View Point

Commentary on new developments in human rights law published in the Human Rights Digest newsletter.

The Canadian Human Rights Tribunal just issued a new decision (Johnstone v. Canada Border Services Agency, CHRR Doc. 10-3507) on family status discrimination that is incisive and helpful.  The ruling, if implemented by Canadian employers, could make a big difference to the lives of parents with young children, especially women.

To date adjudicators have been slow, if not reluctant, to require employers to accommodate the needs of parents with young children when they conflict with workplace rules.  Women with children now participate in the Canadian workforce in record numbers, and women are still the ones principally responsible for child care. But the duty to accommodate has not yet been applied with care and rigour to work/life balance issues.

Fiona Johnstone worked full-time at Canada Border Services Agency ("CBSA") on rotating shifts until she had two young children. The shifts were irregular and unpredictable. After the children were born, Ms. Johnstone needed accommodation in her shift schedule so that she could arrange for child care. But the CBSA had an unwritten policy that workers who could not work the variable shift schedule because of child care could only work part-time or take unpaid leave. The CBSA refused to accommodate Ms. Johnstone so that she could work full-time, maintain her pension benefits and opportunities for promotion and training, and arrange child care.

The Tribunal rejected both the CBSA’s interpretation of family status protection and “the Campbell River approach” that was set out by the B.C. Court of Appeal in 2004 (50 C.H.R.R. D/140). The CBSA argued that employees who need accommodation for child care responsibilities are not protected by human rights legislation.  Parents of young children, according to the CBSA, “make their own choices”. "Family status" only protects workers from discrimination based on the "status" of being a parent, not from adverse effects because of the actual responsibility that being a parent entails. 

But the Tribunal disagreed, finding that the ground "family status" does protect workers from discrimination because of the needs and obligations they have as parents.  The Tribunal also rejected the “Campbell River approach” which requires not just a showing that a work requirement interferes with a parental obligation, but that it seriously interferes. Ms. Johnstone should not have to tolerate some undefined amount of discrimination before gaining protection.

There has been bad faith and institutional foot-dragging here. The CBSA, and earlier departments that performed the same function, were required after the 1993 decision in Brown (19 C.H.R.R. D/39)to develop a policy of accommodation for family status. A model policy was developed, then buried and never implemented, and instead an unwritten, discriminatory policy was followed. Seventeen years later, the Tribunal has ordered the CBSA, again, to develop written policies on family status.

If conflicts between work rules and parental obligations were individually assessed, and if parental obligations to young children were accommodated by employers in a timely way, as the Tribunal rulingrequires, Johnstone could be as important to advancing women’s equality in the workplace as the early rulings on pregnancy discrimination and sexual harassment.  But CBSA has already appealed, and this one seems destined for the Supreme Court of Canada.

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Earlier this year, we asked whether it was time to go into worry mode about Canada’s human rights institutions. We now answer that question with an unequivocal “yes”.

Here are the developments that cause concern:

  • As previously reported, Saskatchewan’s Minister of Justice proposes to dismantle the Human Rights Tribunal and send complaints directly to the courts. The legal amendments necessary to abolish the Tribunal and reroute complaints have not yet been introduced in the Legislature, but they are actively under consideration. If Saskatchewan sends complaints to the courts, it will be a significant blow to the infrastructure of human rights institutions in Canada, and it will put more obstacles in the path of those who need to use their rights. 
  • The B.C. Law Institute has been asked by the Ministry of Labour to conduct “research and analysis in relation to workplace dispute resolution mechanisms in British Columbia”. The disputes in question include human rights employment complaints. The request from the Ministry follows publication by Peter Gall, an employer-side lawyer at Heenan Blaikie, of a paper claiming that labour adjudicators should have “not just the authority to deal with allegations of human rights violations in the workplace, but the exclusive jurisdiction to do so”. Mr. Gall, who regularly represents the Government of British Columbia in labour matters, is calling for a specialized workplace tribunal to displace the Human Rights Tribunal entirely on employment issues, and for other human rights complaints to be sent to the courts.
  • At the same time, Heather MacNaughton, the widely respected Chair of the B.C. Human Rights Tribunal, was not re-appointed. So human rights watchers now speculate that British Columbia also plans to dismantle its Tribunal.
  • As noted in last month’s Digest, the Canadian Human Rights Commission, in Canada (Attorney General) v. Mowat, will argue at the Supreme Court of Canada, that the Canadian Tribunal should be able to award compensation for legal costs. The unfortunate result, if the Canadian Human Rights Commission is successful, is that human rights complaints will be viewed increasingly as strictly private, that is, as claims that are devoid of any public policy dimension. This is contrary to the view embedded in Canadian human rights jurisprudence: namely, that a human rights proceeding cannot be equated with a lis between parties in a court, because the ultimate goal is the promotion of human rights for the benefit of the community as a whole. See, for example, La Forest J., Scowby v. Glendinning (1986), 8 C.H.R.R. D/3677 (S.C.C.).

