SYNDICAT DES COMMUNICATIONS DE RADIO-CANADA Applicant v. ATTORNEY GENERAL OF, 2011 FC 314
Opinion
Federal Court Cour fédérale Date: 20110316 Docket: T-436-10 Citation: 2011 FC 314 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa , Ontario, March 16, 2011 PRESENT: The Honourable Mr. Justice Scott BETWEEN: SYNDICAT DES COMMUNICATIONS DE RADIO-CANADA Applicant and ATTORNEY GENERAL OF CANADA AND THE CANADIAN BROADCASTING CORPORATION Respondents REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of the decision by the Canadian Human Rights Commission dated February 22, 2010, to not deal with the portion of the complaint on the assistantship group on the grounds that this part of the complaint is beyond its jurisdiction in accordance with paragraph 41(1) (
c) of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 (Act). FACTS [ 2 ] On April 28, 1999, the Syndicat des communications de Radio-Canada (SCRC) filed a complaint with the Human Rights Commission alleging that predominantly female groups are subject to systemic pay discrimination by the Canadian Broadcasting Corporation contrary to
section 11 of the Act . This discrimination has purportedly existed since August 7, 1995, but the SCRC is seeking remedial measures as of March 8, 1995, the date the Act was implemented at the Canadian Broadcasting Corporation. [ 3 ] Several objections and legal proceedings followed, including before this Court. The SCRC also made several changes to the
composition of the assistantship group during the review of the complaint. [4] On November 24, 2008, Sylvie St-Onge filed an investigation report in which she provided a detailed analysis of the jobs inthe assistantship category and studied the four criteria set out in the Commissions policy for a group of jobs to form an occupationalgroup.
She noted the following: 1) With respect to common characteristics, assistantship jobs vary significantly and include different duties. 2) Requirements (education, language, culture, etc.) vary from one job to another. 3) There is no similar career path between assistantship job holders and the SCRC has submitted no evidence to this end. 4) The jobs are not grouped together for remuneration purposes: there are different wage scales, some jobs are contractual, etc. [5] She found that the evidence submitted by the parties did not seem to support the position of the SCRC that the jobs in theassistantship group form an occupational group, but that certain assistantship job subgroups could possibly form an occupational group.
DECISION UNDER REVIEW [6] After examining the report and the subsequent representations, the Commission decided, pursuant to paragraph 41(1)(
c) ofthe Act, to not deal with the portion of the complaint on the assistantship group on the grounds that these jobs are not part of anoccupational group. [7] The Commission specified the four criteria that need to be satisfied in order for a group of jobs to form an occupationalgroup. The Commission noted that there is no indication that the SCRC did not have access to the information on analyzing theoccupational group of assistantship jobs.
It is not the investigators responsibility to improve a complaint that is deficient on its face.Without probative evidence that the jobs in the assistantship group form an occupational group, this part of the complaint was notaddressed. POSITIONS OF THE PARTIES Position of the applicant [8] The applicant argues that the investigation report demonstrates that several pieces of evidence exist and that certain jobgroupings could constitute an occupational group. [9] The applicant states that the fact that the group was improperly defined cannot interfere with the jurisdiction of the Commission.
According to the applicant, while it is true that the Commission is not required to improve acomplaint in the absence of essential evidence, it does have the duty of clarifying its scope when there is sufficient evidence in the recordallowing for occupational groups to be formed, and it must ensure that such groups are correct. The mischaracterization of a group doesnot render the complaint deficient on its face. This is a question of law that must be settled by the courts (Hodge v. Canada, 2004 SCC65 , [2004] 3 S.C.R. 357, and Granovsky v.
Canada (Minister of Employment and Immigration), 2000 SCC 28 , [2000]1 S.C.R. 703). [10] At the hearing, the applicant cited several excerpts from the investigation report to support its position that it submittedsufficient evidence to establish the existence of occupational groups. According to the applicant, it was up to the Commission to considerit and to form one or more groups based on this evidence before submitting everything to the Tribunal.
