Public Service Alliance of Canada v. Canada (Attorney General) et al., (2014) 453 F.T.R. 239 (FC)

• Judge: Kane, J.
• Court: Federal Court (Canada)
• Case Date: October 07, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 453 F.T.R. 239 (FC);2014 FC 393

PSAC v. Can. (A.G.) (2014), 453 F.T.R. 239 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2014] F.T.R. TBEd. MY.011

Public Service Alliance of Canada (applicant) v. Attorney General of Canada, Treasury Board of Canada, Canada Science and Technology Museum Corporation, Canadian Centre for Occupational Health and Safety, Canadian Museum of Civilization Corporation, National Gallery of Canada, NAV Canada, and Weeneebayko Health Ahtuskaywin (respondents)

(T-2123-12; 2014 FC 393; 2014 CF 393)

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

Federal Court

Kane, J.

April 28, 2014.

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. 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 dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - 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 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, including any of the complaints against NAV Canada and Weeneebayko Health Ahtuskaywin (WHA) - The PSAC applied for judicial review, asserting that the Commission erred in finding that NAV and WHA were not co-respondents with the Treasury Board (TB) - The PSAC asserted that the Commission had failed to identify or apply the legal test for determining the employer in a pay equity complaint and that it ignored that the TB maintained control over wages at NAV and WHA - The Federal Court dismissed the application - The existence of a factual dispute did not mandate that the Commission deal with the complaint - The Commission was not required to set out the test that it applied - The test was canvassed in the s. 41 report - The report reflected a consideration of the submissions of all parties on the issue of who the employer was and an analysis with reference to the case law - Although the Commission provided its own reasons for its decision and did not wholly adopt the s. 41 report's conclusion the TB was not the employer, the report was part of the Commission's reasons given that the Commission made explicit reference to its consideration of the report and the jurisprudence cited therein - Moreover, the Commission was presumed to have considered all the evidence - The Commission's reasons allowed the court to understand why the Commission made the decision that it did - Further, the Commission did not err by ignoring relevant facts - The Commission was assumed to have weighed and considered all of the evidence unless the contrary was shown - In any event, the other documents did not provide a sufficient basis upon which to infer that the TB continued to exert control over the wage and personnel policies at NAV - It was open to the Commission to find that the evidence was insufficient to establish a link to a prohibited ground of discrimination by these agencies - See paragraphs 81 to 96.

Civil Rights - Topic 982

Discrimination - Employment - Employer, employee and employment defined - [See Administrative Law - Topic 549 ].

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre-investigation decision not to deal with complaint - [See Administrative Law - Topic 549 ].

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre-investigation decision not to deal with complaint - 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) - 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, asserting that the Commission's decision to not deal with the ss. 7 and 10 complaints against the Code agencies as individual respondents was unreasonable - It asserted that it was illogical for the Commission to conclude that the failure to address discriminatory wage rate might be a prohibited practice by the TB and those agencies as co-employers, but not as individual employers - It argued that the Commission erred by focussing on the fact that the 1998 order only bound the parties to it and, therefore, was not binding on the Code agencies - It asserted that the Commission was overly formalistic and ignored or misunderstood its argument that the factual foundation for the 1998 order was the JUMI Study, which surveyed employees that were part of this complaint - The Federal Court held that the Commission reasonably decided that it was plain and obvious that the PSAC's alternate ss. 7 and 10 allegations against the Code agencies lacked reasonable grounds - It was reasonable for the Commission to look at the terms and legal effect of the 1998 order and to conclude that the lack of legal basis or obligations connecting the 1998 order to the Code agencies was determinative - The Commission found that the JUMI Study could not be the basis for a complaint against the Code agencies as individual employers because it was conducted when the Code agencies were within the same establishment as the TB - The Code agencies were "carved out" of the core public administration after the 1998 decision and became the employer of their own employees (i.e., the TB was no longer the employer) - The Commission decided not to deal with the allegation when it was raised solely against agencies not party to the 1998 order, but investigated the same allegations made against the agencies as co-respondents with TB - That was logical because the JUMI Study implicated the TB and Code agencies as co-employers, but it did not implicate the Code agencies as individual employers - See paragraphs 104 to 110.

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre-investigation decision not to deal with complaint - 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) - 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, asserting that the Commission's decision to not deal with the s. 11 complaints against the Code agencies as individual respondents was unreasonable - The PSAC asserted that contrary to the Commission's finding, it did identify male and female predominant occupational groups within each of the Code agencies - The PSAC asserted that the Commission erred in concluding that it had not provided a reasonable basis to support its s. 11 claim - It referred to the JUMI Study (the foundation for the 1998 order) which gathered data from approximately 3200 employees, including employees from across the core public administration and demonstrated that the federal government's wage and classification structure failed to pay female and male predominant groups equally for work of equal value - The Federal Court rejected the assertions - The Commission correctly concluded that the comparators used had to exist within the same establishment - The Code agencies were "carved out" of the core public administration after the 1998 decision and they became the employer of their own employees (i.e., the TB was no longer the employer) - Once the employees were transferred to their new organizations, the context of the relative valuing of those employees' work changed - Internal relativity within the new organizations could not be assumed to be the same as within the core public administration - Therefore, it could not be assumed that the gender composition remained the same - The only data available, the JUMI Study, predated the carving out of the individual Code agencies - In light of the fact that the core public administration had undergone substantial reorganization since the JUMI Study, new employer-specific wage data was required - See paragraphs 132 to 138.

