PUBLIC SERVICE ALLIANCE OF CANADA vs CANADA POST CORPORATION

REASONS FOR DECISION
PANEL: Elizabeth Leighton Gerald T. Rayner	2005 CHRT 39 2005/10/07

It is alleged that the Canada Post Corporation as Employer, has violated Section 11 of the Canadian Human Rights Act by paying employees in the male-dominated Postal Operations Group more than employees in the female-dominated Clerical and Regulatory Group for work of equal value. The wage rates of the male-dominated Postal Operations Group exceed those of the female-dominated Clerical and Regulatory Group by as much as 58.9 per cent for work of equal value. It is alleged that sex composition of the two groups has resulted in wage discrimination against the Clerical and Regulatory Group, contrary to Section 11.

[3] When the Commission receives a complaint for filing under the Act, it may designate an investigator to conduct a preliminary review of the nature and details of the complaint. All parties to the complaint are involved in this review. The respondent's defences to the allegations in the complaint are an integral part of the review.

[4] When this review is completed, the Commission has the authority to determine that a valid defence has been submitted by the respondent, and that the complaint, therefore, cannot be substantiated. Alternatively, the Commission has the authority to appoint a conciliator for the purpose of attempting to bring about a settlement of the complaint. A third option is for the Commission to refer the complaint to the Canadian Human Rights Tribunal for an inquiry involving all parties, including the Commission as a representative of the public interest.

[5] In the case of a complaint brought under section 11 of the Act, the Commission's authority to conduct its investigation includes authority to gather pertinent job fact data. The Commission may request information from the respondent, such as lists of employees, job descriptions, and related job data including input from supervisory and management personnel and employee interviews. Even on-job-site observations may be requested.

[6] The receipt of job fact data is crucial to the Commission's consideration of the complaint and its final recommendation based on the facts it has before it. The value of the work of the male and female employees cited in the complaint needs to be established and compared, as do the wages of the male and female employees. The evaluation process must include consideration of the four factors specified in subsection 11(2) of the Act, namely: skill, effort, responsibility, and working conditions.

[7] The Commission's usual practice is to undertake the work evaluation process using a job evaluation committee, and the employer's own existing evaluation plan, provided it is suitable for a complaint brought under section 11 of the Act. Failing this, the Commission must find an alternative job evaluation plan which is unbiased, gender neutral, and appropriate for the task.

[9] Ultimately, the Commission must make its preliminary comparison of the job values and wages between the complainant and the comparator groups named in the complaint. An Investigation Report, based on the Commission findings, will then be drafted. Once the parties involved have vetted it, a Final Investigation Report, with its recommendations, will be presented to the Commissioners of the Commission who will make the final decision regarding the Commission's involvement with the complaint.

[12] Therefore, during 1984 and most of 1985, the Commission did not pursue its investigation of the Complaint actively. Instead, it made periodic checks on the state of the joint development of System One. Differences of opinion between the Alliance and Canada Post, including the withdrawal, at one point, of the Alliance from active participation in the evaluation development process, led to many delays and limited progress in developing the joint System One plan. Finally, the Commission decided to re-activate its investigation in October 1985.

[13] From late 1985 and through 1986, the Commission was active in developing a Job Fact Sheet, a questionnaire intended for use in gathering current job data for the complainant positions - jobs in the Clerical and Regulatory Group (CR's), a group noted in the Complaint as "female-dominated", and for the named comparator positions - jobs in the Postal Operations Group (PO's), noted in the Complaint as "male-dominated".

[14] During this time, Canada Post expressed serious concern to the Commission about the design and content of the proposed Job Fact Sheet. Additionally, Canada Post expressed to the Commission its reservations about the investigation process in general. The Commission had indicated that the Job Fact Sheet was to be answered by a sample of the CR group first. It was intended, eventually, to be a prime job data-gathering tool for the Commission's investigation.

[15] At the same time that it was expressing its reservations about the Commission's investigation process, Canada Post did answer the Commission's requests for job data information by providing employee printouts and other information. It cautioned that job descriptions and organization charts which were required as attachments to the Job Fact Sheet would often be out-of-date. The Alliance advised the Commission that the job descriptions should be union-approved.

[16] By December 1986, a sample of CR employees at Canada Post had completed the Job Fact Sheet, and had been interviewed by Commission staff, using an Interview Guide created by the Commission to clarify answers given on the Job Fact Sheet. Additionally, during the interview process, relevant supervisory staff had been interviewed to clarify answers given by the incumbents sampled.

[17] From April to September 1987, a number of Commission staff evaluated the sample of 194 CR positions using the data collected in 1986. System One was the basis for these evaluations, although it was an uncompleted plan, and the Alliance had advised against its use for evaluation purposes. These evaluations were eventually set aside, and not used in the final investigation process.

[18] Protracted correspondence, meetings and discussions ensued from late 1987 through to mid-1991 between the Commission and Canada Post concerning the sampling of, and job data collecting from, the PO comparator group. The Commission was unsuccessful in seeking the co-operation of the relevant comparator group unions to collect this information. Moreover, Canada Post questioned the size of the proposed sample of the PO comparator positions, and declined to have the Job Fact Sheet completed by PO employees on company time.

[19] Meanwhile, the Alliance was increasingly concerned with the limited progress in the Commission's investigation of the Complaint. The Commission had threatened, on at least two occasions, to invoke section 58 of the Act, to obtain, from Canada Post, information it required to continue its investigation. Meetings involving senior managers from the Commission and from Canada Post were subsequently held, leading to the development, by the Commission, of a preliminary set of 10 "generic" PO job specifications.

[20] Eventually, the Commission was able to finalize its 10 "generic" PO job specifications based upon data obtained from Canada Post. This took place from July to October 1991. Although Canada Post indicated that the creation of these "generic" jobs excluded several PO jobs, there never was a resolution to this difficulty. Intervening events, such as a union strike in August 1991, extended the investigation time even more. The Commission moved forward, pushed by the concerns of the Alliance which were made evident by its threat to bring an application for mandamus under the Act to compel the Commission to complete its investigation. Its staff commenced the evaluation of CR and PO Benchmark positions, after which the 10 "generic" PO jobs were to be evaluated and the original sample of 194 CR positions was to be re-evaluated.

[21] In the midst of this activity, the Commission's senior investigator was temporarily re-assigned from his position as head of this investigation to address other priorities. To complete the work expeditiously, the PO Supervisory positions were dropped from the Complaint, and the CR sample was reduced from 194 to 93 positions. A consultant was added to Commission staff for the evaluation process which was using, as its evaluation tool, the XYZ Hay Job Evaluation Plan, an off-the-shelf plan. System One could not be used as it had never been accepted by the union, and it was never meant to be used to compare jobs represented by unions other than the Alliance. Moreover, Canada Post had also advised the Commission that System One would not be suitable for evaluating PO jobs.

[22] The Commission completed its CR and PO job evaluations and its investigation work in November 1991. There was no briefing session with Canada Post before the draft Investigation Report was released to the parties on December 16, 1991, along with a request to submit any comments by January 6, 1992. Comments were submitted by both parties by late January 1992; the Commission's Final Investigation Report, dated January 24, 1992, did not incorporate any of them. The Final Report concluded that there was a demonstrable wage difference when comparing wages and job values in the male and female-dominated groups named in the Complaint. The Report recommended referral of the Complaint to the Canadian Human Rights Panel (now known as the Canadian Human Rights Tribunal).

[23] The Commissioners considered the Final Investigation Report and, having regard to all the circumstances of the Complaint, decided, on March 16, 1992, to institute an inquiry into the Complaint by means of a referral to the Canadian Human Rights Tribunal which would assign the matter to a specific Tribunal panel for a hearing.

[24] The Tribunal panel was established on May 11, 1992, a Pre-hearing Conference was held September 21, 1992, and hearings and deliberations got underway on November 25, 1992. The written and oral submissions were completed on August 27, 2003, although written submissions concerning the Decision of the Federal Court of Appeal in the `Airlines Case' [Canadian Human Rights Commission v. Air Canada, Canadian Airlines International Limited and Canadian Union of Public Employees (Airline Division), [2004] F.C.J. No. 483] were submitted in mid-August 2004. In June 2004, the original Chair of this Tribunal, Benjamin Schecter, resigned.

[28] The Canadian Human Rights Act was enacted on July 14, 1977 and proclaimed in force on March 1, 1978. Section 11 of the Act took effect on March 1, 1978. When this Complaint was filed with the Commission on August 24, 1983, a number of other individual and group complaints alleging discrimination under section 11 of the Act had already been brought by the Alliance, and other public and private sector unions. Tribunals were appointed to hear some of the cases but the majority were settled after negotiation, using Commission facilitators, and with the consent of the Commission.

[29] The Act, a quasi-constitutional human rights statute, enunciates general principles concerning the prohibition of discrimination on particular grounds. It established a Canadian Human Rights Commission which was given the authority to be actively involved in the evolution of the Act through its handling of complaints, and its development and issuance of Guidelines, under subsection 27(2). Additionally, the Commission was required to undertake or to support research programs relating to its duties, and to foster public understanding and recognition of the purposes of the Act, while discouraging and reducing the various discriminatory practices the Act addresses. All of this, undoubtedly, placed challenging demands on the Commission and its staff during this early period. At the same time, this was a period of increasingly tight fiscal management at both the provincial and federal levels of government.

[30] Collective bargaining was introduced to the Canadian Public Service in March 1967 under the aegis of the Public Service Staff Relations Act² (PSSRA) which provided that the government and the Public Service Commission had to promulgate and declare occupational job categories in groups, as a preliminary to formal unionization of government employees. Each job category had to be defined by listing the groups of employees making up that category. Employees at the Post Office, which was a Department of the Canadian government at the time, were included in the same categories and groups as employees in other government departments, except for employees who were directly involved in the handling of mail. This unique group bore the title, "mail handlers" and included postal clerks, letter carriers, mail dispatchers, supervisory mail handlers, and several other functions involved in the sortation and delivery of mail.

[31] The daily movement of massive volumes of different types of mail in a country the size of Canada, with its different time zones and variety of climatic conditions, requires a vast, well-coordinated operational network. Inevitably, such a network includes thousands of corporate or contracted people and thousands of postal outlets in both urban and rural areas, in addition to many mail-processing facilities across the country. The state of employee relations is obviously a vital element in operating such a complex network successfully. Prior to the enactment of the PSSRA in 1967 and the subsequent certification of various unions to represent particular occupational groups of employees within the then Post Office Department, employees tended to be represented, informally, by staff associations. The earliest of such postal associations is believed to have been formed in 1889.

[32] In the 1960's and 1970's, the Post Office Department experienced one of its most unsettled periods of labour relations. While this was a period when the postal code system was introduced (1971) and mechanized mail processing technology was evolving, it was also a period of many management-employee disputes leading to several major strikes.

[33] The Post Office Department was succeeded by Canada Post Corporation with the proclamation of the Canada Post Corporation Act³ on October 16, 1981. One of the objects of the new Corporation, specified in the enabling legislation, was "...the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada...".⁴ Creation of the Crown Corporation appeared to have the support of all national political parties and most organized labour, business and consumer organizations. There also seemed to be a consensus that one of a number of desirable objectives for the new Corporation would be the reform of its collective bargaining structure in the interests of achieving labour peace.

[34] Upon becoming a Crown Corporation, the bargaining units certified under the PSSRA were deemed to be bargaining units under the Canada Labour Code⁵, and the bargaining agents representing these bargaining units were to remain in place, presumably to provide a transitional period of relative stability and an opportunity for the new Corporation to reorganize. This did, however, pre-empt an early start to the reform of the collective bargaining process which was further delayed by the passage, in 1982, of the federal `6 and 5' cost control legislation. The Canada Labour Relations Board (CLRB) issued a policy statement in February 1984 calling for an overall review of the bargaining unit structure of the Corporation at an appropriate time in the future. This review finally got underway in May 1985 when the Corporation filed its application with the CLRB for study of the appropriateness of all of its then existing bargaining units.

[35] The 1985 CLRB study took the form of a Bargaining Unit Review Process (BURP) with the first phase of hearings concluding in December 1987; CLRB's first decision was released on February 10, 1988. The CLRB heard from eight unions involving twenty-six bargaining units (representing about 58,000 employees), and ordered that they all be consolidated into four bargaining unions and four bargaining units. The four unions are as follows:

[36] It was not until 1988 that the bargaining unit consolidation occurred and the 1989-1992 round of labour negotiations was the first held with representatives of the consolidated units - some eight years after achieving Crown Corporation status. Understandably, while the BURP study was on-going, negotiations continued between the Corporation and the original 26 bargaining units. In fact, there were active negotiations during this period with LCUC, CUPW, CPAA, APOC and PSAC, some overlapping with each other and some with special mediation assistance. Despite vigorous negotiations, three strikes occurred in the 1980's, one of which involved PSAC.

[37] The 1989-1992 round of negotiations between the Corporation and CUPW were particularly challenging for all parties, leading to unsuccessful mediation, rotating strikes and Parliamentary back-to-work legislation in 1991. Agreements were concluded during this same period with the other three unions - CPAA, APOC and PSAC - without work stoppages.

[40] The Universal Declaration of Human Rights⁶ was proclaimed by the General Assembly of the United Nations in December 1948. It was viewed, at the time, as the first step in the formulation of an "international bill of human rights" that would have legal as well as moral force. Article 23 of this Declaration reads in part that "[e]veryone, without any discrimination, has the right to equal pay for equal work".

[41] By 1951, the principle of equal pay for work of equal value was articulated by the International Labour Organization in its C100 Equal Remuneration Convention⁷. This Convention was ratified by Canada in 1972 and signalled Canada's commitment to the active pursuit of the human rights of workers, including the principle of "equal pay for work of equal value". This commitment was reaffirmed when Canada ratified in 1976 the United Nations International Covenant on Economic, Social and Cultural Rights⁸, the International Covenant on Civil and Political Rights⁹, and the Optional Protocol to the International Covenant on Civil and Political Rights¹⁰. These United Nations Covenants made a reality of the dream for an "International Bill of Human Rights".