In this respect, the applicant citedpage 10 of the investigators report, which states the following: Admittedly, according to the Guide to Pay Equity and Job Evaluation (Chapter 1, pp. 7-8): Occupational groups may be defined eithernarrowly or broadly, but must make sense and must not be defined so broadly that they lump together jobs that are very different. Itseems that we have such a situation here. Incidentally, to avoid lapsing into such a biased generalization, the Guide recommends: Wheredoubt exists . . . it is generally preferable to opt for smaller groups.
[ 11 ] The applicant then referred to the letter dated June 22, 2007, in which it maintained before the investigator that . . . the 1995 merger of certification units enabled and still enables career interchangeability, mobility and change among the various jobs and that evidence for this will be provided to the tribunal. Similarly, the applicant referred to the fifth paragraph of page 13 of the report, where it is written that: [e]xcept for certain subgroups for these jobs (e.g., Captioners, Senior Captioners) a similar career path among holders of these 15 jobs is hard to identify.
The applicant did not submit evidence to indicate that certain evidence existed and was acknowledged by the investigator, instead limiting itself to stating that evidence would be provided before the Tribunal. [ 12 ] The applicant also referred the Court to pages 19 and 22 of the investigators report to support its submission that the Commission committed an error. [ 13 ] Finally, in stating that the Commissions decision is patently unreasonable under the circumstances, the applicant relied heavily on the investigators general finding on page 28 of her report, where she states following: The evidence provided by the parties . . . does not seem to show that Assistantship group jobs form an occupational group. However, on the basis of the four criteria analyzed, it is possible that, on this job list, certain job subgroups or even jobs taken individually may be considered an occupational group. [ 14 ] The applicant therefore argues that the Commissions decision is unfounded and irrational because it does not explain why the findings and conclusions of the investigation with respect to the possibility that job subgroups could form an occupational group were not accepted.
Position of the respondents [ 15 ] First, the respondents are requesting that paragraphs 3 to 6 of the applicants affidavits be struck because they contain personal opinions. [ 16 ] With respect to the issue, the respondents are stating that the collective complaint is filed pursuant to sections 12 to 15 of the Equal Wages Guidelines, 1986 , according to which an identifiable occupational group of predominantly one sex must be compared to another occupational group of the other sex.
If the Commission determines that the complainant group is not an occupational group, there is no obligation in the Act or the Guidelines to seek or form another group. The burden is on the complainant to first demonstrate the existence of a group of predominantly one sex with duties similar to those of a group of the other sex, and then to prove that the group is an occupational group. [ 17 ] The Commissions role is to determine whether there is sufficient evidence to justify an inquiry by the Tribunal. The Commission need not seek another group or evidence other than that submitted.
The respondents cite Justice Martineaus decision in Deschênes v. Canada (Attorney General) , 2009 FC 1126 , [2009] F.C.J. No. 1374 (QL) . They add that the Commission and the investigators are neutral and that their role is not to improve a complaint that is deficient on its face. [ 18 ] The respondents claim that the decisions cited by the applicant, Hodge and Granovky , are irrelevant. In these judgments, the Supreme Court of Canada ruled on the determination of a group in the context of an analysis in accordance with
section 15 of the Charter, not in the context of an occupational group under the Guidelines. [ 19 ] They add that during the process, the applicant was able to clarify the jobs included in the assistantship group three times. The Commission committed no error.
[20] The respondents also state that the applicants argument is based on the investigators representations relating to a possibility.The applicant has submitted no justification in support of its finding. Furthermore, the respondents argue that the investigator did nothave to propose that job groupings could form a new occupational group. ANALYSIS Issue [21] The issue raised by this application for judicial review is the following: Is the Commissions decision that it does not have thejurisdiction to hear the part of the complaint on the assistantship jobs reasonable?
