ATTORNEY GENERAL OF CANADA (representing SOCIAL DEVELOPMENT CANADA , TREASURY BOARD OF CANADA v. PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT, 2011 FCA 202

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20110613 Docket: A-477-10 Citation: 2011 FCA 202 CORAM: NADON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: ATTORNEY GENERAL OF CANADA (representing SOCIAL DEVELOPMENT CANADA , TREASURY BOARD OF CANADA and PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA) Appellants and CANADIAN HUMAN RIGHTS COMMISSION Respondent and RUTH WALDEN et al Respondents Heard at Vancouver, British Columbia , on May 2, 2011. Judgment delivered at Ottawa , Ontario , on June 13, 2011. REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: NADON J.A. MAINVILLE J.A. Date: 20110613 Docket: A-477-10

Citation: 2011 FCA 202 CORAM: NADON J.A. LAYDEN-STEVENSON J.A. MAINVILLE J.A. BETWEEN: ATTORNEY GENERAL OF CANADA (representing SOCIAL DEVELOPMENT CANADA , TREASURY BOARD OF CANADA and PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA) Appellants and CANADIAN HUMAN RIGHTS COMMISSION Respondent and RUTH WALDEN et al Respondents REASONS FOR JUDGMENT LAYDEN-STEVENSON J.A. [ 1 ] Justice Kelen of the Federal Court (the judge) allowed two consolidated applications for judicial review of a decision of the Canadian Human Rights Tribunal (the tribunal).

The tribunal declined to order compensation for lost wages in relation to a discriminatory job classification on the basis that the respondent complainants (the complainants) had not established that wage loss resulted from the discriminatory practice. The tribunal awarded compensation for pain and suffering to two of the approximately 413 complainants. The judge set aside the tribunal’s decision with respect to both compensation for lost wages and pain and suffering and remitted the matter to a new panel for determination.

The Attorney General of Canada, representing the various relevant governmental departments (the Crown), appeals from the judgment, in part. The Crown appeals with respect to the wage loss aspect of the judgment but does not appeal with respect to the pain and suffering portion. The judge’s reasons are reported at 2010 FC 1135 , 377 F.T.R. 244 . For the reasons that follow, I would dismiss the appeal. Preliminary Observation [ 2 ] This matter gave rise to two final decisions from the tribunal because the proceeding was bifurcated.

The tribunal addressed the complainants’ complaint in phases: a liability phase and a compensation phase. I will refer to the tribunal’s decisions in relation to each phase as the “liability determination” and the “compensation determination”. Curiously, notwithstanding that the decision under appeal relates to the tribunal’s compensation determination, resolution of the issue before the Court turns largely on the tribunal’s liability determination.

Background [ 3 ] The background giving rise to the underlying complaint is comprehensively described in the tribunal’s liability determination ( 2007 CHRT 56 ) and need not be repeated here. Succinctly, for context, the complainants comprise a group of nurses working as “Medical Adjudicators” (adjudicators) in the Canada Pension Plan (CPP) Disability Benefits Program. Ruth Walden (Walden) is one of the complainants. The adjudicators, predominantly female, work alongside a group of doctors, predominantly male, working as “Medical Advisors” (advisors).

Together, adjudicators and advisors determine individuals’ eligibility for disability benefits under the CPP. [ 4 ] Advisors are classified under the Medicine Classification Standard (MD) within the public service’s Health Services Occupational Group (SH). The SH includes, by definition, positions that involve the application of medical or nursing knowledge (among other professional specialities) to the safety and physical and mental well-being of people.

Adjudicators are classified under the Program Administration Classification Standard (PM) within the public service’s Program and Administrative Services Occupational Group (PA). The latter group includes positions that primarily involve the planning, development, delivery or management of administrative and federal government policies, programs, services or other activities directed to the public or to the federal public service.

Although the use of the advisors’ professional knowledge (in the determination of eligibility for disability benefits) is reflected in the advisors’ classification, the adjudicators’ use of professional knowledge is not similarly reflected in their classification. In addition to professional recognition, advisors receive better compensation, benefits, training and opportunities for advancement than do adjudicators.