[42] Article 7 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to "[f]air wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work".¹¹

[43] In 1970, Canada established a Royal Commission to inquire into the Status of Women. The Royal Commission's Report focused on continuing discrimination involving women in the workplace.¹² Female participation in the Canadian workforce had continued to grow over the decades, increasing during the 20-year period 1960 - 1979 by the same percentage as it had taken sixty years to achieve between 1901 and 1961.

[44] Canada's commitment to eliminate discrimination in the workplace was enlarged to include a broader definition of human rights by the promulgation of the Canadian Human Rights Act in 1978 and, in 1981, by Canada's signing of the United Nations Convention on the Elimination of all Forms of Discrimination against Women.¹³

[45] The general goals of human rights legislation are the prevention of discrimination and the promotion of public education to eliminate discrimination. These goals are based on society's belief in equality rights for its members. After the fact, they are an attempt to make victims of discrimination "whole" either through consensual or mandated resolution. Dickson, C.J. noted in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that the general purpose of the Canadian Human Rights Act, as set out in section 2, is "...the promotion of equal opportunity unhindered by discriminatory practices...".¹⁴

[46] A legislative protection of human rights demands statutory interpretation which is broad and purposive, which is made in "...a manner consistent with its overarching goals...".¹⁵ In other words, an interpretation of human rights legislation must advance the purpose of that legislation to educate the public and to eradicate discrimination. To do this, the interpretation should give the legislation a generous reading, avoiding a narrow, overly technical analysis. Such an interpretation will construe the rights in the legislation broadly and liberally, while interpreting the legislation's restrictions and exceptions in a stricter manner.

Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such a nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.¹⁶

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning.²⁰

The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute as a whole. The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statute law produced by a legislature...Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.²¹

I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act `shall be deemed to be remedial' and directs that every Act shall `receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit'.²²

[50] In addition to a consideration of the nature of human rights legislation, and the consequent principles of statute interpretation when dealing with such special legislation, this Tribunal must also, during its decision-making process, consider the history of the Canadian Human Rights Act. That history is examined in the next several paragraphs.

[51] As already noted, the Canadian Human Rights Act was enacted in 1977, and proclaimed in force in early 1978. Even though over 25 years have passed, equality rights remain the subject of litigation and discussion. Mme Justice L'Heureux-Dube, speaking after receiving an Honourary LL.D. from the Law Society of Upper Canada in 2002, noted that:

The isms and phobias - racism, sexism, homophobia, and the malevolent rest - are all fountainheads of discrimination and harassment. They have no place in this era of human rights. ...Equality will be the battle of the millennium. At times, equality's standard bearers will feel like they are standing alone and will be harshly criticized for their positions. But, for those who do what is right, affirmation and solidarity come in due course. For it is my firm belief that justice without equality is no justice at all.²³

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

There will no doubt be some problems ...[with] the concept [of equal pay for work of equal value]. The federal government has adopted a different approach: that we should legislate the principle and, through the Commission and through its efforts at setting out guidelines, solve those problems...as to how that is to be implemented and how it is to be brought about.²⁴

[54] In other words, section 11 of the Act is an enunciation of a principle, without legislating stringent rules indicating how that principle is to be effected. The Honourable Ron Basford stated that this section of the proposed Act was fashioned to address the specific problem of the occupational segregation of women, with its accompanying historical lower wage rates which were based on the undervaluing of women's work in the marketplace. The need to address this problem had been one of the underlying reasons for the International Conventions of the mid-twentieth century, and was a key recommendation of the Report of the Royal Commission on the Status of Women.²⁵

[55] From these International Conventions and the Royal Commission Report, the broad concept arose of basing wages on the value of work being done. Section 11 of the Act deals with the principle that there should be no discrimination in wage rates based on sex. The basis for the wage should be the value of the work being done.

[58] Although the principle of "equal pay for work of equal value" is the basis for section 11, the Act does not articulate how the principle is to be implemented. While section 11 spells out for the complainant the criteria to be used to assess value of work - that is, the composite of the four factors of skill, effort, responsibility, and working conditions - the evaluation process to be employed is not articulated.

[59] The Commission is given broad authority to deal with the intricacies of section 11, such as the ability to issue binding guidelines concerning certain concepts in the section. This guideline-making power creates what can be described as statutory rules to guide the interpretation of section 11, analogous to the creation of regulations for other legislation.

[62] Is the Tribunal an institutionally independent and impartial quasi-judicial body? In particular, does the Act create a reasonable apprehension of institutional bias in the Tribunal because it gives the Commission power to issue Equal Wages Guidelines²⁶ (the Guidelines), which are binding on the Commission, a party before the Tribunal, and binding on the Tribunal?

[S]ubsection 11(1) can ... be seen to have tackled the problem of proof by enacting a presumption that, when men and women are paid different wages for work of equal value, that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it.²⁸

[69] The standard of proof to determine whether such a prima facie case has been established by the complainant is the civil standard, a balance of probabilities. Once a prima facie case has been established by the complainant, the evidentiary burden shifts to the respondent to show a justification for the discrimination, using the balance of probabilities as the standard of proof.

[72] That decision was the culmination of a judicial review of a decision made by the tribunal appointed to hear a complaint, brought under section 11 of the Act by some Bell Canada employees and their unions. After hearing argument on Bell Canada's Motion requesting that the tribunal find itself unable to proceed due to an apprehension of bias, the tribunal ruled that it was "...an independent quasi-judicial body, institutionally capable of providing a fair hearing in accordance with the principles of natural justice".³¹

[73] The judicial review application was allowed, the Federal Court concluding that the legislative scheme of the Act, at the time, did not provide tribunal members with sufficient security of tenure or financial security to allow the tribunal to operate with independence and impartiality. Of concern was a link between the tribunal members' remuneration and the Commission, which would be a party before most tribunals. Additionally, McGillis, J. indicated that there were concerns about the Commission's ability to make binding Guidelines. McGillis, J. commented, in obiter dicta, that "...the manner in which, in the opinion of the Commission, any provision of this Act applies in a particular case..." should cause concern for the ability of the tribunal to act independently and impartially.³² Such a problem could, suggested McGillis, J., be corrected by making the Guidelines non-binding on the tribunal.

1. an Order or ruling by the Tribunal that it is not an independent or impartial tribunal capable of providing a fair hearing in accordance with the principles of fundamental justice guaranteed by section 2(e) of the Bill of Rights, R.S.C. 1985, because, inter alia, it is bound by the Guidelines in interpreting section 11 of the Canadian Human Rights Act issued by the Canadian Human Rights Commission, a party in interest before it;

2. an Order or ruling by the Tribunal that it is not an independent or impartial tribunal capable of providing a fair hearing in accordance with the principles of fundamental justice guaranteed by section 2(e) of the Bill of Rights because the remuneration of the Tribunal's members is fixed by the Commission and, from the beginning of the Tribunal hearings until January 1, 1997, was provided to the members by cheques issued by the Commission;

With regard to the issues of financial security in a tribunal and the security of tenure of tribunal members, the Tribunal concludes that there is no question that waiver is available as an objection to an allegation of a reasonable apprehension of bias, as demonstrated by authorities cited.... One fact is indisputable. At no time during the last six years, did Mr. Juriansz, counsel for the Respondent, raise the issues of security of tenure or financial security of the Tribunal... The Tribunal concludes that, on a balance of probabilities, the Respondent would have had the knowledge to object, in a timely fashion, to the jurisdiction of this Tribunal based upon a reasonable apprehension of bias arising from these two issues. Therefore, because such an objection was never made, for whatever reason, the Respondent must be deemed to have impliedly waived its right to challenge the independence or impartiality of the Tribunal on the basis of the said two issues.³³

Another way of looking at this particular matter is that the exercising of the Respondent's right to object to the issue of the binding nature of the Guidelines on the grounds of invalidating the Tribunal's independence and impartiality, was postponed, by consent, from the start of the proceedings to closing argument, because all parties agreed it was wise that the Tribunal hear evidence first so the Tribunal would understand what the Guidelines were intended to accomplish.

The Respondent's right to object has, therefore, not been rescinded-- it has been reserved and remains in place to be exercised "at the end of the day". There is no question of waiver here. Nothing has been waived with respect to the Guidelines issue - just an understanding and concurrence openly and fairly arrived at, to address that issue later on.³⁴

[80] After the Act had been amended in June 1998, the Vice-Chairman of the Canadian Human Rights Tribunal decided to proceed with the tribunal hearing of the Bell Canada complaint. Bell Canada, however, maintained its position that, even with the amendment to subsection 27(2) of the Act, the tribunal was precluded from making an independent judgement in any class of cases in which binding Guidelines were issued by the Commission, a party in interest before the tribunal. It argued, in a judicial review application of the April 1999 decision³⁶ to proceed with the Bell Canada hearing, that the binding nature of the Guidelines leads to an inevitable perception of bias and lack of institutional independence. Tremblay-Lamer, J. of the Federal Court (Trial Division) agreed. In a decision rendered on November 2, 2000, the binding nature of the Guidelines issued by the Commission was found to be incompatible with the guarantees of institutional independence and impartiality necessary to the tribunal's decision-making powers.³⁷

[81] The Federal Court of Appeal decision of May 24, 2001 reversed the decision of Tremblay-Lamer, J.³⁸ This Appeal decision was upheld by the Supreme Court of Canada, which issued its decision on June 26, 2003.³⁹ It found that subsections 27(2) and (3) of the Act, as amended, relating to the issuance of binding Guidelines, were not inconsistent with section 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, which requires that parties be given a "fair hearing in accordance with the principles of fundamental justice". Neither were the subsections inconsistent with the constitutional principle of adjudicative independence. Therefore, those subsections of the Act were found to be operable and applicable.

[82] The Supreme Court of Canada addressed Bell Canada's specific argument that the binding nature of the Guidelines creates a perception that a tribunal, hearing a complaint, lacks independence and impartiality. Further, Bell Canada had argued that guidelines, created by a party before it, and binding on the tribunal, would create an apprehension of bias. The Supreme Court noted the following:

As the Commission has readily acknowledged, the guideline power is constrained. The Commission, like other bodies to whom the power to make subordinate legislation has been delegated, cannot exceed the power that has been given to it and is subject to strict judicial review ... The Tribunal can, and indeed must, refuse to apply guidelines that it finds to be ultra vires the Commission as contrary to the Commission's enabling legislation, the Act, the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The Tribunal's power to `decide all questions of law or fact necessary to determining the matter' under s. 50(2) of the Act is clearly a general power to consider questions of law; including questions pertaining to the Charter and the Canadian Bill of Rights ... No invalid law binds the Tribunal. Moreover, the Commission's guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. Since the Act does not contain explicit language indicating an intent to dispense with this presumption, no guideline can apply retroactively. This is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline. Finally, any party before the Tribunal could challenge a guideline on the basis that it was issued by the Commission in bad faith or for an improper purpose; and no guideline can purport to override the requirements of procedural fairness that govern the Tribunal.⁴⁰

Parliament's choice was obviously that the Commission should exercise a delegated legislative function. Like all powers to make subordinate legislation, the Commission's guideline power under ss. 27(2) and 27(3) is strictly constrained. We fail to see, then, that the guideline power under the Act would lead an informed person, viewing the matter realistically and practically and having thought the matter through, to apprehend a `real likelihood of bias'.⁴¹

[83] Thus, the Supreme Court of Canada has answered the argument about the operation of the Guidelines and their impact upon the impartiality and independence of this Tribunal. That argument was left "to the end of the day" in the Tribunal's decision on Canada Post's 1998 Motion. The Supreme Court's lengthy discussion of the Commission's guideline-making power under the Act is as applicable to the power given to the Commission when the Act was first enacted as it is today.

[84] In its oral submission on the Supreme Court's decision in the Bell Canada case, Canada Post maintained its stance that the Supreme Court decision did not address tribunals that were constituted and operating prior to the enactment of the 1998 amendments to the Act. Canada Post cited the opening paragraph of the Supreme Court decision in Bell Canada which identified the issue before the Court as being whether the Tribunal lacked independence and impartiality because of the power of the Commission to issue guidelines "...concerning a `class of cases'..." which would be binding on the tribunal.

[85] The Supreme Court was therefore, according to Canada Post's submission, addressing post-1998 tribunals. It was not until the 1998 amendments that the Commission's guideline-making power was confined to a `class of cases'. Prior to the 1998 amendments, former subsection 27(2) of the Act authorized the issuance of guidelines in respect of `a particular case' as well as a `class of cases'.

[87] The Commission's position on this matter was that it had been specifically dealt with by the Federal Court of Appeal in the unanimous decision in Northwest Territories v. Public Service Alliance of Canada, [2001] F.C.J. No. 791. At paragraph 41 of that decision, the Federal Court of Appeal noted, as follows:

The appellant [Government of the Northwest Territories] contends that the amended provision still compromises the independence and impartiality of the Human Rights Tribunal Panel assigned to hearing the complaint against it. The appellant assumed, rightly so in my view, that subsection 27(3) as it now exists in its more restricted form due to the amendment to subsection 27(2) applies to the hearing of the complaint against it ... It is reasonable in the circumstances to infer that Parliament intended the new but more limited subsections 27(2) and (3) to continue to apply to inquiries in respect of a class of cases, such as this one, commenced before the amendment and continued thereafter, especially as the 1998 amendment was remedial and aimed at suppressing a possible violation of the requirements of natural justice. The combined effect of the amendment and the transitional provision was, on the one hand, to restrict the CHRC's power to issue binding guidelines to classes of cases and, on the other hand, to allow the guidelines already issued in respect of a class of cases to be binding on the three members of the Human Rights Tribunal Panel completing the inquiry in this case.

[88] The Court of Appeal, in the Commission's view, concluded that the amended section 27 applied to the proceedings of the Northwest Territories case despite the fact that its tribunal had been appointed prior to the 1998 amendments. The panel continued under the transitional provisions of the Act while not interfering with the application of the amended Act. Also, no binding guidelines specific to the appellant's case had been issued by the Commission.

[93] In addition to being a complete answer to Canada Post's argument concerning the binding nature of the Guidelines in relation to the independence and impartiality of the Tribunal, the Supreme Court of Canada has also, in its decision of June 2003⁴², addressed the issue of the retroactivity and validity of the Guidelines.

