Judgments

[1996] 3 F.C. 789

A-744-95

Public Service Alliance of Canada (Appellant) (Applicant)

v.

Department of National Defence—The Staff of the Non-Public Funds, Canadian Forces” National Defence Headquarters and Commodore H. A. Cooper, Director General Personnel Services, D.N.D. and Lieutenant-Colonel P. M. Johnston, Director Non-Public Funds Personnel and Major T. K. Moloney, Negotiator of Collective Agreement (Respondents) (Respondents)

and

Canadian Human Rights Commission (Mis-en-cause)

Indexed as: Public Service Alliance of Canada v. Canada (Department of National Defence) (C.A.)

Court of Appeal, Hugessen, Desjardins and McDonald JJ.A.—Ottawa, May 28 and June 14, 1996.

Human rights — Appeal from dismissal of application for judicial review of CHRT decision — Employer admitting discriminatory practice contrary to CHRA, s. 11 (maintaining differences in wages between male, female employees performing work of equal value) — Agreeing to pay wage adjustments from date of coming into force of new collective agreement — CHRT holding no authority for it to order retroactive wage adjustment for period from one year prior to date of complaint to last day of prior collective agreement — Trial Judge holding CHRT erred in that finding, but not unreasonable for CHRT to reject evidence advanced to establish wage gap in period in question — Systemic discrimination reviewed — Nothing in s. 53(2) justifying view relief should be minimally afforded — Trial Judge erred in accepting requirement of certainty in evidence to establish extent of wage gap — Erred in holding purposive interpretation of human rights legislation not applicable — Erred in distinguishing between existence of discriminatory pay practice, extent of wage gap — Admission of discriminatory practice acknowledging wage gap, displacing burden of proof — Since discrimination admittedly systemic, presumption discrimination, wage gap existing for some time — Prima facie wage gap prior to date complaint filed same as after — Burden on employer to show changes — Court cannot refuse to make award simply because proof of precise amount impossible — One year prior to filing complaint reasonable time for claim for retroactive pay, subject to variation in particular circumstances.

This was an appeal from the trial judgment dismissing an application for judicial review of a decision of a Canadian Human Rights Tribunal. The union filed a complaint alleging that the respondent, Department of National Defence, was not paying certain female employees wages equal to those paid to certain male employees performing work of equal value. The respondent conceded that it had committed a discriminatory practice contrary to Canadian Human Rights Act, section 11, and that such discrimination was systemic. Section 11 provides that it is a discriminatory practice to maintain differences between male and female employees who are performing work of equal value. The respondent agreed to pay wage adjustments from June 1, 1987, the date of the coming into force of the new collective agreement. Following a hearing, the Tribunal concluded that no pay adjustment should be made for the period from February 12, 1986 (one year prior to the date the complaint was filed) to May 31, 1987 (the last day of the old collective agreement). It held that it did not have the authority to grant retroactive relief under Canadian Human Rights Act, subsection 53(2). Subsection 53(2) permits the Tribunal to order the person found to be engaging in a discriminatory practice to compensate the victim for any wages that the victim was deprived of. The Tribunal held that it was inappropriate to reach back in time to redress historic wrongs because certainty in the judicial system was essential to ascertaining and securing remedial relief. The Trial Judge accepted that the Tribunal had erred in concluding that it had no power to order a retroactive wage adjustment, but held that once a wage gap has been established for a period pursuant to section 11, it will extend to another period only if the facts, circumstances and assumptions relevant and necessary to the establishment of that gap or difference can be shown to have existed and prevailed during this other period. The Trial Judge held that it was not unreasonable for the Tribunal to have rejected the evidence put forward to establish the wage gap from February 12, 1986 to May 31, 1987. The Trial Judge also rejected any argument that the establishment of a wage gap for a later period created a presumption that a similar gap had existed in an earlier period. Finally, he rejected any notion that the issues before him were affected by the special rules of statutory construction relating to human rights matters. In his view, it was simply a question of the sufficiency of evidence coupled with the inherent difficulty of establishing a wage gap for any past period.

Held, the appeal should be allowed.

Systemic discrimination is a continuing phenomenon which has its roots deep in history and in societal attitudes. It cannot be isolated to a single action or statement. By its very nature it extends over time.

Nothing in subsection 53(2) justifies the view that an award should be “minimally afforded” or that its starting point should be restricted “to the moment the complaint was filed". A complaint of discrimination necessarily relates to practices which have predated the complaint itself. The discrimination may be continuing so that the Tribunal will also order remedies for the future. The Tribunal took such an absurdly minimalist approach to its remedial powers that it cast serious doubt on its ability to make any reasonable assessment of the lost wages.

The Trial Judge erred in accepting without discussion the Tribunal’s erroneous view that certainty was required in the evidence establishing the extent of the wage gap. A complainant before a Human Rights Tribunal must meet the ordinary civil burden of a balance of probabilities i.e. the complainant must show that his position is more likely than not. It is no defence to say that things might have been otherwise. The Tribunal erred in rejecting evidence simply because it did not exclude other possibilities unfavourable to the complainant.

The Trial Judge also erred in finding that the rules requiring purposive interpretation of human rights legislation did not apply. Both his judgment and the Tribunal’s decision relied heavily on a view of the meaning of paragraph 53(2)(c) which contradicted the text and the purpose of the Canadian Human Rights Act.

