Public Service Alliance of Canada v. NAV Canada, (2015) 333 O.A.C. 161 (DC)

• Judge: Aitken, Lederer and Ramsay, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 26, 2015
• Jurisdiction: Ontario
• Citations: (2015), 333 O.A.C. 161 (DC);2015 ONSC 1407

PSAC v. NAV Can. (2015), 333 O.A.C. 161 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.013

Public Service Alliance of Canada (applicant) v. NAV Canada (Respondent)

(14-DC-1993: 2015 ONSC 1407)

Indexed As: Public Service Alliance of Canada v. NAV Canada

Court of Ontario

Superior Court of Justice

Divisional Court

Aitken, Lederer and Ramsay, JJ.

April 16, 2015.

Summary:

In 1996, the coordination of the movement of aircraft in Canadian airspace was privatized and NAV Canada was established. Employees were transferred to it from Treasury Board, which had previously operated the service. NAV Canada used the Treasury Board job classification and wage structure. In 1998, the Canadian Human Rights Tribunal found that Treasury Board had paid female employees less than male employees performing work of equal value, contrary to the Canadian Human Rights Act. The union alleged that NAV Canada had violated the Act by applying a job classification and wage structure that had been found to be discriminatory. As a result, the union and NAV Canada jointly agreed on a new gender neutral job classification system as part of the process leading to a new collective agreement. A dispute regarding the system's implementation was referred to an arbitration panel, which was asked to "determine an appropriate methodology that establishes a base salary grid that addresses the pay equity issue". The panel was also asked to ensure that the award replicated what the parties might have arrived at through collective bargaining. In its award, the majority of the panel adopted the methodology proposed by NAV Canada. The union applied for judicial review.

The Ontario Divisional Court dismissed the application.

Civil Rights - Topic 999.6

Discrimination - Employment - Equal pay for equal work - [See first Labour Law - Topic 9563.2 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - [See third Labour Law - Topic 9563.2 ].

Labour Law - Topic 9563.2

Public service labour relations - Collective agreement - Pay - Pay equity - The union alleged that NAV Canada had violated the Canadian Human Rights Act by applying a job classification and wage structure that paid female employees less than male employees performing work of equal value - As a result, the union and NAV Canada jointly agreed on a new gender neutral job classification system as part of the process leading to a new collective agreement - A dispute regarding the system's implementation was referred to an arbitration panel, which was asked to "determine an appropriate methodology that establishes a base salary grid that addresses the pay equity issue" - In its award, the majority of the panel adopted the methodology proposed by NAV Canada - The union applied for judicial review, asserting, inter alia, that the award standardized wages paid to men and women for work of equal value by lowering the wages that had previously been paid to male employees, contrary to s. 11(6) of the Canadian Human Rights Act - The Ontario Divisional Court dismissed the application - The arbitration panel provided clear reasons for its conclusion that the methodology proposed by NAV Canada resulted in a classification and wage structure that met s. 11's requirements - There was evidence on which it could reasonably arrive at that decision - Further, the union's evidence failed to persuade the panel that, on a go forward basis, there would be differences in wages between male and female employees performing work of equal value - See paragraphs 18 to 29.

Labour Law - Topic 9563.2

Public service labour relations - Collective agreement - Pay - Pay equity - The union alleged that NAV Canada had violated the Canadian Human Rights Act by applying a job classification and wage structure that paid female employees less than male employees performing work of equal value - As a result, the union and NAV Canada jointly agreed on a new gender neutral job classification system as part of the process leading to a new collective agreement - A dispute regarding the system's implementation was referred to an arbitration panel, which was asked to "determine an appropriate methodology that establishes a base salary grid that addresses the pay equity issue" - In its award, the majority of the panel adopted the methodology proposed by NAV Canada - The union applied for judicial review, asserting, inter alia, that the award standardized wages paid to men and women for work of equal value by lowering the wages that had previously been paid to male employees, contrary to s. 11(6) of the Canadian Human Rights Act - The Ontario Divisional Court dismissed the application - There was no breach of s. 11(6) - It was important to note that this was not a wage equity complaint, but the final stage of a new collective agreement defining the parties' relationship in a fresh way - There was no lowering of male employees' wage rates, but, rather, a whole new job classification system and new wage grid designed to overcome a range of inequities - The purpose of the exercise was not to eliminate a discriminatory practice under s. 11(1), but to set up an entirely new compensation scheme - The panel reasonably concluded that s. 11(6) did not apply and that, even if it did, the union had failed to prove that NAV Canada was reducing wages to make the new wage grid pay equity compliant - See paragraphs 30 to 32 and 40 to 46.