[94] As noted in paragraph [82], above, although the Guidelines are described as "binding" they are binding on the Tribunal only if they are not invalid, for "no invalid law binds the Tribunal". The Tribunal may find that the Guidelines have been drafted by the Commission in such a way that they "exceed the power that has been given to it...[and are therefore,] ultra vires the Commission as contrary to the Commission's enabling legislation, the Act, the Canadian Charter of Rights and Freedoms, and the Canadian Bill of Rights".

...the Commission's guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. Since the Act does not contain explicit language indicating an intent to dispense with this presumption, no guideline can apply retroactively. This is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline.⁴³

[97] Before this Tribunal, Canada Post argued, based upon its interpretation of the presumption against retroactivity, that the Guidelines which must be used for this Complaint are those which were in force at the time the Complaint was filed with the Commission in 1983. Therefore, the argument is that only the 1978 Guidelines (amended in 1982)⁴⁵ should be of interest to this Tribunal in its decision-making process.

[98] Additionally, Canada Post argued that, if the Tribunal rejects its submissions concerning retroactivity and accepts the 1986 Guidelines as pertinent to this Complaint, some of those 1986 Guidelines should be found to be invalid. Canada Post challenges the 1986 Guidelines, subsection 8(2), and sections 11 through 15.

[99] There has been no challenge to a guideline based upon an argument that the guideline was promulgated in bad faith or for an improper purpose. Guidelines are promulgated only after the Commission has received input from various interest groups such as federally regulated companies, government agencies, and government departments. In this case, amongst those interested and actively involved in giving advice to the Commission before the promulgation of the 1986 Guidelines, was Canada Post.

[101] As Canada Post noted in its submissions concerning retroactivity, administrative law academics, like Sullivan and Dreidger, have written volumes on the retroactive application of the law. In the words of Canada Post's counsel, "a retroactive application of a law changes the past effects of a past situation, a situation giving rise to the effects is past and the effects are past".⁴⁷

a retrospective application of the law change[s] the future effects of past situations. The situation with which we are concerned is already past but the effects haven't all past (sic). Some are in the future, and if the law can change them it is a retrospective application ... An immediate application of the law changes the future effects of an ongoing situation ... the law applies as of the day it comes into force. So, anything that is happening after that, the law applies ... the prospective application of law, where the law that comes into force can only apply to situations and effects that arise after ...What about the situations that had already started before it came into effect?... The old law survives, the law that has been repealed, the Guideline that has been revoked, applies, but only for the limited purpose of governing the situations until they are over ... So, even though the Act says that Guidelines are revoked when new Guidelines are issued ... the concept of survival overrides that and let's (sic) the old law apply if it is necessary to do so because the new law is only prospective.⁴⁸

[103] These submissions by Canada Post outline the different applications of the law based on the timing of what Canada Post has called "situations" and the necessity that the law applicable to those "situations" be used. In its argument, Canada Post emphasized the prejudice which would accrue to any respondent who was unable to know, with specificity, what the complaint against him or her was. Without that knowledge, Canada Post argued, a respondent would be deprived of an ability to make a full answer to the complaint. The necessity for fairness to all is the foundation for the presumption against retroactivity. In general, Canada Post argued, the "rules of the game" must be known before the game is played; that is to say, a respondent must know what law is applicable at the time the respondent is served with a complaint, unless there is specific language in the legislation which allows for a change, "mid-game".

[104] This argument anticipated the Supreme Court of Canada's review of retroactivity in the Bell Canada decision of June 2003. That decision specifically pointed to the lack of inclusion in the Canadian Human Rights Act of an intention that the Guidelines be applied retroactively. Therefore, the Guidelines cannot be applied retroactively.

[105] If the Guidelines cannot be applied retroactively, what is the "situation" which pinpoints the time when a specific guideline is to be applied? During its submissions on this topic, Canada Post presented the hypothetical example of a contractual summer employment arrangement involving an hourly minimum wage rate which, through legislation in mid-summer, changed. In such a case, the wage rate changes when the legislation is promulgated, notwithstanding the contractual arrangement. The new wage rate is not retroactive to the beginning of the contract. This example involves specificity. There is a contract. There is a specific legislated change as of a specific date. There is no grey area in the example. An allegation of discrimination is not part of the equation.

[106] Canada Post argued that, similarly, there is no grey area in the Complaint before this Tribunal. The date the Complaint was brought to the Commission should be the date which seals the law applicable to the Complaint. Canada Post argued that a respondent must know what law is applicable at the time the respondent faces a complaint. According to Canada Post, this is important because, from the time a complaint is made, a respondent must know what the rules are in order to articulate its position. During the investigation of a complaint, the respondent's position will be influenced by those "rules". If there is a change in the "rules" after a complaint is brought, Canada Post argued, the respondent will be prejudiced.

[107] Canada Post made a further argument that employing the 1986 Guidelines would interfere with its vested right to rely on the defences it had under the 1978 Guidelines when the Complaint was first filed. In particular, Canada Post cited Gustavson Drilling (1964) Ltd. v. Minister of National Revenue⁴⁹ to support the position that regardless of whether legislation is retroactive or even retrospective, it is presumed that there is no intention to interfere with vested rights (unless the legislature intends otherwise).

[109] Canada Post maintained that its vested rights would be infringed if the 1986 Guidelines were applicable because they impose on the Tribunal rules for interpreting section 11 of the Act which differ from the 1978 Guidelines rules in ways that are important to Canada Post's defence. Canada Post cited a number of such differences which it believed would produce an unfair result.

[110] As already noted, all parties agreed that there is a presumption against retroactive application of legislation unless otherwise provided in the enabling statute. The Commission also agreed that, in the context of subordinate legislation, there is a legal restriction against such application rather than a presumption.

Legislation clearly is retroactive if it applies to facts all of which have ended before it comes into force. Legislation clearly is prospective if it applies to facts all of which began after its coming into force. But what of on-going facts, facts in progress? These are either continuing facts, begun but not ended when the legislation comes into force, or successive facts, some occurring before and some after the commencement. The application of legislation to on-going facts is not retroactive because ... there is no attempt to reach into the past and alter the law or the rights of persons as of an earlier date...[emphasis added]⁵⁰

[113] It is therefore, in the Commission's view, important to identify the particular set of facts that is relevant to the case concerned. In the case before the Tribunal, it is a question of what facts were in play when the 1986 Guidelines came into force. The Commission argued that the facts at that time were clearly "on-going" because the Complaint addresses alleged systemic wage discrimination.

[116] Consequently, the Commission concluded that when the 1986 Guidelines came into effect, they applied immediately and generally to all on-going facts - that is, facts that started in the past and continued to the present or future. The facts involved in an allegation of systemic wage discrimination would be such on-going facts.

[117] The Commission argued, additionally, that the 1986 Guidelines did not apply new legal consequences to past facts, and did not change the past legal consequences of past facts. It was, therefore, not a retroactive application of the 1986 Guidelines. Rather, the 1986 Guidelines codified the evolving Commission practice concerning the interpretation of section 11 of the Act.

[118] With respect to Canada Post's position that its vested rights would be infringed by the use of the 1986 Guidelines, the Commission argued that the concept of vested rights is not easily applied in the field of human rights adjudication. The Commission noted that the only cases cited by Canada Post in support of its position related to relevant facts that were in the past and were found in a torts context. This is in stark contrast with the Complaint which deals with on-going facts in a human rights context.

[119] The Commission also argued that it is difficult to visualize how the 1986 Guidelines could interfere with pre-existing rights or impose new obligations on Canada Post, because the Guidelines simply interpret and give precision to rights and obligations that pre-existed their enactment. They do not in any way lead to changes in the law.

[120] Moreover, the Commission asserted, the 1986 Guidelines did not remove any defences previously recognized by the 1978 Guidelines on which Canada Post might have wished to rely. In fact, the 1986 Guidelines added to the list of `reasonable factors' found in the 1978 Guidelines but Canada Post had not relied on any `reasonable factor' defences. Therefore, the change in the 1986 Guidelines concerning `reasonable factors' was not something which adversely affected Canada Post's position.

[121] The Commission observed that the presumption against interference with vested rights normally involves ambiguity in the interpretation of statutes or regulations. The Commission's submission was that there is no ambiguity in this case, since the regulation-making power in section 27 of the Act makes it clear that guidelines apply immediately:

[122] Finally, the Commission made the point that even if there were ambiguity, the presumption against interference with vested rights protects only those rights that had vested at the time of legislative or regulatory amendment. Not only is the legal scope of vested rights important, but also of import are the public policy issues that arise from the presumption.

[123] In 2001, Marceau, J. noted in Veale v. Law Society of Alberta, that "[t]here is no concrete definition of what constitutes a `vested right', primarily because it is difficult to generalize across the cases and as each case must be studied individually".⁵³ In speaking of the review of retrospective legislation, Marceau, J. indicated that judges are often faced with a policy conundrum - "...whether to apply the new and improved law for the greater good even though this may be unfair to some, or to delay the application of that law in respect of some because of the injustice they would suffer".⁵⁴

[126] Canada Post is clear in stating its position that neither a statute nor subordinate legislation can be applied retroactively, and the date this Complaint was brought to the Commission should be the date which seals the applicable law. Canada Post also argued that the 1986 Guidelines would infringe on its vested right to rely on defences it had under the 1978 Guidelines which were in effect when the Complaint was filed with the Commission in 1983. Hence, the 1978 Guidelines should prevail.

[127] Put another way, Canada Post argued that its submissions were in accord with the Supreme Court of Canada's view, as noted in the Bell Canada decision, that the Guidelines can properly influence the outcome of future cases where no-one, including the Commission, can anticipate whose particular interests the Guidelines will favour. Canada Post argued that the Guidelines could improperly influence the outcome of a case where their particular impact is already known and their application is controlled by the Commission's timing of referring that case to a tribunal. Hence, the Guideline-making power cannot be interpreted to permit the Commission to apply a Guideline to a complaint it is already investigating when the Guideline is issued.

[128] Thus, Canada Post argued that the Supreme Court's reasoning in the Bell Canada case supports Canada Post's position that the 1986 Guidelines should not apply to the Complaint because to do so would permit the Commission to influence, improperly, its outcome. The Commission was already investigating the Complaint when the 1986 Guidelines were introduced. By virtue of its decision to issue the 1986 Guidelines before referring the Complaint to the Tribunal, the Commission, in Canada Post's submission, controlled what the Tribunal was bound to apply to the Complaint, knowing its likely impact on the outcome of the Complaint.

[129] Interestingly, while Canada Post, in its submissions (p. 14-15), stated that the Supreme Court decision "...strongly supports Canada Post's position that the 1986 Guidelines should not apply to this Complaint at all because to do so would permit the Commission to improperly influence its outcome", Canada Post did not cite any examples of such improper influence or even any hints of such improper influence by the Commission. It is presented simply as a possible threat of impropriety, a suggestion of a creation of possible bias or impartiality, without substantiation.

[130] While agreeing with Canada Post that there is a presumption against retroactive application of legislation, and a legal restriction with respect to subordinate legislation, the Commission has argued, in line with Professor Sullivan's thesis, that the Complaint before this Tribunal deals with on-going facts. These facts relate to an allegation of on-going sexual discrimination in wages, as described in section 11 of the Act.

[131] The Commission has maintained that the application of legislation, including subordinate legislation, to on-going facts is not retroactive because there is no attempt to alter past law or the rights of persons as of an earlier date. The Commission's position is that legislation or regulations that apply to on-going facts have immediate, not retroactive, effect.

[132] With respect to Canada Post's point that its vested rights would be infringed if the 1986 Guidelines were applicable, the Commission dismissed this concern in the absence of any ambiguity in interpreting the statute and the Guidelines. The Commission was also of the view that Canada Post failed to demonstrate that the 1986 Guidelines removed any defences previously recognized by the 1978 Guidelines on which Canada Post might have wished to rely, at least with respect to the critical `reasonable factors'.

[133] The Complaint before this Tribunal involves an allegation of sexual discrimination in wages, as described in section 11 of the Act. That allegation is one of systemic discrimination. Section 11 of the Act was drafted using, as its primary basis, the International Labour Organization's 1951 Convention 100 (ratified by Canada in 1972) as well as recommendations from the Report of the Royal Commission on the Status of Women.⁵⁵ These historical documents addressed the issue of systemic discrimination against women in the area of wages, with the most basic recommendation being that all wages be based on the value of the work being performed.

...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). To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.

[136] In addressing the issue of retroactivity, both Canada Post and the Commission have made reference to the Gustavson Drilling case and to Professor Sullivan's volume on Driedger on the Construction of Statutes.⁵⁶ Some of these references have already been identified above, but, given the complexity of the subject, the Tribunal considers it appropriate to examine Professor Sullivan's relevant writings in greater depth.

[137] Professor Sullivan states that the terms `retroactive' and `retrospective' are often used interchangeably but the growing trend is to define `retroactive' legislation as legislation that applies to past facts and changes the past legal consequences of completed transactions. `Retrospective' legislation changes the future consequences of completed transactions by imposing new liabilities or obligations.⁵⁷ The Tribunal accepts use of the term `retroactive' as defined by Professor Sullivan.

[138] Professor Sullivan indicates that the 1977 Gustavson Drilling decision confirmed that it is strongly presumed that legislation is not intended to have a retroactive application to facts that occurred before the legislation came into force. To apply this principle, Professor Sullivan writes that it is necessary to identify which facts are relevant to the legislation and to situate them in time relative to its effective date.

Continuing fact situations consist of one or more facts that endure over a period of time...A continuing fact can be any state of affairs or status or relationship that is capable of persisting over time ... Where no limit in time is stipulated, a continuing fact situation continues and does not become part of the past until the fact-situation itself - the state of affairs or condition or relationship - comes to an end.

Successive fact situations consist of facts, whether ephemeral or continuing, that occur at separate times ... A fact-pattern, defined in terms of successive facts, is not complete and does not become part of the past until the final fact in the series, whether ephemeral or continuing, comes to an end.⁵⁸

[141] Professor Sullivan goes on to say that once the fact-situation has been identified - and, in this case, the Tribunal considers it to be a continuing fact-situation - the test set out in the legislation must be applied to the relevant facts. An application is not retroactive unless all the relevant facts were past when the provision came into force. With respect to a state of affairs such as the on-going systemic wage discrimination alleged in this Complaint, the provision (in this case, the 1986 Guidelines) is not retroactive unless the state of affairs has ended before commencement of the provision. Clearly, the position of the Commission, supported by the Alliance, is that the alleged systemic discrimination state of affairs did not end when the 1986 Guidelines became effective.