    The Canadian Human Rights Commission is making the case for Mowat getting costs from the respondent because she successfully proved that she was discriminated against. Instead, it should be making the case for the Commission having sufficient resources to ensure that all complainants get publicly funded representation before the Tribunal. There is no certainty of success in a human rights complaint. The public interest in the elimination of discrimination is not served when Canadians cannot afford to take the risk of seeking vindication of their rights.

The effect of shutting down Tribunals, sending human rights complainants to courts, and using legal costs as a substitute for public access, will be to weaken Canada’s system of human rights laws and discourage Canadians from using them.

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The Supreme Court of Canada has granted leave to appeal from the Federal Court of Appeal’s decision in Canada (Attorney General) v. Mowat (CHRR Doc. 09-2970) overturned a remedial award by the Canadian Human Rights Tribunal (CHRR Doc. 06-757) to Donna Mowat for legal costs. This appeal will allow the Supreme Court to engage with the effects of the Commission’s decision not to represent human rights complainants.

Donna Mowat is a former Master Corporal with the Canadian Forces. In 1998 she filed a complaint alleging sex discrimination and sexual harassment. The Commission did not appear, and Mowat retained counsel. She was only partially successful. The Tribunal awarded her $4,000 for injury to dignity, and $47,000 for legal costs.

The Attorney General of Canada appealed on the grounds that the Tribunal had no jurisdiction to award legal costs. TheCanadian Human Rights Act permits awards for “expenses incurred”, but “legal costs”, the Attorney General argued, are not included in this more general term.

The Court of Appeal took note of the reasons given by the Tribunal for awarding costs. Since the Commission no longer represents complainants, they must represent themselves in complex matters, or hire a lawyer. And, even if Parliament did not intend the Tribunal to award costs when the Commission represented all complainants, it surely did not mean to restrict the power to award costs when Commission counsel does not represent them.

Nevertheless, the Court of Appeal ruled that the decision about whether the Tribunal can make an award for legal costs is Parliament’s to make.

This is an important case for members of disadvantaged groups.  Access to the use of legal rights is severely curtailed at the moment. But are awards of costs the best way to fix this fundamental access problem?

On the one hand, Mowat’s claim for an award of legal costs is sympathetic. Challenging the Canadian Forces, with all its resources, Mowat could not effectively exercise her right to be free from discrimination unless she engaged legal counsel. However, if she, and others like her, have to bear the cost of legal representation, without any possibility of compensation, they cannot afford to exercise their rights. On the other hand, approval from the SCC for an award of costs will signal acceptance that human rights complaints are merely disputes between private parties, where parties should pay their own costs, or obtain costs from each other when they are successful.

This private law approach can provide only a very unsatisfactory “fix”. Complainants will never receive compensation for their full legal costs. They will not know at the outset whether they will receive reimbursement, and will be discouraged from proceeding.

The most important loss here, however, is the loss of the understanding that human rights claimants are not simply acting in their own interests. They are also serving the public, community interest in identifying and eliminating discriminatory practices.

Human rights legislation is fundamental public policy; upholding that public policy is of concern to everyone. To remove publicly-funded counsel from complainants, and to treat them as though they have mere private interests, weakens human rights law at its roots.

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On April 16, 2010, the Globe and Mail wrote about David Arnot’s recent recommendation that the Saskatchewan Human Rights Tribunal be eliminated and all human rights complaints be sent to the Court of Queen’s Bench.

According to the Globe and Mail, Arnot, Saskatchewan’s Chief Commissioner and a judge himself, “raises legitimate concerns about the resources and abilities of the tribunals. Tribunal members tend to be political appointees without the security of tenure. This, combined with an accompanying lack of legal resources and expertise, shortchanges the system and erodes public confidence….Putting cases directly in the hands of experienced judges would immediately boost the credibility of the human rights process in all provinces”.