A further and even more serious error was the Trial Judge’s emphasis on the distinction between the existence of the discriminatory pay practice and the extent of the wage gap. The proscription in subsection 11(1) is defined in terms of “differences in wages between male and female employees”. An admission that an employer is guilty of a discriminatory practice under section 11 includes an acknowledgement that it was not paying equal pay for work of equal value to its male and female employees i.e. that a wage gap existed. The admission that the discriminatory practice existed prior to June 1, 1987 was wholly inconsistent with the employer’s contention that there was no wage gap prior to that date. Both in the human rights context and in the more general context of a civil claim for damages, such a concession displaces the burden of proof. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case is one which covers the allegations made and if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer. The complainant conclusively established by the employer’s own admission that pay discrimination contrary to section 11 existed prior to June 1, 1987 and that there was therefore a wage gap prior to that period. Since the discrimination was admittedly systemic, there was also a strong presumption that it, and the resultant wage gap, had existed for a considerable period of time. That presumption was enough to establish a prima facie case that the wage gap prior to June 1, 1987 was the same as it was after that date. The burden shifted to the employer to show any changes in the jobs concerned or in the wages paid that would have the effect of changing the wage gap. Furthermore, there was uncontradicted evidence of three witnesses that there was a wage gap, which was more than enough basis for a decision in the claimant’s favour. Neither the Tribunal nor the Judge gave any valid reason for rejecting it.

One of the reasons why the Tribunal refused to award damages for lost wages was the difficulty or impossibility of determining the precise extent of the gap. Once it is known that a plaintiff has suffered damage, a court cannot refuse to make an award simply because proving the precise amount is difficult or impossible.

There must be some reasonable time frame fixed around any claim for retroactive pay. As the employer is most likely to have access to the necessary information about the duties attached to each job, their values and the wages paid, it is the employer who should bear the burden of showing that such wage gap did not exist during the prior period once a wage gap has been established. That likelihood diminishes the further back in time one reaches beyond when the employer was put on notice that his pay practice may be discriminatory. Furthermore, the presumption that systemic discrimination will have produced the same effects in the past as it does in the present clearly becomes weaker the further it is extended into the past. A claim for wage discrimination going back for an unlimited period is unreasonable if it relates to any period for which the employer cannot reasonably be expected to marshal evidence relating to job duties, job values and wages. Ordinarily, one year prior to the filing of the complaint seems reasonable subject to variation according to the particular facts.

The Tribunal further erred in not assessing whether some changes in duties in a small number of jobs between February 12, 1986 and May 31, 1987 had any effect on the wage gap, and if so, the extent. The Trial Judge also erred in not correcting the error.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 11, 41(e), 53(2)(c).

CASES JUDICIALLY CONSIDERED

APPLIED:

Action Travail des Femmes v. Canadian National Railway Co., [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; P.S.A.C. v. Canada (Treasury Board), [1991] C.H.R.D. No. 4 (QL); Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241.

AUTHORS CITED

Abella, Rosalie S. Report of the Commission on Equality in Employment. Ottawa: Minister of Supply and Services, Canada, 1984.

Waddams, S. M. The Law of Damages, 2nd ed., Toronto: Canada Law Book Inc., 1995.

Weiner, Nan and Morley Gunderson. Pay Equity: Issues, Options and Experiences. Toronto: Butterworths, 1990.

APPEAL from the trial judgment dismissing an application for judicial review of a CHRT’s refusal to order a retroactive wage adjustment (Public Service Alliance of Canada v. Staff of the Non-Public Funds, Canadian Forces et al. (1995), 103 F.T.R. 81 (F.C.T.D.); affg Public Service Alliance of Canada (PSAC) v. Canada (Department of National Defence), [1994] C.H.R.D. No. 13 (QL)). Appeal allowed.

COUNSEL:

Andrew J. Raven and Judith L. Allen for appellant (applicant).

Dufferin F. Friesen, Q.C. and Lubomyr Charbursky for respondents (respondents).

William F. Pentney and Fiona W. Keith for mis-en-cause.

SOLICITORS:

Raven, Jewitt & Allen, Ottawa, for appellant (applicant).

Deputy Attorney General of Canada for respondents (respondents).

Canadian Human Rights Commission, Legal Services Branch,

The following are the reasons for judgment rendered in English by

Hugessen J.A.:

Background

This is an appeal from a judgment of the Trial Division [(1995), 103 F.T.R. 81] which dismissed an application for judicial review taken against a decision of a Canadian Human Rights Tribunal [[1994] C.H.R.C. No. 13 (QL)].

The case concerns pay equity. In a complaint filed with the Canadian Human Rights Commission on February 12, 1987, the appellant, as bargaining agent for the employees concerned, alleged that the respondent employer was not paying certain female employees wages equal to those paid to certain male employees performing work of equal value. The text of the body of the complaint is as follows:[1]

We allege that members of the predominantly female Administrative Support category employed by the Staff of the Non-Public funds at the National Defence Headquarters at Ottawa under the direction and control of the Director General Personnel Services (DGPS), who are performing work of a value equal to members of the predominantly male Operational and technical categories with the same employer have been and are being paid lower wages for that work in contravention of Sections 7 and 11 of the Canadian Human Rights Act.

The complaint was amended as to form by the Commission some months later and in the amended version it was specified that the date of the alleged discriminatory practice was “12 February, 1986 and ongoing”.[2]

The complaint was based upon an investigation conducted by Pierre Marleau, an officer of the appellant union. He evaluated the jobs of the employees on the basis of job descriptions in effect in 1986 and earlier which he had obtained on an information request to the employer. Mr. Marleau compared the job descriptions with the wage rates specified in the Collective Agreement then in force (September 1, 1985 to May 31, 1987) and concluded that there was pay discrimination between the employees in the complainant group and the employees in the other, male dominated, group.

As a result of the complaint the Commission appointed James Sadler, a senior consultant with its pay equity directorate, to conduct its own investigation. This took place early in 1988 and involved an elaborate process which included questionnaires and interviews with the employees concerned as well as with representatives of the employer, and an evaluation by a committee of experts of each of the twenty-one jobs performed by the thirty-eight employees in the complainant group.