[142] The application of legislation, whether statutory or subordinate, to on-going facts or facts-in-progress, is not, according to Professor Sullivan, retroactive because "...to use the language of Dickson, J. in the Gustavson Drilling case, there is no attempt to reach into the past and alter the law or the rights of persons as of an earlier date".⁵⁹

Legislation that applies to on-going facts is said to have `immediate effect'. Its application is both immediate and general: `immediate' in the sense that the new rule operates from the moment of commencement, displacing whatever rule was formerly applicable to the relevant facts, and `general' in the sense that the new rule applies to all relevant facts, on-going as well as new.⁶⁰

[144] Although Canada Post submitted that to use the 1986 Guidelines to interpret section 11 of the Act for a complaint that originated in 1983 would amount to applying those Guidelines retroactively, the Tribunal finds that one is not dealing with the retroactivity of the 1986 Guidelines in this case. One is dealing with what Professor Sullivan has called a continuing "state of affairs" fact-situation. When the 1986 Guidelines came into effect they applied immediately and generally to all the on-going facts that started in the past and continued to the then-present and to the future. This included all facts involved in the alleged systemic wage discrimination.

[146] It is appropriate to address the Commission argument, made after the Supreme Court of Canada's decision of June 2003 in the Bell Canada case. The Commission submitted that the relevant point in time for determining what law applies to a complaint is the date of its referral to a tribunal. This point in time was described by the Commission as "the point of crystallization".

[148] The Commission further argued that the Supreme Court of Canada, in paragraph 47 of its Bell Canada decision "...appears to accept the position taken by the Commission before the Court that the referral date is the relevant cut-off point".⁶¹ That paragraph acknowledges that the Guidelines, like all subordinate legislation, are subject to the presumption against retroactivity. The Supreme Court indicated that the presumption "...is a significant bar to attempting to influence a case that is currently being prosecuted before the Tribunal by promulgating a new guideline".⁶²

[149] Canada Post's arguments on this same Supreme Court decision underlined that the Supreme Court, while stating the principle that no guideline can apply retroactively, did not declare that the date of the referral to a tribunal is the point in time for determining what law applies to a complaint. The Court, according to Canada Post's argument, simply cited an example of a hypothetical case being considered before a tribunal and indicated that retroactivity could not apply as it would be improper, in such an example, to allow the Commission to influence the outcome of the case by means of the promulgation of a new guideline. Under such circumstances, the Commission would be a party before the tribunal and also the drafting agency for the new guideline which would be, according to the Act, binding on the tribunal.

[150] The Tribunal finds Canada Post's argument to be the more persuasive one. The Tribunal does not consider the Supreme Court's decision in the Bell Canada case to have endorsed the date of a complaint's referral to the Canadian Human Rights Tribunal as the relevant cut-off point for determining what law applies to a complaint. Rather, the Supreme Court has cited but one obvious example to illustrate that the Commission's guideline-making power is constrained and cannot be applied retroactively. Moreover, the example underlines the Supreme Court's comment that a party is always at liberty to question the propriety of the Commission's guideline-making power, based on an argument that the guideline was made in bad faith or for an improper purpose.

[151] Canada Post has also argued that neither the Commission nor the Alliance can fairly or legally rely on the 1986 Guidelines in addressing the Complaint because that reliance would interfere with Canada Post's vested right to rely on defences available to it as of the date the Complaint was filed in 1983.

[152] Canada Post is arguing that the 1986 Guidelines impose on the Tribunal rules for interpreting section 11 of the Act which differ, in ways important to Canada Post's defences, from the rules that prevailed in the 1978 Guidelines. One of three examples of such differences mentioned by Canada Post was the ability, in the 1978 Guidelines, to include, when evaluating jobs, the value of overtime or shift work premiums. Since the 1986 Guidelines prohibit this inclusion, Canada Post argued that the latest Guidelines have removed a right of defence which was vested for Canada Post as of the date of the filing of the Complaint. This produces, according to Canada Post, an unfair result.

[153] As already noted, the Commission, in its submissions on vested rights, referred to the 2001 decision of Marceau, J. in which he stated that "[t]here is no concrete definition of what constitutes a `vested right', primarily because it is difficult to generalize across the cases and as each case must be studied individually...".⁶³ He also indicated that judges are often faced with a policy conundrum in addressing vested rights and may have to rule on the basis of the "greater good".⁶⁴

The key to weighing the presumption against interference with vested rights is the degree of unfairness the interference would create in particular cases. Where the curtailment or abolition of a right seems particularly arbitrary or unfair, the courts require cogent evidence that the legislature contemplated and desired this result. Where the interference is less troubling, the presumption is easily rebutted.⁶⁵

[157] The Tribunal considers the period of 1983 to 1986 to be a part of the continuum that constitutes the life of this case. These three initial years should not be viewed in isolation but should be seen in the context of the continuing fact-situation that existed at the time the 1986 Guidelines came into force.

[158] By 1986, although little had been accomplished amongst the parties in the investigation of the Complaint, all parties had kept one another apprised of work being done affecting the Complaint. For example, work continued by Canada Post and the Alliance in developing System One as a tool for evaluating the positions held by clerical staff at Canada Post. The Commission was informed of this work.

[159] Furthermore, Canada Post and the Alliance were actively involved during this period in the Commission's attempts to retrieve data for its job evaluation process. In fact, interviews of sample CR incumbents had commenced just prior to the 1986 Guidelines becoming effective in November of that year.

[161] The 1986 Guidelines had come into effect on November 18, 1986, long before the Commission referred this Complaint, on March 16, 1992, to the Canadian Human Rights Tribunal for a hearing. The Commission had played a role in the discussions amongst the parties as the Complaint moved through the Investigation Stage. Many of the matters discussed by the parties before 1986 involved issues which later became part of the 1986 Guidelines, such as occupational groups and methods of job evaluation, including assessment of value.

[162] There was, therefore, an understanding, by all concerned, of the Complaint as originally drafted. Although the 1986 Guidelines represent a significant change from the 1978 Guidelines, their introduction did little more than codify some of the Commission's procedures with which all parties had been dealing from the date of the Complaint. The wording of the Complaint, itself, exemplifies the historical nature of these procedures, as it speaks of female and male-dominated occupational groups, and the wages paid to employees within these groups. These procedures are not a part of the Act, nor were they a part of the 1978 Guidelines. They are, however, a part of the 1986 Guidelines.

[163] Real unfairness or prejudice would arise, as the Supreme Court indicated, if guidelines which were pertinent to a complaint already sent to be heard by a tribunal were promulgated after its referral to that tribunal. Even in complaints under section 11 of the Act, the Commission could, by promulgation of guidelines during the life of a tribunal, influence its outcome. That is not what happened in this case.

[164] With respect to Canada Post's example of the 1986 Guidelines' exclusion of overtime or shift work premiums from the value of work being an infringement of its vested rights, the Tribunal prefers the Commission's submission. The Commission indicated in submissions that this is an example of a neutral policy "trade-off". The complainant does not include the overtime or shift work premium in the value of wages, while the employer does not include overtime or shift work in its job point value. It is not an example of the removal of a Canada Post right of defence.

[165] In terms of the "greater good" argument, the Tribunal accepts that the Commission's promulgation of the 1986 Guidelines was an attempt to bring much needed clarification to the interpretation of section 11 of the Act, without injustice to any party. The creation of the Guidelines was completed after many years of consultation with companies and organizations, including Canada Post itself. The Tribunal accepts that the Commission's decision to create new guidelines in 1986 was for the benefit of the "greater good".

[166] Therefore, the Tribunal fails to understand how the introduction of the 1986 Guidelines after the presentation of the Complaint to the Canadian Human Rights Commission has been unfair or prejudicial to Canada Post, an infringement on its vested rights, or an improper influence upon the outcome of the Complaint before this Tribunal.

[167] Accordingly, the Tribunal concludes that the 1986 Guidelines are applicable to the issues to be addressed in the current Complaint. The question of the retroactivity of these Guidelines is not applicable to this Complaint, brought under section 11 of the Act. The facts involved are on-going, or continuing, and, as such, do not give rise to a concern about retroactivity. Additionally, the Tribunal finds that there is no infringement of Canada Post's vested rights because of the applicability of the 1986 Guidelines.

[168] All parties agreed that the Guidelines are subordinate legislation, created under the power given to the Canadian Human Rights Commission by section 27 of the Act, and as such, must not be in conflict with the Act. There is, however, a presumption that subordinate legislation is valid. When a party challenges subordinate legislation, the onus is on that party to convince the decision-maker that the subordinate legislation being challenged is invalid. The question to be answered by the decision-maker is a question of law.

[169] In this Complaint, Canada Post has challenged subsection 8(2) and sections 11 to 15 inclusive, of the 1986 Guidelines, based on its argument that a simple reading of the Act, giving straight-forward meaning to the words of the Act, and section 11 in particular, creates an inconsistency with the words and meaning in the challenged sections of the 1986 Guidelines. It is this lack of cohesion between the words and meaning of section 11 of the Act, as interpreted by Canada Post, and the words and meaning of those sections of the 1986 Guidelines, the subordinate legislation, which creates, according to Canada Post, a situation where the Commission has not exercised its power under section 27 of the Act in a reasonable manner, and thus caused those sections of the 1986 Guidelines to be invalid.

[170] The parties' submissions dealt with what should be the acceptable approach to determine validity of guidelines. Once argument was heard concerning the test for validity, further submissions were made by each party concerning its position on the issue of the validity of sections of the Guidelines impugned by Canada Post.

[173] Canada Post submitted that, when testing the validity of challenged subordinate legislation, the Guidelines, the Tribunal must first construe the enabling legislation, and then assess the validity of the impugned sections of the Guidelines. Canada Post considered that this methodology is different from that espoused by the Commission's arguments.

The basic principles of law are not in doubt. Just as subordinate legislation cannot conflict with its parent legislation ... so too it cannot conflict with other Acts of Parliament, ... unless a statute so authorizes... Ordinarily, then, an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation. However, as a matter of construction a court will, where possible, prefer an interpretation that permits reconciliation of the two. `Inconsistency' in this context refers to a situation where two legislative enactments cannot stand together.⁶⁸

[176] The Commission submission pointed to what it perceived to be Canada Post's argument that this presumption of cohesion disappears once there has been a challenge to the validity of subordinate legislation. The Commission argued that were this to be the case, there would no longer be a recognition of the importance of seeking reconciliation of differences as was underlined in the Oldman River case.

[177] The Commission argued that it is immaterial whether one takes its approach of reading the enabling legislation and the subordinate legislation together, or Canada Post's approach of first construing the enabling legislation and then addressing the subordinate legislation. The important part of the exercise is to test whether there is a consistency and a cohesion between the two levels of legislation.

11(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.

15(1) Where a complaint alleging a difference in wages between an occupational group and any other occupational group is filed and a direct comparison of the value of the work performed and the wages received by employees of the occupational group cannot be made, for the purposes of section 11 of the Act, the work performed and the wages received by the employees of each occupational group may be compared indirectly.

15(2) For the purposes of comparing wages received by employees of the occupational groups referred to in subsection (1), the wage curve of the other occupational group referred to in that subsection shall be used to establish the difference in wages, if any, between the employees of the occupational group on behalf of which the complaint is made and the other occupational group.

[179] Canada Post submitted that its interpretation of section 11 of the Act is purposive, broad and liberal while, at the same time, follows the modern approach to statute interpretation. The latter demands that the decision-maker read the words of the statute "in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, and the intention of Parliament".⁶⁹

[180] In subsection 11(1), the words which have elicited a marked difference of interpretation amongst the parties are "male and female employees". Canada Post submitted that this phrase, seminal to the whole of section 11, means what it says. It is talking about discrimination between employees who are either men or women, and not between groups of people made up of men and of women. The discrimination is based on sex, and manifests itself in a difference in wages paid to the men and women involved.

[181] Canada Post submitted that the focus of concern in section 11 of the Act is sex discrimination between individual men and women as seen in the difference in wages paid by employers to those men and those women for the work they do. If this interpretation is accepted, sections 11 through 15 of the Guidelines must be invalid because they do not relate to section 11 of the Act in any way. Subsection 11(1), so interpreted, does not speak of occupational groups and of the need to determine the gender percentage of those groups in order to classify them as either "male-dominated" or "female-dominated". Therefore, the concerns addressed by sections 11 through 15 of the Guidelines would not be applicable at all. Those sections would represent the promulgation of guidelines by the Commission which are not consistent with the underlying statute. Therefore, they would be invalid.

It's a discriminatory practice ... something that is prohibited, for an employer to establish and maintain, that is, to exercise some creation or some power to create or continue, differences, that is higher and lower wages ... between two people, two classes of people, male employees and female employees...between employees who are men and employees who are women...employed in the same establishment ... [which] means subject to a common wage and personnel policy ... There is only a difference of wages that's prohibited if the employees, the male and female employees in the same establishment, are performing work, their work, their individual work of equal value...⁷⁰

[183] Canada Post argued that a complaint, based upon section 11 so interpreted, could be made by any individual, man or woman, or by any group of men or women, without the constraint of artificial barriers against persons who are employed in occupational groups whose work is classified as gender neutral or "male". The complaint mechanism would become more accessible to all employees. Therefore, the general purpose of the Act, to eliminate discrimination based upon, inter alia, sex, would be advanced. The restriction, argued Canada Post, which is created by the Commission's interpretation of section 11, especially in its promulgation of sections 11 through 15 of the Guidelines, would be removed.

[184] Of more import, however, according to Canada Post, is the Commission's apparent transforming of the plain language of subsection 11(1) of the Act into a completely different approach to the concept of "equal pay for work of equal value" through the use of the Guidelines. Instead of dealing with discrimination based on gender in the arena of wages, the Commission, according to Canada Post, has interpreted section 11 to be focused on discrimination based on the undervaluation of women's work in segregated occupational groups. In other words, the Commission has decided that section 11 of the Act addresses the concept of "pay equity". Once the Commission decided to deal with section 11 in that manner, it had to define the occupational groups.