Standard of review [22] Both the applicant and the respondents agree that the applicable standard of review in the case at bar is that of reasonableness,pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 62. In Deschênes, above, which deals with acomplaint dismissed under paragraph 41(1)(
d) of the Act, Justice Martineau states at paragraph 9 that [i]t is not disputed that theapplicable standard of review in the case at bar is reasonableness. Affidavits [23] With regard to this Courts case law and the admission by the applicants counsel during the hearing with respect to paragraphs3, 5 and 6 of the affidavits by François Morin and Alex Levasseur, the Court orders paragraphs 3 to 6 of these two affidavits to be struck. The jurisdiction of the Commission [24] A situation similar to the case before this Court was discussed in Deschênes, above.
In that case, the applicant challenged theCommissions decision to dismiss his application on the grounds that it was trivial and therefore not admissible under paragraph 41(1)(d)of the Act. At paragraph 7 of the decision, Justice Martineau discussed the Commissions role and stated the following: The Commissions role is well known and consists essentially in assessing the sufficiency of the evidence before referring a complaint toa human rights tribunal. It is not the job of the Commission to determine whether the complaint is made out.
Rather its duty is to decideif, under the provisions of the Act, an inquiry is warranted having regard to all the facts: Bell v. Canada (Canadian Human RightsCommission); Cooper v. Canada (Canadian Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, at paragraphs 52and 53; Syndicat des employés de production du Québec et de L'Acadie v. Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879, at page 899 (SEPQA). [25] The Commissions jurisdiction was also analyzed by Justice Layden-Stevenson in Lusina v.
Bell Canada, 2005 FC 134, 268F.T.R. 227, at paragraphs 26 to 29: The role and function of the CHRC is to accept, manage and process complaints of discriminatory practices. It is an administrative andscreening body with no appreciable adjudicative role. Its function is not to decide if a complaint is made out but to determine if, underthe provisions of the CHRA, an inquiry is warranted having regard to all of the facts: Cooper v. Canada (Canadian Human RightsCommission), (SCC), [1996] 3 S.C.R. 854.
In arriving at its decision, the CHRC is entitled to consider the investigator's report, such other underlying material as it, in its discretion,considers necessary and the representations of the parties. The CHRC is then obliged to make its own decision based on this information:Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (SEPQA).
The CHRA grants the CHRC a remarkable degree of latitude when it is performing its screening function on receipt of an investigativereport. As a general rule, it may be said that Parliament did not want the Court, at this stage, to intervene lightly in the decisions of theCHRC: Bell Canada v. Communications, Energy and Paperworkers Union of Canada, (FCA), [1999] 1 F.C. 113(C.A.), leave to appeal dismissed, [1999] 2 S.C.R. v (Bell). Thus, the scope for judicial review of the decisions of the CHRC is narrow:Canada Post Corp. v.
Canada (Canadian Human Rights Commission) (1997), (FC), 130 F.T.R. 241 (F.C.T.D.) aff'd.(1999), (FCA), 245 N.R. 397 (F.C.A.), leave to appeal dismissed, [2000] 1 S.C.R. viii (Canada Post). The Court's task is not to re-examine the evidence and come to its own conclusion. The standard of review of a decision of the CHRC todismiss a complaint requires a very high level of deference by the Court unless there be a breach of the principles of natural justice orother procedural unfairness or unless the decision is not supportable on the evidence before the CHRC: Bourgeois v.
Canadian ImperialBank of Commerce, [2000] F.C.J. No. 388 (T.D.) aff'd., [2000] F.C.J. No. 1655 (F.C.A.) (Bourgeois). [26] Paragraph 41(1)(
c) of the Act states that a complaint is not admissible if the complaint is beyond the jurisdiction of theCommission. In Hartjes v. Canada (Attorney General), 2008 FC 830, 334 F.T.R. 277, Justice Snider discusses the issue of thejurisdiction of the Commission pursuant to this paragraph and states the following at paragraph 14: . . . I observe that s. 41(1)(
c) of the CHRA provides the Commission with considerable discretion. Specifically, s. 41(1)(
c) provides thatthe Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that . . . thecomplaint is beyond the jurisdiction of the Commission [emphasis added]. The use of the words it appears to the Commission infers theexercise of discretion. [27] As indicated in the case law, the Commission has the discretionary authority to dismiss a complaint that is beyond itsjurisdiction. In this case, the Commission dismissed the complaint on the grounds that the assistantship group was not an occupational group.