The conclusion of Mr. Sadler’s investigation was that there was a “wage gap” as a result of systemic discrimination that existed at the time of and prior to the collection of data in 1988.

The Commission then retained Dr. Nan Weiner who is an expert in the calculation of pay equity adjustments. She was asked to assess the wage gap and recommend an appropriate pay equity adjustment. Basing herself on Mr. Sadler’s data, she confirmed the existence of the wage gap and calculated the magnitude of the necessary wage adjustments for each job.

On the basis of the work done by Mr. Sadler and Dr. Weiner, the Commission concluded that the matter warranted being referred to a Tribunal. However, before the complaint could be heard by the Tribunal, the appellant and the respondent reached an agreement which led to the signing of a consent order by the Tribunal on June 2, 1993. In accordance with this order, the section 11 complaint was resolved by the adjustment of pay rates in the complainant group in accordance with a proposal made by the respondent based on Dr. Weiner’s report. In effect, the respondent agreed to pay wage adjustments for the period commencing June 1, 1987 which was the date of the coming into force of the new Collective Agreement. The parties could not agree, however, on whether there should be a retroactive wage adjustment for the period from February 12, 1986 (one year prior to the filing of the original complaint and the date specified in the amended complaint) to May 31, 1987. Nonetheless, it is clear from the terms of the consent order as well as from those of the respondent’s bulletin C1/93 which was attached and formed part of that order that the respondent accepted that as of the date of the order, and for the period extending back to June 1, 1987, it had acted contrary to the terms of section 11 of the Canadian Human Rights Act.[3] That section reads:

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.

With regard to the period prior to June 1, 1987, the consent order specified as follows:

5. The Tribunal retains jurisdiction to deal with the issue of whether the rates of pay of the said employees are to be adjusted consistent with the proposal described in Bulletin C1/93 for all or part of the period from February 12, 1986 to May 31, 1987.[4]

Following a hearing, the Tribunal concluded that no pay adjustment should be made for any part of the period from February 12, 1986 to May 31, 1987. An application for judicial review of that decision was dismissed by a Judge of the Trial Division, hence the present appeal.

Systemic Discrimination

From the outset of the proceedings before the Tribunal, the respondent has conceded not only that it has committed a discriminatory practice within the meaning of section 11, supra, but also that such discrimination is systemic in nature. The following statement to the Tribunal by counsel for the respondent sets out the respondent’s position clearly:

Madam Chairperson and members of the Tribunal, I have asked my friend if I might address the Tribunal at this point in time because we think that we might be able to assist my friend and the Tribunal in understanding the issues.

We listened with great interest to the evidence of Mr. Sadler yesterday, which addressed the problem of systemic discrimination. My friend was devoting considerable energy to that, so we thought that we should inform my friends and the Tribunal, because it seems that my friends have not appreciated the respondent’s position in this litigation and I thought it might be helpful if I could clarify it at this point in time.

The respondent is not here to deny the problem of systemic discrimination that is a historical problem and that section 11 of the Canadian Human Rights Act was designed to redress. Mr. Sadler, if I understood correctly yesterday, said that as far as he knows there isn’t, to this point, any perfect evaluation plan. There isn’t any job evaluation plan or job classification plan that is universally recognized to be gender neutral. What is happening is that in our world and in our country an effort is being made to redress the historical systemic discrimination; gender discrimination that has developed through history. Those efforts are being made and improvements are being made in classification plans and job evaluation plans as time progresses.

But, the employer is not here to deny that if a Tribunal and expert witnesses examine a specific job evaluation plan and, indeed, the job classification plan that the employer used—had implemented for its employees—you will be able to find gender discrimination there. It will be of the systemic nature. The employer isn’t here admitting an intentional discrimination, but if you go back and examine now, with today’s knowledge and experience, the job classification plan that was prepared a number of years ago, as was the one that was being used by NPF, you will be able to find elements of it that can be attacked on the ground that they include, or encompass, a systemic discrimination.

That is not what is the issue in this litigation for this employer…. The issue in this litigation is whether there is a sound factual basis for the Tribunal to direct the payment of a specific amount of money to cover a specific period of time. That is the issue. In our submission, evidence about systemic discrimination does not assist in that, because the effect of it—what one has to address is the effect of the systemic discrimination, and Mr. Sadler’s evidence indicated that even a job evaluation or job classification plan that is very good could be poorly applied, … or one that is very poor might not be applied so poorly and it might be applied in a way that would, to some extent, redress some of the problems that are in it.

So, what is important for the Tribunal to address, in our submission, is what was the effect—what is the effect—of the plan, not the plan itself. The plan itself, does that include systemic discrimination? The answer is, yes. But, what was the effect on the employees? To what extent and at what point in time did that produce a difference in pay for male and female employees? That, in our submission, is the issue that is being addressed in this litigation, and it was for that purpose that I informed the Tribunal early in the hearing of the three elements that the employer considers must be addressed: job information, evaluation and a methodology. Those elements, in our submission, are what must be put forward to determine the difference in wages between male and female employees at a specific point in time.[5] [Emphasis added.]

Systemic discrimination, especially with regard to women, is not a new phenomenon. It has been the subject of a good deal of judicial and other learned comment. In the seminal case of Action Travail des Femmes v. Canadian National Railway Co.,[6] Dickson C.J., speaking for the Court and quoting from the Abella Report [Report of the Commission on Equality in Employment], said:

A thorough study of “systemic discrimination” in Canada is to be found in the Abella Report on equality in employment. The terms of reference of the Royal Commission instructed it “to inquire into the most efficient, effective and equitable means of promoting employment opportunities, eliminating systemic discrimination and assisting individuals to compete for employment opportunities on an equal basis”. (Order in Council P.C. 1983-1924 of 24 June 1983). Although Judge Abella chose not to offer a precise definition of systemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report:

Discrimination … means practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics ….