[185] The basis of Canada Post's submissions concerning the interpretation of section 11 of the Act is that the section is not about "pay equity". The "work of equal value" which must be compared in order to prove the discriminatory practice being denounced by section 11 is the work of each of the men and each of the women employees involved in the complaint. The section does not address the work of occupational groups made up of men and women who are doing "women's work" or "men's work".

[186] Canada Post submitted that its interpretation of section 11 is a natural progression, historically, from previous legislation which addressed discrimination against working women. The first such legislation, early in the twentieth century, was a minimum wage for women employees. That was followed, decades later, by legislation denouncing the practice of paying women lower wages for work which was found to be either the same, or substantially similar, to work being done by men. Although this natural progression could lead, eventually, to the concept of "pay equity", Canada Post's argument is that section 11 cannot be interpreted as a movement on the continuum to that point.

[187] Canada Post's submission was that section 11 of the Act cannot be characterized as addressing the concept of "pay equity". Canada Post emphasized, in its final argument, that provincial legislation concerning "pay equity" is specific in nature. There is usually a separate provincial Act which is entitled a "Pay Equity Act". The concept is not incorporated into provincial human rights legislation because, generally, it is not complaint-driven but rather is a mandated concept carrying specific methodologies and rules for its implementation.

[188] Canada Post argued that the process of dealing with "pay equity" derives its ideas from academic studies and literature which has evolved concerning this abstract concept. The methodology is based upon job classes which are predominantly female or predominantly male because the purpose of "pay equity" studies, and eventually, "pay equity" legislation, is to address the inequities which have evolved in employment due to occupational segregation and the undervaluing of predominantly female occupations. Canada Post's argument continued, however, to stress that the Canadian Human Rights Act is concerned with the difference in wages between men and women based on gender discrimination not the broad concept of "pay equity". The Act is, according to Canada Post, concerned about protecting individuals from disadvantage or discrimination resulting from fundamental individual characteristics.

[189] Canada Post's submission was that the Act has been promulgated for the benefit of individuals in Canadian society. The purpose of the Act, as set out in section 2, underlines that this human rights legislation was created so that "...all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have...". The grounds for discrimination which are listed in the Act are characteristics of individuals. Section 3 of the Act specifically indicates that the list of grounds is "[f]or all purposes of this Act". As one reads further in the Act, each section follows the next to speak of "individuals" or "employees".

[190] This commonality is broken by section 11 of the Act which does not speak of an individual employee or a group of employees, but addresses discrimination involving "male and female employees". It is this change in language which alerts us, argued Canada Post, to the fact that this particular section addresses systemic discrimination, for it indicates Parliament's concern about whether there is systemic discrimination, whether there is a pattern within the overall establishment of setting differences in wages between men and women performing work of equal value.

[191] Canada Post underlined in its submissions that it accepts that section 11 addresses systemic discrimination, but argued that this acceptance does not mean that it accepts that complaints of systemic discrimination can only be brought by groups. Indeed, it submitted that individual complaints can be made based on allegations of systemic discrimination

...if it's systemic discrimination, and if it's men and women employed in the establishment, you take the wages of the women employed in the establishment and you take the wages of the men employed in the establishment, and you compare the work of men and women performing work of equal value and their wages. If there is a pattern of wage differences, then there is a violation.⁷¹

[193] This comparison cannot, according to Canada Post, be equated with the evaluation process which is either mandated or is commonly followed when one is dealing with "pay equity" issues. That process most often involves the comparison of the value of work of groups of persons who are doing either "women's work" or "men's work".

[194] The Commission's submission was that there is binding precedent from Evans, J., then of the Federal Court (Trial Division), in the Treasury Board case⁷², that the Commission's interpretation that section 11 does address the issue of "pay equity", as evidenced by the promulgation of the 1986 Guidelines, is correct. In answer, Canada Post argued that the acceptance by Evans, J. of the Commission's interpretation (and the use of the 1986 Guidelines) was based on the fact that all parties involved in that case accepted that interpretation. As there was no challenge to the Commission's interpretation of section 11, the presumption that the Guidelines were valid was never challenged. Canada Post noted that any comment made by Evans, J. must be accepted by this Tribunal as merely that - comment which can be useful to the Tribunal as it crafts its decision concerning the issue, but not binding on the Tribunal as precedent.

[195] Additionally, Evans, J. made extensive comment on the viability of Guideline 14, which addresses occupational groups, in the context of section 11 of the Act. The interpretation of that particular guideline was the main issue to be decided by the tribunal which heard the Treasury Board case and by the Federal Court which reviewed its decision. The comments of Hugessen, J. in the Department of National Defence case⁷³ were alluded to by Evans, J. and, therefore, should be, according to the Commission arguments, of import to this Tribunal's interpretation of section 11 of the Act.

[196] The Commission submitted that the Supreme Court of Canada, in its June 2003 decision in Bell Canada, found that the Commission has the power, conferred upon it by section 27 of the Act, to create guidelines which are analogous to Regulations. That decision, argued the Commission, has created the presumption that the Guidelines are valid.

[197] As is a challenge to promulgated Regulations, a challenge to the validity of the Guidelines is difficult. Courts prefer to accept that the subordinate legislation can be reconciled with its enabling legislation. If it were to accept Canada Post's interpretation, the Commission argued, the Tribunal would have to find that there is an operational conflict between the Act and the Guidelines, and that there is no ability to reconcile the conflict.

[198] The Commission argued that Canada Post's choice to begin its "ordinary meaning" argument with the words "male and female employees" avoids the true meaning of section 11. The Commission based its submissions on the historical evolution of the concept of "equal pay for work of equal value", as well as comments made by the Courts. After so doing, it submitted that the Tribunal should accept the Commission's interpretation of section 11 of the Act as Parliament's enunciation of the principle of "pay equity". The Commission further submitted that Parliament addressed the difficulty of dealing with the abstract concept of "pay equity" by giving the Commission the tools to make that principle operational. Those tools include the Commission's ability to promulgate guidelines, pursuant to section 27 of the Act.

[199] Therefore, the Commission promulgated its guidelines to accord with the purpose of "pay equity" legislation. The Commission submitted that the purpose of such legislation is to ameliorate the occupational segregation of women and the discriminatory payment of lesser wages to those segregated groups for work which is equal in value to work done by groups mainly composed of men. The main focus of section 11 of the Act, according to the Commission, should be the work which is being done, and its value, not the gender of the incumbents who are doing the work.

[200] Based on this broad and liberal interpretation, argued the Commission, sections 12 through 15 of the 1986 Guidelines represent the methodology which must be used to make the principle enunciated in section 11 of the Act a workable theory. Those sections of the Guidelines are absolutely connected to section 11 of the Act, and make the two areas of the legislation work in tandem, to create a cohesive whole which is the basis for the evaluation work which must be completed to establish whether a complaint can be substantiated.

[201] The Commission argued that, notwithstanding Canada Post's adamant submissions that its interpretation of section 11 of the Act is broad and purposive, and is actually more liberal in its ability to encompass any complainant(s), the reality and the natural conclusions which the Canada Post interpretation would create are narrow and restrictive. Its interpretation does not address the broad concept of "pay equity" which is what the legislation was intended to address from its beginnings.

[202] According to the Commission's submissions, Canada Post's interpretation would restrict the evaluation process to a singular methodology. Only the job-to-job approach could be used. Only an examination of the whole "system" could be made in the evaluation process, even if the complainant were a single individual. Although there was a concession by Canada Post that representative sampling could be done at the evaluation stage, the Commission argued that Canada Post's interpretation of section 11 of the Act would create a cumbersome methodology which would, in fact, be regressive in nature.

[203] All parties have quoted from Sullivan's Driedger on the Construction of Statutes, in its many iterations. The Tribunal agrees that this work is seminal when one is dealing with statute interpretation. Of note are the commentaries on what Driedger styled "the modern rule" of interpretation, as follows:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of the legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court will then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.⁷⁵

[205] Based on these interpretive principles, the Tribunal finds that the Commission's submissions concerning the interpretation of section 11 of the Act represent the more appropriate approach to this section. The Tribunal has read the section within the context of the Act. Additionally, it has considered the interpretations of section 11 which have been presented by tribunals and Courts in the past. The Tribunal has before it expert evidence which addressed the historical evolution of the concept of "pay equity". This evidence, combined with comments made by Member of Parliament, the Honourable Ron Basford, during the discussions preceding the promulgation of the Act, reinforces, in the Tribunal's view, the finding that section 11 of the Act is intended to address the issue of "pay equity".

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

[207] Canada Post's submission that this purpose underlines the Act's scope as legislation which targets discrimination solely against individuals on specific grounds cannot be accepted. It is the Tribunal's view that this is a restrictive interpretation of legislation which is clearly meant to address the broad issue of discrimination against all persons. Acts of Parliament must be interpreted using large and liberal construction which will result in fairness to all. The elimination of groups made up of both male and female persons from the protection of the Act would result in a narrowing of the purpose of the Act. The Tribunal rejects this interpretation, and accepts that section 11 of the Act, in addressing discrimination in the area of "pay equity", conforms with the general purpose of the Act.

[208] One of Canada Post's submissions was based upon what it characterized as an historical continuum of legislation. This continuum included other work-related legislation which has addressed the very real problem of a difference in wages paid to female and male workers, such as the Canada Labour Code. As noted already, successive governments have attempted, from the turn of the nineteenth/twentieth centuries, to deal with the problem of differences in wages paid to male and female workers. From Canada Post's perspective, the passage of section 11 in the Act represents stage 4 in a continuum which began with minimum wage legislation, and moved on to "equal pay for the same work" done by males and females, slightly modified to become "equal pay for substantially similar work" and, according to their argument, would naturally evolve to become "equal pay for work of equal value" done by male and female workers. Eventually, in Canada Post's submission, "pay equity", a concept further along on the continuum, and somewhat distant from the first four concepts in its methodology and its focus, might become an issue to be addressed as stage 5. Its main argument, however, was that the concept of "pay equity" is not currently a part of the Act.

[209] Canada Post conceded that the focus on occupational groups, deemed predominantly female or predominantly male, which can be compared using various methodologies involving such statistical means as regression analysis, is a legitimate characteristic of a "pay equity" study. Its submission was, however, that section 11 of the Act is not about "pay equity".

[210] "Pay equity" legislation is, according to Canada Post, something entirely dissimilar from a denunciation of a difference in wages between men and women for work of equal value. While Canada Post agrees that "pay equity" has its focus on the problem of the occupational segregation of women, and the related problem of the undervaluation of women's work, it believes this interpretation represents a leap in conceptual thinking from what it argues are the clear words of section 11. As such, Canada Post implies that "pay equity" cannot be what Parliament meant to address when it created section 11 of the Act.

[211] The Tribunal rejects this argument that "pay equity", as a concept, is beyond the scope of the Act. The concept has already been accepted as the interpretive basis for section 11 of the Act. In one of the first cases to discuss section 11, Public Service Alliance of Canada v. Canada (Department of National Defence), the Federal Court of Appeal noted that:

[t]he case concerns pay equity...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 ... in contravention of Sections 7 and 11 of the Canadian Human Rights Act.⁷⁷

...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' ... 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.⁷⁹ (emphasis added)

[emphasizing] the most subtle forms of discrimination ... [and recognizing] 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.⁸⁰

[216] From this position, Hugessen, J. indicated at paragraph 15 that "[I]t is arguable, indeed, that the type of discrimination which pay equity is designed to counteract is always systemic". He went on to quote from Nan Weiner and Morley Gunderson, Pay Equity Issues: Options and Experiences (Toronto: Butterworths, 1990) as follows

...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-a-vis another (e.g., on women versus men) ... Pay equity requires changes to pay systems to ensure that women's jobs are not undervalued. (emphasis added)

[217] Again, Hugessen, J. underlined his decision that section 11 of the Act is dealing with the concept of "pay equity". He clearly indicated, by quoting from Weiner and Gunderson, that this concept deals with women's jobs which, historically, have been undervalued and must be addressed to change that systemic discrimination. It is the jobs which are of primary importance, not the gender of the incumbents.

[218] This point, that the basis for equal value legislation in Canada was the perceived need to address occupational segregation and the undervaluing of women's work, was emphasized to the Tribunal in this Complaint by Professor Pat Armstrong who was accepted as an expert in women's work, women's wages, and the sociological aspects of equal pay legislation. She stressed that, historically in Canada, there has been a segregation of jobs into female and male dominated areas.

[219] Dr. Armstrong noted that one of the federal government's responses to the Royal Commission on the Status of Women (1970) was the promulgation of the Canadian Human Rights Act, 1978, including section 11 of the Act to address systemic discrimination in wages, due to job segregation. This historical background, therefore, must be taken into consideration when interpreting section 11 of the Act. The purpose of the section must include the need to address the undervaluation of women's work, as seen in the segregation of that work into occupational groups dominated by women.

[220] Section 11 of the Act, she indicated, is about "pay equity" and, as such, must deal with male and female-dominated job classes in order to address the occupational segregation which that concept targets. In addition to addressing jobs and gender, "pay equity" must discuss these issues through the prism of occupational segregation.

[221] This expert evidence echoes the statement of the Honourable Ron Basford, Minister of Justice during Parliamentary debates in 1977 which preceded passage of the Act. As noted in paragraphs [53] and [54] of this Decision, the Honourable Ron Basford anticipated problems with the concept of equal pay for work of equal value as presented in section 11 of the Act. He noted, however, that the government's approach was to legislate the principle, and give to the Commission the task of solving any problems involved in the implementation of that principle. He went on to indicate that the underlying problem was occupational segregation of women, and their historical lower wages, caused by an undervaluation of women's work.

[223] The principle of "pay equity" between men's work and women's work which has equal value demands a methodology which has evolved as the concept has evolved. The methodology to be used to address the concept is not part of section 11. As the Supreme Court underlined in its June 2003 decision, the task of fleshing out the operation of section 11 of the Act has been given to the Commission. The promulgation of the 1986 Guidelines is the direct result of the task mandated to that body.

[224] Each section of the Guidelines which Canada Post has challenged, based on its interpretation of the Act, addresses the concept of "pay equity". Indeed, Canada Post conceded in its submissions concerning the interpretation of section 11 of the Act that the Guidelines would be coherent and logical if one were dealing with "pay equity" in section 11. Their position was that section 11 does not make the conceptual leap to "pay equity" but rather must be interpreted using a straight-forward "simple meaning" approach.