These arguments do not stand up to scrutiny. Tribunal members, of course, are political appointees, as are chief commissioners, judges, ombudspersons, and auditors-general. Do tribunal members have adequate security of tenure to be considered independent? The requirements for considering a Tribunal independent and impartial were thoroughly canvassed in Bell Canada v. C.T.E.A. (46 C.H.R.R. D/495). In 2003, the Supreme Court of Canada found that the Canadian Human Rights Tribunal was independent because its members had fixed terms and their remuneration was not determined by their performance on the Tribunal. What is necessary to ensure that a Tribunal is independent and impartial is settled law. Saskatchewan’s system complies with the criteria set out by the Supreme Court of Canada.

If it is true that the Tribunal lacks legal resources or expertise, who is responsible? The Government of Saskatchewan controls the appointments and allocates the resources. If Saskatchewan does not have an effective Tribunal right now, and this claim may be spurious, the Government has only itself to blame. At different times, governments of different political stripes have sabotaged their own human rights institutions – by starving them of resources, by appointing people to commission or tribunal positions who lack courage or commitment. It is an old political trick of governments to turn on watch-dog institutions that they have themselves deliberately undermined, declare them dysfunctional, and eliminate them.

Putting cases directly in the hands of “experienced” judges is a bad idea, for a number of reasons. First, as University of Saskatchewan professor Ken Norman has pointed out in his op ed piece in the Saskatoon Star Phoenix, compared with a Tribunal member who hears only human rights cases, a judge will simply never acquire the same level of specialized expertise — thus, “experienced” is a misnomer.

Second, how are human rights complainants going to deal with courts? At this point the Saskatchewan Human Rights Commission represents complainants at adjudication. The B.C. experience is that going to adjudication without legal representation means losing. The 2006-2007 Annual Report of the B.C. Human Rights Tribunal noted that in every case where the respondent had legal representation and the complainant did not, the complainant lost. That is, before a tribunal. How much more difficult will it be for complainants to take human rights cases to court without legal representation? Saskatchewan Justice Minister Don Morgan is dealing with this as though it is a minor, not a central issue. But access to justice for human rights complainants is at risk all over Canada, and now certainly in Saskatchewan.

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Is it time to go into worry mode about Canada’s human rights commissions? The Canadian Human Rights Commission is closing three regional offices. Some fear that will mean that the Canadian Commission will withdraw even further from direct contact with the communities of people who need its protection. The Public Service Alliance attributes the closure of these offices to Stephen Harper, but the Secretary General has said that it was a decision of the Commission itself.

Accepting that this is case, there is still reason to worry about the attitude of the federal government towards human rights, and human rights institutions. In 1999 when Stephen Harper was the head of the Canadian Taxpayers Federation he told B.C. Report that “Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society... It is in fact totalitarianism. I find this is very scary stuff". He has done nothing in the last decade to indicate that he has recused himself from this position.

In another new development, the Government of Saskatchewan is considering closing down the Saskatchewan Human Rights Tribunal and sending human rights complaints to the provincial courts for adjudication, apparently with the blessing of Chief Commissioner David Arnot, who is a judge of the provincial court himself. The ostensible reason for scrapping the Tribunal is that, according to Justice Minister Don Morgan, "there are criticisms that the Saskatchewan Human Rights Tribunal may be seen as too close to the Saskatchewan Human Rights Commission".

“Too close” means biased; presumably the Tribunal is biased in favour of arguments made by the Commission. But what is the evidence that in Saskatchewan, or in any other jurisdiction, there is a bias in favour of Commissions on the part of human rights tribunals that can only be solved by sending complaints to the court.

Of course, the effect of sending complaints to the courts is to send them to bodies that, because the majority of their workload lies elsewhere, have little or no human rights expertise. But this is an old standard too. Ignorance of human rights is called ‘neutrality’.

Human rights bodies have always been criticized for being biased. They are, necessarily, biased in favour of human rights. They cannot be neutral about human rights, except with respect to how any particular case will turn out. For those who are resistant to dealing with the transformation of society that human rights entails, dedication to the fulfillment of human rights commitments is called ‘bias’.

That is why 'worry mode’ may be the right setting. This seems to be a time when criticism of human rights, or human rights institutions, need not be factual, reasonable, or constructive. The media likes emotional, angry claims, which depict human rights institutions as authoritarian, frightening, and intrusive, as Harper did more than a decade ago.