Since 1988, the adjudicators have repeatedly and unsuccessfully sought better recognition through reclassification as health practitioners within the SH. [ 5 ] The complainants alleged they were subject to discrimination on the basis of gender (

section 7 of the Canadian Human Rights Act , R.S.C. 1985, c. H-6 (the Act)) and that the Crown pursued a discriminatory practice that deprived them of employment opportunities (

section 10 of the Act). In its liability determination, the tribunal concluded that the complainants’ allegations were substantiated. The tribunal ordered the public service to cease the discriminatory practice of failing to recognize the professional nature of the work performed by the adjudicators in a manner proportionate to the professional recognition accorded to the advisors. It granted the parties time to negotiate an acceptable resolution but retained jurisdiction to determine any outstanding matters if the parties were unable to come to an agreement.

An application for judicial review of the liability determination was dismissed by Justice Mactavish: 2010 FC 490 , 368 F.T.R. 85 (judicial review of liability determination). An appeal from her judgment was discontinued. [ 6 ] When the parties were unable to reach an agreement concerning adequate remedies, the tribunal scheduled a further hearing. In an interim ruling, the tribunal granted the Crown’s request to adduce evidence regarding its proposal for redressing the discriminatory practice.

It also indicated the type of comparative analysis that would be appropriate for purposes of the compensation phase. [ 7 ] In its compensation determination, the tribunal ordered that a new nursing classification subgroup be created for the adjudicators. The tribunal also detailed a number of problems with the evidence relating to compensable wage loss. The referenced evidence related to two witnesses. The first was the complainants’ witness, an expert in job evaluation and compensation systems.

His report, based on the tribunal’s liability determination, its interim ruling and the job descriptions for the two positions, contained a comparative analysis of the work of the advisors and adjudicators. The second was the Crown’s witness, a human resources consultant with expertise in job classification, compensation and organizational design. Her evidence was confined to a critical analysis of the expert’s report. More specifically, the Crown’s witness emphasized that the existence of wage loss had to be empirically tested and could not be based on inferences drawn from the liability decision.

The tribunal basically accepted the critique proffered by the Crown’s witness and concluded that the results of the expert’s study could not be regarded as reasonably accurate. [ 8 ] The tribunal ultimately concluded that the complainants had failed to meet their burden of establishing the existence and quantum of compensable wage loss and declined to order compensation. It further declined to order the Crown to conduct a job evaluation study or to allow the complainants a further opportunity to gather additional evidence of wage loss.

Both the Canadian Human Rights Commission (the Commission) and the complainants commenced applications for judicial review of the tribunal’s compensation determination. The Federal Court Decision [ 9 ] The two applications for judicial review were consolidated. The Commission and the complainants advanced the same basic position in their respective applications to the Federal Court. Before addressing the merits of the applications before him, the judge reviewed the tribunal’s liability determination and Justice Mactavish’s reasons for judgment on judicial review of the liability determination.

He explained that the crux of the liability determination was the discriminatory treatment that resulted from the fact that the adjudicators did not receive recognition for their work as health professionals. The judge noted that there was no challenge to the tribunal’s determination that the most appropriate way to address the Crown’s discriminatory practice was to create a new nursing subgroup in the SH.

The judge also made the following observation at paragraph 50 of his reasons for judgment: [T]he Tribunal’s Liability Decision, and the Federal Court Judgment of Justice Mactavish upholding the Tribunal’s Liability Decision, held that the discriminatory classification of the medical adjudicators as Program Managers resulted in the medical adjudicators receiving less pay[,] fewer professional development opportunities and fewer employment benefits than available to nurses and doctors

classified within the Health Services Occupational Group. Accordingly, there can be no dispute that the medical adjudicators did suffer aloss of income and benefits due to the discriminatory job classification.

Accordingly, the issue for the Tribunal regarding appropriateremedies was the quantification of the loss of wages and benefits. (See also Justice Mactavish’s Judgment at paragraph 146 confirmingloss of income due to the discriminatory practice). [10] Noting the Crown’s submission – that the tribunal found discrimination because of the manner in which the adjudicators hadbeen classified but made no determination as to the existence of losses flowing from that classification – the judge held instead that thetribunal found discriminatory treatment because it identified certain elements of that treatment, including the lower salary and benefitspaid to adjudicators.

He relied on a number of excerpts from the tribunal’s liability determination and the judicial review of liabilitydetermination to support that conclusion (reasons at paras. 50-57; liability determination at paras. 121, 143; judicial review of liabilitydetermination at paras. 136, 143, 146, 150). Turning to the applications before him, the judge concluded that they could be resolved byaddressing only the tribunal’s determinations relating to compensation for lost wages and for pain and suffering.