[225] The Tribunal finds that "pay equity" is the concept which section 11 was created to address. The words of the text allow for the plausibility of this interpretation, as commentators have used the terms "equal pay for work of equal value", "comparable worth", and "pay equity" almost interchangeably. This interpretation of section 11 is efficacious, as it promotes the legislative purpose as enunciated by the Minister of Justice immediately prior to the promulgation of the Act, as well as the intended purpose of the Act, section 2, read in a broad and liberal manner. Given the finding that this interpretation is plausible and efficacious, it is accepted as a reasonable and just interpretation which addresses the purpose of the Act both specifically in the section itself, and within the context of the whole philosophy of the Act.

[226] Accordingly, the Tribunal concludes that "pay equity" has been accepted as the interpretative basis for section 11 of the Act, which addresses the undervaluation of work performed by women in occupational groups dominated by women. Examination of male and female job classes, therefore, becomes an important aspect of any "pay equity" study and the Commission's 1986 Guidelines, particularly those sections challenged by Canada Post, provide assistance in making that possible.

[228] The Tribunal reiterates that a proper interpretation of section 11 recognizes that the section was created to address the concept of "pay equity", as described above. The Commission was entrusted, pursuant to the Act, to implement the concept and was required to make it operational by means of promulgating certain guidelines.

[229] The Tribunal, therefore, concludes that the impugned sections 11 through 15 of the 1986 Guidelines, in providing guidance to interpret the "pay equity"-based section 11 of the Act, are vital to that interpretation. They also provide a cohesion and a wholeness to the legislation and are consistent with the meaning of section 11 of the Act and are, accordingly, valid and operable.

[230] Additionally, subsection 8(2) of the 1986 Guidelines addresses specifically the methodology to be used when dealing with a particular aspect of the working conditions factor set forth in subsection 11(2) of the Act. As such, it, too, is necessary to the fleshing out of the principles of the Act, and is consistent with the meaning of section 11.

[231] In reaching these conclusions, the Tribunal has addressed the submissions of both Canada Post and the Commission concerning how best to test for the validity of the subordinate legislation. In effect, the Tribunal has endorsed the approach that one first interprets the enabling legislation, and then, based on that interpretation, determines whether the impugned subordinate legislation is consistent with its enabling statute.

In view of the breadth of the statutory language of subsection 27(2), and of the attributes of the body to which the discretion has been conferred, a provision in any guidelines issues will only be held to be invalid if it is clearly incompatible with the terms of the grant of statutory power, when construed in light of the purposes of the Act...⁸¹

[233] Using the language of Mr. Justice Evans, the Tribunal finds that subsection 8(2) and sections 11 through 15 of the 1986 Guidelines, challenged by Canada Post, are not incompatible with their enabling legislation when construed in light of the purposes of the Act. Indeed, the impugned Guidelines are necessary to the smooth operation of the Act and are found to be valid.

[234] The question to be addressed is whether or not the proof by presumption referred to by Evans, J. in the Treasury Board decision, is a rebuttable presumption. All parties in this Complaint have agreed that a presumption, by its very nature of being a presumption, can be rebutted. The real question is what constitutes an acceptable rebuttal under the circumstances of this Complaint? Can this presumption, for example, be rebutted by "reasonable factors" other than those identified in the Guidelines?

Accordingly, once a complainant has established a difference in the wages paid to male and female employees performing work of equal value, a breach of section 11 is thereby established, subject only to the employer's demonstrating that the difference is attributable to one of the `reasonable factors' prescribed in Section 16 of the Guidelines.⁸²

Subsection 11(1) can thus be seen to have tackled the problem of proof by enacting a presumption that, when men and women are paid different wages for work of equal value that difference is based on sex, unless it can be attributed to a factor identified by the Commission in a guideline as constituting a reasonable justification for it.

...the nature of systemic discrimination often makes it difficult to prove that the disadvantaged position in the workplace of many members of particular groups is based on the attributes associated with the groups to which they belong. This is because, as Dickson, C.J. observed ... systemic discrimination `results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination'. Accordingly, an employer's wage policies and practices may be based on such deep-rooted social norms and assumptions about the value of the work performed by women that it would be extremely difficult to establish in a forensic setting that, if women were paid less than men performing work of equal value, that difference was based on sex.⁸³

[240] Canada Post elaborated that it would be inconsistent with the purpose of the Act to allow only the Commission to displace the presumption of subsection 11(1) by means of its specified "reasonable factors". It argued that the purpose of the Act is to address discrimination on various grounds and section 11 does not include all of the grounds. It concerns discrimination based only on sex.

[241] Accordingly, Canada Post added, the respondent or employer should be able to lead evidence to show that the reason for a wage difference, while not being a "reasonable factor", may be due to some cause other than sex. In other words, the list of "reasonable factors" cannot be close-ended but rather must be open-ended, thus providing an additional line of defence to rebut the presumption.

[243] Essentially, Canada Post argued that if the employer or respondent put evidence before the Tribunal which showed, on a balance of probabilities, that the wage gap was not the result of sex discrimination, then that would constitute a rebuttal of the presumption. It is Canada Post's position that Evans, J. has not foreclosed this argument.

[244] The Commission argued that Evans, J. was very clear about what constitutes a rebuttable presumption under subsection 11(1), namely, that only evidence of the presence of "reasonable factors" described in section 16 of the 1986 Guidelines can rebut the presumption that, once a difference in wages between male and female employees performing work of equal value is established, on a balance of probabilities, discrimination based on the ground of sex is also established.

[245] Moreover, the Commission cited paragraph 48 of the Supreme Court of Canada decision, dated June 26, 2003, in Bell Canada (Supra note 39). This citation refers to the role of the Commission when it issues guidelines specifically dealing with the "reasonable factors" noted in subsections 11(4) and 27(2) of the Act to justify gender wage differences, as follows:

[247] Finally, it is helpful to consider the testimony of expert witness for the Commission, Professor Pat Armstrong, concerning systemic discrimination as a concept. The witness was responding to a question from Canada Post's counsel, in cross-examination, relating to the Province of Ontario's human rights legislation:

Systemic discrimination is presumed ... systemic discrimination refers to discrimination that arises from a variety of factors, not a single factor, like a single employer behaving inappropriately. Equal pay for work of equal value is based on a certain kind of discrimination. That is what is recognized as systemic discrimination, which is why guilt is not the issue, or, as Morley Gunderson says in his work for the Abella Commission, why it is not a question of even looking for root causes. It is an issue of trying to make pay more equal between male - and female - dominated work. So, it is not a question of discrimination in the general sense, but in the specific sense of systemic discrimination.⁸⁴

[248] The Tribunal accepts that section 11 of the Act is addressing, primarily, a particular discriminatory practice commonly known as systemic discrimination. This type of discrimination has often arisen, historically, from recruiting and hiring policies and practices that have inherently, but not necessarily intentionally, resulted in female employees being paid less than male employees for work of comparable value. The concept of "equal pay for work of equal value" is, therefore, an attempt to address systemic discrimination by measuring the value of work performed by men and women.

[251] Evans, J. clearly states that the presumption under subsection 11(1) can be rebutted by "reasonable factors" established by the Commission under subsections 11(4) and 27(2) of the Act. On the other hand, Canada Post has argued that rebuttal should not be limited to the "reasonable factors" included in the Guidelines, but should be "open-ended".

[252] The Tribunal notes that the aforementioned Supreme Court of Canada decision supports the view that the legislative intent was to add precision to the Act in terms of the guideline-making power which, in the Tribunal's opinion, is compatible with taking a "close-ended" approach to the establishment of "reasonable factors". Moreover, a close-ended list of "reasonable factors" would, in the Tribunal's view, also be compatible with the principle of narrowly construing defences in human rights cases.

[254] Because of the systemic nature of the discrimination alleged in the Complaint before the Tribunal, the Complaint is addressed using the current Act, as amended in 1998. This is evident from the discussion of retroactivity and the validity of the 1986 Guidelines noted in Section IV, B of this Decision. Therefore, the Tribunal must look at each element of section 11, as it currently reads. Each element in section 11 of the Act must be substantiated, on a balance of probabilities, in order to substantiate the Complaint.

[255] Section 11 proscribes sexual discrimination in the determination of wages. Subsection 11(1) provides that 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. Subsection 11(2) provides the criterion for assessing the value of the work being compared. The value assigned to the work must be based on the composite of the skill, effort, responsibility and working conditions involved in performing the work. Additionally, subsection 11(4) allows an exemption to employers from a finding of discrimination because of special circumstances which are described as "reasonable factors".

[256] As noted in Section IV, C of this Decision, section 11 contains a built-in presumption of discrimination based upon sex, one of the prohibited discriminatory factors noted in the Act, when a difference in wages has been found to exist between male and female employees, employed in the same establishment, performing work of equal value. This presumption is subject to the constraint of "reasonable factors", presented in subsection 11(4) and expanded in definition by the Guidelines.

[257] As noted in Section IV, B of this Decision, the 1986 Guidelines are necessary to any discussion of section 11 of the Act, as they illuminate the principle of "pay equity" which is the basis for the section. Therefore, when addressing section 11 in the context of the Complaint before this Tribunal, each of the following elements must be proven, on a balance of probabilities. The elements are taken from section 11 of the Act and from the guidance which is offered concerning the particularizing of the section through guidelines promulgated by the Commission pursuant to its mandate under section 27 of the Act.

(3) The value of the work being compared between the two occupational groups has been assessed reliably on the basis of the composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed. The resulting assessment establishes that the work being compared is of equal value.

(4) A comparison made of the wages being paid to the employees of the two occupational groups for work of equal value demonstrates that there is a difference in wages between the two, the predominantly female occupational group being paid a lesser wage than the predominantly male occupational group. This wage difference is commonly called a "wage gap".

[258] The history of the groups known as CR's and PO's begins when the Treasury Board classification system was created for federal government departments in the 1960's. That system is still generally maintained in the federal sphere to date. The Post Office Department within the federal government was the precursor to the Crown Corporation, Canada Post. When, by federal statute, the Crown Corporation, Canada Post, was established in 1981, the federal government classification standards and the wage scales attributed to the government classification levels were maintained for those government employees who became employees of Canada Post. This was accomplished pursuant to the transition rules in the statute which created Canada Post as a Crown Corporation.

[259] This Complaint was presented to the Commission by the CR occupational group, employed by the newly-created Canada Post. The CR group identified itself in the Complaint as "female-dominated". The group was made up of workers who had been classified as "Clerical and Regulatory" when they were employed in the Post Office Department. This Treasury Board classification was used for all Clerical and Regulatory workers employed throughout the federal government. When the CR's in the Complaint became part of the Crown Corporation, Canada Post, their CR classification was maintained. There was, however, an undertaking between the Alliance, the union representing the CR's and certain other occupational groups, and Canada Post that negotiations to re-evaluate the CR and other positions would eventually take place. This undertaking was the basis for the work which Canada Post management and the Alliance engaged in when they attempted to create the "System One" evaluation scheme.

[260] The complainant group chose, as its comparator for the Complaint, the "male-dominated" Postal Operations group, the PO's. The PO's had been, like the CR's, employees of the federal government when the Post Office was a government department and had retained their status as PO's when they became employees of the newly-created Crown Corporation. These employees, represented by the Canadian Union of Postal Workers (CUPW), had originally been members of a unique federal group called "mail handlers".

[261] As noted in paragraphs [25] and [26], above, on January 24, 1992, the date of the Commission's Final Investigation Report of this Complaint, with its recommendation that the Complaint be referred to the Tribunal, there were 2,310 CR positions, separated into levels of CR-2 (260 positions), CR-3 (950 positions), CR-4 (950 positions), and CR-5 (150 positions). There were 43,099 PO positions, separated into PO-INT positions (with four levels), PO-EXT positions (with three levels) and PO-SUP positions (with 6 levels). Although the actual effective date of these numbers has not been identified in the Commission's Final Report, it is assumed they represent the populations of the two groups as of the date of the Final Report, or close to that date.

[263] Section 11 of the Act addresses work and wages in the context of "pay equity". Historically, "pay equity" has attempted to address the gender-based segregation of work, and the wages which flow from this segregation. Traditionally, the wages paid for work generally performed by women have been less than those paid for work generally performed by men. Because section 11 does not provide a definition for what constitutes a predominantly gender-based occupational group, the Tribunal must seek clarification from sections 12 and 13 of the 1986 Guidelines. The Commission used its powers under section 27 of the Act to produce this practical guideline for group complaints. Sections 12 and 13 of the 1986 Guidelines permit a comparison between "occupational groups" as long as those groupings represent work being done predominantly by males and predominantly by females.

[264] Section 13 of the 1986 Guidelines identifies several formulas for determining when an occupational group is considered to be predominantly of one sex. For example, an occupational group numbering more than 500 is deemed to be composed predominantly of one sex if at least 55% of its members are of that sex. In the Complaint before the Tribunal, each group, as a whole, was made up of more than 500 members both at the time the Complaint was filed, and at the time it was referred to the Tribunal.

[265] The complainant group had indicated to the Commission, and expressed the belief in the wording of the Complaint itself, that it was a female-dominated group. The group chosen as a comparator was presented by the complainant as a male-dominated group. In 1983, over 80% of the CR group was comprised of female employees and just over 75% of the PO group was comprised of male employees.⁸⁶ At the time of referral of the Complaint to the Tribunal in 1992, the CR group remained predominantly female, with a percentage factor of over 83% female, and the PO group (which was now made up of only the PO-INT and the PO-EXT subgroups, the PO-SUP subgroup having been removed by the Commission during its investigation) remained predominantly male, with a percentage factor of just above 71% male.⁸⁷

[267] The submissions of both the Alliance and the Commission concerning the gender predominance of the two groups are based on their interpretation of the 1986 Guidelines. Additionally, they argue that the Guidelines are, unless found to be ultra vires (which is not the case in this Complaint), binding on the Tribunal, according to the Act.