Labour Law - Topic 9563.2

Public service labour relations - Collective agreement - Pay - Pay equity - The union alleged that NAV Canada had violated the Canadian Human Rights Act by applying a job classification and wage structure that paid female employees less than male employees performing work of equal value - As a result, the union and NAV Canada jointly agreed on a new gender neutral job classification system as part of the process leading to a new collective agreement - A dispute regarding the system's implementation was referred to an arbitration panel, which was asked to "determine an appropriate methodology that establishes a base salary grid that addresses the pay equity issue" - The panel was also asked to ensure that the award replicated what the parties might have arrived at through collective bargaining - In its award, the majority of the panel adopted the methodology proposed by NAV Canada - The union applied for judicial review, asserting, inter alia, that the award resulted in the wages of 52% of the bargaining unit to be lowered, which was not a result that any bargaining unit would allow as part of a negotiated collective agreement - The Ontario Divisional Court dismissed the application - "Replication" was not a test to be met, but a principle to be applied by an arbitrator in seeking to arrive at a settlement that was fair and reasonable - The panel here met that standard - Having been provided with only two options, the panel had to choose one or the other - It accepted the only proposal that met the underlying and central criteria: that the result, going forward, was pay equity compliant - In doing so, it considered market forces and economic realities - The panel's decision was entitled to significant deference - Its analysis and the result met the standard of reasonableness - See paragraphs 33 to 39 and 47.

Labour Law - Topic 9705

Public service labour relations - Collective agreement - Arbitration - Awards - Grounds for quashing - [See all Labour Law - Topic 9563.2 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12, footnote 6].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 13, footnote 8].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2013), 444 N.R. 120; 2013 FCA 75, refd to. [para. 13, footnote 9].

Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5; 425 N.R. 22; 316 B.C.A.C. 1; 537 W.A.C. 1; 2012 SCC 2, refd to. [para. 13, footnote 9].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 13, footnote 9].

University Health Network and O.N.A. (CM-34), Re, 2013 CarswellOnt 9707; 115 C.L.A.S. 216; 233 L.A.C.(4th) 166, refd to. [para. 14, footnote 11].

Revera Retirement LP v. Armstrong (2010), 195 L.A.C.(4th) 191 (Ont. Div. Ct.), refd to. [para. 14, footnote 11].

Service Employees International Union, Local 1 Canada v. Participating Nursing Homes et al., [2013] O.A.C. Uned. 518 (Div. Ct.), refd to. [para. 15, footnote 12].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 15, footnote 13].

Public Service Alliance of Canada v. Canada (Attorney General) et al. (2014), 453 F.T.R. 239; 2014 FC 393, refd to. [para. 16, footnote 14].

Canada (Attorney General) v. Public Service Alliance of Canada et al., [2000] 1 F.C. 146; 176 F.T.R. 161 (T.D.), refd to. [para. 19, footnote 17].

Canada Post Corp. v. Public Service Alliance of Canada et al. (2010), 399 N.R. 127; 2010 FCA 56, refd to. [para. 28, footnote 42].

University of Toronto v. U.T.F.A., [2006] O.L.A.A. No. 782; 148 L.A.C.(4th) 193; 85 C.L.A.S. 11, refd to. [para. 33, footnote 47].

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].

Counsel:

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

Jacques Emond and Raquel Chisholm, for the respondent.

This application was heard at Ottawa, Ontario, on January 26, 2015, by Aitken, Lederer and Ramsay, JJ., of the Ontario Divisional Court. On April 16, 2015, the court's judgment was released with the following opinions:

Lederer, J. - see paragraphs 1 to 39;

Aitken, J., concurring - see paragraphs 40 to 47;

Ramsay, J., concurring - see paragraph 48.