A-1035-84
Canadian National Railway Company (Applicant)
v.
Canadian Human Rights Commission, Denis
Lemieux, Nicole Duval-Hesler and Joan Wallace,
in their capacity as members of the Human Rights
Tribunal and Action Travail des Femmes
(Respondents)
Court of Appeal, Pratte, Hugessen and Mac-
Guigan JJ.—Montreal, May 27, 28, 29 and 30;
Ottawa, July 16, 1985.
Human Rights — Affirmative action program — Applica
tion to set aside decision of Human Rights Tribunal imposing
specific program of affirmative action on employer — Tribu
nal's order setting goal of 13% women in targeted job posi
tions and quota of one female hiring in four until goal reached
— Tribunal lacking jurisdiction to make order under s.
41(2)(a) — S. 41(2)(a) permitting Tribunal to order taking of
measures aimed at preventing future occurrence of discrimina
tory practice — S. 41(2)(a) specifying measures ordered may
include adoption of affirmative action programs under s. 15(1)
— S. 15(1) not limited to prevention of future evil, but
protecting voluntary programs — Exercise of power under s.
41 requiring compliance with purposive requirements of s. 41,
i.e., to prevent future acts of discrimination — Order
expressed in remedial terms and cannot stand — Publicity
campaign ordered by Commission justifiable as preventive,
and severable from rest of order — S. 41(2)(a) requirement of
consultation with Commission on general purposes referring to
consultation after Tribunal decreeing measures to be taken —
Failure to prescribe consultation not fatal — Canadian
Human Rights Act, S.C. 1976-77, c. 33, ss. 2(a), 10, 14(a), 15,
41 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application to review and set aside a decision of the Human
Rights Tribunal imposing a specific program of affirmative
action on the employer. A complaint was brought against CN
alleging that it had pursued a policy which deprived women of
employment opportunities in blue-collar positions in the St.
Lawrence region. The Tribunal concluded that there was no
bona fide occupational requirement for CN's practice and that
the "discriminatory practices were so pervasive and so perma
nent and so deeply rooted that the discrimination could be said
to be systemic ... in that it was imbedded in the totality of the
system and co-extensive with it." The Tribunal issued a three-
part order (1) requiring CN to cease certain discriminatory
hiring and employment practices and to alter others (2) setting
a goal of 13% women in the targeted job positions and a quota
of one female hiring in four until that goal was reached, and
(3) requiring the filing of periodic reports with the Commis
sion. The principal ground of review is that the Tribunal lacked
jurisdiction under s. 41(2)(a) to make such an order. CN
alleges a lack of jurisdiction in the Tribunal's imposition of the
detailed plan of action and in its ignoring the consultative role
of the Commission. It alleges that the Tribunal is not author
ized to prescribe the content of a special program, but only to
order the adoption by the employer, after discussion with the
Commission, of such a special program. The respondents con
tend that the phrase "including adoption of a special program,
plan or arrangement referred to in subsection 15(1)" gives the
Tribunal power to impose such a special program compulsorily,
in contrast to the voluntary adoption of special programs under
s. 15(1).
Held (MacGuigan J. dissenting in part), the application
should be allowed.
Per Hugessen J.: The part of the order imposing a 25%
hiring quota should be set aside. The Tribunal's power to make
an order imposing a temporary hiring quota must be found in
paragraph 41(2)(a), which permits the Tribunal to order the
taking of measures aimed at preventing the future occurrence
of a discriminatory practice on the part of a person found to
have engaged in such a practice in the past. The sole permissi
ble purpose for the order is prevention; it is not cure. The text
requires the avoidance of future evil. It does not allow restitu
tion for past wrongs. This is not to say that in every case
restitution is impossible. Paragraphs 41(2)(b),(c) and (d) pro
vide for compensation to "the victim" of the discriminatory
practice, but it would be inappropriate to apply them in cases of
systemic discrimination where individual victims are not readily
identifiable.
Paragraph 41(2)(a) specifies that the measures ordered to be
undertaken may include the adoption of a "special" (affirma-
tive action) program under subsection 15(1). Subsection 15(1)
is not limited to the prevention of future evil. The elimination
of present disadvantages by the granting of improved oppor
tunities to the disadvantaged group is specifically permitted.
But the programs which subsection 15(1) protects are volun
tary in contrast to the measures imposed under paragraph
41(2)(a) by order of the Tribunal. Ordinary grammatical
construction requires that, when the Tribunal exercises its
power under section 41 to order the adoption of a program
envisaged by section 15, it can only order that kind of program
which will meet the purposive requirements of section 41, i.e.,
to prevent future acts of discrimination. There is nothing of
prevention in the stated justification for imposing a hiring rate
of 25% women in the target area. The measure is a catch-up
provision, the purpose of which is to remedy the effects of past
discriminatory practices. That purpose is not permitted by
section 41. The order is expressed in terms that are purely
remedial. No attempt is made to justify the order as preventive
only.
The paragraph requiring CN to undertake a temporary
publicity campaign with a view to encouraging women to apply
for blue-collar jobs should be allowed to stand as the nature
and cause of systemic discrimination are such that to prevent it
may require a change of attitudes. This paragraph is severable
because it does not refer to remedial action.
Paragraph 41(2)(a) requires "consultation with the Commis
sion on the general purposes" of the measures imposed. This
means that the person against whom the order is made is
obliged to consult with the Commission on the general purpose
of the measures which are imposed. The consultation is to take
place after the Tribunal has decreed the measures. While the
failure to prescribe such consultation should not be viewed as
fatal, it would be prudent for the Tribunal to do so.
Per Pratte J.: The whole of the second part of the order to
conduct a publicity campaign, imposing a temporary hiring
quota, and to appoint a person to implement the order should
be set aside, as it was prescribed for the purpose of remedying
the consequences of past discrimination. The third part of the
order, requiring the filing of periodic reports with the Commis
sion, should also be set aside as its sole purpose was to enable
the Human Rights Commission to monitor the implementation
of the prescription contained in the second part of the order.
Per MacGuigan J. (dissenting in part): The application
should be dismissed since the Tribunal's order is within its
jurisdiction under paragraph 41(2)(a). CN has not shown that
the terms of the order do not "prevent the same or a similar
practice occurring in the future." The phrase "take measures"
should be interpreted to include the content as well as the
objectives of an affirmative action program in the discretion of
the Tribunal in light of paragraph 2(a) of the Canadian
Human Rights Act, which signals the courts, in cases of doubt
to give the statutory words the interpretation that provides the
greatest protection to protected groups against discriminatory
acts.
