Date: 20050708
Docket: T-170-03
Citation: 2005 FC 959
Ottawa, Ontario, July 8, 2005
PRESENT: MADAM JUSTICE DANIÈLE TREMBLAY-LAMER
BETWEEN:
ELIZABETH BUCHANAN
Applicant
and
BELL CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review asking the Court to set aside a decision of the Canadian Human Rights Commission (the Commission) dated December 27, 2002.
[2] The impugned decision dismissed the complaints filed by Ms. Elizabeth Buchanan, the applicant, under subsection 44(3) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act).
FACTS
[3] The applicant has been employed by Bell Canada, the respondent, since April 14, 1980. From November 4, 1991 to April 25, 1994, she held a position as first liaison supply clerk ‘9’ in the liaison and transmission department, following which she began working as a business market client representative, a position she held until July 15, 2002.
[4] These two positions were organized by the Canadian Telecommunications Employees’ Association (the CTEA), a trade union.
[5] On September 30, 1992, the applicant filed a complaint (the original complaint) with the Commission alleging gender-based pay discrimination.
[6] In that complaint, she used the technician ‘1’ position with Bell as a factor of comparison for establishing discrimination.
[7] In September 1992, the CTEA filed a complaint with the Commission alleging gender-based pay discrimination with respect to all first liaison supply clerk ‘9’ positions, these positions being predominantly female.
[8] On January 25, 1994, a group of women, Femmes-Action, filed a complaint of gender-based pay discrimination with the Commission, alleging that Bell Canada followed discriminatory practices in regard to various groups of female-dominated jobs.
[9] On January 31, 1994, the Communications, Energy and Paperworkers Union of Canada (the CEP) filed a complaint with the Commission in relation to gender-based discriminatory practices adopted at Bell Canada for various groups of female-dominated jobs.
[10] On February 9, 1994, following the receipt of a final report of a joint study conducted by Bell Canada, the CTEA and the CEP, the Commission recommended to the applicant that she amend her complaint of September 30, 1992, to expand the comparison factor used to all male-dominated jobs.
[11] On February 17, 1994, the applicant filed an amended complaint (the amended complaint) with the Commission.
[12] On March 4, 1994, the CTEA filed a general complaint with the Commission in regard to all female-dominated clerical positions at Bell Canada.
[13] In the wake of the numerous complaints filed with the Commission, Bell Canada, the CTEA and the CEP attempted to settle their differences with mediation.
[14] This two-phase mediation process began on March 15, 1994. The first phase ended on May 9, 1994, with the release of the mediation report. The second phase, the negotiation phase properly speaking, never took place. This was the stage at which the persons who had filed individual complaints were to participate, personally or through their representatives.
[15] Consequently, the applicant was unable to participate in the mediation process that was undertaken.
[16] Notwithstanding the failure of the mediation process, the Commission investigated and found some wage disparities in regard to the position held by the applicant, in a report issued on November 14, 1995.
[17] The investigation report covered 62 individual complaints, three CTEA complaints and four systemic discrimination complaints filed by Femmes-Action, the CEP and the CTEA.
[18] This report recommended as well that the unions’ complaints be referred to a Human Rights Tribunal (the tribunal) under section 49 of the Act.
[19] On April 26, 1996, the applicant was informed that her individual complaints (original complaint and amended complaint) would be referred to the Commission for review in the coming weeks.
[20] On May 22, 1996, the Commission recommended that a tribunal be constituted to hear the wage parity complaints filed by the CTEA, the CEP and Femmes-Action.
[21] On May 28, 1996, the Commission informed the applicant that it was suspending the review of her individual complaints until a decision had been issued on the complaints filed by the CTEA, the CEP and Femmes-Action.
[22] On August 30, 2002, the respondent and the CTEA (the applicant’s union) reached an out-of-court settlement (the settlement). The complaints filed by the CEP and Femmes-Action were maintained.
[23] That settlement was put to a vote of the 29,000 eligible persons between September 21 and 25, 2002. Of the 24,458 former and current employees who cast a vote, 75.9% voted in favour of the ratification of the settlement.
[24] The settlement gave the applicant $12,034.06, to which was added at least $2,000 in settlement of her individual complaint.
[25] The applicant chose not to accept the settlement offer.
[26] On October 22, 2002, the CTEA withdrew their complaints as a result of the settlement.
[27] On October 25, 2002, the Commission informed the applicant that an additional report concerning her complaints recommended that they be dismissed.