[268] According to the 1986 Guidelines, argue the Alliance and the Commission, when an occupational group exceeds 500 in number, only 55% of the persons in the group need be of one gender to deem that group to be doing work of persons of that gender. Therefore, in this Complaint, the groups are deemed to be doing either work generally performed by women (the CR's) or work generally performed by men (the PO's) based on the fact that they are groups larger than 500 in total, and the percentage of either female or male members of each group makes its work representative of either female or male work. The argument is that this is a simple arithmetical computation which, once made, is one factor in choosing a complainant and comparator. It is the factor, however, which satisfies the element of section 11 (clarified by the Guidelines) which demands that, when one is dealing with a group complaint, the complainant be a predominantly female group and the comparator, a predominantly male group.

[269] Canada Post argues that the percentages are illusory. Its submission is that the Postal Operations group cannot be viewed as a melded group. The PO group is, and traditionally has been, according to Canada Post, a group which aspires to the principle of "straight-line" wage rates. Canada Post's argument stresses that, during the history of the Complaint, the PO-4 level has always been the largest single element of the subgroup, PO-INT. It is the PO-4 level which is, according to Canada Post, most representative of the PO occupational group as a whole, and the classification category where the most PO jobs are found. Indeed, Canada Post argues that the PO-4 level of the Postal Operations group has never been anything but essentially neutral in its gender make-up and should be more properly regarded as representative of the entire PO group. In 1983, 53% of employees classified at the PO-4 level were male and 47%, female. In 1992, the figures were 50.6% male and 49.4% female. If the Postal Operations group were defined in the manner of the PO-4 level, Canada Post submits that, as the comparator, it would not fit within the definition of a "predominantly male" comparator group pursuant to the Guidelines.

[270] Canada Post's argument is that to take the Postal Operations group as a whole is to ignore the historical trend by which the number of PO-4 level employees is becoming increasingly the most critical and representative category of Postal Operations workers. In fact, employees classified at the PO-4 level within the Internal Mail Processing and Complementary Postal Service Subgroup represented just over 83% of its Subgroup total in 1983, and 88% in 1992. On the other hand, as a percentage of the entire Postal Operations group, PO-4 level employees represented 41% in 1983 and almost 42% in 1992.

[271] The Tribunal does not accept this argument. The federal government job classification scheme is predicated upon the concept of groups of employees, bound together by occupational job categories. Within these groupings, the concept of levels is connected to wage differentials. Historically, these levels, with their wage differentials, were based on factors such as seniority, management's view of the importance of the work performed at each level, and the requisite training and skills necessary. That a union at Canada Post, representing many or all of the Postal Operations group may have decided to attempt to create a situation where the classification levels are essentially unrelated to wage differentials cannot change the historical concept that is the basis for the groups and levels themselves. It is this concept that is important to the designation of "occupational group" in sections 12 and 13 of the 1986 Guidelines, and to the issue of "pay equity" in section 11 of the Act.

[272] Therefore, the Tribunal accepts that the complainant occupational group, the CR's, and the comparator group, the PO's, are representative, respectively, of a female-dominated group and a male-dominated group because each is over 500 in number, and because each contains at least 55% of female employees (the complainant CR's) and male employees (the comparator PO's). This conclusion is based upon the 1986 Guidelines which indicate the importance of the size of each group, and the necessary percentage of either males or females in each occupational group of a specified size which will deem the group to be either male-dominant or female-dominant.

[274] Canada Post submits that, even if the groups are gender appropriate, the Alliance's choice of the Postal Operations group as its comparator was made because of that group's position, at the time, as being highly paid. Such a choice, in the "pay equity" context, would, in Canada Post's submission, be "cherry picking" and, therefore, not appropriate.

[276] He explained that, in a "pay equity" group complaint, the complainant group chooses its comparator group. "Cherry picking" in "pay equity" situations envisions a scenario where the complainant group chooses a comparator group which, while often small in members, represents the most highly paid of a number of available comparator groups. Although wages, understandably, is one natural aspect of the choice, as the "pay equity" complaint always involves an allegation of payment of less wages to the complainant when compared with the chosen comparator, choosing a group based solely on its characteristic of having high wages compared with the complainant group is not acceptable as a starting point for a legitimate "pay equity" comparison. It would skew the results of evaluation and comparison, in favour of the complainant. Allowing a "cherry picked" comparator would create upheaval within an establishment, as subsequent comparisons would be inevitable between the original complainant and other workers.

[277] During his explanation of "cherry picking", Mr. Willis expressed the opinion that the Complaint before the Tribunal was tainted from the beginning because of the complainant's "cherry picking" of the comparator, based on the relatively high wages paid to employees in the Postal Operations occupational group. When confronted with the fact that the membership of the PO group was by no means a small group, but rather represented approximately 80% of all Canada Post employees, he agreed that this choice would have been a "very big cherry".⁸⁸

[278] On behalf of the Commission, Mr. Paul Durber, Director of the Pay Equity Directorate at the Commission, and accepted by the Tribunal as an expert in pay equity, indicated in his evidence that the Postal Operations group, as a whole, was approved by the Commission as a suitable comparator group, as it was part of the employer's occupational groupings. At the beginning of the Commission investigation, the PO group also appeared to offer a certain ease of evaluation and comparison because of the general homogeneous nature of the various jobs in each of the PO-INT and PO-EXT subgroups.

[279] According to the evidence of Mr. Chris Jones, the union representative for the complainant group, one reason the comparator group was chosen was because of similarities in the duties and responsibilities of certain CR and PO jobs. A most obvious example was a CR job entitled `customer service clerk' and a PO job entitled `wicket clerk'. Although each job appeared to call for almost identical work, at the time of the Complaint each was paid differently. The superior wage of the wicket clerk and other PO jobs/positions made the apparently predominantly male Postal Operations group an obvious choice as comparator for the complainant. Additionally, the PO group represented, in absolute numbers, the majority of postal employees.

[280] Mr. Jones indicated that although the PO wages were thought to be generally higher than those of the CR's, the sheer size of the Postal Operations group was significant as a reason for its choice. As the largest group of Canada Post employees, representing by far the majority of the employer's total number of employees, the PO's were a natural choice of comparator for the CR's. The fact, too, that some of the work being performed by employees in both the complainant and comparator groups was similar in terms of skill, effort, responsibility, and working conditions underlined, for the complainant, the appropriateness of its choice of comparator.

[281] The Tribunal accepts that the largest occupational group within the organization, a group representing about 80% of the total Canada Post employee population, was an appropriate group to choose as a comparator. It appeared to be a predominantly male occupational group according to the Guidelines. The additional knowledge that certain members of the PO group were performing work which, in some instances at least, was similar to the work being performed by the complainant group added to the appropriateness of the choice.

[282] Additionally, the evidence indicates that there were few other comparators which could have been chosen. At the time of the issuance of the Complaint, the General Labour and Trades, and the General Services occupational groups - both apparently male-dominated, according to the Guidelines - represented a small percentage of Canada Post employees. Moreover, there is no evidence that the work being performed by members of these groups was observed to be similar to that of any members of the CR complainant group.

[283] Accordingly, the Tribunal finds that the complainant, a predominantly female occupational group, and the comparator, a predominantly male occupational group, are appropriately designated under section 11 of the Act and the 1986 Guidelines as representative groups for comparison of work generally performed by women and work generally performed by men. Therefore, the first element necessary to the establishment of a prima facie case under section 11 of the Act has been met.

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

Pour l'application de l'article 11 de la Loi, les employés d'un établissement comprennent, indépendamment des conventions collectives, tous les employés au service de l'employeur qui sont visés par la même politique en matière de personnel et de salaires, que celle-ci soit ou non administrée par un service central. (emphasis added)

[290] The Task Force noted that this definition was incomplete and would require further consideration. In this connection, it observed that "the introduction of the word `establishment' in section 11 was deemed to be an attempt to introduce the factor of regional differences in wage levels as a legitimate reason for differences in wages between employees".⁹⁰

[291] Mr. Paul Durber testified that, in his opinion, the above-noted geographic definition of `establishment' probably did not find its way into the September 1978 Guidelines because the Task Force had highlighted some conflicting views on the issue. In addition, he mentioned the need for the Commission to gain more experience in implementing section 11 before enshrining the definition in the Guidelines.⁹¹ There was, therefore, no definition of `establishment' in the 1978 Guidelines.

[292] In September 1984, the Commission issued the Interpretation Guide for section 11 of the Act, entitled "Equal Pay for Work of Equal Value".⁹² This Guide was intended to assist employers and employees to understand how the Commission would assess complaints by providing definitions of certain terms used in the Act and elaborating on the `reasonable factors' included in the 1978 Guidelines.

An establishment refers to all buildings, works or other installations of an employer's business that are located within the limits of a municipality, a municipal district, a metropolitan area, a county or the national capital region, whichever is the largest, or such larger geographic limits that may be established by the employer or jointly by the employer and the union.

[294] Mr. Durber testified that despite the 1984 Interpretation Guide's general support of the geographic definition of `establishment', the Commission did not apply it consistently as the Commission also frequently used an alternative definition based on functional lines, particularly for cases involving the Federal Government and national organizations which it considered to be single nation-wide `establishments'.

[295] The Chief Commissioner, in a letter dated March 19, 1985, to about 60 public and private sector employers, including Canada Post, sought their views on a number of proposed definitions and guidelines, including the definition of `establishment'. The request was aimed at removing much of the uncertainty experienced by some employers in implementing their own "pay equity" programs.

[296] The Chief Commissioner's letter indicated that it was proposed to define `establishment' more broadly and on a different basis than the one used in the Commission's Interpretation Guide. The proposal was that a functional definition would replace the Guide's geographic definition. Specifically, the Commission proposed that:

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

The Commission's proposed definition of `establishment' is also a source of concern. While the Commission has clear authority under the provisions of Section 22 of the Canadian Human Rights Act to provide guidelines, it is our understanding that those guidelines must conform with the Act taken as a whole. To move from a geographically-based to a functionally-based determination of establishment, we suggest, would be inconsistent with the Act and at odds with other statutory and judicial interpretations of the expression which frequently speak in terms of location rather than function.

[298] Consultations between the Commission and the various employers, including Canada Post, led to certain changes in the proposed definitions and guidelines. Ultimately, the 1978 Guidelines (as modified in 1982) were replaced by the November 1986 Guidelines which for the first time included a definition of `establishment' (section 10). This definition was functionally-based along the lines of the one identified in paragraph [296] above.

[299] At the same time, a new `reasonable factor' was added to the then-existing list (section 16), recognizing that a difference in wages between male and female employees performing work of equal value in the same establishment is justified by "regional rates of wages, where the wage scale that applies to the employees provides for different rates of wages for the same job depending on the defined geographic area of the workplace".

[300] Accordingly, the Commission had formally moved, by late 1986, to a functionally-based definition of `establishment' from its earlier, inconsistently applied, policy of employing a regionally-based definition. The reasons for the Commission's shift are best explained by Mr. Durber's following response:

[301] The Commission indicated that during the Investigation Stage of this Complaint (1984-1991), the assumption that the complainant and comparator groups were in one `establishment' was uncontested. Canada Post did not raise the issue of the definition of establishment within the context of the Complaint during this period, although it was involved in discussions with the Commission on this very topic during the drafting of the 1986 Guidelines.

[302] Mr. Durber testified that he recalled learning from the investigator of the Complaint "sometime in 1991" that Canada Post's lead contact had indicated that the Corporation was "thinking about whether establishment might not be an issue". Mr. Durber was unaware of any formal indication from Canada Post that the definition of `establishment' would be argued as part of the Respondent's challenge to the Complaint.⁹⁴

... continue[d] ... to see there being one establishment, a good deal of commonality at the level of management accountability and otherwise, bringing those groups into one establishment, as meant by section 10 of the Equal Wages Guidelines, and, thus permitting continued comparison of job value as between clerks and postal operations people.⁹⁵

[304] Both the Commission and the Alliance acknowledged that counsel for Canada Post did raise questions about the meaning of the term `establishment' in the context of section 11 of the Act and section 10 of the 1986 Guidelines during his opening remarks before this Tribunal, in February 1993, as follows:

The next issue is the one that we see as being of pivotal importance, and that is the question of establishment ... So, the legislation certainly contemplates different establishments within one employer. The big question, which has never been considered, and as far as we are aware, never been argued, is: What is an establishment?⁹⁶

Our position will be that the other side must come up with a definition of `establishment' which includes the CR's and the PO-Internal, PO-External and PO-Sups in the same establishment, to the exclusion of other groups. If the definition of `establishment' excludes other workers who work in the operational area at Canada Post, how does it include the CR's?⁹⁸

[307] All parties agree that this Tribunal is bound by the decision of the Federal Court of Appeal, dated March 18, 2004, which addressed the issue of the definition of `establishment' in the context of section 11 of the Act, and section 10 of the 1986 Guidelines. This decision reversed the decision of the tribunal and the Federal Court (Trial Division) in a "pay equity" complaint brought by flight attendants (predominantly female) at Air Canada and Canadian Airlines, who were represented by one union. They named, as their comparator groups, pilots and maintenance/technical workers (predominantly male) who were represented by two other unions. A fundamental issue dealt with by the tribunal as a preliminary matter was whether the complainant and the comparators were employed in the same establishment.

[308] The tribunal found that the complainant, represented by the Canadian Union of Public Employees (Airline Division), failed to demonstrate "any semblance of essential common wage and personnel policies across the bargaining units"⁹⁹ and concluded that the three employee groups were not in the same `establishment' for the purposes of a section 11 complaint. The Federal Court (Trial Division) upheld the decision of the tribunal.¹⁰⁰

[309] The Federal Court of Appeal unanimously reversed this finding, deciding that the functionally-based definition of `establishment' in section 10 of the 1986 Guidelines would, in most cases, place all employees of an employer in the same establishment even though some employees might be represented by different unions.¹⁰¹ The complainant and the chosen comparators in the `Airlines Case' were, accordingly, found by the Court to be in the same establishment for the purposes of section 11 of the Act.

[310] The Federal Court of Appeal highlighted the importance of interpreting human rights legislation broadly, liberally and purposively in the context of the words and purpose of the statute concerned. The Court stressed the necessity to interpret the Act and the 1986 Guidelines in a purposive manner, always being aware of the quasi-constitutional nature of the Act, and its aim to eliminate discrimination. The Court noted that in complaints brought under section 11 of the Act, the "broad purpose" of the section - "to preclude wage discrimination on account of gender"¹⁰² and "the more particular purpose ... the promotion of pay equity"¹⁰³ - must guide the interpretation of the words of the section and the Guidelines promulgated by the Commission.

