Action Travail des Femmes v. Canadian National Railway Co. et al., (1987) 76 N.R. 161 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 25, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 76 N.R. 161 (SCC);76 NR 161;[1987] SCJ No 42 (QL);27 Admin LR 172;1987 CanLII 109 (SCC);5 ACWS (3d) 37;JE 87-801;[1987] 1 SCR 1114;40 DLR (4th) 193;[1987] ACS no 42;8 CHRR 4210

Action Travail des Femmes v. CNR (1987), 76 N.R. 161 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Action Travail des Femmes v. Canadian National Railway Co. et al.

Indexed As: Action Travail des Femmes v. Canadian National Railway Co. et al.

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

June 25, 1987.

Summary:

Action Travail des Femmes alleged that CN was guilty of discriminatory hiring and promotion practices contrary to s. 10 of the Canadian Human Rights Act by denying employment opportunities to women in certain positions. A Human Rights Tribunal studied the complaint and concluded that it was essential to impose upon CN a special employment program. The Tribunal issued a "special temporary measures order" of which paragraph two required CN to increase to 13% the proportion of women working in nontraditional jobs, and until that goal was achieved, to hire at least one woman for every four nontraditional jobs filled in the future. CN applied for judicial review. In a decision reported at [1985] 1 F.C. 96; 20 D.L.R.(4th) 668; 61 N.R. 354, the Federal Court of Appeal allowed the application and set aside paragraph two of the "special temporary measures order". Action Travail des Femmes appealed.

The Supreme Court of Canada allowed the appeal. The court held that the Tribunal's special temporary measures order met the requirements of s. 41(2)(a) of the Canadian Human Rights Act. It was a "special program, plan or arrangement" within the meaning of s. 15(1) and therefore could be ordered under s. 41(2)(a).

Civil Rights - Topic 2

General principles - Interpretation of human rights legislation - The Supreme Court of Canada discussed the principles to be applied in the interpretation of human rights legislation - See paragraphs 29 to 34.

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - Systemic discrimination - The Supreme Court of Canada stated that systemic discrimination in an employment context was discrimination that resulted from the simple operation of established procedures of recruitment, hiring and promotion, none of which was necessarily designed to promote discrimination - See paragraph 36.

Civil Rights - Topic 990

Discrimination - Employment - Affirmative action programs - The plaintiffs alleged that CN was guilty of discrimination by denying employment opportunities to women in certain positions - A Human Rights Tribunal studied the complaint and issued a special temporary measures order requiring CN to increase to 13% the proportion of women working in nontraditional jobs and until that goal was achieved, to hire at least one woman for every four nontraditional jobs filled in the future - The Supreme Court of Canada held that the Tribunal was acting within its jurisdiction in issuing the order - The order met the requirements of s. 41(2)(a) of the Canadian Human Rights Act - It was a "special program, plan or arrangement" within the meaning of s. 15(1) of the Act and therefore could be ordered under s. 41(2)(a).

Civil Rights - Topic 990

Discrimination - Employment - Affirmative action programs - The Supreme Court of Canada stated that in any employment equity program there was no radical dissociation of "remedy" and "prevention" because there was no prevention without some form of remedy.

Cases Noticed:

Canadian National Railway Co. v. Bhinder, [1983] 2 F.C. 531 (C.A.), affd. [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 28].

Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 29].

Craton v. Winnipeg School Division No. 1, [1985] 2 S.C.R. 150; 61 N.R. 241; 38 Man.R.(2d) 1, refd to. [para. 29].

Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 30].

Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission, [1985] 3 W.W.R. 717; 39 Sask.R. 81, refd to. [para. 33].

Statutes Noticed:

Canadian Human Rights Act, S.C. 1976-77, c. 33, sect. 2 [paras. 24, 26]; sect. 10 [para. 2]; sect. 15(1) [paras. 19, 24, 34, 37, 38, 46]; sect. 39 [para. 1]; sect. 41(2)(a) [paras. 1, 15, 16, 18, 19, 21, 23, 24, 34, 37, 38, 40, 41, 46].

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, sect. 28 [paras. 15, 16].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 11 [para. 25].

Ontario Human Rights Code, R.S.O. 1980, c. 340 [para. 31].

Authors and Works Noticed:

Abella, Rosalie S., Report of the Commission on Equality in Employment (1984) [paras. 1, 35].

Agocs, Carol, Affirmative Action, Canadian Style (1986), 12 Canadian Public Policy 148 [para. 45].

Blumrosen, Alfred W., Quotas, Common Sense and Law in Labour Relations: Three Dimensions of Equal Opportunity in "Some Civil Liberties Issues of the Seventies" (1975) [para. 45].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983) [para. 25].

Greschner, Donna, and Norman, Ken, Notes of Cases (1985), 63 Can. Bar Rev. 805 [para. 41].

Tarnopolsky, Walter S., Discrimination and the Law in Canada (1982) [para. 27].

Counsel:

Hélène LeBel, Q.C., for Action Travail des Femmes;

Alphonse Giard, Q.C., Rolland Boudreau, Q.C., and Anne Bétournay, for the Canadian National Railway Co.;

René Duval and Anne Trotier, for the Canadian Human Rights Commission.

Solicitors of Record:

Rivest, Castiglio, Castiglio, LeBel and Schmidt, for Action Travail des Femmes;

Alphonse Giard and Rolland Boudreau, for the Canadian National Railway Co.;

René Duval and Anne Trotier, for the Canadian Human Rights Commission.

This appeal was heard on November 5 and 6, 1986, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and LaForest, JJ., of the Supreme Court of Canada.

The decision of the Supreme Court of Canada was delivered by Dickson, C.J.C., on June 25, 1987.

Chouinard, J., did not take part in the judgment.