Public Service Alliance of Canada v. Canada Post Corporation

CANADIAN HUMAN RIGHTS TRIBUNAL

DES DROITS DE LA PERSONNE

TRIBUNAL

PUBLIC SERVICE ALLIANCE OF CANADA

Complainant

- and -

CANADIAN HUMAN RIGHTS COMMISSION

Commission

- and -

CANADA POST CORPORATION

Respondent

REASONS FOR DECISION

PANEL: Elizabeth Leighton

Gerald T. Rayner

2005 CHRT 39

2005/10/07

I. INTRODUCTION 1

A. The Complaint 1

B. The Investigation Stage 1

C. Population 6

D. Setting and Context, 1981 through 1991 8

II. LEGISLATIVE BACKGROUND 12

A. Nature of Human Rights Legislation 12

B. History of the Canadian Human Rights Act 16

III. THE FUNDAMENTAL ISSUES 18

A. Independence and Impartiality of the Tribunal 18

B. Retroactivity and Validity of the Guidelines 19

C. Proof by Presumption 19

D. Prima Facie Case 20

IV. EXAMINATION OF THE FUNDAMENTAL ISSUES 20

A. Independence and Impartiality of the Tribunal 20

B. Retroactivity and Validity of the Guidelines 28

(i) Background 28

(ii) How is the Concept of "retroactivity" pertinent

to this Complaint? 30

a) Submissions of the Parties 30

b) Tribunal's Analysis 36

(iii) Are subsection 8(2) and sections 11-15 of the

1986 Guidelines Valid? 46

a) Submissions of the Parties 46

b) Tribunal's Analysis 58

C. Proof by Presumption 67

V. PRIMA FACIE CASE 71

A. Background and Elements of a Prima Facie Case for a

Complaint brought under Section 11 of the Act 71

B. Does the Complainant group and the Comparator

group represent, respectively a predominantly

female occupational group and a predominantly

male ocuupational group, suitable for comparison of

work, under the Act? 73

C. Are the Complainant and the Comparator groups

employed in the same `establishment'? 80

(i) Evolution of the Definition of Establishment 81

(ii) The `Airlines Case' 86`

(iii) Impact on the Current Case of the Federal

Court of Appeal Decision in the `Airlines

Case' 88

D. Does the comparison of the work of the Complainant

group and the Comparator group establish that the

work being compared is equal in value? Are the

jobs/positions data and the process comparing the

work of the Complainant and the Comparator

groups reliable? 98

(i) Background 98

(ii) Issues 103

E. Review of Job Information Collected and

Methodology Used: Investigation Stage 104

(i) Commission's 1987 Job Evaluations 104

(ii) Commission's 1991 Job Evaluations 107

F. Review Of Job Information Collected And

Methodology Used: Tribunal Stage 109

(i) The Professional Team 109

(ii) Phases 1 and 2 111

(iii) How were the Job Evaluations conducted by

the Professional Team? 113

(iv) Two Additional Reviews 116

G. Reliability of Job Information Collected, Methodology

Used and Job Evaluations conducted by the

Commission and the Professional Team: - Positions

of the Professional Team, Canada Post, the Alliance

and the Commission 118

(i) The Standard of Reliability 118

(ii) Commission's 1987 Job Evaluations 122

(iii) Commission's 1991 Job Evaluations 124

(iv) Professional Team's 1993/1994 Job Evaluations

126

(v) The Professional Team's Position re: its

1993/1994 Job Evaluations 138

(vi) Canada Post's Position re: the Commission's

1991 and the Professional Team's 1993/1994

Job Evaluations 139

a) Ms. Winter's Testimony 141

b) Mr. Willis' Testimony 146

c) Mr. Wallace's Testimony 149

(vii) The Alliance's Position re: 152

a) Ms. Winter's Testimony 152

b) Mr. Willis' Testimony 157

c) Mr. Wallace's Testimony 159

(viii) The Commission's Position re: Canada Post's

Expert Witnesses - Winter, Messrs. Willis and

Wallace 161

H. Reliability of Methodology Used by the Professional

Team: - Tribunal's Analysis 164

(i) Introduction 164

(ii) The Job Evaluation System Chosen 165

(iii) The Process 168

VI. RELIABILITY OF JOB INFORMATION SOURCES

AND RESULTING JOB INFORMATION USED BY

THE PROFESSIONAL TEAM 173

A. Background 173

B. FACTS I 175

(i) Composition 175

(ii) Submissions of the Parties and Expert Witnesses

177

(iii) Credibility of Evidence of Expert Witnesses

183

C. FACTS II 185

(i) Composition and Impact 185

D. FACTS I and II Compared to Reliability Standard of

the Job Evaluation Industry 188

E. Tribunal's Analysis 190

(i) A Daunting Task 190

(ii) Definitions and Sub-bands of Acceptability 195

VII. WAGE GAP AND WAGE ADJUSTMENT

METHODOLOGY 197

A. Introduction 197

B. Submissions of the Parties 199

(i) The Alliance 199

(ii) The Commission 203

(iii) Canada Post 208

(iv) Reply Submissions of the Alliance 214

(v) Reply Submissions of the Commission 216

C. Tribunal's Analysis 219

(i) Preliminary 219

(ii) Review of the Wage Adjustment Methodology

Proposals 223

(iii) Sum-up 228

VIII. Non-Wage Forms of Compensation 231

A. Background 231

B. Submissions of the Parties 234

(i) The Commission's Position 234

(ii) The Alliance's Position 235

(iii) Canada Post's Position 239

(iv) Tribunal's Analysis 242

IX. Remedy 250

A. Background 250

B. Remedial Components 255

(i) Award of Lost Wages 255

(ii) Back-Pay - The Compensation Period 256

(iii) Interest 259

(iv) Post- Judgement Interest 261

(v) Special Compensation 261

(vi) Legal Costs 265

(vii) Retention of Jurisdiction 268

X. JOINT UNION-EMPLOYER LIABILITY FOR WAGE

DISCRIMINATION 268

A. Canada Post's Submission 268

B. The Alliance's Position 269

C. The Commission's Position 269

D. Tribunal's Analysis 269

XI. ORDERS 272

I. INTRODUCTION

A. The Complaint

[1] The Public Service Alliance of Canada filed a complaint with the

Canadian Human Rights Commission on August 24, 1983, which reads as

follows:

It is alleged that the Canada Post

Corporation as Employer, has violated

Section 11 of the Canadian Human Rights

Act by paying employees in the male-

dominated Postal Operations Group more

than employees in the female-dominated

Clerical and Regulatory Group for work of

equal value. The wage rates of the male-

dominated Postal Operations Group exceed

those of the female-dominated Clerical and

Regulatory Group by as much as 58.9 per

cent for work of equal value. It is alleged

that sex composition of the two groups has

resulted in wage discrimination against the

Clerical and Regulatory Group, contrary to

Section 11.

Corrective Action:

1. That all employees within the CR Group

employed

by

Canada

Post

Corporation receive wages, as

defined in paragraph 11(6) [now

section 11(7)] of the Canadian

Human Rights Act, equal to the

wages of employees within the PO

Group performing work of equal

value.

2. That this corrective action be made

retroactive to October 16, 1981.

B. The Investigation Stage

[2] Once a complaint is received by the Canadian Human Rights

Commission (the Commission), the general procedures followed are those

enunciated in the Canadian Human Rights Act¹(the Act).

[3] When the Commission receives a complaint for filing under the Act, it

may designate an investigator to conduct a preliminary review of the

nature and details of the complaint. All parties to the complaint are

involved in this review. The respondent's defences to the allegations in the

complaint are an integral part of the review.

[4] When this review is completed, the Commission has the authority to

determine that a valid defence has been submitted by the respondent, and

that the complaint, therefore, cannot be substantiated. Alternatively, the

Commission has the authority to appoint a conciliator for the purpose of

attempting to bring about a settlement of the complaint. A third option is

for the Commission to refer the complaint to the Canadian Human Rights

Tribunal for an inquiry involving all parties, including the Commission as

a representative of the public interest.

[5] In the case of a complaint brought under section 11 of the Act, the

Commission's authority to conduct its investigation includes authority to

gather pertinent job fact data. The Commission may request information

from the respondent, such as lists of employees, job descriptions, and

related job data including input from supervisory and management

personnel and employee interviews. Even on-job-site observations may be

requested.

[6] The receipt of job fact data is crucial to the Commission's

consideration of the complaint and its final recommendation based on the

facts it has before it. The value of the work of the male and female

employees cited in the complaint needs to be established and compared, as

do the wages of the male and female employees. The evaluation process

must include consideration of the four factors specified in subsection 11(2)

of the Act, namely: skill, effort, responsibility, and working conditions.

[7] The Commission's usual practice is to undertake the work evaluation

process using a job evaluation committee, and the employer's own existing

evaluation plan, provided it is suitable for a complaint brought under

section 11 of the Act. Failing this, the Commission must find an alternative

job evaluation plan which is unbiased, gender neutral, and appropriate for

the task.

[8] The Commission must investigate, as well, the appropriateness of the

comparator chosen and named in the complaint.

[9] Ultimately, the Commission must make its preliminary comparison of

the job values and wages between the complainant and the comparator

groups named in the complaint. An Investigation Report, based on the

Commission findings, will then be drafted. Once the parties involved have

vetted it, a Final Investigation Report, with its recommendations, will be

presented to the Commissioners of the Commission who will make the

final decision regarding the Commission's involvement with the

complaint.

[10] In the case of the Complaint before this Tribunal, the Investigation

Stage was prolonged. There were a number of reasons for this.

[11] As early as 1982, even before the Complaint was filed, the

complainant, the Public Service Alliance of Canada (the Alliance), and the

respondent, Canada Post Corporation (Canada Post), had agreed to work

jointly on the development of a job evaluation plan, known as System

One.

[12] Therefore, during 1984 and most of 1985, the Commission did not

pursue its investigation of the Complaint actively. Instead, it made

periodic checks on the state of the joint development of System One.

Differences of opinion between the Alliance and Canada Post, including

the withdrawal, at one point, of the Alliance from active participation in

the evaluation development process, led to many delays and limited

progress in developing the joint System One plan. Finally, the

Commission decided to re-activate its investigation in October 1985.

[13] From late 1985 and through 1986, the Commission was active in

developing a Job Fact Sheet, a questionnaire intended for use in gathering

current job data for the complainant positions - jobs in the Clerical and

Regulatory Group (CR's), a group noted in the Complaint as "female-

dominated", and for the named comparator positions - jobs in the Postal

Operations Group (PO's), noted in the Complaint as "male-dominated".

[14] During this time, Canada Post expressed serious concern to the

Commission about the design and content of the proposed Job Fact Sheet.

Additionally, Canada Post expressed to the Commission its reservations

about the investigation process in general. The Commission had indicated

that the Job Fact Sheet was to be answered by a sample of the CR group

first. It was intended, eventually, to be a prime job data-gathering tool for

the Commission's investigation.

[15] At the same time that it was expressing its reservations about the

Commission's investigation process, Canada Post did answer the

Commission's requests for job data information by providing employee

printouts and other information. It cautioned that job descriptions and

organization charts which were required as attachments to the Job Fact

Sheet would often be out-of-date. The Alliance advised the Commission

that the job descriptions should be union-approved.

[16] By December 1986, a sample of CR employees at Canada Post had

completed the Job Fact Sheet, and had been interviewed by Commission

staff, using an Interview Guide created by the Commission to clarify

answers given on the Job Fact Sheet. Additionally, during the interview

process, relevant supervisory staff had been interviewed to clarify answers

given by the incumbents sampled.

[17] From April to September 1987, a number of Commission staff

evaluated the sample of 194 CR positions using the data collected in 1986.

System One was the basis for these evaluations, although it was an

uncompleted plan, and the Alliance had advised against its use for

evaluation purposes. These evaluations were eventually set aside, and not

used in the final investigation process.

[18] Protracted correspondence, meetings and discussions ensued from

late 1987 through to mid-1991 between the Commission and Canada Post

concerning the sampling of, and job data collecting from, the PO

comparator group. The Commission was unsuccessful in seeking the co-

operation of the relevant comparator group unions to collect this

information. Moreover, Canada Post questioned the size of the proposed

sample of the PO comparator positions, and declined to have the Job Fact

Sheet completed by PO employees on company time.

[19] Meanwhile, the Alliance was increasingly concerned with the limited

progress in the Commission's investigation of the Complaint. The

Commission had threatened, on at least two occasions, to invoke section

58 of the Act, to obtain, from Canada Post, information it required to

continue its investigation. Meetings involving senior managers from the

Commission and from Canada Post were subsequently held, leading to the

development, by the Commission, of a preliminary set of 10 "generic" PO

job specifications.

[20] Eventually, the Commission was able to finalize its 10 "generic" PO

job specifications based upon data obtained from Canada Post. This took

place from July to October 1991. Although Canada Post indicated that the

creation of these "generic" jobs excluded several PO jobs, there never was

a resolution to this difficulty. Intervening events, such as a union strike in

August 1991, extended the investigation time even more. The Commission

moved forward, pushed by the concerns of the Alliance which were made

evident by its threat to bring an application for mandamus under the Act to

compel the Commission to complete its investigation. Its staff commenced

the evaluation of CR and PO Benchmark positions, after which the 10

"generic" PO jobs were to be evaluated and the original sample of 194 CR

positions was to be re-evaluated.

[21] In the midst of this activity, the Commission's senior investigator was

temporarily re-assigned from his position as head of this investigation to

address other priorities. To complete the work expeditiously, the PO

Supervisory positions were dropped from the Complaint, and the CR

sample was reduced from 194 to 93 positions. A consultant was added to

Commission staff for the evaluation process which was using, as its

evaluation tool, the XYZ Hay Job Evaluation Plan, an off-the-shelf plan.

System One could not be used as it had never been accepted by the union,

and it was never meant to be used to compare jobs represented by unions

other than the Alliance. Moreover, Canada Post had also advised the

Commission that System One would not be suitable for evaluating PO

jobs.

[22] The Commission completed its CR and PO job evaluations and its

investigation work in November 1991. There was no briefing session with

Canada Post before the draft Investigation Report was released to the

parties on December 16, 1991, along with a request to submit any

comments by January 6, 1992. Comments were submitted by both parties

by late January 1992; the Commission's Final Investigation Report, dated

January 24, 1992, did not incorporate any of them. The Final Report

concluded that there was a demonstrable wage difference when comparing

wages and job values in the male and female-dominated groups named in

the Complaint. The Report recommended referral of the Complaint to the

Canadian Human Rights Panel (now known as the Canadian Human

Rights Tribunal).

[23] The Commissioners considered the Final Investigation Report and,

having regard to all the circumstances of the Complaint, decided, on

March 16, 1992, to institute an inquiry into the Complaint by means of a

referral to the Canadian Human Rights Tribunal which would assign the

matter to a specific Tribunal panel for a hearing.

[24] The Tribunal panel was established on May 11, 1992, a Pre-hearing

Conference was held September 21, 1992, and hearings and deliberations

got underway on November 25, 1992. The written and oral submissions

were completed on August 27, 2003, although written submissions

concerning the Decision of the Federal Court of Appeal in the `Airlines

Case' [Canadian Human Rights Commission v. Air Canada, Canadian

Airlines International Limited and Canadian Union of Public Employees

(Airline Division), [2004] F.C.J. No. 483] were submitted in mid-

August 2004. In June 2004, the original Chair of this Tribunal, Benjamin

Schecter, resigned.

C. Population

Complainant and Comparator Groups

[25] The Commission's Final Investigation Report, dated January 24,

1992, indicates that the total population (with the break-down by job

category of each of the complainant and comparator

groups) was as follows (presumably as of a particular date during the

Investigation Stage, although no effective date is mentioned in the

Report):

Complainant Group (Clerical and Regulatory Group)

CR 2 260

CR 3 950

CR 4 950

CR 5 150

_____

Total Clerical and Regulatory Group 2,3l0

Comparator Group (Postal Operations Group)

Internal Mail Processing and Complementary Postal Service Sub-

group

PO INT 2 1,283

INT 3 2

INT 4 18,020

INT 5 1,205

______

20,510

External Mail Collection and Delivery Services Sub-group

PO EXT 1 17,549

EXT 2 2,224

EXT 3 48

______

19,821

Supervisory Sub-group

PO SUP 1 549

SUP 2 1,343

SUP 3 427

SUP 4 331

SUP 5 96

SUP 6 22

______

2,768

Total Postal Operations Group 43,099

[26] By way of comparison, the total population levels of the complainant

and comparator groups as presented in the documentation (undated)

supporting the August 24, 1983 Complaint are as follows:

Clerical and Regulatory Group (Complainant) - CR's 2,316

Postal Operations Group (Comparator) - PO's

PO INT 25,056

PO EXT 21,661

PO SUP 4,195

PO Total 50,912

D. Setting and Context, 1981 through 1991

[27] To assist in understanding this lengthy and complex case, the

Tribunal considers it important that the historical setting and context be

identified. In particular, what was going on in the "world" in which all

three parties were operating during the crucial years 1981 through 1991?

[28] The Canadian Human Rights Act was enacted on July 14, 1977 and

proclaimed in force on March 1, 1978. Section 11 of the Act took effect on

March 1, 1978. When this Complaint was filed with the Commission on

August 24, 1983, a number of other individual and group complaints

alleging discrimination under section 11 of the Act had already been

brought by the Alliance, and other public and private sector unions.

Tribunals were appointed to hear some of the cases but the majority were

settled after negotiation, using Commission facilitators, and with the

consent of the Commission.

[29] The Act, a quasi-constitutional human rights statute, enunciates

general principles concerning the prohibition of discrimination on

particular grounds. It established a Canadian Human Rights Commission

which was given the authority to be actively involved in the evolution of

the Act through its handling of complaints, and its development and

issuance of Guidelines, under subsection 27(2). Additionally, the

Commission was required to undertake or to support research programs

relating to its duties, and to foster public understanding and recognition of

the purposes of the Act, while discouraging and reducing the various

discriminatory practices the Act addresses. All of this, undoubtedly, placed

challenging demands on the Commission and its staff during this early

period. At the same time, this was a period of increasingly tight fiscal

management at both the provincial and federal levels of government.

[30] Collective bargaining was introduced to the Canadian Public Service

in March 1967 under the aegis of the Public Service Staff Relations Act²

(PSSRA) which provided that the government and the Public Service

Commission had to promulgate and declare occupational job categories in

groups, as a preliminary to formal unionization of government employees.

Each job category had to be defined by listing the groups of employees

making up that category. Employees at the Post Office, which was a

Department of the Canadian government at the time, were included in the

same categories and groups as employees in other government

departments, except for employees who were directly involved in the

handling of mail. This unique group bore the title, "mail handlers" and

included postal clerks, letter carriers, mail dispatchers, supervisory mail

handlers, and several other functions involved in the sortation and delivery

of mail.

[31] The daily movement of massive volumes of different types of mail in

a country the size of Canada, with its different time zones and variety of

climatic conditions, requires a vast, well-coordinated operational network.

Inevitably, such a network includes thousands of corporate or contracted

people and thousands of postal outlets in both urban and rural areas, in

addition to many mail-processing facilities across the country. The state of

employee relations is obviously a vital element in operating such a

complex network successfully. Prior to the enactment of the PSSRA in

1967 and the subsequent certification of various unions to represent

particular occupational groups of employees within the then Post Office

Department, employees tended to be represented, informally, by staff

associations. The earliest of such postal associations is believed to have

been formed in 1889.

[32] In the 1960's and 1970's, the Post Office Department experienced one

of its most unsettled periods of labour relations. While this was a period

when the postal code system was introduced (1971) and mechanized mail

processing technology was evolving, it was also a period of many

management-employee disputes leading to several major strikes.

[33] The Post Office Department was succeeded by Canada Post

Corporation with the proclamation of the Canada Post Corporation Act³

on October 16, 1981. One of the objects of the new Corporation, specified

in the enabling legislation, was "...the need to conduct its operations on a

self-sustaining financial basis while providing a standard of service that

will meet the needs of the people of Canada...".⁴Creation of the Crown

Corporation appeared to have the support of all national political parties

and most organized labour, business and consumer organizations. There

also seemed to be a consensus that one of a number of desirable objectives

for the new Corporation would be the reform of its collective bargaining

structure in the interests of achieving labour peace.

[34] Upon becoming a Crown Corporation, the bargaining units certified

under the PSSRA were deemed to be bargaining units under the Canada

Labour Code⁵, and the bargaining agents representing these bargaining

units were to remain in place, presumably to provide a transitional period

of relative stability and an opportunity for the new Corporation to

reorganize. This did, however, pre-empt an early start to the reform of the

collective bargaining process which was further delayed by the passage, in

1982, of the federal `6 and 5' cost control legislation. The Canada Labour

Relations Board (CLRB) issued a policy statement in February 1984

calling for an overall review of the bargaining unit structure of the

Corporation at an appropriate time in the future. This review finally got

underway in May 1985 when the Corporation filed its application with the

CLRB for study of the appropriateness of all of its then existing

bargaining units.

[35] The 1985 CLRB study took the form of a Bargaining Unit Review

Process (BURP) with the first phase of hearings concluding in December

1987; CLRB's first decision was released on February 10, 1988. The

CLRB heard from eight unions involving twenty-six bargaining units

(representing about 58,000 employees), and ordered that they all be

consolidated into four bargaining unions and four bargaining units. The

four unions are as follows:

Canadian Postmasters and Assistants Association (CPAA)

Canadian Union of Postal Workers (CUPW), comprising the Letter

Carriers Union of Canada (LCUC), the International

Brotherhood of Electrical Workers (IBEW), the General

Labour and Trades Group, the General Services Group, and

the original CUPW

Public Service Alliance of Canada (PSAC), representing

administrative, technical and professional employees,

involving the combination of 15 separate units into one

collective bargaining unit

Association of Postal Officials of Canada (APOC), representing

operational supervisory employees but excluding lead

hands and first-line managers

[36] It was not until 1988 that the bargaining unit consolidation occurred

and the 1989-1992 round of labour negotiations was the first held with

representatives of the consolidated units - some eight years after achieving

Crown Corporation status. Understandably, while the BURP study was

on-going, negotiations continued between the Corporation and the original

26 bargaining units. In fact, there were active negotiations during this

period with LCUC, CUPW, CPAA, APOC and PSAC, some overlapping

with each other and some with special mediation assistance. Despite

vigorous negotiations, three strikes occurred in the 1980's, one of which

involved PSAC.

[37] The 1989-1992 round of negotiations between the Corporation and

CUPW were particularly challenging for all parties, leading to

unsuccessful mediation, rotating strikes and Parliamentary back-to-work

legislation in 1991. Agreements were concluded during this same period

with the other three unions - CPAA, APOC and PSAC - without work

stoppages.

II. LEGISLATIVE BACKGROUND

A. Nature of Human Rights Legislation

[38] Human rights legislation is a child of the 1970's. Although at the

beginning of the twentieth century, there had been demands, often by

women, for equality rights, it would be decades before legislation, both

provincial and federal, addressed discrimination in general.

[39] Discrimination in the area of work was addressed after the First

World War when the International Labour Organization was founded in

1919. At about that time, the Canadian government legislated a minimum

wage for women.

[40] The Universal Declaration of Human Rights⁶was proclaimed by the

General Assembly of the United Nations in December 1948. It was

viewed, at the time, as the first step in the formulation of an "international

bill of human rights" that would have legal as well as moral force. Article

23 of this Declaration reads in part that "[e]veryone, without any

discrimination, has the right to equal pay for equal work".

[41] By 1951, the principle of equal pay for work of equal value was

articulated by the International Labour Organization in its C100 Equal

Remuneration Convention⁷. This Convention was ratified by Canada in

1972 and signalled Canada's commitment to the active pursuit of the

human rights of workers, including the principle of "equal pay for work of

equal value". This commitment was reaffirmed when Canada ratified in

1976 the United Nations International Covenant on Economic, Social and

Cultural Rights⁸, the International Covenant on Civil and Political

Rights⁹, and the Optional Protocol to the International Covenant on Civil

and Political Rights¹⁰. These United Nations Covenants made a reality of

the dream for an "International Bill of Human Rights".

[42] Article 7 of the International Covenant on Economic, Social and

Cultural Rights recognizes the right of everyone to "[f]air wages and equal

remuneration for work of equal value without distinction of any kind, in

particular women being guaranteed conditions of work not inferior to

those enjoyed by men, with equal pay for equal work".¹¹

[43] In 1970, Canada established a Royal Commission to inquire into the

Status of Women. The Royal Commission's Report focused on continuing

discrimination involving women in the workplace.¹²Female participation

in the Canadian workforce had continued to grow over the decades,

increasing during the 20-year period 1960 - 1979 by the same percentage

as it had taken sixty years to achieve between 1901 and 1961.

[44] Canada's commitment to eliminate discrimination in the workplace

was enlarged to include a broader definition of human rights by the

promulgation of the Canadian Human Rights Act in 1978 and, in 1981, by

Canada's signing of the United Nations Convention on the Elimination of

all Forms of Discrimination against Women.¹³

[45] The general goals of human rights legislation are the prevention of

discrimination and the promotion of public education to eliminate

discrimination. These goals are based on society's belief in equality rights

for its members. After the fact, they are an attempt to make victims of

discrimination "whole" either through consensual or mandated resolution.

Dickson, C.J. noted in Canada (Human Rights Commission) v. Taylor,

[1990] 3 S.C.R. 892 that the general purpose of the Canadian Human

Rights Act, as set out in section 2, is "...the promotion of equal opportunity

unhindered by discriminatory practices...".¹⁴

[46] A legislative protection of human rights demands statutory

interpretation which is broad and purposive, which is made in "...a manner

consistent with its overarching goals...".¹⁵In other words, an interpretation

of human rights legislation must advance the purpose of that legislation to

educate the public and to eradicate discrimination. To do this, the

interpretation should give the legislation a generous reading, avoiding a

narrow, overly technical analysis. Such an interpretation will construe the

rights in the legislation broadly and liberally, while interpreting the

legislation's restrictions and exceptions in a stricter manner.

[47] The Supreme Court of Canada noted in Winnipeg School Division No.

1 v. Craton, [1985] 2 S.C.R. 150 that:

Human rights legislation is of a special

nature and declares public policy regarding

matters of general concern. It is not

constitutional in nature in the sense that it

may not be altered, amended, or repealed by

the Legislature. It is, however, of such a

nature that it may not be altered, amended,

or repealed, nor may exceptions be created

to its provisions, save by clear legislative

pronouncement.¹⁶

[48] This characterization of the Canadian Human Rights Act as quasi-

constitutional demands a thoughtful and modern approach to its

interpretation. The following commentary, taken from

E.A. Dreidger, Construction of Statutes¹⁷and Ruth Sullivan, Dreidger on

the Construction of Statutes¹⁸indicates the modern, contextual approach to

statutory interpretation:

...the words of an Act are to be read in their

entire context and in their grammatical and

ordinary sense, harmoniously with the

scheme of the Act, and the intention of

Parliament.¹⁹

There is only one rule in modern

interpretation, namely, courts are obliged to

determine the meaning of legislation in its

total context, having regard to the purpose of

the legislation,

the consequences of

proposed interpretations, the presumptions

and special rules of interpretation, as well as

admissible external aids. In other words, the

courts must consider and take into account

all relevant and admissible indicators of

legislative meaning.²⁰

The meaning of words in legislation depends

not only on their immediate context but also

on a larger context which includes the Act as

a whole and the statute as a whole. The

presumptions of coherence and consistency

apply not only to Acts dealing with the same

subject but also, albeit with lesser force, to

the entire body of statute law produced by a

legislature...Therefore, other things being

equal, interpretations that minimize the

possibility of conflict or incoherence among

different enactments are preferred.²¹

[49] In addition to these commentaries, the Supreme Court has underlined

the need to use the Interpretation Act, as did Iacobucci, J. when he

indicated that:

I also rely upon s. 10 of the Interpretation

Act, R.S.O. 1980, c. 219, which provides

that every Act `shall be deemed to be

remedial' and directs that every Act shall

`receive such fair, large and liberal

construction and interpretation as will best

ensure the attainment of the object of the

Act according to its true intent, meaning and

spirit'.²²

[50] In addition to a consideration of the nature of human rights

legislation, and the consequent principles of statute interpretation when

dealing with such special legislation, this Tribunal must also, during its

decision-making process, consider the history of the Canadian Human

Rights Act. That history is examined in the next several paragraphs.

B. History of the Canadian Human Rights Act

[51] As already noted, the Canadian Human Rights Act was enacted in

1977, and proclaimed in force in early 1978. Even though over 25 years

have passed, equality rights remain the subject of litigation and discussion.

Mme Justice L'Heureux-Dube, speaking after receiving an Honourary

LL.D. from the Law Society of Upper Canada in 2002, noted that:

The isms and phobias - racism, sexism,

homophobia, and the malevolent rest - are

all fountainheads of discrimination and

harassment. They have no place in this era

of human rights. ...Equality will be the battle

of the millennium. At times, equality's

standard bearers will feel like they are

standing alone and will be harshly criticized

for their positions. But, for those who do

what is right, affirmation and solidarity

come in due course. For it is my firm belief

that justice without equality is no justice at

all.²³

[52] Section 2 of the Canadian Human Rights Act addresses the goal of

equality. It notes that the purpose of the Act is to:

...give effect, within the purview of matters

coming within the legislative authority of

Parliament, to the principle that all

individuals should have an opportunity

equal with other individuals to make for

themselves the lives that they are able and

wish to have and to have their needs

accommodated, consistent with their duties

and obligations as members of society,

without being hindered in or prevented from

doing so by discriminatory practices based

on race, national or ethnic origin, colour,

religion, age, sex, sexual orientation, marital

status, family status, disability or conviction

for an offence for which a pardon has been

granted.

[53] The Minister of Justice at the time, the Honourable Ron Basford,

indicated in May 1977 during the Parliamentary debates which preceded

the enactment of the Act, and more particularly, section 11 of the Act, that:

There will no doubt be some problems

...[with] the concept [of equal pay for work

of equal value]. The federal government has

adopted a different approach: that we should

legislate the principle and, through the

Commission and through its efforts at

setting

out

guidelines,

solve

those

problems...as to how that is to be

implemented and how it is to be brought

about.²⁴

[54] In other words, section 11 of the Act is an enunciation of a principle,

without legislating stringent rules indicating how that principle is to be

effected. The Honourable Ron Basford stated that this section of the

proposed Act was fashioned to address the specific problem of the

occupational segregation of women, with its accompanying historical

lower wage rates which were based on the undervaluing of women's work

in the marketplace. The need to address this problem had been one of the

underlying reasons for the International Conventions of the mid-twentieth

century, and was a key recommendation of the Report of the Royal

Commission on the Status of Women.²⁵

[55] From these International Conventions and the Royal Commission

Report, the broad concept arose of basing wages on the value of work

being done. Section 11 of the Act deals with the principle that there should

be no discrimination in wage rates based on sex. The basis for the wage

should be the value of the work being done.

[56] As the Canadian commitment to International Conventions, and to the

recommendations of its own federally-appointed Royal Commission, was

addressed by section 11 of the Act, its purpose must be seen in that

historical light.

[57] Accordingly, section 11, although complaint-driven, as is the Act in

general, may be interpreted as Parliament's means of addressing systemic

discrimination based upon sex, in employment.

[58] Although the principle of "equal pay for work of equal value" is the

basis for section 11, the Act does not articulate how the principle is to be

implemented. While section 11 spells out for the complainant the criteria

to be used to assess value of work - that is, the composite of the four

factors of skill, effort, responsibility, and working conditions - the

evaluation process to be employed is not articulated.

[59] The Commission is given broad authority to deal with the intricacies

of section 11, such as the ability to issue binding guidelines concerning

certain concepts in the section. This guideline-making power creates what

can be described as statutory rules to guide the interpretation of section 11,

analogous to the creation of regulations for other legislation.

[60] The Complaint before this Tribunal demands an interpretation of all

aspects of section 11. It is believed to be the first complaint based on

section 11 of the Act, referred to the Canadian Human Rights Tribunal, to

require such a comprehensive review.

III. THE FUNDAMENTAL ISSUES

[61] There are four fundamental issues to be addressed as the Tribunal

examines this Complaint. These are identified below, and will be

examined in detail in Sections IV, V and VI of this Decision.

A. Independence and Impartiality of the Tribunal

[62] Is the Tribunal an institutionally independent and impartial quasi-

judicial body? In particular, does the Act create a reasonable apprehension

of institutional bias in the Tribunal because it gives the Commission

power to issue Equal Wages Guidelines²⁶(the Guidelines), which are

binding on the Commission, a party before the Tribunal, and binding on

the Tribunal?

B. Retroactivity and Validity of the Guidelines

[63] Can a statute be applied retroactively or retrospectively? Can a

delegated power to issue subordinate legislation, such as the Guidelines,

be exercised retroactively or retrospectively?

[64] What is the test for the validity of subordinate legislation? Are

subsection 8(2) and sections 11 to 15 of the 1986 Guidelines²⁷valid?

C. Proof by Presumption

[65] Evans, J. noted that:

[S]ubsection 11(1) can ... be seen to have

tackled the problem of proof by enacting a

presumption that, when men and women are

paid different wages for work of equal

value, that difference is based on sex, unless

it can be attributed to a factor identified by

the Commission in

a

guideline as

constituting a reasonable justification for

it.²⁸

[66] Although all parties in this Complaint accept the above statement by

Mr. Justice Evans, the question arises: Is this presumption a presumption

rebuttable by factors other than those identified in the Guidelines?

D. Prima Facie Case

[67] Has the complainant established a prima facie case of discrimination,

based on section 11 of the Act?

[68] A prima facie case has been defined as follows:

...one which covers the allegations made and

which, if they are believed, is complete and

sufficient to justify a verdict in the

complainant's favour in the absence of an

answer from the respondent-employer.²⁹

[69] The standard of proof to determine whether such a prima facie case

has been established by the complainant is the civil standard, a balance of

probabilities. Once a prima facie case has been established by the

complainant, the evidentiary burden shifts to the respondent to show a

justification for the discrimination, using the balance of probabilities as

the standard of proof.

IV. EXAMINATION OF THE FUNDAMENTAL ISSUES

A. Independence and Impartiality of the Tribunal

[70] Canada Post first raised this issue in May 1998 when its newly

retained counsel advised the Tribunal that a Motion concerning "the

judicial and institutional independence" of the Tribunal was being

considered.

[71] The issue of the Tribunal's independence and impartiality had arisen

after the release, on March 23, 1998, of a decision by McGillis, J. in the

Federal Court (Trial Division).³⁰

[72] That decision was the culmination of a judicial review of a decision

made by the tribunal appointed to hear a complaint, brought under section

11 of the Act by some Bell Canada employees and their unions. After

hearing argument on Bell Canada's Motion requesting that the tribunal

find itself unable to proceed due to an apprehension of bias, the tribunal

ruled that it was "...an independent quasi-judicial body, institutionally

capable of providing a fair hearing in accordance with the principles of

natural justice".³¹

[73] The judicial review application was allowed, the Federal Court

concluding that the legislative scheme of the Act, at the time, did not

provide tribunal members with sufficient security of tenure or financial

security to allow the tribunal to operate with independence and

impartiality. Of concern was a link between the tribunal members'

remuneration and the Commission, which would be a party before most

tribunals. Additionally, McGillis, J. indicated that there were concerns

about the Commission's ability to make binding Guidelines. McGillis, J.

commented, in obiter dicta, that "...the manner in which, in the opinion of

the Commission, any provision of this Act applies in a particular case..."

should cause concern for the ability of the tribunal to act independently

and impartially.³²Such a problem could, suggested McGillis, J., be

corrected by making the Guidelines non-binding on the tribunal.

[74] Therefore, all proceedings in the Bell Canada complaint were

quashed and an Order was rendered that no further proceedings in the

complaint take place until legislative changes were made to address the

relevant problems.

[75] Canada Post brought its Motion in June 1998, requesting the

following:

1. an Order or ruling by the Tribunal that it is not an independent

or impartial tribunal capable of providing a fair hearing in

accordance with the principles of fundamental justice

guaranteed by section 2(e) of the Bill of Rights, R.S.C.

1985, because, inter alia, it is bound by the Guidelines in

interpreting section 11 of the Canadian Human Rights Act

issued by the Canadian Human Rights Commission, a party

in interest before it;

2. an Order or ruling by the Tribunal that it is not an independent

or impartial tribunal capable of providing a fair hearing in

accordance with the principles of fundamental justice

guaranteed by section 2(e) of the Bill of Rights because the

remuneration of the Tribunal's members is fixed by the

Commission and, from the beginning of the Tribunal

hearings until January 1, 1997, was provided to the

members by cheques issued by the Commission;

3. in the alternative, an Order by the Tribunal referring the

questions raised above to the Federal Court under section

18.3 of the Federal Court Act R.S.C. 1985 c. F-7 and Rules

320 and 323 of the Federal Court Rules, 1998.

[76] The Motion was argued in August/September 1998. The Tribunal

issued its decision on October 21, 1998, dismissing Canada Post's Motion,

as follows:

With regard to the issues of financial

security in a tribunal and the security of

tenure of tribunal members, the Tribunal

concludes that there is no question that

waiver is available as an objection to an

allegation of a reasonable apprehension of

bias, as demonstrated by authorities cited....

One fact is indisputable. At no time during

the last six years, did Mr. Juriansz, counsel

for the Respondent, raise the issues of

security of tenure or financial security of the

Tribunal... The Tribunal concludes that, on a

balance of probabilities, the Respondent

would have had the knowledge to object, in

a timely fashion, to the jurisdiction of this

Tribunal

based

upon

a

reasonable

apprehension of bias arising from these two

issues. Therefore, because such an objection

was never made, for whatever reason, the

Respondent must be deemed to have

impliedly waived its right to challenge the

independence or impartiality of the Tribunal

on the basis of the said two issues.³³

[77] Concerning Canada Post's argument that the binding nature of the

Guidelines, created by the Commission, a party before the Tribunal,

produced a situation where the Tribunal could not

provide a fair hearing in accordance with the principles of fundamental

justice, the Tribunal ruled as follows:

With respect to the binding nature of the

Guidelines pursuant to section 27(3) of the

Act, the Tribunal finds that from the outset

of the hearing there was an undisputed

understanding amongst the parties of the day

to address this issue in final submissions,

after hearing evidence of all the parties.

Another way of looking at this particular

matter is that the exercising of the

Respondent's right to object to the issue of

the binding nature of the Guidelines on the

grounds of invalidating the Tribunal's

independence

and

impartiality,

was

postponed, by consent, from the start of the

proceedings to closing argument, because all

parties agreed it was wise that the Tribunal

hear evidence first so the Tribunal would

understand what the Guidelines were

intended to accomplish.

The Respondent's right to object has,

therefore, not been rescinded-- it has been

reserved and remains in place to be

exercised "at the end of the day". There is no

question of waiver here. Nothing has been

waived with respect to the Guidelines issue -

just an understanding and concurrence

openly and fairly arrived at, to address that

issue later on.³⁴

[78] Accordingly, the Tribunal continued to hear evidence.

[79] On June 30, 1998, a number of amendments to the Act came into

effect, including the following:

Subsection

27(2)

provides

for

the

Commission to issue a guideline binding on

the Commission and a tribunal only "in a

class of cases described in the guideline"

rather than "in a particular case or in a class

of cases".

Subsection 48.2(2) recognizes that a tribunal

member whose appointment expires "...

may, with the approval of the Chairperson,

conclude any inquiry that the member has

begun".

Subsection 48.6(1) provides that tribunal

members

shall be paid

"...

such

remuneration as may be fixed by the

Governor in Council" rather than "... as may

be prescribed by by-law of the

Commission".³⁵

[80] After the Act had been amended in June 1998, the Vice-Chairman of

the Canadian Human Rights Tribunal decided to proceed with the tribunal

hearing of the Bell Canada complaint. Bell Canada, however, maintained

its position that, even with the amendment to subsection 27(2) of the Act,

the tribunal was precluded from making an independent judgement in any

class of cases in which binding Guidelines were issued by the

Commission, a party in interest before the tribunal. It argued, in a judicial

review application of the April 1999 decision³⁶to proceed with the Bell

Canada hearing, that the binding nature of the Guidelines leads to an

inevitable perception of bias and lack of institutional independence.

Tremblay-Lamer, J. of the Federal Court (Trial Division) agreed. In a

decision rendered on November 2, 2000, the binding nature of the

Guidelines issued by the Commission was found to be incompatible with

the guarantees of institutional independence and impartiality necessary to

the tribunal's decision-making powers.³⁷

[81] The Federal Court of Appeal decision of May 24, 2001 reversed the

decision of Tremblay-Lamer, J.³⁸This Appeal decision was upheld by the

Supreme Court of Canada, which issued its decision on June 26, 2003.³⁹It

found that subsections 27(2) and (3) of the Act, as amended, relating to the

issuance of binding Guidelines, were not inconsistent with section 2(e) of

the Canadian Bill of Rights, S.C. 1960, c. 44, which requires that parties

be given a "fair hearing in accordance with the principles of fundamental

justice". Neither were the subsections inconsistent with the constitutional

principle of adjudicative independence. Therefore, those subsections of the

Act were found to be operable and applicable.

[82] The Supreme Court of Canada addressed Bell Canada's specific

argument that the binding nature of the Guidelines creates a perception

that a tribunal, hearing a complaint, lacks independence and impartiality.

Further, Bell Canada had argued that guidelines, created by a party before

it, and binding on the tribunal, would create an apprehension of bias. The

Supreme Court noted the following:

As

the

Commission

has

readily

acknowledged, the guideline power is

constrained. The Commission, like other

bodies to whom the power to make

subordinate legislation has been delegated,

cannot exceed the power that has been given

to it and is subject to strict judicial review ...

The Tribunal can, and indeed must, refuse to

apply guidelines that it finds to be ultra vires

the Commission as contrary to the

Commission's enabling legislation, the Act,

the Canadian Charter of Rights and

Freedoms and the Canadian Bill of Rights.

The Tribunal's power to `decide all

questions of law or fact necessary to

determining the matter' under s. 50(2) of the

Act is clearly a general power to consider

questions of law; including questions

pertaining to the Charter and the Canadian

Bill of Rights ... No invalid law binds the

Tribunal. Moreover, the Commission's

guidelines, like all subordinate legislation,

are subject to the presumption against

retroactivity. Since the Act does not contain

explicit language indicating an intent to

dispense with this presumption, no guideline

can apply retroactively. This is a significant

bar to attempting to influence a case that is

currently being prosecuted before the

Tribunal by promulgating a new guideline.

Finally, any party before the Tribunal could

challenge a guideline on the basis that it was

issued by the Commission in bad faith or for

an improper purpose; and no guideline can

purport to override the requirements of

procedural fairness that govern the

Tribunal.⁴⁰

Parliament's choice was obviously that the

Commission should exercise a delegated

legislative function. Like all powers to make

subordinate legislation, the Commission's

guideline power under ss. 27(2) and 27(3) is

strictly constrained. We fail to see, then, that

the guideline power under the Act would

lead an informed person, viewing the matter

realistically and practically and having

thought the matter through, to apprehend a

`real likelihood of bias'.⁴¹

[83] Thus, the Supreme Court of Canada has answered the argument about

the operation of the Guidelines and their impact upon the impartiality and

independence of this Tribunal. That argument was left "to the end of the

day" in the Tribunal's decision on Canada Post's 1998 Motion. The

Supreme Court's lengthy discussion of the Commission's guideline-

making power under the Act is as applicable to the power given to the

Commission when the Act was first enacted as it is today.

[84] In its oral submission on the Supreme Court's decision in the Bell

Canada case, Canada Post maintained its stance that the Supreme Court

decision did not address tribunals that were constituted and operating prior

to the enactment of the 1998 amendments to the Act. Canada Post cited the

opening paragraph of the Supreme Court decision in Bell Canada which

identified the issue before the Court as being whether the Tribunal lacked

independence and impartiality because of the power of the Commission to

issue guidelines "...concerning a `class of cases'..." which would be

binding on the tribunal.

[85] The Supreme Court was therefore, according to Canada Post's

submission, addressing post-1998 tribunals. It was not until the 1998

amendments that the Commission's guideline-making power was confined

to a `class of cases'. Prior to the 1998 amendments, former subsection

27(2) of the Act authorized the issuance of guidelines in respect of `a

particular case' as well as a `class of cases'.

[86] Canada Post's argument was that the current Tribunal, having been

established in 1992, was not encompassed by the Supreme Court's Bell

Canada decision.

[87] The Commission's position on this matter was that it had been

specifically dealt with by the Federal Court of Appeal in the unanimous

decision in Northwest Territories v. Public Service Alliance of Canada,

[2001] F.C.J. No. 791. At paragraph 41 of that decision, the Federal Court

of Appeal noted, as follows:

The

appellant

[Government

of the

Northwest Territories] contends that the

amended provision still compromises the

independence and impartiality of the Human

Rights Tribunal Panel assigned to hearing

the complaint against it. The appellant

assumed, rightly so in my view, that

subsection 27(3) as it now exists in its more

restricted form due to the amendment to

subsection 27(2) applies to the hearing of

the complaint against it ... It is reasonable in

the circumstances to infer that Parliament

intended the new but more limited

subsections 27(2) and (3) to continue to

apply to inquiries in respect of a class of

cases, such as this one, commenced before

the amendment and continued thereafter,

especially as the 1998 amendment was

remedial and aimed at suppressing a

possible violation of the requirements of

natural justice. The combined effect of the

amendment and the transitional provision

was, on the one hand, to restrict the CHRC's

power to issue binding guidelines to classes

of cases and, on the other hand, to allow the

guidelines already issued in respect of a

class of cases to be binding on the three

members of the Human Rights Tribunal

Panel completing the inquiry in this case.

[88] The Court of Appeal, in the Commission's view, concluded that the

amended section 27 applied to the proceedings of the Northwest

Territories case despite the fact that its tribunal had been appointed prior

to the 1998 amendments. The panel continued under the transitional

provisions of the Act while not interfering with the application of the

amended Act. Also, no binding guidelines specific to the appellant's case

had been issued by the Commission.

[89] The Commission argued that, since the Northwest Territories case

was governed by the same pre-1998 provisions as this Tribunal, the Court

of Appeal's decision, which is uncontradicted by the Supreme Court's

decision in Bell Canada, is equally applicable and, indeed, binding on this

Tribunal.

[90] As with the Northwest Territories case, this Tribunal continued under

the Act's transitional provisions and was bound by the section 27

amendment of 1998. Finally, no case specific guideline had been issued by

the Commission.

[91] The Tribunal finds the Commission's submission to be more

persuasive, and agrees that the Federal Court of Appeal decision in the

Northwest Territories case is relevant and binding on its deliberations.

[92] This Tribunal, for all the reasons noted in this Section, finds that it is,

itself, an independent and impartial quasi-judicial body, capable of

providing a fair hearing in accordance with the principles of fundamental

justice.

B. Retroactivity and Validity of the Guidelines

(i) Background

[93] In addition to being a complete answer to Canada Post's argument

concerning the binding nature of the Guidelines in relation to the

independence and impartiality of the Tribunal, the Supreme Court of

Canada has also, in its decision of June 2003⁴², addressed the issue of the

retroactivity and validity of the Guidelines.

[94] As noted in paragraph [82], above, although the Guidelines are

described as "binding" they are binding on the Tribunal only if they are

not invalid, for "no invalid law binds the Tribunal". The Tribunal may find

that the Guidelines have been drafted by the Commission in such a way

that they "exceed the power that has been given to it...[and are therefore,]

ultra vires the Commission as contrary to the Commission's enabling

legislation, the Act, the Canadian Charter of Rights and Freedoms, and

the Canadian Bill of Rights".

[95] Additionally, the Supreme Court addressed the "retroactivity" of the

Guidelines. It noted that:

...the Commission's guidelines, like all

subordinate legislation, are subject to the

presumption against retroactivity. Since the

Act does not contain explicit language

indicating an intent to dispense with this

presumption, no guideline can apply

retroactively. This is a significant bar to

attempting to influence a case that is

currently being prosecuted before the

Tribunal by promulgating a new guideline.⁴³

[96] As the Supreme Court also noted, "...any party before the Tribunal

could challenge a guideline on the basis that it was issued by the

Commission in bad faith or for an improper purpose...".⁴⁴

[97] Before this Tribunal, Canada Post argued, based upon its

interpretation of the presumption against retroactivity, that the Guidelines

which must be used for this Complaint are those which were in force at the

time the Complaint was filed with the Commission in 1983. Therefore, the

argument is that only the 1978 Guidelines (amended in 1982)⁴⁵should be

of interest to this Tribunal in its decision-making process.

[98] Additionally, Canada Post argued that, if the Tribunal rejects its

submissions concerning retroactivity and accepts the 1986 Guidelines as

pertinent to this Complaint, some of those 1986 Guidelines should be

found to be invalid. Canada Post challenges the 1986 Guidelines,

subsection 8(2), and sections 11 through 15.

[99] There has been no challenge to a guideline based upon an argument

that the guideline was promulgated in bad faith or for an improper

purpose. Guidelines are promulgated only after the Commission has

received input from various interest groups such as federally regulated

companies, government agencies, and government departments. In this

case, amongst those interested and actively involved in giving advice to

the Commission before the promulgation of the 1986 Guidelines, was

Canada Post.

(ii) How is the Concept of "retroactivity" pertinent to this Complaint?

a) Submissions of the Parties

[100] All parties agree, in submissions concerning retroactivity, that, as

Canada Post articulated in its submissions, "retroactivity is a question of

what law applies at a particular point in time".⁴⁶

[101] As Canada Post noted in its submissions concerning retroactivity,

administrative law academics, like Sullivan and Dreidger, have written

volumes on the retroactive application of the law. In the words of Canada

Post's counsel, "a retroactive application of a law changes the past effects

of a past situation, a situation giving rise to the effects is past and the

effects are past".⁴⁷

[102] Canada Post submissions continued, noting that:

a retrospective application of the law

change[s] the future effects of past

situations. The situation with which we are

concerned is already past but the effects

haven't all past (sic). Some are in the future,

and if the law can change them it is a

retrospective application ... An immediate

application of the law changes the future

effects of an ongoing situation ... the law

applies as of the day it comes into force. So,

anything that is happening after that, the law

applies ... the prospective application of law,

where the law that comes into force can only

apply to situations and effects that arise after

...What about the situations that had already

started before it came into effect?... The old

law survives, the law that has been repealed,

the Guideline that has been revoked, applies,

but only for the limited purpose of

governing the situations until they are over

... So, even though the Act says that

Guidelines

are

revoked

when

new

Guidelines are issued ... the concept of

survival overrides that and let's (sic) the old

law apply if it is necessary to do so because

the new law is only prospective.⁴⁸

[103] These submissions by Canada Post outline the different applications

of the law based on the timing of what Canada Post has called "situations"

and the necessity that the law applicable to those "situations" be used. In

its argument, Canada Post emphasized the prejudice which would accrue

to any respondent who was unable to know, with specificity, what the

complaint against him or her was. Without that knowledge, Canada Post

argued, a respondent would be deprived of an ability to make a full answer

to the complaint. The necessity for fairness to all is the foundation for the

presumption against retroactivity. In general, Canada Post argued, the

"rules of the game" must be known before the game is played; that is to

say, a respondent must know what law is applicable at the time the

respondent is served with a complaint, unless there is specific language in

the legislation which allows for a change, "mid-game".

[104] This argument anticipated the Supreme Court of Canada's review of

retroactivity in the Bell Canada decision of June 2003. That decision

specifically pointed to the lack of inclusion in the Canadian Human Rights

Act of an intention that the Guidelines be applied retroactively. Therefore,

the Guidelines cannot be applied retroactively.

[105] If the Guidelines cannot be applied retroactively, what is the

"situation" which pinpoints the time when a specific guideline is to be

applied? During its submissions on this topic, Canada Post presented the

hypothetical example of a contractual summer employment arrangement

involving an hourly minimum wage rate which, through legislation in

mid-summer, changed. In such a case, the wage rate changes when the

legislation is promulgated, notwithstanding the contractual arrangement.

The new wage rate is not retroactive to the beginning of the contract. This

example involves specificity. There is a contract. There is a specific

legislated change as of a specific date. There is no grey area in the

example. An allegation of discrimination is not part of the equation.

[106] Canada Post argued that, similarly, there is no grey area in the

Complaint before this Tribunal. The date the Complaint was brought to the

Commission should be the date which seals the law applicable to the

Complaint. Canada Post argued that a respondent must know what law is

applicable at the time the respondent faces a complaint. According to

Canada Post, this is important because, from the time a complaint is made,

a respondent must know what the rules are in order to articulate its

position. During the investigation of a complaint, the respondent's position

will be influenced by those "rules". If there is a change in the "rules" after

a complaint is brought, Canada Post argued, the respondent will be

prejudiced.

[107] Canada Post made a further argument that employing the 1986

Guidelines would interfere with its vested right to rely on the defences it

had under the 1978 Guidelines when the Complaint was first filed. In

particular, Canada Post cited Gustavson Drilling (1964) Ltd. v. Minister of

National Revenue⁴⁹to support the position that regardless of whether

legislation is retroactive or even retrospective, it is presumed that there is

no intention to interfere with vested rights (unless the legislature intends

otherwise).

[108] The protection of vested rights, argued Canada Post, is reinforced by

the federal Interpretation Act where the term `enactment' includes a statute

or a regulation. Section 43(c) of the Interpretation Act reads as follows:

43. Where an enactment is repealed in whole

or in part, the repeal does not...

(c) affect any right, privilege, obligation or

liability acquired, accrued, accruing, or

incurred under the enactment so repealed...

[109] Canada Post maintained that its vested rights would be infringed if

the 1986 Guidelines were applicable because they impose on the Tribunal

rules for interpreting section 11 of the Act which differ from the 1978

Guidelines rules in ways that are important to Canada Post's defence.

Canada Post cited a number of such differences which it believed would

produce an unfair result.

[110] As already noted, all parties agreed that there is a presumption

against retroactive application of legislation unless otherwise provided in

the enabling statute. The Commission also agreed that, in the context of

subordinate legislation, there is a legal restriction against such application

rather than a presumption.

[111] Further, the Commission agreed with Canada Post that the definition

of retroactive application is the application of a new law to past facts. The

Commission, however, stressed that the facts must be completed.

[112] In referring to the temporal application of law, the Commission's

submissions drew on Professor Sullivan's writings regarding the need to

situate facts in time:

Legislation clearly is retroactive if it applies

to facts all of which have ended before it

comes into force. Legislation clearly is

prospective if it applies to facts all of which

began after its coming into force. But what

of on-going facts, facts in progress? These

are either continuing facts, begun but not

ended when the legislation comes into force,

or successive facts, some occurring before

and some after the commencement. The

application of legislation to on-going facts

is not retroactive because ... there is no

attempt to reach into the past and alter the

law or the rights of persons as of an earlier

date...[emphasis added]⁵⁰

[113] It is therefore, in the Commission's view, important to identify the

particular set of facts that is relevant to the case concerned. In the case

before the Tribunal, it is a question of what facts were in play when the

1986 Guidelines came into force. The Commission argued that the facts at

that time were clearly "on-going" because the Complaint addresses alleged

systemic wage discrimination.

[114] Drawing on Professor Sullivan's writings again, the Commission

noted:

Such an application [to on-going facts] may

affect existing rights and interests, but it is

not retroactive. Legislation that applies to

on-going facts is said to have "immediate

effect"...⁵¹

[115] The Commission emphasized the on-going nature of systemic

discrimination by referring to a decision of Mr. Justice Hugessen:

Systemic discrimination is a continuing

phenomenon ... By its very nature, it extends

over time.⁵²

[116] Consequently, the Commission concluded that when the 1986

Guidelines came into effect, they applied immediately and generally to all

on-going facts - that is, facts that started in the past and continued to the

present or future. The facts involved in an allegation of systemic wage

discrimination would be such on-going facts.

[117] The Commission argued, additionally, that the 1986 Guidelines did

not apply new legal consequences to past facts, and did not change the

past legal consequences of past facts. It was, therefore, not a retroactive

application of the 1986 Guidelines. Rather, the 1986 Guidelines codified

the evolving Commission practice concerning the interpretation of section

11 of the Act.