It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.

This is why it is important to look at the results of a system ….

In other words, systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job” (see the Abella Report, pp. 9-10).

Later in the same judgment, the Chief Justice returned to the subject and stressed the historical, attitudinal and continuing nature of systemic discrimination (at page 1143):

I have already stressed that systemic discrimination is often unintentional. It results from the application of established practices and policies that, in effect, have a negative impact upon the hiring and advancement prospects of a particular group. It is compounded by the attitudes of managers and co-workers who accept stereotyped visions of the skills and “proper role” of the affected group, visions which lead to the firmly held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false. An employment equity program, such as the one ordered by the Tribunal in the present case, is designed to break a continuing cycle of systemic discrimination.

In the specific context of pay equity litigation, the following comments by a Human Rights Tribunal in P.S.A.C. v. Canada (Treasury Board),[7] are helpful:

The concept of systemic discrimination is perhaps as hard to define as such discrimination is to identify. It is not identical in concept to indirect or adverse impact discrimination. Adverse impact discrimination involves requirements which do not, on their face, discriminate on a prohibited ground, but which affect a group identifiable on a prohibited ground in such a way as to have a discriminatory effect on that group.

While adverse impact discrimination may be quite subtle in its operation, often the effect is fairly obvious. Most people today, for example, recognize that minimum height and weight requirements discriminate against women. Similarly, it takes only a fairly rudimentary knowledge of religious diversity to realize that a hard hat requirement will adversely affect one particular religious group.

The concept of systemic discrimination, on the other hand, emphasizes the most subtle forms of discrimination, as indicated by the judgment of Dickson, C.J. in CN v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114, at 1138-9. It recognizes that long-standing social and cultural mores carry within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious. Thus, the historical experience which has tended to undervalue the work of women may be perpetuated through assumptions that certain types of work historically performed by women are inherently less valuable than certain types of work historically performed by men.

It is arguable, indeed, that the type of discrimination which pay equity is designed to counteract is always systemic. Thus, Weiner and Gunderson say:[8]

Regardless of what it is called, pay equity is designed to address a kind of systemic discrimination. Systemic discrimination is found in employment systems. It is the unintended byproduct of seemingly neutral policies and practices. However, these policies and practices may well result in an adverse or disparate impact on one group vis-à-vis another (e.g., on women versus men). This differs from interpersonal discrimination where one individual discriminates against another. Pay equity requires changes to pay systems to ensure that women’s jobs are not undervalued.

I have thought it necessary to discuss the nature of systemic discrimination at the outset of these reasons since, as will appear, it is critical to an appreciation of the issues herein. Systemic discrimination is a continuing phenomenon which has its roots deep in history and in societal attitudes. It cannot be isolated to a single action or statement. By its very nature, it extends over time. That is what happened in this case. The job classification plan referred to by the employer’s counsel which lay at the root of the pay inequity had existed since at least 1986.

The Tribunal’s decision

For reasons which are not entirely clear, the Tribunal devoted rather more than half its decision to a discussion of whether it had the authority to grant what it described as retroactive relief and to an examination of the question of the retrospective application of statutes. Both here and in the Trial Division the parties were in agreement that the Tribunal had not been invited to undertake this examination and that in doing so it had in effect embarked on a frolic of its own. The parties were also in agreement, and the Trial Judge so held, that the Tribunal was clearly wrong in its conclusion on this question.

In the second half of its decision the Tribunal purported to go on and make a separate study of the question as to whether or not there was a sufficient evidentiary basis in the record before it to justify an order for compensation for the period from February 12, 1986 to May 31, 1987. Notwithstanding the apparent separation between the first and second parts of the decision, I think the Tribunal’s cogitations upon the first and admittedly irrelevant question, namely its power to order any retroactive compensation at all, are of great interest for the way in which they colour the Tribunal’s considerations and conclusions on the second question. The following passage fairly summarizes the Tribunal’s approach and its view of the remedial provisions of the Canadian Human Rights Act:

It is clear that this Tribunal has only those powers which have been given to it by the governing legislation. Section 53(2) of the Human Rights Act contains no wording of a retrospective nature and clearly seems only to contemplate prospective Orders. However, within the philosophy of an act designed to afford Tribunals the authority to make whole a Complainant who has suffered discrimination, hardship clearly would result to Complainants who are not, at least minimally, afforded a remedy which can be backdated to the moment the complaint was filed with the Human Rights Commission.[9]

The relevant part of the statute to which the Tribunal is referring in this passage is paragraph 53(2)(c) which reads as follows:

53. …

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

…

(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; ….

As I read this provision, it is a simple and straightforward authority to order the payment to a victim of lost wages resulting from a discriminatory practice. Such an order will always be backward looking and will result from the answer to the question “what wages was this victim deprived of as a result of the discriminatory practice?” Nothing in the text justifies the view that such an award should be “minimally afforded” or that its starting point should be restricted “to the moment the complaint was filed”. A complaint of discrimination necessarily relates to practices which have predated the complaint itself; one can hardly complain of discrimination which has not yet occurred. Of course, the discrimination may be continuing so that the Tribunal will also order remedies for the future, but that fact should not blind us to the obvious need to remedy what has taken place in the past. The Tribunal here has taken such an absurdly minimalist approach to its remedial powers that it casts serious doubt on its ability to make any reasonable assessment of the lost wages.

In the second part of its decision the Tribunal commented on the difficulties of job evaluation and the consequential determination of wage gaps:

Certainly this area of study has come about out of much necessity in the face of systemic discrimination against women in the work place but caution must be exercised in the manner in which judicial or quasi-judicial bodies respond to this relatively new area. Precisely because of the subjective nature of studies conducted to determine the existence and extent of wage differences (“wage gaps”), this is an area ill-suited to litigation.[10] [Emphasis added.]