The argument that the powers conferred on a Tribunal under
paragraph 41(2)(a) are co-extensive with the powers conferred
by s. 15(1) must be rejected. But one must beware of thinking
too univocally about the concept of prevention. Although the
Tribunal did not justify its affirmative action programs in a
form explicitly parallel to its powers under paragraph 41(2)(a),
that should not prevent the upholding of these measures by the
Court if they can be interpreted to be within that paragraph.
The prevention of discrimination has to be effective for women
as a group.
The limitation in paragraph 4I(2)(a) on a Tribunal in order
ing an affirmative action program for systemic discrimination
is that the measures ordered must be objectively intended to
prevent such systemic discrimination in the future, that is, they
must bear an appropriate relationship or proportion to the
problem. The Tribunal chose to derive its goal from the most
proximate independent generalization, hiring in the same blue-
collar occupations across Canada. It was within the Tribunal's
discretion to choose to move to this goal by a one-in-three or by
a one-in-four ratio.
The Tribunal expressed its goal, in terms, not of hiring, but
of employment, opposite sides of the same coin. However, the
Court must take judicial notice of the fact that the only
available official statistics on a scientific data base relate to
employment. Since there was no other statistical basis avail
able, there was therefore no other objective basis on which the
Tribunal could have established its objective.
CASES JUDICIALLY CONSIDERED
APPLIED:
National Bank of Canada v. Retail Clerks' International
Union et al., [1984] 1 S.C.R. 269; 53 N.R. 203; In re
Y.K.K. Zipper Co. of Canada Ltd., [1975] F.C. 68
(C.A.).
DISTINGUISHED:
Ms. Betty J. Hendry v. The Liquor Control Board of
Ontario (1980), 1 C.H.R.R. D/160 (Ont. Bd. of Inq.);
Canadian National Railway Company v. Canadian
Human Rights Commission, [1983] 2 F.C. 531 (C.A.);
Armstrong v. The State of Wisconsin, [1973] F.C. 437
(C.A.); Re Rohm & Haas Canada Limited and Anti-
dumping Tribunal (1978), 91 D.L.R. (3d) 212 (F.C.A.).
REFERRED TO:
Ontario Human Rights Commission et al. v. Borough of
Etobicoke, [1982] 1 S.C.R. 202.
COUNSEL:
A. Giard, Q.C. and R. Boudreau, Q.C. for
applicant.
A. Trottier and R. Duval for respondent
Canadian Human Rights Commission.
L. Pillette and H. Lebel for respondent Action
Travail des Femmes.
SOLICITORS:
Canadian National Railway Company, Legal
Department, Montreal, for applicant.
Canadian Human Rights Commission,
Ottawa, for respondent Canadian Human
Rights Commission.
Rivest, Castiglio, Castiglio, Lebel and
Schmidt, Montreal, for respondent Action
Travail des Femmes.
Deputy Attorney General of Canada for the
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
PRATTE J.: I agree with most of what my broth
er Hugessen says in his reasons for judgment. Our
only important difference of opinion relates to the
extent to which the decision under attack should
be set aside. He would merely set aside paragraph
2 of the second part of the order entitled "Special
Temporary Measures"; I would, in addition, set
aside the first paragraph of that part of the order
as well as the whole of the third part requiring the
filing of periodic reports with the Commission.
I agree with my brother Hugessen that, as para
graph 41(2)(b) of the Canadian Human Rights
Act [S.C. 1976-77, c. 33] did not confer on the
Tribunal the power to prescribe the temporary
measures contained in the second part of the order,
the only question to be resolved is whether the
Tribunal was given that power by paragraph
41(2)(a). I also agree that, under that paragraph,
the Tribunal's power was limited to prescribing
measures for the purpose of preventing the recur
rence of the discriminatory practices which the
Tribunal had found to exist (or, of course, the
occurrence of similar practices). However, in my
view, the whole of the second part of the order, not
only its second paragraph, was obviously pre
scribed for the purpose of remedying the conse
quences of past discrimination rather than prevent
ing future discrimination. I would, therefore, set
aside the second part of the order in its entirety.
As the sole purpose of the measures prescribed by
the third part of the order is to enable the Human
Rights Commission to monitor the implementation
of the prescription contained in the second part of
the order, the third part of the order should also, in
my view, be set aside.
I would allow the application and set aside the
second and third parts of the order of the Tribunal.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This section 28 application
attacks a decision made by a Tribunal constituted
under the Canadian Human Rights Act. By its
decision, the Tribunal found that the applicant,
"CN", had been guilty of discriminatory hiring
practices, contrary to section 10 of the Act, by
denying employment opportunities to women in
certain unskilled blue-collar positions. The Tri
bunal issued an order in three parts: the first,
entitled "Permanent Measures for Neutralization
of Current Policies and Practices" (page 170),
requires CN to cease certain discriminatory hiring
and employment practices and to alter others; the
second part sets a goal of 13% women in the
targeted job positions and sets a quota of one
female hiring in four until that goal is reached; the
third part of the order requires the filing of period
ic reports with the Commission.
In so far as the Tribunal's findings of discrimi
nation are concerned, I am satisfied that no
ground has been shown which would justify inter
vention by this Court under the provisions of sec
tion 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10]. Likewise, I have not been
persuaded that the Tribunal committed any excess
of jurisdiction in Parts 1 and 3 of the order under
review.
The only part of the order which gives me
concern are the "Special Temporary Measures"
contained in Part 2 and, in particular, paragraph 2
thereof, which imposes a hiring quota of 25% on
CN until such time as the goal of 13% has been
achieved.
The Tribunal's power to make the order in
question must be found in paragraph 41(2)(a) of
the Act:
41....
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
(a) that such person cease such discriminatory practice and,
in consultation with the Commission on the general purposes
thereof, take measures, including adoption of a special pro
gram, plan or arrangement referred to in subsection 15(1), to
prevent the same or a similar practice occurring in the
future;
Reduced to its essentials, this text permits the
Tribunal to order the taking of measures aimed at
preventing the future occurrence of a discriminato
ry practice on the part of a person found to have
engaged in such a practice in the past. The power
to make such an order is defined by its purpose.