[118] With respect to Canada Post's position that its vested rights would

be infringed by the use of the 1986 Guidelines, the Commission argued

that the concept of vested rights is not easily applied in the field of human

rights adjudication. The Commission noted that the only cases cited by

Canada Post in support of its position related to relevant facts that were in

the past and were found in a torts context. This is in stark contrast with the

Complaint which deals with on-going facts in a human rights context.

[119] The Commission also argued that it is difficult to visualize how the

1986 Guidelines could interfere with pre-existing rights or impose new

obligations on Canada Post, because the Guidelines simply interpret and

give precision to rights and obligations that pre-existed their enactment.

They do not in any way lead to changes in the law.

[120] Moreover, the Commission asserted, the 1986 Guidelines did not

remove any defences previously recognized by the 1978 Guidelines on

which Canada Post might have wished to rely. In fact, the 1986 Guidelines

added to the list of `reasonable factors' found in the 1978 Guidelines but

Canada Post had not relied on any `reasonable factor' defences. Therefore,

the change in the 1986 Guidelines concerning `reasonable factors' was not

something which adversely affected Canada Post's position.

[121] The Commission observed that the presumption against interference

with vested rights normally involves ambiguity in the interpretation of

statutes or regulations. The Commission's submission was that there is no

ambiguity in this case, since the regulation-making power in section 27 of

the Act makes it clear that guidelines apply immediately:

27(3) A guideline issued under subsection

(2) is, until it is revoked or modified,

binding on the Commission and any member

or panel assigned under...(emphasis added)

[122] Finally, the Commission made the point that even if there were

ambiguity, the presumption against interference with vested rights protects

only those rights that had vested at the time of legislative or regulatory

amendment. Not only is the legal scope of vested rights important, but also

of import are the public policy issues that arise from the presumption.

[123] In 2001, Marceau, J. noted in Veale v. Law Society of Alberta, that

"[t]here is no concrete definition of what constitutes a `vested right',

primarily because it is difficult to generalize across the cases and as each

case must be studied individually".⁵³In speaking of the review of

retrospective legislation, Marceau, J. indicated that judges are often faced

with a policy conundrum - "...whether to apply the new and improved law

for the greater good even though this may be unfair to some, or to delay

the application of that law in respect of some because of the injustice they

would suffer".⁵⁴

[124] The Commission argued that the 1986 Guidelines benefit the greater

good by bringing much needed procedural detail to the interpretation of

section 11 of the Act, while causing no injustice to Canada Post.

[125] For all these reasons, the Commission concluded that the

presumption against interference with vested rights does not apply in this

instance.

b) Tribunal's Analysis

[126] Canada Post is clear in stating its position that neither a statute nor

subordinate legislation can be applied retroactively, and the date this

Complaint was brought to the Commission should be the date which seals

the applicable law. Canada Post also argued that the 1986 Guidelines

would infringe on its vested right to rely on defences it had under the 1978

Guidelines which were in effect when the Complaint was filed with the

Commission in 1983. Hence, the 1978 Guidelines should prevail.

[127] Put another way, Canada Post argued that its submissions were in

accord with the Supreme Court of Canada's view, as noted in the Bell

Canada decision, that the Guidelines can properly influence the outcome

of future cases where no-one, including the Commission, can anticipate

whose particular interests the Guidelines will favour. Canada Post argued

that the Guidelines could improperly influence the outcome of a case

where their particular impact is already known and their application is

controlled by the Commission's timing of referring that case to a tribunal.

Hence, the Guideline-making power cannot be interpreted to permit the

Commission to apply a Guideline to a complaint it is already investigating

when the Guideline is issued.

[128] Thus, Canada Post argued that the Supreme Court's reasoning in the

Bell Canada case supports Canada Post's position that the 1986 Guidelines

should not apply to the Complaint because to do so would permit the

Commission to influence, improperly, its outcome. The Commission was

already investigating the Complaint when the 1986 Guidelines were

introduced. By virtue of its decision to issue the 1986 Guidelines before

referring the Complaint to the Tribunal, the Commission, in Canada Post's

submission, controlled what the Tribunal was bound to apply to the

Complaint, knowing its likely impact on the outcome of the Complaint.

[129] Interestingly, while Canada Post, in its submissions (p. 14-15),

stated that the Supreme Court decision "...strongly supports Canada Post's

position that the 1986 Guidelines should not apply to this Complaint at all

because to do so would permit the Commission to improperly influence its

outcome", Canada Post did not cite any examples of such improper

influence or even any hints of such improper influence by the

Commission. It is presented simply as a possible threat of impropriety, a

suggestion of a creation of possible bias or impartiality, without

substantiation.

[130] While agreeing with Canada Post that there is a presumption against

retroactive application of legislation, and a legal restriction with respect to

subordinate legislation, the Commission has argued, in line with Professor

Sullivan's thesis, that the Complaint before this Tribunal deals with on-

going facts. These facts relate to an allegation of on-going sexual

discrimination in wages, as described in section 11 of the Act.

[131] The Commission has maintained that the application of legislation,

including subordinate legislation, to on-going facts is not retroactive

because there is no attempt to alter past law or the rights of persons as of

an earlier date. The Commission's position is that legislation or regulations

that apply to on-going facts have immediate, not retroactive, effect.

[132] With respect to Canada Post's point that its vested rights would be

infringed if the 1986 Guidelines were applicable, the Commission

dismissed this concern in the absence of any ambiguity in interpreting the

statute and the Guidelines. The Commission was also of the view that

Canada Post failed to demonstrate that the 1986 Guidelines removed any

defences previously recognized by the 1978 Guidelines on which Canada

Post might have wished to rely, at least with respect to the critical

`reasonable factors'.

[133] The Complaint before this Tribunal involves an allegation of sexual

discrimination in wages, as described in section 11 of the Act. That

allegation is one of systemic discrimination. Section 11 of the Act was

drafted using, as its primary basis, the International Labour Organization's

1951 Convention 100 (ratified by Canada in 1972) as well as

recommendations from the Report of the Royal Commission on the Status

of Women.⁵⁵These historical documents addressed the issue of systemic

discrimination against women in the area of wages, with the most basic

recommendation being that all wages be based on the value of the work

being performed.

[134] Systemic discrimination has been defined by the Supreme Court of

Canada [C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R.

1114 at 1139] as follows:

...systemic discrimination in an employment

context is discrimination that results from

the

simple operation of established

procedures of recruitment, hiring and

promotion, none of which is necessarily

designed to promote discrimination. The

discrimination is then reinforced by the very

exclusion of the disadvantaged group

because the exclusion fosters the belief, both

within and outside the group, that the

exclusion is the result of "natural" forces, for

example, that women "just can't do the job"

(see the Abella Report, pp. 9-10). To combat

systemic discrimination, it is essential to

create a climate in which both negative

practices and negative attitudes can be

challenged and discouraged.

[135] The discrimination being alleged in the Complaint is, therefore,

ongoing, by definition.

[136] In addressing the issue of retroactivity, both Canada Post and the

Commission have made reference to the Gustavson Drilling case and to

Professor Sullivan's volume on Driedger on the Construction of Statutes.⁵⁶

Some of these references have already been identified above, but, given

the complexity of the subject, the Tribunal considers it appropriate to

examine Professor Sullivan's relevant writings in greater depth.

[137] Professor Sullivan states that the terms `retroactive' and

`retrospective' are often used interchangeably but the growing trend is to

define `retroactive' legislation as legislation that applies to past facts and

changes the past legal consequences of completed transactions.

`Retrospective' legislation changes the future consequences of completed

transactions by imposing new liabilities or obligations.⁵⁷The Tribunal

accepts use of the term `retroactive' as defined by Professor Sullivan.

[138] Professor Sullivan indicates that the 1977 Gustavson Drilling

decision confirmed that it is strongly presumed that legislation is not

intended to have a retroactive application to facts that occurred before the

legislation came into force. To apply this principle, Professor Sullivan

writes that it is necessary to identify which facts are relevant to the

legislation and to situate them in time relative to its effective date.

[139] The relevant facts are the `fact-situation' of the case concerned,

which, with respect to the case before this Tribunal, includes alleged

systemic wage discrimination.

[140] Situating the facts in time involves, in Professor Sullivan's model,

determining whether the fact-situation is ephemeral, continuing or

successive. She defines these choices as follows:

Ephemeral fact situations consist of facts

that begin and end within a short period of

time, such as actions or events. The facts are

complete and become part of the past as

soon as the action or event ends; the legal

consequences attaching to the fact-situation

are fixed as of that moment.

(...)

Continuing fact situations consist of one or

more facts that endure over a period of

time...A continuing fact can be any state of

affairs or status or relationship that is

capable of persisting over time ... Where no

limit in time is stipulated, a continuing fact

situation continues and does not become part

of the past until the fact-situation itself - the

state of affairs or condition or relationship -

comes to an end.

(...)

Successive fact situations consist of facts,

whether ephemeral or continuing, that occur

at separate times ... A fact-pattern, defined

in terms of successive facts, is not complete

and does not become part of the past until

the final fact in the series, whether

ephemeral or continuing, comes to an end.⁵⁸

[141] Professor Sullivan goes on to say that once the fact-situation has

been identified - and, in this case, the Tribunal considers it to be a

continuing fact-situation - the test set out in the legislation must be applied

to the relevant facts. An application is not retroactive unless all the

relevant facts were past when the provision came into force. With respect

to a state of affairs such as the on-going systemic wage discrimination

alleged in this Complaint, the provision (in this case, the 1986 Guidelines)

is not retroactive unless the state of affairs has ended before

commencement of the provision. Clearly, the position of the Commission,

supported by the Alliance, is that the alleged systemic discrimination state

of affairs did not end when the 1986 Guidelines became effective.

[142] The application of legislation, whether statutory or subordinate, to

on-going facts or facts-in-progress, is not, according to Professor Sullivan,

retroactive because "...to use the language of Dickson, J. in the Gustavson

Drilling case, there is no attempt to reach into the past and alter the law or

the rights of persons as of an earlier date".⁵⁹

[143] Professor Sullivan continues:

Legislation that applies to on-going facts is

said to have `immediate effect'. Its

application is both immediate and general:

`immediate' in the sense that the new rule

operates

from

the

moment

of

commencement, displacing whatever rule

was formerly applicable to the relevant

facts, and `general' in the sense that the new

rule applies to all relevant facts, on-going as

well as new.⁶⁰

[144] Although Canada Post submitted that to use the 1986 Guidelines to

interpret section 11 of the Act for a complaint that originated in 1983

would amount to applying those Guidelines retroactively, the Tribunal

finds that one is not dealing with the retroactivity of the 1986 Guidelines

in this case. One is dealing with what Professor Sullivan has called a

continuing "state of affairs" fact-situation. When the 1986 Guidelines

came into effect they applied immediately and generally to all the on-

going facts that started in the past and continued to the then-present and to

the future. This included all facts involved in the alleged systemic wage

discrimination.

[145] Therefore, the Tribunal concludes that the 1986 Guidelines are not

being applied retroactively in this case, but are addressing an on-going,

and continuing, fact-situation without being unfair or prejudicial to

Canada Post.

[146] It is appropriate to address the Commission argument, made after

the Supreme Court of Canada's decision of June 2003 in the Bell Canada

case. The Commission submitted that the relevant point in time for

determining what law applies to a complaint is the date of its referral to a

tribunal. This point in time was described by the Commission as "the point

of crystallization".

[147] The Commission stated that, once referral has been effected, new

guidelines issued by the Commission during the life of a tribunal would

not apply to the referred complaint. To do otherwise would constitute

retroactive application of those new guidelines which is clearly

unacceptable.

[148] The Commission further argued that the Supreme Court of Canada,

in paragraph 47 of its Bell Canada decision "...appears to accept the

position taken by the Commission before the Court that the referral date is

the relevant cut-off point".⁶¹That paragraph acknowledges that the

Guidelines, like all subordinate legislation, are subject to the presumption

against retroactivity. The Supreme Court indicated that the presumption

"...is a significant bar to attempting to influence a case that is currently

being prosecuted before the Tribunal by promulgating a new guideline".⁶²

[149] Canada Post's arguments on this same Supreme Court decision

underlined that the Supreme Court, while stating the principle that no

guideline can apply retroactively, did not declare that the date of the

referral to a tribunal is the point in time for determining what law applies

to a complaint. The Court, according to Canada Post's argument, simply

cited an example of a hypothetical case being considered before a tribunal

and indicated that retroactivity could not apply as it would be improper, in

such an example, to allow the Commission to influence the outcome of the

case by means of the promulgation of a new guideline. Under such

circumstances, the Commission would be a party before the tribunal and

also the drafting agency for the new guideline which would be, according

to the Act, binding on the tribunal.

[150] The Tribunal finds Canada Post's argument to be the more

persuasive one. The Tribunal does not consider the Supreme Court's

decision in the Bell Canada case to have endorsed the date of a

complaint's referral to the Canadian Human Rights Tribunal as the

relevant cut-off point for determining what law applies to a complaint.

Rather, the Supreme Court has cited but one obvious example to illustrate

that the Commission's guideline-making power is constrained and cannot

be applied retroactively. Moreover, the example underlines the Supreme

Court's comment that a party is always at liberty to question the propriety

of the Commission's guideline-making power, based on an argument that

the guideline was made in bad faith or for an improper purpose.

[151] Canada Post has also argued that neither the Commission nor the

Alliance can fairly or legally rely on the 1986 Guidelines in addressing the

Complaint because that reliance would interfere with Canada Post's vested

right to rely on defences available to it as of the date the Complaint was

filed in 1983.

[152] Canada Post is arguing that the 1986 Guidelines impose on the

Tribunal rules for interpreting section 11 of the Act which differ, in ways

important to Canada Post's defences, from the rules that prevailed in the

1978 Guidelines. One of three examples of such differences mentioned by

Canada Post was the ability, in the 1978 Guidelines, to include, when

evaluating jobs, the value of overtime or shift work premiums. Since the

1986 Guidelines prohibit this inclusion, Canada Post argued that the latest

Guidelines have removed a right of defence which was vested for Canada

Post as of the date of the filing of the Complaint. This produces, according

to Canada Post, an unfair result.

[153] As already noted, the Commission, in its submissions on vested

rights, referred to the 2001 decision of Marceau, J. in which he stated that

"[t]here is no concrete definition of what constitutes a `vested right',

primarily because it is difficult to generalize across the cases and as each

case must be studied individually...".⁶³He also indicated that judges are

often faced with a policy conundrum in addressing vested rights and may

have to rule on the basis of the "greater good".⁶⁴

[154] To rule on the basis of the "greater good" introduces another

dimension to the analysis. For example, are there features of the 1986

Guidelines that better benefit the "greater good" than the features of the

1978 Guidelines? Is this achievable without imposing unfairness on any of

the parties?

[155] Professor Sullivan states in her examination of vested rights the

following:

The key to weighing the presumption

against interference with vested rights is the

degree of unfairness the interference would

create in particular cases. Where the

curtailment or abolition of a right seems

particularly arbitrary or unfair, the courts

require cogent evidence that the legislature

contemplated and desired this result. Where

the interference is less troubling, the

presumption is easily rebutted.⁶⁵

[156] The Tribunal has, therefore, asked itself: Was the promulgation of

the 1986 Guidelines unfair to Canada Post, given the 1983 date of the

Complaint? Does the promulgation constitute an infringement of Canada

Post's vested rights?

[157] The Tribunal considers the period of 1983 to 1986 to be a part of the

continuum that constitutes the life of this case. These three initial years

should not be viewed in isolation but should be seen in the context of the

continuing fact-situation that existed at the time the 1986 Guidelines came

into force.

[158] By 1986, although little had been accomplished amongst the parties

in the investigation of the Complaint, all parties had kept one another

apprised of work being done affecting the Complaint. For example, work

continued by Canada Post and the Alliance in developing System One as a

tool for evaluating the positions held by clerical staff at Canada Post. The

Commission was informed of this work.

[159] Furthermore, Canada Post and the Alliance were actively involved

during this period in the Commission's attempts to retrieve data for its job

evaluation process. In fact, interviews of sample CR incumbents had

commenced just prior to the 1986 Guidelines becoming effective in

November of that year.

[160] The Tribunal has already established that the 1986 Guidelines are

not retroactive and make no attempt to alter past law or the rights of

anyone as of an earlier date. Rather, the 1986 Guidelines apply to the on-

going fact-situation with immediate effect.

[161] The 1986 Guidelines had come into effect on November 18, 1986,

long before the Commission referred this Complaint, on March 16, 1992,

to the Canadian Human Rights Tribunal for a hearing. The Commission

had played a role in the discussions amongst the parties as the Complaint

moved through the Investigation Stage. Many of the matters discussed by

the parties before 1986 involved issues which later became part of the

1986 Guidelines, such as occupational groups and methods of job

evaluation, including assessment of value.

[162] There was, therefore, an understanding, by all concerned, of the

Complaint as originally drafted. Although the 1986 Guidelines represent a

significant change from the 1978 Guidelines, their introduction did little

more than codify some of the Commission's procedures with which all

parties had been dealing from the date of the Complaint. The wording of

the Complaint, itself, exemplifies the historical nature of these procedures,

as it speaks of female and male-dominated occupational groups, and the

wages paid to employees within these groups. These procedures are not a

part of the Act, nor were they a part of the 1978 Guidelines. They are,

however, a part of the 1986 Guidelines.

[163] Real unfairness or prejudice would arise, as the Supreme Court

indicated, if guidelines which were pertinent to a complaint already sent to

be heard by a tribunal were promulgated after its referral to that tribunal.

Even in complaints under section 11 of the Act, the Commission could, by

promulgation of guidelines during the life of a tribunal, influence its

outcome. That is not what happened in this case.

[164] With respect to Canada Post's example of the 1986 Guidelines'

exclusion of overtime or shift work premiums from the value of work

being an infringement of its vested rights, the Tribunal prefers the

Commission's submission. The Commission indicated in submissions that

this is an example of a neutral policy "trade-off". The complainant does

not include the overtime or shift work premium in the value of wages,

while the employer does not include overtime or shift work in its job point

value. It is not an example of the removal of a Canada Post right of

defence.

[165] In terms of the "greater good" argument, the Tribunal accepts that

the Commission's promulgation of the 1986 Guidelines was an attempt to

bring much needed clarification to the interpretation of section 11 of the

Act, without injustice to any party. The creation of the Guidelines was

completed after many years of consultation with companies and

organizations, including Canada Post itself. The Tribunal accepts that the

Commission's decision to create new guidelines in 1986 was for the

benefit of the "greater good".

[166] Therefore, the Tribunal fails to understand how the introduction of

the 1986 Guidelines after the presentation of the Complaint to the

Canadian Human Rights Commission has been unfair or prejudicial to

Canada Post, an infringement on its vested rights, or an improper

influence upon the outcome of the Complaint before this Tribunal.

[167] Accordingly, the Tribunal concludes that the 1986 Guidelines are

applicable to the issues to be addressed in the current Complaint. The

question of the retroactivity of these Guidelines is not applicable to this

Complaint, brought under section 11 of the Act. The facts involved are on-

going, or continuing, and, as such, do not give rise to a concern about

retroactivity. Additionally, the Tribunal finds that there is no infringement

of Canada Post's vested rights because of the applicability of the 1986

Guidelines.

(iii) Are subsection 8(2) and sections 11-15 of the 1986 Guidelines

Valid?

a) Submissions of the Parties

[168] All parties agreed that the Guidelines are subordinate legislation,

created under the power given to the Canadian Human Rights Commission

by section 27 of the Act, and as such, must not be in conflict with the Act.

There is, however, a presumption that subordinate legislation is valid.

When a party challenges subordinate legislation, the onus is on that party

to convince the decision-maker that the subordinate legislation being

challenged is invalid. The question to be answered by the decision-maker

is a question of law.

[169] In this Complaint, Canada Post has challenged subsection 8(2) and

sections 11 to 15 inclusive, of the 1986 Guidelines, based on its argument

that a simple reading of the Act, giving straight-forward meaning to the

words of the Act, and section 11 in particular, creates an inconsistency

with the words and meaning in the challenged sections of the 1986

Guidelines. It is this lack of cohesion between the words and meaning of

section 11 of the Act, as interpreted by Canada Post, and the words and

meaning of those sections of the 1986 Guidelines, the subordinate

legislation, which creates, according to Canada Post, a situation where the

Commission has not exercised its power under section 27 of the Act in a

reasonable manner, and thus caused those sections of the 1986 Guidelines

to be invalid.

[170] The parties' submissions dealt with what should be the acceptable

approach to determine validity of guidelines. Once argument was heard

concerning the test for validity, further submissions were made by each

party concerning its position on the issue of the validity of sections of the

Guidelines impugned by Canada Post.

[171] Canada Post and the Commission both referred to the Oldman River

case⁶⁶, a decision of the Supreme Court of Canada which addressed statute

interpretation, specifically in the context of a situation where there were

two federal statutes and a subordinate Guidelines Order involved.

[172] Quoting from the work of Professor Ruth Sullivan, Canada Post

urged the Tribunal to separate the enabling legislation and its subordinate

regulations (or in this case, the Guidelines) before determining the validity

of the latter. It noted Sullivan's words, as follows:

Statutes are paramount over regulations...

The presumption of coherence applies to

regulations as well as to statutes. It is

presumed that regulatory provisions are

meant to work together, not only with their

own enabling legislation but with other Acts

and other regulations as well.⁶⁷

[173] Canada Post submitted that, when testing the validity of challenged

subordinate legislation, the Guidelines, the Tribunal must first construe the

enabling legislation, and then assess the validity of the impugned sections

of the Guidelines. Canada Post considered that this methodology is

different from that espoused by the Commission's arguments.

[174] The Commission's argument concerning statute interpretation in the

face of a challenge to subordinate legislation also drew on the Oldman

River case. It cited the following to underline its submissions concerning

the test to be made for the validity of the impugned sections of the

Guidelines:

The basic principles of law are not in doubt.

Just as subordinate legislation cannot

conflict with its parent legislation ... so too it

cannot conflict with other Acts of

Parliament, ... unless

a

statute so

authorizes... Ordinarily, then, an Act of

Parliament must prevail over inconsistent or

conflicting

subordinate

legislation.

However, as a matter of construction a court

will, where possible, prefer an interpretation

that permits reconciliation of the two.

`Inconsistency' in this context refers to a

situation where two legislative enactments

cannot stand together.⁶⁸

[175] The Commission argued that, in line with the Oldman River case

and with the writings of Professor Sullivan, the presumption of coherence

presumes that regulatory provisions are meant to work together with their

parent legislation as well as with other Acts and regulations.

[176] The Commission submission pointed to what it perceived to be

Canada Post's argument that this presumption of cohesion disappears once

there has been a challenge to the validity of subordinate legislation. The

Commission argued that were this to be the case, there would no longer be

a recognition of the importance of seeking reconciliation of differences as

was underlined in the Oldman River case.

[177] The Commission argued that it is immaterial whether one takes its

approach of reading the enabling legislation and the subordinate

legislation together, or Canada Post's approach of first construing the

enabling legislation and then addressing the subordinate legislation. The

important part of the exercise is to test whether there is a consistency and a

cohesion between the two levels of legislation.

[178] To begin such an interpretive exercise, section 11 and subsections

27(2), (3) and (4) of the Act and the challenged subsection 8(2) and

sections 11, 12, 13, 14, and 15 of the 1986 Guidelines, read as follows:

Canadian Human Rights Act

Equal wages

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.

Assessment of value of work

11(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

11(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

11(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

difference.

factor

that

justifies

the

Idem

11(5) For greater certainty, sex does not

constitute a reasonable factor justifying a

difference in wages.

No reduction of wages

11(6) An employer shall not reduce

wages in order to eliminate a discriminatory

practice described in this section.

Definition of "wages"

11(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.

Powers, duties and functions [of the

Commission]

Guidelines

27(2) The Commission may, on

application or on its own initiative, by order,

issue a guideline setting out the extent to

which and the manner in which, in the

opinion of the Commission, any provision of

this Act applies in a class of cases described

in the guideline.

Guideline binding

27(3)

A

guideline

issued

under

subsection (2) is, until it is revoked or

modified, binding on the Commission and

any member or panel assigned under

subsection 49(2) with respect to the

resolution of a complaint under Part III

regarding

a

case falling within the

description contained in the guideline.

Publication

27(4) Each guideline issued under

subsection (2) shall be published in Part II of

the Canada Gazette.

Equal Wages Guidelines, 1986

Assessment of Value - Working Conditions

8(2) For the purposes of subsection 11(2)

of the Act, the requirement to work overtime

or to work shifts is not to be considered in

assessing working conditions where a wage,

in excess of the basic wage, is paid for that

overtime or shift work.

Complaints by Individuals

11(1) Where a complaint alleging a

difference in wages is filed by or on behalf

of an individual who is a member of an

identifiable

occupational

group,

the

composition of the group according to sex is

a factor in determining whether the practice

complained of is discriminatory on the

ground of sex.

(2) In the case of a complaint by an

individual, where at least two other

employees of the establishment perform

work of equal value, the weighted average

wage paid to those employees shall be used

to calculate the adjustment to the

complainant's wages.

Complaints by Groups

12 Where a complaint alleging different

wages is filed by or on behalf of an

identifiable occupational group, the group

must be predominantly of one sex and the

group to which the comparison is made must

be predominantly of the other sex.

13 For the purposes of section 12, an

occupational

group

is

composed

predominantly of one sex where the number

of members of that sex constituted, for the

year immediately preceding the day on

which the complaint is filed, at least

(a) 70 per cent of the occupational group,

if the group has less than 100 members;

(b) 60 per cent of the occupational group,

if the group has from 100 to 500

members; and

(c) 55 per cent of the occupational group,

if the group has more than 500 members.

14 Where a comparison is made between

the occupational group that filed a complaint

alleging a difference in wages and other

occupational groups, those other groups are

deemed to be one group.

15(1) Where a complaint alleging a

difference in wages between an occupational

group and any other occupational group is

filed and a direct comparison of the value of

the work performed and the wages received

by employees of the occupational group

cannot be made, for the purposes of section

11 of the Act, the work performed and the

wages received by the employees of each

occupational group may be compared

indirectly.

15(2) For the purposes of comparing

wages received by employees of the

occupational

groups

referred

to

in

subsection (1), the wage curve of the other

occupational group referred to in that

subsection shall be used to establish the

difference in wages, if any, between the

employees of the occupational group on

behalf of which the complaint is made and

the other occupational group.

[179] Canada Post submitted that its interpretation of section 11 of the Act

is purposive, broad and liberal while, at the same time, follows the modern

approach to statute interpretation. The latter demands that the decision-

maker read the words of the statute "in their entire context and in their

grammatical and ordinary sense, harmoniously with the scheme of the Act,

and the intention of Parliament".⁶⁹

[180] In subsection 11(1), the words which have elicited a marked

difference of interpretation amongst the parties are "male and female

employees". Canada Post submitted that this phrase, seminal to the whole

of section 11, means what it says. It is talking about discrimination

between employees who are either men or women, and not between

groups of people made up of men and of women. The discrimination is

based on sex, and manifests itself in a difference in wages paid to the men

and women involved.

[181] Canada Post submitted that the focus of concern in section 11 of the

Act is sex discrimination between individual men and women as seen in

the difference in wages paid by employers to those men and those women

for the work they do. If this interpretation is accepted, sections 11 through

15 of the Guidelines must be invalid because they do not relate to section

11 of the Act in any way. Subsection 11(1), so interpreted, does not speak

of occupational groups and of the need to determine the gender percentage

of those groups in order to classify them as either "male-dominated" or

"female-dominated". Therefore, the concerns addressed by sections 11

through 15 of the Guidelines would not be applicable at all. Those sections

would represent the promulgation of guidelines by the Commission which

are not consistent with the underlying statute. Therefore, they would be

invalid.

[182] Canada Post's ordinary meaning interpretation of subsection 11(1)

might read as follows, according to its submissions:

It's a discriminatory practice ... something

that is prohibited, for an employer to

establish and maintain, that is, to exercise

some creation or some power to create or

continue, differences, that is higher and

lower wages ... between two people, two

classes of people, male employees and

female employees...between employees who

are men and employees who are

women...employed

in

the

same

establishment ... [which] means subject to a

common wage and personnel policy ...

There is only a difference of wages that's

prohibited if the employees, the male and

female

employees

in

the

same

establishment, are performing work, their

work, their individual work of equal

value...⁷⁰

[183] Canada Post argued that a complaint, based upon section 11 so

interpreted, could be made by any individual, man or woman, or by any

group of men or women, without the constraint of artificial barriers against

persons who are employed in occupational groups whose work is

classified as gender neutral or "male". The complaint mechanism would

become more accessible to all employees. Therefore, the general purpose

of the Act, to eliminate discrimination based upon, inter alia, sex, would

be advanced. The restriction, argued Canada Post, which is created by the

Commission's interpretation of section 11, especially in its promulgation

of sections 11 through 15 of the Guidelines, would be removed.

[184] Of more import, however, according to Canada Post, is the

Commission's apparent transforming of the plain language of subsection

11(1) of the Act into a completely different approach to the concept of

"equal pay for work of equal value" through the use of the Guidelines.

Instead of dealing with discrimination based on gender in the arena of

wages, the Commission, according to Canada Post, has interpreted section

11 to be focused on discrimination based on the undervaluation of

women's work in segregated occupational groups. In other words, the

Commission has decided that section 11 of the Act addresses the concept

of "pay equity". Once the Commission decided to deal with section 11 in

that manner, it had to define the occupational groups.

[185] The basis of Canada Post's submissions concerning the

interpretation of section 11 of the Act is that the section is not about "pay

equity". The "work of equal value" which must be compared in order to

prove the discriminatory practice being denounced by section 11 is the

work of each of the men and each of the women employees involved in

the complaint. The section does not address the work of occupational

groups made up of men and women who are doing "women's work" or

"men's work".

[186] Canada Post submitted that its interpretation of section 11 is a

natural progression, historically, from previous legislation which

addressed discrimination against working women. The first such

legislation, early in the twentieth century, was a minimum wage for

women employees. That was followed, decades later, by legislation

denouncing the practice of paying women lower wages for work which

was found to be either the same, or substantially similar, to work being

done by men. Although this natural progression could lead, eventually, to

the concept of "pay equity", Canada Post's argument is that section 11

cannot be interpreted as a movement on the continuum to that point.

[187] Canada Post's submission was that section 11 of the Act cannot be

characterized as addressing the concept of "pay equity". Canada Post

emphasized, in its final argument, that provincial legislation concerning

"pay equity" is specific in nature. There is usually a separate provincial

Act which is entitled a "Pay Equity Act". The concept is not incorporated

into provincial human rights legislation because, generally, it is not

complaint-driven but rather is a mandated concept carrying specific

methodologies and rules for its implementation.

[188] Canada Post argued that the process of dealing with "pay equity"

derives its ideas from academic studies and literature which has evolved

concerning this abstract concept. The methodology is based upon job

classes which are predominantly female or predominantly male because

the purpose of "pay equity" studies, and eventually, "pay equity"

legislation, is to address the inequities which have evolved in employment

due to occupational segregation and the undervaluing of predominantly

female occupations. Canada Post's argument continued, however, to stress

that the Canadian Human Rights Act is concerned with the difference in

wages between men and women based on gender discrimination not the

broad concept of "pay equity". The Act is, according to Canada Post,

concerned

about protecting individuals from disadvantage or

discrimination resulting from fundamental individual characteristics.

[189] Canada Post's submission was that the Act has been promulgated for

the benefit of individuals in Canadian society. The purpose of the Act, as

set out in section 2, underlines that this human rights legislation was

created so that "...all individuals should have an opportunity equal with

other individuals to make for themselves the lives that they are able and

wish to have...". The grounds for discrimination which are listed in the Act

are characteristics of individuals. Section 3 of the Act specifically

indicates that the list of grounds is "[f]or all purposes of this Act". As one

reads further in the Act, each section follows the next to speak of

"individuals" or "employees".

[190] This commonality is broken by section 11 of the Act which does not

speak of an individual employee or a group of employees, but addresses

discrimination involving "male and female employees". It is this change in

language which alerts us, argued Canada Post, to the fact that this

particular section addresses systemic discrimination, for it indicates

Parliament's concern about whether there is systemic discrimination,

whether there is a pattern within the overall establishment of setting

differences in wages between men and women performing work of equal

value.

[191] Canada Post underlined in its submissions that it accepts that section

11 addresses systemic discrimination, but argued that this acceptance does

not mean that it accepts that complaints of systemic discrimination can

only be brought by groups. Indeed, it submitted that individual complaints

can be made based on allegations of systemic discrimination

[192] As counsel for Canada Post submitted:

...if it's systemic discrimination, and if it's

men and women employed in the

establishment, you take the wages of the

women employed in the establishment and

you take the wages of the men employed in

the establishment, and you compare the

work of men and women performing work

of equal value and their wages. If there is a

pattern of wage differences, then there is a

violation.⁷¹

[193] This comparison cannot, according to Canada Post, be equated with

the evaluation process which is either mandated or is commonly followed

when one is dealing with "pay equity" issues. That process most often

involves the comparison of the value of work of groups of persons who

are doing either "women's work" or "men's work".

[194] The Commission's submission was that there is binding precedent

from Evans, J., then of the Federal Court (Trial Division), in the Treasury

Board case⁷², that the Commission's interpretation that section 11 does

address the issue of "pay equity", as evidenced by the promulgation of the

1986 Guidelines, is correct. In answer, Canada Post argued that the

acceptance by Evans, J. of the Commission's interpretation (and the use of

the 1986 Guidelines) was based on the fact that all parties involved in that

case accepted that interpretation. As there was no challenge to the

Commission's interpretation of section 11, the presumption that the

Guidelines were valid was never challenged. Canada Post noted that any

comment made by Evans, J. must be accepted by this Tribunal as merely

that - comment which can be useful to the Tribunal as it crafts its decision

concerning the issue, but not binding on the Tribunal as precedent.

[195] Additionally, Evans, J. made extensive comment on the viability of

Guideline 14, which addresses occupational groups, in the context of

section 11 of the Act. The interpretation of that particular guideline was

the main issue to be decided by the tribunal which heard the Treasury

Board case and by the Federal Court which reviewed its decision. The

comments of Hugessen, J. in the Department of National Defence case⁷³

were alluded to by Evans, J. and, therefore, should be, according to the

Commission arguments, of import to this Tribunal's interpretation of

section 11 of the Act.

[196] The Commission submitted that the Supreme Court of Canada, in its

June 2003 decision in Bell Canada, found that the Commission has the

power, conferred upon it by section 27 of the Act, to create guidelines

which are analogous to Regulations. That decision, argued the

Commission, has created the presumption that the Guidelines are valid.

[197] As is a challenge to promulgated Regulations, a challenge to the

validity of the Guidelines is difficult. Courts prefer to accept that the

subordinate legislation can be reconciled with its enabling legislation. If it

were to accept Canada Post's interpretation, the Commission argued, the

Tribunal would have to find that there is an operational conflict between

the Act and the Guidelines, and that there is no ability to reconcile the

conflict.

[198] The Commission argued that Canada Post's choice to begin its

"ordinary meaning" argument with the words "male and female

employees" avoids the true meaning of section 11. The Commission based

its submissions on the historical evolution of the concept of "equal pay for

work of equal value", as well as comments made by the Courts. After so

doing, it submitted that the Tribunal should accept the Commission's

interpretation of section 11 of the Act as Parliament's enunciation of the

principle of "pay equity". The Commission further submitted that

Parliament addressed the difficulty of dealing with the abstract concept of

"pay equity" by giving the Commission the tools to make that principle

operational. Those tools include the Commission's ability to promulgate

guidelines, pursuant to section 27 of the Act.

[199] Therefore, the Commission promulgated its guidelines to accord

with the purpose of "pay equity" legislation. The Commission submitted

that the purpose of such legislation is to ameliorate the occupational

segregation of women and the discriminatory payment of lesser wages to

those segregated groups for work which is equal in value to work done by

groups mainly composed of men. The main focus of section 11 of the Act,

according to the Commission, should be the work which is being done,

and its value, not the gender of the incumbents who are doing the work.

[200] Based on this broad and liberal interpretation, argued the

Commission, sections 12 through 15 of the 1986 Guidelines represent the

methodology which must be used to make the principle enunciated in

section 11 of the Act a workable theory. Those sections of the Guidelines

are absolutely connected to section 11 of the Act, and make the two areas

of the legislation work in tandem, to create a cohesive whole which is the

basis for the evaluation work which must be completed to establish

whether a complaint can be substantiated.

[201] The Commission argued that, notwithstanding Canada Post's

adamant submissions that its interpretation of section 11 of the Act is

broad and purposive, and is actually more liberal in its ability to

encompass any complainant(s), the reality and the natural conclusions

which the Canada Post interpretation would create are narrow and

restrictive. Its interpretation does not address the broad concept of "pay

equity" which is what the legislation was intended to address from its

beginnings.

[202] According to the Commission's submissions, Canada Post's

interpretation would restrict the evaluation process to a singular

methodology. Only the job-to-job approach could be used. Only an

examination of the whole "system" could be made in the evaluation

process, even if the complainant were a single individual. Although there

was a concession by Canada Post that representative sampling could be

done at the evaluation stage, the Commission argued that Canada Post's

interpretation of section 11 of the Act would create a cumbersome

methodology which would, in fact, be regressive in nature.

b) Tribunal's Analysis

[203] All parties have quoted from Sullivan's Driedger on the

Construction of Statutes, in its many iterations. The Tribunal agrees that

this work is seminal when one is dealing with statute interpretation. Of

note are the commentaries on what Driedger styled "the modern rule" of

interpretation, as follows:

Today there is only one principle or

approach, namely, the words of an Act are to

be read in their entire context, and in their

grammatical

and

ordinary

sense

harmoniously with the scheme of the Act,

the object of the Act, and the intention of

Parliament.⁷⁴

There is only one rule in modern

interpretation, namely, courts are obliged to

determine the meaning of the legislation in

its total context, having regard to the

purpose of the legislation, the consequences

of

proposed

interpretations,

special rules

the

of

presumptions

and

interpretation, as well as admissible external

aids. In other words, the courts must

consider and take into account all relevant

and admissible indicators of legislative

meaning. After taking these into account, the

court will then adopt an interpretation that is

appropriate. An appropriate interpretation is

one that can be justified in terms of (a) its

plausibility, that is, its compliance with the

legislative text; (b) its efficacy, that is, its

promotion of the legislative purpose; and (c)

its acceptability, that is, the outcome is

reasonable and just.⁷⁵

[204] Additionally, the Interpretation Act must be considered. It indicates

that:

Every enactment is deemed remedial, and

shall be given such fair, large and liberal

construction and interpretation as best

ensures the attainment of its objects.⁷⁶

[205] Based on these interpretive principles, the Tribunal finds that the

Commission's submissions concerning the interpretation of section 11 of

the Act represent the more appropriate approach to this section. The

Tribunal has read the section within the context of the Act. Additionally, it

has considered the interpretations of section 11 which have been presented

by tribunals and Courts in the past. The Tribunal has before it expert

evidence which addressed the historical evolution of the concept of "pay

equity". This evidence, combined with comments made by Member of

Parliament, the Honourable Ron Basford, during the discussions preceding

the promulgation of the Act, reinforces, in the Tribunal's view, the finding

that section 11 of the Act is intended to address the issue of "pay equity".

[206] The Tribunal accepts that this interpretation is compatible with the

purpose of the legislation, its context, and its legislative history. The

purpose of the Act is set out in section 2, as follows:

The purpose of this Act is to extend the laws

in Canada to give effect, within the purview

of matters coming within the legislative

authority of Parliament, to the principle that

all individuals should have an opportunity

equal with other individuals to make for

themselves the lives that they are able and

wish to have and to have their needs

accommodated, consistent with their duties

and obligations as members of society,

without being hindered in or prevented from

doing so by discriminatory practices based

on race, national or ethnic origin, colour,

religion, age, sex, sexual orientation, marital

status, family status, disability or conviction

for an offence for which a pardon has been

granted.

[207] Canada Post's submission that this purpose underlines the Act's

scope as legislation which targets discrimination solely against individuals

on specific grounds cannot be accepted. It is the Tribunal's view that this

is a restrictive interpretation of legislation which is clearly meant to

address the broad issue of discrimination against all persons. Acts of

Parliament must be interpreted using large and liberal construction which

will result in fairness to all. The elimination of groups made up of both

male and female persons from the protection of the Act would result in a

narrowing of the purpose of the Act. The Tribunal rejects this

interpretation, and accepts that section 11 of the Act, in addressing

discrimination in the area of "pay equity", conforms with the general

purpose of the Act.

[208] One of Canada Post's submissions was based upon what it

characterized as an historical continuum of legislation. This continuum

included other work-related legislation which has addressed the very real

problem of a difference in wages paid to female and male workers, such as

the Canada Labour Code. As noted already, successive governments have

attempted, from the turn of the nineteenth/twentieth centuries, to deal with

the problem of differences in wages paid to male and female workers.

From Canada Post's perspective, the passage of section 11 in the Act

represents stage 4 in a continuum which began with minimum wage

legislation, and moved on to "equal pay for the same work" done by males

and females, slightly modified to become "equal pay for substantially

similar work" and, according to their argument, would naturally evolve to

become "equal pay for work of equal value" done by male and female

workers. Eventually, in Canada Post's submission, "pay equity", a concept

further along on the continuum, and somewhat distant from the first four

concepts in its methodology and its focus, might become an issue to be

addressed as stage 5. Its main argument, however, was that the concept of

"pay equity" is not currently a part of the Act.

[209] Canada Post conceded that the focus on occupational groups,

deemed predominantly female or predominantly male, which can be

compared using various methodologies involving such statistical means as

regression analysis, is a legitimate characteristic of a "pay equity" study.

Its submission was, however, that section 11 of the Act is not about "pay

equity".

[210] "Pay equity" legislation is, according to Canada Post, something

entirely dissimilar from a denunciation of a difference in wages between

men and women for work of equal value. While Canada Post agrees that

"pay equity" has its focus on the problem of the occupational segregation

of women, and the related problem of the undervaluation of women's

work, it believes this interpretation represents a leap in conceptual

thinking from what it argues are the clear words of section 11. As such,

Canada Post implies that "pay equity" cannot be what Parliament meant to

address when it created section 11 of the Act.

[211] The Tribunal rejects this argument that "pay equity", as a concept, is

beyond the scope of the Act. The concept has already been accepted as the

interpretive basis for section 11 of the Act. In one of the first cases to

discuss section 11, Public Service Alliance of Canada v. Canada

(Department of National Defence), the Federal Court of Appeal noted that:

[t]he case concerns pay equity...the

appellant, as bargaining agent for the

employees concerned, alleged that the

respondent employer was not paying certain

female employees wages equal to those paid

to certain male employees performing work

of equal value ... in contravention of

Sections 7 and 11 of the Canadian Human

Rights Act.⁷⁷

[212] Thus, from the very introduction to the judgement in that case,

Hugessen, J. characterized section 11 of the Act as a section which had

been created, specifically, to address the problem of "pay equity".

[213] He quoted at length from Dickson, C.J. who "[i]n the seminal case

of Action Travail des Femmes v. Canadian National Railway Co." spoke

for the Supreme Court of Canada.⁷⁸In that case, Dickson, C.J. quoted the

Abella Report, to conclude that:

...systemic discrimination in an employment

context is discrimination that results from

the

simple operation of established

procedures of recruitment, hiring and

promotion, none of which is necessarily

designed to promote discrimination. The

discrimination is then reinforced by the very

exclusion of the disadvantaged group

because the exclusion fosters the belief, both

within and outside the group, that the

exclusion is the result of `natural' forces, for

example, that women `just can't do the job'

... It is compounded by the attitudes of

managers and co-workers who accept

stereotyped visions of the skills and `proper

role' of the affected group, visions which

lead to the firmly held conviction that

members of that group are incapable of

doing a particular job, even when that

conclusion is objectively false.⁷⁹(emphasis

added)

[214] Hugessen, J. then quoted from the Human Rights Tribunal decision

in Public Service Alliance of Canada v. Treasury Board which described

systemic discrimination as

[emphasizing] the most subtle forms of

discrimination ... [and recognizing] that

long-standing social and cultural mores

carry within them value assumptions that

contribute to discrimination in ways that are

substantially

or

entirely hidden and

unconscious. Thus, the historical experience

which has tended to undervalue the work of

women may be perpetuated through

assumptions that certain types of work

historically performed by women are

inherently less valuable than certain types of

work historically performed by men.⁸⁰

[215] Clearly, the language of the Treasury Board tribunal is the language

of "pay equity".

[216] From this position, Hugessen, J. indicated at paragraph 15 that "[I]t

is arguable, indeed, that the type of discrimination which pay equity is

designed to counteract is always systemic". He went on to quote from Nan

Weiner and Morley Gunderson, Pay Equity Issues: Options and

Experiences (Toronto: Butterworths, 1990) as follows

...pay equity is designed to address a kind of

systemic

discrimination.

Systemic

discrimination is found in employment

systems. It is the unintended byproduct of

seemingly neutral policies and practices.

However, these policies and practices may

well result in an adverse or disparate impact

on one group vis-a-vis another (e.g., on

women versus men) ... Pay equity requires

changes to pay systems to ensure that

women's jobs are not undervalued.

(emphasis added)

[217] Again, Hugessen, J. underlined his decision that section 11 of the

Act is dealing with the concept of "pay equity". He clearly indicated, by

quoting from Weiner and Gunderson, that this concept deals with women's

jobs which, historically, have been undervalued and must be addressed to

change that systemic discrimination. It is the jobs which are of primary

importance, not the gender of the incumbents.

[218] This point, that the basis for equal value legislation in Canada was

the perceived need to address occupational segregation and the

undervaluing of women's work, was emphasized to the Tribunal in this

Complaint by Professor Pat Armstrong who was accepted as an expert in

women's work, women's wages, and the sociological aspects of equal

pay legislation. She stressed that, historically in Canada, there has been a

segregation of jobs into female and male dominated areas.

[219] Dr. Armstrong noted that one of the federal government's responses

to the Royal Commission on the Status of Women (1970) was the

promulgation of the Canadian Human Rights Act, 1978, including section

11 of the Act to address systemic discrimination in wages, due to job

segregation. This historical background, therefore, must be taken into

consideration when interpreting section 11 of the Act. The purpose of the

section must include the need to address the undervaluation of women's

work, as seen in the segregation of that work into occupational groups

dominated by women.

[220] Section 11 of the Act, she indicated, is about "pay equity" and, as

such, must deal with male and female-dominated job classes in order to

address the occupational segregation which that concept targets. In

addition to addressing jobs and gender, "pay equity" must discuss these

issues through the prism of occupational segregation.

[221] This expert evidence echoes the statement of the Honourable Ron

Basford, Minister of Justice during Parliamentary debates in 1977 which

preceded passage of the Act. As noted in paragraphs [53] and [54] of this

Decision, the Honourable Ron Basford anticipated problems with the

concept of equal pay for work of equal value as presented in section 11 of

the Act. He noted, however, that the government's approach was to

legislate the principle, and give to the Commission the task of solving any

problems involved in the implementation of that principle. He went on to

indicate that the underlying problem was occupational segregation of

women, and their historical lower wages, caused by an undervaluation of

women's work.

[222] Given this background, as well as expert evidence, the Tribunal

accepts that section 11 of the Act addresses the concept of "pay equity"

which translates into "equal pay for work of equal value" between male

and female workers.

[223] The principle of "pay equity" between men's work and women's

work which has equal value demands a methodology which has evolved as

the concept has evolved. The methodology to be used to address the

concept is not part of section 11. As the Supreme Court underlined in its

June 2003 decision, the task of fleshing out the operation of section 11 of

the Act has been given to the Commission. The promulgation of the 1986

Guidelines is the direct result of the task mandated to that body.

[224] Each section of the Guidelines which Canada Post has challenged,

based on its interpretation of the Act, addresses the concept of "pay

equity". Indeed, Canada Post conceded in its submissions concerning the

interpretation of section 11 of the Act that the Guidelines would be

coherent and logical if one were dealing with "pay equity" in section 11.

Their position was that section 11 does not make the conceptual leap to

"pay equity" but rather must be interpreted using a straight-forward

"simple meaning" approach.

[225] The Tribunal finds that "pay equity" is the concept which section 11

was created to address. The words of the text allow for the plausibility of

this interpretation, as commentators have used the terms "equal pay for

work of equal value", "comparable worth", and "pay equity" almost

interchangeably. This interpretation of section 11 is efficacious, as it

promotes the legislative purpose as enunciated by the Minister of Justice

immediately prior to the promulgation of the Act, as well as the intended

purpose of the Act, section 2, read in a broad and liberal manner. Given

the finding that this interpretation is plausible and efficacious, it is

accepted as a reasonable and just interpretation which addresses the

purpose of the Act both specifically in the section itself, and within the

context of the whole philosophy of the Act.

[226] Accordingly, the Tribunal concludes that "pay equity" has been

accepted as the interpretative basis for section 11 of the Act, which

addresses the undervaluation of work performed by women in

occupational groups dominated by women. Examination of male and

female job classes, therefore, becomes an important aspect of any "pay

equity" study and the Commission's 1986 Guidelines, particularly those

sections challenged by Canada Post, provide assistance in making that

possible.

[227] The test to be applied by the Tribunal in determining the validity of

the particular sections of the Guidelines impugned by Canada Post is

whether or not they are consistent with the meaning of section 11 of the

Act. Canada Post has argued that they are inconsistent with section 11.

[228] The Tribunal reiterates that a proper interpretation of section 11

recognizes that the section was created to address the concept of "pay

equity", as described above. The Commission was entrusted, pursuant to

the Act, to implement the concept and was required to make it operational

by means of promulgating certain guidelines.

[229] The Tribunal, therefore, concludes that the impugned sections 11

through 15 of the 1986 Guidelines, in providing guidance to interpret the

"pay equity"-based section 11 of the Act, are vital to that interpretation.

They also provide a cohesion and a wholeness to the legislation and are

consistent with the meaning of section 11 of the Act and are, accordingly,

valid and operable.

[230] Additionally, subsection 8(2) of the 1986 Guidelines addresses

specifically the methodology to be used when dealing with a particular

aspect of the working conditions factor set forth in subsection 11(2) of the

Act. As such, it, too, is necessary to the fleshing out of the principles of the

Act, and is consistent with the meaning of section 11.

[231] In reaching these conclusions, the Tribunal has addressed the

submissions of both Canada Post and the Commission concerning how

best to test for the validity of the subordinate legislation. In effect, the

Tribunal has endorsed the approach that one first interprets the enabling

legislation, and then, based on that interpretation, determines whether the

impugned subordinate legislation is consistent with its enabling statute.

[232] Finally, the Tribunal considers it relevant to refer to Mr. Justice

Evans' decision in the Treasury Board case, in which he indicated the

following concerning the validity of an impugned guideline:

In view of the breadth of the statutory

language of subsection 27(2), and of the

attributes of the body to which the discretion

has been conferred, a provision in any

guidelines issues will only be held to be

invalid if it is clearly incompatible with the

terms of the grant of statutory power, when

construed in light of the purposes of the

Act...⁸¹

[233] Using the language of Mr. Justice Evans, the Tribunal finds that

subsection 8(2) and sections 11 through 15 of the 1986 Guidelines,

challenged by Canada Post, are not incompatible with their enabling

legislation when construed in light of the purposes of the Act. Indeed, the

impugned Guidelines are necessary to the smooth operation of the Act and

are found to be valid.

C. Proof by Presumption

[234] The question to be addressed is whether or not the proof by

presumption referred to by Evans, J. in the Treasury Board decision, is a

rebuttable presumption. All parties in this Complaint have agreed that a

presumption, by its very nature of being a presumption, can be rebutted.

The real question is what constitutes an acceptable rebuttal under the

circumstances of this Complaint? Can this presumption, for example, be

rebutted by "reasonable factors" other than those identified in the

Guidelines?

[235] Evans, J. noted that wage differences between men and women

performing work of equal value that are attributable to prescribed

"reasonable factors" other than sex, are exempt from the reach of section

11 of the Act. He stated that:

Accordingly, once a complainant has

established a difference in the wages paid to

male and female employees performing

work of equal value, a breach of section 11

is thereby established, subject only to the

employer's demonstrating that the difference

is attributable to one of the `reasonable

factors' prescribed in Section 16 of the

Guidelines.⁸²

[236] Evans, J. concluded, at paragraph 152, that:

Subsection 11(1) can thus be seen to have

tackled the problem of proof by enacting a

presumption that, when men and women are

paid different wages for work of equal value

that difference is based on sex, unless it can

be attributed to a factor identified by the

Commission in a guideline as constituting a

reasonable justification for it.

[237] In addition, Evans, J. stated that:

...the nature of systemic discrimination often

makes it difficult to prove that the

disadvantaged position in the workplace of

many members of particular groups is based

on the attributes associated with the groups

to which they belong. This is because, as

Dickson, C.J.

observed

...

systemic

discrimination `results from the simple

operation of established procedures of

recruitment, hiring and promotion, none of

which is necessarily designed to promote

discrimination'. Accordingly, an employer's

wage policies and practices may be based on

such deep-rooted social norms and

assumptions about the value of the work

performed by women that it would be

extremely difficult to establish in a forensic

setting that, if women were paid less than

men performing work of equal value, that

difference was based on sex.⁸³

[238] The Commission and the Alliance argued in their submissions that

the only way to rebut the aforementioned proof by presumption is to rely

on a "reasonable factor" identified in the Guidelines.

[239] Canada Post argued that, while relying on a "reasonable factor" in

the Guidelines is certainly one way to rebut the presumption, that option is

not the only one.

[240] Canada Post elaborated that it would be inconsistent with the

purpose of the Act to allow only the Commission to displace the

presumption of subsection 11(1) by means of its specified "reasonable

factors". It argued that the purpose of the Act is to address discrimination

on various grounds and section 11 does not include all of the grounds. It

concerns discrimination based only on sex.

[241] Accordingly, Canada Post added, the respondent or employer should

be able to lead evidence to show that the reason for a wage difference,

while not being a "reasonable factor", may be due to some cause other

than sex. In other words, the list of "reasonable factors" cannot be close-

ended but rather must be open-ended, thus providing an additional line of

defence to rebut the presumption.

[242] While the evidence must be persuasive and the burden of proof lies

clearly with the respondent or employer, in Canada Post's view, it should

have the opportunity to rebut the presumption by leading such evidence.

[243] Essentially, Canada Post argued that if the employer or respondent

put evidence before the Tribunal which showed, on a balance of

probabilities, that the wage gap was not the result of sex discrimination,

then that would constitute a rebuttal of the presumption. It is Canada Post's

position that Evans, J. has not foreclosed this argument.

[244] The Commission argued that Evans, J. was very clear about what

constitutes a rebuttable presumption under subsection 11(1), namely, that

only evidence of the presence of "reasonable factors" described in section

16 of the 1986 Guidelines can rebut the presumption that, once a

difference in wages between male and female employees performing work

of equal value is established, on a balance of probabilities, discrimination

based on the ground of sex is also established.

[245] Moreover, the Commission cited paragraph 48 of the Supreme Court

of Canada decision, dated June 26, 2003, in Bell Canada (Supra note 39).

This citation refers to the role of the Commission when it issues guidelines

specifically dealing with the "reasonable factors" noted in subsections

11(4) and 27(2) of the Act to justify gender wage differences, as follows:

This

provision

clearly

contemplates

guidelines adding precision to the Act,

without in any way trumping or overriding

the Act itself.

[246] In the Commission's submission, an open-ended list of "reasonable

factors" would not serve the purpose of adding precision to the Act. Nor

would it serve the principle of narrowly construing defences in human

rights cases generally.