[28] The recommendation read as follows:
[translation]
It is recommended that, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, the Commission dismiss the complaints;
Because, having examined all of the circumstances surrounding the complaints, an investigation of these complaints is not warranted;
Because the subject matter of these complaints has already been addressed.
[29] On December 27, 2002, the Commission informed the applicant that [translation] “in view of the circumstances pertaining to your complaints”, all of which were listed; it was not taking action on them under subsection 44(3) of the Act.
ISSUES
[30] The issues relate to the scope of the “circumstances of the complaint” that the Commission must consider when inquiring into a complaint under subsection 44(3) of the Act, and in particular they raise the following points:
- Does the Commission’s inquiry fulfil the requirements of procedural fairness?
- Was it reasonable for the Commission to rely on an out-of-court settlement between the union and the company in order to justify the dismissal of the individual complaint filed by a member of that union against that company?
ANALYSIS
[31] The main concern underlying this application as a whole is as follows: The settlement reached between Bell Canada and the CTEA concerning the union’s complaint of systemic discrimination does not solve the discrimination that the applicant claims to have suffered in her individual complaint.
[32] Although I agree that the fact that a settlement was reached does not automatically mean that the applicant’s complaint should be dismissed, I am nevertheless not persuaded that the Commission’s inquiry, and the decision that resulted from it, were deficient. On the contrary, for the reasons that follow, the Commission, in my opinion, was in a position to find that there was no need to conduct a further inquiry in view of “all the circumstances”, an important one being the settlement in question.
1. Requirements of procedural fairness
[33] Questions of procedural fairness are addressed not to the result obtained or to the decision that is being judicially reviewed but rather to the process that is taken to reach them. Consequently, they do not require the pragmatic and functional approach (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249). What procedural fairness does require in a particular context must be assessed by taking into account many factors (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) and the Court must determine whether this threshold has been achieved.
[34] In Baker, ibid., the Supreme Court of Canada described the factors that are relevant in determining the content of the obligation of procedural fairness. These factors are the following: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.
[35] The purpose of the statutory scheme is essentially the protection of equality by eliminating discriminatory practices based on a prohibited ground such as sex; the Act also provides expressly: “It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.” (See section 2, subsections 3(1) and 11(1) of the Act.)
[36] The Commission has considerable discretion but, to the extent that it thinks there are reasonable grounds for believing that a person is engaging or has engaged in a discriminatory practice, it is required to deal with any complaint that is filed with it (see subsections 40(1) and 41(1) of the Act).
[37] In doing so, the Commission may appoint an investigator with the power to conduct a detailed examination and to report on the merit of each complaint (see subsection 43(1) of the Act). Obviously, assuming that a particular complaint is not frivolous, was not filed after the expiration of a deadline or could not more appropriately be dealt with according to a procedure provided for under another Act of Parliament (see subsection 41(1) of the Act), the complainant is entitled to expect that his or her complaint will be examined and investigated carefully.
[38] In other words, procedural fairness requires that the Commission conduct its investigation in a neutral and thorough way (Slattery v. Canada (Human Rights Commission), [1994] 2 F.C. 574 (T.D.), aff’d (1996), 205 N.R. 383 (C.A.)). The applicant’s argument based on procedural fairness is based solely on this point[1].
[39] The applicant relies primarily on an investigator’s report (exhibit P-14) dated November 14, 1995, in which it was concluded that there was sufficient evidence of pay discrimination against certain groups of employees, including the group to which the applicant belonged, to recommend that a tribunal be constituted to adjudicate the various individual and systemic complaints filed against Bell.
[40] As a result of the settlement reached in 2002 between the CTEA and Bell, the applicant argues, nothing was done to really assess whether the questions raised in her individual complaint had been addressed in that settlement. Consequently, she says, the investigation cannot be characterized as thorough.
[41] This initial submission is unfounded, in my opinion.
[42] First of all, the content of the obligation of procedural fairness depends on the context and implies the striking of a balance between opposing interests. The thoroughness of the investigation that can be expected must accordingly be assessed from the standpoint of administrative efficiency and considerations of effectiveness. Mr. Justice Nadon, as he then was, made the following argument in Slattery, supra, at page 600:
In determining the degree of thoroughness of investigation required to be in accordance with the rules of procedural fairness, one must be mindful of the interests that are being balanced: the complainant’s and respondent’s interests in procedural fairness and the CHRC’s interests in maintaining a workable and administratively effective system. Indeed, the following words from Mr. Justice Tarnopolsky’s treatise Discrimination and the Law (Don Mills: De Boo, 1985), at page 131 seem to be equally applicable with regard to the determination of the requisite thoroughness of investigation:
With the crushing case loads facing Commissions, and with the increasing complexity of the legal and factual issues involved in many of the complaints, it would be an administrative nightmare to hold a full oral hearing before dismissing any complaint which the investigation has indicated is unfounded. On the other hand, Commission should not be assessing credibility in making these decisions, and they must be conscious of the simple fact that the dismissal of most complaints cuts off all avenues of legal redress for the harm which the person alleges.
Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to further investigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where an investigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with the deference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[43] There is no indication that important evidence was overlooked or that there were significant omissions in the course of the investigation conducted in this case. Nor is there any indication that the applicant was deprived of the opportunity to make submissions or to be informed of the substance of the respondent’s defence, which is also required by procedural fairness in the investigation (Syndicat des Employés de Production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Bell Canada v. Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (C.A.)).
[44] More importantly, the substance of the applicant’s complaint was not just ignored. On the contrary, her complaint was stayed in 1996, without protest from her, pending a decision on the CTEA complaint, because the issues overlapped: at the heart of each investigation (at least insofar as the applicant’s situation was concerned) was a comparison between the wages earned by the applicant’s female-dominated group of employees and the wages of a group of male‑dominated employees performing equivalent tasks. This did not change between 1996 and the date of the settlement, in 2002. While perhaps far from ideal from the standpoint of settling the complaint, the alleged six or seven year interruption of the investigation on the applicant’s complaint did not, in my opinion, compromise the substance of the investigation.
[45] However, following the settlement, a later investigation was conducted in relation to the pending individual complaints (including the applicant’s complaint). The report pertaining to this investigation (exhibit P-27) clearly reflects the investigator’s opinion that the questions raised in the applicant’s complaint were the same as those raised in the CTEA complaint, and, pursuant to that settlement, the applicant’s complaint was therefore settled:
[translation]
The complainant(s) are all members of the CTEA. The complaints of a systemic order X00344, X00372, X00417, X00460 and X00469, referred to the Tribunal by the Canadian Human Rights Commission for investigation, dealt with the same subject as the individual complaints.
On October 22, 2002, the CTEA withdrew its complaints of systemic discrimination after a settlement had been obtained with the mis-en-cause, Bell Canada. The settlement stipulates that each individual complainant will receive an additional payment of $2,000. Consequently, the individual complaints on the same subject have been resolved.
[46] In my opinion, it is impossible in these circumstances to contend that the investigation was not thorough. To require the Commission to investigate and report on each individual complaint would amount to sacrificing entirely the interests of administrative efficiency, given the Commission’s conclusion that the merits of the individual complaints were dealt with in the context of the CTEA complaint. The applicant may question the reasonableness of that conclusion but the argument based on procedural fairness must be rejected.
2. Reasonableness of the decision
[47] In dismissing the applicant’s complaint, the Commission cited subparagraph 44(3)(b)(i) of the Act, which reads:
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44. (3) On receipt of a report referred to in subsection (1), the Commission
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44. (3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
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…
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[…]
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(b) shall dismiss the complaint to which the report relates if it is satisfied |
b) rejette la plainte, si elle est convaincue : |
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(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or... |
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié, […] |
[48] This provision gives the Commission extensive discretion and the importance of this inquiry function to the comprehensiveness of the statutory scheme as a whole is well established (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Bell Canada, supra). Nevertheless, there is no privative clause sheltering the decisions rendered under subsection 44(3) and, in this case, the dismissal of the complaint by the Commission was based on a finding of mixed law and fact, that is on the conclusion as to whether the issues raised in the applicant’s complaint were the same as those dealt with in the context of the CTEA complaint and the subsequent settlement relating thereto. So, in my view, the applicable standard of review in this case is that of reasonableness simpliciter.
[49] The Federal Court of Appeal and this Court have, with very few exceptions, applied this standard on numerous occasions to the decisions rendered under paragraph 44(3)(b): see Gee v. Canada (Minister of National Revenue), [2002] F.C.J. No. 12 (F.C.A.); MacLean v. Marine Atlantic Inc., [2003] F.C.J. No. 1854 (QL); Doucet v. Byers Transportation System Inc., [2005] F.C.J. No. 974 (QL); Public Service Alliance of Canada v. Canada (Attorney General), [2005] F.C.J. No. 514 (QL); a contrario, McConnell v. Canada (Canadian Human Rights Commission), [2004] F.C.J. No. 1005 (QL).
