In two separate rulings, judges of the Federal Court of Canada have delivered body blows not only to a pay equity complaint against Bell Canada, but also to the entire system for hearing human rights complaints under the Canadian Human Rights Act. It has been suggested that one of the decisions may preclude any future Tribunals from hearing human rights complaints until either the judgment is appealed or the Act is amended.
BAD FAITH COMPLAINTS, FLAWED COMPARISONS
In the first decision, released March 17, 1998, Mr. Justice Francis Muldoon ruled that the Canadian Human Rights Commission had acted “in defiance of the statute and of fairness” when it requested in May 1996 that a Tribunal be appointed to hear pay equity complaints filed by some of Bell’s unions. Muldoon J. held that the unions had acted in bad faith in complaining about pay rates that they themselves had negotiated. He also stated that the unions should not have been permitted to file the complaints without the consent of their membership.
The other aspect of Muldoon J.’s decision that has attracted considerable attention concerns his comments about the way gender-based wage disparity is to be established. In the court’s view, the Commission had allowed itself to be “egged on” by the unions into adopting a systemic approach that looked at the wage gap between male-dominated and female-dominated jobs. What is required by the legislation, the court said, was a specific job-to-job comparison to establish the presence or absence of discriminatory wage rates. (For more recent developments, see “Bell pay equity case to proceed” on our Publications page.)
TRIBUNALS UNDER CHRA NOT INDEPENDENT
Mr. Justice Muldoon’s ruling contains far-reaching ramifications for the conduct of pay equity complaints under the CHRA . However, some six days later, the Federal Court, in another ruling in the Bell pay equity case, cast a cloud over all Tribunal proceedings under the Act. In a decision issued on March 23, 1998, Madam Justice Donna McGillis held that Human Rights Tribunals were not sufficiently independent from the Canadian Human Rights Commission, and that this led to a reasonable apprehension of bias on the part of a Tribunal appointed under the Act.
This lack of independence flowed from the fact that the scheme of the Act failed to provide Tribunal members with either security of tenure or financial security. In this regard, McGillis J. pointed to the fact that Tribunal members depend on ministerial discretion to complete a hearing where their appointments expire before the conclusion of a hearing. She noted also that, under the Act, members’ remuneration is set by the Commission, a party to the litigation. This creates a conflict of interest and a perceived weakening of the Tribunal’s independence.
McGillis J. also expressed doubts about the institutional impartiality of the Tribunal in view of the fact that the Commission can issue guidelines binding on the Tribunal in relation to particular cases. (See also “Bill S-5 to amend the Canadian Human Rights Act“ on our Publications page and “Two federal labour bills now in force” on our What’s New page.)
For further information, please contact Carole Piette at (613) 563-7660, Extension 227.