This same theme reappears in even stronger terms on the following page:

However, it is impractical and inappropriate to expect remedies to redress systemic discrimination in such a way as to reach back in time in an effort to change history. While systemic discrimination in the work force is clearly wrong, certainty in the judicial system is essential to ascertaining and securing remedial relief. If there is indeed an evidentiary basis upon which the Tribunal can grant a remedy, we do not consider ourselves bound, either by legislation or case law, to extend the remedy retroactively to any point prior to the filing of the complaint. Additionally, in order to take the remedy back to the date of the complaint, this Tribunal must be satisfied that the Complainant has established an evidentiary basis for the remedy sought. We are not so satisfied.[11] [Emphasis added.]

This view of the inappropriateness of reaching back to redress historical wrongs presumably flows from the Tribunal’s view of the reach of paragraph 53(2)(c) on which I have already commented. In my view, it flies in the face of the very foundation of the Canadian Human Rights Act: if tribunals are unable to correct and redress historical wrongs, they have little reason for existence. The emphasis on “certainty” in the quoted passage, which in the context I take to mean certainty of the evidence of the wage gap, demonstrates, as well, a misunderstanding of the evidential burden borne by a complainant which, of course, is simply the civil burden of the balance of probabilities. The Tribunal’s approach to its mandate recalls Dickson C.J.’s comment in Canadian National Railway, supra (at page 1134):

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. [Emphasis added.]

The Tribunal returned to the question of the burden of proof and the standard required a few pages later:

The Complainant and CHRC seem to suggest that there is a changing burden of proof in these proceedings. It is suggested that we accept the evidence of Mr. Marleau simply because the Respondent has not adduced any evidence to suggest that there were changes in the remaining job positions or any factors which would have impacted upon the analysis done by Mr. Marleau. The Tribunal does not accept this argument and the burden of establishing a sound evidentiary basis for the remedies sought clearly remains with the Complainant[12].

The Tribunal’s ultimate conclusion is as follows:

Since there was no information presented to this Tribunal about all relevant factors impacting on a wage analysis, prior to 1988, this Tribunal is not prepared to extend the wage adjustment back further than what has already been agreed to between the parties. It is of note that the employer has voluntarily made an adjustment of wages paid to the employees in the Complainant Group pursuant to the Consent Order retroactive to June 1, 1987, the commencement date of the applicable Collective Agreement, and a date which precedes the conclusion of Sadler’s investigation by approximately one year. For the reasons set forth herein, this Tribunal finds that there is no factual basis upon which to award the remedy sought. The Complainant’s claim is therefore dismissed.[13] [Emphasis in original.]

The Trial Division Judgment

As I have already indicated an application for judicial review taken against the Tribunal’s decision was dismissed by the Trial Division. In his reasons the Judge carefully and thoroughly reviewed the evidence before the Tribunal and the decision itself. Although, as will appear, I am in disagreement with his conclusions, the reasons are a model of completeness and clarity.

On the question of the burden of proof, which was apparently one of the principal grounds of attack before him as it was before us, the Judge had this to say:

A preliminary question as to who bore the onus on this issue was raised during oral argument before me. The applicant and the Commission both contend that because wage discrimination is systemic, and in light of the wage gap which was established by the findings of the report and which were conceded by the respondent to have existed as early as June 1, 1987, the onus fell on the respondent to demonstrate that no wage gap existed prior to June 1, 1987. The Commission’s view is that systemic discrimination can be considered to have begun on the date that the system giving rise to the discrimination took effect.

In dealing with this contention a distinction must be drawn between the existence of an ongoing practice which can give rise to a wage gap and the extent of that wage gap. In this instance, the Tribunal was not called upon to determine whether a practice contrary to s. 11 was in place prior to June 1, 1987. It was only asked to decide whether the evidence supported a monetary remedy which purported to be commensurate with a specific difference in wages in place during that period.

Arguably, in a context of systemic discrimination relating to employment, evidence of a practice contrary to s. 11 at a given point in time suggests that the practice was in place during the immediately preceding period. To that extent, it may be said that the onus fell upon the employer to demonstrate that the discriminatory practice was not in place during the preceding period. However, that is as far as the presumption goes. What is in issue in the present proceedings is the effect of a discriminatory pay practice on wages and not its existence.

Once a specified gap has been established for a given period pursuant to s. 11, as was done in this instance, it will extend to another period only if the facts, circumstances and assumptions relevant and necessary to the establishment of that gap or difference can be shown to have existed and prevailed during this other period. In the case at hand, as the applicant is claiming as a remedy the difference in wages during the prior period pursuant to s. 53(2)(c) of the Act, it was incumbent upon it to satisfy the Tribunal that this difference could be established by reference to the evidence before it.[14]

The Judge looked at the weight of the evidence advanced by the complainant and the Commission for the purposes of establishing the wage gap in the period from February 12, 1986 to May 31, 1987, and held that it was not unreasonable for the Tribunal to reject such evidence:

The testimony of Mr. Sadler served to describe a process by which the Commission is able to determine, from the collection of job information, the value of jobs under study. The entire process described by Mr. Sadler is geared to ensure the accuracy, reliability and completeness of the job data collected. The procedure by which the data is evaluated to arrive at job evaluation scores is also designed to ensure minimum bias and maximum thoroughness of review. In light of this detailed procedure, the Tribunal was justified, in my view, to accord little weight to Mr. Sadler’s evidence that the value of the jobs in question would have changed “slowly enough” to allow the 1988 evaluations to be applied back in time without any modification. The extent of changes in job value could only be ascertained with any certainty by comparing the job values arrived at by the Commission in 1988 with 1986 job values arrived at using an analogous procedure and job data of comparable reliability to that used in the 1988 study. The evidence presented by Mr. Sadler, based strictly on observations made in the course of the 1988 study, did not amount to more than an educated guess and could reasonably be rejected by the Tribunal in the absence of more cogent evidence establishing the extent of changes in the job data between 1986 and 1988.[15]