This is clear enough in the English text ("take
measures ... to prevent"), but clearer still in the
French ("prendre des mesures destinées Ã
prévenir").
The sole permissible purpose for the order is
prevention; it is not cure. The text requires that the
order look to the avoidance of future evil. It does
not allow restitution for past wrongs.
This is not to say that such restitution is in every
case impossible. On the contrary, paragraphs (b),
(c) and (d) provide specifically for compensation,
in kind or in money. Such compensation is limited
to "the victim" of the discriminatory practice,
which makes it impossible, or in any event inap
propriate, to apply it in cases of group or systemic
discrimination where, by the nature of things,
individual victims are not always readily identifi
able.
Paragraph 41(2)(a) goes further, however. It
specifies that the measures ordered to be undertak
en may include the adoption of a special program
under subsection 15(1). That subsection deals with
what are commonly referred to as "affirmative
action programs":
15. (1) It is not a discriminatory practice for a person to
adopt or carry out a special program, plan or arrangement
designed to prevent disadvantages that are likely to be suffered
by, or to eliminate or reduce disadvantages that are suffered by,
any group of individuals when those disadvantages would be or
are based on or related to the race, national or ethnic origin,
colour, religion, age, sex, marital status or physical handicap of
members of that group, by improving opportunities respecting
goods, services, facilities, accommodation or employment in
relation to that group.
Again reducing this text to what is essential, it
declares certain programs to be non-discriminatory
provided they have one of the designated purposes
(in English, "designed to"; in French, "destines
à "). Those purposes are the prevention of future
disadvantages or the elimination or reduction of
present disadvantages suffered by a protected
group. The object of the subsection is obviously to
prevent affirmative action programs from being
struck down as constituting "reverse discrimina
tion" against the majority. *
Subsection 15(1) is not by its terms limited to
the prevention of future evil although that is clear
ly included. The elimination or reduction of
present disadvantages by the granting of improved
opportunities to the disadvantaged group is specifi
cally permitted. Manifestly such opportunities are
aimed at reversing the consequences of past
wrongs as well as at avoiding their recurrence.
The programs which subsection 15(1) protects
as non-discriminatory are voluntary in nature. By
contrast, the measures which paragraph 41(2)(a)
permits are imposed by order of the Tribunal.
Likewise paragraph 41(2)(a) is limited to preven
tion in the future; subsection 15(1) allows the sins
of the fathers to be visited upon the sons.
Ordinary grammatical construction requires
that, when the Tribunal exercises its power under
section 41 to order the adoption of a program
envisaged by section 15, it can only order that kind
of program which will meet the purposive require
ments of section 41.
In the case at bar, the Tribunal leaves us in no
doubt as to its purpose in issuing the order con
* A similar provision is found in subsection 15(2) 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.).
tained in paragraph 2 of the "Special Temporary
measures". First, it sets the goal:
In order to clarify this matter, we should point out that, in
this case, the objective is to increase to 13% the proportion of
women in non-traditional jobs at CN in the St Lawrence
Region. [Page 169.]
I am prepared to concede that the fixing of a
goal such as this is a legitimate means of setting a
measurable standard against which the achieve
ment of the ultimate purpose of the order can be
tested. That purpose remains however, as required
by law, the prevention of future acts of
discrimination.
The Tribunal goes on to require that, until such
time as the required goal is achieved, CN must
hire one woman for each four new entries into its
unskilled blue-collar labour force. Thus a hiring
rate of 25% is imposed in the target area. The
justification for this is stated as follows:
Whereas we feel that the process of change in CN's St
Lawrence Region must be accelerated and preferential meas
ures for women are required; [Page 172.]
In an earlier passage, the Tribunal states:
It will be difficult in the case of CN to remedy the marked
disparity resulting from years of discriminatory practices. It is
to be hoped that, with time, the imbalance will be reduced.
However, it is our view that this will not be possible without the
imposition of an affirmative action program: [Page 166.]
There is nothing of prevention in this. The meas
ure imposed is, and is stated to be, a catch-up
provision whose purpose can only be to remedy the
effects of past discriminatory practices. That pur
pose is not one which is permitted by section 41.
I confess to a certain sense of frustration in
coming, as I do, to the conclusion that the Tri
bunal has exceeded its powers in making this
order. On a purely impressionistic basis, neither
the goal of 13% nor the imposed hiring quota of
25% strike me as being per se unreasonable. I
would certainly not be prepared to hold, as a
matter of law, that in order to meet the test of
being preventive a hiring quota must always bear a
one-to-one relationship with the ultimate goal; I
would think, however, that any variance from that
ratio would require some very specific findings by
the Tribunal in order to justify it.
Likewise, I recognize that by its very nature
systemic discrimination may require creative and
imaginative preventive measures. Such discrimina
tion has its roots, not in any deliberate desire to
exclude from favour, but in attitudes, prejudices,
mind sets and habits which may have been
acquired over generations. It may well be that
hiring quotas are a proper way to achieve the
desired result. Again, however, one would expect a
Tribunal to make clear findings supporting as
preventive measures which are in appearance
remedial.
I have searched in vain for any such findings in
the impugned decision. No attempt is made to
justify the order as being designed to prevent
future discriminatory practices only. The Tribunal
was perfectly aware that this case was the first in
which quotas had been imposed in Canada and
that the United States legislation, which it quotes
at length, was very different in language from
ours. Despite this, the order is expressed in terms
that are purely remedial, almost as if the Tribunal
had deliberately chosen to disregard the words of
the statute.
Perhaps the legislation is defective in this regard
and the scope of section 41 should be enlarged to
encompass the whole range of affirmative action
programs envisaged by section 15. It is not dif
ficult to think of good policy reasons in favour of
such action. But they are questions of policy and
there are arguments the other way as well. It is not
for the Tribunal or for this Court to disregard the
text of the statute and to prescribe that which,
reasonable or otherwise, the law does not permit.