As noted previously,the pain and suffering portion does not form part of this appeal. [11] With respect to the applicable standard of review, the judge characterized the issue as whether the tribunal erred in imposing anincorrect standard of proof upon the complainants.

He concluded that the standard of review was correctness. [12] After summarizing the evidence on the issue of wage loss and acknowledging that the tribunal had rejected the complainants’evidence, the judge concluded that the tribunal erred in law by finding that the complainants had failed to establish on a balance ofprobabilities that wage loss resulted from the Crown’s discriminatory practice.

He found that the tribunal erred in holding thecomplainants to a more onerous standard of proof because it required them to prove the quantum of wage loss on a balance ofprobabilities despite that it had earlier determined that the discriminatory practice resulted in wage loss. In view of that earlier finding,the judge concluded that the tribunal had a duty to either assess the lost income or wages on the evidence before it, or refer the matterback to the parties to prepare better evidence on that issue. The Statutory Provisions [13] The relevant statutory provisions are attached to these reasons as

Schedule “A”. The Standard of Review [14] This Court’s role, on appeal from an application for judicial review in the Federal Court, is to determine whether the judgeidentified the applicable standards of review and applied them correctly: Dr. Q. v. College of Physicians and Surgeons of BritishColumbia, 2003 SCC 19, [2003] 1 S.C.R. 266; Canada (Revenue Agency) v. Telfer, 2009 FCA 23, [2009] D.T.C. 5046. Analysis [15] The judge’s approach to the standard of review is problematic. As noted above, he concluded that the standard of review wascorrectness. I will return to this aspect of his reasons later.

For the moment, I will focus on the judge’s characterization of what he foundto be the tribunal’s error. On the one hand, he described the error as the selection of an incorrect standard of proof (reasons at paras. 40,64) while, on the other hand, he suggested the error was the tribunal’s imposition of an incorrect onus or burden of proof on thecomplainants (reasons at paras. 47, 59, 60).

Despite what I would describe as an unfortunate choice of language by the judge, andcontrary to the submissions of the parties, I see no reference in the judge’s reasons to suggest that he advocated a standard of proof otherthan the balance of probabilities. [16] It is settled law that the burden of proof in the human rights context is the same as in the civil context: he or she who allegesbears the burden of proving on a balance of probabilities: Ontario Human Rights Commission v. Simpsons-Sears Limited, (SCC), [1985] 2 S.C.R. 536 (O’Malley). See also: F.H v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (McDougall). Readholistically and fairly, the judge’s reasons indicate that he considered the essence of the tribunal’s error to be that it asked itself thewrong question. He concluded that it had already determined the existence of compensable wage loss. Therefore, the only questionbefore it was the amount of the wage loss. In short, in the judge’s view, the error lay in the tribunal’s requirement that the complainantsagain establish the existence of wage loss.

For reasons to be discussed later, I agree with the judge in that respect. [17] Returning to the judge’s choice of the applicable standards of review, his conclusions do not materially affect his ultimatedetermination. However, for clarity, brief comments are warranted. The parties agree that the selection of the appropriate legal test isreviewable on a standard of review of correctness and I will say no more about that. However, to the extent that the judge may have

considered that the assessment of compensation for wage loss under paragraph 53(2) (

c) of the Act is reviewed for correctness, I respectfully disagree. Such an assessment constitutes a question of mixed fact and law. It is dependent upon the factual circumstances; it concerns the tribunal’s appreciation and assessment of the evidence; it arises in connection with the tribunal’s enabling statute; and it falls within the tribunal’s expertise. The applicable standard of review is reasonableness. The tribunal’s decision must demonstrate justification, transparency and intelligibility and fall within a range of possible, acceptable outcomes defensible in respect of the facts and the law: Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 . [ 18 ] In this case, the tribunal did not err simply by coming to an unreasonable assessment of compensation for wage loss. Rather, its decision is flawed because it proceeded on an improper assumption that materially affected its determination as to compensation under paragraph 53(2) (

c) of the Act . The tribunal’s compensation determination shows that it placed a burden on the complainants to demonstrate the existence of compensable wage loss (paras. 74, 147, 148, 151). As stated earlier, I concur with the judge’s conclusion that the tribunal had already determined the existence of wage loss in its liability determination. [ 19 ] I acknowledge, as the Crown asserts, that the tribunal did not clearly articulate an express factual finding as to compensable wage loss in its liability determination. However, reasons are not to be parsed, but are to be read in totality.