The Judge also rejected any argument that the establishment of a wage gap for a later period created a presumption that a similar gap had existed in an earlier period:

What the Tribunal was in effect asked to do by the applicant and the Commission is to presume that the extent of the wage gap identified for the future was the same for the past and to order the remedy contemplated by the consent order on that basis. It was asked to do so because the pay practice in issue was systemic in nature. The Tribunal, in my view, acted properly in holding in effect that no such presumption flowed from the evidence. Indeed, what the evidence suggests is that within an established procedure giving rise to systemic wage discrimination, the extent of the wage difference at any point in time is variable, and may only be determined with relative certainty by means of a contemporary assessment. There is nothing “systemic” about the extent or size of a wage gap at any point in time.[16]

Finally, at the end of his reasons, the Judge rejected any notion that the issues before him were affected by the special rules of statutory construction relating to human rights matters. In his view, it was simply a question of the sufficiency of evidence coupled with the inherent difficulty of establishing a wage gap for any past period. The concluding paragraphs of his reasons read as follows:

The issue raised in the present proceedings is not one of statutory construction with respect to which the purposive interpretation advocated by the Supreme Court in human rights matters could be usefully invoked. Rather, the issue goes to the sufficiency of the evidence to allow for the grant of a specific remedy and the reasonableness of the Tribunal’s finding in this regard. I do not believe that any of the considerations which militate in favour of the purposive construction of human rights legislation can justify a departure from the applicable rules of evidence to justify the issuance of a monetary award in circumstances where the basis thereof has not been established. The consent order required that the Tribunal order a payment equal to the difference in wages which the employees were deprived of, and any order purporting to compel the employer to do so would have been arbitrary in the absence of evidence establishing the extent of that difference.

Section 11 of the Act calls for an inherently difficult demonstration, particularly when coupled with a quest for a remedy in the form of compensation for lost wages pursuant to s. 53(2)(c) of the Act. It may be that having regard to the difficulty of establishing the extent of a wage difference in the absence of a contemporary study, the Tribunal should be given the power to grant monetary relief wherever a practice contrary to s. 11 is found to exist, whether or not the extent of the wage loss has been established. Presently, however, s. 53(2)(c) is framed by reference to “… any or all of the wages that the victim was deprived of …” . That in turn requires that there be before the Tribunal evidence allowing it to measure the loss resulting from the discriminatory practice or some part thereof before a compensatory award can be made. In this instance, it cannot be said that the Tribunal acted unreasonably in holding that such evidence had not been placed before it.[17]

Analysis and conclusions

In my view, and with great respect, I think the Judge erred in several respects.

In the first place, and as I have already indicated, the Tribunal’s analysis of its mandate was fundamentally flawed by its view that it had no power to order a retroactive wage adjustment. While the Judge accepted that the Tribunal was wrong in this view, he failed to see how this impacted on the remainder of the Tribunal’s analysis. In particular, the Trial Judge appears to have accepted without discussion the Tribunal’s erroneous view that certainty was required in the evidence establishing the extent of the wage gap.

The burden which a complainant before a Human Rights Tribunal must carry cannot, in my opinion, be placed any higher than the ordinary civil burden of the balance of probabilities. That is a long way from certainty and simply means that the complainant must show that his position is more likely than not. It is no valid defence for the opposite party to say that things might have been otherwise, for that will almost always be the case where the civil burden is in play. If a thing probably happened in a certain way, then by definition it might possibly have happened in a completely different way. It was error for the Tribunal to reject evidence simply because it did not exclude other possibilities unfavourable to the complainant. The Judge not only failed to identify that error but compounded it by his repeated insistence on the requirement of “certainty” in the establishment of the extent of the wage gap.

A second error by the Trial Judge, in my view, may be found in his opinion that this was not a case in which the rules requiring purposive interpretation of human rights legislation were in play. Both his judgment (particularly the concluding paragraphs quoted above) and the Tribunal’s decision turned heavily on a view of the meaning of paragraph 53(2)(c) which, in my opinion, flies in the face of not only the text, but also the purpose of the Canadian Human Rights Act.

There was further, and even more serious, error in the Judge’s emphasis on the distinction to be drawn between the existence of the discriminatory pay practice and the extent of the wage gap. A reading of subsection 11(1), supra, makes it plain that the discriminatory practice therein proscribed is itself defined in terms of “differences in wages between male and female employees”. Thus, if an employer admits, as this one clearly did, that it is guilty of a discriminatory practice under section 11, that admission includes an acknowledgement that it has not been paying equal pay for work of equal value to its male and female employees i.e. that a wage gap exists.

In the present case the employer sought to separate its admissions into two watertight compartments:

a) That there had been a discriminatory pay practice from June 1, 1987 forward and that the extent of the wage gap in that period was as identified in Mr. Sadler’s report; and

b) That a discriminatory pay practice existed prior to June 1, 1987, but that no wage gap had been shown.

Both the Judge and the Tribunal appear to have accepted this analysis without realizing that it had the effect of masking the fact that the employer’s admission, as a matter of law, had shifted the burden of proof. The admission that the discriminatory practice existed prior to June 1, 1987, is wholly inconsistent with any contention that there was no wage gap prior to that date. Both in the human rights context and in the more general context of a civil claim for damages, such a concession has the result of displacing the burden of proof.