What I have said so far is limited to the hiring
quotas imposed by paragraph 2 of the "Special
Temporary Measures". Paragraph 1 of these
measures requires CN to undertake a temporary
publicity campaign with a view to encouraging
women to apply for blue-collar jobs. While it is
certainly arguable that this too is remedial rather
than preventive, I have decided, on balance, that it
should be allowed to stand. In the first place, the
nature and cause of systemic discrimination are
such that to prevent it may well require a change
of attitudes and perceptions; seen in that light the
publicity campaign can be readily justified as pre
ventive. Secondly, while paragraph 1 is clearly
closely associated with paragraph 2, it does not
contain any of the latter's objectionable references
to remedial action and the need for catch-up.
Since the two paragraphs are severable, I would
limit our intervention to paragraph 2.
In light of the conclusion that I have reached, it
is perhaps appropriate to make one further com
ment regarding the text of paragraph 41(2)(a).
That text, it will be recalled, requires "consulta-
tion with the Commission on the general purposes"
of the measures imposed. It is apparent that both
the Tribunal and the Commission viewed this text
as requiring them to consult with one another. I
am quite satisfied that this is not so and that an
ordinary grammatical reading of the paragraph
requires that the person against whom the order is
made be obliged to consult with the Commission
on the general purpose of the measures which are
imposed. Any doubt as to the meaning of the
English text is dissipated by the French: "consul-
tation ... relativement à l'objet général de ces
mesures". This is not to say that there is anything
consensual about such measures, for it is apparent
that the consultation is only to take place after the
Tribunal has decreed them. Perhaps by requiring
such consultation Parliament was recognizing that
the Commission, as a continuing body, would be
the only available source of information and advice
in the event of difficulties arising in the interpreta
tion or application of an order made by an ad hoc
tribunal, whose very existence has come to an end
once its order is made. While I would not view as
fatal the Tribunal's failure to prescribe such con
sultation it would, I think, be prudent and for the
benefit of all interested parties for it to do so.
I would allow the application and set aside that
part of the impugned order contained in paragraph
2 of the "Special Temporary Measures".
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J. (dissenting in part): The
Human Rights Tribunal order of which review is
sought on this section 28 application is the first
such order in Canada imposing a specific program
of affirmative action on an employer. In one other
case, Ms. Betty J. Hendry v. The Liquor Control
Board of Ontario (1980), 1 C.H.R.R. D/160 (Ont.
Bd. of Inq.), a tribunal under the Ontario Human
Rights Code [R.S.O. 1970, c. 318] made a com
pulsory order, but it required the employer itself to
design a specific program. Here, the program is
imposed on the employer, and the essential ques
tion is whether a Human Rights Tribunal has the
power under section 41 of the Canadian Human
Rights Act to make such an order.
The complaint on which the Tribunal's order
was founded was brought against Canadian Na
tional Railways ("CN") by Action Travail des
Femmes ("ATF") on November 6, 1979, under
section 10 of the Canadian Human Rights Act, an
act which had come into effect on March 1, 1978.
It alleged that:
ATF has reasonable grounds to believe that CN in the St-Law-
rence Region has established or pursued a policy or practice
that deprives or tends to deprive a class of individuals of
employment opportunities because they are female.
This complaint replaced an earlier one of June
1979. Both complaints were limited to blue-collar
positions in the CN's St. Lawrence region, which
comprises roughly the province of Quebec minus
the Gaspé Peninsula. Not having resolved the
matter by conciliation, the Canadian Human
Rights Commission ("the Commission") appoint
ed a three-person Tribunal in July, 1981, which
after 5 months of hearings, rendered its decision
on August 22, 1984.
The relevant portions of the Canadian Human
Rights Act as of the relevant time were as follows:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the following principles:
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical hand
icap; ...
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
15. (1) It is not a discriminatory practice for a person to
adopt or carry out a special program, plan or arrangement
designed to prevent disadvantages that are likely to be suffered
by, or to eliminate or reduce disadvantages that are suffered by,
any group of individuals when those disadvantages would be or
are based on or related to the race, national or ethnic origin,
colour, religion, age, sex, marital status or physical handicap of
members of that group, by improving opportunities respecting
goods, services, facilities, accommodation or employment in
relation to that group.
(2) The Canadian Human Rights Commission established by
section 21 may at any time
(a) make general recommendations concerning desirable
objectives for special programs, plans or arrangements
referred to in subsection (1); and
(b) on application, give such advice and assistance with
respect to the adoption or carrying out of a special program,
plan or arrangement referred to in subsection (1) as will
serve to aid in the achievement of the objectives the program,
plan or arrangement was designed to achieve.
41. (1) If, at the conclusion of its inquiry, a Tribunal finds
that the complaint to which the inquiry relates is not substan
tiated, it shall dismiss the complaint.
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
(a) that such person cease such discriminatory practice and,
in consultation with the Commission on the general purposes
thereof, take measures, including adoption of a special pro
gram, plan or arrangement referred to in subsection 15(1), to
prevent the same or a similar practice occurring in the
future;
(b) that such person make available to the victim of the
discriminatory practice on the first reasonable occasion such
rights, opportunities or privileges as, in the opinion of the
Tribunal, are being or were denied the victim as a result of
the practice;
(c) that such person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and any expenses incurred by the
victim as a result of the discriminatory practice, and
(d) that such person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and any expenses incurred by the victim as a result of the
discriminatory practice.
(3) In addition to any order that the Tribunal may make
pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in
respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to
the victim, not exceeding five thousand dollars, as the Tribunal
may determine.
(4) If, at the conclusion of its inquiry into a complaint
regarding discrimination in employment that is based on a
physical handicap of the victim, the Tribunal finds that the
complaint is substantiated but that the premises or facilities of
the person found to be engaging or to have engaged in the
discriminatory practice impede physical access thereto by, or
lack proper amenities for, persons suffering from the physical
handicap of the victim, the Tribunal shall, by order, so indicate
and shall include in such order any recommendations that it
considers appropriate but the Tribunal may not make an order
under subsection (2) or (3).
The Tribunal distinguished three levels of blue-
collar entry-level positions: skilled occupations
requiring trade qualifications; apprenticeship occu
pations, for which trade training is also necessary;
and positions which require no special qualifica
tions. It is only entry-level occupations of the latter
kind which it considered to be the subject of the
complaint and to which its order applied. Exam-
pies of such occupations are brakeman, yardman,
checker, bridge and building labourer, track main
tainer, signal maintainer, signal helper, car clean
er, engine cleaner.