[50] In the case at bar, the Commission based its decision on the following considerations:
[translation]
· the complaints filed by the Canadian Telephone Employees’ Association (CTEA) against Bell Canada on behalf of their members, and on your behalf, concerned systemic wage discrimination within Bell Canada;
· the systemic complaints of the CTEA involved issues raised in your complaints;
· your complaints could benefit from the CTEA’s investigation into the systemic complaints that began in 1996 and continued until a settlement was reached; and for this reason your complaints were held in abeyance;
· unexpectedly and without the Canadian Human Rights Commission’s involvement, the CTEA and Bell Canada reached an out-of-court settlement to resolve the systemic complaints;
· an overwhelming majority of CTEA members approved the settlement in a ratification vote;
· you will receive at least $2,000 under the terms of the settlement; and
· written submissions were received by the parties in the case.
[51] The applicant argued that a fair number of those considerations showed why the Commission erred in its decision. Her core submission is that her individual complaint was not addressed in the settlement that was reached and that accordingly the Commission’s decision was based on an irrelevant consideration and thus cannot withstand the standard of review.
[52] I disagree.
[53] The Commission clearly has the right to review the terms of a settlement when making a decision under paragraph 44(3)(b): Gamhum v. Canada (Canadian Human Rights Commission) (re Canada (Canadian Armed Forces)), [1996] F.C.J. No. 1254 (QL). In fact, the statutory scheme clearly contemplates this[2].
[54] However, the consideration of the settlement in the context of the dismissal of the applicant’s complaint is not, in my opinion, tantamount to deciding what constitutes adequate compensation for each individual, a question which, the applicant says, can be decided only by a tribunal. A legal decision as to compensation that is owing can only result from a court judgment that the complaint was substantiated (see subsection 53(2) and section 54 of the Act), and, in view of the settlement, no such judgment was ever rendered in this case.
[55] The existence of the settlement may, however, serve to support the theory that a more extensive inquiry is not warranted. The fact that about 75% of the employees covered by the CTEA systemic complaint voted in favour of ratifying the settlement terms tends to show its reasonableness.
[56] The applicant essentially states that the terms of the settlement may not be reasonable in her case. However, there is no indication that the particular circumstances or allegations cited in the applicant’s individual complaint distinguish it from the complaints dealt with in the course of the inquiry relating to the CTEA complaint and the settlement thereof.
[57] On the contrary, since the employee categories to which the applicant and the other individual complainants belonged were included in the latter complaint, the constitution of one or more other tribunals to hear the 62 individual complaints would have entailed the assessment of the same evidence, required the same expert testimony and raised the same questions of fact and of law as the CTEA complaints, withdrawn on October 22, 2002, six years after having been referred to the tribunal. In short, this is not a case in which the applicant or a particular group of employees were marginalized or completely excluded from the complaint process (a contrario, Public Service Alliance, supra).
[58] On the sole basis of the complexity of the pay discrimination issues and of the resources allocated to the inquiry relating to the systemic complaint of the CTEA, I find that the Commission struck a fair balance between the public’s interest in the maintenance of a viable and effective administrative system and the necessity that persons have their complaints carefully reviewed, which the Commission is bound to do (Gamhum, supra; Gee, supra). Absent considerations distinguishing the applicant’s complaint from the CTEA’s complaint, which was filed in particular on behalf of her group of employees, it is simply illogical to contend that the Commission wrongly exercised its extensive discretion in ruling that there was no need to conduct a further inquiry in view of “all the circumstances”.
[59] There is therefore no reason that would warrant the intervention of this Court, since the decision is not unreasonable, that is, “there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, para. 55).
[60] The application for judicial review is dismissed.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
“Danièle Tremblay-Lamer”
Judge
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-170-03
STYLE: Elizabeth Buchanan
v.
Bell Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 21, 2005
REASONS FOR ORDER
AND ORDER: Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: July 8, 2005
APPEARANCES:
Richard Letendre FOR THE APPLICANT
Suzanne Thibaudau FOR THE RESPONDENT
SOLICITORS OF RECORD:
383 Cartier Blvd. W.,
Laval, Quebec
H7N 2K5 FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montréal, Quebec FOR THE RESPONDENT
[1] Although the applicant contended that these two criteria were not satisfied, her real concern is linked to a lack of evidence or assessment as to whether the essence of her individual complaint had been addressed in the settlement; in other words, whether the investigation had been thorough.
[2] Section 48 provides for referral of the terms of settlement to the Commission.