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof (incl. appropriate comparator group) - [See third Civil Rights - Topic 7080 ].

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 Federal Court rejected 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 - See paragraphs 34 to 46.

Cases Noticed:

Harkin v. Canada (Attorney General), 2010 CHRT 11, refd to. [para. 14].

Reid et al. v. Vancouver (City) et al. (2005), 215 B.C.A.C. 291; 355 W.A.C. 291; 44 B.C.L.R.(4th) 49; 2005 BCCA 418, refd to. [para. 17].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 35].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 35].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 36].

Hicks v. Canada (Attorney General) (2008), 334 F.T.R. 260; 86 Admin L.R.(4th) 255; 2008 FC 1059, refd to. [para. 36].

Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 2012 FCA 117, refd to. [para. 36].

Valookaran v. Royal Bank of Canada (2011), 386 F.T.R. 136; 2011 FC 276, refd to. [para. 37].

Deschênes v. Canada (Attorney General), [2009] F.T.R. Uned. 729; 2009 FC 1126, refd to. [para. 37].

Canada (Attorney General) v. Maracle et al. (2012), 404 F.T.R. 173; 2012 FC 105, refd to. [para. 38].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 40].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241 (T.D.), refd to. [para. 44].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1; 140 D.L.R.(4th) 193, refd to. [para. 50].

Conroy v. Professional Institute of the Public Service of Canada (2012), 415 F.T.R. 179; 2012 FC 887, refd to. [para. 54].

Michon-Hamelin v. Canada (Attorney General), [2007] F.T.R. Uned. 869; 2007 FC 1258, refd to. [para. 56].

McIlvenna v. Bank of Nova Scotia (2013), 432 F.T.R. 311; 2013 FC 678, refd to. [para. 58].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161; 80 D.L.R.(4th) 520, refd to. [para. 73].

Johnstone v. Canada (Attorney General) (2007), 306 F.T.R. 271; 2007 FC 36, affd. (2008), 377 N.R. 235; 2008 FCA 101, refd to. [para. 87].

Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 94].

Exeter v. Canada (Attorney General) (2011), 383 F.T.R. 106; 2011 FC 86, affd. (2012), 433 N.R. 286; 2012 FCA 119, refd to. [para. 96].

Boshra v. Canada (Attorney General) (2011), 398 F.T.R. 60; 2011 FC 1128, refd to. [para. 96].

Canada (Attorney General) v. Walden et al. (2010), 368 F.T.R. 85; 2010 FC 490, refd to. [para. 98].

Syndicat des communications de Radio-Canada v. Canada (Attorney General) et al. (2011), 392 F.T.R. 18; 2011 FC 314, refd to. [para. 123].

Canadian Human Rights Commission et al. v. Canadian Airlines International Ltd. et al., [2006] 1 S.C.R. 3; 343 N.R. 308; 2006 SCC 1, refd to. [para. 128].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 41(1)(c) [para. 42].

Counsel:

Andrew Raven and Amanda Montague-Reinholdt, for the applicant, Public Service Alliance of Canada;

Zoe Oxaal, for the respondents, Attorney General of Canada, Treasury Board of Canada and Canadian Centre for Occupational Health and Safety;

Kirsten Crain, for the respondent, Canadian Museum of Civilization Corporation;

Raquel Chisholm, for the respondents, Canada Science and Technology Museum and National Gallery of Canada;

Karen Jensen, for the respondent, NAV Canada;

Frank Cesario and Jacqueline Luksha, for the respondent, Weeneebayko Health Ahtuskaywin.

Solicitors of Record:

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l., Ottawa, Ontario, for the applicant, Public Service Alliance of Canada;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Attorney General of Canada, Treasury Board of Canada, Canadian Centre for Occupational Health and Safety;

Borden, Ladner, Gervais LLP, Ottawa, Ontario, for the respondents, Canadian Museum of Civilization Corporation;

Emond Harnden LLP, Ottawa, Ontario, for the respondents, Canadian Science and Technology Museum and National Gallery of Canada;

Norton, Rose, Fulbright Canada LLP, Ottawa, Ontario, for the respondent, NAV Canada;

Hicks, Morley, Hamilton, Stewart, Storie LLP, Toronto, Ontario, for the respondent, Weeneebayko Health Ahtuskaywin.

This application was heard at Ottawa, Ontario, on October 7, 2013, by Kane, J., of the Federal Court, who delivered the following reasons for judgment on April 28, 2014.