The Tribunal found as a fact that, despite the
dedication of its executive management to equal
opportunity for women, the CN nevertheless per
petuated traditional hiring practices which were
unfair to women with knowledge of the conse
quences for women of these practices, that no
marked changes occurred after the entry into force
of the Canadian Human Rights Act in the spring
of 1978, and that the CN must be taken to have
intended what it did. Therefore, even if section 10
of the Act is interpreted, following Canadian Na
tional Railway Company v. Canadian Human
Rights Commission, [1983] 2 F.C. 531 (C.A.)
[hereinafter referred to as the Bhinder case], in
this Court, as requiring intention for the commis
sion of a discriminatory practice, the CN possesses
the intention required for liability.
In addition, the Tribunal found that its analysis
of intention was supported by statistical evidence:
women in Canada occupy 13% of blue collar jobs,
whereas in the St. Lawrence region, as well as in
CN generally, the comparative figure is .7%. (All
measurements are based on 1981.)
To ascertain whether the minute number of
women in blue-collar positions could result from
bona fide occupational requirements under para
graph 14(a) of the Act, the Tribunal engaged in a
painstaking examination of the totality of the
CN's hiring process: recruitment, reception and
hiring criteria, including the practice of compulso
ry promotion, the use of the Bennett Test, and the
conduct of foremen and fellow workers. This anal
ysis led it to the conclusion not only that the CN's
policies and practices regarding the employment of
women in blue-collar positions could not be justi
fied on a bona fide occupational requirement basis,
but that the discriminatory practices were so per
vasive and so permanent and so deeply rooted that
the discrimination could be said to be systemic, not
in the sense that it lacked deliberation, but in that
it was imbedded in the totality of the system and
co-extensive with it. The Commission therefore
concluded that the problem could be resolved only
by a full-scale affirmative action program, though
it decided to impose a hiring goal or temporary
quota, which would lapse when a specified ratio
was achieved, rather than a more inflexible rela
tively permanent hiring ratio.
The terms of the Tribunal's order are as follows:
Order
FOR THE ABOVE REASONS this Tribunal, concluding that
there are in the St Lawrence Region of CN certain hiring
policies or practices that are discriminatory for the purpose of
section 10 of the Canadian Human Rights Act, and that these
practices are not based on bona fide occupational requirements
for the purpose of section 14 of said Act, makes the following
order, according to the powers conferred upon it by section 41:
Permanent Measures for Neutralization of
Current Policies and Practices
1. CN shall immediately discontinue the use of the Bennett test
for entry level positions other than apprentice positions, and,
within one year of the time of this decision and for the same
positions, shall discontinue all mechanical aptitude tests that
have a negative impact on women and are not warranted by the
aptitude requirements of the positions being applied for.
2. CN shall immediately discontinue all practices pursued by
foremen or others in which female candidates undergo physical
tests not required of male candidates, mainly the test which
consists of lifting a brakeshoe with one arm.
3. CN shall immediately discontinue the requirement for weld
ing experience for all entry level positions, with the exception of
apprentice positions.
4. CN must modify its system for the dissemination of informa
tion on positions available. More specifically, within the period
of one year it shall take the most suitable measures to inform
the general public of all positions available.
5. CN shall immediately change the reception practices in its
employment office to give female candidates complete, specific
and objective information on the real requirements of non-
traditional positions.
6. CN shall immediately modify its system of interviewing
candidates; in particular, it shall ensure that those responsible
for conducting such interviews are given strict instructions to
treat all candidates in the same way, regardless of their sex.
7. Should CN wish to continue to grant foremen the power to
refuse to hire persons already accepted by the employment
office, it shall immediately issue a specific directive to the
effect that no one shall be rejected on the basis of sex.
8. CN shall continue to implement the measures already adopt
ed in its directive on sexual harassment with a view to eliminat
ing from the workplace all forms of sexual harassment and
discrimination.
Special Temporary Measures
1. Within the period of one year and until the percentage of
women in non-traditional jobs at CN has reached 13, CN shall
undertake an information and publicity campaign inviting
women in particular to apply for non-traditional positions.
2. Whereas we feel that the process of change in CN's St
Lawrence Region must be accelerated and preferential meas
ures for women are required;
— Whereas the employer must be given a certain measure of
flexibility in view of the uncertainty surrounding the question
of how many qualified female workers are available;
—Whereas ideally, in order to create as soon as possible a
critical mass that would allow the system to continue to correct
itself, we would be inclined to require over the coming years,
until the objective of 13% is achieved, the hiring of women to
fill at least one non-traditional position out of every three;
— Whereas for the sake of giving more latitude and flexibility
to CN in the methods employed to achieve the desired objec
tive, we feel that it would be more prudent to require a ratio
lower than one in three for the hiring of women for non-tradi
tional positions at CN;
ACCORDINGLY, Canadian National is ordered to hire at least
one woman for every four non-traditional positions filled in the
future. This measure shall take effect only when CN employees
who have been laid off but who are subject to recall have been
recalled by CN, but not before one year has elapsed from the
time of this decision, in order to give CN a reasonable length of
time to adopt measures to comply with this order. When it is in
effect, daily adherence to the one-in-four ratio will not be
required, in order to give the employer more choice in the
selection of candidates. However, it must be complied with over
each quarterly period until the desired objective of having 13%
of non-traditional positions filled by women is achieved.
3. Within a period of two months of this decision, CN shall
appoint a person responsible with full powers to ensure the
application of the special temporary measures and to carry out
any other duties assigned to him by CN to implement this
decision.
SUBMISSION OF DATA
CN SHALL SUBMIT TO THE COMMISSION:
1. Within 20 days of the introduction of the above-mentioned
special temporary measures, an initial inventory of the number
of blue-collar workers in the CN's St Lawrence Region, by sex
and by position.
2. Within 20 days of the end of each quarterly period after the
above-mentioned special temporary measures have begun to be
applied, and for the entire duration of the said measures, after
forwarding a copy to ATF, a report containing:
(a) a list indicating the name, sex, title and duties, date hired
and employment sector of every person hired in the St
Lawrence Region during the previous quarter;
(b) a detailed statement of the efforts made by CN to recruit
female candidates for non-traditional positions during the
previous quarter;
(c) a breakdown, by sex, of: the total number of persons who
applied for non-traditional positions at CN during the previ
ous quarter; and the total number of persons who completed,
underwent or failed every test or written examination to fill a
non-traditional position. This list shall include the score and
rank of every person who passed the test or examination;
(d) the name, sex and changes of titles and duties, or changes
in status of every employee hired for non-traditional positions
after the special temporary measures come into force.