[247] Finally, it is helpful to consider the testimony of expert witness for

the Commission, Professor Pat Armstrong, concerning systemic

discrimination as a concept. The witness was responding to a question

from Canada Post's counsel, in cross-examination, relating to the Province

of Ontario's human rights legislation:

Systemic discrimination is presumed ...

systemic

discrimination

refers

to

discrimination that arises from a variety of

factors, not a single factor, like a single

employer behaving inappropriately. Equal

pay for work of equal value is based on a

certain kind of discrimination. That is what

is recognized as systemic discrimination,

which is why guilt is not the issue, or, as

Morley Gunderson says in his work for the

Abella Commission, why it is not a question

of even looking for root causes. It is an issue

of trying to make pay more equal between

male - and female - dominated work. So, it

is not a question of discrimination in the

general sense, but in the specific sense of

systemic discrimination.⁸⁴

[248] The Tribunal accepts that section 11 of the Act is addressing,

primarily, a particular discriminatory practice commonly known as

systemic discrimination. This type of discrimination has often arisen,

historically, from recruiting and hiring policies and practices that have

inherently, but not necessarily intentionally, resulted in female employees

being paid less than male employees for work of comparable value. The

concept of "equal pay for work of equal value" is, therefore, an attempt to

address systemic discrimination by measuring the value of work

performed by men and women.

[249] The Tribunal notes that Evans, J. has ruled in his decision of

October 19, 1999 in the Treasury Board case, that subsection 11(1)

effectively enacts a presumption that:

...when men and women are paid different

wages for work of equal value that

difference is based on sex, unless it can be

attributed to a factor identified by the

Commission in a guideline as constituting a

reasonable justification for it.⁸⁵

[250] The Tribunal also notes that, while all parties have agreed that a

presumption, by definition, is rebuttable, there is not unanimity on what

constitutes an acceptable rebuttal under the circumstances of the

Complaint.

[251] Evans, J. clearly states that the presumption under subsection 11(1)

can be rebutted by "reasonable factors" established by the Commission

under subsections 11(4) and 27(2) of the Act. On the other hand, Canada

Post has argued that rebuttal should not be limited to the "reasonable

factors" included in the Guidelines, but should be "open-ended".

[252] The Tribunal notes that the aforementioned Supreme Court of

Canada decision supports the view that the legislative intent was to add

precision to the Act in terms of the guideline-making power which, in the

Tribunal's opinion, is compatible with taking a "close-ended" approach to

the establishment of "reasonable factors". Moreover, a close-ended list of

"reasonable factors" would, in the Tribunal's view, also be compatible

with the principle of narrowly construing defences in human rights cases.

[253] Accordingly, the Tribunal concludes that the presumption enacted

by subsection 11 (1) of the Act, while being a rebuttable presumption, is

one that can be rebutted only by "reasonable factors" identified, from time

to time, by the Commission, pursuant to subsections 11(4) and 27(2) of the

Act.

V. PRIMA FACIE CASE

A. Background and Elements of a Prima Facie Case for a Complaint

brought under Section 11 of the Act

[254] Because of the systemic nature of the discrimination alleged in the

Complaint before the Tribunal, the Complaint is addressed using the

current Act, as amended in 1998. This is evident from the discussion of

retroactivity and the validity of the 1986 Guidelines noted in Section IV, B

of this Decision. Therefore, the Tribunal must look at each element of

section 11, as it currently reads. Each element in section 11 of the Act

must be substantiated, on a balance of probabilities, in order to

substantiate the Complaint.

[255] Section 11 proscribes sexual discrimination in the determination of

wages. Subsection 11(1) provides that 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. Subsection 11(2) provides the criterion

for assessing the value of the work being compared. The value assigned to

the work must be based on the composite of the skill, effort, responsibility

and working conditions involved in performing the work. Additionally,

subsection 11(4) allows an exemption to employers from a finding of

discrimination because of special circumstances which are described as

"reasonable factors".

[256] As noted in Section IV, C of this Decision, section 11 contains a

built-in presumption of discrimination based upon sex, one of the

prohibited discriminatory factors noted in the Act, when a difference in

wages has been found to exist between male and female employees,

employed in the same establishment, performing work of equal value. This

presumption is subject to the constraint of "reasonable factors", presented

in subsection 11(4) and expanded in definition by the Guidelines.

[257] As noted in Section IV, B of this Decision, the 1986 Guidelines are

necessary to any discussion of section 11 of the Act, as they illuminate the

principle of "pay equity" which is the basis for the section. Therefore,

when addressing section 11 in the context of the Complaint before this

Tribunal, each of the following elements must be proven, on a balance of

probabilities. The elements are taken from section 11 of the Act and from

the guidance which is offered concerning the particularizing of the section

through guidelines promulgated by the Commission pursuant to its

mandate under section 27 of the Act.

(1) The complainant occupational group is predominantly of one

sex and the comparator occupational group is predominantly of the

other sex. In this Complaint, that means the complainant CR's must

be predominantly female and the comparator PO's must be

predominantly male.

(2) The female-dominated occupational group and the male-

dominated occupational group being compared are composed of

employees who are employed in the same establishment.

(3) The value of the work being compared between the two

occupational groups has been assessed reliably on the basis of the

composite of the skill, effort, and responsibility required in the

performance of the work, and the conditions under which the work

is performed. The resulting assessment establishes that the work

being compared is of equal value.

(4) A comparison made of the wages being paid to the employees

of the two occupational groups for work of equal value

demonstrates that there is a difference in wages between the two,

the predominantly female occupational group being paid a lesser

wage than the predominantly male occupational group. This wage

difference is commonly called a "wage gap".

B. Does the Complainant group and the Comparator group represent,

respectively, a predominantly female occupational group and a

predominantly male occupational group, suitable for

comparison of work, under the Act?

[258] The history of the groups known as CR's and PO's begins when the

Treasury Board classification system was created for federal government

departments in the 1960's. That system is still generally maintained in the

federal sphere to date. The Post Office Department within the federal

government was the precursor to the Crown Corporation, Canada Post.

When, by federal statute, the Crown Corporation, Canada Post, was

established in 1981, the federal government classification standards and

the wage scales attributed to the government classification levels were

maintained for those government employees who became employees of

Canada Post. This was accomplished pursuant to the transition rules in the

statute which created Canada Post as a Crown Corporation.

[259] This Complaint was presented to the Commission by the CR

occupational group, employed by the newly-created Canada Post. The CR

group identified itself in the Complaint as "female-dominated". The group

was made up of workers who had been classified as "Clerical and

Regulatory" when they were employed in the Post Office Department.

This Treasury Board classification was used for all Clerical and

Regulatory workers employed throughout the federal government. When

the CR's in the Complaint became part of the Crown Corporation, Canada

Post, their CR classification was maintained. There was, however, an

undertaking between the Alliance, the union representing the CR's and

certain other occupational groups, and Canada Post that negotiations to re-

evaluate the CR and other positions would eventually take place. This

undertaking was the basis for the work which Canada Post management

and the Alliance engaged in when they attempted to create the "System

One" evaluation scheme.

[260] The complainant group chose, as its comparator for the Complaint,

the "male-dominated" Postal Operations group, the PO's. The PO's had

been, like the CR's, employees of the federal government when the Post

Office was a government department and had retained their status as PO's

when they became employees of the newly-created Crown Corporation.

These employees, represented by the Canadian Union of Postal Workers

(CUPW), had originally been members of a unique federal group called

"mail handlers".

[261] As noted in paragraphs [25] and [26], above, on January 24, 1992,

the date of the Commission's Final Investigation Report of this Complaint,

with its recommendation that the Complaint be referred to the Tribunal,

there were 2,310 CR positions, separated into levels of CR-2 (260

positions), CR-3 (950 positions), CR-4 (950 positions), and CR-5 (150

positions). There were 43,099 PO positions, separated into PO-INT

positions (with four levels), PO-EXT positions (with three levels) and PO-

SUP positions (with 6 levels). Although the actual effective date of these

numbers has not been identified in the Commission's Final Report, it is

assumed they represent the populations of the two groups as of the date of

the Final Report, or close to that date.

[262] In the year the Complaint was filed, 1983, the number of CR

positions was virtually the same (2,316) as in early 1992 although the

number of PO positions was larger by almost 8,000 positions (50,912).

[263] Section 11 of the Act addresses work and wages in the context of

"pay equity". Historically, "pay equity" has attempted to address the

gender-based segregation of work, and the wages which flow from this

segregation. Traditionally, the wages paid for work generally performed

by women have been less than those paid for work generally performed by

men. Because section 11 does not provide a definition for what constitutes

a predominantly gender-based occupational group, the Tribunal must seek

clarification from sections 12 and 13 of the 1986 Guidelines. The

Commission used its powers under section 27 of the Act to produce this

practical guideline for group complaints. Sections 12 and 13 of the

1986 Guidelines permit a comparison between "occupational groups" as

long as those groupings represent work being done predominantly by

males and predominantly by females.

[264] Section 13 of the 1986 Guidelines identifies several formulas for

determining when an occupational group is considered to be

predominantly of one sex. For example, an occupational group numbering

more than 500 is deemed to be composed predominantly of one sex if at

least 55% of its members are of that sex. In the Complaint before the

Tribunal, each group, as a whole, was made up of more than 500 members

both at the time the Complaint was filed, and at the time it was referred to

the Tribunal.

[265] The complainant group had indicated to the Commission, and

expressed the belief in the wording of the Complaint itself, that it was a

female-dominated group. The group chosen as a comparator was presented

by the complainant as a male-dominated group. In 1983, over 80% of the

CR group was comprised of female employees and just over 75% of the

PO group was comprised of male employees.⁸⁶At the time of referral of

the Complaint to the Tribunal in 1992, the CR group remained

predominantly female, with a percentage factor of over 83% female, and

the PO group (which was now made up of only the PO-INT and the PO-

EXT subgroups, the PO-SUP subgroup having been removed by the

Commission during its investigation) remained predominantly male, with

a percentage factor of just above 71% male.⁸⁷

[266] The Alliance and the Commission argue that these percentages are

sufficient to classify the complainant group as being comprised of

employees predominantly of the female sex, and the comparator group as

being comprised of employees predominantly of the male sex.

[267] The submissions of both the Alliance and the Commission

concerning the gender predominance of the two groups are based on their

interpretation of the 1986 Guidelines. Additionally, they argue that the

Guidelines are, unless found to be ultra vires (which is not the case in this

Complaint), binding on the Tribunal, according to the Act.

[268] According to the 1986 Guidelines, argue the Alliance and the

Commission, when an occupational group exceeds 500 in number, only

55% of the persons in the group need be of one gender to deem that group

to be doing work of persons of that gender. Therefore, in this Complaint,

the groups are deemed to be doing either work generally performed by

women (the CR's) or work generally performed by men (the PO's) based

on the fact that they are groups larger than 500 in total, and the percentage

of either female or male members of each group makes its work

representative of either female or male work. The argument is that this is a

simple arithmetical computation which, once made, is one factor in

choosing a complainant and comparator. It is the factor, however, which

satisfies the element of section 11 (clarified by the Guidelines) which

demands that, when one is dealing with a group complaint, the

complainant be a predominantly female group and the comparator, a

predominantly male group.

[269] Canada Post argues that the percentages are illusory. Its submission

is that the Postal Operations group cannot be viewed as a melded group.

The PO group is, and traditionally has been, according to Canada Post, a

group which aspires to the principle of "straight-line" wage rates. Canada

Post's argument stresses that, during the history of the Complaint, the PO-

4 level has always been the largest single element of the subgroup, PO-

INT. It is the PO-4 level which is, according to Canada Post, most

representative of the PO occupational group as a whole, and the

classification category where the most PO jobs are found. Indeed, Canada

Post argues that the PO-4 level of the Postal Operations group has never

been anything but essentially neutral in its gender make-up and should be

more properly regarded as representative of the entire PO group. In 1983,

53% of employees classified at the PO-4 level were male and 47%,

female. In 1992, the figures were 50.6% male and 49.4% female. If the

Postal Operations group were defined in the manner of the PO-4 level,

Canada Post submits that, as the comparator, it would not fit within the

definition of a "predominantly male" comparator group pursuant to the

Guidelines.

[270] Canada Post's argument is that to take the Postal Operations group

as a whole is to ignore the historical trend by which the number of PO-4

level employees is becoming increasingly the most critical and

representative category of Postal Operations workers. In fact, employees

classified at the PO-4 level within the Internal Mail Processing and

Complementary Postal Service Subgroup represented just over 83% of its

Subgroup total in 1983, and 88% in 1992. On the other hand, as a

percentage of the entire Postal Operations group, PO-4 level employees

represented 41% in 1983 and almost 42% in 1992.

[271] The Tribunal does not accept this argument. The federal government

job classification scheme is predicated upon the concept of groups of

employees, bound together by occupational job categories. Within these

groupings, the concept of levels is connected to wage differentials.

Historically, these levels, with their wage differentials, were based on

factors such as seniority, management's view of the importance of the

work performed at each level, and the requisite training and skills

necessary. That a union at Canada Post, representing many or all of the

Postal Operations group may have decided to attempt to create a situation

where the classification levels are essentially unrelated to wage

differentials cannot change the historical concept that is the basis for the

groups and levels themselves. It is this concept that is important to the

designation of "occupational group" in sections 12 and 13 of the 1986

Guidelines, and to the issue of "pay equity" in section 11 of the Act.

[272] Therefore, the Tribunal accepts that the complainant occupational

group, the CR's, and the comparator group, the PO's, are representative,

respectively, of a female-dominated group and a male-dominated group

because each is over 500 in number, and because each contains at least

55% of female employees (the complainant CR's) and male employees

(the comparator PO's). This conclusion is based upon the 1986 Guidelines

which indicate the importance of the size of each group, and the necessary

percentage of either males or females in each occupational group of a

specified size which will deem the group to be either male-dominant or

female-dominant.

[273] The Tribunal is bound by the Act to follow the Guidelines which

address the specifics of the Complaint before it, a "pay equity" complaint

under section 11 of the Act, dealing with occupational groups.

[274] Canada Post submits that, even if the groups are gender appropriate,

the Alliance's choice of the Postal Operations group as its comparator was

made because of that group's position, at the time, as being highly paid.

Such a choice, in the "pay equity" context, would, in Canada Post's

submission, be "cherry picking" and, therefore, not appropriate.

[275] Mr. Norman Willis, a witness for Canada Post who was accepted by

the Tribunal as an expert in pay equity and in job evaluation, was one

of a number of witnesses who explained the concept of "cherry picking".

[276] He explained that, in a "pay equity" group complaint, the

complainant group chooses its comparator group. "Cherry picking" in "pay

equity" situations envisions a scenario where the complainant group

chooses a comparator group which, while often small in members,

represents the most highly paid of a number of available comparator

groups. Although wages, understandably, is one natural aspect of the

choice, as the "pay equity" complaint always involves an allegation of

payment of less wages to the complainant when compared with the chosen

comparator, choosing a group based solely on its characteristic of having

high wages compared with the complainant group is not acceptable as a

starting point for a legitimate "pay equity" comparison. It would skew the

results of evaluation and comparison, in favour of the complainant.

Allowing a "cherry picked" comparator would create upheaval within an

establishment, as subsequent comparisons would be inevitable between

the original complainant and other workers.

[277] During his explanation of "cherry picking", Mr. Willis expressed the

opinion that the Complaint before the Tribunal was tainted from the

beginning because of the complainant's "cherry picking" of the

comparator, based on the relatively high wages paid to employees in the

Postal Operations occupational group. When confronted with the fact that

the membership of the PO group was by no means a small group, but

rather represented approximately 80% of all Canada Post employees, he

agreed that this choice would have been a "very big cherry".⁸⁸

[278] On behalf of the Commission, Mr. Paul Durber, Director of the Pay

Equity Directorate at the Commission, and accepted by the Tribunal as an

expert in pay equity, indicated in his evidence that the Postal Operations

group, as a whole, was approved by the Commission as a suitable

comparator group, as it was part of the employer's occupational groupings.

At the beginning of the Commission investigation, the PO group also

appeared to offer a certain ease of evaluation and comparison because of

the general homogeneous nature of the various jobs in each of the PO-INT

and PO-EXT subgroups.

[279] According to the evidence of Mr. Chris Jones, the union

representative for the complainant group, one reason the comparator group

was chosen was because of similarities in the duties and responsibilities of

certain CR and PO jobs. A most obvious example was a CR job entitled

`customer service clerk' and a PO job entitled `wicket clerk'. Although

each job appeared to call for almost identical work, at the time of the

Complaint each was paid differently. The superior wage of the wicket

clerk and other PO jobs/positions made the apparently predominantly male

Postal Operations group an obvious choice as comparator for the

complainant. Additionally, the PO group represented, in absolute numbers,

the majority of postal employees.

[280] Mr. Jones indicated that although the PO wages were thought to be

generally higher than those of the CR's, the sheer size of the Postal

Operations group was significant as a reason for its choice. As the largest

group of Canada Post employees, representing by far the majority of the

employer's total number of employees, the PO's were a natural choice of

comparator for the CR's. The fact, too, that some of the work being

performed by employees in both the complainant and comparator groups

was similar in terms of skill, effort, responsibility, and working conditions

underlined, for the complainant, the appropriateness of its choice of

comparator.

[281] The Tribunal accepts that the largest occupational group within the

organization, a group representing about 80% of the total Canada Post

employee population, was an appropriate group to choose as a comparator.

It appeared to be a predominantly male occupational group according to

the Guidelines. The additional knowledge that certain members of the PO

group were performing work which, in some instances at least, was similar

to the work being performed by the complainant group added to the

appropriateness of the choice.

[282] Additionally, the evidence indicates that there were few other

comparators which could have been chosen. At the time of the issuance of

the Complaint, the General Labour and Trades, and the General Services

occupational groups - both apparently male-dominated, according to the

Guidelines - represented a small percentage of Canada Post employees.

Moreover, there is no evidence that the work being performed by members

of these groups was observed to be similar to that of any members of the

CR complainant group.

[283] Accordingly, the Tribunal finds that the complainant, a

predominantly female occupational group, and the comparator, a

predominantly male occupational group, are appropriately designated

under section 11 of the Act and the 1986 Guidelines as representative

groups for comparison of work generally performed by women and work

generally performed by men. Therefore, the first element necessary to the

establishment of a prima facie case under section 11 of the Act has been

met.

C. Are the Complainant and the Comparator groups employed in the

same `establishment'?

[284] Subsection 11(1) of the Act reads as follows:

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. (emphasis added)

[285] Subsection 11(3) of the Act states:

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.

[286] Section 10 of the 1986 Guidelines reads as follows:

Employees of an Establishment

For the purpose of section 11 of the Act,

employees of an establishment include,

notwithstanding any collective agreement

applicable to any employees of the

establishment, all employees of the

employer subject to a common personnel

and wage policy, whether or not such policy

is administered centrally. (emphasis added)

[287] The French language version of section 10 of the 1986 Guidelines

reads as follows:

Employés d'un établissement

Pour l'application de l'article 11 de la Loi,

les

employés

d'un

établissement

des

comprennent,

indépendamment

conventions collectives, tous les employés

au service de l'employeur qui sont visés par

la même politique en matière de personnel et

de salaires, que celle-ci soit ou non

administrée

par

un

service

central.

(emphasis added)

(i) Evolution of the Definition of Establishment

[288] The Commission established the Task Force on Equal Pay in

November 1977 "to study the implications of administering section 11 of

the Act". Among other matters, the Task Force addressed the question of

defining the word `establishment' as used in subsection 11(1).

[289] The Task Force's report, entitled "Equal Pay for Work of Equal

Value" and dated March 1978, recommended that `establishment' be

defined along the following lines, and be included in a guideline:

`Establishment' means all buildings, works

or other places of business of an employer

within the limits of the larger of a

municipality,

municipal

district,

metropolitan region, county or the national

capital region. (Recommendation to be

completed)⁸⁹

[290] The Task Force noted that this definition was incomplete and would

require further consideration. In this connection, it observed that "the

introduction of the word `establishment' in section 11 was deemed to be an

attempt to introduce the factor of regional differences in wage levels as a

legitimate reason for differences in wages between employees".⁹⁰

[291] Mr. Paul Durber testified that, in his opinion, the above-noted

geographic definition of `establishment' probably did not find its way into

the September 1978 Guidelines because the Task Force had highlighted

some conflicting views on the issue. In addition, he mentioned the need

for the Commission to gain more experience in implementing section 11

before enshrining the definition in the Guidelines.⁹¹There was, therefore,

no definition of `establishment' in the 1978 Guidelines.

[292] In September 1984, the Commission issued the Interpretation Guide

for section 11 of the Act, entitled "Equal Pay for Work of Equal Value".⁹²

This Guide was intended to assist employers and employees to understand

how the Commission would assess complaints by providing definitions of

certain terms used in the Act and elaborating on the `reasonable factors'

included in the 1978 Guidelines.

[293] The 1984 Interpretation Guide defined `establishment' as follows:

An establishment refers to all buildings,

works or other installations of an employer's

business that are located within the limits of

a municipality, a municipal district, a

metropolitan area, a county or the national

capital region, whichever is the largest, or

such larger geographic limits that may be

established by the employer or jointly by the

employer and the union.

[294] Mr. Durber testified that despite the 1984 Interpretation Guide's

general support of the geographic definition of `establishment', the

Commission did not apply it consistently as the Commission also

frequently used an alternative definition based on functional lines,

particularly for cases involving the Federal Government and national

organizations which it considered to be single nation-wide

`establishments'.

[295] The Chief Commissioner, in a letter dated March 19, 1985, to about

60 public and private sector employers, including Canada Post, sought

their views on a number of proposed definitions and guidelines, including

the definition of `establishment'. The request was aimed at removing much

of the uncertainty experienced by some employers in implementing their

own "pay equity" programs.

[296] The Chief Commissioner's letter indicated that it was proposed to

define `establishment' more broadly and on a different basis than the one

used in the Commission's Interpretation Guide. The proposal was that a

functional definition would replace the Guide's geographic definition.

Specifically, the Commission proposed that:

Employees of an employer shall be

considered to be in the same establishment

when they are subject to a common set of

personnel

and

compensation

policies,

regulations and procedures; and when these

policies, regulations and procedures are

developed and controlled centrally even

though

their

administration

may be

delegated to small units of organization.

[297] Canada Post's Vice-President, Personnel, responded to the Chief

Commissioner's letter on June 3, 1985, specifically addressing the

proposed definition of `establishment' as follows:

The Commission's proposed definition of

`establishment' is also a source of concern.

While the Commission has clear authority

under the provisions of Section 22 of the

Canadian Human Rights Act to provide

guidelines, it is our understanding that those

guidelines must conform with the Act taken

as a whole. To move from a geographically-

based to a functionally-based determination

of establishment, we suggest, would be

inconsistent with the Act and at odds with

other statutory and judicial interpretations of

the expression which frequently speak in

terms of location rather than function.

[298] Consultations between the Commission and the various employers,

including Canada Post, led to certain changes in the proposed definitions

and guidelines. Ultimately, the 1978 Guidelines (as modified in 1982)

were replaced by the November 1986 Guidelines which for the first time

included a definition of `establishment' (section 10). This definition was

functionally-based along the lines of the one identified in paragraph [296]

above.

[299] At the same time, a new `reasonable factor' was added to the then-

existing list (section 16), recognizing that a difference in wages between

male and female employees performing work of equal value in the same

establishment is justified by "regional rates of wages, where the wage

scale that applies to the employees provides for different rates of wages

for the same job depending on the defined geographic area of the

workplace".

[300] Accordingly, the Commission had formally moved, by late 1986, to

a functionally-based definition of `establishment' from its earlier,

inconsistently applied, policy of employing a regionally-based definition.

The reasons for the Commission's shift are best explained by Mr. Durber's

following response:

Q. Could you remind us of the rationale for

shifting to the functional basis?

A. Yes. My view is that it was to allow a

broader,

let us say, more liberal

interpretation and application of section

11.⁹³

[301] The Commission indicated that during the Investigation Stage of this

Complaint (1984-1991), the assumption that the complainant and

comparator groups were in one `establishment' was uncontested. Canada

Post did not raise the issue of the definition of establishment within the

context of the Complaint during this period, although it was involved in

discussions with the Commission on this very topic during the drafting of

the 1986 Guidelines.

[302] Mr. Durber testified that he recalled learning from the investigator

of the Complaint "sometime in 1991" that Canada Post's lead contact had

indicated that the Corporation was "thinking about whether establishment

might not be an issue". Mr. Durber was unaware of any formal indication

from Canada Post that the definition of `establishment' would be argued as

part of the Respondent's challenge to the Complaint.⁹⁴

[303] After a lengthy cross-examination, including questions on the

Commission's work to define `establishment', Mr. Durber was asked by

Commission counsel if his original opinion concerning the meaning of

`establishment' had changed. He replied that, in the context of this

Complaint, he

... continue[d] ... to see there being one

establishment, a good deal of commonality

at the level of management accountability

and otherwise, bringing those groups into

one establishment, as meant by section 10 of

the Equal Wages Guidelines, and, thus

permitting continued comparison of job

value as between clerks and postal

operations people.⁹⁵

[304] Both the Commission and the Alliance acknowledged that counsel

for Canada Post did raise questions about the meaning of the term

`establishment' in the context of section 11 of the Act and section 10 of the

1986 Guidelines during his opening remarks before this Tribunal, in

February 1993, as follows:

The next issue is the one that we see as

being of pivotal importance, and that is the

question of establishment ... So, the

legislation certainly contemplates different

establishments within one employer. The big

question, which has never been considered,

and as far as we are aware, never been

argued, is: What is an establishment?⁹⁶

[305] Canada Post's counsel subsequently addressed the matter of

`establishment' specifically in the context of the Guidelines, noting that

"the 1978 Guidelines contain no definition of `establishment'. The 1986

Guidelines contain a definition of `establishment'".⁹⁷

[306] He then stated what Canada Post's position would be, as follows:

Our position will be that the other side must

come up with a definition of `establishment'

which includes the CR's and the PO-

Internal, PO-External and PO-Sups in the

same establishment, to the exclusion of

other groups.

If the definition of

`establishment' excludes other workers who

work in the operational area at Canada Post,

how does it include the CR's?⁹⁸

(ii) The `Airlines Case'

[307] All parties agree that this Tribunal is bound by the decision of the

Federal Court of Appeal, dated March 18, 2004, which addressed the issue

of the definition of `establishment' in the context of section 11 of the Act,

and section 10 of the 1986 Guidelines. This decision reversed the decision

of the tribunal and the Federal Court (Trial Division) in a "pay equity"

complaint brought by flight attendants (predominantly female) at Air

Canada and Canadian Airlines, who were represented by one union. They

named, as their comparator groups, pilots and maintenance/technical

workers (predominantly male) who were represented by two other unions.

A fundamental issue dealt with by the tribunal as a preliminary matter was

whether the complainant and the comparators were employed in the same

establishment.

[308] The tribunal found that the complainant, represented by the

Canadian Union of Public Employees (Airline Division), failed to

demonstrate "any semblance of essential common wage and personnel

policies across the bargaining units"⁹⁹and concluded that the three

employee groups were not in the same `establishment' for the purposes of

a section 11 complaint. The Federal Court (Trial Division) upheld the

decision of the tribunal.¹⁰⁰

[309] The Federal Court of Appeal unanimously reversed this finding,

deciding that the functionally-based definition of `establishment' in section

10 of the 1986 Guidelines would, in most cases, place all employees of an

employer in the same establishment even though some employees might

be represented by different unions.¹⁰¹The complainant and the chosen

comparators in the `Airlines Case' were, accordingly, found by the Court

to be in the same establishment for the purposes of section 11 of the Act.

[310] The Federal Court of Appeal highlighted the importance of

interpreting human rights legislation broadly, liberally and purposively in

the context of the words and purpose of the statute concerned. The Court

stressed the necessity to interpret the Act and the 1986 Guidelines in a

purposive manner, always being aware of the quasi-constitutional nature

of the Act, and its aim to eliminate discrimination. The Court noted that in

complaints brought under section 11 of the Act, the "broad purpose" of the

section - "to preclude wage discrimination on account of gender"¹⁰²and

"the more particular purpose ... the promotion of pay equity"¹⁰³- must

guide the interpretation of the words of the section and the Guidelines

promulgated by the Commission.

[311] The Court indicated that the test for the interpretation of the word

`establishment' in the context of these purposes was whether there was

"evidence that the employer treats the employee groups as being part of a

single, integrated business. If there is such evidence, the employees are in

the same establishment".¹⁰⁴Evans, J., in his concurring reasons, stated that

"...employees of the same employer will normally be subject to `a

common personnel and wage policy' when they are employed in the same

business entity".¹⁰⁵

[312] In other words, the definition of `establishment', as noted in section

10 of the 1986 Guidelines, was accepted by the Court as necessitating

evidence of common personnel and wage policies which would be general

in nature. There would be no need to examine the minute details of

different collective agreements negotiated by unions which represent the

groups being compared. The Court agreed that "the definition of

establishment should not be based on the myriad of details found in

collective agreements".¹⁰⁶

[313] Mr. Justice Evans, in his concurring reasons, also indicated that

"[t]he terms of collective agreements that apply to complainants and other

employees with whom they wish to be compared for pay equity purposes

are irrelevant to determining whether the complainants and the

comparators are employed in the same establishment within the meaning

of section 11 of the ... Act ... and section 10 of the Equal Wages

Guidelines..."¹⁰⁷

(iii) Impact on the Current Case of the Federal Court of Appeal

Decision in the `Airlines Case'

[314] Although, as noted above, all parties to the Complaint before this

Tribunal acknowledged that the Tribunal is bound by the decision of the

Federal Court of Appeal in the `Airlines Case', Canada Post argued, in its

written submissions, that the decision was also important to the Tribunal

because it underscored several of Canada Post's previous arguments.

[315] Three of Canada Post's arguments deserve particular reference. The

first related to the question of the essential objective of section 11 of the

Act and the presumption of discrimination based upon sex, found in that

section. The second dealt with an accurate and fair determination of the

value of `wages' for the purposes of a section 11 inquiry. The third

concerned the relevance of collective bargaining strength in a "pay equity"

study.

[316] As noted in paragraph [310], clear guidance on the question of the

essential objective of section 11 has been provided by the Federal Court of

Appeal in the `Airlines Case' decision. With respect to the issue of the

presumption of discrimination, the Tribunal has already addressed this

matter in Section IV, C of this Decision.

[317] Canada Post's second argument relating to the definition of `wages'

is considered in the context of Section VIII, entitled Non-Wage Forms of

Compensation, which follows in this Decision.

[318] Canada Post, in its third argument, has reasoned that the Federal

Court of Appeal decision recognizes that bargaining strength is not only

relevant to the `Airlines Case' but also constitutes an important part of any

inquiry into sex-based wage discrimination.

[319] The Tribunal finds that the Federal Court of Appeal decision

confines its consideration of bargaining strength to

...the factors which the Tribunal is to use in

determining whether employees receive

equal wages and perform work of equal

value. To the degree that the evidence of

differing bargaining strength is evidence

pertaining to these factors, it is relevant and

will be considered by the Tribunal at the

substantive phase of the analysis.¹⁰⁸

(emphasis added)

[320] The factors are identified by the Federal Court of Appeal as being

those set out in section 11 of the Act and in the Guidelines. They are,

therefore, by definition, limited to the interpretation of section 11 and to

the "reasonable factors" identified in section 16 of the 1986 Guidelines.

[321] The Tribunal does not find that the decision of the Federal Court of

Appeal in the `Airlines Case' sanctioned an `open-ended' approach to the

"reasonable factors", allowing the admittance of additional factors such as

bargaining strength to those already provided for in the Guidelines. The

Federal Court of Appeal clearly indicates that to the degree that this

evidence of differing bargaining strength is evidence pertaining to the

factors set out in section 11 of the Act and in the Guidelines, that evidence

will be considered at the substantive phase of a tribunal's analysis.

[322] Has `bargaining strength' been presented in this Complaint as

evidence pertaining to the factors listed in section 16 of the 1986

Guidelines as `reasonable factors' to justify an employer establishing or

maintaining a difference in wages between male and female employees

performing work of equal value in the same establishment? Canada Post

has submitted that the differences in the collective bargaining philosophies

of the complainant and comparator groups must be considered by the

Tribunal. It has also argued that the historically gender-neutral, and

numerically large, PO-4 sub-group, an active representative in the

collective bargaining process for the PO group, must be considered

because of its "straight-line" wages philosophy.

[323] The Commission and the Alliance have submitted that union

bargaining strength has never been designated as a "reasonable factor" in

the Guidelines. Canada Post's arguments, therefore, should not be

considered unless there is some evidence which links those arguments to

the "reasonable factors". Very early in the hearing, counsel for the

Commission addressed this very point, as follows:

Another point that is not disputed is the

strength of unions or union bargaining

strength or whatever. It's not in the

Guidelines. It wasn't in the Guidelines in

1978, 1982, or 1986. It has never been in the

Guidelines...¹⁰⁹

[324] The Tribunal is not aware of any bargaining strength evidence

specifically pertaining to the factors set out in section 11 of the Act and in

the Guidelines having been submitted, at any time, by the parties in this

Complaint.

[325] The original Complaint did not address directly the issue of

`establishment'. The Complaint was drafted by the Complainant to

indicate that the employer, Canada Post, had allegedly violated section 11

of the Act "by paying employees in the male-dominated Postal Operations

Group more than employees in the female-dominated Clerical and

Regulatory Group for work of equal value". Further, it was alleged that the

sex composition of the two groups was the basis for the difference in

wages, and, thus, the Complaint alleged discrimination based on sex.

[326] Therefore, as noted by Mr. Durber in his evidence about the

Commission's interpretation of `establishment' when it was dealing with

complaints brought by groups working for the Federal Government and

other large nation-wide corporations, it is apparent that the Complainant

and the Commission assumed, from the inception of the Complaint, that

`establishment' and `the employer' were synonymous.

[327] For the reasons given by the Federal Court of Appeal in the `Airlines

Case' decision, this assumption would appear to be the correct one.

Although there will be times when an employer has more than one

establishment within its purview, in most cases the employer and the term

`establishment', in the context of the Act, will be one and the same when

the employer treats its employee groups as being part of an integrated

business entity with a commonality of personnel and wage policies.

[328] In this Complaint, considerable evidence was presented, usually

through Canada Post witnesses, that Canada Post operated as an integrated

business entity with, generally, overall personnel and wage policies.

Several examples of such evidence are considered below.

[329] In May 1997, Elisabeth Kriegler, President and CEO of Elisabeth

Kriegler and Associates, an organization of Change Management

Consultants, appeared before this Tribunal. She had been called by Canada

Post as a general witness. She had served at the Vice-Presidential level in

several corporate functional areas in Canada Post during the period 1983

to 1992. She then occupied the office of Senior Vice-President -

Administration from 1992 to 1995. From 1995 to early 1997, she was

President of Canada Post Systems Management Ltd., a company which

owned the intellectual property of a number of management systems and

processes developed, over the years, by Canada Post and marketed,

internationally, through licensing arrangements.

[330] Ms. Kriegler emphasized that operating a postal system is probably

one of the most complex logistics businesses in the world involving, in

Canada Post's case, not only its own employees but also many thousands

of others under contract. "All of them are an intricate part of

this integrated network, all of which must operate in concert and according

to standards and in harmony..."¹¹⁰

[331] As pointed out in paragraph [33], in carrying out its objects, the new

Crown Corporation created in October 1981 was to have regard to "...the

need to conduct its operations on a self-sustaining financial basis while

providing a standard of service that will meet the needs of the people of

Canada...". Ms. Kriegler indicated that this called for the efficient and

effective collection, processing and delivery of mail within a financially

competitive framework which, in turn, necessitated the development and

introduction of a comprehensive series of operational, financial, human

resources, marketing and management systems.

[332] Ms. Kriegler reported that the operations of Canada Post "...are the

heart and soul of this Corporation, how without it, it is not a Corporation,

it is not a business...".¹¹¹The establishment of the National Control Centre

in Ottawa, in the mid-1980s, reflected the crucial need for a centralized

operations control and monitoring system.

[333] Members of Canada Post's senior management meet daily in the

National Control Centre to review operational problems which are fed into

headquarters from divisional control centres across the country. This

encourages operating people to make decisions as and where problems

arise. The operating network is supported by a series of systems that track

and trace the movement of mail throughout Canada.

[334] The Tribunal members had the opportunity to visit the National

Control Centre and saw it in action with its inward and outward flow of

information visually displayed, in colour, on screen, against the backdrop

of a giant map of Canada.

[335] The role and impact of Canada Post's operational functions

including the National Control Centre are, perhaps, best summed up by

Ms. Kriegler's following statements made before the Tribunal in May/June

1997:

...and in fact today, notwithstanding

decentralization and empowerment ... the

control of the operation is totally central

today and must always remain so because

the minute you let that loose, the network

starts falling apart. So it is centrally

controlled and that is the role of the Control

Centre and that is why the President and the

Chairman and the Chief Financial Officer

and the Marketing Senior VP and the

Operating Senior VP and all their senior

people sit at that table every single morning.

That is the central control.¹¹²

All the employees know that they are a

component or a part of that larger integrated

system.¹¹³

[336] Certainly, the nature of the operations of Canada Post, and

particularly the role of the National Control Centre, offer clear evidence of

Canada Post functioning as a single integrated business and treating all of

its employee groups as essential components of that entity.

[337] Ms. Kriegler also demonstrated that this was not limited to the area

of operations. The development of management functional areas of

responsibility following the creation of Canada Post as a Crown

Corporation went well beyond the critical area of operations. Ms. Kriegler

reported that the various supporting management functions were gradually

brought in from the different agencies of government and developed under

the wing of Canada Post with its own staff.

[338] Functions such as finance, personnel and staff relations, and labour

relations were transferred shortly after Crown Corporation status.

Purchasing, pay and benefits, property management and legal affairs were

transferred at later dates. Canada Post staff had to be built up, and policies,

standards and procedures had to be developed in each of the functional

areas.

[339] The 1980's also saw a growing emphasis on marketing and meeting

the customers' needs. Retail outlets and franchising arrangements evolved.

Even a Research and Development Centre emerged where new Canada

Post products, services and equipment were conceived, developed and

tested.

[340] Organizationally, there was, according to Ms. Kriegler, an Executive

Vice-President of Personnel and Labour Relations in 1983. By 1992, Ms.

Kriegler, herself, assumed policy responsibility as Senior Vice-President -

Administration, for human resources, labour relations, personnel, legal

affairs, and several other functions.

[341] Ms. Kriegler identified certain situations where a common corporate

approach was taken by Canada Post in the personnel policy field or in

areas closely related to personnel policy, or, as it is currently more

frequently called, Human Resources policy. One was the creation of the

Canada Post Learning Institute which established a common centralized

training budget by drawing particular training program funds from

individual operating units. A principal objective was to coordinate the

development and use of training programs for employees from across the

entire organization to derive a more effective return for both employees

and the employer.

[342] Another example was with respect to labour relations and collective

bargaining strategies which, inevitably, touch on wage policy. Between

bargaining sessions, Canada Post coordinated, at the senior management

level, the development of goals and strategies it would like to achieve with

its various unions. Ms. Kriegler, in her capacity as Senior Vice-President -

Administration, would take such proposed goals and strategies to the

Management Committee for consideration.

[343] There was also evidence presented by other Canada Post witnesses

who appeared before this Tribunal which indicated central corporate

direction in areas involving Compensation and Benefits, labour relations,

employee training and human resources policy. Examples are explored

below.

[344] Mr. Harry Phillips, Director - Safety, Ergonomics and Industrial

Hygiene at Canada Post headquarters, testified in August 1997. He spoke

about the Corporate Manual System which came into effect in 1989 for the

purpose of providing appropriate corporate direction in consolidating all

functional procedures. As examples, he mentioned procedures dealing

with functional areas such as operations, engineering, human resources

(personnel), and safety hazards.

[345] Mr. Ron Featherstone testified in December 1998, as Manager of

Collection and Delivery for the Northern Zone in Vancouver. He indicated

that one of his responsibilities was to establish "...long term objectives that

complement the Corporation's Operating Principles and its Corporate

Objectives...". Under cross-examination by Commission counsel, Mr.

Featherstone agreed that it is his understanding that corporate principles

and corporate objectives are intended to guide all employees of the

Corporation, and would apply to both CR and PO employees and their

respective work.¹¹⁴

[346] In April 1999, Ms. Joanne Hronowski, a Payroll Officer for the

Prairie Region (who had, on occasion, served as Acting Manager - Pay

and Benefits) testified that several manuals which had originally been

issued by the Department of Supply and Services, guided Payroll and

Benefits officers in their work. Updates to the manuals, communiqués and

informative circulars about items such as particular kinds of benefits, were

received from Head Office. "...So most of the stuff was vetted at the Head

Office level and then came through us".¹¹⁵She also testified that the then-

current payroll system used in her region was a national one. "It is driven

totally by Head Office".¹¹⁶

[347] Mr. Charles Reece, a long-time employee of Canada Post and, most

recently, Manager for the Revenue Verification Unit of the Gateway Bulk

Mail Facility at Mississauga, Ontario, when testifying in April 1999, about

his facility's capacity to train supervisors and staff, said as follows:

And at times we even had people from Head

Office come down. Usually when something

new was being introduced and it was

something that we didn't know anything

about, they would come down and do

formalized training with us.¹¹⁷

[348] In May 1999, Mr. Frank Pasacreta, Vice-President of Operations for

the B.C. Maritime Employers Association, testified before the Tribunal.

He had held this position since 1987. Prior to that, he had been Manager of

Labour Relations for Canada Post in Vancouver, responsible for the

Pacific Region from 1984 to1987. Mr. Pasacreta was asked by

Commission counsel if, during his tenure in the Pacific Region, he or his

staff had been involved in collective bargaining negotiations for

employees in his Region. His response was as follows:

...primarily the people who did the

bargaining were the folks at head office.

Some of us sat in on some of the sessions. I

sat in on a few myself, but the primary

responsibility

was

a

head

office

responsibility.¹¹⁸

[349] Ms. Karin Vogt, Compensation and Benefits Officer, at the

management level, from Burnaby, B.C., testified in September 1999 that

Superannuation, Procedures and other manuals constitute an important

source of information for those working in her area of responsibility. The

use of computer-based record systems is also critical. She confirmed that

manual up-dates and communiqués came from Head Office. She also

indicated that training sessions were sometimes handled by headquarters.

Specifically, she noted that "...last year we had someone come out from

head office and she went over the disability insurance plan".¹¹⁹

[350] Mr. Brian Wilson testified in May 1999. A long-time employee of

Canada Post, he retired in 1995. His last position was Manager -

Employee Relations, Central Region. During cross-examination by

Commission counsel, Mr. Wilson confirmed that it was his understanding

that a series of personnel policy directives existed in Canada Post, most of

which would have been

issued by the corporate Human Resources group in headquarters. These

are applicable to all employees throughout the Corporation, and include

the following:

- Official Languages Policy

- Employee Assistance Program (counselling and referral

service)

- Sensitive Information Policy

- Religious Observance, Sick Leave and Pregnancy,

Modified Duties, Sign Language

- Human Rights and Employment Equity, including

Partnering with Women, Sexual Harassment, People with

Disabilities, Visible Minorities

[351] The Tribunal concludes that the above-noted evidence demonstrates

that Canada Post, during the time frame of this Complaint, had become an

increasingly well integrated business entity with considerable corporate

level policy direction. The corporate policy direction extended to the

various regional operations of Canada Post, encompassing its many

employees across the country. Indeed, much of the evidence suggests a

very good mutual working relationship between the regions and Head

Office.

[352] Human Resources (or personnel) policy direction clearly emanated

from corporate headquarters and addressed all employees as members of

the integrated business. Equally, labour relations, including collective

bargaining negotiations which include wage policy considerations,

received corporate direction, and even direct involvement, from Head

Office.

[353] Therefore, the Tribunal finds that all employees of Canada Post have

been, as applicable, subject to the various common corporate policy

directives issued by the Corporation, including those respecting personnel

and wage policies. As a result, the Tribunal finds that, for the purposes of

section 11 of the Act, the employee groups representing the complainant

and the comparator are employed in the same establishment.

[354] Accordingly, the second element necessary to the establishment of a

prima facie case under section 11 of the Act has been met.

D. Does the comparison of the work of the Complainant group and

the Comparator group establish that the work being compared

is equal in value?

Are the jobs/positions data and the process comparing the

work of the Complainant and the Comparator groups reliable?

(i) Background

[355] All three parties have recognized the importance of undertaking job

evaluations with reliable job information and with a reliable job evaluation

plan. Additionally, the plan and the process chosen must be suitable for

"pay equity" purposes. This is not in dispute. What has to be determined,

however, is the extent of the reliability of the job information and of the

methodology employed in the evaluation of the jobs/positions involved in

this particular Complaint. To be able to come to a reasonable conclusion

concerning the value of the work performed by the complainant and the

comparator occupational groups, the evaluation process as a whole must

be reliable, on a balance of probabilities.

[356] The Commission presented, as evidence, a booklet entitled

"Implementing Pay Equity in the Federal Jurisdiction".¹²⁰Originally, this

had been a paper written by staff within the `Pay Equity Directorate' of the

Canadian Human Rights Commission. It was published as a booklet by the

Commission in March 1992. At the time of publication, the Commission

had been involved in a number of "pay equity" complaints, one of them

the Complaint before this Tribunal.

[357] The introduction to the booklet states that it had been prepared in

response to requests from employers and unions. It was meant to be advice

about how "to pursue effective pay equity programs" under the Act and its

accompanying Guidelines. The introduction states further that the points

made in the booklet "are based on the experience of Commission staff

working in pay equity, as well as comments received from employees and

unions on earlier drafts of this paper".

[358] While this booklet did not exist during the Investigation Stage

(1984-1992) of this Complaint, much of the thinking expressed therein

was evolving within the Commission during that period. It is, therefore,

helpful to refer to it to provide background to the Commission's thoughts,

by 1992, about job evaluation plans, their administration, and the

collection of job data/information. The following paragraphs are excerpts

from various sections of the booklet which are considered pertinent.

Job Evaluation Plans

Job evaluation plans are the key to

determining what constitutes "work of equal

value". They do not eliminate subjectivity

from the process of valuing work, but they

do make the process systematic and so

ensure that values are applied in a way that

is consistent. Without such a systematic

examination of job values, it is easy to

perpetuate prevailing stereotypes about the

worth of different occupations - stereotypes

that generally work to the disadvantage of

jobs done by women.

Job evaluation plans may be developed

especially for an organization or they may

be based on a standard plan purchased from

a consulting firm. These latter are "off-the-

shelf" and have established criteria for

evaluations, while others use computers to

generate criteria based on data gathered

within the organization. All plans eventually

rely on a set of standard factors and

weightings against which different jobs are

rated.

In order to be an acceptable instrument for

implementing pay equity, a plan must meet a

number of tests:

- it must include the four value

criteria set out in the Act and

elaborated upon in the Guidelines:

skill,

effort,

responsibility

and

working conditions;

- it must measure value in a way that

allows ready comparison between

jobs - usually this means adopting a

point-factor rating system - other

types of systems may be acceptable

in

certain

circumstances,

for

example, paired comparisons in

small organizations; and

- it must be free of gender bias:

Gender bias refers to any factor or

behaviour

which,

even

unintentionally, unfairly favours one

sex over the other. In the context of

pay equity studies, gender bias can

affect both the design of job

evaluation

plans

and

their

application.

Because pay equity is premised on the

assumption that the worth of different

positions across an organization should be

compared, use of a single plan to evaluate

all jobs is essential.

With respect to the plans themselves:

- factor definitions should be generic,

relying as little as possible on

illustrative job descriptions that

could produce bias - this helps

minimize

raters'

tendency

to

stereotype tasks or functions as male

or female;

- the factors used must incorporate

all significant elements of all the

work being evaluated, including

those aspects of female-dominated

jobs traditionally overlooked in job

evaluation;

- weightings given to factors typical

of predominantly male work and

predominantly female work should

be equitable; and

- computerized plans should be

programmed such that important

elements of traditionally female

work are not left out of the

automated development of factors

and

weighting.

Typically,

this

requires especially careful design of

questionnaires to ensure that key

information is not missed.

With respect to the administration of plans:

- women and men should have

similar

representation

on

all

committees;

- participants should be drawn from

all levels of the organization; and

- it must be made clear to

participants that during the pay

equity process, all are equal - those

from the lower ranks of an

organization should feel comfortable

expressing their own views and

challenging the opinions of others.

Collection of Job Information

With respect to the collection of job

information:

- job descriptions should not be used

on their own or treated as the

primary source of data, since they

often replicate prevailing stereotypes

and are not always an up-to-date,

accurate reflection of work done;

- instead, sources of information

which allow the incumbent himself

or herself to outline work duties

should be employed - in most cases,

this involves use of a questionnaire;

- the questionnaire must be carefully

designed

and

tested,

possibly

through a pilot study to ensure that it

captures all significant aspects of

male- and female-dominated jobs

and is appropriate to the structure of

the job evaluation plan;

- it must be made clear to all

involved

that the questionnaire

should reflect actual work being

done, not theoretical duties;

- supervisors should be given an

opportunity to review completed

questionnaires

and

add

any

comments or reservations on an

attached sheet; and

- where questionnaires do not seem

to offer sufficient information, they

may be followed up with face-to-

face, structured interviews between

evaluators and incumbents.

Questionnaires can be open, closed or

mixed, depending on the requirements of the

plan, the preferences of those running the

study, and the size of the organization. In

smaller organizations, it may not be possible

to carry out the testing needed to develop a

reliable closed questionnaire. However,

open questionnaires must be used with care.

Efforts must be made to ensure that men and

women use similar language to explain their

work. Thus, when open questions are

chosen, instructions should be included

which encourage all those filling out the

questionnaire to use accurate terms in

describing their job functions. Examples

showing how different sorts of duties could

best be described may be appropriate.

Joint Employer-Employee Cooperation

Although the legal onus for ensuring pay

equity is on the employer, the Commission

believes that pay equity programs are most

successful when based on full cooperation

between employer and employees ... Both

sides must contribute to the process.

Employers provide the funding for studies

and any necessary adjustments, as well as

the informed perspective of managers on

what different jobs entail. Employees

provide the key job information and support

for any changes to prevailing relativities that

may result. Both employers and employees

have input into the definition of job worth as

reflected in the job evaluation plan and its

application.

Joint studies generally begin with an

agreement between the employer and

bargaining agent(s) which outlines the

objectives of the initiative and its basic

structure. A joint steering committee may be

set up to choose an appropriate job

evaluation

plan,

perform

benchmark

evaluations,

establish

evaluation

committees, work out other details of the

study and guide it through to a successful

conclusion. Most of the actual evaluations

are carried out by one or more evaluation

committees, which, we suggest, should

include a comparable number of women and

men from all levels of the organization. Any

wage adjustments found to be necessary as a

result of the evaluations must be agreed to

by both sides.

[359] The Tribunal finds that the aforementioned points described in the

Commission's booklet constitute a general guide and benchmark model for

collecting reliable information and for processing that information in a

manner that should, given an acceptable job evaluation plan and

competent evaluators, result in the determination of reliable values of the

work being assessed and compared in a "pay equity" study.

[360] These points made by the Commission are the very points made by

such experts as Dr. Pat Armstrong, accepted by the Tribunal as an expert

in women's work, women's wages, and the sociology of equal pay

legislation, who presented evidence to the Tribunal concerning, amongst

other things, the history and development of the concept of "pay equity",

and the methodologies used to implement that concept.

[361] It should be noted, however, that the points made in the

Commission's booklet are predicated upon the assumption that the "pay

equity" process will be one which involves an employer and its employees

in a working partnership. "Pay equity" will be the common goal of that

partnership. The booklet, and its advice concerning "pay equity" studies,

does not envision a process which is evolving in a litigious context.

(ii) Issues

[362] Consequently, the issues which will be addressed are as follows:

1. What job evaluation system, or plan, was used to undertake the

evaluation of the CR and PO jobs/positions, and how

reliable was it?

2. What process was used and how reliable was it in analyzing the

collected job data/information for purposes of assigning

values to the CR and PO jobs/positions considered?

3. What job data/information was collected, and from what

sources, and how reliable was it?

4. What were the resulting values attributed to the various CR and

PO jobs/positions, and how reliable were they?

[363] These issues can best be considered by distinguishing between two

periods of time:

First, the duration of the Investigation Stage of the Complaint -

1984 to 1992, when the Commission was coordinating the

collection of job data and performing job evaluations, and

Second, the period after the establishment of the Tribunal in 1992,

when the Alliance had engaged a three-person team of professional

job evaluators to review the job data already collected by the

Commission and augment it where possible, and to undertake

independent evaluations of the jobs of the complainant and

comparator occupational groups. The professional team was active

in mid-1993 and late 1994, and re-visited their work in July 1997

and June 2000.

E. Review of Job Information Collected and Methodology Used:

Investigation Stage

[364] A joint employer/employee follow-up study of the Complaint before

this Tribunal was not undertaken. There was, therefore, no opportunity to

establish a joint steering committee to co-ordinate the selection of a job

evaluation plan, the gathering of job data/information, and the evaluation

of jobs. Of necessity, the Commission took the lead, through its

Investigation Stage, in coordinating matters relating to complaint follow-

up with both the Complainant and the Respondent.

[365] While a joint employer/employee study would have been the most

suitable way of addressing the Complaint, the Tribunal finds that the lack

of such a study, for whatever reasons, need not pre-empt addressing the

Complaint by other approaches. The Complaint was made pursuant to

section 11 of the Act; the Commission's mandate is to investigate each

complaint made to it under the Act. When the parties cannot be moved to a

negotiated settlement, the Commission's job is to investigate a complaint

to the best of its ability. For example, while the job evaluation plan used to

determine the value of particular job work should, normally, be a plan

already in use by the employer, in its absence an off-the-shelf evaluation

plan would be acceptable if it is free of gender-bias and capable of

generating a reliable result.

(i) Commission's 1987 Job Evaluations

[366] In this Complaint, as already noted in paragraph [17] the first job

evaluations were conducted by Commission staff in 1987 based on data

collected in 1986. Those evaluations involved what the Commission

described as a random sample of 194 CR positions. The sampled CR

positions were evaluated using Canada Post's System One job evaluation

plan. No PO positions were evaluated in 1987.

[367] System One was a plan that had been categorized as having "Hay-

like factors". It did, however, contain some variations from the standard

"Hay Method" evaluation plan, most especially with respect to the

working conditions factor. As the Commission investigated the Complaint,

System One was still under joint development by Canada Post and the

Alliance. It was intended for use by employees represented by Alliance

bargaining units throughout Canada Post. As Canada Post pointed out,

System One would, therefore, not be suitable for the eventual evaluation

of PO jobs, since their incumbents were represented by other bargaining

units. Moreover, the Alliance advised against its use even for CR job

evaluation purposes at this incomplete stage of development.

[368] The principal sources of job information for the evaluation of the

194 CR positions in 1987 were successive lists of employee print-outs

furnished by Canada Post and a Job Fact Sheet - a detailed Questionnaire -

that had been designed by the Commission for completion by employees

sampled from those lists. Upon its completion, with the requisite

attachment of the relevant job description and organization chart by each

employee respondent, the Job Fact Sheet was to be signed off by the

appropriate supervisor and Division Manager. The questionnaire, or Job

Fact Sheet, was assembled in the first half of 1986. During the summer of

that year, it was completed by the CR employees who had been randomly

chosen to be a representative sample of CR positions.

[369] The Commission had decided that such a sampling of CR

incumbents would be necessary since a full census of the total CR

population of about 2,300 would be unmanageable in terms of time and

money. A stratified random sample was developed in 1986 by a senior

official of the Commission. It consisted, initially, of 246 names of CR

incumbents plus 33 "alternates" for a total of 279. Subsequently, some

names were dropped and others were added. The actual number involved

is difficult to verify from the available documentation. The final proposed

CR sample may have been as high as 355, including "alternates". What is

clear, however, is that the Commission received 194 completed and

useable Job Fact Sheets from CR incumbents which became the basis for

the 1987 CR evaluation.

[370] Meanwhile, an Interview Guide had been developed by the

Commission with input from the Alliance and Canada Post. Its purpose

was to guide the Commission's investigator during follow-up interviews

which were to be conducted with the incumbents, to clarify answers given

on the Job Fact Sheet. Space was provided on the form for the investigator

to record comments made by the incumbent and the accompanying

supervisor. The form was not seen by incumbents. It was intended that,

like the Job Fact Sheet, the Interview Guide would be used with both CR

and PO employees. In fact, however, both were used only to elicit

information from the CRs. All interviews were completed by December

1986.