The applicant contends that the Commission should havereorganized the subgroups of the assistantship group to form occupational groups and should have thus assumed jurisdiction in regard tothe complaint. The applicants proposal raises a serious question of interference by the Commission. [28] The issue of the neutrality of investigators was addressed in Lusina, above, in which Justice Layden-Stevenson mentions thefollowing at paragraph 31: To establish such a fair basis, the investigator must satisfy two conditions: neutrality and thoroughness.
Where the parties makesubmissions in response to an investigator's report, the parties may be able to compensate for omissions [in the investigator's report] bybringing such omissions to the attention of the decision-maker. Judicial review is warranted only where complainants are unable torectify such omissions.
Circumstances where further submissions cannot compensate for an investigator's omissions includecircumstances where the omission is of such a fundamental nature that merely drawing the decision-maker's attention to the omissioncannot compensate for it: Ibid (Slattery). [29] Similarly, Justice Martineau added at paragraph 32 of Deschênes, as cited by the Commission in its decision, that [w]hile it istrue that the complainants were not represented by counsel, this in no way changes the fact that the investigator must act with the utmostneutrality.
It is not the role of the investigator to try to improve a complaint that is deficient on its face. [30] We are of the opinion, as the Commission mentioned in its reasons, that it is not the role of the Commission or theinvestigator to improve the applicants complaint. In this case, it would have indeed been an improvement, and not a clarification, as theapplicant is arguing.
In fact, the excerpts from the investigators report cited by the applicant reveal only one piece of evidence that could demonstrate the existence of an occupational group, that is, that of captioners, and with respect to only one of the four criteria. [31] Furthermore, the investigators general statement that, in the presence of very different jobs, it is preferable to opt for smallergroups does not relieve the applicant of the obligation to establish the existence of these occupational groups, as the burden of proof is onit by virtue of the Act. [32] Hodge and Granovsky do not apply in the case at bar given the fact that these decisions deal with the application of
section 15of the Charter.
[ 33 ] The Commission rendered its decision in light of the investigators report and subsequent comments submitted by the parties. The SCRC, upon receipt of the investigators report, did not submit to the Commission that certain jobs in the assistantship group constituted one or more occupational groups. Moreover, it even, in some cases, chose to not submit evidence with respect to some of the four criteria, merely stating that evidence would be provided before the Tribunal.
Under these circumstances, the Commission cannot be faulted for relying on the investigators report and on the few conclusive elements therein to determine that it could not rule on the part of the complaint dealing with the assistantship group. [ 34 ] We are of the opinion that the Commissions decision is perfectly reasonable under these circumstances. The Court cannot agree with an
interpretation of the Act that imposes an obligation on the Commission that does not belong to it. JUDGMENT THE COURT ORDERS AND ADJUDGES that the application for judicial review is dismissed with costs against the applicant. André F.J. Scott Judge Certified true translation Janine Anderson, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-436-10 STYLE OF CAUSE: Syndicat des communications de Radio-Canada AND Attorney General of Canada
AND Canadian Broadcasting Corporation PLACE OF HEARING: Montréal DATE OF HEARING: February 15, 2011 REASONS FOR JUDGMENT : SCOTT J. DATED: March 16, 2011 APPEARANCES : Marilyne Duquette Suzanne Thibaudeau FOR THE APPLICANT FOR THE RESPONDENTS SOLICITORS OF RECORD : Roy Évangéliste CSN Legal Department Montréal , Quebec H2K 4S1 Heenan Blaikie Legal counsel Montréal , Quebec H3B 4Y1 FOR THE APPLICANT FOR THE RESPONDENTS
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