3. A statement giving the name, official title and date of
appointment of the person in charge of applying the above-
mentioned special temporary measures, within twenty days of
his or her appointment.
In its factum the applicant sets out five reasons
for setting aside the Tribunal's order under section
28 of the Federal Court Act:
[TRANSLATION] (1) The Tribunal erred in law in blindly
applying the American jurisprudence.
(2) The Tribunal erred in law as to the legal meaning of section
10 of the Act. According to the correct interpretation of the
law, the complainant must establish the existence of systemic
discrimination by a preponderance of proof.
(3) The Tribunal erred in law in its appreciation of the
statistical evidence, it failed to consider important material
before it, and it drew erroneous conclusions in a perverse way.
(4) The Tribunal failed to consider important material before it
relating to the process of hiring and it drew erroneous conclu
sions in a perverse and capricious manner.
(5) The Tribunal erred in law in its interpretation of paragraph
41(2)(a) of the Act in arrogating to itself the right to establish
and to impose a detailed plan of action on the applicant, in
ignoring the role of the Commission, and in confiding to the
A.T.F. powers of supervision which are not conferred on it in
conformity with the wording of the Act itself.
The first allegation, that concerning the blind
use of American precedents, cannot be taken seri-
ously in this context. The Tribunal introduces its
reference to American experience in this fashion:
Since there are hardly any examples in Canadian law of the
imposition of an affirmative action program such as that
suggested by ATF and the Canadian Human Rights Commis
sion, we think it is important, before considering the appropri
ateness of ordering CN to adopt such a program, to indicate
the legal basis of affirmative action programs and to look at
some examples of them. Accordingly, we will draw a compari
son between the Canadian Human Rights Act and American
legislation and then look at the American experience in impos
ing such programs. Lastly, we will give a few examples of
voluntary affirmative action programs in Canada.
Not only was it not improper for the Tribunal to
review the wider U.S. experience with affirmative
action programs, but it might have been thought to
have been delinquent not to do so. Similar con
siderations apply to other references by the Tri
bunal to U.S. material.
The second allegation raises the Tribunal's
understanding of section 10 of the Act. Here, the
CN takes exception to two passages in the deci
sion. The first is as follows:
Section 10 [of the Act] requires that the complainant provide
prima facie evidence that the disputed hiring practices are such
as to deny a protected group the same employment opportuni
ties as other applicants.
We have seen in the preceding part [of the decision] that the
statistics would tend to provide such prima facie evidence, since
the proportion of women hired by CN for the positions covered
by the complaint was substantially lower than the average
among employers in similar sectors.
In addition to such prima facie evidence, the complainant
must also prove that the disputed hiring practices were adopted
for the purpose of lessening the employment opportunities of a
protected group.
The allegation is that the reference to a prima
facie proof contradicts the required overall stand
ard of proof on a balance of probabilities. But the
compatibility of the two aspects of proof, the
former referring to the onus of proof, the latter to
the standard, is clearly shown by the words of
McIntyre J. in the leading case of Ontario Human
Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202, at page 208:
Once a complainant has established before a board of inquiry
a prima facie case of discrimination, in this case proof of a
mandatory retirement at age sixty as a condition of employ
ment, he is entitled to relief in the absence of justification by
the employer. The only justification which can avail the
employer in the case at bar, is the proof, the burden of which
lies upon him, that such compulsory retirement is a bona fide
occupational qualification and requirement for the employment
concerned. The proof, in my view, must be made according to
the ordinary civil standard of proof, that is upon a balance of
probabilities.
The second passage objected to by the applicant
under the second allegation is as follows:
With respect, we believe that this decision [Bhinder], in
which leave to appeal has been granted by the Supreme Court
of Canada, is in error, and that the distinction that the Court
attempted to make between section 10 and section 7.03 of Title
VII rests on no solid foundation.
Nevertheless, it will not be necessary for us to distinguish
that case since we believe that, here, Canadian National was
aware of the consequences of its hiring practices. We have
already shown, at the beginning of this judgment, that Canadi-
an National knew several years before the complaint was filed
that its hiring practices had a negative effect on the employ
ment of women and that women were under-represented at
Canadian National compared with their general employment
situation. Yet Canadian National continued these hiring prac
tices, knowing their consequences. The proclamation of the
Canadian Human Rights Act, which did not take Canadian
National by surprise, as can be seen from the testimony in the
proceeding, has not resulted in any marked changes in its hiring
practices.
The CN argued before us that the Tribunal had no
option but to follow the Bhinder decision. The
problem with this argument is that, however
unwillingly, that is exactly what the Tribunal did.
The CN argued, alternatively, that there was
insufficient evidence on the basis of which the
Tribunal could have found an intention to dis
criminate on the Railway's part. This variation of
their second ground for review has, in my view, to
be treated along with their third and fourth
grounds, since all are founded on review under
paragraph 28(1)(c) of the Federal Court Act.
This Court has frequently had the occasion to
describe the limits on its intervention under para
graph 28(1)(c): Armstrong v. The State of Wis-
consin, [1973] F.C. 437 (C.A.); Re Rohm & Haas
Canada Limited and Anti-dumping Tribunal
(1978), 91 D.L.R. (3d) 212 (F.C.A.), will serve as
examples. Perhaps the most succinct statement of
the Court's jurisdiction is that of Urie J. in In re
Y.K.K. Zipper Co. of Canada Ltd., [1975] F.C. 68
(C.A.), at page 75:
It would be quite improper, therefore, for this Court to
disturb such finding unless it be satisfied that there was no
evidence upon which it could have been made or that a wrong
principle was applied in making it.
Here, the CN has been unable to show either
that there was no evidence to support the Tribu
nal's findings or that it applied a wrong principle
in the course of arriving at them. The CN took
exception, for instance, to the Tribunal's categori
zation of statistics in arriving at its comparison
between the .7% of women employees in its blue-
collar occupations and the 13% in the labour force
as a whole in the same occupations, but the Tri
bunal made use of the most accurate statistics
available and its decisions on categorization were
well within its non-reviewable discretion under
section 28.