[371] The Job Fact Sheet was used as the Commission's primary source of

job information and the other materials served as secondary and tertiary

sources.

How were the job evaluations of the sample of 194 CR positions

actually conducted in 1987?

[372] An `evaluation team' comprised of two Commission officers was

established to conduct the evaluations. These evaluations were done from

April to September 1987. The team was supplemented by one of three

additional officers, assigned progressively based upon which officer had

interviewed the CR incumbent of the position being evaluated. The team,

of mixed gender, used the System One plan, drawing data from the 1986

Job Fact Sheets, job descriptions, organization charts, and the Interview

Guides.

[373] Mr. Paul Durber, Director - Pay Equity of the Commission,

indicated in his evidence before this Tribunal in June 1993, that he and the

senior investigator of the Complaint had decided, about mid-1991, to

discard the 1987 CR evaluations and to subject the 1986 Job Fact Sheet

information to another job evaluation assessment. Most of the

Commission's officers who had served on the 1987 evaluation committee

were no longer on staff, so a new group was struck. Hence, the 1987 CR

evaluation results were not used in the Commission's final investigation

process.

(ii) Commission's 1991 Job Evaluations

[374] A new set of job evaluations was undertaken by the Commission

staff in 1991 for use in its Final Investigation Stage. These involved 93 CR

positions (reduced by the Commission from the original 194) and 10

`generic' PO jobs. The possible use of the evolving System One job

evaluation plan was considered by the Commission but discarded in

favour of the off-the-shelf Hay XYZ Job Evaluation Plan.

How were the job evaluations of the sample of 93 CR positions and 10

"generic" PO jobs actually conducted in 1991?

[375] The Commission evaluation work was now to be a comparison

between the sampled CR positions and 10 `generic' PO jobs, the creation

of which had resulted, essentially, from the inability of the Commission

and Canada Post to agree on sample sizes and data collection instruments

for the comparator PO positions. The Commission had consulted Statistics

Canada and received its recommendation concerning stratified random

sampling of the PO community, comprising internal, external and

supervisory sub-groups, and had planned to proceed using the Job Fact

Sheet questionnaire. Canada Post, however, would not allow PO

incumbents to complete the Job Fact Sheet on company time. The union

representing the PO's would not allow their membership to participate in

"after hours" unpaid work. As a result, the Commission opted to use the

information made available to them by Canada Post, and, using that

information, created a grouping of `generic' PO job categories - covering

both internal and external operational functions, but excluding the PO

supervisors. The 10 `generic' jobs were, therefore, not actual positions but

represented the ten mostly homogeneous jobs done by PO incumbents.

[376] The creation of the 10 `generic' PO jobs involved the dropping, by

the Commission, of the PO supervisors subgroup (PO-SUP). This was a

significant action as the PO-SUP subgroup represented 6 different levels

of supervision with a large number of job titles. Many of the titles

occurred at more than one level, making it difficult to reconcile them into

`job specifications' without a sampling of incumbents and use of a Job

Fact Sheet, or questionnaire. With the Commission's decision to move to

the 10 `generic' PO jobs, it was considered too onerous and delaying to

sort out the PO-SUP situation with Canada Post. While the Alliance was

consulted, Canada Post was only advised of this decision. One important

result was an inconsistency with the CR sample. That sample included

supervisors at the CR-5 level.

[377] Commission staff received a short period of training in the use of the

standard XYZ Hay Plan from a senior manager at Hay Canada, Mr. Roger

Childerhose. After the training period, the Commission's senior

investigator and one other senior officer began evaluating, individually, 16

positions which they pronounced to be Benchmark positions (10 CR

positions and 6 `generic' PO jobs). This new evaluation work began in

July 1991. They then jointly reviewed and "sore-thumbed" all 16, and

periodically consulted with the Commission's Director - Pay Equity,

Mr. Paul Durber. The two officers continued to re-evaluate CR-2's and

CR-3's, intending to re-evaluate all of the original sample of 194 CR's and

to evaluate the 10 PO "generics". The senior investigator was called off

the job to handle other priorities, and the second officer continued on her

own. She was subsequently joined by another officer plus an outside

consultant. All three then rated batches of CR and `generic' PO jobs

individually, followed by periodic informal joint review and "sore-

thumbing". This "team" was of mixed gender.

[378] By September 1991, partway through the re-evaluations of the CR's,

the officer-in-charge was asked to reduce the original sample of 194 CR's

to a more workable number. After studying this situation, she proposed a

revised level of 93 which was accepted by the Commission as the new

sample.

[379] The Commission's evaluators used the off-the-shelf Hay XYZ

Evaluation Plan for both the 93 CR and the 10 PO positions/jobs. It was

this Plan which was the basis for their training session with the Hay

organization. The sources of job information for the CR's was essentially

the same as used in the 1987 evaluations - the relevant 1986 Job Fact

Sheets and supporting job descriptions, organization charts and Interview

Guides. For the `generic' PO jobs, data was drawn from `job

specifications', which the Commission had compiled from information

provided by Canada Post management, in 1990 and 1991, as well as from

job descriptions and job profiles, also furnished by Canada Post.

[380] As with the 1987 evaluations, the Commission used the completed

Job Fact Sheet as its primary source of job information for the 93 CR

evaluations. For the PO evaluations, the `job specifications' were regarded

as the primary source.

[381] It was, therefore, upon these evaluations of 93 CR positions and 10

`generic' PO jobs, which were completed by November 1991, that the

Commission based its investigation findings. These, in turn, led to the

conclusions of the Commission's Final Investigation Report of

January 1992, including the recommendation that the Complaint be sent to

the Canadian Human Rights Tribunal for a hearing.

F. Review Of Job Information Collected And Methodology Used:

Tribunal Stage

(i) The Professional Team

[382] Early in 1993, with the Tribunal's proceedings well underway, the

Alliance engaged a three-person team of professional job evaluators

(hereinafter called the `Professional Team') to provide an expert review of

the Commission's 1991 evaluations of 93 CR positions and 10 `generic'

PO jobs, and to undertake independent evaluations. The Professional

Team was comprised of the following persons:

Dr. Bernard Ingster has engaged in a consulting practice in human

resources matters since 1967, including job classification and

evaluation. During an early part of his career, he served as Director

of Services, Hay Associates, Philadelphia, and between 1971 and

1977 he had an independent affiliation with Hay while working

with clients. Since 1977, Dr. Ingster has operated as an

independent consultant in fields such as organization and job

structure analysis and design, compensation systems, performance

assessment practices and job evaluation plan development. His

clients have ranged from industrial companies to public health

facilities to educational institutions and law firms. Dr. Ingster

earned his doctorate at Rutgers University after acquiring degrees

at LaSalle College (Philadelphia) and Temple University.

Dr. Martin G. Wolf obtained his Bachelor of Science and Master

of Science degrees in 1958 and 1959 respectively from the

University of North Texas, majoring in Psychology. He earned his

Ph.D. in 1964 from Case Western Reserve University, Cleveland,

primarily in clinical psychology with a minor in industrial

psychology. Dr. Wolf began his career with the IBM Corporation

in the field of personnel administration and then spent time in the

late 1960's with a management consulting firm dealing with the

improvement of employee training programs and human resources

policies and procedures. He subsequently spent time as a

Management Psychologist analysing knowledge, skills and

abilities requirements of positions. In the early 1970's he became

self employed as a management consultant in Cleveland

specializing in sales training programs, executive searches and

computerized tracking systems. Dr. Wolf joined Hay Management

Consultants in 1974 serving at their Pittsburgh facility until 1981,

and then at their Philadelphia site until 1989. During his Hay

career he worked extensively with a variety of clients in

developing job evaluation, performance enhancement and

compensation systems. His last position at Hay was as Corporate

Director, Technology Development. Dr. Wolf founded his own

consulting operation in 1989 - MAS Management Advisory

Services Inc. and was still active in that organization when he

appeared before the Tribunal. Areas of emphasis for his company

have been the development and implementation of computer-

supported job evaluation, salary administration and performance

enhancement systems as well as conducting change management

projects. Dr. Wolf appeared before the Tribunal as spokesperson

for the Professional Team and testified that he had spent 30 years

in job evaluation including about 20 years working with the Hay

process. He had served as a "correlator" at Hay - a "keeper of the

flame" role in maintaining the integrity of the Hay system. He

estimated that he had evaluated "slightly upwards of 10,000" jobs

using the Hay process, including office clerical, and payroll

systems jobs, and, in his early days, some blue collar jobs. He was

qualified by the Tribunal as an expert in Hay-based job

evaluation and Hay-based compensation.

Ms. Judith Davidson-Palmer, President, EEO Associates,

consultants on equity issues, including organizational development

and change, and pay and employment equity issues. From 1982 to

1985, Ms. Davidson-Palmer served as National Director -

Management and Organization Development, Canada Post

Corporation, at its Head Office. She is a graduate of Mount Allison

University and obtained her Master of Arts in Psychology from

Queen's University.

[383] The Alliance's evidence indicated that, before the Professional Team

came together, Dr. Ingster had spent a week with Alliance representatives

reviewing the job content materials that the Commission had used for its

evaluations. This included copies of completed Job Fact Sheets, position

descriptions and Interview Guides. Dr. Ingster concluded that the available

documentation could be used for job evaluation purposes by a committee

of professionals.

[384] Dr. Ingster was asked to provide "an expert review of the

evaluations of 93 Clerical and Regulatory positions and 10 PO jobs that

had been developed by the Canadian Human Rights Commission".¹²¹The

Professional Team, as a whole, was then asked to "apply the Hay Method

to the job content in accordance with the `best practices' of senior level

Hay consultants considered to be expert in the use of the process".¹²²

(ii) Phases 1 and 2

[385] The Team undertook its task in two phases, as follows:

Phase 1 involved the re-evaluation of the Commission's 1991

sample of 93 CR positions and of the 10 `generic' PO jobs; this

was tackled in May/June 1993.

Phase 2 involved the evaluation of a further 101 CR positions

which was undertaken in November/December 1994. This number

represented the remaining balance from the Commission's original

1987 sample of 194 (194 less 93). Subsequently, 4 positions for

which the Professional Team felt there was inadequate data were

deleted for a revised total of 97 additional CR positions, and a

grand total of 190 CR positions evaluated.

[386] The Professional Team called the job evaluation methodology it

employed in undertaking its evaluations the Hay factor comparison

approach or "the classic Hay Standard". Dr. Ingster indicated that this was

an application of the Hay Method "in strict accord with its factor

comparison origins".¹²³Dr. Wolf defined this as the approach that was

originally designed by the Hay organization where one assesses the

content of each job against the structure of factors provided in the Hay

Plan as know-how, problem solving, accountability and working

conditions. One compares progressively each job, factor-by-factor, to the

next and subsequent jobs. This methodology has also been referred to as a

job-to-job comparison of total job content on a factor-by-factor basis.

Since the Team considered the working conditions factor to be the least

developed of the Hay Plan factors, it created a more elaborate working

conditions guide chart for use in this set of evaluations.

[387] What were the principal sources of job information for the

Professional Team's evaluations in each of Phase 1 and Phase 2? The

Alliance supplied the Professional Team with the following materials from

which to draw information:

Phase 1- 93 CR's (May/June 1993)

- the relevant 1986 completed Job Fact Sheets

- job descriptions attached to the 1986 Job Fact Sheets

- organization charts attached to the 1986 Job Fact Sheets

- the relevant 1986 completed Interview Guides

- the Commission's Rationale Statements from its 1991

evaluations, which was usually a single-sheet summary

listing of the principal duties and features of each position

evaluated, factor by factor, and of the evaluators' ratings

and scores, and reasoning behind them, also by factor

- the Professional Team also had access to their own notes, created

during telephone interviews which the Team had made in

May 1993 with CR incumbents.

Phase 1 - 10 PO `Generics' (May/June 1993)

- `job specifications' compiled by the Commission based on data

obtained from Canada Post in 1990 and 1991

- job descriptions obtained by the Commission from Canada Post

in 1990 and 1991

- profiles describing characteristics of a number of PO jobs

obtained by the Commission from Canada Post

- behavioural dimensions obtained by the Commission from

Canada Post

- the Commission's Rationale Statements from its 1991 evaluations

- a variety of Canada Post manuals, handbooks, forms, and training

materials.

Phase 2 - 101 CR's (November/December 1994)

- the relevant 1986 completed Job Fact Sheets

- job descriptions attached to the 1986 Job Fact Sheets

- organization charts attached to the 1986 Job Fact Sheets

- the relevant 1986 completed Interview Guides

- the Professional Team also used their evaluations of the 93 CR

positions in Phase 1 to serve as Reference Positions in

evaluating the 101 (eventually 97) CR positions in Phase 2,

because of the overlap in position content

- the Team also had access to their own notes, created during

telephone interviews with incumbents, made by the Team

in September 1994.

[388] The primary source of job information for the CR's was the position

descriptions. These were accepted as received. The primary source of job

information for the `generic' PO jobs was the `job specification' created by

the Commission for each of the 10 `generic' PO jobs.

(iii) How were the Job Evaluations conducted by the Professional

Team?

[389] Phase 1: The Professional Team began by meeting in Ottawa in

May 1993 to conduct telephone interviews with the 93 CR incumbents of

Phase 1. All three Team members participated in the interviews by

conference call, with one member taking the lead in conducting and

preparing notes on the interview. Dr. Ingster had allocated the list of 93

incumbents three-ways, so each Team member took the lead for one-third

of the calls.

[390] A major purpose of these telephone interviews was to seek

additional information about the work environment of the position

occupied by each interviewee. This was done because, in the opinion of

the Team, the working conditions factor was the least well-documented

aspect of the 1986 Job Fact Sheet and other materials the Team had at

hand. A second reason was to enable Team members to ask questions they

might have from their earlier scanning of the job materials. Interviewees

had been alerted to the calls and had before them copies of the relevant

Job Fact Sheet and supporting documents. Each was being asked about his

or her position as it existed in 1986.

[391] All CR incumbents reached by telephone were interviewed. For

some who could not be reached, employees who had occupied the same

position in the past, or employees currently occupying a related position

might stand-in for the actual 1986 incumbent. Occasionally, the

appropriate supervisor might respond. Actual numbers of such stand-ins

are not known. Of the total of 93 possible telephone interviews, however,

it is known that 59 were completed.

[392] Following the Phase 1 telephone interviews, the Professional Team

met, in May/June 1993, in Philadelphia, to undertake the evaluation of the

93 CR positions and the 10 PO `generic' jobs. Dr. Ingster served as chair.

The Team set a target of evaluating between 10 and 11 jobs per day over a

10-day period. Each member of the Team had received the job information

materials earlier.

[393] The assembled members began by arranging the job information in

ascending order of the total job evaluation points that had been assigned

by the Commission's evaluation team in their evaluations of 93 CR

positions and 10 `generic' PO jobs in 1991; this information came from the

Commission's Rationale Statement. An identifying number from 1 to 103

was then assigned to this resulting order of positions/jobs.

[394] Normally, each job was discussed before starting the evaluation

process. This was done to clarify any questions Team members might

have had or to highlight a particular aspect of the job concerned. The

Team then proceeded to assess the job content and to assign a rating for

each Hay factor and, progressively, to compare those ratings on a job-to-

job basis. In most cases, there was eventually unanimity of the three

members in reaching agreement on individual factor ratings. As a

minimum, a consensus of two could prevail but never by just a simple

vote, only after discussion.

[395] At the start of each day, the members reviewed their decisions and

ratings of the previous day, referring to their respective notes. This was to

ensure accuracy in their joint recording of the previous day's work. Dr.

Wolf did not make notes, but inputted the factor and sub-factor ratings

into the computer, during the rating process.

[396] Phase 2: The three Team members attempted to conduct telephone

interviews with the 97 CR incumbents of Phase 2. This was done in a

similar manner to that described above for Phase 1. These interview

contacts were attempted from Ottawa in September 1994. Of the total of

97 possible telephone interviews, 55 were completed.

[397] Following the Phase 2 telephone interviews, the Team met in

November/December 1994, in Philadelphia, to undertake the evaluation of

the 97 CR positions. Again, Dr. Ingster served as chair. The Team set a

target to evaluate about 10 jobs per day over a 10-day period; it actually

took 9 days. The same evaluation process as described above for Phase 1

was followed by the Team, with one difference - the full set of 93

evaluated positions of Phase 1 was used as Reference Positions. A

`Reference Position' has important job content characteristics which are

useful for comparison with an unevaluated position. Given the similarity

in positions content between the Phase 1 and Phase 2 sampled CR

positions, the Phase 1 positions made suitable Reference Positions for the

Phase 2 evaluations.

[398] It is usual practice for those completing job evaluations to prepare,

for record purposes, a statement of the reasoning that went into the

Evaluation Plan used, the process followed, and the ratings reached,

factor-by-factor. In the case of the Commission, this was achieved through

its "Rationale Statement". In the case of the Professional Team, it was by

means of an "Audit Trail". An Audit Trail was included in the

Professional Team's Report to the Alliance covering its evaluations in

Phases 1 and 2.

(iv) Two Additional Reviews

[399] The Professional Team was asked to participate in two additional

exercises with possible impact on its earlier evaluations (Phases 1 and 2).

The first, which occurred in June 1997, was to review a number of newly

found job documents. These documents had been misplaced when the

Commission moved its office space; they were found in the spring of

1997. The found documents included items such as several previously

missing job descriptions, more legible photocopies, and clarification of

French translations. The documentation affected 89 of the 190 CR

positions which had been evaluated in Phases 1 and 2.

[400] The question to be answered by the Team was whether the newly

found material would have had any effect on the earlier evaluations had it

been available when those evaluations were being done. It was addressed

by only one Team member, Dr. Wolf. His conclusion was that, with one

possible minor exception, nothing significant had been added to the

original job information. The new material simply served to confirm the

Team's previous evaluation results.

[401] The second exercise was completed after the Alliance, in June 2000,

requested that the Professional Team review the evidence of a number of

Canada Post witnesses who had appeared before the Tribunal since Dr.

Wolf's last testimony. This involved about 4,000 pages of written material,

including transcripts for about 70 days of testimony and cross-

examination, and supporting documents, manuals and related material

regarding job content. These documents dealt with the PO jobs, primarily.

The Alliance had requested this review to determine what impact the

additional evidence presented by Canada Post might have had on the

Team's 1993 and 1994 evaluations of CR positions and PO jobs.

[402] The Professional Team's Report concerning the Respondent's

voluminous evidence was entered as Reply evidence. Before the group

convened to consider the Respondent's evidence, Dr. Wolf read through

the transcripts of testimony from all 70 days and through the supporting

material. The Team gave him the task to assess the new material's

potential usefulness for job evaluation purposes. He screened on the basis

of three criteria - relevance, appropriateness and duplication. This resulted

in some 36 days of testimony evidence and associated material on which

he directed his two colleagues to focus. The three Team members then met

and jointly conducted their review over a 5-day period.

[403] After a careful study of the lengthy screened material, it became

clear to the Team that the actual work performed by an incumbent of any

one of the 10 `generic' PO jobs could vary widely depending on location.

The Team determined that the evidence demonstrated the following:

- "the use of a single generic description for each of these 10 jobs

results in a document that probably describes accurately few, if

any, of the many incumbents of these multi-faceted jobs", and

- "all of the 10 PO jobs appear to reflect an amalgam of sub-jobs,

some of which might fall at different Hay evaluation levels, based

on the actual task mix at various locations".¹²⁴

[404] Faced with this finding, the Team indicated that, in fairness to the

job evaluation process, it chose to give the benefit of the doubt to the PO

jobs and to assess each based on what appeared to be the highest level of

tasks commonly performed by an incumbent of that job. The Team

examined all 10 `generic' jobs and compared them against similarly

levelled CR positions using the Hay factor comparison approach.

Members asked themselves whether, as a result of the additional evidence,

they now had a different understanding of the jobs than what they had

originally.

[405] The Team found that much of the new information provided by

Canada Post's witnesses was not relevant to job evaluation. In particular,

the Team concluded that none of its original CR position evaluations were

affected by the additional evidence. In fact, Dr. Wolf testified that he did

not revisit, during the June 2000 exercise, the 1993/1994 CR evaluations,

having accepted them as a given.¹²⁵The Team did, however, acknowledge

that the new evidence confirmed that the range of variation in individual

incumbent duties for the 10 `generic' PO jobs was much greater than the

Team had originally understood it to be.

[406] Few changes in total evaluation scores resulted from this review. Of

the 10 PO jobs, five were completely unchanged and three had changes of

three points or less. Two jobs, however, changed significantly, one of

which increased and one of which decreased in total evaluation value.

G. Reliability of Job Information Collected, Methodology Used and

Job Evaluations conducted by the Commission and the

Professional Team: - Positions of the Professional Team,

Canada Post, the Alliance and the Commission

(i) The Standard of Reliability

[407] Having focused on how the job information was collected,

processed and used for evaluation purposes, it is now appropriate to

consider the reliability of the job information, the methodology and the

evaluations performed by both the Commission and the Professional

Team.

[408] What standard of reliability should the Tribunal use? While all three

parties in this Complaint have agreed that they are not seeking perfection,

per se, it is necessary to determine what is an acceptable reliability

standard in the context of this particular "pay equity" situation.

[409] The decision of the tribunal in the Treasury Board case, which rules

out any absolute standard of correctness, is of assistance in this regard:

What is apparent from these comments and

from the nature of the subject is that equal

pay for work of equal value is a goal to be

striven for which cannot be measured

precisely and which ought not to be

subjected to any absolute standard of

correctness. Moreover, gender neutrality in

an absolute sense is probably unattainable in

an imperfect world and one should therefore

be satisfied with reasonably accurate results

based on what is, according to one's good

sense, a fair and equitable resolution of any

discriminatory

differentiation

between

wages paid to males and wages paid to

females for doing work of equal value.¹²⁶

[410] Also, Mr. Justice Evans' decision of October 1999 supports a

flexible case-by-case approach to the determination of how the concept of

equal pay for work of equal value is to be effected, as follows:

In short, the correct interpretation of section

11 in my opinion is that Parliament intended

to confer on the agencies created to

administer the Act a margin of appreciation

in determining on a case-by-case basis, and

with the assistance of technical expertise

available, how the statutorily endorsed

principle of equal pay for work of equal

value is to be given effect in any given

employment setting.¹²⁷

[411] Finally, Mr. Justice Hugessen's decision of June 1996 in the

Department of National Defence case, reiterates the civil burden of proof

required of a complainant as being the balance of probabilities which is

"...a long way from certainty...":

The burden which a complainant before a

Human Rights Tribunal must carry cannot,

in my opinion, be placed any higher than the

ordinary civil burden of the balance of

probabilities. That is a long way from

certainty and simply means that the

complainant must show that his position is

more likely than not.¹²⁸

[412] These rulings support a call for a standard of reasonableness, there

being no such thing as absolute reliability. The application of such a

standard will depend very much on the context of the situation under

examination. The issue is, then, given all the circumstances of the case

before this Tribunal, is it more likely than not that the job information,

from its various sources, the evaluation system and the process employed,

and the resulting evaluations are, despite any weaknesses, sufficiently

adequate to enable a fair and reasonable conclusion to be reached, as to

whether or not, under section 11 of the Act, there were differences in

wages for work of equal value, between the complainant and comparator

employees concerned?

[413] Focusing specifically on the job information and data used in this

case, a further means of determining whether they are reasonably reliable

is to test them against a generally accepted practice of the job evaluation

industry. That is the industry's objective of seeking, to the extent possible,

accuracy, consistency and completeness in job information being used for

job evaluation purposes. Accuracy calls for the data to be correct.

Consistency recognizes the need for the same kind of information and

generally the same level of detail and quality across all jobs being

evaluated. Completeness relates to ensuring that important information

about a job is not missed and that the collected data is compatible with the

job evaluation plan being used.

[414] A very important factor affecting the Tribunal's judgement about the

reasonable reliability of the job information collected, the methodology

employed and the evaluation of jobs/positions, is the evidence provided by

a number of expert witnesses. Equally important, is the fact that several of

these expert witnesses significantly disagreed with, and even sometimes

contradicted, each other.

[415] Under these circumstances, the Tribunal found it helpful to examine

the evidence of these particular expert witnesses in a very systematic

manner to ensure consistency and fairness of treatment.

[416] In compiling the elements that should comprise the systematic

approach, the Tribunal was influenced by two recent Court decisions.

[417] The first is a reference, in a Federal Court of Appeal decision dated

April 5, 2004, to a discussion of the notion of witness credibility in the

reasons offered by O'Halloran, J.A. in Faryna v. Chorny, [1952] 2 D.L.R.

354 at 356-357 (B.C.C.A.):

...the real test of the truth of the story of a

witness in such a case must be its harmony

with the preponderance of the probabilities

which a practical and informed person

would readily recognize as reasonable in

that place and in those conditions.¹²⁹

[418] The second is a reference in a Federal Court decision dated April 14,

2004, to a discussion of the duties and responsibilities of an expert witness

in the reasons offered by Cresswell, J. in National Justice Compania

Riviera S.A. v. Prudential Assurance Co. Ltd. ("the Ikarian Reefer"),

[1993] 2 Lloyd's Rep. 68 at 81:

...expert evidence presented to the Court

should be, and should be seen to be, an

independent

product

of the

expert

uninfluenced as to form or content by the

exigencies of litigation. The expert witness

should provide independent assistance to the

Court by way of objective unbiased opinion

in relation to matters within his or her

expertise.¹³⁰

[419] The systematic approach that the Tribunal applied in examining the

evidence of the expert witnesses concerned was as follows:

1. What is the expert qualified to give evidence about, and what

Party is calling the expert witness?

2. What is the expert's mandate?

3. What is the extent of the expert's knowledge and experience, and

his or her standing in the field of expertise concerned?

4. How did the expert fulfill his or her mandate?

5. What conclusions did the expert reach?

6. How did the expert present his or her conclusions to the

Tribunal?

7. What weight does the Tribunal give to the conclusions of the

expert?

[420] It is, therefore, time to test for this standard of reasonableness of

reliability with the job evaluation undertakings of the Commission and the

Professional Team.

(ii) Commission's 1987 Job Evaluations

[421] While the 1987 CR evaluation results were not used in the

Commission's Final Investigation process, it is, nonetheless, particularly

pertinent to test the reliability of the 1986 instruments and resulting job

information, since much of that information and data were employed in

the succeeding evaluations.

[422] The Job Fact Sheet or Questionnaire, while completed in 1986 by

only a sampling of CR incumbents, was originally planned for use by both

CR and PO employees. It was clearly intended to be the most important

source of up-to-date job information. In fact, the Commission chose it as

its primary source for its 1987 CR evaluations. Yet, according to Canada

Post, the design and content of the Job Fact Sheet were seriously flawed.

Canada Post indicated both in its submissions to the Tribunal and to the

Commission, at the time, that the Job Fact Sheet was self-evaluative in

design, a feature considered quite unacceptable for job evaluation

purposes. When it made its objections to the Commission, Canada Post

proposed major changes and even offered its own design but the

Commission declined both options, and chose to carry on with its own

format. Moreover, the Job Fact Sheet was designed to relate to the System

One evaluation scheme. This evaluation scheme was neither fully

developed nor was its use entirely acceptable, at the time, to the Alliance

and to Canada Post.

[423] The Job Fact Sheet did not meet the Commission's subsequent

model which stated that a Questionnaire "...must be carefully designed and

tested, possibly through a pilot study...".¹³¹The Job Fact Sheet was

designed and developed by a senior Commission employee under pressure

of time and human resources constraints, and without professional

assistance. The formulation of pertinent questions and their order and style

of presentation in a crucial survey document to be presented to employees

working in a large, busy and dynamic organization with a long history of

sensitive labour relations, such as Canada Post, required appropriate

professional expertise. The Job Fact Sheet was not the product of such

expertise.

[424] Certainly, the Job Fact Sheet was neither designed nor tested by an

independent, professional body. All four persons who `tested' the

questionnaire were clerical/secretarial workers. No PO-type workers were

involved. The results of the test were checked by the lead investigator,

who found that the four involved in the testing of the questionnaire had

frequently over-rated their respective jobs on a number of factors. This led

to some changes in the document but the revised final version was never

re-tested.

[425] Two other instruments, considered important job information

sources, were job descriptions and organization charts, both of which were

to be attached to the Job Fact Sheet by each CR incumbent who completed

it. As Canada Post had warned, many of the job descriptions were out-of-

date, some dated well before 1986. Indeed, a number were missing, some

were "unofficial", and others bore no signature of approval. Additionally,

the Alliance was not satisfied that all the job descriptions had been union-

endorsed, an accepted right of the union concerned. An almost similar

situation prevailed with regard to the organization charts. They were of

varying ages, and some were missing.

[426] The Interview Guide, intended to assist the Commission's

investigator in subsequently conducting interviews with employees and to

record their responses, elicited reservations about its design and use from

both the Alliance and Canada Post. These concerns were never fully

resolved. It was, like the Job Fact Sheet, designed around the System One

evaluation plan.

[427] Canada Post proposed several major changes in the format of the

Interview Guide. The Commission chose not to make the proposed

changes.

[428] The Alliance, through one of its representatives, had observed the

use of the Interview Guide in four of the initial run of interviews and had,

as a result, proposed several modifications to improve it. Only a few of

these modifications were accepted by the Commission. This decision to

accept changes to the Interview Guide was reached after Commission staff

had begun to use the original version. Hence, the changes in the document

were made in the midst of its use which is not a recommended action in

job evaluation circles.

[429] Furthermore, the Commission's lead investigator testified that the

Commission normally used an Interview Guide selectively with employee

respondents where it was necessary to clear up inconsistencies or other

difficulties with responses provided in particular Job Fact Sheets. In this

case, the Commission, for reasons unknown to the lead investigator who

was not in its employ at this time in the evaluation process, chose to

attempt to interview the entire CR sample.

[430] Another factor which caused some consternation was the origin of

the CR sample size. A Commission senior staff member had developed a

random stratified sample without prior professional input. His sample

calculations went through a number of configurations with extra

"alternates", but only 194 acceptable Job Fact Sheet responses were

received. This became the number of CR positions that were eventually

evaluated. Statistics Canada, who was consulted subsequently by the

Commission, recommended that the sample size be augmented. This

suggestion was not implemented by the Commission.

[431] Finally, the process followed by the Commission Evaluation Team

was somewhat unusual. Three of the Team's members rotated as

evaluators. There was little evidence presented concerning the extent of

the job evaluation training given to these Commission evaluators, or their

individual experience as job evaluators.

(iii) Commission's 1991 Job Evaluations

[432] As already noted, the Commission relied on its 1991 evaluations of

93 CR positions and 10 `generic' PO jobs as the basis for reaching its Final

Investigation conclusions, and recommendations. The Commission had

stated that it would be using the Hay System with its four-factor approach

and its XYZ charts to establish value. The Commission was of the view

that this Hay version was "...quite capable of measuring `blue collar' and

office-environment jobs".¹³²

[433] Neither Canada Post nor the Alliance were in full harmony with the

Commission's use, in 1991, of the Hay Job Evaluation Plan. Canada Post,

in particular, felt that the Hay Plan was intended, primarily, for "white

collar" and management-type work.

[434] Interestingly, Dr. Wolf, in answering a question from counsel for the

Alliance, referred to the evaluation methodology used by the Commission,

as follows:

Essentially,

what the Human Rights

Commission evaluators did was to create

their own evaluation methodology ... they

explicitly said that they were not using

anything like traditional Hay methodology.

They said they were using an `equal value'

approach to job evaluation ... I don't know

what you would call what they did, but it

was not the Hay process.¹³³

[435] There was also a certain incompatibility in the use of the Hay Plan

with a Job Fact Sheet that had been designed to relate to the System One

plan. However, System One, incomplete as it might have been, was said to

be closely aligned to the Hay Plan. It had four factors for assessing the

value of work, as does the Hay Plan. Both plans were considered by the

Alliance to be weaker for PO employees than they should be with respect

to the working conditions factor.

[436] As with the 1987 evaluations, the Job Fact Sheet was used by the

Commission as its primary source of job data for the 1991 CR evaluations.

In contrast, the primary source for the PO evaluations was the `job

specifications' compiled by the Commission. The resulting comparison

between complainant CR positions occupied by particular incumbents

with the comparator `generic' PO jobs can be faulted as not being a proper

comparison, given that the generic jobs were not actual positions, with

incumbents. This is one example of the inconsistent treatment which the

job information imposed upon any evaluation team attempting to evaluate

these particular positions/jobs in a "pay equity" context.

[437] The reduction in the CR sample from 194 in 1987 to 93 in 1991

seemed to be prompted by the need to speed up the evaluation process.

Calculation of the revised sample of 93 was handled by one of the

Commission's evaluators, an obviously well intentioned employee, but not

a sampling expert. There is even a suspicion that the sample of 93 may be

unfairly weighted. This suspicion arises because all 10 CR benchmarks

which were developed at the start of the 1991 evaluations, and all CR

positions in Canada Post's Head Office, are understood to have been

automatically included in the "sample" of 93. This belies any suggestion

that the sample of 93 was randomly selected.

[438] The Commission's 1991 evaluations were not conducted within the

confines of the Commission's recommended committee structure.

Commission staff evaluated individually, and came together periodically

to compare ratings.

[439] Mr. Paul Durber of the Commission, indicated in his evidence to the

Tribunal in June 1993 that he thought the evaluation process followed by

the Commission in 1991 fell between a minimum and an ideal process,

where the ideal would be a joint employer/employee study.¹³⁴While he

was "satisfied with the quality and consistency of the product" of the

evaluations, Mr. Durber indicated that the evaluating team was not "...an

orthodox committee...". For one thing, its process "...was something of a

departure ... [as] normally the Commission had followed - always as far as

[he knew], for group cases - had followed a strict committee approach...".

By `orthodox', Mr. Durber indicated that he meant a committee structure

where all its members come together, with their individual ratings and, by

a process of consensus building, jointly reach a mutually acceptable

conclusion. This was missing in the Commission's committee where its

members worked individually, coming together to exchange ratings.

(iv) Professional Team's 1993/1994 Job Evaluations

[440] The Alliance and the Commission have chosen to rely exclusively

on the evaluations performed in 1993/1994 by the Professional Team in

attempting to substantiate the Complaint before this Tribunal. A number

of changes in evaluation scores made in June 2000 have revised the

Team's original evaluation values.

[441] At least two members of the Professional Team were extremely

comfortable with the Hay Evaluation Plan, and with using it to conduct the

evaluations for this Tribunal hearing. Both Dr. Wolf and Dr. Ingster had

spent considerable time in the Hay organization and had worked over

many years with clients using the Hay Plan. Moreover, in the interest of

thoroughness, the Team applied what it termed the factor comparison, or

classic Hay Standard, which it considered to be a more diligent, time-

consuming approach than the "fast track" Hay guide chart options.

[442] Dr. Wolf, spokesperson for the Professional Team, and accepted as

an expert in Hay-based job evaluation, indicated that it was his opinion

that the Hay Plan was generally regarded as being capable of measuring

the relative value of male-predominant and female-predominant jobs.

Additionally, the Hay Plan's factors measured work value based on a

composite of skill, effort, responsibility and working conditions, as

required by the Act.

[443] Questions continued to be raised, however, concerning the

suitability of the Hay Plan for use with clerical and `blue-collar' jobs,

given its current widely known use for evaluation of management-level

work. This was certainly a concern of the Alliance, as well as of Canada

Post. Dr. Wolf stated that the Hay Plan, in its earliest days, had been used

in the evaluation of `blue collar' work but, in more recent times, client

demand had been increasingly in the management area. While Dr. Wolf

did admit that most of Hay's job evaluation is now with supervisory,

management, and professional jobs, he and his two colleagues felt it was

quite adaptable to both `blue collar' and clerical jobs.¹³⁵This opinion was

especially true, he indicated, when one was dealing with evaluators

experienced in applying Hay. In addition, the expansion of the Hay

working conditions factor, by the Team, was illustrative of its adaptability.

[444] While the Hay Plan may be considered an acceptable one for use in

these evaluations - particularly in the hands of the well-qualified

Professional Team - the sources of much of the data used raise many

questions. The Job Fact Sheet, intended, when first designed, to serve as

the primary source of up-to-date job information, proved to be entirely

unacceptable as noted earlier. Indeed, so unreliable did the Professional

Team consider the Job Fact Sheet that the Team largely discarded it and

used the job descriptions as its primary document for its CR evaluations.

[445] Perhaps the most telling comment about the Job Fact Sheet was that

of Dr. Wolf himself. He testified before the Tribunal in April 1995, as

follows:

The job documents that were done by the

Canadian

Human

Rights

Commission

required an awful lot of interpretation

because the form they used was abominable.

The guy who developed it probably should

be taken out and shot.

It violated the basic rule of any job

documentation process which is that you ask

individuals to describe the jobs, not evaluate

them. The way it was structured ... asking

people to self-evaluate. So we disregarded

that totally because people can't evaluate

their own jobs because they don't understand

the process.¹³⁶

[446] In addition to its `abominable' structure, the Job Fact Sheet was

designed, as noted earlier, to relate to the System One plan. There would

seem to be potential conflict in using job information, even in a less than

primary role, provided by means of an instrument based on an evaluation

plan different from the one being used for the evaluations. The

Commission's model stresses that "... use of a single plan to evaluate all

jobs is essential".¹³⁷

[447] Use of the job descriptions as the primary document for the CR

evaluations posed its own problem. Dr. Wolf testified that the Team had

accepted the job descriptions as they were, provided they were in correct

Canada Post format, on the assumption that they had been the basis of

Canada Post's classification of those positions.

[448] Unfortunately, there was not a consistently compatible quality set of

job descriptions for the Phase 1 and Phase 2 CR evaluations, including no

standard format of presentation. As already noted, the job descriptions

were of varying ages. Some went back many years. Others were not

considered by the Alliance to be "official" versions, even though they

were more current in age. A number were missing. Dr. Wolf

acknowledged in cross-examination that 14 were missing from Phase 1,

and 11 from Phase 2 evaluations. Subsequently, in June 1997, one of the

missing CR job descriptions for Phase 1 was found, and three were found

for Phase 2. Additionally, 5 available job descriptions were considered to

be inconsistent with the Job Fact Sheet, and, therefore, were not used.

There were even examples of missing pages from some job descriptions.

Some 50-job descriptions were not signed or dated. Finally, the job

descriptions did not generally include information on working conditions.

These deficiencies raise the issue of the consistency, completeness and

accuracy of that aspect of the job data.

[449] These problems seriously damaged the credibility of many of the job

descriptions, especially in their role for the Professional Team as the

primary source of CR job information. Even the Commission's model

recognized that job descriptions are not always an up-to-date and accurate

reflection of work done and often replicate prevailing stereotypes in the

workplace, and should not be used as the primary source of data.

[450] The matter of sample size of a total job population is a factor which

generally requires professional expertise. In this case, a random sample of

CR positions should be of sufficient size that it can, with some degree of

confidence, be characterized as representative of all the work undertaken

by the total CR population. Adding or deleting from the sample size may

impact on the average value of work within both the sample and the total

population. The same is true of a stratified random sample, an example of

which is the Commission's breakdown of the total 194 CR positions into

individual samples for each of the CR-2, 3, 4, and 5 levels.

[451] The development in 1986 of the original CR sample size and the

subsequent "re-calculations" culminating in the final sample size of 194

was a non-professional process which was further discredited by the

reduction to 93 in 1991. The Professional Team did restore that reduced

sample almost to its original level by evaluating a further 97 CR positions.

Expert witnesses for Canada Post and for the Alliance gave evidence

concerning how representative these samples were of the total CR

population.

[452] Canada Post called a witness, Dr. David Bellhouse, who first

appeared before the Tribunal in January 1996.

[453] Dr. Bellhouse attended as Professor of Statistics at the University of

Western Ontario. He was also Chair of the Department of Statistical and

Actuarial Sciences, having held that office since July 1992. He obtained

bachelors and masters degrees at the University of Manitoba, and earned

his doctorate at the University of Waterloo in 1975. His PhD dissertation

was entitled "Some results in sampling from a finite population under

superpopulation models, 1975". Dr. Bellhouse began his academic career

in 1974 as Assistant Professor - Department of Statistics, University of

Manitoba. He later joined the University of Western Ontario and moved

through the ranks of Assistant Professor, Associate Professor (with tenure)

and full professorship. As Chair of his department, he serves as Director of

its Statistical Laboratory which undertakes the design and execution of

statistical research and surveys for others on a cost-recovery basis. He

estimated his research-teaching-administrative workload as being 40-20-

40. Dr. Bellhouse has had many papers published in refereed (peer

reviewed) journals in his field of expertise. He has identified some 40 such

papers involving subjects such as sampling techniques and statistical

modelling and analysis. In 1985, Dr. Bellhouse received his University's

Gold Medal for Excellence in Teaching. Grants-in-aid-of-Research have

been awarded annually, since 1976-77, by the Natural Sciences and

Engineering Research Council in support of Dr. Bellhouse's undertakings.

He is a Fellow of the American Statistical Association, his Fellowship

having been awarded on the basis of his research in survey sampling. He is

also an elected member of the International Statistical Institute.

[454] Dr. Bellhouse was recognized by the Tribunal as an expert in

statistics, with specialization in survey sampling [survey sampling

comprises data collection and data analysis]. He noted that when one

wishes to have individual information about all units of a population, one

requires a census of all those units because "the technique of random

sample selection alone ... cannot provide any information on units which

are not in the sample".¹³⁸Dr. Bellhouse indicated in his Report that, in line

with Dr. Wolf's agreement that the purpose of job evaluation is "to try to

compensate each position in accordance with its value"¹³⁹, one must use a

complete census rather than a sample of any kind, as "job evaluations of

any sampled positions do not provide any information on the other

positions which have not been sampled".¹⁴⁰

[455] If, however, sampling is to be used, Dr. Bellhouse emphasized the

scientific nature of this instrument, with the need for strict guidelines in

order to avoid bias and to reach conclusions which would be useful for

evaluation purposes. Amongst his conclusions concerning the sampling

performed by the Commission, Dr. Bellhouse found that the initial

sampling was an appropriate method to discover whether or not the

current assignment of positions to the CR classification levels created for

use by federal government departments, and then used by Canada Post,

conformed to the non-overlapping intervals of points in the Hay Plan.

[456] He went on to indicate that when it became obvious that CR

classification levels were comprised of overlapping intervals of Hay Plan

points, a census of all positions was necessary so that each and every

position (or job) would be given a value through the job evaluation

process.

[457] Dr. Bellhouse concluded that, even if it were appropriate for use in

evaluation, the Commission's original 1986 sampling design for the CR

population was flawed in that it followed employees rather than positions.

He considered that this choice of sampling employees rather than positions

"led to biases in the survey in the sense that there are positions that you are

not able to sample".¹⁴¹He went on to conclude that these biases were

compounded by a level of non-responses in the survey for which

corrective follow-up action was not taken.

[458] Dr. Bellhouse's conclusion concerning the PO occupational group

was that since there was no "probability sample" of this occupational

group, there was no valid sampling estimate of the average job evaluation

value for each PO level. Indeed, because the job value by levels was

measured differently for the PO and the CR groups - the CR group having

been evaluated using positions and the PO group, using job titles - these

evaluations cannot be used for comparison of job values between the two

groups.

[459] Dr. Bellhouse also concluded that there may be substantial selection

bias in the PO sample because it was a selection of job titles rather than

actual positions, and also because the job descriptions represented generic

rather than actual job content. He cited the following example to illustrate

his point:

there is the possibility of biases creeping

into what is the actual value say for a letter

carrier, because it is a generic job

description and might not catch the

variability in job value that is present in the

general population.¹⁴²

[460] The Commission called a witness, Dr. John Kervin, who first

appeared before the Tribunal in January 2002.

[461] Dr. Kervin attended in his capacity as Professor in the Department

of Sociology and as a researcher at the Centre for Industrial Relations,

both of the University of Toronto. He obtained his B.A. in Sociology from

the University of British Columbia and earned his doctorate at

John Hopkins University in Baltimore in 1972. His PhD thesis was

entitled "An Information-Combining Model for the Formation of

Performance Expectations in Small Groups". Dr. Kervin began his

academic career in 1971 as Assistant Professor at the University of

Toronto and became Associate Professor (tenured) in 1976. He was cross

appointed to the Centre for Industrial Relations in 1977 where his research

work is largely carried out. Dr. Kervin indicated that an important part of

his research and teaching academic life has been with respect to

methodology statistics and data analysis and the effect of gender on social

interaction. He has undertaken research projects such as "Measuring

Gender Bias in Wages" and has had a number of refereed articles

published including one entitled "Where's the Bias?: Sources and Types of

Gender Bias in Job Evaluation". Clients seeking Dr. Kervin's research

services have included the Management Board of the Ontario government

and Treasury Board Canada, some of which involved statistical data

analysis in a "pay equity" context. An example of Dr. Kervin working

jointly, with another party, in this case with Dr. Nan Weiner, is "Report on

Possible Gender Bias in the Bank of Montreal's Hay-Points Compensation

System - 1999". Dr. Kervin is a member of the Canadian Sociology and

Anthropology Association and of the American Sociological Association.

He is also a member of three industrial relations associations.

[462] The evidence of Dr. Kervin, presented as a witness for the

Commission and qualified as an expert in data collection and data

analysis (with `data analysis' including the use of statistics and

statistical methodology), generally contradicts that of Dr. Bellhouse. Dr.

Kervin's main criticism of Dr. Bellhouse's Report is that it is predicated

upon an incorrect foundation. Whereas Dr. Bellhouse's Report stresses the

analytical nature of statistical analysis and the need for scientific

reliability, Dr. Kervin indicated that, when dealing with sociological

phenomena, one must place the phenomena in the context of its social

culture. In order to do this, the key component to data collection

concerning the phenomena being studied is the initial formulation of the

right question. He stated in his Report that Dr. Bellhouse never did ask the

pertinent question, given the context of the Complaint.¹⁴³Dr. Bellhouse's

concern was that the data analysis, using the data collected, follow the

scientific method. That the analysis employ procedures and empirical

evidence and tests that are replicable appeared to be his main concern. He

grounded this concern in a belief that "pay equity" stands for the

philosophy that everyone should be paid according to what his or her job

is worth.

[463] This is not, according to Dr. Kervin, correct. He felt that the real

"pay equity" issue is "is there a gender-based wage gap, controlling for the

value of the work?"¹⁴⁴This, Dr. Kervin's Report indicates, is because the

concept of "pay equity" assumes that there is a gender-based bias in

wages. What one wishes to do when testing for that assumption is to

identify the jobs, the gender composition of those jobs, the job values, and

the wages.

[464] Dr. Kervin stated that he would want to look at the jobs both

quantitatively as well as qualitatively, and with the judgement that comes

from the "art" aspect of dealing with sociological questions. Dr.

Bellhouse's Report did not take into consideration the "art" demands as

well as the "science" demands of the Complaint. This difficulty, combined

with his insistence that there be a correlation between the wages and

classification levels, should negate Dr. Bellhouse's reported concerns

about the Commission's sampling process, according to Dr. Kervin. The

latter concern about the correlation between wages and classification

levels indicates, according to Dr. Kervin, that Dr. Bellhouse does not

understand the systemic foundations of the "pay equity" issue.

[465] Dr. Kervin stated in his Report that Dr. Bellhouse's conclusions

address, principally, issues of sampling and job value measurement. Dr.

Kervin generally disagrees with these conclusions.

[466] Specifically, Dr. Kervin was of the view that there is no need for a

census of the total population concerned to meet the objective of "pay

equity". A representative sample is more than adequate. He also argued

that Dr. Bellhouse's rationale for use of a census - the overlap of Hay job

points across CR classification levels - is invalid because the overlap is not

due to sampling. It is due solely to the use of a different measure of the

value of jobs. The overlap remains regardless of the type of sampling.

[467] Dr. Kervin found invalid Dr. Bellhouse's argument that the 1986

sample design was flawed because it followed employees rather than

positions and thereby led to biases and higher rates of non-response. Dr.

Kervin stated that he discovered no evidence to support this position.

[468] Dr. Kervin agreed with Dr. Bellhouse that the PO sample was not a

probability or random sample, but rather a judgement sample. Unlike Dr.

Bellhouse, however, Dr. Kervin argued that it was likely to be reasonably

accurate. He felt that this was one of the examples where he and

Dr. Bellhouse were pursuing different "research questions" - Dr.

Bellhouse searching for statistical accuracy and significance, and Dr.

Kervin addressing the needs of a "pay equity" situation.

[469] Dr. Kervin disagreed with Dr. Bellhouse that there may be

substantial selection bias in the PO sample. He argued that Dr. Bellhouse

devoted no discussion to the manner of selection or to the possibility of

selection bias due to the use of job titles and generic descriptions.

[470] Finally, with respect to the measurement of job value at the level of

job titles for the PO's and positions for the CR's, Dr. Kervin classified this

as a difference in the unit of analysis and not as a difference in

measurement. Dr. Kervin further stated that it is a situation that can be

easily remedied.

[471] Clearly, there is an appreciable difference of opinion, if not a

contradiction, between these two expert witnesses on the issues of

sampling and job value measurement.

[472] The `job specifications' used for the 10 `generic' PO jobs were, in

some ways, similar to the CR Job Fact Sheets. The information

accumulated for them was provided by Canada Post, which also provided

a number of PO job descriptions based on the job titles of the 10

"generics". Some of these job descriptions were "unofficial", not having

had the endorsement of the relevant unions. While generally containing

more up-to-date information than the CR Job Fact Sheets, the `job

specifications' do not represent specific incumbent-held positions, but

rather are an amalgam of functions for 10 commonly held job types. This

results in a less than equal and compatible comparison between

complainant and comparator jobs. Added to this is the fact that the

gathering of the data was undertaken at different times - 1986 in the case

of the CR's, and 1990-1991 in the case of the PO's. Such a time difference

is usually considered unacceptable in a job evaluation exercise.

[473] Canada Post argued, additionally, that the 10 `generic' PO jobs had

been undervalued because certain aspects of "sub-jobs", such as the

rotational work of the PO-4's, had been excluded during the Professional

Team's evaluation process.

[474] Although evaluation of the `generic' PO jobs was not dependent on

the Job Fact Sheet, as the CR evaluations were originally meant to be, it

relied heavily on the `job specifications' developed by the Commission. As

already noted, these specifications were created, based on a variety of data

acquired through a series of meetings with Canada Post management

personnel. While appreciating why the Commission took this particular

route, evidence before the Tribunal indicates that most job evaluation

experts would not regard this information gathering methodology as a

propitious approach. According to Dr. Pat Armstrong, an expert witness

for the Commission, managers are generally too far removed from

operational work to know it in the depth required for evaluation purposes.

Contact with individual job incumbents is the favoured route. In fact, the

job profiles made available by Canada Post for use by the Commission in

developing its 10 PO `job specifications' posed their own difficulty

because they were labelled "draft" and did not have union approval.

[475] Because of the unusual nature of the information gathering

techniques used by the Commission, the Professional Team had an over-

abundance of job information about the PO community. In addition to the

`job specifications', certain job descriptions, job profiles and behavioural

dimensions were available. They also had access to various Canada Post

manuals, handbooks, and other materials. When the evaluation work was

done by the Team in June 2000, it had access to the very considerable

evidence and supporting material of the Canada Post witnesses who

testified largely about the functions and activities of PO workers.

Although the Team's examination of all this documentation at that time led

to few changes in their original evaluations, it did serve to fortify the PO

job data already in hand, even if only in the configuration of the 10

`generic' PO jobs.

[476] The 10 `generic' PO jobs do not represent any of the many jobs in

the PO supervisor sub-group. Yet, the samples of CR incumbents do

include some supervisors at the CR-5 level. This raises questions of

consistency and completeness between the complainant and comparator

groups.

[477] Items such as organization charts and the Interview Guide were

regarded as secondary and tertiary sources of CR job data. Difficulties

with these two instruments have already been identified - dated and

missing versions of the charts, and the dissatisfaction of both Canada Post

and the Alliance primarily about the content and proposed use of the

Interview Guide. In fact, Dr. Wolf testified that the Interview Guide did

not add anything in particular to the Team's understanding of the CR

incumbents' job duties.

[478] Having access to the Commission's Rationale Statement brought

criticism from Canada Post and its three key expert witnesses whose

principal testimony is considered later in this section. Their concern

related to the Professional Team's use of the Rationale Statement in

preparing its primary listing of CR positions and PO jobs that it would

evaluate. The Team's list was based on the Commission's total evaluation

point scores in ascending order, which were identified in the Rationale

Statement. The experts appearing before the Tribunal for Canada Post

considered this to be unacceptable for an evaluation process, and felt that

such use could have unfairly influenced eventual evaluation ratings.

[479] The telephone interviews with CR incumbents conducted in advance

of the actual evaluations undertaken by the Professional Team in Phases 1

and 2 were a well-intentioned exercise designed to improve the Team's job

knowledge. Dr. Wolf acknowledged that the interviews focused, primarily,

on working conditions and, with one or two exceptions, did not add

anything significant beyond that aspect. Also, completed interviews of

63% in Phase 1 and 57% in Phase 2 raise questions about whether the

positions of the significant number of incumbents who did not participate,

for whatever reasons, were disadvantaged in some way. Given the

importance of consistency and completeness, and even fairness of

treatment, there is, therefore, probably some limitation to the full benefit

of this additional information.

[480] The process by which the Professional Team undertook the

individual job evaluations was decidedly superior to that of the

Commission in either its 1987 or 1991 evaluations. The Team operated as

an entity, jointly reaching its decisions either unanimously or by

consensus. This is the committee methodology recommended by

evaluation experts, and follows the model presented in the Commission's

booklet.

[481] The Professional Team's process did, however, have a number of

weaknesses. For example, only one of the three members had ever been in

a Canada Post facility or was familiar with postal operations. It did not, of

course, have representation from the relevant organizational levels of the

employer. Given the circumstances of this particular case, the Team was

operating as an outside contracted body, without any contact with the

employer and little or no contact with its employees. It had little

background or direct knowledge of the nature, history and dynamic of the

organization involved, except what the third member, having some

Canada Post experience, could provide.

[482] The Professional Team's Audit Trail record led to difficulty in

tracking precisely how Dr. Wolf and his colleagues had used the Hay

Standard, and the rationale for their choices and evaluation ratings. In

cross-examination, Dr. Wolf admitted that their Audit Trail did not reflect

all their reasoning behind the ratings. He said it was "rudimentary" and "a

rough outline as opposed to detailed". He went on to admit:

...if you are suggesting we did a sloppy job

of putting down an audit trail, I will concede

that.¹⁴⁵

(v) The Professional Team's Position re: its 1993/1994 Job Evaluations

[483] Dr. Wolf acknowledged that he and his two colleagues found many

shortcomings in the available job information and data. Indeed, as already

noted, he went so far as to label the Job Fact Sheet, originally intended to

be the primary source instrument for obtaining up-to-date information on

both CR and PO positions, as "abominable".

[484] With respect to his Team's job understanding based upon the

materials before it, he testified as follows:

...I would have to say, with the exception of

the four jobs which we passed (sic), that our

understanding was adequate but not

necessarily ideal...¹⁴⁶

[485] What is the meaning of "adequate"? The Oxford Concise Dictionary

defines "adequate" as "sufficient, satisfactory; barely sufficient". Webster's

Dictionary defines it as "enough for what is required; sufficient; suitable".

In turn, "sufficient" is defined by Oxford as "sufficing, adequate, enough"

and by Webster as "as much as is needed, enough, adequate".

[486] Based on these definitions, Dr. Wolf and his Team must have felt

that the job information before them was enough for what they required to

undertake the job evaluations. It was sufficient.

[487] With respect to the Hay Standard, and how the Professional Team

employed it in their evaluations, Dr. Wolf testified, as follows:

Q. How does the standard here compare

with commercial standards?