Unfortunately, human rights institutions, in an effort to counteract the perception that they are ‘biased’ have become distanced from the organizations and leaders in the community who are also dedicated to the fulfillment of human rights. Nonetheless, those organizations and leaders probably need to speak up regularly now to protect Canada’s human rights institutions.

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Women’s right to be free from sex discrimination in pay continues to falter. The Saskatchewan Human Rights Tribunal decided in Boychuk v. Saskatchewan (Social Services) (No. 2)  (CHRR Doc. 09-2967) that s. 16 of the Saskatchewan Code, which prohibits sex discrimination in the terms and conditions of  employment, does not guarantee that women and men will be paid the same when they perform work of equal value. The ruling seems to turn on the fact that the Human Rights Commission has been given neither the resources nor the regulatory framework to effectively implement a pay equity regime. If that is the case, the Government of Saskatchewan has a clear responsibility, under international human rights law, to legislate to fill the void.

For thirty years, Canada has been a signatory to international human rights treaties that commit Canada to ensuring that women receive equal pay for work of equal value. Nonetheless, there are still not laws in place in every jurisdiction to implement that right. Only in Ontario, Quebec, and the federal sector are there pay equity laws applying to both public and private sector employers. In Manitoba, New Brunswick, Nova Scotia and Prince Edward Island, there are pay equity laws that apply to some public sector employers. In B.C., Alberta, Newfoundland, Nunavut and Saskatchewan, there are no pay equity laws.

In 2003, when the United NationsCommittee on the Elimination of Discrimination against Women reviewed Canada’s human rights performance, it urged Canada to fully implement women’s right to equal pay for work of equal value in all jurisdictions. But governments have not responded.

At the federal level, Prime Minister Stephen Harper has refused to implement the recommendations of the 2004 Pay Equity Task Force, which was appointed to design much-needed changes to the federal pay equity system. In addition, in the 2009 Budget, he introduced the Public Sector Equitable Compensation Act, which, in effect, takes away the right of women federal public servants to equal pay for work of equal value. The legislation authorizes the federal government to assess its own pay practices by taking into account, among other things, the market value of particular skills. Since the point of pay equity schemes is to correct for structural discrimination in the market, the Conservatives have emptied pay equity of meaning. 

Nor have courts and tribunals been a lot of help. For example, in 2004, the Supreme Court of Canada sacrificed women’s right to equal pay to an unexamined government claim of “fiscal crisis” in NAPE v. Newfoundland (2004 SCC 66). And in 2009, the Canadian Human Rights Tribunal in Walden (CHRR Doc. 09-0927) refused to provide a remedy to 431 women public servants who had been discriminated against in pay since 1978, because it found it difficult to calculate the amount of the wage loss. In both cases, the fundamental right of women to be treated equally with respect to pay was given short shrift.

Canada has a weak record on equal pay for women, with the 5th highest gender wage gap among 22 OECD countries. Neither governments nor legal institutions have acted effectively, and with conviction, to implement this right.

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A recent decision of a Nova Scotia Board of Inquiry has provided some guidance on how to fashion a remedy for a person who is forced into retirement. In the Theriault case (Conseil scolaire acadien provincial v. Nova Scotia (Human Rights Comm.)), the Board Chair, Donald Murray, had previously decided that Mr. Theriault was discriminated against on the basis of age when he was forced to retire at age 65 (CHRR Doc. 08-553). The Nova Scotia Court of Appeal (CHRR Doc. 09-2272) confirmed the decision and the matter came back to the Board of Inquiry for a remedy hearing in the fall of 2009 (CHRR Doc.09-2593).

What is the remedy for being forced into retirement or, as stated by the Board, “what order of money will rectify the injury that Mr. Theriault suffered as a result of his wrongful mandatory retirement at the end of April, 2005?” This case sets out a good framework for quantifying special damages, including assessing lost income (with relevant deductions), loss of pension benefits, and losses from having to transfer registered retirement savings plans on retirement. In considering special damages, the central issue is determining the length of time that the person would have worked had he/she not been mandatorily retired. Most of the special damages flow from this date. With respect to duty to mitigate, the Board found that there was no duty at the age of 65 to search for employment beyond the chosen community. This appears to reflect the reality that it may not be reasonable for an older employee to uproot themselves in order to find employment. It also demonstrates the individual nature of remedy in human rights cases — a younger person in different circumstances may be expected to relocate in order to find work, but an older person may not.