On a proper reading of the tribunal’s reasons, the tribunal implicitly determined the existence of the requisite wage loss. At paragraphs 120 and 121 of its liability determination, the tribunal stated: [120] The advisors bring a different kind of knowledge to the program, perform some different tasks and have been given different responsibilities than the adjudicators. This provides a reasonable and non-discriminatory explanation for some of the differences in salary and benefits .

It also explains why the advisor and the adjudicator positions might occupy different levels within a classification standard in Health Services. [121] However, the differences in the work responsibilities of the respective positions are not extensive enough to explain the wide disparity in treatment between the advisors and the adjudicators.

In particular, the Respondent has failed to provide a reasonable non-discriminatory response to the following question: why have the advisors been recognized as health professionals, and compensated accordingly , when their primary function is to make eligibility determinations and yet, when the adjudicators perform the same primary function, they are designated as program administrators and are paid half the salary of the advisors ? (my emphasis) [ 20 ] The “differences in the work responsibilities” to which the tribunal refers are those described in paragraphs 117-119 of its liability determination.

The “wide disparity in treatment” to which the tribunal refers in paragraph 121 is the difference in “salary and benefits” described in the earlier paragraph. [ 21 ] The tribunal’s consideration of the Crown’s explanation for other aspects of differential treatment and lost employment opportunities is addressed in separate locations in the tribunal’s reasons. For example, paragraph 136 of the liability determination deals specifically with the Crown’s explanation for the differences in professional recognition between the two groups.

Similarly, paragraph 137 deals explicitly with the Crown’s explanation concerning differences in the payment of professional fees, educational/training opportunities and the provision of career advancement opportunities. [ 22 ] Further, the

summary provided in the initial paragraphs of the liability determination is instructive. I refer specifically to the following paragraphs: [2] The Complainants say that the doctors (known as “medical advisors”) and nurses (known as “medical adjudicators”) do the same work: they apply their medical knowledge to determine eligibility for CPP disability benefits. When medical advisors perform that work, they are classified as health professionals within the Public Service classification system. However, when the medical adjudicators do this work, they are not classified as health professionals.

Rather, they are designated as program administrators. As a result of their classification, medical advisors receive better compensation , benefits, training, professional recognition and opportunities for advancement than medical adjudicators.

… [5] The Complainants meet the legal requirement to establish a prima facie case under s. 7 of the Act. To meet that requirement theComplainants were required to produce credible evidence which, in the absence of a reasonable explanation from the Respondents,would substantiate their complaints. [6] The Complainants’ evidence supported their allegation that since 1972, medical adjudicators have performed the same orsubstantially similar work as the medical advisors. They both apply their medical qualifications and expertise to determine eligibility forCPP benefits.

Yet, only the medical advisors are classified as health professionals within the Health Services (HS) Group in the PublicService, and only the advisors receive the benefits and recognition that flow from that designation. … [10] The Respondents provided a reasonable explanation that rebutted part of the Complainants’ prima facie case, but not all ofit. While there is a significant overlap in the common enterprise of eligibility determination, medical advisors exercise an oversight andadvisory role that is not performed by the adjudicators.

This results in some differences in the job tasks performed by advisors andadjudicators. These differences explain the distinction in the job titles and explain some of the differences in compensation andbenefits. [11] However, the differences are not significant enough to explain the wide disparity in treatment and, more particularly, they donot explain why the advisors are recognized as health professionals and the adjudicators are not. The core function of both positions isapplying professional knowledge to determine eligibility for CPP disability benefits.

The Respondents have failed to provide areasonable, non-discriminatory explanation as to why this function is medical work when the advisors do it, and program administrationwork when the adjudicators do it. (my emphasis) [23] The tribunal’s determination that the differences explain “some” of the disparity in “compensation and benefits” leads tothe inevitable conclusion that the differences do not explain all of the variance in those subcategories of differential treatment.

Notably,apart from the excerpts from the tribunal’s reasons canvassed above, there are a number of other references contained in the judge’sreasons (paras. 53-57) to support the finding of wage loss. Further, there are also additional relevant paragraphs in the reasons of JusticeMactavish (judicial review of liability determination at paras. 28, 34, 55 and 56).