A. As I think I have indicated, we took a

more rigorous approach or more exacting

than we would normally be. So it certainly

at least meets, and in my opinion probably

exceeds, the typical commercial standard, if

you will, what consultants from Hay or other

consulting firms are doing for their

clients.¹⁴⁷

(vi) Canada Post's Position re: the Commission's 1991 and the

Professional Team's 1993/1994 Job Evaluations

[488] Canada Post's stance on the reliability of the Professional Team's

work is clear. It submitted that the job information and data are not

sufficiently reliable to substantiate the Complaint, and, specifically, cannot

be relied upon to determine whether or not there is a gender-based wage

gap within the meaning of section 11 of the Act. Canada Post also takes

the position that the Hay System is not appropriate for "pay equity"

evaluations involving `blue collar' and clerical workers, and that the

process undertaken by the Professional Team was faulty.

[489] In support of its position, Canada Post called the following three

expert witnesses, listed in order of their appearance before this Tribunal

(the first two of whom provided testimony on both the Commission's 1991

evaluations and the Professional Team's 1993/1994 evaluations):

a) Ms. Nadine Winter first appeared before the Tribunal in April

1996 as President of N. Winter Consulting Inc., a firm

specializing in job evaluation, pay research and

compensation management. Prior to establishing her own

company in 1989, Ms. Winter was with Hay Management

Consultants Canada Ltd. from 1982 to 1988. In her role as

Director of Equal Employment Programs, she advised Hay

consultants and clients and was involved in the

modification of the Hay System to comply with

requirements for gender neutrality. She identified one of

her accomplishments as the implementation of the Hay

System, in a "pay equity" context, in the Government of

Manitoba. She became a partner with Hay Canada in 1987,

with the title Director of Employment Equity Practices. She

was qualified by the Tribunal as an expert in job

evaluation and compensation management, including

consulting expertise in pay equity and equal pay for

work of equal value.

b) Mr. Norman D. Willis first appeared before the Tribunal in May

1996. At that time, he had been retired for two years. He

started his job evaluation career with Hay & Associates in

1968, in the United States. By 1971, he had formed his own

company, specializing in management training and human

resources studies. He developed his own job evaluation

plan, which was conceptually similar to the Hay System, in

1974. That plan has evolved since then, incorporating

changes to meet client requirements. His initial focus was

clients in the Seattle area. His first Canadian job evaluation

proposal began with a presentation on equal pay to the

Government of the Yukon in 1985. Subsequently, he

handled job evaluation studies in Prince Edward Island, the

Northwest Territories, Alberta and Manitoba. Willis &

Associates was hired by the Joint Union-Management

Initiative Committee (JUMI), a combined Canadian

government and public service unions "pay equity" study,

to assist the Committee in its work. Eventually, the

Committee decided to use the Willis Evaluation Plan

provided it could be changed to meet the criteria of the

enabling legislation, the Canadian Human Rights Act,

section 11. Those changes were made. Later, Mr. Willis

attended as an expert witness before the Treasury Board

tribunal which heard the union complaint, brought under

section 11 after the JUMI Study had broken down. He was

qualified as an expert in pay equity and in job evaluation

by this Tribunal.

c) Mr. P.G. Wallace first appeared before the Tribunal in June

2002. At that time, he was Senior Vice-President of Aon

Consulting Inc., an organization offering consulting

services on the management of compensation practices. He

has had considerable experience in job evaluation and

compensation

design,

having participated

in the

introduction of the Hay System at the Bank of Montreal in

the 1970's. He also managed the Hay job evaluation

process corporately for Shell Canada Ltd. and integrated it

with Hay worldwide for the parent company, Royal Dutch

Shell. In his current role, he consults with a wide range of

companies in designing, implementing and administering

various job evaluation programs. He was qualified by this

Tribunal as an expert in job evaluation.

a) Ms. Winter's Testimony

[490] After examining the Commission's 1991 job evaluation work, Ms.

Winter reached a number of conclusions, the principal ones being the

following:

- in adopting the Hay XYZ Plan, the Commission chose a method

that fails to measure, accurately and completely, all aspects of the

work found in clerical and blue collar positions (while also noting

that neither the Alliance nor Canada Post had approved use of the

Hay Plan);

- the majority of CR positions were evaluated individually by the

raters and not as a committee; in the case of the 10 `generic' PO

jobs, all but one were evaluated by at least two raters, resulting in a

different rating process between the CR's and the PO's;

- the Commission's rater, who evaluated the largest number of CR

positions, had no previous job evaluation experience;

- the Commission's raters, as a whole, had inadequate knowledge

of the CR and PO positions;

- the data collection tools for the CR's and the PO's were incapable

of collecting accurate, consistent and complete descriptions of the

work concerned;

- in particular, the Job Fact Sheet could not generate accurate,

consistent, and complete position information; CR employees were

asked to evaluate their own positions rather than provide factual

position information; instructions and guidelines presented to the

respondents were inadequate and confusing;

- because the Job Fact Sheet was based on System One,

information not relevant to that system was not collected; this

meant that information in areas such as human relations skills and

working conditions was lost;

- the intended purpose of the Interview Guide was unclear and

there was apparently no common set of guidelines and definitions

available to assist interviewers; the same deficiencies found in the

Job Fact Sheet were replicated in the Interview Guide; several

changes were made in the Interview Guide's design after the

interview process had begun; sometimes, there were conflicts or

differences within position descriptions but these were not clarified

by the interviews;

- the PO position information collected was incomplete and did not

reflect actual positions; the uniqueness and variations of individual

positions was not recognized; job rotation requirements at the PO-

4 level were not acknowledged; the `job specifications' for the PO

group were a subjective compilation by one person, with no

confirmation by employees or on-site observation;

- there is no indication that the 1991 CR and PO Benchmarks were

representative of the full range of positions involved; the quality of

the Benchmark information was seriously deficient; how the

Benchmarks were used in guiding the evaluation of other positions

seems to be unclear, even, according to his evidence, to the head

investigator;

- the sample group of 93 CR positions and the 10 `generic' PO jobs

do not make visible all the work of the total population of CR's and

PO's;

- the Commission may have biased the evaluation process by

initially evaluating CR positions in the order in which they were

filed, by CR classification level;

- the Commission's Rationale Statements fail to provide adequate

justification to explain and defend the ratings;

- the Commission failed to check, formally and systematically, the

consistency and correctness of the evaluations; many of the formal

`sore thumb' reviews, that are integral to the Hay System, do not

appear to have been applied.

[491] In summary, Ms. Winter concluded that "the process to collect

position information was seriously flawed..." and that "the Commission

did not apply a disciplined, rigorous or defensible process to determine the

value of the CR positions and PO jobs which they rated".¹⁴⁸

[492] Ms. Winter's principal conclusions, arising from her examination of

the job evaluation work of the Professional Team, included the

following:

- she expressed the same concern as she had expressed about the

Commission's 1991 evaluations using the Hay Plan; she claimed

that this plan fails to measure, accurately and completely, the work

found in clerical and `blue collar' positions;

- the Professional Team did not follow the standard application of

the Hay Guide Chart-Profile Method; it relied on job-to-job

comparisons rather than on job-to-Guide Chart definition

comparisons;

- by beginning to order positions according to their classification

levels, and by the Commission's ratings, the Team may have

biased the evaluation process altogether;

- a representative and consistent set of benchmark evaluations was

not established at the start of the evaluation process;

- both Canadian and U.S. Hay job description standards for salary

survey purposes were used in the evaluations, creating a

consistency problem;

- Phase 1 positions were not used as formal Benchmarks, nor were

they selected as reference positions in any rigorous and systematic

manner;

- some positions, with few job characteristics in common with

other positions or with deficient supporting documentation, were

used as reference positions;

- all three evaluators lacked experience in evaluating `blue collar'

and clerical positions with the Hay Guide Chart-Profile method;

- there were serious deficiencies with the position descriptions

primarily in terms of age, accuracy and official status and the

evaluators' knowledge of the positions was extremely limited;

- the Team failed to administer a disciplined, formal `sore thumb'

review of evaluation results;

- several other issues were cited, including the time lapse between

Phases 1 and 2 evaluations, the poor audit trail record and a flawed

definition of `magnitude' in the Accountability factor.

[493] In summary, Ms. Winter concluded that the Professional Team

diverged significantly from the standard application of the Hay Guide

Chart-Profile method of job evaluation and accepted significant

deficiencies in position content. She also concluded that "the quality of the

position information for both the CR and PO positions was not adequate

for evaluation purposes".¹⁴⁹

[494] Ms. Winter also undertook a comparison of the Commission's

(1991) and the Professional Team's (1993) CR evaluation rating results.

Both sets of raters evaluated the same 93 CR positions with almost the

same data and with essentially the same Hay Plan. Under these

circumstances, Ms. Winter indicated that respective ratings should be very

similar. If they are not, the results cannot be accepted as reliable.

[495] Ms. Winter concluded that the hierarchies of value, reflected in the

two sets of evaluation results "...are clearly inconsistent with each other.

Given the inconsistency in results, the Tribunal cannot rely on either set of

rating results". Apart from the different evaluation `discipline' adopted by

the two groups of raters, she believed that there were three explanations

for the number and size of the inconsistencies of the two results. First, the

Hay method is not an appropriate tool to measure the value of CR and PO

positions. Second, the application of the Hay method requires a consistent

set of Benchmark evaluations to guide subsequent evaluations. No

Benchmarks were used by the Professional Team and the ones used by the

Commission were inadequate. Third, the lack of quality position

information made it impossible to arrive at consistent and meaningful

evaluation results.¹⁵⁰

b) Mr. Willis' Testimony

[496] Mr. Willis summarized the conclusion of his examination of the

Commission's 1991 evaluations, as follows:

Compared to the disciplined approach

required in the conduct of a sound Pay

Equity study, the CHRC's effort was a

poorly designed overall plan and a casually

implemented process using data that could

not form the basis of acceptable evaluations.

It would not be possible to depend on the

evaluations by this group for a viable Pay

Equity result.¹⁵¹

[497] More specifically, Mr. Willis concluded the following:

- the Commission allowed the Alliance to `cherry pick' the male

comparator jobs by not including in its investigation any jobs not

mentioned in the Complaint; the GS and GL&T group of

employees was ignored;

- the Hay Guide Chart-Profile system used should have been

satisfactory as an evaluation instrument, provided the evaluators

received adequate training; the Working Conditions factor which

was apparently developed by Hay Canada provided for a wide

range of points within each level or each sub-factor, thereby

making it extremely difficult to evaluate consistently; there was

evidence of mis-application of the Human Relations Skills sub-

factor on a number of occasions; the evaluators discarded the

Profile step (a means of checking the inter-factor relationships) in

the evaluation process because the evaluators "were getting some

rather strange profiles"¹⁵²; the wording in the Accountability,

Magnitude, and Impact sub-factors was arbitrarily changed by the

evaluators during the evaluations, which could have modified

ratings and caused inconsistency;

- Benchmark job evaluations are appropriate for this case but

should be representative of the jobs within the total group being

evaluated and commonly understood by the evaluators - this was

not done by the Commission; the Benchmarks should have been

evaluated by the full Committee and not by two evaluators,

independently;

- the process of selecting position/job samples fell short of meeting

the stringent sampling requirement needed for a "pay equity"

project; the sampled jobs should represent a full range of the depth

and breadth of the organization; they did not in this case;

additionally, the reduction of the 194 to 93 samples of CR's could

not be considered sound or objective;

- the quality of job information utilized was unacceptable and

could not be expected to produce a fair, equitable evaluation result;

"...the Job Fact Sheet was hopelessly inadequate for Pay Equity

evaluation purposes"; the job descriptions "...were only of minimal

usefulness ... in support of the Job Fact Sheet..."; "...a 14-page

Interview Guide, incorporated into the information provided to

evaluators was more of a liability than an asset..."; the job data

were collected at two different times, 1986 for the CR's and

1990/91 for the PO's;¹⁵³

- while the PO `job specifications' came closer to providing factual

job information, they were based on management and not

employee-supplied data, and were acquired by a totally different

process from that used for the CR's;

- the Commission's sore-thumbing step was not a proper one - it

should be a tightly structured, group-led comparison of the

evaluations concerned, sub-factor by sub-factor and factor point

level by factor point level.

[498] Mr. Willis summarized the conclusions of his examination of the

Professional Team's 1993/1994 evaluations as follows:

- the Team "...misused the Hay evaluation plan by employing it as

a factor comparison system";

- the Team used essentially the same inadequate job content

information as was used by the Commission evaluators;

- the Team was "...ill-equipped to successfully complete their

charge due to their lack of knowledge and backgrounds to

undertake the assignment, and due to an approach to the

evaluations that lacked the necessary discipline. The evaluation

process utilized was unacceptable considering what is needed for a

successful Pay Equity Study".¹⁵⁴

[499] Mr. Willis' final statement was "In my considered judgement, the

efforts of the consultants retained by PSAC cannot be relied on for

accurate Pay Equity evaluation results".¹⁵⁵

[500] With more specificity, Mr. Willis concluded the following:

- he disputed the wisdom of using the factor comparison approach

for the Hay Plan in a "pay equity" case and favoured the point-

factor method of the Hay Guide Chart-Profile approach to job

value measurement; this preference was based on his opinion that

the point-factor method is more suitable for evaluating a wide

variety of jobs in a "pay equity" context; further, he was of the

view that the factor comparison approach is more acceptable in a

traditional single occupational group of jobs;

- the Professional Team had the same inadequate job information

used by the Commission, including the Job Fact Sheet, Interview

Guide, job descriptions, and `job specifications'; there were

missing CR job descriptions and those of the PO's were

"unofficial";

- he agreed with Dr. Wolf's opinion that the telephone interviews

conducted by the Professional Team, "...with one or two

exceptions, outside of the working conditions arena ... did not add

anything significant"¹⁵⁶;

- knowledge of each job's classification level was available to the

three Team members and this knowledge could have affected their

perception of the jobs and, consequently, their evaluations;

- use of the "black box analysis" approach to job evaluation could

not be expected to provide a useful assessment of what was

contained within the black box, given the poor quality of job

information input;

- it was a "highly questionable practice" to use the Hay U.S. job

description standard, particularly for a "pay equity" case, as this

standard was intended for survey comparisons and it cannot be

assumed that U.S. and Canadian job titles, even if the same or

similar, are the same in job content.

c) Mr. Wallace's Testimony

[501] Mr. Wallace indicated that his firm had been asked by Canada Post

to review and comment on the process undertaken by the Professional

Team in 2000 in addressing the possible impact on its 1993/1994

evaluations, of the considerable additional evidence that had arisen from a

number of Canada Post witnesses. Mr. Wallace stated that he used what he

termed "...standard criteria against which job evaluation exercises within

companies are measured".¹⁵⁷What he wanted to know was if the Team's

job evaluation results were accurate, consistent, and credible.

[502] Mr. Wallace further indicated that "in conducting this review the

goal is to determine whether or not the process and discipline employed by

the Committee [Professional Team] was capable of yielding results

meeting these criteria".¹⁵⁸

[503] The principal conclusions reached by Mr. Wallace included the

following:

- the processes followed and particular actions taken by the

Professional Team fell short of many of what he considered to be

industry standard practices for the evaluation of jobs, having the

effect of significantly compromising the accuracy, consistency and

credibility of the results;

- "the lack of complete and consistent documentation on what is

being measured by the job evaluation process ... and the failure of

the Committee [Professional Team] to apply the safeguards of the

Hay system, directly affects the consistency of the evaluation

results"¹⁵⁹;

- the lack of discipline and rigour in the Professional Team's

process should call into question the credibility of the evaluation

results.

[504] More particularly, Mr. Wallace concluded the following:

- the Hay Guide Chart-Profile method, while an excellent job

evaluation

tool,

was

inappropriate

for

clerical

and

production/operations jobs;

- the Hay factor comparison approach is dated and not in keeping

with either Hay training materials or Mr. Wallace's 30 years of

experience with the Hay method;

- the factor comparison approach is best suited for jobs that are

similar in nature; "it is difficult to impossible to create an accurate

ranking of dissimilar jobs through total reliance upon the factor

comparison methodology without linking the evaluations to the

guide charts"¹⁶⁰;

- the Professional Team, while including recognized experts in the

use of Hay methodology, had limited experience in postal

operations; the potential for bias was high, given the Team was

mandated by two of the parties in the case;

- while the Professional Team met for five days to deliberate over

the impact of the additional evidence on its original evaluations,

there was no apparent structure to the process followed; Dr. Wolf

had no notes with him from his review of the material and no

summary or analysis of the job data they had been considering;

- the initial screening of the additional material by a single member

of the Team, Dr. Wolf, raises questions, particularly given the

absence of documentation of what items were considered irrelevant

or inappropriate; nor is there any documentation of the selected

additional testimony;

- the job descriptions were incomplete and inconsistent and the

additional information provided was not analyzed and documented

appropriately; it is essential that an evaluating group be entirely

satisfied with its job descriptions;

- Mr. Wallace disagreed with the Professional Team's decision

"...to evaluate PO jobs only if they determined there was a just

noticeable difference between their recollection of their original

job understanding and their new job understanding"¹⁶¹; the Team

should have justified its "just noticeable difference" judgement by

use of the Hay Guide Charts and re-evaluated each job

incorporating all the additional data;

- the weakness of the Audit Trail of the 1993/1994 evaluation

process compromised the process of 2000 as there was no record

of solid evaluations in the earlier period that could have served as

reference positions for the 2000 evaluations, or of earlier

controversial decisions that might have been altered by the

additional material.

(vii) The Alliance's Position re:

a) Ms. Winter's Testimony

[505] The Alliance's submissions focus on three features relating to Ms.

Winter and her evidence, as follows:

1. her knowledge of Hay, and the Hay Job

Evaluation Plan,

2. her credibility,

3. her Reports (Exhibits R-235, R-249, R-

253, R-254 and R-278).

[506] It is the Alliance's submission that, as the cornerstone of Canada

Post's attack on the Commission's investigation and evaluations, and on

the Professional Team's evaluations, Ms. Winter's evidence fails to meet

the requirements demanded of an expert witness and was so lacking in

credibility that it should be given no weight.

[507] Ms. Winter joined the Hay organization in 1982 and began practical

training as a job evaluation consultant in 1985, but did not regard herself

as a full-fledged Hay evaluation consultant until early 1986. She was

involved in the practice of job evaluation for some 2½ years while

assuming other Hay responsibilities not directly related to job evaluation.

Canada Post did not seek to qualify her as an expert in the Hay System of

job evaluation.

[508] The Alliance cites Ms. Winter's involvement, while still with the

Hay Canada Company, in a legal action which Hay had brought against

Norman Willis for what she termed a "violation of intellectual property

laws". There were a series of mis-statements and revisions made by

Ms. Winter as she gave evidence on this issue. The Alliance argued that

these resulted from her desire to avoid acknowledging the strong and

obvious similarities between the Willis and the Hay job evaluation plans.

Given that the Willis Plan had been used, successfully, in several "pay

equity" applications, including clerical and `blue collar' work, the Alliance

asserted that Ms. Winter was attempting to mislead the Tribunal regarding

those similarities.

[509] The Alliance questioned Ms. Winter's credibility further, citing her

failure to refer the Tribunal to the post JUMI tribunal decision (the

Treasury Board case) which contradicted her opinion concerning the

standard of reliability required for job information.¹⁶²She had called for a

standard of correctness, as was demanded by her interpretation of the

Ontario Haldimand-Norfolk decision.¹⁶³The Treasury Board tribunal

decision was based on a standard of reasonableness. She claimed, when

being cross-examined on this point, that she did not know what

"reasonableness" meant in the context of "pay equity" evaluations.

[510] Additional instances of Ms. Winter's lack of credibility were cited

by the Alliance, as follows:

- she omitted key material when giving her opinion concerning the

quality of job information;

- she had a tendency to highlight the negative, and to ignore the

positive when giving her opinions, rather than answering questions

directly;

- her responses to questions posed were often inclined to be

argumentative;

- as her evidence continued for many days, her inclination to revise

points made on the previous day, often at considerable length,

became more and more evident.

[511] In summary, the Alliance argued that, when viewed as a whole, Ms.

Winter's expert evidence was biased towards the Respondent's position,

and fell far short of meeting the standards, including independence,

required of a credible expert witness. Therefore, the Alliance argued, Ms.

Winter's evidence should be given no weight.

[512] Most particularly, the Alliance's submissions concerning Ms.

Winter's expert evidence focus on her opinion about the job data collection

tools, the process and quality of the position information, and the

Professional Team's job evaluation process. This opinion was presented in

her viva voce evidence, and in Chapters 4 and 6 of her Reports (Exhibits

R-235 and R-249).

[513] Ms. Winter's Report contends that the "quality of the position

information for both the CR and the PO positions was not adequate for

evaluation purposes".¹⁶⁴She illustrated her contention by examining two

CR positions which served as Benchmarks. After having reviewed all the

pertinent documentation concerning these positions, she held that she had

had difficulty understanding what the jobs were all about. One job, in

particular, gave her great difficulty. In cross-examination of Ms. Winter,

the Alliance demonstrated that the relevant supervisor for this job had

identified another position that was essentially identical. Ms. Winter had

used, as an example of a Benchmark which had such poor documentation

that she could not understand what it was all about, the Benchmark

position which referenced the nearly identical position. Ms. Winter, had,

however, failed to refer to that nearly identical position. Had she done so,

she would have enlightened her understanding of what she considered to

be a difficult Benchmark position; the Professional Team had readily

recognized the cross-over between the two positions.

[514] In the opinion of the Alliance, Ms. Winter's evidence, in cross-

examination, concerning her position as co-chair of the Hay Job

Evaluation Process in the Manitoba Pay Equity Study illustrated her

ability to integrate information found in different incumbent responses in

order to obtain acceptable job understanding. This ability stands in sharp

contrast, argued the Alliance, to Ms. Winter's approach to job

understanding in the Complaint before this Tribunal. She often offered her

opinions in isolation, and made little or no effort to integrate information

available to her from several arenas.

[515] Further examples of categorical or exaggerated opinions presented

in her Reports, and in examination-in-chief, which were moderated in

cross-examination, were cited by the Alliance.

[516] Notwithstanding modifications and explanations made during cross-

examination, Ms. Winter stood by her reported conclusions. More

particularly, she stated that the Professional Team's evaluation results

"cannot be considered reliable, accurate or reflective of the work

performed" because the job information used was significantly deficient

and the Professional Team's evaluation process deviated significantly from

the "standard" application of Hay as she understood it.¹⁶⁵

[517] This latter opinion was based on Ms. Winter's refusal to

acknowledge that Hay could be applied, reliably, by means of a factor

comparison approach, as was used by the Professional Team. The Alliance

argued that this opinion should be rejected by the Tribunal based upon the

opposite but more credible opinion of Dr. Martin Wolf, the only witness to

be qualified as an expert in the use of the Hay Plan. The fact that Ms.

Winter did not evaluate either the CR positions or the PO positions, using

any job evaluation plan, underlined the theoretical nature of her opinion.

Based, as it was, on theory which had been modified during her cross-

examination, the Alliance submitted that Ms. Winter's opinion concerning

the Professional Team's factor comparison approach to the Hay Evaluation

Plan should be rejected.

[518] In the portion of her Report (R-254) concerning the wage

adjustment methodologies which the Commission and the Alliance had

used, Ms. Winter stressed her belief that gender identification, valuing of

work and any wage adjustment should take place at the level of the job

itself rather than at the broader grouping and level in which the jobs are

found. She conceded, in cross-examination, that the Treasury Board

tribunal decision adopted the identification of gender at the level of the

group rather than in the individual job.

[519] Ms. Winter made reference to particular provisions of various

provincial "pay equity" acts but made virtually no references to the

Canadian Human Rights Act. She also failed to address sections 12 and 13

of the 1986 Equal Wage Guidelines, although she was criticizing the

Commission and the Alliance for complying with these sections of the

Guidelines.

[520] The Commission and the Alliance approach, calculating an average

Hay score for each CR level and a wage gap based on that average value,

was, in the opinion of Ms Winter, flawed. This approach, however, has

been used elsewhere, including the Treasury Board tribunal decision.

[521] Ms. Winter also argued that each female-dominant CR position

should be evaluated. She did not alter her opinion when, in cross-

examination, it was pointed out to her that the Treasury Board tribunal

decision had endorsed a sampling of the CR population.

[522] Ms. Winter was critical of the make-up of the male comparator

group, comprising PO-INT and PO-EXT sub-groups. She made particular

reference to Ontario's Pay Equity Act and its requirement to seek a

comparator within the complainant group.¹⁶⁶She also referred to other

provincial jurisdictions that require the negotiation of comparator groups.

In cross-examination, she admitted that these provincial provisions are not

required under the federal legislation.

[523] To summarize, the Alliance submitted that the Tribunal ought to

draw a negative inference from Ms. Winter's Reports based on her failure

to address the relevance of federal tribunal decisions, the Act and its

Guidelines, all of which do not support her version of "pay equity". Her

opinions were based almost solely on portions of provincial legislation.¹⁶⁷

[524] Ms. Winter returned to present R-278, a Report which was to

address the implications of newly-found CR job information. Her

conclusion in that Report was a reiteration of her opinion that the job data

used by all evaluators were inadequate. The Alliance submitted, in its

argument, that Ms. Winter simply used this new Report as a pretext to

revisit her earlier criticisms, while she continued to act as an advocate for

the Respondent.

b) Mr. Willis' Testimony

[525] The Alliance's submissions focus on three features relating to Mr.

Willis and his evidence, as follows:

1. his knowledge of Hay Job Evaluation,

2. his credibility,

3. his criticisms of the Professional Team's process, the job

information that process used, and their approach to Hay, all as

expressed in his Report (Exhibit R-455).

[526] While qualified as an expert in job evaluation and "pay equity" by

this Tribunal, Mr. Willis was not qualified as an expert in the Hay method

of job evaluation. He had only three years of direct experience in applying

that method during his employment with the Hay organization from 1968

to 1971. He maintained links with a number of Hay installations after his

departure from Hay.

[527] The Alliance questioned the credibility of Mr. Willis. Its argument

found a basis in a statement made by the Chair (now resigned) of this

Tribunal during an earlier appearance by Mr. Willis. At that time, the

Chair expressed reservations about Mr. Willis' expert opinion, given that

he had not examined the relevant evaluations and supporting material

before giving his opinion.

[528] The Alliance submitted that Mr. Willis' Report, was prepared in a

similar manner, without the proper foundation necessary to give an expert

opinion. Mr. Willis admitted, when cross-examined about his Report that

he had not read all the documentation sent to him by the Respondent. He

had been asked, however, to prepare an expert's view on that

documentation. Notwithstanding this admission, his Report, and his

evidence concerning that Report, did not indicate that his opinions were

based only on a partial review of the materials sent. Therefore, the

Alliance submitted that his opinion should not be accepted as wholly

credible.

[529] The Alliance also pointed to a number of occasions when Mr.

Willis, in evidence-in- chief, "insisted vehemently that he believed

statements made by Dr. Wolf, in sworn testimony, to be fallacious". Such

statements of opinion, argued the Alliance, "raise significant concerns

regarding Mr. Willis' credibility as an objective and professional expert

witness".¹⁶⁸

[530] An inability to make even a slight concession to cross-examining

counsel was also cited as an example of an expert witness who was

intransigent and defensive of his position. In other words, Mr. Willis'

expert opinions should be rejected as the opinions of someone who lacked

the independent, professional approach, required of a credible expert

witness.

[531] The Alliance also challenged Mr. Willis' opinions, based on his lack

of experience with a "pay equity" process which was taking place in an

atmosphere of litigation rather than in a cooperative union-management

atmosphere. Mr. Willis' "pay equity" experience had always been,

according to his evidence, with the latter type of work where he acted as a

facilitator who had the full support of employer management in

undertaking the job evaluation studies and the gathering of job information

upon which those evaluations would be made. He was, according to the

Alliance, either unable, or refused, to comprehend the nature and context

of the Complaint before the Tribunal. Indeed, Mr. Willis made one

concession during cross-examination. He indicated that the process which

he advocated in his Report and during his evidence-in-chief, would, except

for the choice of the evaluation plan, be impossible without the full co-

operation of the employer.

[532] Based on that concession, the Alliance submitted that to accept Mr.

Willis' Report and evidence would be to place the standard necessary for

the successful presentation of a prima facie case by a complainant in any

"pay equity" complaint under the Canadian Human Rights Act so high that

a refusal by the employer to co-operate would always result in the failure

of the complaint.

c) Mr. Wallace's Testimony

[533] The Alliance's submissions focus on three features relating to Mr.

Wallace and his testimony, as follows:

1. his knowledge of Hay Job Evaluation,

2. his credibility,

3. his Report (Exhibit R-615).

[534] While qualified as an expert in job evaluation by this Tribunal, Mr.

Wallace was not qualified as an expert in Hay job evaluation. He did,

however, have considerable experience with the use of Hay as a client

working under the direction of a Hay consultant. He had never worked for

Hay in any capacity, nor had he ever been qualified as an expert in Hay

before this Tribunal or any other tribunal or court.

[535] The Alliance was of the view that Mr. Wallace's credibility was put

in doubt when he criticized the job understanding of Dr. Wolf and his

colleagues, having read only a fraction of the material read, analyzed and

evaluated by the Professional Team. Mr. Wallace admitted that he had not

been provided with, and did not seek access to, certain original job

documentation that had been available to the Professional Team. In fact,

Mr. Wallace conceded, in cross-examination, that the Professional Team

had a better understanding of the jobs concerned than he had.

[536] The Alliance also submitted that Mr. Wallace tended to highlight the

negative and to ignore the positive in the Professional Team's Reports, and

in Dr. Wolf's testimony.

[537] Mr. Wallace's Report must, according to the Alliance's submissions,

be read in context. That context is that he did not have access to much of

the material upon which the Professional Team had relied to make its

evaluations.

[538] His Report is a critique of the Professional Team's methodology,

process, and the job information used in its evaluations. It stresses that job

evaluations, especially for "pay equity" purposes, must be done at a

standard used in industrial practice. This is Mr. Wallace's usual

methodology. This simply underlines his familiarity with employer-

supported studies, and his lack of familiarity with a process taking place in

a litigious arena.

[539] The Alliance submitted that "the most significant criticism that Mr.

Wallace brought against the Hay Plan was found in his explanation of

Appendix `A' to his Report, which shows a weak correlation between Hay

points and money paid to CR's. Mr. Wallace admitted, in cross-

examination, that he had not considered whether this wage gap for women

performing work which appeared to have equal value with men could have

been caused by a "pay equity" problem.¹⁶⁹

[540] According to the Alliance, Mr. Wallace's criticisms of the process

followed by the Professional Team, compared with the one he proposed,

reveal an essential difference in approach. The Professional Team began

their 2000 process with the assumption that their earlier evaluations were

`correct' and would only change if the additional and new material altered

their previous understanding of each job. Mr. Wallace's proposed process

was an internal, non-litigious, job evaluation appeal process. This is unlike

the process necessitated by the facts of this case.

[541] In sum, the Alliance submitted the following, concerning Mr.

Wallace's evidence:

- Mr. Wallace's Report and testimony must be read and appreciated

in light of the acknowledged fact that he did not have access to

much of the material read, analyzed and evaluated by the

Professional Team;

- Mr. Wallace failed to appreciate the fundamental difference

between the complaint before the Tribunal, a complaint which was

litigious almost from the beginning, and the employer-managed

"pay equity" job evaluation process with which he was familiar;

- Mr. Wallace acknowledged that the Professional Team had a

greater understanding of the jobs and positions being evaluated

than he did at the time he constructed his Report, and gave his

evidence.

(viii) The Commission's Position re: Canada Post's Expert Witnesses -

Ms. Winter, Messrs. Willis and Wallace

[542] The Commission first noted that none of the three experts presented

by Canada Post had actually worked with any of the job data which they

found to be unacceptable. Secondly, their opinions were all based on

incomplete information. Either the materials provided to them by Canada

Post were incomplete, or the witness had not read all the material

presented to him/her as the basis for the expert's report requested.

[543] Only the Professional Team had reviewed all of the job information,

including that led by Canada Post in its defence. The Commission

submitted that the two weaknesses noted are sufficient for this Tribunal to

discount the evidence of all three experts presented by Canada Post to

report on the evaluation process, the evaluation methodology chosen, and

the job information used.

[544] The Commission re-iterated the submission that Ms. Winter's Report

wrongly relied on a standard of `correctness' rather than the standard of

reasonableness to criticize the collection of job data, and the job

information used by the Professional Team during its evaluation process.

In her Report, Ms. Winter had noted that the decision of the Ontario "pay

equity" tribunal in a

complaint involving a Haldimand-Norfolk hospital had concluded that the

standard to be applied was that of correctness, and she indicated in her

viva voce evidence the following:

Q. ...indicate that a standard of correctness

was applied by the Ontario pay equity

hearings tribunal in the Haldimand-Norfolk

case. Now, ... I take it that you adopt that

standard or that you have adopted that

standard in your report?

A. Of correctness, yes.¹⁷⁰

[545] Indeed, Ms. Winter went on to indicate that she did not know what

was meant by `reasonableness'.

[546] The Commission argued that this reliance on the standard of

correctness as a foundation for the expert opinion presented in her Report

and in her evidence before the Tribunal should be reason for the Tribunal

to discount her evidence. This reliance on a standard of correctness is,

according to the Commission, merely an example of the tendency of Ms.

Winter to define "pay equity" principles rigidly. Her rigidity was noted,

adversely, by the Ontario Court (General Division) in the Service

Employees International Union case, where the Court preferred the expert

evidence of Dr. Pat Armstrong compared to that of Ms. Winter.¹⁷¹

[547] The Commission submitted that rigid principles are inconsistent

with a standard of reasonableness. Indeed, the Commission contends that

Ms. Winter herself did not apply the exacting standard of correctness to

job information available to the Manitoba Pay Equity Study, for which she

was jointly responsible during her days with the Hay organization. In fact,

she indicated in evidence that it was necessary, in that case, to "work

with" the Manitoba job information. This attitude is analogous to the

evidence of Dr. Wolf that the Professional Team had to "work with" the

job data which was available to them.

[548] Ms. Winter's own admission of a less than rigid approach to job

information during her work with the Manitoba Pay Equity Study is in

sharp contrast to her unrelenting criticism of most, if not all, of the job

documentation in this case, and her condemnation of the approach taken

by the Professional Team to the job documentation. Accordingly, the

Commission submitted that Ms. Winter lacks credibility as an expert

giving an opinion concerning the job information upon which the

Professional Team founded its evaluation process.

[549] The Commission submitted that Mr. Willis' expert opinion

concerning the job information and the evaluation methodology and

process should also be given less weight than that of the expert opinion of

Dr. Wolf. It bases this submission upon its indication to the Tribunal that

Mr. Willis was unclear, even ambiguous and evasive, about how long he

had taken to review the job documentation materials presented to him by

Canada Post to be a basis for his expert opinion.

[550] Additionally, Mr. Willis' experience in "pay equity" evaluation

processes was largely based on joint studies in which job data was

generated with the agreement of all parties involved. Although he was, as

the facilitator in the study which used his `Willis Plan' as the basis for its

process, qualified as an expert witness in the Treasury Board case, that

complaint involved primarily the issue of the reliability of the

methodology chosen to deal with the joint union-management "pay

equity" study and evaluation process.

[551] According to the Commission, Mr. Wallace's critical opinion of the

job information should be largely discounted because he did not, nor was

he asked by Canada Post, to review most of the job documentation. His

review was largely limited to an examination of the Professional Team's

consideration, in 2000, of the additional evidence provided by Canada

Post's many defence witnesses. Additionally, he was provided with

portions of data contained in the transcripts of Dr. Wolf's cross-

examination. Therefore, the Commission submits that Mr. Wallace's view

of the job information is "only through the eyes of Canada Post" and his

opinions are not independent of his client.

H. Reliability of Methodology Used by the Professional Team: -

Tribunal's Analysis

(i) Introduction

[552] Human rights legislation demands constant attention to the

purposive interpretation of the statute involved. In a recent decision of the

Federal Court of Appeal concerning the interpretation of "establishment",

Evans, J.A. stressed this need, as follows:

Any analysis of a statutory human rights

issue must be undertaken with a view to the

purposes of the legislative scheme and of the

policy objectives of the particular provisions

in dispute. A search for the meaning of

human

rights

legislation,

including

subordinate legislation, must both start with,

and be informed throughout by, its essential

objective.¹⁷²

[553] As suggested in paragraph [412], the Tribunal accepts that the

standard that ought to apply in "pay equity" complaints brought under

section 11 of the Act, such as that before this Tribunal, is the standard of

`reasonableness' in determining the reliability of the job evaluation system

chosen, the process followed, and the job information used.

[554] The Tribunal rejects the submissions of Canada Post that a rigid

standard of `correctness' is necessary for the purposes of a "pay equity"

process. Rather, the Tribunal finds that the standard of `reasonableness'

accepted by the tribunal in the Treasury Board case is more conducive to

the interpretation of human rights legislation, and section 11 of the Act in

particular. In the case before this Tribunal, the evidence of most experts,

including those of Canada Post, presented the concept of job evaluation as

"more an art than a science". Therefore, any standard which could not

accommodate this concept should be rejected.

[555] Each of the elements necessary in testing reasonable reliability

should be examined. In other words, the job evaluation system chosen

should be reasonably reliable, the process and methodology used in

evaluating the relevant jobs/positions should be reasonably reliable, and

the job information and its sources should be reasonably reliable. The

findings of the Tribunal should be based on the civil standard of a balance

of probabilities.

[556] In this regard, the Tribunal has already noted the importance of

examining the evidence provided by a number of expert witnesses in a

systematic manner. The components of the systematic model employed by

the Tribunal were identified in paragraph [419].

[557] The first several components of the model have already been

addressed. The Tribunal has noted the party who called each expert

witness, the expert's field of expertise, and each expert's mandate and

conclusions reached. The expert witnesses have been identified as Dr.

Wolf, Ms. Winter, Mr. Willis, Mr. Wallace, Dr. Bellhouse, and Dr.

Kervin.

[558] While the first several components of the systematic model receive

further attention in this analysis, they are examined, as appropriate, in the

context of the remaining components of the model. In other words, the

Tribunal will comment on the extent of each expert's knowledge,

experience and standing in his/her field of expertise, and how each expert

fulfilled his/her mandate and presented his/her conclusions to the Tribunal.

(ii) The Job Evaluation System Chosen

[559] The job evaluation system used by the Professional Team was the

factor comparison approach to the Hay Plan. Canada Post, based upon the

opinion of each of its three expert witnesses, submitted that the

Professional Team's decision to employ this model of Hay was

questionable. Indeed, Canada Post submitted that the use of the Hay Plan

itself was not appropriate to a process which would evaluate, for "equal

pay" purposes, diverse jobs in the clerical and operations spheres of the

corporation.

[560] Although Mr. Willis, an expert witness for Canada Post,

acknowledged that the Hay Plan, especially in its Guide Chart-Profile

application, is a satisfactory job evaluation instrument provided the

evaluators receive adequate training, his opinion was that the Professional

Team "mis-used" the Hay Plan by engaging it in its factor comparison

mode. Mr. Wallace, another expert witness for Canada Post, also

contended that the Hay Guide Chart-Profile method was an acceptable job

evaluation tool but regarded it as inappropriate for clerical and

production/operations jobs. Mr. Wallace further felt the factor comparison

method was long out-of-date. An additional Canada Post expert witness,

Ms. Winter, condemned the Hay Plan, generally, for not being suitable to

evaluate work of a clerical or "blue collar" nature.

[561] Notwithstanding the opinions of both Mr. Willis and Mr. Wallace

concerning the generally satisfactory nature of the Hay Plan as a job

evaluation instrument, Canada Post's submissions faulted its use in

evaluating clerical and `blue collar' work. In particular, counsel for the

Corporation argued that Hay "under-weights" the working conditions

factor, which, in turn, leads to under-valuing of elements important to

clerical and `blue collar' types of positions.

[562] Mr. Willis' opinion was qualified by his observation that the factor-

comparison approach to the Hay Plan might be acceptable for use when it

is applied to a single occupational group of jobs. In a "pay equity" case,

involving a wide variety of male-dominant and female-dominant jobs,

however, he believed that the "point-factor" approach to the Hay Plan was

more appropriate. Indeed, Dr. Wolf had agreed, in cross-examination, that,

although the factor comparison approach to Hay can be, and is, used with

dissimilar jobs, it is easier to apply, and perhaps works better, with jobs of

a similar nature.¹⁷³

[563] Dr. Wolf indicated that it was the opinion of the Professional Team

that the Hay Plan was quite able to accommodate clerical and `blue collar'

jobs, particularly with the strengthened working conditions factor. This

would be especially true when it was being applied by evaluators who had

experience with the Hay methods. The Commission, in undertaking its

1991 evaluations, had also felt that the Hay Plan was capable of measuring

`blue collar' and office-environment jobs.

[564] In this case, the Professional Team which evaluated the sample CR

positions, and the `generic' PO jobs was composed of two members who

were former Hay associates, with many, many years of experience in

working with Hay and other clients. The Tribunal finds that Dr. Wolf was

the only expert witness who was sufficiently qualified to assess the

validity and reliability of the Hay Plan generally, and the factor

comparison approach, in particular, vis-à-vis the requirements of this

Complaint. Although he did not appear as an expert witness, Dr. Ingster,

the first member of the Professional Team to be approached by the

Alliance, confirmed, in letters presented as exhibits in this Complaint, the

acceptability of the Hay Plan for use with the materials presented to the

Team for evaluation.

[565] The Tribunal notes the Professional Team's statement, included in

its Report, entered as PSAC-29, that its mandate was "that the Hay method

was to be applied to the job content in accordance with the `best practices'

of senior level Hay consultants considered to be expert in the use of the

Guide Chart-Profile process". The request had been presented to Dr.

Ingster when he was approached by the Alliance to participate in the

evaluation process. The expert opinion, expressed by Dr. Wolf in his viva

voce evidence concerning the Report of the Professional Team, reinforced

the Team's conclusion that the mandate had been followed diligently.

[566] While all three of the expert witnesses called by Canada Post had

some experience in working with the Hay Plan, the Tribunal finds that

only Dr. Wolf demonstrated that he had the in-depth historical knowledge

of how the Hay Plan's original design and use had evolved, in its various

configurations, over its many years of application. He testified that he had

spent thirty years in job evaluation including about twenty years dealing

with the Hay methodology. As observed earlier in this Decision, he

estimated that he had evaluated upwards of 10,000 jobs using the Hay

process, including office clerical and payroll systems jobs, and in his early

days, even `blue collar' jobs. Moreover, when employed with the Hay

organization, he had served as a "correlator" or "keeper of the flame" in

the role of maintaining the integrity of the Hay system.

[567] Additionally, the Team included Dr. Ingster, the person with whom

the Alliance spoke first, and who had received the original Alliance

mandate. Dr. Ingster spent an early part of his career with the Hay

organization and later had an independent affiliation with Hay while

working with a wide-range of clients.

[568] Accordingly, the Tribunal gives significant weight to the ability of

Dr. Wolf and his colleague, Dr. Ingster, to choose, under the unusual

circumstances of this case, the most suitable configuration of the Hay Plan

for use in the evaluation of the jobs/positions involved.

[569] In contrast, the Tribunal finds that the expert opinion of Ms. Winter,

in categorically dismissing the Hay Plan, was presented in a rigid and

immoveable fashion, leaving the impression of being a witness who was

espousing the position of her client rather than being an independent

expert who was attempting to help the Tribunal understand difficult

concepts outside its realm of expertise.

[570] The evidence of Mr. Willis, while not supportive of the factor-

comparison approach, did not dismiss the Hay Plan as such for job

evaluation in a "pay equity" context. Nor did the evidence of Mr. Wallace.

He stated, on page 2 of his Report, that the Hay Guide Chart-Profile

method was "...an excellent job evaluation tool...", but he considered it

inappropriate for use with "...clerical and production/operations jobs".¹⁷⁴

[571] Therefore, the Tribunal finds that, on a balance of probabilities, the

Hay Plan, whether using the factor comparison method or other

approaches, is, in the hands of competent evaluators as were the members

of the Professional Team, a suitable overall job evaluation scheme which

will address the issues of this "pay equity" Complaint in a reasonably

reliable manner.

(iii) The Process

[572] The Tribunal must answer the following question:

Is it more likely than not that the process followed by the

Professional Team in undertaking its evaluations of the

complainant and the comparator positions and jobs, in this case,

was a reasonably reliable one?

[573] As noted earlier in this Decision, the Professional Team, having

been engaged by the Alliance, undertook its evaluations as an entity,

jointly reaching its decisions either unanimously or by consensus. This is,

according to all of the expert evidence before the Tribunal, in line with

what most experts in the field recommend. It is also in accord with the

Commission's own model. The size of the Team was smaller and its make-

up quite different from what one would normally expect. Usually an

evaluation committee would be internal to the organization involved in the

"pay equity" process. There might be external advisory or facilitation

assistance. In this case, however, the situation which set the Professional

Team in motion was far from normal.

[574] The existence of the Professional Team was somewhat unique in the

field of "pay equity" job evaluation undertakings. The process by which

the Professional Team evaluations were completed was equally unique, as

there was no direct involvement from the employer or employees as part

of the evaluation committee. Obviously, this was not a standard approach

to "pay equity" job evaluation. Given the litigious setting, however, this

was a process chosen to evaluate the complainant positions and the 10

`generic' PO jobs using a "rigorous application of the Hay Guide Chart-

Profile Method of job evaluation...".¹⁷⁵

[575] Canada Post submitted that neither Dr. Wolf nor Dr. Ingster had

experience with Canadian postal operations. Indeed, Dr. Wolf admitted in

cross-examination that he had never been inside a Canadian post office

facility. Although the third member of the Team, Judith Davidson-Palmer,

had been an administrative management-level employee of Canada Post,

she had little experience with the Hay Plan.

[576] In addition to Canada Post's concerns regarding the make-up of the

Professional Team, it submitted that there was a dearth of written records

of exactly how the Team had conducted its work. The "audit trail", usually

a vital part of any evaluation process, was weak at best, leaving little

documentation to support the Team's conclusions.

[577] Canada Post's three witnesses with experience in job evaluation

processes denigrated the work of the Professional Team. Ms. Winter noted

that the Team members lacked experience in dealing with clerical and

`blue collar' work, and she was of the opinion that they ran an

undisciplined `sore thumb' review of evaluation results. She faulted the

Team for not establishing a representative and consistent set of

Benchmark evaluations at the start of the evaluation process. Furthermore,

Ms. Winter believed that the Team's initial ordering of positions by

classification levels and by the Commission's evaluation ratings may have

biased the overall process.

[578] Mr. Willis expressed his opinion that the Team lacked a certain

discipline in its deliberations. For example, he felt that the "sore thumb"

step should have been more tightly structured. Additionally, he was

opposed to the `black box' techniques that Dr. Wolf had used in the

evaluation process, techniques drawn from his background in engineering.

Mr. Willis also criticized the Team's use of the U.S. Hay job description

standard.

[579] Mr. Wallace noted that two members of the Team, while being

recognized as experts, lacked postal operations experience. He also

commented unfavourably on what he regarded as the Team's lack of

discipline and rigour in the evaluation process, including the obvious

weakness of the "audit trail".

[580] The Tribunal notes that the Professional Team had to tackle its

assignment in a rather unusual manner. It had, over a relatively short

period of time, to sift through literally thousands of pages of

documentation and exhibits compiled by others. The evidence indicates

that the Team members were not able to adhere to the exact discipline and

rigour which would normally be expected in a joint union-management

process, where the job evaluation committee would be composed of

administrative staff members as well as other employees. The difficulty of

evaluating in such a setting was largely off-set, however, by the particular

competence of the three-member committee. Two of the members had

many years of experience in evaluating jobs using the Hay Plan and other

systems. The third member of the Professional Team had been a Canada

Post employee, working in management and organization development.

Working together, they believed they were able to complete the task

assigned. Their Report and Dr. Wolf's viva voce evidence indicated that

the Team considered that the process by which it conducted its

evaluations, although unconventional, was done with reasonable diligence

and discipline.

[581] The Tribunal accepts this opinion, and finds that the process,

operating in the context of a unique litigious situation, and with an

approach dependent upon the competence and experience of the small

Professional Team, was reasonably reliable. Inevitably, it was not the

superior process which might have resulted had the parties been working

in the more usual, co-operative manner. It was, however, in the view of

the Tribunal, a reasonably reliable process, given the circumstances under

which it was accomplished.

[582] This acceptance of the opinion of the Professional Team, and that of

Dr. Wolf, in particular, that their evaluation process was reasonably

reliable is based upon the Tribunal's finding that the expert evidence of Dr.

Wolf is more credible than that proffered by Canada Post's experts, Ms.

Winter, Mr. Willis, and Mr. Wallace. Dr. Wolf was present during the

process of job evaluation, and participated as a member of the Team. His

evidence was factual as well as that of an expert.

[583] In giving more weight to Dr. Wolf's evidence, the Tribunal has

already acknowledged that the process followed by the Professional Team

was by no means of the highest level.

[584] The weight, if any, which the Tribunal has given to the expert

evidence presented by Canada Post, however, has not been sufficient to

overcome the opinion of Dr. Wolf that the Professional Team participated

in a reasonably reliable evaluation process.

[585] Ms. Winter, a self-made businesswoman and President of her own

consulting company, had spent several successful years as an employee of

Hay Canada, attaining the rank of Sr. Vice-President and Partner. A

sometimes argumentative witness, her opinions in both her viva voce

evidence and in her Reports, displayed a tendency to rigidity and a

requirement for absoluteness when measuring reliability.

[586] Mr. Willis began his job evaluation career with the Hay organization

in the United States and formed his own consulting company in 1971.

Having developed his own job evaluation plan in 1974, he had handled

many job evaluation studies in both the U.S. and in Canada. He provided

advice to the JUMI Study Committee that preceded the Treasury Board

case. That Committee used the Willis Plan in its job evaluations.

[587] Mr. Willis indicated in evidence that he was accustomed to working

in a non-litigious and co-operative setting. Although his Report did not so

indicate, his viva voce evidence confirmed that he had not read all of the

fairly detailed material sent to him by Canada Post. His responses given in

cross-examination were somewhat evasive about the amount of time he

had spent on the work he was requested to do by Canada Post. While

obviously a successful, now-retired consultant, having run his own firm

for some 25 years, his manner before the Tribunal was, at times, rather

curt.

[588] Mr. Wallace began his considerable experience in job evaluation

when he participated in the introduction of the Hay system at the Bank of

Montreal in the 1970's. He went on to manage the Hay process for Shell

Canada and integrated it with Hay world-wide for the parent company,

Royal Dutch Shell. He had been Sr. Vice-President of a consulting

company since late 1996.

[589] Mr. Wallace's mandate was limited to a review of the process

undertaken by the Professional Team in 2000, in addressing the impact on

its 1993/94 evaluations of the additional evidence that had subsequently

arisen from a number of Canada Post witnesses.

[590] He presented himself before the Tribunal as someone who had

learned, on the job, a great deal about job evaluation and compensation

design. His opinion, critical of the Professional Team process, was

predicated on industrial standards with which he was familiar and which

were, in his opinion, rather strict standards. He gave no deference to the

need to give a large and liberal interpretation to human rights legislation.

[591] The Tribunal, while giving no weight, for the reasons noted, to Ms.

Winter's evidence concerning the evaluation process used by the

Professional Team, does not totally dismiss the evidence presented by

Messrs. Willis and Wallace. Rather, some of the criticisms expressed by

them address features which, under normal circumstances, one would

probably prefer not to be present in a job evaluation process. It is,

therefore, a question of determining the degree of weight to be afforded.

[592] Accordingly, after considering the expert evidence, the Tribunal has

given less weight to the evidence of Canada Post's witnesses than it has to

Dr. Wolf and the Professional Team.

[593] Therefore, the Tribunal finds that it is more likely than not that the

evaluation process which the Professional Team used in its work was

reasonably reliable.

VI. RELIABILITY OF JOB INFORMATION SOURCES AND

RESULTING JOB INFORMATION USED BY THE

PROFESSIONAL TEAM

A. Background

[594] All three parties have agreed on the vital importance of using

reliable information and data in job evaluation plans of whatever stripe.

Canada Post's three expert job evaluation witnesses stressed the need to

work with reliable job information and data, although Ms. Winter's

opinion encouraged a standard higher than reasonable reliability as her

exchange with counsel for the Alliance, in cross-examination, confirmed:

Q. So, are you suggesting then, or stating

rather, that in order to accurately evaluate

positions you need 100 percent job

knowledge?

A. Yes.¹⁷⁶

[595] Both Dr. Wolf and Mr. Willis testified that, in their respective

opinions, one's understanding of the jobs to be evaluated (including the

quality of the job information) is of first importance. Of second

importance is the process to be followed:

Dr. Wolf: Even to be a Hay consultant, the

amount of time that you need with the job

evaluation process is less important than

your understanding of the jobs. The rule of

job evaluation is like in computers: it is

garbage in, garbage out. If you don't

understand the job, you can't evaluate it

properly, no matter how much you know

about the technology of the process.¹⁷⁷

Mr. Willis: Next to the quality of the

information, I'd say that the process is

second in importance.¹⁷⁸

[596] As noted earlier in paragraph [413], the generally accepted standard

of the job evaluation industry, of which all expert witnesses were aware, is

to seek, to the extent possible, accuracy, consistency and completeness of

job information being used for job evaluation purposes. Given the

Tribunal's decision in this case to apply a reliability standard of

`reasonableness' (paragraphs [412], [553]), this calls for reasonable

accuracy, reasonable consistency and reasonable completeness.

[597] Accordingly, reasonably reliable job information and data is an

essential ingredient of job evaluation as a concept, given its inherent

dependence on subjective human judgement. Decisions of evaluators who

are using reasonably accurate, consistent and complete job information

should, understandably, and indeed, logically, produce more realistic and

acceptable results than using job information that may be questionable or

flawed.

[598] Although the Tribunal has already tracked the sources and the nature

of the job information used in this case, in excruciating detail, it has

decided to re-examine those sources

and job information in condensed form in two stages, which the Tribunal

has labelled for convenience of reference, as follows:

FACTS I: These are the factual job information sources and the

job information and data that resulted from those

sources that existed prior to the date when the

Professional Team began its work for the Alliance.

FACTS II: These are the additional relevant data and evidence to

which the Professional Team had access once it

began its work.

B. FACTS I

(i) Composition

[599] In summary form, FACTS I is comprised of the following:

- the Job Fact Sheet/Questionnaire which was completed in 1986

by sampled employees; it was designed to relate to the not fully

developed System One job evaluation plan, by a senior

Commission officer, without professional assistance. Although it

was intended to serve as the primary source of up-to-date

information for both the CR and the PO positions, it was used by

the Commission, in fact, only for the CR positions;

- the Interview Guide was also designed by Commission staff, and

based on System One. It was meant to be completed by

Commission interviewers as a follow-up to the Job Fact

Sheet/Questionnaire. It was used for the CR employees only;

interviews were completed by December 1986;

- job descriptions and organization charts which were expected to

be attached to the Job Fact Sheet/Questionnaire by the incumbent

employee completing that form. Most CR job descriptions were

"unofficial",

including

several

CR

Benchmark

position

descriptions; many CR organization charts were out-of-date;

- PO position samples were attempted with new 1989 lists of PO

employees without success. In place of samples, 10 `generic' PO

job specifications were drawn up in 1990/1991 by the

Commission, with Canada Post management personnel supplying

the foundation information and materials, including "unofficial"

job descriptions, and job profiles which identified responsibilities

of each job. These job specifications were developed in a very

different manner from that used for the CR positions which were

determined by means of what the Commission called a random

sample of CR employees occupying actual positions;

- the 10 `generic' jobs represented an amalgam of functions for 10

commonly held job types in the Postal Operations Group. They did

not represent actual jobs or positions and did not have union

approval. The PO supervisory sub-group, which constituted an

element of the comparator group in the original Complaint, was

not represented in the 10 `generic' PO job specifications, in

contrast to the CR sample which included some supervisory

representatives at the CR-5 level.

[600] These were the key sources and the nature of the job information

that resulted from those sources during the pre-Professional Team period

of 1986 to 1991.

[601] Related to these sources and the resulting job information, are four

facts which have already been addressed elsewhere in this Decision, but

are worthy of note in the context of FACTS I as they have potential impact

on the nature of the job information arising from the sources.

