Public Service Alliance of Canada v. Canada (Attorney General) et al., (2015) 475 N.R. 232 (FCA)

• Judge: Stratas, Near and Rennie, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 22, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 N.R. 232 (FCA);2015 FCA 174

PSAC v. Can. (A.G.) (2015), 475 N.R. 232 (FCA)

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[French language version follows English language version]

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

Temp. Cite: [2015] N.R. TBEd. AU.009

Public Service Alliance of Canada (appellant) v. Attorney General of Canada, Treasury Board of Canada, NAV Canada (respondents)

(A-266-14; 2015 FCA 174; 2015 CAF 174)

Indexed As: Public Service Alliance of Canada v. Canada (Attorney General) et al.

Federal Court of Appeal

Stratas, Near and Rennie, JJ.A.

July 28, 2015.

Summary:

The Public Service Alliance of Canada (PSAC) filed a human rights complaint, asserting that the wage adjustments ordered in 1998 by the Canadian Human Rights Tribunal had not been extended to employees working at certain agencies governed by the Canada Labour Code and other agencies in the public service (including NAV Canada). The Canadian Human Rights Commission exercised its discretion under s. 41 of the Canadian Human Rights Act to not deal with some of the allegations raised in the complaint. The PSAC applied for judicial review.

The Federal Court, in a decision reported at 453 F.T.R. 239, dismissed the application. The PSAC appealed.

The Federal Court of Appeal allowed the appeal in part, holding that it was unreasonable for the Commission to have dismissed the s. 11 complaint against NAV Canada as an individual employer under s. 41(1)(c). The court remitted that portion of the complaint to the Commission for further proceedings under the Act. The court dismissed all other aspects of the judicial review application.

Civil Rights - Topic 982

Discrimination - Employment - Employer, employee and employment defined - The Public Service Alliance of Canada (PSAC) filed a human rights complaint, asserting that the wage adjustments ordered in 1998 by the Canadian Human Rights Tribunal had not been extended to employees working at certain agencies (including NAV Canada) governed by the Canada Labour Code - The Canadian Human Rights Commission exercised its discretion under s. 41(1) of the Canadian Human Rights Act and dismissed the complaints against the Treasury Board (TB) as a co-employer with NAV as it was plain and obvious that the TB was not a co-employer and had not been since at least November 1, 1996, when employees were transferred from the public service to NAV corporation pursuant to a transfer agreement - The Federal Court of Appeal held that the Commission's decision was reasonable - The Commission based its decision upon uncontested facts and law (the relevant legislation and the 1996 transfer agreement) - Determining the employer for the purposes of a human rights complaint required the Commission to apply a legal standard to a set of facts in an area in which it had specialized expertise - Such an exercise was part of the Commission's mandate at the s. 41 stage, so long as the Commission did not engage in evidentiary weighing - The Commission's role was to determine whether the alleged facts, taken as true gave rise to a sustainable complaint - Before making its decision, the Commission considered the parties' submissions and the report prepared by its early resolution staff that explicitly referenced Reid et al. v. Vancouver (City) et al. (2005, BCCA) - The court had to presume that the Commission charged itself on the test from Reid - Because such reports were prepared for the Commission, the staff completing them were considered to be an extension of the Commission - Given that the Commission located the appropriate law, the court had to defer to the Commission's application of that legal standard to the uncontested facts before it, so long as the result was supportable on the record - The Commission had sufficient information before it to come to the conclusion that it did - The Commission did not have to weigh or assess the evidence to reach that conclusion - See paragraphs 32 to 51.

Civil Rights - Topic 999.6

Discrimination - Employment - Equal pay for equal work - The Public Service Alliance of Canada (PSAC) filed a human rights complaint, asserting that the wage adjustments ordered in 1998 by the Canadian Human Rights Tribunal had not been extended to employees working at certain agencies (incl. NAV Canada) governed by the Canada Labour Code - The Canadian Human Rights Commission exercised its discretion under s. 41 of the Canadian Human Rights Act to not deal with the complaints under ss. 7 and 10 of the Canadian Human Rights Act against NAV Canada as an individual employer - The PSAC applied for judicial review - The Federal Court of Appeal stated that the Commission determined that failing to address wage rates already found to be discriminatory might constitute a discriminatory practice under ss. 7 and 10, separate from the practice of wage discrimination itself (s. 11), but only if the employer impugned in the finding of wage discrimination and the employer allegedly failing to address that discrimination were the same - Applying that interpretation to the facts that the PSAC had alleged, the Commission reasonably determined that the ss. 7 and 10 complaints against NAV as an individual employer was not sustainable - A wage could not be labelled "discriminatory" in the abstract - A finding of wage discrimination under s. 11 was necessarily tied to the establishment from which employees' wages were compared - That was why NAV was not a party to the Tribunal's order - That explanation supported the reasonableness of the Commission's decision that the ss. 7 and 10 complaints lacked reasonable grounds because NAV was under no legal obligation to address the Tribunal's order - The Commission reasonably concluded that the PSAC was required to do more than simply assert such an obligation for its claim under those sections to be sustainable - See paragraphs 52 to 64.

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre- investigation decision not to deal with complaint - [See Civil Rights - Topic 982 and Civil Rights - Topic 999.6 ].