This decision provides a valuable analysis for the importance of work and the discriminatory nature of forced retirement. There were various aspects of harm taken into account when assessing the appropriate general damages to award, including emotional harm, affront to personal dignity and financial instability; that is, the financial disruption that took place with the forced retirement as opposed to a planned retirement.

The Board also discussed the nature of age discrimination. Is age discrimination somehow different from gender or racial discrimination and, therefore, not appropriate for general damages? The Board rejected all arguments suggesting that age discrimination was not as “insidious or as socially-loaded or as historically entrenched as gender and racial discrimination” and noted that human rights law is about prohibiting the making of life-affecting decisions based on irrelevant personal characteristics over which a person has no control. As forced retirement is a life-affecting decision based on a person’s age, it is appropriate for general damages. There is no difference in the personal experience of discrimination whether it is based on age, race or gender.

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Employers could be worried about family status complaints. Many job requirements can conflict with family responsibilities. How can we determine when that conflict amounts to discrimination? The Human Rights Panel of Alberta recently wrestled with this issue in Rawleigh v. Canada Safeway Ltd. (No. 1) (68 C.H.R.R. D/172) and ruled in favour of the complainant.

The Panel decided that Mr. Rawleigh’s case could meet the standard set by the B.C. Court of Appeal in Health Sciences Assn. of British Columbia v. Campbell River and North Island Transition Society (50 C.H.R.R. D/140). That Court ruled that a prima facie case of discrimination based on family status is made out “when a change in a term or condition of employment results in a serious interference with a substantial parental duty of the employee”.

Mr. Rawleigh believed that he had an exemption from the requirement on general clerks in the Safeway stores to rotate onto night shifts for four-week periods several times a year. However, with almost no notice, he was informed that he was expected to start working nights. He had sought an exemption from the night shift requirement because his wife was losing her vision, had already become legally blind, and had a particularly difficult time functioning at night. They had three young children who required supervision, no available network of family and friends who could assist them for periods as long as four weeks at a time, and they could not afford to pay for additional help.

Some adjudicators have found that the Campbell River standard for family status discrimination is “inordinately high” because it requires that there be a change in working conditions which creates a conflict with a family responsibility, and an interference with a family obligation that is serious. The Human Rights Panel of Alberta seemed to agree that this standard might be too high. Although the Panel used the Campbell River test, it made a point of disagreeing with the B.C. Court of Appeal in its comments.

The B.C. Court had warned that an “an open-ended concept of family status would have the potential to cause disruption and great mischief in the workplace”. But the Panel warned, to the contrary, that it is dangerous and discriminatory to believe that the ground ‘family status’ will open a Pandora’s box of opportunistic complaints. The Panel emphasized the need to weigh the unique circumstances of each family status case.

Mr. Rawleigh’s circumstances were certainly compelling. He had recently become the sole income earner in his family. His wife could not continue to work as a teacher because of her loss of vision. Because they had young children, no other unpaid caregiver, and no other resources, the requirement that Mr. Rawleigh rotate onto night shifts was a requirement that he could not meet. He simply could not maintain the fragile balance between work and home responsibilities if he had to work nights.

Canada Safeway’s only offer of accommodation was to transfer him to a cashier’s position — which has no night shift requirement — with a cut in pay. Employers can worry about how far they will have to go to accommodate employees’ family responsibilities. Clearly, they will have to go farther than this.

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In an unexpected decision, the Canadian Human Rights Tribunal ruled, in Warman v. Lemire (No. 18) (68 C.H.R.R. D/205) that s. 13 of the Canadian Human Rights Act violates the right to freedom of expression in the Canadian Charter of Rights and Freedoms. Section 13 prohibits communicating messages, via telephone or internet, that will expose individuals or groups to hatred or contempt because of race, religion or other protected characteristics. Although the Supreme Court of Canada ruled in 1990 in Canada (Human Rights Comm.) v. Taylor (13 C.H.R.R. D/435) that s. 13 was a reasonable limit on the right to freedom of expression, the Tribunal decided that the nature of s. 13 has changed, and its constitutionality should be revisited.

Prior to 1998, if s. 13 was breached, a Tribunal could only issue a cease and desist order. The 1998 amendments did not change s. 13, but added ss. 54 and 54.1(1) which permit a Tribunal to award special damages to an individual who is recklessly harmed, or to levy a fine up to $10,000.