[602] The first is the uncertainty that surrounds the various unprofessional

calculations of the CR sampling size. The original CR sample was

developed by a Commission officer in 1986. In 1987, the Commission did

not act upon Statistics Canada's advice regarding the CR sample size. The

CR sample was subsequently reduced in 1991 by Commission staff.

[603] The second is the fact that the Job Fact Sheet and the Interview

Guide were both designed around the uncompleted System One evaluation

system which had the endorsement of neither the Alliance nor Canada

Post.

[604] The third is that the job data were gathered at different times. The

data for the CR positions were gathered in 1986. The bulk of the data for

the `generic' PO jobs was assembled in 1990/1991.

[605] The fourth is the apparent incompatibility between the job

information collected for the CR incumbent-held positions, and the job

"specifications" compiled by the Commission for the non-incumbent-held

`generic' PO jobs.

[606] The Tribunal notes that it is undisputed by all parties that all of

FACTS I occurred well before the Professional Team had been

approached by the Alliance or had begun its work.

(ii) Submissions of the Parties and Expert Witnesses

[607] Focussing exclusively on the FACTS I elements, what were the

principal arguments made by the parties and the expert witnesses in their

respective submissions, about these elements?

[608] There was virtual unanimity between Dr. Wolf and two of Canada

Post's expert witnesses with respect to the 1986 Job Fact

Sheet/Questionnaire. It was Dr. Wolf who classified this document as

`abominable', adding that "...the guy who developed it probably should be

taken out and shot", (paragraph [445]). Both Mr. Willis and Ms. Winter

dismissed it, Mr. Willis calling it "...hopelessly inadequate for Pay Equity

evaluation purposes", (paragraph [497]). Canada Post, too, faulted it on

the grounds it was self-evaluative, which was widely held, in job

evaluation circles, to be unacceptable.

[609] Despite Dr. Wolf's condemnation of the design of the Job Fact

Sheet, he testified that he and his two colleagues still made some use of it

by disregarding the self-evaluation aspects of the responses and focussing

on the "job description information" that could be found in the completed

document. In response to a question from Alliance counsel, Dr. Wolf said:

So you had to work against the tide, if you

will, with these documents unfortunately,

but there was information there. You just

had to be selective in using it to make sure

you didn't pay any attention to the

extraneous part.¹⁷⁹

[610] Both Mr. Willis and Ms. Winter also faulted the 1986 Interview

Guide believing it replicated many of the deficiencies of the Job Fact

Sheet while noting that it too, was based on the not-fully-developed

System One evaluation plan. Dr. Wolf, himself, testified that the Interview

Guide did not add anything of significance to the Professional Team's

understanding of the CR incumbents' duties.

[611] Dr. Wolf acknowledged that some 50 of the CR job descriptions

were unsigned and/or undated, and that others were often out-of-date or

"unofficial," and even sometimes missing. Some did not include

information on working conditions. Similarly, supporting organization

charts were not always available or up-to-date.

[612] Two of Canada Post's expert witnesses identified serious

deficiencies in the job descriptions primarily in terms of age, accuracy,

and official status and all three witnesses stressed the importance of those

undertaking evaluations being entirely satisfied with the job descriptions.

[613] Dr. Wolf admitted that because of the general unacceptability of the

Job Fact Sheet which had been intended as the primary source document

for job evaluation purposes, the Professional Team were compelled to rely

on the available job descriptions as their primary document for the CR

evaluations. He testified that he and his colleagues accepted the job

descriptions as they were, provided they were in correct Canada Post

format.

[614] Dr. Wolf clarified what was meant by treating the job descriptions

as the primary document in comparison with the Job Fact Sheet and the

Interview Guide, in the following cross-examination exchange with

Canada Post counsel:

...when we say primary document, what we

are saying is that when there is some

question of the consistency of the

documents, which one do we defer to, the

answer is that we would defer to the Position

Description as the official Canada Post

document. So when we say it is the primary

document, that is the one we would defer

to.¹⁸⁰

[615] In those situations where there were no position descriptions - and

this occurred in a fair number of instances (paragraph [448]) - Dr. Wolf

agreed that such a deferment would, obviously, not be possible.

[616] Mr. Willis, while recognizing that the PO job specifications came

closer to providing factual job information than the CR documentation,

cautioned that the former were based on management-supplied, not the

more appropriate employee-supplied, job data. Moreover, he pointed out

that, contrary to accepted practice, the job data for each of the CR and PO

employee groups were collected by totally different processes and at two

different periods of time.

[617] Ms. Winter faulted the PO job specifications for not reflecting actual

positions and being incomplete by not including the job rotational

requirements of the PO-4 job level.

[618] In considering the first of the four related facts - the uncertainty

about CR sampling mentioned in paragraph [602] - it is necessary to turn

to the evidence of the two expert witnesses, Drs. Bellhouse and Kervin.

[619] There is an appreciable difference of opinion between these two

expert witnesses. As noted earlier, Dr. Bellhouse argued that the

Commission's original 1986 sampling design, upon which the selection of

CR survey incumbents was based, was flawed. He also argued that the

Commission's sampling of employees rather than positions led to biases in

the sample which were compounded by the level of non-response in the

survey for which corrective action was not taken.

[620] In particular, under the circumstances of this case, where Dr.

Bellhouse understood that the CR classification levels were comprised of

overlapping intervals of Hay Plan points, he considered that a full census

of each CR position would be the required route. When questioned by

Alliance counsel about whether overlapping Hay points and pay based on

those points was a compensation rather than a statistical issue, Dr.

Bellhouse answered that, given the existence of such an overlap, his

recommendation would be a census.

[621] During the re-examination of Dr. Bellhouse by Canada Post counsel,

Dr. Bellhouse agreed, however, that a full census could be avoided if one

were seeking an average value per CR job title instead of per position. One

would redefine the CR community by all of its job titles and, assuming a

good deal of homogeneity, take an appropriate sample within each job

title.¹⁸¹

[622] The Tribunal notes that in earlier evidence relating to the failure of

the Commission to implement a Statistics Canada recommendation in

1987 to augment the CR sample, Statistics Canada was commenting on the

design of an acceptable random sample rather than a census.

[623] With respect to the 10 PO `generic' jobs, Dr. Bellhouse did not

regard them as a probability sample. He considered them, at best, to be a

"judgement sample" with the possibility of substantial bias because it was

a selection of particular job titles (paragraphs [454]-[459]).

[624] Dr. Kervin's opinion was that Dr. Bellhouse over-emphasized the

analytical nature of statistical analysis and the need for scientific

quantitative reliability. Dr. Kervin's point was that Dr. Bellhouse failed to

recognize the sociological, qualitative, and systemic issues involved in a

"pay equity" case. Dr. Kervin further indicated that the representative

sample of CR employees which formed the basis for the collection of data

for the Complainant group was more than adequate. He agreed with Dr.

Bellhouse that the 10 PO `generic' jobs constituted a "judgement sample"

(paragraphs [466]-[468]).

[625] The Tribunal is cognizant of the different backgrounds of these two

experts. One gave his opinion evidence based upon his expertise as a

professional statistician, the other based upon his expertise as a

professional sociologist. Dr. Bellhouse, a Professor of Statistics, was

qualified as an expert in statistics, with specialization in survey sampling.

Dr. Kervin, a Professor of Sociology, was qualified as an expert in data

collection and data analysis. As noted earlier, both have had considerable

experience in working with paying clients, as well as students, in their

respective fields of expertise. Judging from the evidence presented to

qualify each as an expert, both are well regarded in their fields.

[626] At this juncture, the issue is the reasonable reliability of the

sampling methodology and the sample size employed for the CR

population. Much of the expert evidence about implementing a "pay

equity" study in normal circumstances underlined the need to seek expert

advice from professionals. In this instance, expertise in the design and

implementation of statistical survey sampling technology was necessary,

but not sought initially for the 1986 sample.

[627] Dr. Kervin was qualified as an expert in data collection and data

analysis. He did not consider himself to be a professional statistician. In

response to a question from Commission counsel, he said:

I am not a statistician. I don't generate new

statistics.

I don't look at the properties of statistics.

Instead, I use them...¹⁸²

[628] On the other hand, Dr. Bellhouse referred to himself as a "sampling

statistician".¹⁸³

[629] Mr. Willis testified that the process of selecting the CR sample fell

short of meeting the stringent sampling requirements of a "pay equity"

case. Although he did not indicate that a census was a necessity, his

opinion seemed to be closer to that of Dr. Bellhouse than that of

Dr. Kervin.

[630] Accordingly, the Tribunal is faced with two conflicting opinions

about the CR random sample. Ideally, one would want to re-examine the

sampling methodology employed. But, the Tribunal has noted that the

original sample of incumbents was a significant one, representing almost

ten percent of the total CR population. The Professional Team deliberately

chose to evaluate the positions of the full original sample and not limit

itself to the Commission's subsequently reduced sample level.

Furthermore, there was no solid factual evidence provided to demonstrate

that the full sample was unrepresentative of the total CR community.

[631] The second related fact (paragraph [603]) concerns the reality that

the Job Fact Sheet and the Interview Guide were both designed around the

uncompleted System One job evaluation plan. The Professional Team

employed the Hay factor comparison plan in conducting its job

evaluations. Using one plan to design instrumentation - even if only

partially used - and another to undertake job evaluations, is generally

regarded, in the industry, as an unacceptable practice.

[632] Certainly, the Commission's booklet published in 1992 entitled

"Implementing Pay Equity in the Federal Jurisdiction", makes it very clear

that "...use of a single plan to evaluate all jobs is essential," (paragraph

[358]), which would at least imply, if not explicitly state, that a single

evaluation plan should govern all aspects of a particular job evaluation

undertaking, including the gathering of job information documentation.

[633] The third fact (paragraph [604]) relates to the gathering of job data

at different times. The data for the CR positions were collected in 1986,

the data for the PO `generic' jobs primarily in 1990/1991. Mr. Willis

commented on the desirability of collecting job information for all jobs

being compared within a reasonable period of time of each other.

[634] The fourth fact (paragraph [605]) concerns the incongruity between

the job information collected from incumbent CR employees and the job

"specifications" compiled by the Commission for the non-incumbent

`generic' PO jobs. Two of Canada Post's experts questioned such an

approach.

(iii) Credibility of Evidence of Expert Witnesses

[635] What has been the position of each of the parties concerning the

source materials that make up what the Tribunal has called FACTS I?

[636] Canada Post has said, in effect, that the information documented in

FACTS I cannot be relied upon to determine reliable job evaluations.

[637] The Alliance has questioned the credibility of all three of Canada

Post's expert witnesses - Ms. Winter largely on the basis of not meeting

the standard of independence of an expert witness, and being too

categorical or exaggerated in presenting her opinions; Mr. Willis for not

having read all the documentation sent to him by Canada Post, and also on

the grounds of either being unable, or refusing, to comprehend the

litigious context of the Complaint; and Mr. Wallace for not having had

access to much of the documentation involved in the case, and his

tendency to highlight the negative while ignoring the positive.

[638] The Commission discounted the evidence of Ms. Winter essentially

on the basis that she relied on the standard of correctness as the foundation

for her expert opinions. Mr. Willis' credibility was questioned by the

Commission on the basis of being unclear, even ambiguous and evasive

about how long he had taken to review the job materials sent to him by

Canada Post. The Commission submitted that Mr. Wallace's critical

opinion of the job information should be largely discounted because he did

not, nor was he asked, to review most of the job documentation.

[639] Insofar as the three Canada Post expert witnesses are concerned, the

Tribunal concludes that the evidence of Messrs. Willis and Wallace should

not be completely dismissed. Aspects of their evidence deserve some

weight. As for Ms. Winter, in the Tribunal's view, her absolutist standard

of correctness on virtually all fronts requiring a judgement about

reliability, rendered her opinions beyond acceptance.

[640] Mr. Willis, however, was a witness with considerable years of

experience in the job evaluation industry. Perhaps, he was somewhat

evasive, and even acerbic on occasion, as when, for example, in response

to a question from Canada Post's counsel, he said:

...the CHRC and PSAC's three consultants

were faced with having to do work with

inadequate data. I think it was so inadequate

that neither one of them could - without

additional

input,

without

additional

information, I don't see how either one of

them could have done a satisfactory job.

In my overall analysis, I cannot back down

one step: they are both junk...¹⁸⁴

[641] Mr. Willis' attitude should not completely overrule his expertise. His

service to the Joint Union-Management Initiative, and subsequently as an

expert witness on the Treasury Board case, are illustrative of the depth of

his knowledge and experience, and his reputation in his field.

[642] The Tribunal appreciates the sheer volume of materials that existed

in this case. There were over 400 transcripts and about a thousand

supporting exhibits alone. Although not all of this documentation was sent

to Mr. Willis, he did receive a significant amount of material to review.

For an expert witness of the calibre and continental standing of Mr. Willis,

some of the documentation in FACTS I, such as that concerning the CR

sample methodology, the design of the Job Fact Sheet and the Interview

Guide, would have pointed to deficiencies which were readily apparent

without having read all the materials.

[643] Mr. Wallace also had considerable experience in the field of job

evaluation. While his mandate, in this case, covered a more limited aspect

and period of time, involving far less documentation than Mr. Willis, his

knowledge and depth in applying the objectives and principles of job

evaluation, particularly in the private sector, and in "pay equity"

situations, were impressive.

C. FACTS II

(i) Composition and Impact

[644] FACTS II constitutes the additional relevant information, data and

evidence, beyond FACTS I, to which the Professional Team had access in

undertaking its CR and PO job evaluations in 1993/1994 (supplemented in

2000).

[645] One such additional item which the Alliance had provided to the

Team was Hay documentation which the Commission had originally

received from the Hay organization, including Guide Charts and a variety

of samples of definitions of Hay evaluating factors. Dr. Ingster advised in

correspondence with the Alliance that the Hay documentation had not

been tailored for Commission use but was rather general Hay

presentational material.

[646] The Professional Team also had access, in 1993, to the

Commission's Rationale Statements which recorded its ratings, and

reasons therefor, for its 1991 job evaluations of the reduced sample of 93

CR incumbents. The Commission's 1991 CR evaluations were based on

the XYZ Hay Plan. The Team also drew on its own evaluations of the

original 93 sample to provide Reference Positions for its second phase of

97 CR's which it undertook in 1994. Notes taken by Professional Team

members during their telephone interviews with CR incumbents conducted

in May 1993 and September 1994, were further CR position materials in

the Team's possession.

[647] For the PO community, the Professional Team had access to

behavioural dimensions for each job which the Commission had obtained

from Canada Post as well as the Commission's Rationale Statements

indicating its 1991 job evaluation ratings, and reasons therefor, of the 10

`generic' jobs based on the XYZ Hay Plan. Dr. Ingster had advised,

however, in his letter of July 21, 1993 to the Alliance, that the behavioural

dimensions and job profiles had not been provided for four of the 10 PO

`generic' jobs.

[648] A Commission-prepared document was also furnished which

included descriptions of the knowledge and skill, problem solving,

responsibility and working conditions characteristics of the 10 PO

`generic' jobs. Finally, the Team also referred to a variety of Canada Post

operator handbooks, postal guides and related materials.

[649] Subsequent to the Professional Team's 1993/1994 CR and PO job

evaluations, there was, in 1997, newly-found CR documentation which

included several, but not all, of the previously missing job descriptions.

However, Dr. Wolf, on behalf of the Team, concluded that this additional

material was not significant enough to re-evaluate the Team's earlier

evaluations.

[650] In the year 2000, the Professional Team undertook a review of the

possible impact on its 1993/1994 job evaluations of a considerable amount

of evidence which had been submitted to the Tribunal during the period of

1995 to 2000, by a number of Canada Post witnesses.

[651] This voluminous new evidence consisted of approximately 4,000

pages of written material including transcripts of many days of testimony-

in-chief and of cross-examination concerning job content, primarily for the

10 `generic' PO jobs. A considerable number of exhibits were also

involved such as Canada Post manuals, handbooks and training materials.

Several other exhibits were provided by the Alliance and the Commission.

[652] Dr. Wolf screened this extensive documentation and extracted

material that he considered was not relevant to job evaluation. The balance

was then referred to the full Professional Team. Canada Post's counsel

questioned whether this was an acceptable practice to discard material

before it had been seen by his two colleagues.

[653] Dr. Wolf indicated in his evidence that he and his two colleagues

had concluded, based on this new material, that each of the 10 `generic'

jobs probably described few, if any, of the many incumbents of those jobs.

Few, if any, would be performing all of the duties described. In response,

and in fairness to all incumbents, Dr. Wolf and his two colleagues chose to

re-evaluate the 10 `generic' jobs based on the assumption that all

incumbents were performing all of the respective duties concerned.

[654] The Professional Team concluded that the new evidence had no

impact on their CR evaluations but had some impact on their PO `generic'

job evaluations. For example, Dr. Wolf testified that:

...the range of content within any one of the

PO jobs was much greater than we had

originally realized. The 10 jobs really

represent many more than that.¹⁸⁵

[655] Dr. Wolf reported that several changes in evaluation point values

resulted from the re-evaluation of the 10 `generic' jobs. Five of the PO

`generic' jobs had no changes in their evaluation point values, and three

jobs had minimal changes of three points or less. Two `generic' jobs had

significant changes in point value. The Counter Clerk `generic' went up in

value while the Relief Mail Services Courier `generic' went down in value.

[656] Consequently, FACTS II provided the Professional Team with a fair

amount of additional job information, data and background material to that

provided by FACTS I. The question, therefore, arises: how useful did this

FACTS II additional job information and background material prove to

be?

[657] Undoubtedly, it added to the Professional Team's overall perspective

of the nature and work of the employee groups involved in the Complaint.

While a good portion of the new material related solely to the Postal

Operations Group (PO) of employees, there was also additional material

covering the CR community.

[658] For example, the Professional Team's CR employee telephone

interview notes served as new material which was helpful in providing a

focus on the working conditions factor of the CR positions involved.

[659] As already noted, Dr. Wolf confirmed that the Professional Team's

review of the newly found CR documentation in 1997 was not sufficiently

significant to re-evaluate the Team's earlier evaluations. On the other

hand, the Team's review of the new evidence arising from the Canada Post

witnesses over the period 1995 to 2000 did result in major changes in

evaluated point values for two of the 10 PO generic jobs.

[660] All told, the Tribunal finds that the evidence supports the view that

while much of the new job information and background materials that

made up FACTS II did not add a substantive new dimension to the core

job information base of FACTS I, it did augment and fortify the

Professional Team's understanding of the jobs and positions to be

evaluated.

D. FACTS I and II Compared to Reliability Standard of the Job

Evaluation Industry

[661] How did the job information and data of FACTS I and II measure-

up to the generally accepted standard of the job evaluation industry, as

described in paragraph [596]? In other words, how reasonably accurate,

how reasonably consistent and how reasonably complete were the job

information/data used by the Professional Team (FACTS I and II) in

undertaking its job evaluations in 1993/1994 (supplemented in 2000)?

[662] The deficiencies already well documented above in the job

descriptions which the Professional Team came to regard as their primary

source documents for the CR positions are, perhaps, one of the best

illustrations of a general lack of accuracy, consistency and completeness.

Dr. Wolf, himself, acknowledged the many deficiencies including out-of-

date, incomplete, unofficial and even missing CR job descriptions.

[663] Canada Post was supported by Mr. Willis and Ms. Winter in

commenting on the lack of accuracy, consistency and completeness in

many of the CR job descriptions, noting that generally they did not include

information on working conditions. Mr. Wallace also stated in his report

that there was a "...lack of complete and consistent documentation".¹⁸⁶

[664] Even the Commission cautioned about the use of job descriptions in

its booklet on implementing "pay equity", as follows:

...job descriptions should not be used on

their own or treated as the primary source of

data, since they often replicate prevailing

stereotypes and are not always an up-to-

date, accurate reflection of work done,

(paragraph [358]).

[665] An inconsistency also occurred in the use of the Interview Guide

with CR incumbents. Certain changes in its original design, proposed by a

representative of the Alliance, were accepted by the Commission after

interviews had already begun, resulting in two versions of the Interview

Guide having been in the system.

[666] Questions of inconsistency and incompleteness also arose in

evidence about the CR sample which included supervisors at the CR-5

level, while the PO supervisor's sub-group had been dropped by the

Commission from the PO `generic' jobs. Similarly, lack of consistency

was expressed over the appreciable difference in the dates of information

collection - 1986 for the CR's and 1990/1991 for the PO `generic' jobs.

Mr. Willis, for example, indicated that all data involved in job evaluation

should, ideally, be collected during the same time period and as near as

practicable, to the date of performance of the job evaluations. He

considered this to be important because of the tendency of jobs to change

over time.

[667] The Alliance and the Commission did not really directly address the

industry standard of attaining reasonable accuracy, consistency and

completeness of job information used in job evaluation undertakings. Both

parties tended to discredit the evidence, in this regard, of Messrs. Willis

and Wallace on the basis of not having read all the relevant documentation

and not having performed CR and PO job evaluations themselves. They

contended, therefore, that the opinions of Messrs. Willis and Wallace were

based on incomplete information, and should be rejected. As only Dr.

Wolf and his two colleagues had worked through all the job

documentation and actively performed job evaluations, the Commission

and the Alliance urged that Dr. Wolf's opinions be accepted.

[668] Interestingly, Dr. Wolf openly acknowledged particular

inaccuracies, inconsistencies and incompleteness in job information,

which were referred to above.

E. Tribunal's Analysis

(i) A Daunting Task

[669] In undertaking this final analysis of the job information used in this

case, the Tribunal is reminded of the following two factors which were

observed earlier in this Decision.

[670] Both Dr. Wolf and Mr. Willis confirmed that in conducting job

evaluations, the quality of the job information and one's understanding of

the jobs are paramount, out-matching either the evaluation plan or the

process involved.

[671] The Alliance and the Commission chose to rely exclusively on the

Professional Team's job evaluations performed in 1993/1994,

(supplemented in 2000), to substantiate the Complaint. In effect, the

Alliance and the Commission have asked that the Commission's job

evaluations performed in each of 1987 and 1991 be ignored in favour of

those conducted by the Professional Team. What cannot be ignored,

however, is the fact that a portion of the source materials used by the

Team to conduct its evaluations was, essentially, the information that the

Commission had employed in its own earlier evaluations, that is FACTS I.

[672] The Tribunal's assessment and weighing of the evidence submitted

by each of the parties and expert witnesses concerning this issue of the

reliability of the job information has been a daunting task.

[673] There is little doubt that the job information (FACTS I and II)

employed by the Professional Team in conducting its job evaluations did

not meet the standard that one would normally expect from a joint

employer-employee "pay equity" study. But, given the somewhat painful

and prolonged circumstances of the case before this Tribunal, was the job

information "good enough", on a balance of probabilities, to generate

reasonably reliable job/position values that, in turn, could be used to

demonstrate whether or not there was a wage gap?

[674] Dr. Wolf, as spokesman for the Professional Team, acknowledged

that he and his two colleagues found many shortcomings in the available

job data. But he also said that their job understanding was "...adequate but

not necessarily ideal..." (paragraph [484]).

[675] By "adequate", the Tribunal suggested in paragraph [486], one

might consider "sufficient" as an acceptable synonym.

[676] The Tribunal sees little value in attempting to attribute blame for the

state of the job information but notes that the Alliance counsel in his final

oral argument stated the following:

If we have less than an ideal view of the PO

work, I suggest to you that, in large

measure, that has been caused by decisions

made by Canada Post.¹⁸⁷

[677] At the same time, the Tribunal notes that section 43 of the Act

furnishes the Commission with certain powers to obtain relevant

documentation from a respondent while conducting its investigation of a

complaint. Hence, the Tribunal accepts that the Commission, and perhaps

even the Complainant, could also be held partially accountable for the job

information available in this case.

[678] Another aspect which the Tribunal believes deserves mention and

over which the Professional Team had no direct input relates to the CR

sample. While the conflicting positions of expert witnesses Drs. Bellhouse

and Kervin have been documented above, it is helpful to note the

following final oral argument made by the Alliance's counsel which adds

yet another dimension to that issue:

I will point out one factor that you might

consider, however, and that is that when you

are looking at the data, one of the things that

stuck in my mind, the representivity of the

data, you go back to the root cause of the

alleged problems with the CR sample, and

the problem comes from the fact that

Canada Post gave the Commission an out-

of-date employee list. That is the origin, that

is the genesis of the need to go and get other

employees.

I am not going to tell you that the

Commission was perfect in what they did,

but nor was Canada Post. It certainly would

be inequitable for Canada Post to now come

to the Tribunal and say that you can't rely on

the data when they were responsible for

providing

the

information

to

the

Commission.¹⁸⁸

[679] To answer the question of whether or not the job information was

reasonably reliable, the Tribunal found the following excerpt helpful:

In Anglo-Canadian law ... the courts have

consistently held that if the plaintiff

establishes that a loss has probably been

suffered, the difficulty of determining the

amount of it can never excuse the

wrongdoer from paying damages. If the

amount is difficult to estimate, the tribunal

must simply do its best on the material

available, though of course if the plaintiff

has not adduced evidence that might have

been expected to be adduced if the claim

were sound, the omission will tell against

the plaintiff. In Ratcliffe v. Evans, Bower

L.J. said:

As much certainty and

particularity must be insisted

on, both in pleading and

proof of damage, as is

reasonable, having regard to

the circumstances and to the

nature of the acts themselves

by which the damage is done.

To insist upon less would be

to relax old and intelligible

principles. To insist upon

more would be the vainest

pedantry.¹⁸⁹

[680] While the aforementioned excerpt relates to the law of damages, the

Tribunal finds that it addresses an approach that may be analogous to what

the Tribunal considers to be the spectrum of reasonable reliability. The

Tribunal has already accepted (paragraph [596]) that a standard of

`reasonableness' should apply in determining the reliability of the job

evaluation system chosen, the process followed and the job information

used. An absolutist standard of `correctness' has been dismissed as has the

evidence of Ms. Winter on these same grounds.

[681] The publication of Professor Waddams, cited above, to which,

interestingly, both the Commission and the Alliance made reference in the

context of their submissions on Remedy, refers to the need for a tribunal,

in determining damages, to "do its best on the material available," because

the difficulty of determining the amount of damages "can never excuse the

wrongdoer from paying damages." The citation goes on to state from the

Ratcliffe v. Evans case that to insist upon more than reasonable certainty in

pleading and proof of damage "would be the vainest pedantry," and to

insist upon less "would be to relax old and intelligible principles".¹⁹⁰

[682] In other words, absolutism should probably be avoided at both ends

of the spectrum. A standard of 100% correctness is unacceptable at the top

end of the spectrum as is a standard at the lower end which simply

dismisses everything as being entirely worthless. This conception of a

spectrum is certainly relevant to the Tribunal's decision concerning the

reasonable reliability of the documentation used to conduct the evaluations

in this Complaint.

[683] In view of the circumstances of this particular case and the remedial

nature of human rights legislation calling for a purposive, broad and

liberal interpretation, the Tribunal finds that a similarly broad and liberal

approach, using the analogy of the spectrum, is appropriate to a decision

concerning the reasonable reliability of the job information. While the job

information may not meet the degree of reliability that should normally be

sought for a "pay equity" situation, is it "adequate", as Dr. Wolf indicated

it was, for this specific situation? Alternatively, should the job information

used by the Professional Team, with its various deficiencies, be dismissed

as being entirely worthless, and as absolutely without merit, along the

lines of Mr. Willis' opinion?

[684] The Tribunal believes these questions are best answered in the

context of the total job evaluation undertaking - that is the job evaluation

plan selected, and above all, the evaluators involved.

[685] Given the very considerable job evaluation experience of Drs. Wolf

and Ingster of the Professional Team, including their application, over

many years, of the Hay system to a wide-range of jobs involving a variety

of job information, the Tribunal considers that their opinion concerning

the reliability of the available job information was particularly compelling.

[686] Moreover, Dr. Wolf was not hesitant to identify deficiencies in

instruments such as the Job Fact Sheet and certain job descriptions. He

also demonstrated an ability to adapt to the situation before him as

illustrated in his remarks about being "selective" in using data included in

the Job Fact Sheet (paragraph [609]). He obviously knew how to avoid the

most offensive aspects of that document. He and his two colleagues were

therefore very aware of the imperfections, including certain

inconsistencies and even incompleteness, in the job information, but still

concluded that the material was "adequate" for the work being performed

by the Professional Team.

[687] The Professional Team also benefited from the augmentation of the

FACTS I base data by means of the FACTS II material. Examples include

the new working conditions information that arose from the telephone

interviews with the CR sample members contacted. Another, was the re-

evaluation of the 10 PO `generic' jobs in the year 2000 based on

considerable new evidence from a number of Canada Post witnesses,

resulting in two significant job value revisions.

[688] In responding to a question from Alliance counsel about his

"comfort level" with the overall evaluations performed by the Professional

Team, Dr. Wolf replied as follows, implying that the job information was

at least adequate:

I feel that these evaluations are valid

representations of the particular jobs at

hand. I wouldn't have evaluated the job if I

didn't feel we could evaluate it in a

meaningful and appropriate way. That's why

we punted on the four we punted on,

because we felt we just couldn't accurately

evaluate those jobs.¹⁹¹

[689] The Tribunal must confess that navigating the job information

through the straits of "reasonable reliability" has not been a relaxing

passage. Yet, balancing the evidence presented by all parties and expert

witnesses, and under the unique circumstances of this case in the realm of

proscribed discrimination human rights legislation, the Tribunal finds that

the job information, in the hands of the Professional Team, was more

likely than not, "reasonably reliable", or "adequate" as that Team

described it, despite certain imperfections.

(ii) Definitions and Sub-bands of Acceptability

[690] Recognizing the significance of this conclusion, the Tribunal wishes

to record how it decided to handle what it considers to be one of the most

challenging aspects of this case. To assist itself in analysing the many

facets of the available job information and testing for the "reasonable

reliability" of that information, the Tribunal found it necessary to re-

examine the definitions with which it was working.

[691] Firstly, the expression used by Dr. Wolf in describing the

Professional Team's job understanding was " ... adequate but not

necessarily ideal...". The Tribunal drew on Webster's and Oxford's

definitions of the word "adequate" in paragraph [485]. Both dictionaries

included "sufficient" as one of their definitions of "adequate". In turn, both

dictionaries have defined "sufficient" as being "adequate" or "enough".

The word "ideal" is defined by Webster as "a standard of perfection or

excellence", and by Oxford as "conceived as perfect in its kind".

[692] How do these definitions compare to the meaning of "reasonably

reliable"? Webster defines "reasonable" as "not exceeding the limit

prescribed by reason, not excessive, moderate". Oxford defines

"reasonable" as "not going beyond the limit assigned by reason, not

extravagant or excessive, moderate". Webster defines "reliable" as

"consistently dependable in character, judgements, performances or

result". Oxford defines "reliable" as "in which confidence may be put,

trustworthy, safe, sure".

[693] "Reasonably reliable" job information can therefore, be interpreted

as being job information that is consistently, moderately dependable or in

which moderate confidence can be put. The words "adequate" and

"sufficient" are interchangeable. While some might consider "consistently,

moderately dependable" or "moderate confidence" to be more demanding

than "adequate" or "sufficient", in terms of the level of quality, the

Tribunal concluded that they are generally equivalent for the situation at

hand.

[694] Accordingly, the Tribunal regarded the term "reasonably reliable"

and the words "adequate" and "sufficient" as being interchangeable for the

purpose of determining the state of reliability of the job information

available in this case. Obviously, the word "ideal" sets a standard of

correctness well beyond the standard of "reasonable reliability".

[695] Having clarified the terminology governing the standard of

reliability, the Tribunal concluded that it is more likely than not that there

is no one exact point that represents "reasonable" reliability, or "adequate"

reliability. Rather, it is more likely than not that a range or band of

acceptability represents what is meant by "reasonable" or "adequate"

reliability. Some candidate items may fit more comfortably than others

within that band, but all that pass the test of entry are considered to be

reasonably or adequately or sufficiently reliable.

[696] While the Tribunal concluded that it is difficult, and probably

unwise, to attempt to be quantitatively precise about the width of the range

or band of acceptability, it found that it was administratively useful to

think in terms of three possible sub-bands. The first sub-band represents

the upper percentiles of the band, the second sub-band represents the mid-

percentiles, and the third sub-band the lower percentiles. The Tribunal

called these respectively, "upper reasonable reliability", "mid reasonable

reliability" and "lower reasonable reliability".

[697] In undertaking its study of the massive sea of material and testimony

of this multi-year case, the Tribunal evolved to the view that ultimate

fairness to all parties in a "pay equity" case would probably be achieved

when the quality of the job information concerned fell comfortably into

the "upper reasonable reliability" sub-band. The higher the sub-band level

within the band of "reasonable reliability", the higher the quality and the

more accurate the eventual values attributed to the jobs and positions

involved - at least in theory.

[698] Thus, while all three sub-bands meet the test of "reasonable

reliability", the upper sub-band meets the test more abundantly and

should, in the Tribunal's view, be the preferred choice for a "pay equity"

situation.

[699] At this point, the Tribunal asked itself, into which sub-band would it

place the job information which the Professional Team employed in this

case? Given the number of reservations and imperfections in the available

job information already identified in the foregoing review, the Tribunal

concluded that that information could not be comfortably classified as

"upper reasonably reliable". Nor was the Tribunal content to accept the job

information as fitting, however tightly, into the "mid reasonably reliable"

sub-band. The Tribunal did, however, agree that the most suitable home

for the job information was the "lower reasonably reliable" sub-band.

[700] Hence, the Tribunal found, as stated in paragraph [689], that it was

more likely than not that the job information utilized by the Professional

Team in conducting its job evaluations of the CR and PO positions/jobs

pertinent to this case, was reasonably reliable, albeit at the "lower

reasonably reliable" sub-band level.

VII. WAGE GAP AND WAGE ADJUSTMENT METHODOLOGY

A. Introduction

[701] Having found that it is more likely than not, that the "off-the-shelf"

Hay Plan being used in the traditional factor comparison methodology, the

process followed and the job information utilized by the Professional

Team in conducting its CR and PO positions/jobs evaluations were

reasonably reliable, the next questions to be addressed are:

How reliable were the resulting job evaluation values attributed by

the Professional Team to the CR positions and PO jobs concerned?

Was a "wage gap" demonstrated between the female and male

predominant groups performing work of equal value?

[702] The Tribunal has already established the credibility of the three

members of the Professional Team, having noted their qualifications in

paragraph [382]. More particularly, Dr. Wolf was qualified as an expert in

Hay-based job evaluation and Hay-based compensation.

[703] Accordingly, the Tribunal concludes that it is more likely than not

that the aforementioned reasonably reliable Hay Plan, process and job

information, in the hands of competent evaluators, as were the

Professional Team, would result in reasonably reliable job evaluation

values being attributed to the work performed by CR and PO employees.

[704] The Professional Team in its Final Report on the Hay Method

Evaluation concluded:

Having found that a substantial portion of

the CR jobs are of a value equal to, or

greater than, that of the PO jobs, the logical

next step was to identify the nature of the

wage gap, if any, between the male-

dominated PO jobs and the female-

dominated CR jobs.¹⁹²

[705] In comparing its CR and PO job evaluation values with CR and PO

hourly compensation rates, the Professional Team stated in its Report

(Exhibit PSAC-30), that it did so for each of three years: 1983,

representing the year the Complaint was filed; 1989, the year the

Commission used for its wage analysis, and 1995, the year of the

Professional Team's Report. The hourly wage rates were supplied by the

Alliance and were assumed to be correct. The top rate was used in all

cases.

[706] As its wage adjustment methodology, the Professional Team

employed a level-to-line method in which a male wage line was developed

against which female pay rates were compared. The Team used this level-

to-line approach because it is an indirect comparison frequently used in

"pay equity" situations involving large organizations as distinct from a

direct job-to-job approach. The male wage line represents a "pattern" of

male jobs plotted on a graph, using total job evaluation point values as one

axis of the graph and wages as the other. Once this is done, the

intersection of point values and wages for the female jobs, plotted

similarly using the same graph, is compared to the male line at particular

intersection positions.

[707] The Professional Team developed eight different male wage or pay

lines which it designated Approaches A to H inclusive, including one for

each of PO-INT jobs (Approach A), PO-EXT jobs (Approach B), and an

average of PO-INT and EXT jobs (Approach E), for each of the three

chosen years. One job-to-job comparison was also undertaken, or

"position matching" as the Team called it (Approach H).

[708] Analyses by the Professional Team of the pay relationships between

the male-dominated PO jobs and the female-dominated CR positions

revealed a wage gap no matter which level-to-line method was used. A

similar result occurred with the "position matching" approach. These

findings were equally true for each of the years 1983, 1989, and 1995.

[709] The Professional Team concluded that "all of these approaches show

a significant gap between the wages paid to CR's and to PO's performing

work of equal value".¹⁹³Although there were differences in the size of the

wage gap across the various approaches, the Professional Team

characterized these differences as "relatively minor."

[710] From a compensation perspective, the Professional Team's expert

opinion was that the best measure of the pay discrepancy between the PO

and CR jobs/positions was based on the PO-INT male wage line

(Approach A) or the "position matching" option (Approach H). The Team

felt this was so because the INT jobs seemed to be a closer match to the

CR positions in terms of job content.

B. Submissions of the Parties

(i) The Alliance

[711] The Alliance submitted that once a wage gap has been established, it

is necessary to decide upon the most appropriate method of closing it

between the CR's and the PO's. It also submitted that closing the gap is

best done by means of employing a "wage adjustment methodology".

[712] Of the eight male pay lines drawn up by the Professional Team, the

Alliance's preferred approach was an adjustment to the average of the INT

and EXT pay line - Approach E - because the Alliance felt it best

represented the pay practices of the male comparator group. As already

noted, the Professional Team's preference was the INT pay line (Approach

A) though it accepted that Approach E was also workable.

[713] The Alliance's witness, Mr. Terrence Ranger, whose evidence was

heard in November 1995, supported the Alliance's position. The Tribunal

was not asked to qualify Mr. Ranger as an expert witness.

[714] Mr. Ranger stated that he was, at the time he gave his evidence,

employed by the Alliance as Section Head of Research in the Collective

Bargaining Branch. This branch included six research officers who served

on negotiating teams and provided background support for bargaining

demands. The officers also undertook compensation analysis in the areas

of direct wages and benefits such as pension, dental and health care plans.

He was first engaged by the Alliance in 1976 as a senior research officer.

He confirmed that he had been called as a witness before the tribunal

which handled the Treasury Board case.¹⁹⁴There, he had been asked to

calculate the monies required to close a wage gap that had been

determined by one of the statistical consultants involved in that case.

[715] Mr. Ranger testified that he had reviewed Dr. Lee's Report¹⁹⁵and

the Professional Team's Reports¹⁹⁶, and had, as his objective, to cost for

each year of the Complaint, the payments that would be necessary to close

the wage gaps that had been determined by the Professional Team in its

eight different approaches. Since the Team's calculations had been limited

to the years 1983, 1989, and 1995, Mr. Ranger indicated that he produced

pay lines based on the Team's methodology for each of the years from

1981 to 1995. The starting year of 1981 reflected the year that Canada

Post became a Crown Corporation. He used what he called "annual

equivalent" direct wage rates for each 12-month period and excluded

"indirect wages" from his calculations in line with Dr. Lee's conclusions.

[716] In effect, Mr. Ranger testified, he had replicated what the

Professional Team had done, using the same methodology, with the

addition of employee population levels. These, he understood were

Canada Post numbers which had been obtained either by the Alliance or

directly from the Agreed Statement of Facts. For the years 1981 to 1985,

he assumed the population figures would be the same as for 1986. Mr.

Ranger then multiplied the wage gap identified by the Professional Team

for each of the eight approaches, by the number of working hours per year

and by the number of employees concerned.

[717] Mr. Ranger's conclusion was that the Professional Team's Approach

E - the average of INT and EXT male pay lines - offered the best

representation of the comparator population and therefore, the most

appropriate remedy for this case. He recognized that the payout would be

less under Approach E than under the Professional Team's preferred

Approach A.

[718] Mr. Ranger cautioned that the employee population data he used

should be regarded as "estimates" as the data were taken at particular

points in time and were assumed to be full-time employees for the entire

12-month period. In reality, some full-time employees may not have been

employed in a given position for the full 12 months of a year, and some

are believed to have been part-time employees. Consequently, this would,

Mr. Ranger indicated, impact on his costing.

[719] Mr. Ranger went on to testify that the total possible wage gap

payout to CR employees that he had calculated as being just over $124

million (excluding "indirect wages"), should be regarded as "an estimate",

and maybe even "...a ballpark estimate that's on the high side".

[720] He also testified as follows:

I am not suggesting that the $124 million be

the settlement cost; it is some indication of

the global costing of this complaint, but I

don't think that anyone here could come up

with that amount. I think that what should be

identified are the hourly amounts that are

required and then each individual employee

will receive the amount that is due to them

based on those hourly amounts and the

amount of time they worked during the

period. The final cost in fact won't be known

to us, to anybody, until all of this is

implemented.¹⁹⁷

[721] When he was cross-examined by Canada Post's counsel, Mr. Ranger

agreed that any equal pay adjustments should be "pay for all purposes".

He explained that this meant the adjustment would also include any

statutory remittances that Canada Post might have to make arising from

the basic adjustment. He cited examples such as the employer's obligations

involved in items like superannuation, employment insurance and health

tax. Although these would add to Canada Post's costs, they had not been

quantified by Mr. Ranger.

[722] The Alliance was strongly supportive of the "pay for all purposes"

concept and submitted that monies payable to CR's to close the wage gap

must be so classified. Appropriate adjustments would have to be made to

reflect the cost of such statutory remittances.

[723] Under further questioning by Canada Post's counsel, Mr. Ranger

confirmed that for purposes of his wage gap calculations he used the

maximum wage rate allotted in the range of wage rates for a given

position or job. Although positions or jobs with particular evaluation

points will fall into specific wage bands and incumbents may be earning

different rates within a given band depending on length of time in that

position or job, for Mr. Ranger's quantification of the cost of closing the

wage gap, he assumed each job or position was paid at the highest level

allowed.

[724] The Alliance also submitted that the "fold-in" principle should be

implemented at the time of the wage adjustment to close the wage gap.

The submission was that, as of the date of the final Tribunal Decision, an

adjustment would be made to the base wage rates in the CR collective

agreement such that wages for CR's would be the same as wages for PO's

for work of equal value. The adjustment would be folded into the base CR

wage rate.

[725] As an alternative to Mr. Ranger's endorsement of the Professional

Team's wage adjustment methodology, the Alliance submitted that the

job-based methodology of Dr. Kervin would be acceptable for this case.

The Alliance considered that Dr. Kervin's approach produced very similar

wage gaps to those found by the Professional Team and Mr. Ranger.

[726] In conclusion, the Alliance submitted that the final actual costing of

the wage gaps will require additional work. For example, an examination

of individual employee records held by Canada Post will be necessary.

Additionally, the Professional Team's changes in certain PO job

evaluations, arising from its review, in June 2000, of the evidence of

Canada Post witnesses, will impact on wage gap calculations. These

changes were identified in the Professional Team's Report (Exhibit PSAC-

180).

(ii) The Commission

[727] The Commission submitted that an award of lost wages is warranted

to address the wage gap that has been demonstrated to exist between the

CR and the PO employee groups in this case. It was also submitted by the

Commission that the most appropriate wage adjustment methodology to

use in calculating this particular award is a level-to-line approach using a

combined male line such as the Professional Team's Approach E.

[728] It was noted by the Commission that most "pay equity" cases which

are systemic in nature involve occupational groups which do not always

lend themselves to direct comparisons of the value of the work performed.

In the instant case, since the jobs of the PO-INT and PO-EXT sub-groups

do not provide direct comparators for the CR positions, the Commission

submitted that, as permitted by section 15 of the 1986 Guidelines, an

indirect comparison between female and male work must be used. This,

argued the Commission, involves the construction of a male pay line using

regression analysis.

[729] The Commission also argued that such an indirect comparison, by

means of the level-to-line wage adjustment methodology, would be

compatible with what Drs. Wolf and Kervin and Mr. Ranger had

recommended. It would also be consistent with the approach taken in the

Treasury Board case.¹⁹⁸

[730] The male pay line, according to the Commission's submissions,

should combine all relevant male data available. This would best be

accomplished using Approach E from the Professional Team's options. It

would also accord with the choices of Dr. Kervin and Mr. Ranger, and is

consistent with section 14 of the 1986 Guidelines. That section notes that

when a comparison is made between the occupational group that filed a

complaint alleging a difference in wages, and other occupational groups,

those other groups are deemed to be one group.

[731] The Commission submitted that the most appropriate wage

adjustment approach for the female job values was one based upon a level

as opposed to a female wage line. Hence, the level-to-line designation. Dr.

Wolf and Mr. Ranger had based their female level on the average of the

evaluation scores of the positions within each CR level.

[732] The Commission submitted that, while neither it nor the Alliance

had the ability to determine which positions comprised the jobs for the CR

sample, Canada Post in May 1999 provided, through its witness Mr. Brian

Wilson, a Report on rolling-up the evaluated CR positions into jobs.¹⁹⁹Mr.

Wilson, a Canada Post retiree since late 1995, had spent over 30 years

with the company, having started as a letter carrier and moved

progressively through the labour relations and human resources

supervisory and management ranks.

[733] It was the Commission's submission that Dr. Mark Killingsworth,

another of Canada Post's witnesses, then determined the average values of

these jobs, using the evaluated CR positions and their gender

predominance from Mr. Wilson's material. The Commission argued that it

was from Dr. Killingsworth's determinations that Dr. Kervin, the

Alliance's witness, was able to provide his expert advice on how to

calculate the level-to-line "pay equity" adjustments.

[734] Dr. Killingsworth was qualified by the Tribunal as an expert witness

in labour economics including econometrics. He obtained his Bachelor

of Arts degree "with high distinction" in Economics from the University

of Michigan in 1967. He then attended Oxford University on a Rhodes

Scholarship, earning a B. Phil in Economics in 1969 and his D. Phil in

Economics in 1977. At the time of his first appearance before the Tribunal

in May 1999, he was Professor of Economics at Rutgers University in

New Jersey, a position he had held since 1988. He was also serving as

Research Economist for the National Bureau of Economic Research,

having been in that post since 1984. He is the author of a number of

publications on Comparable Worth (the U.S. term for "pay equity") and

has undertaken considerable research in that and related fields.

[735] Because Dr. Kervin's analysis involved the use of CR jobs rather

than CR positions, this is the Commission's favoured approach. The

Commission argued that many experts agree that the preferred unit of

analysis for equal pay studies is "jobs". A "job" is a collection of duties

usually performed by several or many individual employees occupying

"positions".

[736] Whether the "jobs" or the "positions" approach was used to calculate

the female level, the Commission submitted that the level-to-line

methodology was preferable in this case. It does, however, assume that

each level is based on a representative sample of predominantly female

jobs. The Commission reminded the Tribunal that Dr. Kervin's expert

opinion was that the CR sample was adequately representative.

[737] The Commission's submissions underlined the use of the Hay Plan,

whereby the random-sampled CR positions were evaluated in accordance

with the four factors of skill, effort, responsibility required in the

performance of the work, and the conditions under which the work was

performed, as called for in subsection 11(2) of the Act. This resulted in the

range of job values for each of the CR levels.

[738] The Commission concluded that Dr. Kervin's and Mr. Ranger's

methodologies, both involving a composite male pay line, were the most

appropriate. Accordingly, the Commission submitted two sets of

calculations of adjustments required for each CR level to achieve equal

pay for work of equal value for the years from 1981 to 2002.

[739] The first calculation was based on Dr. Kervin's methodology using

the Professional Team's evaluation job values, under which he had

determined a wage gap for the year 1995. From this base year, the

Commission extrapolated wage gaps for each of the other years. The

second calculation was that of Mr. Ranger's whose wage gap

determination by CR level by year, was based upon the methodology

employed by the Professional Team.

[740] The Commission indicated that the wage rates used in its wage

adjustment calculations were based on those recorded in the relevant

collective agreements. Specifically, the wage rates for the years 1981 to

1994 were those stipulated in Mr. Ranger's Report. Those for 1995 were

drawn from the Professional Team's Reports. Those for the years 1996 to

2002 were taken directly from the collective agreements by the

Commission, since neither the Professional Team nor Dr. Kervin provided

calculations beyond 1995.

[741] The Commission indicated that while both Dr. Kervin's and Mr.

Ranger's calculations provided satisfactory estimates of the wage gap for

any given year, it preferred Dr. Kervin's wage adjustment estimates.

Reasons for this preference included Dr. Kervin's use of an average job

value in each CR level as opposed to the average position value of Dr.

Wolf's team. Also the Commission considered Dr. Kervin's calculations to

be more accurate and up-to-date than those of Mr. Ranger.

[742] The Commission acknowledged that both sets of calculations

represented wage gap estimates only and the determination of actual

payouts for individual CR employees must, of necessity, be subject to the

examination of employee records with appropriate employer input.

[743] While the Commission argued that tribunals do not determine total

individual payouts, the Tribunal, should it find the determination of

evaluated job values to be reasonably reliable, must decide which wage

adjustment methodology is appropriate, given the circumstances of the

case.

[744] The Commission indicated its agreement with the Alliance's "fold-

in" principle that, in making any back-pay adjustment, it would be folded

into the CR base wage rates in its collective agreement²⁰⁰

[745] The Commission was also supportive of the "pay for all purposes"

concept and submitted that:

...it is essential that the pay equity

adjustments include not only adjustments to

base salary, but also for all purposes, i.e.

pensions, overtime, sick leave, acting pay,

and long term disability payments.²⁰¹

[746] The Commission did, however, accept the expert evidence of Dr.

Lee in concluding that there was no material difference between the non-

wage compensation of CR's and PO's, based on current contracts for full-

time employees. Dr. Lee had reviewed the "historical differences" for the

previous 12 years and concluded that they could not be calculated reliably

without a complete file of employee experience for each benefit provision.

Where differences did exist, Dr. Lee considered them to be minor and, in

most cases, without a wage equivalent value of significance for "pay

equity" purposes. Therefore, Dr. Lee had presented his opinion that there

was no overall difference in non-wage compensation that should be

incorporated into the calculation of wage adjustments that would favour

either the CR's or the PO's.

[747] It was also the Commission's submission that the exclusion of the

PO-SUP subgroup of jobs from the PO occupational group during both the

Investigation Stage and the subsequent "pay equity" process, had no

bearing on the reasonable reliability of the wage adjustment methodology.

[748] The Commission urged the Tribunal to retain jurisdiction after

submitting its Decision, to assist the parties as may be appropriate, in the

event difficulties are encountered at a later date in determining the

specifics of individual payouts.

(iii) Canada Post

[749] Canada Post submitted that the question of Remedy, including the

wage adjustment methodology need not arise if the Tribunal were to

decide in Canada Post's favour and dismiss the Complaint for one or more

of the reasons it had already argued. However, Canada Post did choose to

respond to the submissions of the Alliance and the Commission on

remedial issues.

[750] Canada Post argued that the importance of a remedial award and its

impact on all parties demands a high degree of confidence in the

methodology used to determine any wage adjustments. In this regard,

Canada Post considered the Alliance's wage adjustment calculations to be

"exaggerated in every respect". Canada Post estimated that based on Mr.

Ranger's methodology, the total award would be approximately $2.4

billion, and approximately $443 million based on Dr. Kervin's

methodology.

[751] It was noted by Canada Post that the Alliance's submission and

Mr. Ranger's calculations were based on the Professional Team's wage

adjustment analysis which included development of a regression line for

the male jobs by fitting a line through the PO data points manually by eye,

using a ruler. The pay line was then extended beyond the range of the PO

data by extrapolation which Canada Post stated was not considered an

acceptable technique by the Equal Pay Division of Labour Canada.

[752] It was Canada Post's submission that there were four significant

flaws in the Professional Team's wage adjustment analysis that rendered it

inadequate as a basis for calculating appropriate wage adjustments in this

case.

[753] The first flaw, in Canada Post's opinion, was the manual setting of

the male pay lines. Dr. Wolf had testified that while there is a difference of

opinion among statisticians as to the minimum number of observations

required for the proper use of regression analysis, most regard less than 25

to 30 to be questionable. Dr. Wolf and his two colleagues had five PO-

INT observations and five PO-EXT observations, derived from "generic"

job titles. Yet, the Professional Team actually drew regression lines by

hand based on this limited number of observations.

[754] The second flaw was the exclusion by the Professional Team of one

of the five observations in drawing its PO-EXT regression line which it

considered to be anomalous because the job concerned was paid

significantly more that the other jobs. Canada Post submitted that there

may have been a more plausible reason for its exclusion. If it had been

included, it might, in Canada Post's view, have demonstrated that there

was no relationship between wages and job values.

[755] The third flaw was the Professional Team's extrapolation of the PO-

INT and PO-EXT pay lines which, Canada Post argued, demonstrated that

the majority of the Hay point scores for the CR 2, 3, 4, and 5's fell outside

the range of PO point scores. Only through extrapolation was it possible to

make this comparison since there were no PO jobs that were equal in

value to many of the lower value CR jobs. Accordingly, Canada Post was

of the opinion that on the basis of the data collected by the Commission, it

was simply not possible to make a wage adjustment for those lower value

CR jobs.

[756] The fourth flaw related to the Professional Team's selection of wage

adjustment models which Canada Post considered to be unjustified.

Having developed seven level-to-line pay lines and one position-matched

option for only three of the years involved, Canada Post argued that with

little explanation, Dr. Wolf and his two colleagues recommended the most

expensive option for each of the three years. Both the Alliance and the

Commission preferred the lower priced average composite PO-INT and

PO-EXT option.

[757] With respect to Mr. Ranger's analysis, Canada Post submitted that

since it was based upon the Professional Team's work, the defects in the

latter's reasoning and analysis were continued in Mr. Ranger's work.

Further, Canada Post questioned Mr. Ranger's method of developing PO

job pay lines for the years not addressed by the Professional Team,

particularly where he based his pay lines on just two observation points.

[758] Canada Post submitted that as a result of the fundamental flaws in

the analysis of the Professional Team, compounded by the questionable

approach of Mr. Ranger, Mr. Ranger's analysis and calculations must be

rejected out of hand.

[759] Canada Post argued that Dr. Kervin's wage adjustment methodology

was also seriously defective and identified its four basic steps as follows:

STEP 1. A male pay line was determined using regression analysis

of the male-dominated PO-INT and PO-EXT jobs.

2. An average evaluation points score value was determined for the

jobs in each of the four female-dominated CR

levels.

3. Steps 1 and 2 were used to obtain a "predicted male wage" for

each CR level.

4. The difference between the actual hourly wage for each CR

level and its "predicted male wage" for that CR

level was determined which represented the amount

of wage adjustment to be made for that CR level.

[760] Canada Post maintained that there were six flaws in Step 1, ranging

from the fact that the male pay line included one of ten PO jobs that was

not male-dominated but was between 33% and 53% female (the PO-4), to

the fact that Dr. Kervin constructed his pay lines and computed pay

adjustments for all years in 1995 dollars only.

[761] In Step 2, Canada Post demonstrated that, by assuming that all jobs

in the same CR level 2, 3, 4, or 5, had the same "job value" (the average

job value within that level), some difficult and even absurd anomalies

resulted because of the substantial overlap of job values between CR

levels. Canada Post argued that a census rather than a sample might,

indeed, be necessary at the adjustments stage to ensure a fair and equitable

wage adjustment.

[762] Canada Post faulted Step 3 of Dr. Kervin's methodology for treating

all the employees in PO jobs as though they were men, and all PO jobs as

though they were male-dominated, even though in Canada Post's

submission, neither of these assumptions were true.

[763] Finally, Canada Post argued that Step 4 would result in all jobs in a

given CR level receiving the same wage adjustment regardless of their

actual job value or their actual female percentage. For example, if one

particular job at the CR-2 level was not female dominated, that job would

obtain the same wage adjustment as a CR-2 job that was female

dominated. Canada Post alleged that only 69.1% of the CR-2 incumbents

were female, and were therefore, only "weakly" and not "predominantly",

female (effective year not specified). Yet, Dr. Kervin's approach would

provide CR-2 jobs with the largest wage adjustment of any CR level.