The locus classicus of the shifting burden in human rights cases is the following statement by McIntyre J. in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al.:[18]

To begin with, experience has shown that in the resolution of disputes by the employment of the judicial process, the assignment of a burden of proof to one party or the other is an essential element. The burden need not in all cases be heavy—it will vary with particular cases—and it may not apply to one party on all issues in the case; it may shift from one to the other. But as a practical expedient it has been found necessary, in order to insure a clear result in any judicial proceeding, to have available as a “tie-breaker” the concept of the onus of proof. I agree then with the Board of Inquiry that each case will come down to a question of proof, and therefore there must be a clearly-recognized and clearly-assigned burden of proof in these cases as in all civil proceedings. To whom should it be assigned? Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer. Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence. The onus will not be a heavy one in all cases. In some cases it may be established without eivdence [sic]; for example, a requirement that all employees work on Saturday in a business which is open only on Saturdays, but once the prima facie proof of a discriminatory effect is made it will remain for the employer to show undue hardship if required to take more steps for its accommodation than he has done. [Emphasis added.]

While that statement was made with specific reference to adverse effect discrimination, it clearly applies with equal force to a case of systemic pay equity discrimination. The complainant here has made far more than a prima facie case; it has conclusively established by the employer’s own admission that pay discrimination contrary to section 11 existed prior to June 1, 1987, and that there was, therefore, a wage gap prior to that period. Since the discrimination is admittedly systemic, there is also a strong presumption that it, and the resultant wage gap, have existed for a considerable period of time. That presumption is enough to establish a prima facie case in the complainant’s favour that the wage gap prior to June 1, 1987 was the same as it was after that date. The burden shifted to the employer to show any changes in the jobs concerned or in the wages paid that would have the effect of changing the wage gap. To paraphrase the words of McIntyre J. previously quoted, it is the employer who will be in possession of any necessary information to show such changes; it is he who must bear the burden.

In fact, of course, the complainant had more in its favour than a mere presumption. Mr. Sadler’s evidence as to the extent of the wage gap prior to June 1, 1987, though described by the Trial Judge as an “educated guess”, was relevant and admissible. Dr. Weiner’s report also concluded that the adjustment methodology “can be applied beginning in 1986”.[19] Finally, Mr. Marleau’s study for the same period, though admittedly based on less reliable data, reached very similar conclusions and was before the Tribunal. This was more than just some evidence. It was uncontradicted and was the only evidence on the point. It was more than enough to serve as a basis for a decision in the claimant’s favour. Neither the Tribunal nor the Judge gave any valid reason for rejecting it.

The result is the same under the general law applicable to civil claims. In essence, what the Tribunal had to determine was a straightforward claim for damages for lost wages. As appears clearly from the quoted passages of its decision, one of the reasons it refused to award such damages, a reason endorsed by the Trial Judge, was the difficulty or impossibility of determining the precise extent of the wage gap.

Indeed, it was the respondent’s position before the Tribunal that such a determination simply could not be made. The following passage is taken from the respondent’s argument before the Tribunal:

THE CHAIRPERSON: Should there be some check list and what if there are questions that come up later that we didn’t anticipate then?

MR. FRIESEN: I guess my submission is this. I think it’s important to keep in mind that this is, as my friend Ms. Keith keeps underlining, a systemic problem. It looks at the effect of a whole system. So, when you try to reach back in time, in my submission, you are just doing something that you really cannot do.

I’m not faulting Mr. Sadler. He really acknowledges that himself and there is a passage that I would like to draw to the attention of the Tribunal on that point, if I may. It’s in—

THE CHAIRPERSON: Before I lose you, though, what you are suggesting is that it never can be done. There can never be—

MR. FRIESEN: That’s right.

THE CHAIRPERSON:—the proper questions asked to secure the right information from the past.

MR. FRIESEN: Exactly. In effect, you can’t because it goes to the reliability of the evidence. You are asking a witness to say with some precision what they were doing 12—maybe not 12 months ago. In this case, we are going back 24 months, 28 months, I think. We are going back from May of 1988 to February of 1986. So, Mr. Sadler would have had to be saying, “What were you going [sic] on a daily basis in February of 1986?[20] [Emphasis added.]

The same theme is repeated a few pages later:

THE CHAIRPERSON: No, you are not answering my question, Mr. Friesen. Answer my question. How are we ever to do it? You see, what we are being asked to do here has great significance to many, many people.

MR. FRIESEN: Yes.

THE CHAIRPERSON: I think the Tribunal agrees that there has to be some way to assess the evidence. We can’t do things simply because they appear to be fair. We have to assess the evidence that’s before us. I guess what we are asking is what kind of evidence is ever going to be satisfactory by your test? It’s never going to be.

MR. FRIESEN: In my submission, the evidence that would be satisfactory would be the evidence that’s gathered when you conduct your investigation, when you assess the effect of everything that contributes to the value of work.

THE CHAIRPERSON: And what kind of evidence is necessary in order to secure a retroactive order? In other words, you are saying you can’t go back at all.

MR FRIESEN: That’s right. In my submission, you shouldn’t go before the date of the investigation—not the date of the investigation, some reasonable time frame surrounding the investigation.

In my submission, what the employer adopted here was a time frame surrounding the investigation that was linked to the facts. One of the main facts that can affect the wage gap is the new collective agreement at which new wage rates are fixed. That was one approach, but even that, in my submission, is a broad, liberal approach to the thing. It might be perfectly proper and appropriate to say, “From the date of the investigation, we will measure the wage gap.”[21] [Emphasis added.]

In my view, it is well settled law that once it is known that a plaintiff has suffered damage, a court cannot refuse to make an award simply because the proof of the precise amount thereof is difficult or impossible. The judge must do the best he can with what he has. Waddams[22] puts the matter succinctly as follows:

The general burden of proof lies upon the plaintiff to establish the case and to prove the loss for which compensation is claimed. In many cases the loss claimed by the plaintiff depends on uncertainties; these are of two kinds: first, imperfect knowledge of facts that could theoretically be known and secondly, the uncertainty of attempting to estimate the position the plaintiff would have occupied in hypothetical circumstances, that is to say, supposing that the wrong complained of had not been done.