The principal ground of review urged by CN
was its fifth, viz., that the Tribunal lacked jurisdic
tion under paragraph 41(2)(a) of the Canadian
Human Rights Act to make the order it did. It
alleges a lack of jurisdiction in three respects: the
Tribunal's imposition of the detailed plan of action
on the CN, its ignoring the role of the Commis
sion, and its conferring supervisory powers on the
ATF. Let me say at once that the third allegation
is not a substantial one. The Tribunal requires the
CN merely to transmit a copy of each quarterly
report to the ATF, presumably so that it can make
representations (to the CN itself, to the Commis
sion, to the public) if it is not satisfied. This is far
from a power of supervision, and, certainly if the
Tribunal has the power to impose a detailed pro
gram of affirmative action on the Railway, under
its power under paragraph 41(2)(a) to "take meas
ures ... to prevent ... a similar practice occurring
in the future", it does not lack the lesser power to
keep the original complainant informed as to the
progress of the program.
The heart of the CN's interpretation of para
graph 41(2)(a) is that the Tribunal is not itself
authorized to prescribe the content of a special
program but only to order the adoption by the
employer, after discussion with the Commission, of
such a special program. In other words, the con
tent of such programs does not fall under the
jurisdiction of the Tribunal. It must content itself
with ordering the adoption of such a program and
with determining the general object, which is
specified by the Act as the prevention of similar
discriminatory practices in the future.
Parliament's intention, the CN argues, was to
accord some flexibility to the employer in the light
of the characteristics of its enterprise, the state of
the labour market, the impact on the employer's
organization, the requirements of collective agree
ments, etc. In this way, with the aid of the exper
tise of the Commission, the employer itself taking
account of all the circumstances would have to
establish an adequate plan of action to attain the
objectives established by the Tribunal.
Such an interpretation is not without textual
plausibility. But the respondents contend that the
phrase "including adoption of a special program,
plan or arrangement referred to in subsection
15(1)" must necessarily establish the Tribunal's
power also to impose such a special program com
pulsorily, by way of contrast to the voluntary
adoption of special programs under subsection
15(1). They also argue that the clear implication
of the exemption of orders under subsection 41(2)
from the mere recommendations possible under
subsection 41(4), where discrimination is based on
a physical handicap, is that the subsection 41(2)
orders are compulsory.
However, this argument of the respondents does
not quite meet the applicant's point, which is not
to deny the validity of compulsory orders entirely
under paragraph 41(2)(a), but only to limit them
to the imposition of objectives rather than of
content.
Nevertheless, it remains that the powers of a
tribunal under paragraph 41(2)(a) are expressed
in general and unrestricted language ("take meas
ures ... to prevent ... a similar practice occurring
in the future"). How should these words be
interpreted?
Section 11 of the Interpretation Act [R.S.C.
1970, c. I-23] provides that "Every enactment ...
shall be given such fair, large and liberal construc
tion ... as best ensures the attainment of its
objects." The Canadian Human Rights Act
includes an internal guide to its objects in section
2. This section gives an unmistakable signal to
courts, in cases of doubt, to give the statutory
words the interpretation that provides the greatest
protection to protected groups against discrimina
tory acts. This Court should therefore not hesitate
to interpret the phrase "take measures" as gener
ously as is consistent with the context, and there
fore to include the content as well as the objectives
of an affirmative action program in the discretion
of the Tribunal ("include in such order any of the
following terms that it considers appropriate").
This interpretation, which in my view is imposed
by the language of paragraph 41(2)(a) read in the
light of paragraph 2(a), does not immediately
resolve the question of what is intended by the
consultative role of the Commission, but this is a
secondary issue, and, however resolved, it cannot
be allowed to frustrate the broad discretionary
powers of a Tribunal. The respondents urge that
what Parliament intended was that a Tribunal
should consult with the Commission before making
its order. Such an interpretation of the text is not
grammatically possible in either language:
41... .
(2) ... a Tribunal ... may make an order against the person
found to be engaging or to have engaged in the discriminatory
practice ...
(a) that such person cease such discriminatory practice and,
in consultation with the Commission on the general purposes
thereof, take measures .... [Emphasis added.]
In English the subject of the clause in question,
and therefore the party required to consult the
Commission, is the person against whom the order
is made. In French, the effect is similar, though
the structure is different. The result is that the CN
and the Commission are expected to consult on the
general purposes of whatever program is adopted,
but since this is already required by the statute, it
does not necessarily have to be repeated in the
Tribunal's order.
However, the most difficult aspect of the issue
remains. Even if it is held to be bound as to the
content of an affirmative action program, the CN
maintains that such an order can include only
measures aimed at prevention of similar acts and
cannot be designed to more generally redress the
disadvantages suffered by women in their labour
market participation. In other words, it must be a
preventive and not a catch-up or curative program.
Clearly, the Tribunal has not been given a gen
eral social mandate by the very precise words of
paragraph 41(2)(a): "to take measures ... to pre
vent the same or a similar practice occurring in the
future" ("de prendre des mesures destinées à pré-
venir les actes semblables"). The respondent Com
mission's argument that the powers conferred on a
Tribunal under paragraph 41(2)(a) are co-exten
sive with the powers conferred by subsection 15(1)
must therefore be rejected.
But one must beware of thinking too univocally
about the concept of prevention. How does one
"prevent" systemic discrimination? The Tribunal
found discriminatory practices in the CN to be
pervasive, persistent and deeply rooted in the psy
chology of both people and workplace. So to assess
the true dimensions of the problem it had to look
back, even to the period when, in the absence of
federal human rights legislation, discrimination
was not illegal.
The Tribunal was well aware of the tightrope it
was walking in this regard:
The complaint by Action Travail des femmes is aimed
primarily at CN's general hiring process for positions described
as unskilled, as this was being carried out in the St Lawrence
Region at the time the complaint was filed.
As for the period of the complaint, the Tribunal is of the
opinion that, for the purpose of determining whether CN's
hiring process was legal or not under the Canadian Human
Rights Act, we must adhere essentially to the period specified
in the complaint. However, we shall consider the period prior to
that of the complaint in order to show what developments
occurred and to get a better idea of the hiring process in effect
at that time. Finally, any changes that may have occurred since
the filing of the complaint are also relevant, not for determining
whether the hiring process was legal at that time, but for
determining whether there are grounds for concluding that an
affirmative action program should be adopted, and if one
should, for determining its essential features.