[764] Canada Post also claimed that three of the four CR levels would,

under Dr. Kervin's model, receive a wage adjustment substantially in

excess of what Dr. Killingsworth derived in his "Model 1" as the

maximum difference in pay that can be attributed to gender. This was

unusual, argued Canada Post, as Dr. Kervin had, when presenting his

evidence, fully endorsed and accepted Dr. Killingsworth's "Model 1".

[765] In conclusion, Canada Post submitted that a wage gap award based

on Dr. Kervin's methodology would be seriously flawed and should be

rejected by the Tribunal.

[766] Canada Post proposed an alternative wage adjustment

methodology that would, in its opinion, avoid the flaws contained in the

proposals of Mr. Ranger and Dr. Kervin while furthering the objective of

section 11 of the Act. The basic principles of Canada Post's wage

adjustment proposal were expressed along the following lines:

PRINCIPLE 1. Since the purpose of section 11 is to eliminate sex-

based wage gaps, wages would only be

increased for those jobs in a CR level that

are strongly female.

2. Since section 11 requires wage adjustments only to the extent

that there is unequal pay for work of equal

value, adjustments should be made at the

level of the job, where job value is

reasonably precise.

3. Wage adjustments should correct only for wage differences

attributable to the gender make-up of the job

and should only close the gap between

predominantly female jobs and jobs

performed by men.

4. Wage adjustments should be made only as "back-pay" to

compensate for past discrimination. The

Alliance and Canada Post have agreed in

their current collective agreement that pay

rates are compliant with section 11 of the

Act.

[767] To accomplish these principles, Canada Post outlined a detailed

procedure which will not be described here. Suffice it to say that the

procedure included use of Dr. Killingsworth's Models 1 and 7 for each

year from 1981 to 2001, and of actual PO and CR wage rates including

benefits and the 6.7% "paid lunch" allowance for the years in which it was

in effect. It also provided for determining the percentage female in each

predominantly female job.²⁰²

[768] Canada Post submitted that in the event the Tribunal ordered a wage

adjustment in this case, it should direct the parties to use this approach in

calculating the relevant amounts, while recognizing that the agreement of

all parties would be required as how best to implement that approach.

[769] Two other issues were addressed by Canada Post. The first related to

what has been termed "paid lunch", which Canada Post argued was

included or assumed in the calculations of Drs. Wolf and Kervin and Mr.

Ranger. This gross-up of the PO wage rates by 6.7% should, in Canada

Post's view, be removed. Canada Post argued that the evidence of Messrs

Edward Fournier and Harold Dunstan, two of its witnesses, demonstrated

that this benefit was achieved through collective bargaining and awarded

on the basis of enhancing productivity. Known as "pay for performance",

Canada Post submitted, it was clearly related to productivity and not to

gender. Therefore, Canada Post argued that, because subsection 16(a) of

the 1986 Guidelines indicates that a difference in wages between male and

female employees performing work of equal value is justified by different

performance ratings, this particular difference cannot be part of a wage

gap.

[770] The second issue was the impact on Canada Post of the collective

bargaining and labour relations situation that prevailed for several years

following the proclamation of the Canada Post Corporation Act in

October 1981. Upon becoming a Crown Corporation, the then existing

bargaining units and agents of the former Post Office Department

remained in place until 1985 to assist in providing transitional stability.

This, and the introduction of the federal "6 and 5" cost control legislation

in 1982, pre-empted an early start by Canada Post on the expected reform

of the collective bargaining process.

[771] Consequently, Canada Post has now argued, in this case, that it

"cannot be fairly said to have either established or maintained wage

differences before at least 1985."²⁰³

[772] Canada Post took this argument one step further by referring to the

fact that the Canada Labour Relations Board did not release its decision on

the appropriate bargaining units structure for Canada Post until 1988 and

its effect was not felt until the next round of bargaining in 1989-1992.

Hence, Canada Post's following statement:

Again, Canada Post cannot reasonably be

said to have infringed section 11 because it

had no real power to participate in

establishing or maintaining wages until after

that time.²⁰⁴

(iv) Reply Submissions of the Alliance

[773] In addressing Canada Post's criticisms of the manual fitting of the

male pay line, the Alliance countered that while "the results may be

somewhat less accurate" than regression analysis, the technique used by

the Professional Team had been successfully used by Mr. Willis in his

Washington State Study. The Alliance also understood the Professional

Team's results were extremely close to those of Dr. Kervin.

[774] The Alliance argued that Canada Post's questioning of Mr. Ranger's

work in generating PO pay lines for each year of the Complaint was

"entirely without merit." Mr. Ranger's calculations were derived from

basic mathematical principles and precisely replicated the Professional

Team's methodology.

[775] The Alliance reiterated that when the analyses of the Professional

Team and Mr. Ranger were conducted, it was only possible to compare

CR positions to PO jobs. The work of both Mr. Wilson and Dr.

Killingsworth made it possible for Dr. Kervin to gross-up the CR positions

into CR jobs enabling him to undertake his analysis on this basis. Despite

this difference, the Alliance claimed that Dr. Kervin's end results were

"strikingly similar" to those of the Professional Team and Mr. Ranger, and

in the alternative, the Alliance adopted Dr. Kervin's methodology.

[776] The Alliance made reference to the fact that a wage increase of

nearly 20% had been granted by Canada Post to CR employees in

1995/1996 which would reduce the wage gap for the years subsequent to

1995.

[777] With respect to Canada Post's proposed alternative wage adjustment

methodology, the Alliance noted that this approach had never been

advanced explicitly during the hearing and that it remained uncosted. The

Alliance indicated that it adopted the submissions of the Commission

regarding the inherent problems with such an approach.

[778] The Alliance questioned Canada Post's use of subsection 16(a) of

the 1986 Guidelines to justify excluding the value of the "paid lunch" in

the calculation of PO wages on the basis of section 17 of the 1986

Guidelines. Section 17 requires that the reasonable factor invoked must be

equally available to all male and female employees concerned. Canada

Post failed, alleged the Alliance, to establish that performance pay was

equally open to both the male comparator and the female complainant

groups because the evidence before the Tribunal would indicate that CR

performance pay does not exist.

[779] The response of the Alliance to Canada Post's defences that it should

not be responsible for wage discrimination under section 11 of the Act for

a number of years during the 1980's was that "[t]hese defences are

unmeritorious". While Canada Post has always maintained that there was

no wage discrimination, the Alliance argued that Canada Post initially

maintained and later independently established discriminatory wages

between male and female employees performing work of equal value, an

offence under section 11. The Alliance also argued that Canada Post could

have rectified the situation by making voluntary equal pay adjustments,

outside of collective agreements and without affecting base wage rates, as

did the Government of Canada in the JUMI undertaking. Canada Post

chose not to do so.

[780] It was, therefore, the Alliance's submission that the specified time

period during which Canada Post argued it lacked the power to establish

or maintain wage differences should not be excluded from the ambit of

this Complaint.

(v) Reply Submissions of the Commission

[781] The Commission acknowledged that it articulated its position on

wage adjustment methodology after much of the evidence had been led. It

was only after hearing the evidence of Mr. Wilson regarding the roll-up of

CR positions to jobs, and having heard the expert evidence of Dr. Kervin,

that the Commission felt comfortable taking a firm position on the choice

of level-to-line methodology.

[782] The Commission submitted that Canada Post had misinterpreted the

wage adjustment methodology used by itself and the Alliance by claiming

that both are treating the average of each CR level as a "job". The

Commission responded by stating that its wage adjustment methodology

does not treat each level as a job but averages the job values by CR level

because all CR's in a given level are treated the same for pay purposes.

[783] Canada Post's calculations of a possible total award based on

Mr. Ranger's approach of approximately $2.4 billion, and of

approximately $443 million based on Dr. Kervin's model, were questioned

by the Commission. Neither supporting evidence indicating how the

figures had been determined, nor evidence to enable one to replicate the

calculations, were furnished, according to the Commission.

[784] In response to what the Commission regarded as grossly inflated

calculations by Canada Post, the Commission submitted that it had

undertaken its own calculations based on Dr. Kervin's methodology. The

Commission stressed that its calculations were but estimates, as the exact

amounts would be dependent upon a number of factors about which

information is not known at this time. Examples are: the exact number of

employees at Canada Post over each of the many years of this case, their

length of service, and the individual entitlements associated with "pay for

all purposes".

[785] Based on Mr. Wilson's reported CR population numbers and

assuming a 1956.6 hour year, the Commission estimated the possible cost

of correcting the CR wage gaps to be of the following order:

(1) Using the Courts of Justice Act interest rate:

compounded semi-annually approximately $527.5 million

simple annually approximately $357.4 million

(2) Using the Canada Savings Bonds interest rate:

compounded semi-annually approximately $375.2 million

simple annually approximately $301.1 million

[786] The Commission cautioned that it had made what it considered to be

certain reasonable assumptions and choices in arriving at these estimates,

for the purpose of providing the Tribunal with a more realistic indication

of potential cost implications than what had been provided to date.

[787] The Commission submitted that Canada Post's attacks on Dr.

Kervin's wage adjustment methodology can best be dismissed by

addressing several key issues, as follows.

[788] The first issue was Canada Post's flawed interpretation of section 11

of the Act and a misunderstanding or refusal to accept section 13 of the

1986 Guidelines. It would seem, argued the Commission, that Canada Post

was simply opposed to the manner in which section 13 of the 1986

Guidelines determines gender predominance and preferred some other

method or the use of an alternative percentage cut-off point. The

Commission believed that the jurisprudence supports its approach in

applying section 13 of the 1986 Guidelines.

[789] The second issue was the use of the linear regression line. The

Commission believed that Canada Post had repeatedly misunderstood the

purpose of regression analysis in wage adjustment approaches. It is not, as

Canada Post had argued, to "explain" pay, but rather to summarize the

wages for the male and female groups, so that comparisons can be made

"on average" in relation to a new measure of job value derived by means

of a gender neutral job evaluation plan.

[790] The third issue was the use of extrapolation. Contrary to Canada

Post's assertion, the Commission submitted that Dr. Kervin did not

question the use of extrapolation. Nor did he state that there were too few

jobs to calculate a regression line for the male PO jobs. What Dr. Kervin

did say was that it would be more difficult to extrapolate if the line were

not linear. In this case, however, the PO pay line was linear.

[791] The fourth issue was Canada Post's criticism of the level-to-line

wage adjustment methodology which, in the Commission's opinion,

provided "on-average fairness" within the existing CR classification

structure. The Commission emphasized that one of the purposes of the

level-to-line approach, as with any regression line model, is to allow wage

adjustments where direct job-to-job comparisons are not feasible.

[792] The fifth issue was a misinterpretation of the significance of

Dr. Killingsworth's Model 1 as it related to the calculation of "pay equity"

adjustments. In asserting that the level-to-line approach can produce

"absurd" results when compared with Dr. Killingsworth's Model 1, the

Commission argued that Canada Post had failed to realize that Model 1

was fundamentally different from a level-to-line model and measured a

different variable. It was the Commission's position that, while Dr. Kervin

acknowledged that Model 1 could show the existence of a "pay equity"

problem, he did not accept it as suitable for determining exact wage gap

adjustments.

[793] With respect to Canada Post's own proposed alternative wage

adjustment methodology, the Commission called it a "novel approach" but

argued that, in formulating it, Canada Post had ignored or misinterpreted

section 11 of the Act, the 1986 Guidelines and the case law. It appeared to

the Commission to be an attempt to avoid the application of the Act and

would lead to a result which would fail to advance the purpose of section

11 because it would not address systemic gender-based wage

discrimination stemming from occupational segregation and the

undervaluing of women's work.

[794] The Commission questioned Canada Post's statement that its

proposed methodology had been used in the past, and particularly that it

had been "widely supported," and argued that the source cited by Canada

Post failed to substantiate this proposition. In the Commission's view,

Canada Post's proposal had been neither used nor supported under any

federal equal pay for work of equal value policy, nor in any Canadian

jurisdiction.

[795] The Commission argued further that since Canada Post's proposal

hinges upon the use of "percent female" instead of the concept of "gender

predominance," it runs counter to what expert witnesses Drs. Armstrong

and Kervin had advocated - addressing occupational segregation and the

undervaluing of women's work as intended by section 11 of the Act.

[796] Finally, the Commission remarked that it had had no opportunity to

attempt to replicate Canada Post's proposed adjustment methodology, and

no evidence, expert or otherwise, had been called to elaborate upon it.

[797] In sum, the Commission submitted that the Tribunal should take an

extremely cautious approach to Canada Post's wage adjustment

methodological proposal and should reject it.

C. Tribunal's Analysis

(i) Preliminary

[798] The Tribunal has already concluded that it is more likely than not

that the reasonably reliable Hay Plan, process and job information, in the

hands of the competent Professional Team, would result in reasonably

reliable job evaluation values being attributed to the work performed by

CR and PO employees (paragraph [703]). In determining the value of the

work performed by those employees, the Professional Team applied the

composite of the skill, effort and responsibility required in the

performance of the work, and the conditions under which the work was

performed, all in line with the requirements of subsection 11(2) of the Act.

[799] Comparing the resulting CR and PO job evaluation values, the

Professional Team found that a significant portion of the CR positions

were of a value equal to or greater than that of the PO jobs. The next step

was to identify whether or not there was a wage gap between the male-

dominated PO jobs and the female-dominated CR positions after

comparing the evaluation values and CR and PO hourly wage rates. The

Professional Team concluded that there was a wage gap between CR's and

PO's performing work of equal value.

[800] Establishing a wage gap in this context is a most crucial step since it

is the wage gap that evidences the discriminatory practice prohibited by

section 11 of the Act. It has been said several times in this Decision that

the essential purpose of section 11 is to eliminate systemic discrimination

- to achieve "pay equity" between male and female employees employed

in the same establishment who are performing work of equal value. It is

therefore, by demonstrating a difference in wages between such male and

female employees that systemic discrimination is proven under section 11,

on a balance of probabilities, provided the employer has not demonstrated

that the difference is attributed to one of the reasonable factors prescribed

in section 16 of the 1986 Guidelines, and also provided that the

methodology used in determining the wage gap meets the requirements of

the Act.

[801] The Tribunal accepts that the evidence of the Professional Team,

both through the viva voce evidence of Dr. Wolf and also through the

presentation of the Team's Reports to the Tribunal, is sufficient, on a

balance of probabilities, to demonstrate a wage gap when the work of the

predominantly female CR's was compared with the work of equal value

being performed by the predominantly male PO's at Canada Post. As Mme

Justice L'Heureux-Dube indicated, when she wrote of the difficulty of

comparing work of equal value in the SEPQA decision:

One element of difficulty is the concept of

equality. The prohibition against wage

discrimination is part of a broader legislative

scheme

designed

to

eradicate

all

discriminatory practices and to promote

equality in employment. In this larger

context section 11 addresses the problem of

the undervaluing of work performed by

women. As this objective transcends the

obvious prohibition against paying lower

wages for strictly identical work, the notion

of equality in section 11 should not receive a

technical or restrictive interpretation.²⁰⁵

[802] Further, the Tribunal accepts that Canada Post has not demonstrated

that there was, in its personnel or wage policies, a reasonable factor

prescribed in section 16 of the 1986 Guidelines which could explain this

wage gap as caused by other than systemic sex discrimination.

[803] Having accepted that there is a wage gap, and, consequently, there is

proof, on a balance of probabilities, that there has been systemic

discrimination in this "pay equity" complaint, the next step is to select the

most appropriate wage adjustment methodology to use to calculate an

award of lost wages and to eliminate the gap. Given the many

circumstances of this case, how appropriate are the wage adjustment

proposals presented herein, and is there one or more that the Tribunal

finds acceptable?

[804] To select the most appropriate wage adjustment methodology, it is

helpful to be reminded of what Mr. Justice Evans said in the Treasury

Board decision about the role of the Commission and the tribunal in such

a choice:

Section 11 provides only a broad legal

framework within which problems of wage

discrimination between men and women are

to be tackled in light of the facts of the

particular

employment

situation,

the

evidence of expert witnesses, and the

underlying purposes of the statute. In my

view it would be inconsistent with both the

underlying purpose of section 11, and the

legislative record, to interpret the section as

impliedly prescribing with the particularity

suggested by counsel for the Attorney

General the characteristics of the permitted

comparative methodologies. Much must

inevitably be left to be decided by the

Commission and the Tribunal case by

case, with the assistance of experts.

(emphasis added)²⁰⁶

[805] The Tribunal has concluded from the evidence before it, and

influenced by Mr. Justice Evans' Treasury Board decision, that testing for

the appropriateness of the proposed wage adjustment methodologies is

best handled in the following manner:

1. Are the methodologies compatible with the purpose of the Act,

its Guidelines and its remedial provisions?

2. What expert evidence was heard and what supportive case law

was identified with respect to each wage adjustment

methodology?

3. What experience has the Commission had with such or similar

methodologies?

4. Are the methodologies sufficiently compatible with how work

and wages are structured and organized by the employer, so

that should a Remedy be recommended, it could be

implemented without undue difficulty?

[806] The Tribunal has identified three wage adjustment methodologies

that it considers deserve assessment, as follows:

1. The Professional Team/Ranger Proposal in the PO INT - PO

EXT composite version, labelled Approach E: This version

was based on the Professional Team's methodology

subsequently replicated by Mr. Ranger who also undertook

calculations on 12 month periods; supported by the

Alliance, accepted by the Commission, and found to be

unacceptable by Canada Post.

2. The Kervin/Commission Proposal in a PO composite version:

This version used the Professional Team's base material

and Dr. Kervin's methodology in which he rolled up CR

positions into CR jobs, courtesy of Mr. Wilson's and

Dr. Killingsworth's workings; calculated by Dr. Kervin for

1995, all other years extrapolated by the Commission.

Preferred option of the Commission, acceptable to the

Alliance, unacceptable to Canada Post.

3. The Canada Post Alternative Proposal. Proposed by Canada

Post to avoid what it considered to be flaws in the other two

proposals; presented in Canada Post's final submissions.

Acceptable to Canada Post, unacceptable to the Alliance

and the Commission.

(ii) Review of the Wage Adjustment Methodology Proposals

[807] Canada Post submitted that its Proposal would further the objective

of section 11 of the Act by not awarding compensation where there was no

demonstrated wage gap or where a wage gap was not based on sex. Wages

would only be increased for those jobs in a CR level that were strongly

female. Adjustments would have to be made at the level of the job where

job value is reasonably precise.

[808] However, the Commission argued that Canada Post, in developing

its Proposal, had ignored or misinterpreted section 11 of the Act and the

1986 Guidelines, as well as case law, by failing to address systemic

gender-based

wage

discrimination

stemming from occupational

segregation in the undervaluing of women's work.

[809] Unfortunately, there was no expert or other evidence led by Canada

Post in defence of its position. There was, however, evidence from the

Alliance's expert witness, Dr. Kervin, who argued that Dr. Killingsworth's

Model 1, which constituted an element of Canada Post's Proposal, was not

suitable for determining exact wage gap adjustments. Indeed, because

Dr. Killingsworth's methodology ignored the gender predominance

requirements in the Act and the Guidelines, his Models would not, in Dr.

Kervin's opinion, be appropriate for the "pay equity" Complaint before the

Tribunal.

[810] The Commission disputed Canada Post's statement that its proposed

methodology had been used in the past and had been widely supported. It

had, to the Commission's knowledge, never been used nor supported under

the federal equal pay for work of equal value policy, nor in any Canadian

jurisdiction.

[811] The Tribunal notes that Canada Post's Proposal lacked any estimated

costing of its possible impact as a wage adjustment approach. It was also

noted that the Commission had not had an opportunity to replicate the

methodology of this alternative option.

[812] As a result, the Tribunal found it very difficult to assess this

methodology vis-à-vis the other two Proposals, quite apart from

attempting to put in context the many criticisms submitted by the

Commission and endorsed by the Alliance. While one or two aspects of

Canada Post's Proposal sparked the investigative interest of the Tribunal, it

has concluded that it would be grossly unfair, not only to Canada Post, the

initiator, but also to the other two parties, to attempt to make a decision

about the appropriateness of a fairly complex matter, based on the very

slim amount of factual evidence available and the complete absence of

expert evidential input.

[813] Under these circumstances, the Tribunal is compelled to excise the

Canada Post Proposal from further consideration.

[814] Both the Alliance and the Commission submitted that the two other

Proposals, despite Canada Post's criticisms of them, were consistent with

the purpose of the Act which, in line with Mr. Justice Laforest's 1987

decision in the Robichaud case, is remedial.²⁰⁷

[815] The Tribunal also recognizes the importance of addressing systemic

remedies when one is dealing with systemic discrimination. Remedial

measures should remedy the past, present and future effects of such

discrimination. As Mr. Justice Dickson, then Chief Justice of the Supreme

Court of Canada, pronounced in 1987 "statutes are deemed to be remedial

and are thus to be given such fair, large and liberal interpretation as will

best ensure that their objects are attained ... [and] the purpose of the

[Canadian Human Rights] Act is ... to prevent discrimination".²⁰⁸After a

lengthy discussion of systemic discrimination and the methods necessary

to combat it, the Chief Justice concluded that "it is essential to look to the

past patterns of discrimination and to destroy those patterns in order to

prevent the same type of discrimination in the future".²⁰⁹

[816] In 1996, Mr. Justice Hugessen noted that there was a "presumption

that systemic discrimination will have produced the same effects in the

past as it does in the present, although that presumption clearly becomes

weaker the further it is extended into the past".²¹⁰

[817] The Tribunal accepts the Commission's argument that while wage

adjustment methodology can be a fairly technical matter, its real purpose

is to operationalize equality under section 11 of the Act and it should,

therefore, not receive a restrictive, overly technical interpretation.

Complementing the goal of equality is the discretionary non-prescriptive

remedial authority of the Tribunal under subsection 53(2) of the Act. The

scope of the Tribunal's remedial jurisdiction is, therefore, not only

discretionary but also broadly based in all of the circumstances concerned.

[818] In this case, the Tribunal accepts the evidence of Mr. Durber, an

early Commission expert witness, who dealt with the concept of "on-

average fairness" as a determinative factor when dealing with the concept

of "pay equity". He made the pertinent point that one is not dealing with

one-to-one, job-to-job comparisons in seeking wage equality when large

organizations and large numbers of employees are involved, but rather

with employee group comparisons that provide "on-average fairness".

[819] To put Mr. Durber's comments about "on-average fairness" in

context, it is helpful to refer to his testimony in May 1993. During his

direct evidence, while he was explaining why it was not feasible to do a

job-to-job comparison, Mr. Durber pointed out that "averaging means that

there are jobs whose values are higher than that mean and jobs whose

values are lower".²¹¹

[820] Additionally, Mr. Durber concluded that there were reasons why

individual job-to-job comparisons were neither practical nor even

desirable, in this particular case:

Fairness on average will end up with a

system that is fair on average, that when

one is designing a remedy, one probably

cannot afford to design a remedy for all

individuals because you are dealing with a

systemic issue in which you are trying to see

if whole structures ought to be adjusted on

some reasonable basis. (emphasis added)²¹²

[821] Indeed, the Commission's booklet "Implementing Pay Equity in the

Federal Jurisdiction" referred to in earlier sections of this Decision

(Exhibit HR-1), identified the "wage line approach" which presents job

values and wages for employees in male-dominated jobs on an average

wage line. The Tribunal accepts that the level-to-line approach is

appropriate for a "pay equity" case such as this Complaint, and notes that

both Proposals under review supported the composite PO level-to-line

male wage line approach.

[822] The Tribunal is cognizant that the Treasury Board case, in which the

Commission was actively engaged, involved considerable evidence from

expert witnesses called to give opinions concerning the selection of an

acceptable wage adjustment methodology.²¹³The tribunal in that case

favoured a level-to-segment methodology after hearing from at least four

witnesses with significant expertise in the subject matter.

[823] The Tribunal accepts that the two Proposals recognize that the wage

adjustment device should be crafted in such a way that it can be

implemented at the level in the organization at which the wage inequality

manifests itself. In the current case, it is a question of adjusting the pay

rates for the different CR classification levels because the goal of section

11 is to remedy discrimination within the existing job classification system

of Canada Post. This will enable male predominant and female

predominant employees, performing work of equal value in the same

establishment, to receive equal pay.

[824] Both Proposals have relied, understandably, on certain core

evaluation material generated by the Professional Team, the job

information for which was categorized by the Tribunal as being of "lower

reasonable reliability". Additionally, there has continued to be a question

of how representative the CR sample was, in fact, given the different

opinions of Drs. Kervin and Bellhouse. Dr. Kervin considered the sample

to be sufficiently representative to provide adequate representation at each

CR level for use in his methodology.

[825] With regard to the "paid lunch" issue, the evidence before the

Tribunal was that the PO wage rates used in the calculations of the

Professional Team, and of Dr. Kervin and Mr. Ranger, reflected the 6.7%

additional value.²¹⁴A similar addition to the CR wage rates was not

applied, as "paid lunch" is not applicable to the CR employees.

Furthermore, the Tribunal finds that no evidence was presented to support

Canada Post's argument that the value of "paid lunch" should be excluded

under subsection 16(a) of the 1986 Guidelines as a "pay for performance"

provision, which would require equal applicability to both the PO and CR

employees under section 17 of the 1986 Guidelines.

[826] There does, however, appear to be some disparity between what

Canada Post called for in its own Alternative Proposal and what it

submitted about the Professional Team/Ranger and Kervin/Commission

Proposals, insofar as the "paid lunch" issue is concerned. The evidence

indicated that a "paid lunch" allowance was included for PO employees

for the years it was in effect in Canada Post's Proposal, but was questioned

by Canada Post when included in the other two Proposals.²¹⁵

[827] Mr. Ranger and Dr. Kervin, and the Commission, all cautioned that

their respective calculations have resulted in estimates only. Additional

work will be required to achieve final costing of individual adjustments

per CR employee after having access to employee records in consultation

with Canada Post.

[828] Mr. Ranger made particular reference to his best estimates of

employee population data which were taken at one point in time and were

assumed to be all full-time employees. He also indicated he had used

maximum wage rates throughout his calculations.

(iii) Sum-up

[829] Determining the most appropriate wage adjustment methodology

upon which to apply the principle of equal pay for work of equal value

enacted by Parliament in section 11 of the Act and sections 13 and 14 of

the 1986 Guidelines, has not been an easy task. In the foregoing analysis,

the Tribunal has examined the available methodology options presented

by the Parties by means of the four eligibility criteria identified in

paragraph [805] - that is, consistency with the purpose and remedial

provisions of the Act and with its Guidelines; reference to expert opinions

and case law; reference to Commission experience; and compatibility with

the employer's work and wage structures.

[830] The Tribunal has identified three alternative wage adjustment

methodology options that it has accepted for consideration. It has

examined all three against the four eligibility criteria.

[831] Given the complexity of the subject matter, the Tribunal concluded

that the assistance of experts familiar with "pay equity" and wage

adjustment methodology was of particular importance in its consideration

of each option, not only in terms of helping the Tribunal to understand the

nature of each wage adjustment methodology, but also in terms of

contextualizing each methodology while interpreting the purpose and

principles of the Act and its Guidelines.

[832] Despite the Tribunal's interest in studying, further, Canada Post's

Alternative Proposal, it was found to be based on very little factual

evidence and the complete absence of expert evidential input. Under these

circumstances, the Tribunal concluded that it was not a viable option for

this case.

[833] The Tribunal found that each of the two remaining options - the

Professional Team/Ranger Proposal and the Kervin/Commission Proposal

meet, on a balance of probabilities, the four eligibility criteria and can,

therefore, be considered appropriate wage adjustment methodologies for

this case.

[834] The Tribunal, however, does not accept as conclusive the monetary

values provided by the parties and witnesses for each of the two Proposals.

The Commission and the Alliance, as well as the expert and other

witnesses canvassed, have cautioned that their respective calculations are

only estimates requiring additional work to achieve final costing of

individual CR employee adjustments.

[835] Access to individual employee records in consultation with Canada

Post will be necessary. Additionally, a number of variables may require

detailed review. These may include the actual employee populations and

their full time or part time status, the various wage rates used and their

sources, and the individual employee entitlements for "pay for all

purposes".

[836] Since the two Proposals meet the four eligibility criteria, and

ignoring the cost implications of each, either of the two could be

considered as appropriate wage adjustment methodologies for this case,

subject to the additional work mentioned in the preceding paragraph.

[837] Which of the two is preferable? The Commission urged that the

Tribunal accept the Kervin/Commission Proposal as "jobs" were used as

the basis for its conclusions. More up-to-date information was also

included in that Proposal.

[838] Dr. Kervin commented extensively on the necessity, in "pay equity"

cases, that the notion of systemic discrimination be a foundation for

decisions made. He indicated that an allegation of systemic discrimination,

in the "pay equity" context, demanded a close scrutiny of "jobs" in the

organization involved.

[839] This commentary reflects very much that of Dr. Pat Armstrong, who

had introduced the Tribunal to the concept of "pay equity". She, too, had

underlined the necessity to concentrate on "jobs" rather than on

individuals, to see the concept of "pay equity" as a natural evolution of the

history of business philosophy.

[840] As Dr. Kervin observed:

Pay equity is about systemic discrimination.

It is about discrimination decisions that are

not made on a one-to-one basis, but rather

are inherent as part of the view of how an

organization approaches jobs and their

compensation. That is part of the reason it

moves beyond equal pay for the same work,

which would deal with non-systemic

discrimination;

in

other

words,

discrimination targeted to some specific

individual: "I don't like your mouth, so I am

going to make sure you don't get paid as

much".

In this case, we are talking about decisions

that are made about jobs and the content of

jobs and the important thing - and one of the

reasons I believe the focus is on jobs rather

than positions is that you want those

decisions to be about work content.

If pay equity deals with decisions about

work content and the value of that work

content to organizations, then you can see

that the decision takes place when you think

about the job.

If there are no jobs, then it will take place at

the level of the position. But there one has to

be careful to make sure that the

characteristics of the incumbent - height, eye

colour, race, whether or not he or she is

bald, those kinds of things - don't enter into

the

decision-making.

Those

are

discriminatory behaviours of a different sort.

With pay equity, it's jobs of equal work. The

job itself in terms of how much it's worth to

the organization ought to be paid fairly

based on that worth to the organization.²¹⁶

[841] Therefore, Dr. Kervin took from both Mr. Wilson's and Dr.

Killingsworth's work their aggregation of the CR positions to create "jobs"

with the characteristics of those positions rated by the Professional Team.

Their work converted the 194 CR positions into a number of jobs by

combining the information on all the positions into "some jobs". Dr.

Kervin described this work as "aggregat[ing] the ratings of the positions

into ratings of jobs" (Exhibit HR-93A).

[842] Using these jobs, according to Dr. Kervin, one can create a

comparison of the PO jobs and the CR jobs, using a level-to-line

technique, and from that comparison, determine how to close the wage

gap.

[843] The male wage line is created, according to Dr. Kervin, by

observing the wage data and the Hay points for the male-dominated PO

jobs. Then, the "mean" or "average" value for each CR level can be

calculated by using the information for the CR "jobs". The question then

becomes, "what would the wage at the CR level be if the jobs in that

category were paid according to the male wage line?" This new "female"

wage is the wage necessary to close the gap.

[844] This emphasis on "jobs" is important to the concept of "pay equity".

Based upon this ability to deal positively with the concept of closing the

wage gap, while using information about the respective "jobs" involved,

the Tribunal prefers the Kervin/Commission Proposal.

[845] The exclusion of statutory payments ("pay for all purposes") from

the calculations in both Proposals is the subject of the next Section of this

Decision entitled Non-Wage Forms of Compensation.

VIII. NON-WAGE FORMS OF COMPENSATION

A. Background

[846] The provisions of the Act pertinent to this Section of the Decision

are found in subsections 11(1) and 11(7) of the Act, which have already

been identified in the Decision but are restated, below, for ease of

reference:

Equal wages

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. (emphasis added)

Definition of "wages"

11(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 of 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. (emphasis added)

[847] For the sake of clarity, the Tribunal notes that two terms have been

used, somewhat interchangeably, in the evidence and the testimony to

address the subject at hand. One is the term non-wage forms of

compensation, the title of this Section of the Decision. The other is pay

for all purposes.

[848] Non-wage forms of compensation, sometimes also called in the

evidence "non-wage benefits", "indirect compensation", "indirect wages",

"indirect remuneration", or even "non-cash wages" or "non-cash

remuneration", is the term that has arisen most frequently to include all

forms of compensation itemized in subsection 11(7) of the Act, other than

base wage or salary.

[849] Pay for all purposes seems to have been used primarily in the

context of Remedy. For example, in being questioned by Canada Post

counsel whether or not Canada Post would have to make statutory

remittances on any wage adjustments from a wage gap on items such as

employment insurance, health tax, or pensions, Mr. Ranger responded, as

follows:

A. It is certainly my view that the equal pay

adjustments on the new rates are pay for all

purposes.

Q. So that would include, in your view,

making statutory remittances to any

pertinent statute?

A. Yes.²¹⁷

[850] Another example is the Commission's use of the term on page 187

(Chapter 13) of its Submissions, as follows:

Thus, a pay for all purposes remedy will

account for the reality that any benefit which

is linked to the base salary will be likewise

affected by any wage rate adjustments.

[851] In effect, the Tribunal is examining the question of "indirect

compensation" at two levels. The first level is the impact of the non-base

salary elements specified in subsection 11(7) on the definition of "wages".

The second level is the inclusion in any wage gap adjustments, not only

adjustments to the base salary or direct wage, but also to the non-salary

elements, as may be appropriate.

[852] Presumably, this becomes an issue only if the non-salary elements

have not been costed, and therefore, not included in the employer's

definition of "wages". If they have been costed and included in "wages",

their value will be reflected in any resulting wage adjustments. The

employer will, understandably, have to deduct from an individual

employee's gross wage adjustment such items as relevant income tax and

incremental pension plan contributions. The employer will have, however,

an additional liability in terms of making remittances against any wage

adjustments that may be required under statutory-based non-salary

obligations which are jointly supported by employee and employer, such

as pension plan contributions.

[853] It is important to note that in determining that there was a `wage

gap' as described in the preceding Section of this Decision, the

Professional Team's analysis relied on the base "direct wages" of the CR

positions and PO jobs which did not include the non-wage benefits. The

Commission, in undertaking its job evaluations during the Investigation

Stage of the Complaint, had not specifically costed the non-wage benefits.

[854] All parties did acknowledge, however, that non-wage compensation,

within the meaning of subsection 11(7) of the Act, must be considered in

an equal pay complaint. Indeed, the Alliance engaged, in 1995, an expert

resource in the person of Dr. Don Lee, to address the costing of these

components for the 12-year period of 1983 to 1995. His Report is the

subject of review later in this Section of the Decision.

B. Submissions of the Parties

(i) The Commission's Position

[855] The Commission's Final Investigation Report, dated January 24,

1992, included the following sentence in paragraph 58:

There appears on balance to be a wage gap

in non-cash remuneration insofar as the

available evidence indicates.

[856] Mr. Paul Durber, giving his evidence-in-chief in June 1993, was

asked by Commission counsel to elaborate on that statement in the Final

Investigation Report. The following comments were included in his

response:

We will recall from some of the earlier

evidence that section 11, of course, requires

that we look not only at salaries but all

forms of remuneration. That is, what is

referred to here as non-cash wages, indirect

remuneration.²¹⁸

[857] When asked by Commission counsel what effect such non-cash

remuneration would have on the alleged wage gap, Mr. Durber responded

as follows:

It would appear on balance to enlarge the

gap somewhat. It is difficult to say by how

much. We know that non-cash remuneration

accounts for the smaller portion of total

remuneration - that is, perhaps 30 per cent -

and we know that much of that 30 per cent

in turn is driven by direct wages...

(...)

So we don't have all the evidence. We know

this investigation is incomplete on that

score. We have not been able to get the

information and we draw a very general

conclusion that there may be an additional

wage gap. We don't think that indirect or

non-cash remuneration will reduce the

gap...²¹⁹

[858] In its final written submission, the only reference the Commission

appears to have made to non-wage compensation is an indirect one, in the

context of wage adjustment methodology, when it stated as follows:

...it is essential that the pay equity

adjustments include not only adjustments to

base salary, but also for all purposes, i.e.

pensions, overtime, sick leave, acting pay,

and long term disability payments.

(...)

Pay for all purposes will ensure that all

necessary adjustments are made in respect of

all pay-related benefits and premiums. As a

result, entitled employees should be

compensated in respect of any monetary

benefit which has a nexus to the base wage

rate.²²⁰

(ii) The Alliance's Position

[859] The Alliance called Dr. Don Lee as a witness before the Tribunal in

October 1995. He was qualified by the Tribunal as an expert in contract

analysis and non-wage compensation valuation.

[860] Dr. Lee obtained his Bachelor of Arts degree in 1968 from the

University of Waterloo and his Master of Arts in political science from

Queen's University. He later studied under a Canada Council Fellowship

at the London School of Economics from which he was awarded a Ph.D.

in political studies in 1980. He began his career as an Actuarial Assistant

with a competitor of the Hay organization, handling the calculations

associated with pension plan valuations, work which was compatible with

his earlier mathematical studies at the undergraduate level. Subsequently,

he served as Assistant Director of Research and Legislation with the

Canadian Labour Congress and was engaged in the development of

pension plan benefits policy and the provision of technical advice to

unions in bargaining with respect to pension plans and other benefits such

as retirement health insurance coverage. In the period of 1977-1978, he

was contracted by the Ontario Federation of Labour to coordinate its

participation in the Ontario Royal Commission on Pensions. Dr. Lee has

been operating as an independent consultant since 1979. His firm, Union

Pension Services Ltd., focuses on two principal aspects of retirement

pensions and related benefits: firstly, providing technical support to unions

at the bargaining table and secondly, offering education and training to

union members. Dr. Lee's clients have included unions in many prominent

Canadian industries and several Ontario public sector unions.

[861] Dr. Lee stated that he had been contracted by the Alliance in June

1995 to compare the non-wage forms of compensation of the CR group

and the PO EXT and PO INT sub-groups, for the lifetime of the Complaint

from August 1983 to the summer of 1995. He indicated that he had

examined a variety of federal government benefit plans and certain

consultants' reports on non-wage compensation. He also reviewed 14

collective agreements covering this period of time for the CR and PO

employees concerned. Dr. Lee's Report has been designated as Exhibit

PSAC-55.

[862] Dr. Lee reported that he had been instructed by the Alliance to

exclude from his study those benefits provided for in paragraph 15(1)(f) of

the Act. These are benefits which are provided but that provision is not

deemed to be a discriminatory practice. Paragraph 15(1)(f) reads, as

follows:

15 (1) It is not a discriminatory practice if....

(f) an employer, employee organization or

employer organization grants a female

employee special leave or benefits in

connection with pregnancy or child-birth or

grants employees special leave or benefits to

assist them in the care of their children.

[863] In comparing the individual non-wage compensation provisions of

the CR and PO groups, Dr. Lee determined where differences existed

between the two groups and then calculated the value of those differences

in wage-equivalent terms. To maintain a consistent framework, he

classified some 51 non-wage provisions into 9 general categories of

compensation.

[864] Dr. Lee stated that, in undertaking his study for the Alliance, he

accepted the principle (which he understood the Commission also

endorsed) that a determination of equality of non-wage compensation

should be simple and workable for employers and comprehensible for

employees. Therefore, recognizing the difficulty of being precise about

valuating certain non-wage compensatory components, he considered

differences representing less than 1/10^thof 1 % of wages not to be

significant. Individual differences of this order were, therefore, not

reflected in Dr. Lee's comparison calculations.

[865] Dr. Lee indicated that his detailed valuation analysis was confined to

the non-wage compensation provisions included in the then-current

collective bargaining agreements. He was, therefore, dealing with those

agreements in effect in the summer of 1995, which concerned the full-time

CR and PO employees.

[866] Dr. Lee confirmed, when giving his evidence, that his Report did not

include, in his list of non-wage compensation items, the provision of

uniforms and protective clothing for the PO employees which clearly

favoured that group. He also did not include a provision for job

security/technological change.

[867] Dr. Lee did, however, undertake a general review of what he called

"historical differences" arising from collective agreements that were in

effect from 1983 to 1994. His general review revealed that many of the

"historical differences" were minor. Many more were temporary and were

subsequently eliminated through the normal process of collective

bargaining. He decided, therefore, that it was not feasible to calculate

wage-equivalent values for such differences without a complete file of

employee experience with each of the compensating provisions over the

twelve-year period.

[868] The last paragraph of page 21 of Dr. Lee's Report reads as follows:

And finally, wherever any judgment enters

directly into a calculation, I have attempted

to overstate the value of the differences

favouring the CR group and to understate

the value of differences favouring the PO

group.

[869] Dr. Lee illustrated the meaning of this point by citing an example

where he was in doubt whether or not to classify a particular CR non-wage

benefit provision as being equivalent to or better than the companion PO

provision. Where he had to make a judgement call, he sought to classify

the current CR provision as being better for the complainant group than

the current PO provision was for the comparator group.

[870] Should his judgement call be questioned, he said he would be able to

claim that he had erred on the side of underestimating the value of the

specific benefit that favoured the CR group. He went on to say that "this is

a sort of general principle of actuarial practice: when in doubt, make an

assumption which tends to favour the opposite of your conclusion".²²¹

[871] Dr. Lee concluded from his study that, based on the then-current

1995 collective bargaining agreements in effect with full-time CR and PO

employees concerned, there were essentially no differences in non-wage

compensation between the two groups of employees.

[872] Specifically, he indicated as follows:

The essential point, I think, is that the

overwhelming

body

of

non-wage

compensation provisions are currently the

same or equivalent, and the extent to which

they are the same or equivalent represents

something like 34 per cent of wages.²²²

[873] He further concluded that there were no reasonable grounds for

calculating differences in non-wage compensation for the two employee

groups for the period 1983 to 1994 since any differences that were

identified were relatively minor and often temporary. Moreover, a reliable

calculation of the value of differences would require intensive study of

employee experience for each of the compensatory provisions, over the

twelve-year period.

[874] Accordingly, Dr. Lee concluded that there were no differences in

non-wage compensation between full-time CR and PO employees that

should be considered in determining if there were any "differences in

wages" under subsection 11(1) of the Act.

(iii) Canada Post's Position

[875] Canada Post called Mr. Robert Bass as a witness in April 2000, and

he was qualified by the Tribunal as an expert in costing compensation.

[876] Mr. Bass obtained his extended honours Bachelor of Science degree

in mathematics and computers in 1974 from the University of Waterloo,

under its co-op alternating classroom/workplace program. He began his

career with the Toronto Board of Education where his primary

responsibility was to support the Board's teachers' collective bargaining

team, particularly with respect to complex costing issues. He became

Director - Research and Information for the Ontario Hospital Association

in 1977 where he developed a fully functioning research department

whose role was to provide research and data support to the bargaining

teams of member hospitals. Mr. Bass developed a computer-based total

compensation-costing model for the Association, tracking wages and other

compensatory clauses in hospital collective agreements. In the early

1980's, Mr. Bass set up his own consulting firm, known more currently as

Bass Associates Ltd., providing a full range of labour relations support to

management clients in the public sectors in Ontario, Alberta and B.C.

Clients have included a broad range of providers in fields of service such

as education, health, policing, and retirement homes. Mr. Bass specializes

in providing employers with the costing and database analysis that is

particularly crucial to management in the collective bargaining process.

Since the passing of Ontario's Pay Equity Act in 1987, Mr. Bass and his

associates have become increasingly engaged in developing with clients,

gender neutral pay equity plans, often province-wide, requiring the

involvement of both employers and unions. Inevitably, such plans demand

an accurate assessment of the total value of compensation packages

(wages and non-wage benefits) for comparison purposes in the context of

the collective bargaining process.

[877] Mr. Bass indicated in his evidence that it is not unusual for "costing"

to be a major issue in addressing wage and non-wage benefits in collective

bargaining negotiations. He testified that it is important for both the

employer and the union/employees concerned to know the cost of

particular demands that arise in negotiations. It is acutely important for the

employer to have this information, as it is the employer who must ensure

that the business has the ability to carry all costs negotiated.

[878] When one is dealing with collective bargaining situations, according

to Mr. Bass, there is often a requirement that the parties to negotiations

develop a total compensation-costing model for both wages and non-wage

benefits. This model must address the cost of existing wage and non-wage

benefits for a base year, and then cost precisely the improved or

diminished benefits for the years being negotiated.

[879] This requirement for precision, according to Mr. Bass's evidence,

may entail the use of data retrieval techniques, identification of

assumptions, and computer simulation modelling to gather and analyse

pertinent employee usage and other information for each benefit. Of

critical importance in such valuations is the modelling of the rate of

expected change and the cost of such change to the employer.

[880] Mr. Bass confirmed that his mandate from Canada Post was to

review and critique Dr. Lee's Report and "...to look at its methods,

assumptions and methodology and give my comments".²²³Mr. Bass's

Report has been identified as Exhibit R-547.

[881] Mr. Bass's critique of Dr. Lee's Report faulted it on several grounds.

[882] First, Mr. Bass indicated that Dr. Lee made a methodological error

by basing his analysis on the then-current 1995 non-wage compensation

provisions. Mr. Bass stated that he would have used 1983 as his base year

because he would have been looking for the differences in non-wage

benefits from the time the Complaint was filed.

[883] Second, Mr. Bass disagreed with Dr. Lee's decision to dismiss

individual differences in non-wage benefits of less than 1/10^thof 1% on

the grounds that the sum of a large number of small numbers can equal a

large number. Mr. Bass would have included such differences in his

analysis.

[884] Third, Mr. Bass was not in agreement with Dr. Lee's exclusion of

job security from his analysis and referred to Dr. Lee's response to the

question of job security as a benefit which he "...[had] not been able to

attach any wage equivalent value to...".²²⁴Mr. Bass said that, in his

experience, job security was one of the principal issues in collective

bargaining. He added that it had such import in collective bargaining that

it often became the basis for trade-offs in the negotiating process. In this

case, Mr. Bass indicated that the generous job security provisions in

Canada Post's union agreements meant that it was important to cost job

security. He believed that it could be costed and identified several basic

steps for doing so.

[885] Fourth, Mr. Bass challenged the exclusion of non-wage benefits

arising from paragraph 15(1)(f) of the Act. Although Mr. Bass

acknowledged that Dr. Lee was following the direction given to him by

the Alliance when he did not address these non-wage benefits, he

indicated that the items excluded should have been costed. He based this

opinion, again, on the fact that these items are often major issues in

collective bargaining and, as such, should be deserving of valuation. This

opinion was refined somewhat when Mr. Bass indicated that he would, at

least, cost those benefits which go beyond minimum employment

standards. He indicated that such benefits as paternity leave and leave for

family responsibilities might be examples of non-wage benefits which are

not sufficiently widespread to be considered to fall within the realm of

minimum employment standards.

[886] Mr. Bass concluded that each of the four faults described above

could, individually, distort the valuation of the non-wage forms of

compensation applicable to the employee groups involved in this case. He

considered all four faults to be "fatal flaws" in Dr. Lee's analysis, thereby

rendering the results of his work as unreliable.

(iv) Tribunal's Analysis

[887] There is no dispute among the parties about the intent of subsection

11(7) of the Act. It defines what is meant by "wages", and includes therein

those forms of non-wage compensation specifically identified in addition

to the remuneration paid for work performed by individual employees. All

parties also recognize that paragraph 11(7)(e) calls for "any other

advantage received directly or indirectly from the individual's employer"

to be included in the definition of "wages".

[888] As well, there is probably no dispute among the parties about

applying a "pay for all purposes" Remedy, should one be called for. While

Canada Post does not appear to have used the expression "pay for all

purposes" in its submissions, it was, as noted earlier, used by the

Alliance's witness, Mr. Ranger, in response to a question from Canada

Post counsel.

[889] The Federal Court of Appeal, in its decision of March 18, 2004 in

the `Airlines Case', reinforced what it called this "very broadly" defined

term of "wages".²²⁵

[890] The Commission's investigation reached the very general conclusion

that there was likely an addition to the wage gap between the CR

complainant and the PO comparator groups when one took into

consideration the non-wage benefits, or indirect remuneration. Although it

offered no direct evidence of such, it did not think that the non-wage

remuneration would reduce the wage gap in direct remuneration between

the comparator and the complainant groups.

[891] The Alliance's position was that there was no difference in value in

non-wage compensation between the CR and the PO employee groups.

This position was underlined by the Report of Dr. Lee which was based

upon the collective bargaining agreements in effect in 1995 with full-time

CR and PO employees. A review of the "historical differences" between

1983 and 1994 led to Dr. Lee's conclusion that there were relatively minor

and often temporary differences in value of non-wage compensation

between the two groups for that period.

[892] Canada Post presented its position that Dr. Lee's Report was flawed

and, therefore unreliable through the evidence of its witness, Mr. Bass. His

evidence was a critique of the Lee Report, and offered no determination of

valuations or comparisons of values of the non-wage compensation

components of the employee groups. Rather, he indicated to the Tribunal

that the flaws identified could have led to a deviation or a distortion in the

results of Dr. Lee's work.

[893] As always, the Tribunal must consider reliability in the context of

the circumstances involved in the Complaint and will use the standard of

reasonableness, based on the civil standard of the balance of probabilities.

[894] As already noted, having been accepted as an expert in contract

analysis and non-wage compensation valuation, Dr. Lee's mandate was to

determine and compare the value of the non-wage elements of

compensation for the CR and PO employee groups.

[895] Dr. Lee noted that, from the inception of the Complaint to 1995,

when he delivered his Report, there had been 13 collective agreements

involving Canada Post and the Alliance and the unions representing the

PO's. The PO group was first represented by LCUC which later merged

with CUPW. Four agreements of the 13 involved Canada Post and LCUC.

[896] Dr. Lee's main area of scrutiny was the current (1995) collective

bargaining agreement for each of the complainant and the comparator

groups. Although he was aware of the prior agreements, information was

not available for certain non-wage benefits for some years, and sometimes

it was simply not existent at all. For those benefits he could compare in

prior years, he noted that the differences were minor over the years, and

often were temporary.

[897] For the current (1995) period, Dr. Lee examined 51 provisions of the

collective agreements involving the CR's and the PO's. He excluded eight

provisions entirely and two partially pursuant to paragraph 15(1)(f) of the

Act, as requested by the Alliance. Of the 41 remaining provisions, he

classified 24 as giving the same or an equivalent non-wage benefit to each

group. An additional eight provisions had had differences in past

agreements but were currently the same or equivalent.

[898] Eight provisions favoured one or other of the CR's or PO's. Six

favoured the PO group and two, the CR group. Dr. Lee had been

instructed by the Alliance that, when in doubt, he should choose the option

that would reduce any wage gap. He had tried to do this, as he noted,

(paragraphs [868]-[870]) using his principle of actuarial practice "to

favour the opposite of your conclusion".

[899] Based upon his comparison of the collective bargaining agreements

and his calculations of the values of the individual benefits, Dr. Lee

concluded that there was no substantial difference between non-wage

compensation for the two groups with the exception of the uniforms and

protective clothing allowance for the PO group, which he estimated "may

amount to as much as 2.08% of wages".

[900] As noted earlier, Canada Post's expert in the costing of

compensation, Mr. Bass, was mandated to critique the work of Dr. Lee.

He was not asked to determine and compare the value of the non-wage

compensation components of both employee groups.

[901] Mr. Bass faulted Dr. Lee's Report on several grounds and concluded

that each fault identified could have changed Dr. Lee's conclusion by

distorting the valuation of the non-wage forms of compensation.

[902] Mr. Bass indicated that the choice of year is critical when doing a

comparative analysis of non-wage compensation, as the year chosen will

be the basis for future collective bargaining and eventual agreement. In

this case, he noted that the year the complaint was brought would have

been a better choice. Mr. Bass would have liked to have been able to see

clearly the changes in cost of the non-wage compensation as the years

unfolded from 1983 to 1995, and, thereby, make note of what Dr. Lee

called minor or transitory differences in order to come to a definitive

conclusion.

[903] Mr. Bass did admit that he understood that information for certain

non-wage benefits was either not readily available or not available at all

for all the years concerned. In other cases, an automated capacity was not

available, necessitating a manual and more expensive means of data

retrieval. He stated that, while his methodology depended upon obtaining

accurate data, it was not uncommon to encounter situations where

employers felt they could not provide suitable data. In such circumstances,

he believed that one had to probe deeper, and perhaps deal with employer

representatives who are close to the working operation. In terms of

voluminous manual records, Mr. Bass stated that he might be prepared to

work with a reasonable sample size, provided he could be assured that he

would get representative data.

[904] The Tribunal finds that Mr. Bass's first criticism of Dr. Lee's work

relating to his selection of the base year of 1995 rather than 1983 has merit

as a theoretical statement of the most suitable year to begin the analysis of

non-wage compensation differences between groups. In the circumstances,

however, this cannot be given such weight as to overcome the work on the

available 1995 data. There was a lack of certain information. Other

information was not readily available. Dr. Lee, a witness being called by

the Alliance to give evidence at the Tribunal hearing, could not simply ask

a representative of the Respondent, Canada Post, to supply information to

him. Even if he had been able to do so, subsequent evidence demonstrated

that some of that information was not available.

[905] Mr. Bass's second criticism related to Dr. Lee's decision to dismiss

differences in value of non-wage compensation benefits of less than 1/10^th

of 1%. Although the Tribunal understands Mr. Bass's point about the

possible total cost of a series of individual benefits with less than 1/10^thof

1% difference, he gave no concrete evidence to illustrate what impact this

might have on the definition of wages.

[906] Therefore, the Tribunal does not give significant weight to this

second alleged fault in Dr. Lee's Report.

[907] Dr. Lee and Mr. Bass disagreed about the ability to evaluate a

benefit such as "job security", Mr. Bass's third area of concern. While Dr.

Lee identified job security as an employee-benefitting category of non-

wage compensation, he concluded that there were not reasonable means of

attaching a wage-equivalent value to such a benefit, as it depends on

future usage which cannot be reliably predicted.

[908] Mr. Bass disagreed. He felt that the costing of job security was

particularly important in industries where technological change is

prevalent, such as in postal operations. He did, however, note that to cost

such a benefit would require access to appropriate employee data such as

the number of employees actually or potentially at risk of being declared

surplus, the time elements involved, and other related factors.

[909] While both expert witnesses acknowledged that job security is a

non-wage benefit, it is evident, under the circumstances of this case, that

Dr. Lee did not have access to the necessary information to undertake a

costing, however approximate, of its value. Nor was the timing of his

study propitious in the midst of the current hearing.

[910] Given the nebulous nature of costing job security and the credibility

of both witnesses in their respective fields of expertise, the Tribunal

accepts that job security is probably one of those non-wage benefits that is

likely to be of equivalent value to virtually all of the CR and PO

employees. Furthermore, the evidence suggests that this could be

particularly so in an industry where technological change is prevalent,

such as a modern postal collection, processing and delivery organization.

[911] Finally, Mr. Bass indicated that a thorough comparison of value of

non-wage compensation for the CR's and the PO's would necessitate the

valuation of the various provisions excluded by Dr. Lee. They concern

primarily leave, with or without pay, for maternity, paternity and adoption,

as well as leave for family responsibilities or for parental needs.

[912] These provisions arise under paragraph 15(1)(f) of the Act and

represent benefits which are deemed by the Act not to be discriminatory.

For this reason, Dr. Lee testified that he had been instructed by the

Alliance to exclude them from his analysis.

[913] Mr. Bass stated that he would have costed the paragraph 15(1)(f)

benefits - or at least, those that were above the minimum employment

standards. He said that it was not usually regarded as an achievement in

collective bargaining circles to negotiate only up to employment

standards. It would, however, be an achievement to negotiate and succeed

with benefits that go beyond those standards and, therefore, vital to know

the costed value of the benefits.

[914] In the circumstances of Dr. Lee's Report, Mr. Bass admitted that

such a costed valuation would be impossible without the availability of the

usage data for each of the benefits which he did not have. Therefore, Dr.

