and its failure to recognize the paramountcy of human rights legislation. They argue that in striving to maintain this coherence, the Tribunal gave undue weight to collective agreements and bargaining units. The applicants contend Tribunal’s acceptance of the primacy of collective agreements in defining the boundaries of an establishment both ignores the definition of establishment in section 10 of the EWG 1986 and undermines the purpose of section 11 of the CHRA. The applicants argue that if Parliament had intended establishment to have the same meaning as collective agreement or bargaining unit under the Canada Labour Code, both of which are specifically defined in the Code, they would have used those terms in the legislation.

[107]   The applicants also identified a number of consequences that flow from adoption of an interpretation of establishment based on the need to maintain legislative coherence. Examples of these concerns are as follows: since section 11 of the CHRA applies to both unionized and non-unionized workplaces, the Tribunal’s interpretation of establishment would be meaningless in a non-unionized workplace where there are no collective agreements; non-unionized employees could be in a better position under section 11 of the CHRA than unionized employees, since they would not be limited to comparisons within a bargaining unit. Alternatively, in these situations where employees have individual employment contracts, each employee could constitute an establishment. Bargaining unit appropriateness under the Canada Labour Code, legislation having a purpose different from that of the CHRA, would be the predominant factor in the interpretation of establishment.

[108]   In my opinion, the applicants’ arguments and the concerns they have identified are premised on the applicants’ overly narrow characterization of the Tribunal’s decision that one bargaining unit or one collective agreement will always equate to one establishment. This characterization is inaccurate. I need not reiterate my earlier comments in this regard beyond emphasizing that the Tribunal concluded [at paragraph 90] that “employees of an establishment for the purposes of section 11 of the CHRA means employees which, on a complete analysis can be said to be subject to common personnel and wage policies, whether such policies are administered centrally” [emphasis added]. The Tribunal’s interpretation of establishment was based on its interpretation of the definition of establishment found in section 10 of the EWG 1986 and its interpretation of section 11 of the CHRA.

Issue 2: Did the Tribunal err in law in concluding that it was not bound by the EWG 1986?

[109]   As stated earlier, the Tribunal held that the EWG 1986, issued pursuant to subsections 27(2) and (3) of the CHRA, are not binding on the Tribunal, however, the Tribunal is bound to consider them.

[110]   The applicants submit the Tribunal erred in law in finding it was not bound by the EWG 1986. They argue that the Tribunal lacked jurisdiction to consider the application of the Canadian Bill of Rights to its enabling statute, and that the binding nature of the EWG 1986 does not contravene the respondents’ right to a fair hearing in accordance with the principles of fundamental justice, as guaranteed by paragraph 2(e) of the Canadian Bill of Rights. They submit that subsections 27(2) and (3) of the CHRA constitute legislative authority for the Commission to issue binding guidelines. Furthermore, they contend the CHRA could not work without the EWG 1986, because, for example, they provide for the criteria and method of assessment of work of equal value and defences to complaints of discrimination.

[111]   The respondents argue this issue is moot given the Tribunal’s finding [at paragraph 119] that “even if the Guidelines were totally binding on the Tribunal and did fetter its quasi-judicial decision-making powers, the same interpretation of the Guidelines would be applied by the Tribunal”. I agree with this submission. The Tribunal’s conclusion regarding the binding nature of the Guidelines played no part in its interpretation of establishment nor in the application of its interpretation to the respondent companies.

Conclusion

[112]   In my opinion, the Tribunal’s interpretation of “establishment” in section 11 of the CHRA is correct. I also conclude that the Tribunal committed no reviewable error in reaching its decision.

[113]   Accordingly, the application for judicial review is dismissed. The issue of cost is reserved for submissions from the parties.