American law has had considerable difficulty with this second type of uncertainty. The courts have used the requirement of certainty to inhibit or set aside what they consider to be excessive jury awards, with rigorous standards laid down in many cases. The consequence is that, where recovery is thought to be justified, the courts must strive to reconcile the results desired with prior restrictive holdings.

In Anglo-Canadian law, on the other hand, perhaps because of the decline in the use of the jury, the courts have consistently held that if the plaintiff establishes that a loss has probably been suffered, the difficulty of determining the amount of it can never excuse the wrongdoer from paying damages. If the amount is difficult to estimate, the tribunal must simply do its best on the material available, though of course if the plaintiff has not adduced evidence that might have been expected to be adduced if the claim were sound, the omission will tell against the plaintiff. [Emphasis added.]

The position of the respondent in this case amounts to this. It concedes that wage discrimination existed prior to June 1, 1987, and that such discrimination was systemic. That concession necessarily implies that there was a wage gap and that the female employees were deprived of certain wages by reason of the employer’s discriminatory practice. The employer denies them any recovery, however, because it says it is impossible to establish the precise amount thereof. That is not a position which this Court should endorse. For the reasons I have given, it is wrong in law.

Before concluding these reasons, I wish to make some observations upon the selection of an appropriate cut-off date for awards for damages for lost wages in cases of this sort. In the present case the claim was specifically limited to the period commencing 12 February 1986, i.e. one year prior to the date of the filing of the complaint. There was evidence before the Tribunal that it is the Commission’s practice to limit claims in this way and there is arguably some justification for this in the wording of paragraph 41(e) of the Act:

41. Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that

…

(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.

Counsel for the appellant, however, made it quite clear that in his submission this text did not amount to a statutory limitation period and that he would reserve the right in another case to claim retroactive wage adjustments over a more extended period.

Counsel for the respondent, on the other hand, took the position that any claim must be limited to a reasonable period surrounding the investigation and establishment of the precise wage gap. He also suggested that the Tribunal had accepted this view and that the expiry of the old Collective Agreement on May 31, 1987, provided it with a rational cut-off point. I may say that I cannot find anything in the Tribunal’s decision to support counsel’s position on this point other than its simple noting of the fact that the employer had accepted to pay wage adjustments from June 1, 1987. If indeed, the replacement of the old Collective Agreement by the new one had had any impact at all upon the wage gap, one would have thought that this would be a very simple matter for counsel to demonstrate. In the absence of any such demonstration it seems to me wildly improbable that adjustments to wage scales made in the context of the general negotiation of a new collective agreement would have substantially lessened or increased the existing wage gaps. That collective agreement after all was negotiated by the very parties to this litigation and at a time after the complaint giving rise thereto had been filed.

It is not, of course, strictly necessary that we should answer the question in the present case since the extent of the retroactivity of the wage award here is limited by the claim itself. That limitation has its roots, as I have indicated, in past practice and is not, in the circumstances, unreasonable. There is, however, some merit in some of the submissions on both sides on this question and it may be helpful to express a view on them. On the one hand, while disagreeing with the selection of the date of the collective agreement as a cut-off, I think the respondent is right to suggest that there must be some reasonable time frame fixed around any claim for retroactive pay. While the provisions of the Canadian Human Rights Act are purely remedial and not punitive, it may in fact represent a considerable hardship to an employer to have to face claims for retroactive wages going back many years. One of the reasons why I have indicated that I think the burden of proof should be borne by the employer, once a wage gap has been established, to show that such wage gap did not exist during the prior period is that the employer is the person who is most likely to be able to have access to the necessary information about the duties attached to each job, their values and the wages paid. That likelihood diminishes the further back one reaches beyond the time when the employer was put on notice that his pay practice may be discriminatory. Furthermore, the presumption that systemic discrimination will have produced the same effects in the past as it does in the present clearly becomes weaker the further it is extended into the past. The appellant’s position that it should be able to sustain a claim for wage discrimination going back for an unlimited period is, in my view, unreasonable in so far as it relates to any period for which the employer could not reasonably be expected to marshal evidence relating to job duties, job values and wages. In ordinary circumstances, the present limit set by the Commission’s practice of one year prior to the filing of the complaint seems to me to strike a reasonable balance between the competing interests involved. Like any limitation period, it is, of course somewhat arbitrary and I would temper such arbitrariness by holding that it could be varied by a tribunal if the facts in any particular case indicated that a longer or a shorter period was warranted.

One final point. There was evidence before the Tribunal that some small number of the jobs in question in this case had undergone some changes in their duties during the period between February 12, 1986 and May 31, 1987. There was also evidence upon which the Tribunal could have found that such changes did not impact significantly upon the wage gap for those particular jobs. Obviously, they could have had no effect on the wage gap for the other jobs. The Tribunal here under review did not attempt to assess those changes but simply relied on their existence as an additional reason for refusing to grant any remedy at all. Here again, the Tribunal erred, as did the Judge in refusing to correct the error. It was clearly their duty to assess whether such changes had had any effect on the wage gap and if so, to determine its extent to the best of their ability.

For all the foregoing reasons, I would allow the appeal with costs; I would set aside the judgment of the Trial Division, allow the application for judicial review, quash the decision of the Tribunal and refer the matter back to a differently constituted Tribunal for reconsideration on the basis that the complainant has made out a prima facie case for wage adjustment in the period 12 February 1986 to May 31, 1987, on the same basis as the wage adjustment consented to for the period from June 1, 1987, onward and that it is for the employer to demonstrate whether and to what extent such wage adjustment should be varied.

Desjardins J.A.: I concur.

McDonald J.A.: I concur.

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