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre- investigation decision not to deal with complaint - Section 41(1) of the Canadian Human Rights Act provided that the Commission shall deal with a complaint unless "it appeared to the Commission" that one of the listed exceptions applied - The Federal Court of Appeal reviewed the role of the Canadian Human Rights Commission at the s. 41(1) pre-investigation stage - See paragraphs 32 to 38.

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre- investigation decision not to deal with complaint - The Public Service Alliance of Canada (PSAC) filed a human rights complaint, asserting that the wage adjustments ordered in 1998 by the Canadian Human Rights Tribunal had not been extended to employees working at certain agencies (incl. NAV Canada) governed by the Canada Labour Code - The Canadian Human Rights Commission exercised its discretion under s. 41(1)(c) of the Canadian Human Rights Act to not deal with the s. 11 complaints against NAV as an individual employer - The Commission held that reasonable grounds for a s. 11 complaint had to be based on the circumstances of an employer within one establishment - In reaching that conclusion, the Commission pointed to the parties' contradictory factual submissions - The Federal Court of Appeal held that it was not reasonable for the Commission to have concluded that the PSAC's complaint plainly and obviously did not contain reasonable grounds to suggest that wages at NAV were discriminatory - At the s. 41 stage, the PSAC's factual assertions had to be taken to be true - The Commission was not to be concerned with evidentiary disputes that went to the merits of the complaint - See paragraphs 66 to 75.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - The Public Service Alliance of Canada (PSAC) filed a human rights complaint, asserting that the wage adjustments ordered in 1998 by the Canadian Human Rights Tribunal had not been extended to employees working at certain agencies governed by the Canada Labour Code (the Code agencies) and other agencies in the public service - The Canadian Human Rights Commission exercised its discretion under s. 41 of the Canadian Human Rights Act to not deal with some of the allegations raised in the complaint - The PSAC applied for judicial review - The parties agreed that the decision was reviewable on the reasonableness standard but disagreed on the deference that was owed to the Commission - The PSAC asserted that the range of possible and acceptable (i.e., reasonable outcomes) was narrow in the circumstances - The PSAC asserted that the decision should be given less deference (1) because s. 41 created a presumption in favour of proceeding to the investigative stage; and (2) due to the preliminary and summary nature of s. 41, a screening decision to dismiss a complaint should be treated with a higher degree of scrutiny than a decision to accept it, as a dismissal constituted a final determination of the complainant's rights - The application judge rejected the PSAC's argument - The Commission's decision was based on an assessment of the facts and the law - Section 41(1)(c) required the Commission to deal with a complaint unless "it appears to the Commission that ... the complaint is beyond the jurisdiction of the Commission" - Clearly, s. 4(1)(c) gave the Commission some scope to make that determination - Assessing the nature, organization, and employment relationships and practices of the Code agencies involved preliminary assessment of the facts and law, which fell squarely within the Commission's expertise - Moreover, the scope of judicial review of the Commission's s. 41 decision was narrow and deference was owed by the reviewing court - Although the reasonableness standard was informed by the context and the range of possible, acceptable outcomes varied depending on that context, in the circumstances the range was not narrow - The Federal Court of Appeal affirmed the conclusion - See paragraphs 26 to 30.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 26].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 28].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 28].

Khaper v. Air Canada (2015), 472 N.R. 381; 2015 FCA 99, refd to. [para. 29].

Exeter v. Canada (Attorney General) (2012), 433 N.R. 286; 2012 FCA 119, refd to. [para. 29].

Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 2012 FCA 117, refd to. [para. 29].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), affd. (1999), 245 N.R. 397 (F.C.A.), refd to. [para. 33].

Canada Post Corp. v. Barrette, [2000] 4 F.C. 145; 254 N.R. 38 (F.C.A.), refd to. [para. 34].

McIlvenna v. Bank of Nova Scotia (2014), 466 N.R. 195; 2014 FCA 203, reving. (2013), 432 F.T.R. 311; 2013 FC 678, refd to. [para. 36].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 43].

Canada (Attorney General) v. Maracle et al. (2012), 404 F.T.R. 173; 2012 FC 105, refd to. [para. 48].

Canada (Attorney General) v. Mohawks of the Bay of Quinte First Nation - see Canada (Attorney General) v. Maracle et al.

Reid et al. v. Vancouver (City) et al. (2005), 215 B.C.A.C. 291; 355 W.A.C. 291; 2005 BCCA 418, refd to. [para. 48].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 50].

Deschênes v. Canada (Attorney General), [2009] F.T.R. Uned. 729; 2009 FC 1126, refd to. [para. 72].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41(1) [para. 11].

Counsel:

Andrew Raven and Amanda Montague-Reinholdt, for the appellant;

Zoé Oxaal, for the respondents, Attorney General of Canada and Treasury Board of Canada;

Karen Jensen, for the respondent, NAV Canada.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the appellant, Public Service Alliance of Canada;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Attorney General of Canada and Treasury Board of Canada;

Norton Rose Canada LLP, Ottawa, Ontario, for the respondent, NAV Canada.

This application was heard at Ottawa, Ontario, on April 22, 2015, by Stratas, Near and Rennie, JJ.A., of the Federal Court of Appeal. Near, J.A., delivered the following reasons for judgment for the court on July 28, 2015.