I reiterate that the Crown did not pursue its appeal ofJustice Mactavish’s judgment. [24] In my view, the inescapable result arising from the various references found throughout the tribunal’s liabilitydetermination is that, read as a whole, the tribunal’s reasons constitute a determination, albeit an implicit one, that some wage loss orbenefits loss had been established as a result of the discrimination. [25] For these reasons, I find the judge’s decision that the tribunal erred in concluding that the complainants had the burden ofestablishing both “the existence and quantum of wage loss” at the second phase of the hearing to be proper.

I note peripherally that thecompensation determination suggests that the tribunal may have been unduly influenced by the testimony of the Crown’s witness (thatwage loss resulting from the discriminatory practice must be empirically tested) and that it retreated from its earlier finding in theliability determination as a result (para. 119). [26] Yet, that does not end the matter for the Crown further submitted that, if it is found that the tribunal erred in concluding that thecomplainants had to establish wage loss, the appeal should nonetheless be allowed on the basis that the complainants did not establishthe quantum of wage loss.

Although this argument is superficially appealing, it must be rejected in view of the complainants’ responsivesubmission. [27] Relying on this court’s decision in Public Service Alliance of Canada v. Canada (Department of National Defence), (FCA), [1996] 3 F.C. 789 (C.A.) (PSAC), the complainants characterized this matter as “an onus case.” That is, they maintainedthat since they had established the existence of wage loss, the onus shifted to the Crown to lead evidence as to quantum.

[28] I have three observations to make regarding the respective submissions of the parties. First, the PSAC case concerned acomplaint under

section 11 of the Act. This is not a

section 11 case; it is a case concerning sections 7 and 10 of the Act. There is astatutory presumption with respect to

section 11. That is not the case in relation to sections 7 and 10. No authority was cited in supportof the complainants’ position in this respect. [29] Second, the proposition advanced by the complainants appears to run contrary to the reasoning in both O’Malley and McDougall.That is, he or she who alleges bears the burden of proving on a balance of probabilities. The general rule, however, is not absolute.

Therationale underlying the requirement in O’Malley and PSAC – that the employer should bear the burden of proof because the employer isin possession of the necessary information to show either undue hardship (O’Malley) or job changes that would affect the wage gap(PSAC) – was explained by the Supreme Court in Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311 at paragraphs 30-33.Basically, if there is a significant imbalance in the access of the parties to evidence relating to a particular point, this imbalance canjustify shifting the burden to the party with substantially greater access to the relevant evidence.

This leads me to my third observation. [30] The tribunal’s reasons are silent on this issue. In the absence of the issue being addressed by the tribunal, the Federal Court, andby extension this Court, is ill-equipped to determine whether the circumstances are such that the Crown is substantially better placed toaccess evidence relating to the quantum of compensable wage loss. The jurisprudence requires a significant gap before shifting theburden of proof.

It is the tribunal, not the court, which possesses familiarity with the factual circumstances and the respective capacitiesof the parties to produce the evidence that the tribunal considers necessary to adjudicate the matter. The question is not an insignificantone and the tribunal’s ruling will be of utmost importance to the parties. [31] In my view, in the circumstances, it would be inappropriate for this Court to pronounce on the issue of whether the burden of proof should shift. It would be equally inappropriate to accept the Crown’s argument that its appealshould be allowed on the basis advanced.

Conclusion [32] Although I have taken a somewhat different path, I have arrived at essentially the same conclusion as the judge. I note that thejudge’s reasons state that the tribunal must “assess the lost income or wage losses on the material before it, or refer the issue back to theparties to prepare better evidence on what the wage losses would have been, but for the discriminatory practice.” The formal judgment ofthe Federal Court sets aside the tribunal’s compensation determination and refers it back to a new panel of the tribunal in accordancewith the reasons for judgment.

In my view, the question of quantum of wage loss and the nature of proof required for the purposes ofparagraph 53(2)(

c) is a matter best left to the tribunal, given its expertise in the

interpretation of the Act. Consequently, I would leave itto the tribunal to determine how to go about conducting the redetermination of the compensation phase of the hearing. As I understandthe situation, the pain and suffering aspect of the compensation determination is presently before the tribunal. [33] For these reasons, I would dismiss the appeal with costs to the respondent complainants. I would not award costs to theCommission. "Carolyn Layden-Stevenson" J.A. “I agree M. Nadon J.A.” “I agree Robert M. Mainville J.A.”