The Tribunal found that the introduction of the fine changed s. 13 from a “conciliatory, preventative, and remedial” provision, as the Court saw it in 1990, into a punitive provision, which has created a “potential ‘chill’ upon free expression”. The Tribunal ruled that s. 13, with the new penalty provisions attached, is no longer a minimal impairment of the right to freedom of speech.

In its history since 1977, s. 13 has been used mainly against prominent white supremacists who have made careers of promoting hatred against Jews, and persons who are not white — John Ross Taylor, Ernst Zündel and others. Most people would agree with the Taylor Court that s. 13 has important work to do in a society committed to egalitarian values, and that it has done that work cautiously. “Exposing to hatred or contempt” has been defined so that it constrains only the most virulent expression. And not even the post-1998 penalty provisions have very sharp teeth. In the twelve cases in which penalties have been awarded since 2001, the penalties ranged from $1,000 to $8,000.

It is difficult to see that penalties of this magnitude turn s. 13 into an egregious assault on freedom of expression. Without the penalty provisions, the only remedy attached to s. 13 will be a cease and desist order — never a very effective remedy against those who are determined purveyors of racial and religious hatred. 

The complaints about Mark Steyn’s MacLean’s magazine article about the “rising influence of Islam” broke the pattern of complaints being filed almost solely against Canada’s white supremacists. The Steyn complaints unleashed a media hysteria, and in its swirl Canada’s modest and carefully enforced anti-hate provisions have been transmogrified into giant threats to freedom of speech.

But the complaints against Mark Steyn’s article were thrown out because the Canadian and Ontario Human Rights Commissions and the B.C. Human Rights Tribunal (Elmasry v. Rogers Publishing Ltd. (No. 4), 64 C.H.R.R. D/509) found that the article did not expose a group to hatred. Surely, we should conclude from this that the system works and refrain from dismantling it. Given the record of the interpretation and application of anti-hate provisions in human rights legislation, it is hard to find the recent outcry against either s. 13, or the penalty provisions, persuasive.

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The Walden case has a startling outcome (67 C.H.R.R. D/275). Although the Canadian Human Rights Tribunal ruled in 2007 (64 C.H.R.R. D/215) that the 431 nurses who worked as “medical adjudicators” for the Canada Pension Plan Disability Benefits Program had been paid less than doctors, called “medical advisors”, who performed substantially the same work, the women got no award for wage loss.  In its recent decision on remedy, the Tribunal decided that the complainants had not provided reliable evidence of the existence or extent of the wage gap, and it declined to make any award.

The employer in this case is the federal government, which employs almost 400,000 people across the country, more than half of them women. Its employment practices matter. In 2007 the Tribunal found that the federal government had refused, since March 1978, to “recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors”. This was a discriminatory practice within the meaning of both ss. 7 and 10. “The effects of the practice”, the Tribunal said, “have been to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, and to deprive them of payment of their licensing fees, as well as training and career advancement opportunities on the same basis as the advisors”.

But at the hearing on remedy, the Tribunal accepted the employer’s proposal for a new job classification for the medical adjudicators, but did not accept the complainants’ expert report estimating the wage loss. The complainants’ expert estimated that the wage gap between the advisors and the adjudicators that was due to sex discrimination was 25 – 35 percent. The expert said that he would have liked more time and more information for his study, and agreed that his findings involved some speculation. The Tribunal concluded that the results of his study were not reasonably accurate.

Admittedly, establishing the amount of a wage loss can be a complex exercise.  But some speculation is always involved. Sometimes the speculation is about how much work would have been available from the respondent employer, and whether a particular complainant would have been in a position to do it. In this case, some estimating was also required, about how much of the wage difference was due to different duties and how much to sex discrimination.

An interim decision by the Tribunal that further analysis was required to make a reasonable estimate would have been understandable. But to award nothing to the 431 women in this case is a different matter. If there is no remedy for the violation of the right to equal pay, the right itself loses meaning. The Commission asked the Tribunal to retain jurisdiction, if it did not accept the complainants’ expert report, and direct the employers to undertake a job evaluation study. But the Tribunal refused to do so. Although the employers have discriminated against the women adjudicators since 1978, the Tribunal ruled that the employers were entitled to closure. Apparently, the women were not.

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