This passage reveals that the Tribunal clearly
understood that it was for legal purposes confined
to the short period from the coming into effect of
the Act to the time of the complaint, and that its
recourse to any other period, either before or after,
was for strictly limited ends. Nevertheless, a
Tribunal's power is retrospective with respect to
the psychological dimension as well as prospective
in relation to the remedy.
•
The ideal form of prevention would consist of
radical improvement in attitudes within the CN,
leading to an amelioration in behaviour, but no one
has yet devised an assured technique of directly
modifying the value systems of large numbers of
people. However, since the solution must reach the
problem, the prevention of systemic discrimination
will reasonably be thought to require systemic
remedies.
It must be admitted that the Tribunal did not
attempt to provide a justification of the heart of its
affirmative action program, viz., its special tempo
rary measures (to hire one woman in four in
non-traditional occupations until the desired objec
tive of 13% is reached) in a form explicitly parallel
to its powers under paragraph 41(2)(a), but that
should not prevent the upholding of these meas
ures by this Court if they can be interpreted to be
within that paragraph. In my view, they can be so
justified.
The essence of the affirmative action program is
a limitation on the CN's discretion in hiring. The
necessity of such a program for the CN was in fact
stated in the Railway's own Boyle-Kirkman
Report in 1974:
Setting specific (name and number) targets is essential, as
without these goals day-to-day priorities will take precedence
over the more intangible employee development efforts.
The CN rejected this recommendation.
It must not be forgotten that the complaint here
was brought by the ATF on behalf of women as a
class. Indeed, the respondent ATF argued (without
the support of the Canadian Human Rights Com
mission) that the Tribunal's order could be sup
ported under paragraph 41(2)(b), with women as a
class being recognized as the "victims" of the
discriminatory practice. In view of my holding
under paragraph 41(2)(a), I do not find it neces
sary to decide whether the meaning of "victim" in
paragraph 41(2)(b) extends this far, but the argu
ment serves to underline that the Tribunal's find
ings relate to women as a class. The prevention of
discrimination has to be effective for women as a
group.
As I read paragraph 41(2)(a), the limitation on
a Tribunal in ordering an affirmative action pro
gram for systemic discrimination is that the meas
ures ordered must be objectively intended to pre
vent such systemic discrimination in the future
("to prevent the same or a similar practice occur
ring in the future"), that is, they must bear an
appropriate relationship or proportion to the prob
lem. What sort of affirmative action goal would
bear such a relationship in this case?
The Tribunal might arguably have set the goal
for the hiring of women at 50% (or in fact a bit
more) for an indefinite period, on the ground that
women constitute that percentage of the Canadian
population, or they might have set it at 40.7%, the
percentage of women in the Canadian work force
(1981). But it seems to me that such a goal would
not observe a due proportionality to the observed
discrimination because it would have to rely on too
many unproveable assumptions, especially on the
demand side—to say nothing of the onerousness of
such a requirement on the employer. They might
have established a goal of 6.11%, based on the
percentage of women in the CN work force, but
such a figure, drawn from the same company,
might not unreasonably be suspected of also
having been diminished by systemic discrimina
tion.
The Tribunal, wisely in my view, chose to derive
its goal from the most proximate independent gen
eralization, viz., hiring in the same blue-collar
occupations across Canada. I believe this figure
contains the irreducible minimum of unproveable
assumptions and hence is the least arbitrary and
most proportionate goal. As I see it, whether the
Tribunal then chose to move to this goal by a
one-in-three or by a one-in-four ratio is within
their reasonable discretion.
It seems to me this leaves only one difficulty—
and that I believe merely an apparent one. The
Tribunal expressed its goal, in terms, not of hiring,
but of employment. This is undoubtedly what con
jures up an image of a general social goal of
employment of women out of proportion to the
discrimination actually established here.
But in fact hiring and employment are opposite
sides of the same coin. Employment is the conse
quence of, and the more permanent state resulting
from, hiring. In the absence of discrimination,
employment ratios probably roughly correspond to
hiring ratios over a sufficient period of years. But
what is key to the decision, and is a matter of
which I believe this Court must take judicial
notice, is that the only available official statistics
on a scientific data base relate to employment.
Statistics Canada does not publish general statis
tics either as to hiring (the "in" stream) or separa
tion (the "out" stream) from employment, but
only as to employment "stock". Since there was no
other statistical basis available, there was there
fore no other objective basis on which the Tribunal
could have established its objective.
It may well be that the Tribunal's own motiva
tion was mixed, and that it was as much aware of
the fact that its order served the general interests
of an egalitarian society as that it was based on the
more limited mandate of paragraph 41(2)(a). But
in my view it is not for this Court on a section 28
application to interfere with such a judgment call
by the Tribunal unless it is shown to be clearly
outside its statutory jurisdiction. Chouinard J. has
spoken recently in National Bank of Canada v.
Retail Clerks' International Union et al., [ 1984] 1
S.C.R. 269, at page 288; 53 N.R. 203, at page
227, of "The caution which the courts must exer
cise whenever the jurisdiction of an administrative
tribunal is questioned ...." In my view the CN
has not been able to show that the terms of the
order here cannot be said "to prevent the same or
a similar practice occurring in the future". Given
the more than five and a half years it has taken to
bring the complaint to this point, the 31 volumes in
the record before us, the Tribunal's decision of 175
pages, the public funds and the private effort
expended, it is excessive to return the matter again
to the administrative forum unless there is a com
pelling reason to do so. In my opinion there is no
such reason.
I must leave unresolved any question as to the
supervision and variation of the Tribunal's' order.
Since the Tribunal is functus officio, subject to the
possibility of a temporary resurrection for the
reconsideration of its order, and the law does not
confer supervisory powers on the Commission,
there is no apparent mechanism of supervision or
variation. The provision in subsection 43(1) of the
Act that "Any order of a Tribunal under subsec
tion 41(2) ... may, for the purpose of enforce
ment, be made an order of the Federal Court of
Canada and is enforceable in the same manner as
an order of that Court" clearly creates a power of
enforcement in this Court, but does not confer any
power of initiative or any flexibility in the
approach to the order. But that is a policy matter
beyond the competence of this Court.
Since in my opinion the order of the Tribunal is
within its jurisdiction under paragraph 41(2)(a), I
would dismiss the application.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.