Lee's acceptance of his instruction to exclude the provisions which fell

under paragraph 15(1)(f) of the Act was understandable given the nature of

the Complaint, the clear wording of the paragraph, and the unavailability

of the necessary data.

[915] Similarly, without an ability to make a costed valuation, Mr. Bass's

comment that a majority of the paragraph 15(1)(f) provisions appeared to

favour the CR group was sheer supposition.²²⁶

[916] Nor was Dr. Lee above making a supposition concerning provisions

which he was unable to value or which he believed were part of Canada

Post's administrative practice. He commented, as follows, on benefits such

as Career Development Leave with Pay, and Examination Leave with Pay,

both of which were available to CR employees for many years prior to

1995 when the PO group negotiated their availability for its group:

...I find it difficult to imagine that Canada

Post would not have allowed POs time off

for important examinations up until their

most recent contract.

I suspect that in the case of some of these

differences,

that

there

have

been

administrative management practices ...

which have been in place, perhaps, for years

but were never written into the contract...²²⁷

[917] Neither expert's supposition had a basis in the evidence heard by the

Tribunal.

[918] The Report of Dr. Lee, however, does present the picture of the

value of the non-wage compensation available to the complainant and

comparator groups as being, more likely than not, of equivalent value and

tied, in a negotiated pattern, to the value of the wages paid to the two

groups.

[919] The critique of Mr. Bass has not persuaded the Tribunal that Dr.

Lee's Report should be rejected. Indeed, it has underlined the need for

availability of data and materials in order to do more precise work. In the

circumstances of this Complaint, the ability to be more precise was

substantially reduced because of a lack of suitable data necessary to that

precision. This lack of precision is a long way, however, from stating that

the evidence presented by Dr. Lee's Report cannot be accepted as proving,

on a balance of probabilities, that it is more likely than not that the non-

wage compensation of both the complainant and the comparator groups

was generally equivalent.

[920] There remains one other issue to consider which relates to Canada

Post's statement, on page 264 of Chapter 11 of its written submissions, viz:

Any wage-gap analysis under section 11 is

incomplete and inaccurate without an

analysis of all forms of non-wage

compensation. A full analysis is not only

necessary; it is a required element of Section

11, and therefore a required element of a

prima facie case.

[921] The resulting question that the Tribunal must address is: Has a

reasonably reliable analysis been undertaken by the Complainant with

respect to the non-wage components of compensation to meet the

requirements of section 11 of the Act?

[922] First, the Tribunal accepts, from the evidence, that the manner in

which the examination of the non-wage components was handled in this

case was far from what one would expect from a joint employer-employee

"pay equity" study. It was even removed from what one might consider as

normal, accepted practice. Neither the Commission nor the Alliance dealt

with the matter during the Investigation Stage. It was then left to the

Alliance, during the hearing process of the Complaint, to engage Dr. Lee,

an expert in contract analysis and non-wage compensation valuation to

undertake a detailed study. This involved, as already noted, the

examination of the many collective agreements and benefit plans that

existed during the life of the Complaint. These agreements and plans

involved Canada Post and the two unions representing the CR complainant

group and the PO comparator group.

[923] Dr. Lee's finding, as expressed in his Report PSAC-55, challenged

methodologically by Mr. Bass, was that current contract provisions for

most forms of non-wage compensation were either "precisely the same or

generally equivalent". Where differences did exist, Dr. Lee found them to

be minor and, in most cases, did "not have a wage equivalent value which

would be considered significant for the purposes of pay equity". He went

on to conclude that "there is no difference in non-wage compensation

which should be incorporated into the calculation of adjustments" which

may arise for the CR complainant group.

[924] Does Dr. Lee's work, despite Mr. Bass's criticisms which were

reviewed earlier in this Section of the Decision, constitute a reasonably

reliable response to the need to consider the non-wage elements under

section 11 of the Act?

[925] During the Investigation Stage of the Complaint, no costing of non-

wage benefits was done by the Complainant or by the Commission despite

the fact that subsection 11(7) of the Act calls for an identification of these

elements as part of the definition of "wages".

[926] Dr. Lee was engaged by the Complainant well into the hearing, and,

as a result of the lateness of his employment, he had no ability to verify

data pertaining to the benefits or to cost them. He did the best he could

given the situation he faced.

[927] Given these circumstances, the Tribunal drew on the spectrum

approach used earlier to deal with the reasonable reliability of the job

information used by the Professional Team in its job evaluations

(paragraph [696]). The Tribunal concluded that it could not categorize Dr.

Lee's Report and its results as being "upper reasonably reliable" or "mid-

reasonably reliable". The Tribunal finds, however, that his methodology

and its results were "lower reasonably reliable".

[928] The fact that the analysis was accomplished at an awkward time, by

one expert witness, and demonstrated that the wage equivalent values for

the non-wage compensation components for the complainant CR's and the

comparator PO's essentially balanced each other out, does not, in the

Tribunal's view, mean that subsection 11(7) of the Act was not respected.

Nor does it mean that the wage gap analysis was incomplete or necessarily

inaccurate.

[929] The Tribunal, therefore, finds that the Alliance, through the

evidence of Dr. Lee, has met the requirements of the Act in considering

the non-wage compensation elements of subsection 11(7) of the Act as

part of the definition of "wages".

[930] The Tribunal also finds that the Alliance has fulfilled this

requirement of a prima facie case under section 11 of the Act by proving,

based on Dr. Lee's evidence and, on a balance of probabilities, that there

were essentially no differences in non-wage compensation between the

subject CR and PO employees that should be considered in determining if

there were any "differences in wages" under subsection 11(1).

IX. REMEDY

A. Background

[931] The provisions of the Act dealing with the Tribunal's jurisdiction to

award remedies are as follows:

Complaint Substantiated

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;

(d) that the person compensate the victim

for any or all additional costs of obtaining

alternative goods, services, facilities or

accommodation and for any expenses

incurred by the victim as a result of the

discriminatory practice; and

(e) that the person compensate the victim,

by an amount not exceeding twenty

thousand dollars, for any pain and suffering

that the victim experienced as a result of the

discriminatory practice.

Special Compensation

53(3) In addition to any order under

subsection (2), the member or panel may

order the person to pay such compensation

not exceeding twenty thousand dollars to the

victim as the member or panel may

determine if the member or panel finds that

the person is engaging or has engaged in the

discriminatory

recklessly.

practice

wilfully

or

Interest

53(4) Subject to the rules made under

section 48.9, an order to pay compensation

under this section may include an award of

interest at a rate and for a period that the

member or panel considers appropriate.

[932] Clearly, the Tribunal has been bestowed broad remedial powers

under section 53 of the Act to remedy the effects of discrimination when a

human rights complaint has been substantiated under the Act.

[933] As the Commission pointed out in its submissions, these remedial

powers should ensure that the victims of discriminatory treatment or

practice are "made whole." In addressing the assessment of the damages

recoverable by a victim in either tort or human rights law, the

Commission referred to the following statement made by Mr. Justice

Marceau in the Morgan case:

In both fields, the goal is exactly the same:

make the victim whole for the damage

caused by the act [sic] source of liability.

Any other goal would simply lead to an

unjust enrichment and a parallel unjust

impoverishment.²²⁸

[934] One can, perhaps, best interpret "making the victim whole" as

meaning restoring the victim to the position or status he or she would have

been in had the substantiated discrimination not occurred.

[935] It is also pertinent to note, as did the Commission in its submissions,

Mr. Justice Hugessen's examination of paragraph 53(2)(c) of the Act in

which he and his colleagues were considering an equal pay for work of

equal value case:

As I read this provision, it is a simple and

straightforward authority to order the

payment to a victim of lost wages resulting

from a discriminatory practice. Such an

order will always be backward looking and

will result from the answer to the question

'what wages was this victim deprived of as a

result of the discriminatory practice?'

Nothing in the text justifies the view that

such an award should be 'minimally

afforded' or that its starting point should be

restricted 'to the moment the complaint was

filed'.

A

complaint of discrimination

necessarily relates to practices which have

predated the complaint itself; one can hardly

complain of discrimination which has not

yet occurred. Of course, the discrimination

may be continuing so that the Tribunal will

also order remedies for the future, but that

fact should not blind us to the obvious need

to remedy what has taken place in the

past.²²⁹

[936] In the same aforementioned DND case, Mr. Justice Hugessen made

the following statement, supported by the very extract identified earlier in

paragraph [679] from S.M. Waddam's publication:

In my view, it is well settled law that once it

is known that a plaintiff has suffered

damage, a court cannot refuse to make an

award simply because the proof of the

precise amount thereof is difficult or

impossible. The judge must do the best he

can with what he has.²³⁰

[937] There is another important contextual factor to consider which

relates to the possible impact on an award for damages of any uncertainty

about the nature, extent and value of the losses involved. This matter was

addressed by Mr. Justice Marceau as follows:

It seems to me that the proof of the existence

of a real loss and its connection with the

discriminatory act should not be confused

with that of its extent. To establish that real

damage was actually suffered creating a

right to compensation, it was not required to

prove that, without the discriminatory

practice, the position would certainly have

been obtained. Indeed, to establish actual

damage, one does not require a probability.

In my view, a mere possibility, provided it

was a serious one, is sufficient to prove its

reality. But, to establish the extent of that

damage and

evaluate the monetary

compensation to which it could give rise, I

do not see how it would be possible to

simply disregard evidence that the job could

have been denied in any event. The presence

of such uncertainty would prevent an

assessment of the damages to the same

amount as if no such uncertainty existed.

The amount would have had to be

reduced to the extent of such uncertainty.

(emphasis added)²³¹

[938] Two more recent cases have come to the Tribunal's attention which

illustrate the principle enunciated by Mr. Justice Marceau. One is Chopra

v. Department of National Health and Welfare in which the complainant

sought compensation for wage loss arising from his failure to attain acting

status and to qualify as an eligible candidate in a competition for a more

senior position in his department.²³²The complainant was awarded

damages by the tribunal which were very significantly reduced on the

grounds of the relatively high level of uncertainty of his being successful

in the final competition. This decision is currently the subject of a judicial

review application before the Federal Court.

[939] The second case is Singh v. Statistics Canada [1998] in which the

tribunal found that the complainant had been discriminated against

because of his age when his name was not added to an eligibility list for

particular positions at Statistics Canada.²³³Damages were, however, based

on providing him with a position and allowances two classification rungs

below the one sought by the complainant and the CHRC, on the grounds

that "it is by no means certain that Mr. Singh's progress would have

followed" the path he claimed.²³⁴The decision was upheld by the Federal

Court.²³⁵

[940] While the presence of uncertainty in determining the extent of

damages should not, indeed must not, inhibit the Tribunal from awarding

damages, that uncertainty can, nevertheless, result in a reduction, under

some circumstances very appreciable, in the assessed value of the

damages.

[941] Given the classification, by the Tribunal, of the job information used

in evaluating the CR positions and PO jobs, as "lower reasonably

reliable," (paragraph [699]) the Tribunal finds there is present a significant

degree of uncertainty. This uncertainty arises from the lowest rating on the

"band of acceptance" which pre-empts an assessment of the wage loss

damages to the amount that could be expected had the job information

been rated at the "upper reasonably reliable" level - the most desirable

level for a "pay equity" case.

[942] A similar further element of uncertainty arises from the

classification, by the Tribunal, of the non-wage forms of compensation as

also being "lower reasonably reliable" (paragraph [927]).

[943] Taking into account these elements of uncertainty which affect the

very crucial aspect of determining the extent of the wage gap, it is, in the

Tribunal's view, more likely than not that if the job information and the

non-wage benefits had been "upper reasonably reliable," the resulting

wage gap would have more accurately reflected reality. In other words, the

greater the reliability of the job information and the non-wage benefits, the

greater the accuracy of the wage gap determination. This determination is

seminal to the extent of the award of damages.

[944] Recognizing these elements of uncertainty in the state of the job

information and non-wage benefits documentation, the Tribunal finds that

it cannot accept the full extent of the wage gap as claimed by the Alliance

and endorsed by the Commission.

B. Remedial Components

(i) Award of Lost Wages

[945]

On

balance,

the

Tribunal favours

the

level-to-line

Kervin/Commission methodology in determining the extent of the wage

gap to be closed (paragraph [844]). Both Dr. Kervin and the Commission

stated however, that their wage gap calculations were only estimates. Final

costing of individual adjustments for each CR employee will require

review of employee records in concert with Canada Post.

[946] As noted above, the Tribunal finds that the job information and the

non-wage compensation issues have created uncertainty in the

determination of the wage gap. That uncertainty, in turn, calls for a

discounting of the award of lost wages.

[947] Unlike other sections of the Act, section 11 does not present a clear

distinction between proof of liability and proof of damages. Nor does it

present a clear methodology to measure damages arising after a finding of

discrimination. It is, therefore, necessary for the Tribunal to address the

distinction between proof of liability and of damages, as well as the means

of measuring the possible damages.

[948] Following the spectrum analysis already completed for the two

elements of uncertainty, the Tribunal concludes that a wage gap

determination based upon "upper reasonable reliability" evidence should,

logically, give rise to a 100% award of lost wages, a determination based

upon "mid reasonable reliability" to a 75% award, and a determination

based upon "lower reasonable reliability" to an award of 50% or less.

[949] Accordingly, the Tribunal concludes that the finally determined

award of lost wages for each eligible CR employee, by whatever

methodology, should be discounted by 50% in line with the lower

reasonable reliability status of the relevant job information and non-wage

forms of compensation.

(ii) Back-Pay - The Compensation Period

[950] The Commission has called for the awarding of lost wages back to

October 16, 1981, the date of incorporation of Canada Post as a Crown

Corporation. The Commission cited Mr. Justice Hugessen's decision in the

DND case which recognized the ability of a tribunal to deviate from the

Commission's practice of one year prior to the filing of a complaint, as

follows:

In ordinary circumstances, the present limit

set by the Commission's practice of one year

prior to the filing of the complaint seems to

me to strike a reasonable balance between

the competing interests involved. Like any

limitation period, it is, of course somewhat

arbitrary and I would temper such

arbitrariness by holding that it could be

varied by a tribunal if the facts in any

particular case indicated that a longer or

shorter period was warranted.²³⁶

[951] The Alliance also cited this case and submitted that the effective

date for the calculations of lost wages should be October 16, 1981.

Anything less would be, in the Alliance's view, unfair to the victims of

systemic discrimination.

[952] Canada Post submitted that the Alliance had not succeeded in

establishing a prima facie case that any wage gap for which Canada Post

could be liable under section 11 existed prior to the filing of the

Complaint. Canada Post also pointed out that the tribunal in the Treasury

Board (Phase II) case²³⁷, where the respondent admitted liability under

section 11, did not award back-pay for any period prior to the filing of the

complaint. The wage adjustment was ordered to run from the starting date

of the JUMI Study - some 3½ months after the complaint had been filed. It

was Canada Post's position that the facts in this current case support no

retroactive payments.

[953] Mr. Justice Hugessen in DND indicated that the reach of paragraph

53(2)(c) of the Act "will always be backward looking" in ordering the

payment of lost wages resulting from a discriminatory practice.²³⁸

[954] The Complaint was filed on August 24, 1983 but during 1984 and

1985, it was not actively investigated by the Commission. The Alliance

and Canada Post were pre-occupied during this period with other matters,

particularly the development of the proposed System One job evaluation

plan. The Commission reactivated its investigation in October 1985.

[955] The Tribunal considers that given the systemic nature of the

discrimination under section 11, there should be recognition of some

period of retroactivity. At the same time, the Federal Court of Appeal in

Morgan affirmed that in creating a period of compensation, common sense

should apply and some limits need to be placed upon liability.

[956] Given that there was no evidence presented to underline an

argument that this Complaint should be treated differently, the Tribunal

concludes that adherence to the Commission's frequent practice of limiting

that period to one year prior to the filing of the Complaint would be a

reasonable balance under all the circumstances. Therefore, the Tribunal

finds that August 24, 1982 is the appropriate date to begin the

compensation period.

[957] In terms of the period of time the backpay should cover, it is noted

that Alliance counsel advised the Tribunal, in June 2003, that the Alliance

and Canada Post had entered into a Letter of Understanding, as of June 6,

2002, under their then current Collective Agreement, providing for the

introduction of a new Job Evaluation Plan. The new Plan superceded the

original Treasury Board classification standards and created six

administrative levels A1 to A6, into which former CR's were to be

reclassified, as appropriate. The implementation date for the new Plan was

set for August 3, 2002, with the new wage rates taking retroactive effect as

of June 3, 2002.

[958] Alliance counsel stated that the resulting range of wage rates for the

CR's arising from the new Plan was, in general, quite a bit higher than the

wage rates for PO INT's and PO EXT's under the CUPW agreement

expiring in January 2003. What does this all mean?

[959] What it meant to Alliance counsel, in terms of its impact on this

Complaint, was expressed as follows:

"...it marks the outside boundary of this pay

equity complaint".²³⁹

"...in all likelihood, this does represent the

end of the complaint, the outer limit, the

outer parameter of the complaint".²⁴⁰

[960] The position of Alliance counsel is reinforced by the fact that the

Letter of Understanding of June 6, 2002, was a direct result of a

Memorandum of Understanding (Appendix `D') of the then current

Canada Post / Alliance Collective Agreement, expiring October 31, 2004.

The Memorandum of Understanding recorded the concurrence of Canada

Post and the Alliance (and Union of Postal Communications Employees)

that the proposed new Job Evaluation Plan would "be free of gender bias

and shall meet the requirements of section 11 of the Canadian Human

Rights Act".

[961] Accordingly, the Tribunal concludes that the back-pay period will

extend from August 24, 1982 to June 2, 2002, after which there should be

no wage gap between the complainant CR's and the comparator PO's.

Furthermore, the Tribunal concludes that with the new wage rates for the

former CR's taking effect from June 3, 2002, there will be no need for a

"fold-in" into the base wage rates per level at that date, since the successor

administrative A1 to A6 levels, as of that same date, were compatible with

section 11.

(iii) Interest

[962] Subsection 53(4) of the Act provides for the inclusion of an award of

interest at a rate and for a period that the Tribunal considers appropriate, in

any order to pay compensation under section 53. Such an order is subject

to the rules made pursuant to subsection 48.9(2) of the Act which reads as

follows:

Tribunal Rules of Procedure

48.9(2) The Chairperson may make rules

of procedure governing the practice and

procedure before the Tribunal, including,

but not limited to, rules governing...

(i) awards of interest.

[963] The Commission indicated that in the past there was debate as to

whether the Canadian Human Rights Tribunal had the authority to make

awards of interest as there was no provision in the Act providing for such

awards. The 1998 amendments to the Act added such a provision in

subsections 48.9 and 53(4).

[964] All three parties referred to Rule 9(12) of the Canadian Human

Rights Tribunal Interim Rules of Procedure (dated January 8, 2000) which

reads as follows:

Awards of Interest

9(12) Unless the Panel orders otherwise, any

award of interest under s. 53(4) of the

Canadian Human Rights Act shall

a) be simple interest calculated on a

yearly basis at the Canada

Savings Bond rate; and

b) begin accruing from the date on

which the discriminatory practice

occurred.

[965] The Commission submitted that interest consists of two elements,

namely, compensation for the loss of use of money, and compensation for

the decline of its value. It also noted that Rule 9(12) is an interim and not a

final Rule of Procedure and permits the Tribunal to award interest

otherwise than as delineated in the Rule.

[966] The circumstances of this case with affected employees waiting over

20 years for a wage adjustment was, in the Commission's view,

justification for a more generous award than Rule 9(12) would provide.

The Commission called for an award of compound interest at the Courts of

Justice Act rate, thereby providing fuller compensation.²⁴¹

[967] The Alliance's submission was that the Tribunal should exercise its

discretion to award interest at a higher rate and also favoured compound

interest, calculated semi-annually, at the rate established by the Courts of

Justice Act.

[968] Both the Alliance and the Commission considered that their

respective positions on the matter of compound interest were supported by

Waddams, supra, which concluded that compound interest, as a principle,

could be warranted under certain conditions.

[969] Canada Post's position was that it would be inappropriate to award

compound interest without demonstrating, as indicated in Morgan, a

special need or circumstance to compensate for the actual loss sustained.

In the opinion of Canada Post, neither the Commission nor the Alliance

had presented any evidence to support an exceptional compound interest

award or a rate of interest higher than the Canada Savings Bond rate.

[970] Despite the protracted period of the current case and the resulting

delays in reaching a conclusion for the complainant employees, the

Tribunal finds that no special needs or circumstances were demonstrated

in the evidence before it which would justify an award of compound

interest.

[971] The Tribunal therefore, concludes that simple interest should be

payable on the finally determined award of lost wages, which should in

turn be discounted by 50%. The simple interest should be at the Canada

Savings Bond rate, beginning from the commencement date of the

retroactive period, August 24, 1982. Calculations should be annual, using

the Canada Savings Bond rate in effect on September 1^stof each year

concerned.

(iv) Post- Judgement Interest

[972] With the likelihood that there will be delays between the date of the

Tribunal's final decision and the date of payment of awards to entitled

employees, the Commission and the Alliance submitted that post-

judgement interest should be paid in accordance with the provisions of the

Courts of Justice Act.

[973] The Tribunal agrees, subject to the proviso that any such post-

judgement interest shall be calculated from the date of its Order, on the

finally determined award of lost wages discounted by 50%.

(v) Special Compensation

[974] The Alliance submitted that the evidence supported a finding by the

Tribunal that Canada Post wilfully engaged in a discriminatory practice

and that special compensation should be ordered under subsection 53(3) of

the Act.

[975] The Alliance argued that, through no fault of their own, the affected

employees have been waiting some 20 years for their Complaint to be

resolved. The Alliance also argued that its earlier efforts to negotiate a

solution at the bargaining table were rebuffed by the employer.

[976] It was, as well, the Alliance's view that Canada Post had consciously

avoided satisfying itself as to whether the work of the female-dominated

CR group was of equal value to that of the male-dominated PO group.

Instead, Canada Post had chosen solely to advance criticisms and

arguments of a technical and legal nature designed to avoid its obligations

under section 11 of the Act.

[977] A further argument presented by the Alliance was the profound

impact the Respondent's violation of section 11 has had on the mostly low

wage earners of the CR group. Being deprived of the income comprising

the wage gap can reasonably be seen, in particular cases, to have led to "a

host of lost opportunities" which should be reflected in the Tribunal's

remedial order.

[978] Finally, the Alliance submitted that the disappointment and

frustration associated with the length of time it has taken to obtain redress

should be compensated in the form of damages for hurt feelings.

[979] While recognizing that no amount of monetary compensation can

properly eradicate the impact of so many years of underpayment, the

Alliance submitted that employees in the CR group should each receive

compensation pursuant to subsection 53(3) of the Act, to be determined at

the Tribunal's discretion. The Alliance proposed that the award be prorated

based on the number of full years worked by each eligible employee.

[980] The Alliance further submitted that simple interest calculated

pursuant to the Ontario Courts of Justice Act should be paid on the special

compensation awards.

[981] The Commission noted that pursuant to paragraph 53(2)(e) and

subsection 53(3), the Tribunal is empowered to award compensation for

pain and suffering and special compensation. The Commission indicated

however, that in the circumstances of this case, it had taken no position on

the Alliance's claim.

[982] Canada Post submitted that it was not appropriate to award special

compensation in this case and argued that the Alliance did not direct any

evidence to the Tribunal of the nature required to support such a request.

[983] Canada Post also submitted that the law respecting special damages

is clear and was set out well by the tribunal in the Treasury Board (Phase

II) case, as follows:

We are of the view that an entitlement under

s. 53(3)(b) of the Act requires an evidentiary

basis

outlining

the effects of the

discriminatory practice on the individuals

concerned. An award for hurt feelings is

personal and is usually awarded in the

context of direct discrimination. During the

course of a hearing a tribunal will assess

entitlement after hearing from individuals

about the effects of the discrimination upon

him or her. (see R. v. Cranston (1997),

T.D. 1/97 (C.H.R.T.)). In this manner the

Tribunal is able to observe the complainant's

demeanour while testifying and come to

some

conclusion

whether,

in

the

circumstances, an award for hurt feelings is

called for. In our view the impact of delays

giving rise to disappointments, frustrations,

maybe even sadness or anger, although

legitimate reactions, do not measure up, in

our opinion, to the degree and extent of hurt

feelings and loss of self-respect that

s. 53(3)(b) is directed towards remedying.

The discriminatory practice in this case has

its genesis in societal attitudes and history,

shared by both males and females. Attitudes

about female work are undergoing change

with increased awareness, education and

legislation. The problem here is systemic

and it has occurred in the Employer's pay

system. To grant the Commission's and the

Alliance's request would amount to an

award for hurt feelings, en masse, which is

not, in our view, what is contemplated by s.

53(3)(b) of the Act.

We do not doubt some Complainants have

experienced a sense of loss, which in some

cases may be felt more strongly by some

than others. We also appreciate the

impracticality of individuals in this case

testifying before the Tribunal as to the

effects of the discriminatory practice upon

them. However, these factors cannot compel

us to make an award, en masse, under s.

53(3)(b).²⁴²

[984] The Tribunal notes that, in the aforementioned excerpt from the

Treasury Board (Phase II) case, the tribunal was addressing paragraph

53(3)(b) from the pre-1998 amended version of the Act which read as

follows:

53(3) In addition to any order that the

Tribunal may make pursuant to subsection

(2), if the Tribunal finds that

(a) a person is engaging or has

engaged in a discriminatory practice

wilfully or recklessly, or

(b) the victim of the discriminatory

practice has suffered in respect of

feelings or self-respect as a result of

the practice,

the Tribunal may order the person to pay

such compensation to the victim, not

exceeding five thousand dollars, as the

Tribunal may determine.

[985] The tribunal in the Treasury Board case was, therefore, dealing with

the Commission's argument that, as a result of the discriminatory practice,

the victims suffered from hurt feelings and a loss of self-respect (former

paragraph 53(3)(b)). That tribunal was not addressing in this context

whether a person had been engaged in a discriminatory practice wilfully or

recklessly (former paragraph 53(3)(a)).

[986] On the other hand, in the current case, the Alliance has submitted

that Canada Post wilfully engaged in a discriminatory practice under

subsection 53(3) of the current Act. It has made no direct mention of "pain

and suffering" under paragraph 53(2)(e) of the current Act.

[987] Canada Post's use of the Treasury Board (Phase II) case decision to

support its dismissal of the Alliance's claim was therefore, in the

Tribunal's view, somewhat misdirected as the Treasury Board decision

focused squarely on the suffering of victims in respect of "feelings or self-

respect" and not on a person engaged in a discriminatory practice "wilfully

or recklessly".

[988] In fairness to Canada Post, however, the Alliance does appear to

have considered aspects of both paragraph 53(2)(e) and subsection 53(3),

although it limited its specific written request to subsection 53(3).²⁴³For

example, while alleging wilful engagement of Canada Post in a

discriminatory practice, it also submitted that its victims experienced

considerable disappointment and frustration and may have suffered in

respect of "hurt feelings", which seems to come close to the pain and

suffering element of paragraph 53(2)(e).

[989] Given the fact that the Alliance has limited its submission to the

provisions of subsection 53(3), the Tribunal has focused on, but has not

confined its decision to, that remedial dimension of section 53 of the Act.

While the Alliance has argued that Canada Post contributed to the

prolonged nature of the Complaint, and protracted the process through its

technical and legal criticisms and arguments, the Tribunal does not find

that sufficient detailed evidence was furnished to lead the Tribunal to

conclude that Canada Post had been engaged in a discriminatory practice

wilfully or recklessly.

[990] The subject discriminatory practice is, after all, systemic

discrimination which, as a concept, has most often been found to be

unintentional. As well, the Act is a statute that seeks remedial corrective

action rather than one that seeks to cast blame and punishment.

[991] Based on the evidence presented, the Tribunal does not find that

Canada Post has, more likely than not, been engaged in practicing

systemic discrimination, wilfully or recklessly. Nor does the Tribunal find

that sufficient evidence was provided to document the extent to which

victims of the systemic discrimination, either individually, or corporately,

may have experienced pain and suffering, difficult as this may be to

demonstrate when dealing with a large body of employees.

[992] Accordingly, the Tribunal finds that no award is justified under

subsection 53(3) or paragraph 53(2)(e) of the Act.

(vi) Legal Costs

[993] The legal costs, including fees and disbursements associated with

the adjudication of the Complaint involving over 400 days of hearings,

"are enormous," argued the Alliance. To ensure full compensation for the

victims, the Alliance felt it essential that the legal costs be taken into

account. This has, in the Alliance's submission, occurred in the past where

complainant counsel have contributed an important dimension to the

presentation of the complainant's case, as the Alliance has done in this

case.

[994] The Alliance submitted that it is settled law that paragraph 53(2)(c)

of the Act provides the Tribunal with the authority to award legal costs as

well as compensation for other expenses incurred by the victim as a result

of the discriminatory practice. Alliance counsel referred to a decision of

the Canadian Human Rights Tribunal in Grover v. Canada (National

Research Council), [1992] C.H.R.D. No. 12 (QL). In that case, the

tribunal ordered the respondent to pay the complainant's legal costs

pursuant to the assessment of the costs under the Federal Court scale.

[995] The Alliance also referred to a decision of the Federal Court in

Canada (Attorney General) v. Thwaites, [1994] F.C.J. No. 364 (T.D.) and

to a tribunal decision in Nkwazi v. Canada (Correctional Service), [2001]

C.H.R.D. No. 43 (QL). Both decisions were in the Alliance's submission,

supportive of the inclusion of reasonable legal costs in the compensation

award to a successful complainant.

[996] Therefore, the Alliance has called for an order of the Tribunal to

award its legal costs. It proposes that such costs be calculated on a

substantial indemnity basis in accordance with the Tariff prescribed under

the Ontario Courts of Justice Act and the Rules of Civil Procedure.

[997] The Commission submitted that while there has, in the past, been

some inconsistency in the awarding of legal costs, recent jurisprudence

supports the authority of tribunals to do so. In particular, the Commission

cited Nkwazi and Premakumar v. Air Canada, drawing on the following

excerpt from the latter tribunal's decision:

I am of the view that the remedial objects of

the Canadian Human Rights Act are best

attained

by ensuring that successful

complainants are able to recover their

reasonable legal expenses associated with

the

prosecution

of

human

rights

complaints.²⁴⁴

[998] Given the 20-year life of the Complaint and the "immense" legal

fees and expenses related to the complex litigation involving numerous

expert and lay witnesses, the Commission supported a full award of legal

costs in favour of the Complainant group. The Commission acknowledged

the "very active role" played by the Alliance in the adjudication,

"including bearing considerable costs for the gender neutral job evaluation

process engaged in by Dr. Wolf and his colleagues".²⁴⁵

[999] The Commission concluded that these factors militate in favour of

an award of full legal costs to the Alliance.

[1000] Canada Post submitted that the current case was not an appropriate

one for an award of legal costs. While the proceedings have been

protracted and complex, Canada Post cited the tribunal's decision in

Treasury Board (Phase II) case, where an award of legal costs was

deemed to be inappropriate.

[1001] Ambiguously, Canada Post in its concluding submission, requested

the following ruling by the Tribunal:

Based

upon

a

broad

and liberal

interpretation of section 53(1) of the Act,

that Canada Post Corporation be reimbursed

for its reasonable legal costs in this

proceeding as against the CHRC and/or the

PSAC.²⁴⁶

[1002] The Tribunal observes that this has been not only a very protracted

and complex case but also a rather tortuous one. Allegations have been

made about Canada Post's possible role in this tortuosity, but it can also be

alleged that the Commission was not entirely responsibility-free -- that it,

too, may have contributed to that tortuosity, by the way it managed the

Investigation Stage of the Complaint. It can also be alleged that even the

Alliance made its own contribution to that tortuosity by not ensuring,

during the formative stage of the Complaint, that the non-wage elements

of compensation under subsection 11(7) of the Act were included in the

wage calculations.

[1003] However, as indicated earlier in this Decision, laying blame is not

an objective of the Act, nor is it a course which the Tribunal has pursued.

Having moved into the adjudicative tribunal arena, each party opted to act

within its respective rights and decided and honed its strategies with

respect to the Complaint. Each party engaged its own legal counsel and

directed them accordingly.

[1004] Given the unintentional nature of the alleged systemic

discrimination in this case, and after carefully considering all the

arguments and evidence made available, the Tribunal finds that each party

should assume responsibility for its own legal costs, including related

disbursements.

(vii) Retention of Jurisdiction

[1005] Both the Alliance and the Commission have requested that the

Tribunal retain jurisdiction to deal with issues that they expect may arise

in the implementation of the Tribunal's decision, on an "as-needed" basis.

[1006] In the interest of assisting all parties, as may be appropriate, the

Tribunal agrees with this request.

X. JOINT UNION-EMPLOYER LIABILITY FOR WAGE

DISCRIMINATION

A. Canada Post's Submission

[1007] Canada Post submitted that, were the Tribunal to find that the

Complaint has been substantiated, the Alliance, as the union representing

the Complainant group, and Canada Post, as the employer, should be held

jointly liable for the discriminatory practice.

[1008] The basis for this submission by Canada Post was their argument

that as a principle, a union and an employer share liability for any clauses,

including those that are discriminatory, which are negotiated in a

collective agreement.

[1009] In support of this position, Canada Post relied on the decisions in

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 790,

and Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission),

[1997] S.J. No. 502 (Sask. C.A.).

B. The Alliance's Position

[1010] The Alliance submitted that the wording of subsection 11(1) of the

Act clearly precludes the imposition of liability on anyone other than an

employer.

[1011] Further, the Alliance submitted that the decision in Bell Canada v.

Communications, Energy and Paperworkers Union of Canada is binding

authority concerning the interpretation of subsection 11(1).²⁴⁷

[1012] The Alliance urged the Tribunal to find that the cases cited by

Canada Post could be distinguished.

C. The Commission's Position

[1013] The Commission's submissions underlined those of the Alliance.

D. Tribunal's Analysis

[1014] The decision of the Federal Court of Appeal in Bell Canada, cited

by the Alliance as authority for their submissions concerning the

interpretation of subsection 11(1) of the Act, contains strong statements to

the effect that section 11 of the Act makes the employer alone liable for

differences in wages with respect to work of equal value. For example, at

paragraph 56, the Court noted as follows:

For reasons of its own Parliament has

chosen, in section 11, to make the employer

alone liable for differences in wages with

respect to work of equal value. It would fly

in the face of the clear wording of the Act

and the obvious intent of Parliament to find

the unions equally liable either implicitly

under section 11 or indirectly through

sections such as section 10 for having

participated in the establishment of different

wages with respect to work of equal value. It

may at first blush appear to be self serving

and unethical for a union to use the

mechanism of a complaint under section 11

to force for all practical purposes the

revision of a collective agreement it has

freshly negotiated, but absent bad faith -- the

Motions Judge did not make a specific

finding of bad faith in the instant case... -- it

is not legally wrong. The Court applies the

Act as it is, not as it might have been.²⁴⁸

[1015] This decision was rendered by one of the Tribunal's supervisory

courts. The decision included the above-mentioned discussion of the very

legislative provision that is in issue in the present Complaint. Is the

Tribunal bound, therefore, to follow this decision?

[1016] The Court prefaced its remarks in that same Bell Canada case with

the stipulation that it was not providing a definitive interpretation of

section 11 of the Act, as follows:

The Motions Judge erred in totally ignoring

sections 43, 44, and 49 of the Act and in his

premise that '[w]hat is principally at issue in

this case is the correct interpretation of s. 11'

(Paragraph (8) of his reasons [at page 85])

That was simply not the issue at this stage.

The decision attacked is the decision to

request the appointment of a Human Rights

Tribunal. It will be the duty of the Tribunal

to determine whether the complaints are

well founded or not and the Tribunal will in

no way be bound by the interpretation given

to section 11 by the investigator and

presumably adopted by the Commission.

Those who expected this Court to resolve

issues with respect to the interpretation and

application of section 11 without the benefit

of the decision of a tribunal on this issue in

the instant case will be disappointed;

whatever was said by the Motions Judge

should be considered as obiter and I make

no observations upon any of it.²⁴⁹

[1017] As can be seen from the comments of the Federal Court of Appeal,

the decision in Bell Canada, upon which the Alliance and the Commission

relied in their submissions was fundamentally concerned with the legality

of the Commission's decision, under section 49 of the Act, to request the

appointment of a Human Rights Tribunal.

[1018] Accordingly, this Tribunal has concluded that the question of joint

union-employer liability under section 11 of the Act remains an open

question for its decision.

[1019] Subsection 11(1) of the Act clearly indicates on whose shoulders

liability must rest. It states as follows:

It is a discriminatory practice for an

employer

to

establish

or

maintain

differences in wages... (emphasis added)

[1020] This wording can be contrasted to that of other provisions of the

Act, such as section 10 which explicitly addresses employee organizations

as well as employers, and section 7 which contains no qualifying

language.

[1021] Based on a clear and straightforward reading of subsection 11(1),

the argument that a union may incur liability under this section must be

rejected. Canada Post's reference to the Renaud and Safeway cases has not

been helpful in this instance, as they both dealt with legislative provisions

that addressed union liability, and are distinguishable on that basis. In this

case, there is no such inclusion. In fact, the section of the Act is very clear

in its notation that it is a discriminatory practice for an employer to

establish or maintain differences in wages. There is no mention of other

organizations, nor is there a lack of clarity in the wording.

[1022] Therefore, the Tribunal cannot accept the submission of Canada

Post on this issue of "joint liability".

XI. ORDERS

[1023] Based on all of its foregoing findings and conclusions, including a

breach of section 11 of the Act, the Tribunal Orders that:

(1) The Respondent shall pay to each of its eligible Clerical and

Regulatory employees an award for lost wages by closing

the wage gap between employees of the Complainant and

Comparator groups represented in this Complaint.

(2) The wage gap between the Complainant group and the

Comparator group shall be determined and calculated by a

level-to-line

technique,

preferably

following

the

Kervin/Commission Wage Adjustment Model.

(3) The Respondent shall provide access to the individual

employee records, as required, to enable final wage gap

calculations to be determined.

(4) The finally determined award of lost wages ("pay for all

purposes") for each eligible CR employee, by whatever

methodology, shall be discounted by 50%.

(5) The back-pay compensation period shall extend from August

24, 1982 to June 2, 2002.

(6) Simple interest shall be calculated annually on the amount of

the 50% discounted award of lost wages, and paid to each

eligible CR employee for each year, or fraction thereof, of

the back-pay compensation period.

(7) The simple interest shall be determined using the Canada

Savings Bond rate in effect on September 1^stof each year

concerned.

(8) Between the date of this Decision and the date of the ultimate

payment of the 50% back-pay award of lost wages, post-

judgement simple interest shall be paid to each eligible CR

employee at the applicable post-judgement rate prescribed

by the Courts of Justice Act of Ontario or comparable

provincial legislation.

(9) The Respondent shall be responsible for making remittances, as

necessary, that may arise as a result of any of these Orders,

with respect to statutory-based non-wage forms of

compensation.

(10) The Complainant's claim for special compensation pursuant to

paragraph 53(2)(e) or subsection 53(3) of the Act is hereby

dismissed.

(11) The claims for legal costs are hereby dismissed.

(12) The Respondent's submission that both it and the Alliance

should be jointly liable for any substantiated wage

discrimination is hereby dismissed.

(13) The Tribunal shall retain jurisdiction to deal with issues that

may arise in the implementation of its Decision, on an "as

needed" basis.

Signed by

Elizabeth Leighton

Signed by

Gerald T. Rayner

OTTAWA, Ontario

October 7, 2005

¹R.S.C. 1985, c. H-6.

²R.S.C. 1985, c. P-35.

³R.S.C. 1985, c. C-10.

⁴Ibid. at s. 5(2).

⁵R.S.C. 1985, c. L-2.

⁶G.A. Res. 217A(III), UN Doc. A/810 (1948) at 71.

⁷Convention concerning Equal Remuneration for Men and Women

Workers for Work of Equal Value, 29 June 1951, I.L.O. C100.

⁸19 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976,

accession by Canada 19 May 1976).

⁹19 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976,

accession by Canada 19 May 1976).

¹⁰Ibid.

¹¹Supra note 8.

¹²Canada, Report of the Royal Commission on the Status of Women

(Ottawa: Royal Commission on the Status of Women, 1970).

¹³18 December 1979, 1249 U.N.T.S. 13 (entered into force 3 September

1981, ratification by Canada 10 December 1981).

¹⁴at 918.

¹⁵Canada (P.G.) v. Mossop, [1993] 1 S.C.R. 554 at 612.

¹⁶at 156.

¹⁷2nd ed. (Toronto: Butterworths, 1983).

¹⁸3^rded. (Toronto: Butterworths, 1994).

¹⁹Supra note 17 at 87.

²⁰Supra note 18 at 131.

²¹Ibid. at 288.

²²Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 22.

²³"More than 1,000 new Calls to the Bar" Ontario Lawyers Gazette

(Fall/Winter 2002).

²⁴Parliament, Standing Committee on Justice and Legal Affairs, Minutes

of Proceedings and Evidence, Issue No. 11 (17 May 1977).

²⁵Supra note 12.

²⁶R.S.C. 1985, c. H-6, s. 27(2).

²⁷S.O.R./1986-1082.

²⁸Canada (Attorney General) v. Public Service Alliance of Canada, [1999]

F.C.J. No. 1531 at para. 152 (F.C.T.D.).

²⁹Ontario (Human Rights Commission) v. Simpson-Sears Ltd., [1985] 2

S.C.R. 536 at 558.

³⁰Bell Canada v. Canadian Telephone Employees Association, [1998]

F.C.J. No. 313 (F.C.T.D.).

³¹Canadian Telephone Employees Association v. Bell Canada (4 June

1997), Interim Ruling, T454/0991 at 19 (C.H.R.T.).

³²Supra note 30 at para. 154.

³³Public Service Alliance of Canada v. Canada Post Corporation (21

October 1998), Interim Ruling, T299/1392 at 24 (C.H.R.T.).

³⁴Ibid. at 23.

³⁵An Act to amend the Canada Evidence Act, Criminal Code and

Canadian Human Rights Act, S.C. 1998, c. 9.

³⁶Canadian Telephone Employees Association v. Bell Canada (26 April

1999), Interim Ruling, T503/2098 (C.H.R.T.).

³⁷Bell Canada v. Canada (Human Rights Commission), [2000] F.C.J. No.

1747 (F.C.T.D.).

³⁸Bell Canada v. Canada (Human Rights Commission), [2001] F.C.J. No.

776 (F.C.A.).

³⁹Bell Canada v. Canadian Telephone Employees Association, [2003] 1

S.C.R. 884.

⁴⁰Ibid. at para. 47.

⁴¹Ibid. at para. 50.

⁴²Supra note 39.

⁴³Ibid. at para. 47

⁴⁴Ibid.

⁴⁵Equal Wages Guidelines, S.I./78-155 (1978), as am. by S.I./82-2 (1982).

⁴⁶Canada Post Submissions, Transcript, Vol. 409 at 45968.

⁴⁷Ibid. at 45981.

⁴⁸Ibid. at 45981-45983.

⁴⁹[1977] 1 S.C.R. 271.

⁵⁰Commission Reply Submissions at 16.

⁵¹Ibid. at 17.

⁵²Ibid. at 18.

⁵³[2001] A.J. No. 1535 (Alta. Q.B.), as cited in the Commission Reply

Submissions at 26.

⁵⁴Ibid.

⁵⁵Supra note 7; Supra note 12.

⁵⁶Supra note 49; Supra note 18.

⁵⁷Supra note 18.

⁵⁸Ibid. at 514-515.

⁵⁹Ibid. at 517.

⁶⁰Ibid.

⁶¹Commission Submissions at para. 15-16; Transcript, Vol. 415 at 46841.

⁶²Supra note 39 at para. 47.

⁶³Supra note 53 at para. 21.

⁶⁴Ibid. at para. 22.

⁶⁵Supra note 18 at 537.

⁶⁶Friends of the Oldman River Society v. Canada (Minister of Transport),

[1992] 1 S.C.R. 3.

⁶⁷Canada Post Submissions, Transcript, Vol. 409 at 46026-27.

⁶⁸Transcript, Vol. 414 at 46730-31.

⁶⁹Supra note 17 at 87; See also supra note 18 at 131 and 288.

⁷⁰Canada Post Submissions, Transcript, Vol. 408 at 45844.

⁷¹Canada Post Submissions, Transcript, Vol. 408 at 45873.

⁷²Supra note 28.

⁷³Public Service Alliance of Canada v. Canada (Department of National

Defence), [1996] F.C.J. No. 842 (F.C.A).

⁷⁴Supra note 17 at 87.

⁷⁵Supra note 18 at 131.

⁷⁶R.S.C. 1985, c. I-21, s. 12.

⁷⁷Supra note 73 at para. 2.

⁷⁸[1987] 1 S.C.R. 1114.

⁷⁹Ibid. at paras. 34 and 40.

⁸⁰[1991] C.H.R.D. No. 4 (C.H.R.T) (QL).

⁸¹Supra note 28 at para. 141.

⁸²Ibid. at para. 150.

⁸³Ibid. at para. 151.

⁸⁴Transcript, Vol. 396 at 44388.

⁸⁵Supra note 28 at para. 152.

⁸⁶Statement of Agreed Facts, Appendices J & L.

⁸⁷Ibid.

⁸⁸Statement of Agreed Facts, Appendix L; Transcript, Vol. 315 at 36800-

3680l.

⁸⁹Exhibit HR-1, Tab 3 at 24.

⁹⁰Ibid. at 11.

⁹¹Transcript, Vol. 20 at 2626.

⁹²Exhibit HR-2, Tab 2.

⁹³Transcript, Vol. 20 at 2754.

⁹⁴Transcript, Vol. 38 at 5288.

⁹⁵Transcript, Vol. 57 at 7674-7675.

⁹⁶Transcript, Vol. 3 at 327-328.

⁹⁷Ibid. at 331.

⁹⁸Ibid. at 333.

⁹⁹Canadian Union of Public Employees (Airline Division) v. Canadian

Airlines International Ltd., [1998] C.H.R.D. No. 8 (C.H.R.T.) (QL).

¹⁰⁰Canada (Canadian Human Rights Commission) v. Canadian Airlines

International Ltd., [2001] F.C.J. No. 1258.

¹⁰¹Canada (Canadian Human Rights Commission) v. Canadian Airlines

International Ltd., [2004] F.C.J. No. 483.

¹⁰²Ibid. at para. 20.

¹⁰³Ibid. at para. 52.

¹⁰⁴Ibid. at para. 32.

¹⁰⁵Ibid. at para. 92.

¹⁰⁶Ibid. at para. 25.

¹⁰⁷Ibid. at para. 49.

¹⁰⁸Ibid. at para. 46.

¹⁰⁹Transcript, Vol. 49 at 6652.

¹¹⁰Transcript, Vol. 213 at 27026.

¹¹¹Transcript, Vol. 214 at 27076.

¹¹²Transcript, Vol. 214 at 27113.

¹¹³Transcript, Vol. 216 at 27236.

¹¹⁴Transcript, Vol. 280 at 33124.

¹¹⁵Transcript, Vol. 295 at 34933.

¹¹⁶Transcript, Vol. 298 at 35204.

¹¹⁷Transcript, Vol. 296 at 35062.

¹¹⁸Transcript, Vol. 299 at 35253.

¹¹⁹Transcript, Vol. 318 at 37037.

¹²⁰Exhibit HR-1, Tab 22.

¹²¹Exhibit PSAC-29 at 1.

¹²²Exhibit PSAC-29, Appendix A.

¹²³Ibid.

¹²⁴Exhibit PSAC-180, Findings & Conclusions.

¹²⁵Transcript, Vol. 368 at 41399; Vol. 369 at 41430.

¹²⁶Public Service Alliance of Canada v. Canada (Treasury Board), [1996]

C.H.R.D. No. 2 at para. 187 (C.H.R.T.) (QL).

¹²⁷Supra note 28 at para. 79.

¹²⁸Supra note 73 at para. 33.

¹²⁹Trojan Technologies, Inc. v. Suntec Environmental Inc., [2004] F.C.J.

No. 636.

¹³⁰Merck & Co. v. Apotex Inc., [2004] F.C.J. No. 684 (T.D.).

¹³¹Exhibit HR-1, Tab 22.

¹³²Exhibit HR-31, Tab 6 at 201.

¹³³Transcript, Vol. 126 at 17241.

¹³⁴Transcript, Vol. 35 at 4803.

¹³⁵Transcript, Vol. 372 at 41789.

¹³⁶Transcript, Vol. 127 at 17350.

¹³⁷Exhibit HR-1, Tab 22.

¹³⁸Exhibit R-225 at 3.

¹³⁹Transcript, Vol. 136 at 18643.

¹⁴⁰Supra note 138.

¹⁴¹Transcript, Vol. 172 at 22797.

¹⁴²Ibid. at 22803.

¹⁴³Exhibit HR-93 A.

¹⁴⁴Ibid.

¹⁴⁵Transcript, Vol. 144 at 19837.

¹⁴⁶Transcript, Vol. 127 at 17345.

¹⁴⁷Ibid. at 17374.

¹⁴⁸Exhibit R-235 at 66; Exhibit R-249 at 18.

¹⁴⁹Exhibit R-235 at 77; Exhibit R-249 at 32.

¹⁵⁰Exhibit R-249 at 80.

¹⁵¹Exhibit R-455 at 22

¹⁵²Transcript, Vol. 105 at 14524.

¹⁵³Supra note 151 at 12-14 and 16.

¹⁵⁴Ibid. at 33.

¹⁵⁵Ibid.

¹⁵⁶Transcript, Vol. 130 at 17711.

¹⁵⁷Exhibit R-615 at 1

¹⁵⁸Ibid.

¹⁵⁹Ibid. at 3.

¹⁶⁰Ibid. at 23.

¹⁶¹Ibid. at 25.

¹⁶²Supra note 126.

¹⁶³Ontario Nurses' Association v. Regional Municipality of Haldimand-

Norfold (1991), 2 P.E.R. 10S (Pay Equity Hearings Tribunal).

¹⁶⁴Exhibit R-235 at 77.

¹⁶⁵Exhibit R-249 at chapter 6.

¹⁶⁶R.S.O. 1990, c. P-7.

¹⁶⁷Ibid.

¹⁶⁸Alliance Submissions at 113.

¹⁶⁹Ibid. at 167.

¹⁷⁰Transcript, Vol. 210 at 26679.

¹⁷¹Service Employees International Union, Local 204 v. Ontario (Attorney

General), [1997] O.J. No. 3563.

¹⁷²Canada (Human Rights Commission) v. Canadian Airlines

International Ltd., [2004] F.C.J. No. 483 at para. 51.

¹⁷³Transcript, Vol. 136 at 18700.

¹⁷⁴Exhibit R-615.

¹⁷⁵Exhibit PSAC-29.

¹⁷⁶Transcript, Vol. 194 at 25029.

¹⁷⁷Transcript, Vol. 125 at 17031.

¹⁷⁸Transcript, Vol. 163 at 21992.

¹⁷⁹Transcript, Vol. 127 at 17350-17351.

¹⁸⁰Transcript, Vol. 134 at 18298.

¹⁸¹Transcript, Vol. 174 at 22908.

¹⁸²Transcript, Vol. 376 at 42167.

¹⁸³Transcript, Vol. 173 at 22830.

¹⁸⁴Transcript, Vol. 314 at 36739.

¹⁸⁵Transcript, Vol. 345 at 39204.

¹⁸⁶Exhibit R-615.

¹⁸⁷Transcript, Vol. 404 at 45223.

¹⁸⁸Ibid. at 45335.

¹⁸⁹S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law

Book Inc., 2004) at 13-1 and 13-2.

¹⁹⁰Ibid.

¹⁹¹Transcript, Vol. 127 at 17373.

¹⁹²Exhibit PSAC-29.

¹⁹³Exhibit PSAC-30.

¹⁹⁴Supra note 126.

¹⁹⁵Exhibit PSAC-55.

¹⁹⁶Exhibits PSAC-29 and PSAC-30.

¹⁹⁷Transcript, Vol. 151 at 20794-20795.

¹⁹⁸Supra note 126.

¹⁹⁹Exhibits R-433 and R-436.

²⁰⁰See paragraph [724] above.

²⁰¹Commission Submissions, Chap. 13 at para. 532.

²⁰²Canada Post Submissions, Chap. 14 at 395.

²⁰³Ibid. at para. 89.

²⁰⁴Ibid. at para. 95.

²⁰⁵Syndicat des employés de production du Québec et de l'Acadie v.

Canada (Human Rights Commission), [1989] 2 S.C.R. 879 at para.

87.

²⁰⁶Supra note 28 at para. 116.

²⁰⁷Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84.

²⁰⁸Supra note 78 at paras. 24 and 25.

²⁰⁹Ibid. at para. 44.

²¹⁰Supra note 73 at para. 49.

²¹¹Transcript, Vol. 26 at 3564.

²¹²Ibid. at 3565.

²¹³Supra note 126.

²¹⁴See paragraphs [769] and [778] above.

²¹⁵See paragraphs [767] and [769] above.

²¹⁶Transcript, Vol. 382 at 42856-57.

²¹⁷Transcript, Vol. 151 at 20835.

²¹⁸Transcript, Vol. 37 at 5120.

²¹⁹Ibid. at 5121-5122.

²²⁰Commission Submissions at 187-188.

²²¹Transcript, Vol. 148 at 20440.

²²²Transcript, Vol. 150 at 20600-20601.

²²³Transcript, Vol. 337 at 38705.

²²⁴Transcript, Vol. 148 at 20433.

²²⁵Supra note 101 at para. 87.

²²⁶Transcript, Vol. 337 at 38727.

²²⁷Transcript, Vol. 148 at 20435.

²²⁸Canada (Attorney General) v. Morgan, [1991] F.C.J. No. 1105 at para.

19 (F.C.A.).

²²⁹Supra note 73 at para. 20.

²³⁰Ibid. at para. 44.

²³¹Supra note 228 at para. 15.

²³²[2004] C.H.R.D. No. 16 (C.H.R.T.) (QL).

²³³[1998] C.H.R.D. No. 7 (C.H.R.T.) (QL).

²³⁴Ibid. at para. 286.

²³⁵[2000] F.C.J. No. 417.

²³⁶Supra note 73 at para. 49.

²³⁷Public Service Alliance of Canada v. Canada (Treasury Board), [1998]

C.H.R.D. No. 6 (C.H.R.T.) (QL).

²³⁸Supra note 73 at para. 20.

²³⁹Transcript, Vol. 414 at 46825.

²⁴⁰Ibid. at 46829.

²⁴¹R.S.O. 1990, c. C-43.

²⁴²Supra note 237 at paras. 496-498.

²⁴³Alliance Submissions, Chap. 17 at 551.

²⁴⁴[2002] C.H.R.D. No. 17 at para. 11 (C.H.R.T.) (QL).

²⁴⁵Commission Submissions, Chap. 13 at 570.

²⁴⁶Canada Post Submissions, Chap. 15 at 427.

²⁴⁷[1998] F.C.J. No. 1609 (F.C.A.).

²⁴⁸Ibid.

²⁴⁹Ibid. at para. 37.

PARTIES OF

RECORD

TRIBUNAL FILE:

STYLE OF CAUSE:

T299/1392

Public Service Alliance of Canada

v. Canada Post Coroporation

September 21, 1992 to August 27, 2003

(415 days)

DATE AND PLACE OF HEARING:

Ottawa, Ontario

October 7, 2005

DECISION OF THE TRIBUNAL

DATED:

APPEARANCES:

James Cameron

for the Complainant

Peter Engelmann

Fiona Campbell

Fiona Keith

for the Canadian Human Rights

Commission

Rosemary Morgan (1993-1994)

Russell G. Juriansz, (1992-March 1998)

Roy L. Heenan, (1998-2005)

E. Joy Noonan, (1998-2005)

Anne Irwin, (1993-2003)

Guy Dufort, (1998-2003)

Rob Grant, (2002-2003)

for the Respondent

Zygmunt Machelak, (1992) and (1998)

Neelam Jolly, (1997-1998)

Stephen Bird, (1998)

Nitya Iyer, (2003)