[311] The Court indicated that the test for the interpretation of the word `establishment' in the context of these purposes was whether there was "evidence that the employer treats the employee groups as being part of a single, integrated business. If there is such evidence, the employees are in the same establishment".¹⁰⁴ Evans, J., in his concurring reasons, stated that "...employees of the same employer will normally be subject to `a common personnel and wage policy' when they are employed in the same business entity".¹⁰⁵

[312] In other words, the definition of `establishment', as noted in section 10 of the 1986 Guidelines, was accepted by the Court as necessitating evidence of common personnel and wage policies which would be general in nature. There would be no need to examine the minute details of different collective agreements negotiated by unions which represent the groups being compared. The Court agreed that "the definition of establishment should not be based on the myriad of details found in collective agreements".¹⁰⁶

[313] Mr. Justice Evans, in his concurring reasons, also indicated that "[t]he terms of collective agreements that apply to complainants and other employees with whom they wish to be compared for pay equity purposes are irrelevant to determining whether the complainants and the comparators are employed in the same establishment within the meaning of section 11 of the ... Act ... and section 10 of the Equal Wages Guidelines..."¹⁰⁷

[314] Although, as noted above, all parties to the Complaint before this Tribunal acknowledged that the Tribunal is bound by the decision of the Federal Court of Appeal in the `Airlines Case', Canada Post argued, in its written submissions, that the decision was also important to the Tribunal because it underscored several of Canada Post's previous arguments.

[315] Three of Canada Post's arguments deserve particular reference. The first related to the question of the essential objective of section 11 of the Act and the presumption of discrimination based upon sex, found in that section. The second dealt with an accurate and fair determination of the value of `wages' for the purposes of a section 11 inquiry. The third concerned the relevance of collective bargaining strength in a "pay equity" study.

[316] As noted in paragraph [310], clear guidance on the question of the essential objective of section 11 has been provided by the Federal Court of Appeal in the `Airlines Case' decision. With respect to the issue of the presumption of discrimination, the Tribunal has already addressed this matter in Section IV, C of this Decision.

...the factors which the Tribunal is to use in determining whether employees receive equal wages and perform work of equal value. To the degree that the evidence of differing bargaining strength is evidence pertaining to these factors, it is relevant and will be considered by the Tribunal at the substantive phase of the analysis.¹⁰⁸ (emphasis added)

[321] The Tribunal does not find that the decision of the Federal Court of Appeal in the `Airlines Case' sanctioned an `open-ended' approach to the "reasonable factors", allowing the admittance of additional factors such as bargaining strength to those already provided for in the Guidelines. The Federal Court of Appeal clearly indicates that to the degree that this evidence of differing bargaining strength is evidence pertaining to the factors set out in section 11 of the Act and in the Guidelines, that evidence will be considered at the substantive phase of a tribunal's analysis.

[322] Has `bargaining strength' been presented in this Complaint as evidence pertaining to the factors listed in section 16 of the 1986 Guidelines as `reasonable factors' to justify an employer establishing or maintaining a difference in wages between male and female employees performing work of equal value in the same establishment? Canada Post has submitted that the differences in the collective bargaining philosophies of the complainant and comparator groups must be considered by the Tribunal. It has also argued that the historically gender-neutral, and numerically large, PO-4 sub-group, an active representative in the collective bargaining process for the PO group, must be considered because of its "straight-line" wages philosophy.

[323] The Commission and the Alliance have submitted that union bargaining strength has never been designated as a "reasonable factor" in the Guidelines. Canada Post's arguments, therefore, should not be considered unless there is some evidence which links those arguments to the "reasonable factors". Very early in the hearing, counsel for the Commission addressed this very point, as follows:

[325] The original Complaint did not address directly the issue of `establishment'. The Complaint was drafted by the Complainant to indicate that the employer, Canada Post, had allegedly violated section 11 of the Act "by paying employees in the male-dominated Postal Operations Group more than employees in the female-dominated Clerical and Regulatory Group for work of equal value". Further, it was alleged that the sex composition of the two groups was the basis for the difference in wages, and, thus, the Complaint alleged discrimination based on sex.

[326] Therefore, as noted by Mr. Durber in his evidence about the Commission's interpretation of `establishment' when it was dealing with complaints brought by groups working for the Federal Government and other large nation-wide corporations, it is apparent that the Complainant and the Commission assumed, from the inception of the Complaint, that `establishment' and `the employer' were synonymous.

[327] For the reasons given by the Federal Court of Appeal in the `Airlines Case' decision, this assumption would appear to be the correct one. Although there will be times when an employer has more than one establishment within its purview, in most cases the employer and the term `establishment', in the context of the Act, will be one and the same when the employer treats its employee groups as being part of an integrated business entity with a commonality of personnel and wage policies.

[329] In May 1997, Elisabeth Kriegler, President and CEO of Elisabeth Kriegler and Associates, an organization of Change Management Consultants, appeared before this Tribunal. She had been called by Canada Post as a general witness. She had served at the Vice-Presidential level in several corporate functional areas in Canada Post during the period 1983 to 1992. She then occupied the office of Senior Vice-President - Administration from 1992 to 1995. From 1995 to early 1997, she was President of Canada Post Systems Management Ltd., a company which owned the intellectual property of a number of management systems and processes developed, over the years, by Canada Post and marketed, internationally, through licensing arrangements.

[331] As pointed out in paragraph [33], in carrying out its objects, the new Crown Corporation created in October 1981 was to have regard to "...the need to conduct its operations on a self-sustaining financial basis while providing a standard of service that will meet the needs of the people of Canada...". Ms. Kriegler indicated that this called for the efficient and effective collection, processing and delivery of mail within a financially competitive framework which, in turn, necessitated the development and introduction of a comprehensive series of operational, financial, human resources, marketing and management systems.

[332] Ms. Kriegler reported that the operations of Canada Post "...are the heart and soul of this Corporation, how without it, it is not a Corporation, it is not a business...".¹¹¹ The establishment of the National Control Centre in Ottawa, in the mid-1980s, reflected the crucial need for a centralized operations control and monitoring system.

[333] Members of Canada Post's senior management meet daily in the National Control Centre to review operational problems which are fed into headquarters from divisional control centres across the country. This encourages operating people to make decisions as and where problems arise. The operating network is supported by a series of systems that track and trace the movement of mail throughout Canada.

...and in fact today, notwithstanding decentralization and empowerment ... the control of the operation is totally central today and must always remain so because the minute you let that loose, the network starts falling apart. So it is centrally controlled and that is the role of the Control Centre and that is why the President and the Chairman and the Chief Financial Officer and the Marketing Senior VP and the Operating Senior VP and all their senior people sit at that table every single morning. That is the central control.¹¹²

[337] Ms. Kriegler also demonstrated that this was not limited to the area of operations. The development of management functional areas of responsibility following the creation of Canada Post as a Crown Corporation went well beyond the critical area of operations. Ms. Kriegler reported that the various supporting management functions were gradually brought in from the different agencies of government and developed under the wing of Canada Post with its own staff.

[338] Functions such as finance, personnel and staff relations, and labour relations were transferred shortly after Crown Corporation status. Purchasing, pay and benefits, property management and legal affairs were transferred at later dates. Canada Post staff had to be built up, and policies, standards and procedures had to be developed in each of the functional areas.

[340] Organizationally, there was, according to Ms. Kriegler, an Executive Vice-President of Personnel and Labour Relations in 1983. By 1992, Ms. Kriegler, herself, assumed policy responsibility as Senior Vice-President - Administration, for human resources, labour relations, personnel, legal affairs, and several other functions.

[341] Ms. Kriegler identified certain situations where a common corporate approach was taken by Canada Post in the personnel policy field or in areas closely related to personnel policy, or, as it is currently more frequently called, Human Resources policy. One was the creation of the Canada Post Learning Institute which established a common centralized training budget by drawing particular training program funds from individual operating units. A principal objective was to coordinate the development and use of training programs for employees from across the entire organization to derive a more effective return for both employees and the employer.

[342] Another example was with respect to labour relations and collective bargaining strategies which, inevitably, touch on wage policy. Between bargaining sessions, Canada Post coordinated, at the senior management level, the development of goals and strategies it would like to achieve with its various unions. Ms. Kriegler, in her capacity as Senior Vice-President - Administration, would take such proposed goals and strategies to the Management Committee for consideration.

[344] Mr. Harry Phillips, Director - Safety, Ergonomics and Industrial Hygiene at Canada Post headquarters, testified in August 1997. He spoke about the Corporate Manual System which came into effect in 1989 for the purpose of providing appropriate corporate direction in consolidating all functional procedures. As examples, he mentioned procedures dealing with functional areas such as operations, engineering, human resources (personnel), and safety hazards.

[345] Mr. Ron Featherstone testified in December 1998, as Manager of Collection and Delivery for the Northern Zone in Vancouver. He indicated that one of his responsibilities was to establish "...long term objectives that complement the Corporation's Operating Principles and its Corporate Objectives...". Under cross-examination by Commission counsel, Mr. Featherstone agreed that it is his understanding that corporate principles and corporate objectives are intended to guide all employees of the Corporation, and would apply to both CR and PO employees and their respective work.¹¹⁴

[346] In April 1999, Ms. Joanne Hronowski, a Payroll Officer for the Prairie Region (who had, on occasion, served as Acting Manager - Pay and Benefits) testified that several manuals which had originally been issued by the Department of Supply and Services, guided Payroll and Benefits officers in their work. Updates to the manuals, communiqués and informative circulars about items such as particular kinds of benefits, were received from Head Office. "...So most of the stuff was vetted at the Head Office level and then came through us".¹¹⁵ She also testified that the then-current payroll system used in her region was a national one. "It is driven totally by Head Office".¹¹⁶

[348] In May 1999, Mr. Frank Pasacreta, Vice-President of Operations for the B.C. Maritime Employers Association, testified before the Tribunal. He had held this position since 1987. Prior to that, he had been Manager of Labour Relations for Canada Post in Vancouver, responsible for the Pacific Region from 1984 to1987. Mr. Pasacreta was asked by Commission counsel if, during his tenure in the Pacific Region, he or his staff had been involved in collective bargaining negotiations for employees in his Region. His response was as follows:

[349] Ms. Karin Vogt, Compensation and Benefits Officer, at the management level, from Burnaby, B.C., testified in September 1999 that Superannuation, Procedures and other manuals constitute an important source of information for those working in her area of responsibility. The use of computer-based record systems is also critical. She confirmed that manual up-dates and communiqués came from Head Office. She also indicated that training sessions were sometimes handled by headquarters. Specifically, she noted that "...last year we had someone come out from head office and she went over the disability insurance plan".¹¹⁹

[350] Mr. Brian Wilson testified in May 1999. A long-time employee of Canada Post, he retired in 1995. His last position was Manager - Employee Relations, Central Region. During cross-examination by Commission counsel, Mr. Wilson confirmed that it was his understanding that a series of personnel policy directives existed in Canada Post, most of which would have been

[351] The Tribunal concludes that the above-noted evidence demonstrates that Canada Post, during the time frame of this Complaint, had become an increasingly well integrated business entity with considerable corporate level policy direction. The corporate policy direction extended to the various regional operations of Canada Post, encompassing its many employees across the country. Indeed, much of the evidence suggests a very good mutual working relationship between the regions and Head Office.

[352] Human Resources (or personnel) policy direction clearly emanated from corporate headquarters and addressed all employees as members of the integrated business. Equally, labour relations, including collective bargaining negotiations which include wage policy considerations, received corporate direction, and even direct involvement, from Head Office.

[353] Therefore, the Tribunal finds that all employees of Canada Post have been, as applicable, subject to the various common corporate policy directives issued by the Corporation, including those respecting personnel and wage policies. As a result, the Tribunal finds that, for the purposes of section 11 of the Act, the employee groups representing the complainant and the comparator are employed in the same establishment.

[355] All three parties have recognized the importance of undertaking job evaluations with reliable job information and with a reliable job evaluation plan. Additionally, the plan and the process chosen must be suitable for "pay equity" purposes. This is not in dispute. What has to be determined, however, is the extent of the reliability of the job information and of the methodology employed in the evaluation of the jobs/positions involved in this particular Complaint. To be able to come to a reasonable conclusion concerning the value of the work performed by the complainant and the comparator occupational groups, the evaluation process as a whole must be reliable, on a balance of probabilities.

[356] The Commission presented, as evidence, a booklet entitled "Implementing Pay Equity in the Federal Jurisdiction".¹²⁰ Originally, this had been a paper written by staff within the `Pay Equity Directorate' of the Canadian Human Rights Commission. It was published as a booklet by the Commission in March 1992. At the time of publication, the Commission had been involved in a number of "pay equity" complaints, one of them the Complaint before this Tribunal.

[357] The introduction to the booklet states that it had been prepared in response to requests from employers and unions. It was meant to be advice about how "to pursue effective pay equity programs" under the Act and its accompanying Guidelines. The introduction states further that the points made in the booklet "are based on the experience of Commission staff working in pay equity, as well as comments received from employees and unions on earlier drafts of this paper".

[358] While this booklet did not exist during the Investigation Stage (1984-1992) of this Complaint, much of the thinking expressed therein was evolving within the Commission during that period. It is, therefore, helpful to refer to it to provide background to the Commission's thoughts, by 1992, about job evaluation plans, their administration, and the collection of job data/information. The following paragraphs are excerpts from various sections of the booklet which are considered pertinent.

Job evaluation plans are the key to determining what constitutes "work of equal value". They do not eliminate subjectivity from the process of valuing work, but they do make the process systematic and so ensure that values are applied in a way that is consistent. Without such a systematic examination of job values, it is easy to perpetuate prevailing stereotypes about the worth of different occupations - stereotypes that generally work to the disadvantage of jobs done by women.

Job evaluation plans may be developed especially for an organization or they may be based on a standard plan purchased from a consulting firm. These latter are "off-the-shelf" and have established criteria for evaluations, while others use computers to generate criteria based on data gathered within the organization. All plans eventually rely on a set of standard factors and weightings against which different jobs are rated.