SCHEDULE “ A” to the Reasons dated xx, xx, 2011 in A-477-10

Canadian Human Rights Act (R.S.C.1985, c. H-6) 7. It is a discriminatory practice, directly or indirectly, (

a) to refuse to employ or continue to employ any individual, or (

b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. 10. It is a discriminatory practice for an employer, employee organization or employer organization (

a) to establish or pursue a policy or practice, or (

b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. 11.

(1) 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.

Loi canadienne sur les droits de la personne (L.R.C. 1985, ch. H-6) 7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :

a) de refuser d’employer ou de continuer d’employer un individu;

b) de le défavoriser en cours d’emploi. 10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :

a) de fixer ou d’appliquer des lignes de conduite;

b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel. 11.

(1) Constitue un acte discriminatoire le fait pour l’employeur d’instaurer ou de pratiquer la disparité salariale entre les hommes et les femmes qui exécutent, dans le même établissement, des fonctions équivalentes.

Assessment of value of work

(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed. Separate establishments

(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this

section to be the same establishment. Different wages based on prescribed reasonable factors

(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference. Idem

(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages. No reduction of wages

(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section. Definition of “wages” Critère

(2) Le critère permettant d’établir l’équivalence des fonctions exécutées par des salariés dans le même établissement est le dosage de qualifications, d’efforts et de responsabilités nécessaire pour leur exécution, compte tenu des conditions de travail. Établissements distincts

(3) Les établissements distincts qu’un employeur aménage ou maintient dans le but principal de justifier une disparité salariale entre hommes et femmes sont réputés, pour l’application du présent article, ne constituer qu’un seul et même établissement. Disparité salariale non discriminatoire

(4) Ne constitue pas un acte discriminatoire au sens du paragraphe (1) la disparité salariale entre hommes et femmes fondée sur un facteur reconnu comme raisonnable par une ordonnance de la Commission canadienne des droits de la personne en vertu du paragraphe 27(2). Idem

(5) Des considérations fondées sur le sexe ne sauraient motiver la disparité salariale. Diminutions de salaire interdites

(6) Il est interdit à l’employeur de procéder à des diminutions salariales pour mettre fin aux actes discriminatoires visés au présent article. Définition de « salaire »

(7) Pour l’application du présent article,

(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes (

a) salaries, commissions, vacation pay, dismissal wages and bonuses; (

b) reasonable value for board, rent, housing and lodging; (

c) payments in kind; (

d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and (

e) any other advantage received directly or indirectly from the individual’s employer. 53

(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to

section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: (

c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; « salaire » s’entend de toute forme de rémunération payable à un individu en contrepartie de son travail et, notamment :

a) des traitements, commissions, indemnités de vacances ou de licenciement et des primes;

b) de la juste valeur des prestations en repas, loyers, logement et hébergement;

c) des rétributions en nature;

d) des cotisations de l’employeur aux caisses ou régimes de pension, aux régimes d’assurance contre l’invalidité prolongée et aux régimes d’assurance- maladie de toute nature;

e) des autres avantages reçus directement ou indirectement de l’employeur. 53

(2) À l’issue de l’instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :

c) d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l’acte;

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-477-10 STYLE OF CAUSE: Attorney General of Canada (representing Social Development Canada) et al v. Canadian Human Rights Commission et al PLACE OF HEARING: Vancouver , British Columbia DATE OF HEARING: May 2, 2011 REASONS FOR JUDGMENT BY: LAYDEN-STEVENSON J.A. CONCURRED IN BY: NADON, MAINVILLE JJ.A. DATED: June 13, 2011 APPEARANCES : Lynn Marchildon Talitha Nabbali FOR THE APPELLANTS

Daniel Poulin FOR THE RESPONDENT : CHRC Laurence Armstrong Heather Wellman FOR THE RESPONDENTS : WALDEN ET AL. SOLICITORS OF RECORD : Myles J. Kirvan Deputy Attorney General Of Canada FOR THE APPELLANT Canadian Human Rights Commission Ottawa, Ontario FOR THE RESPONDENT : CHRC Armstrong Wellman Barristers and Solicitors Victoria , B.C. FOR THE RESPONDENTS : WALDEN ET AL.