Commission des droits de la personne et des droits de la jeunesse c. Gaz Métropolitain Inc.

Unofficial English Translation — Not Verified by SOQUIJ

Commission des droits de la personne et des droits de la jeunesse

c. Gaz métropolitain inc.

2008 QCTDP 24

HUMAN RIGHTS TRIBUNAL

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF MONTRÉAL

No.

500-53-000204-030

September 11, 2008

DATE:

______________________________________________________________________

PRESENT: THE HONOURABLE MICHÈLE RIVET J.

WITH THE ASSISTANCE OF ASSESSORS:

Mtre. Yeong-Gin Jean Yoon

Ginette Bouffard

______________________________________________________________________

COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE, a

public body constituted under the Charter of human rights and freedoms (R.S.Q., c. C-12),

having its head office at 360, rue Saint-Jacques Ouest, Montréal (Québec) H2Y 1P5,

acting on behalf of LINE BEAUDOIN, JOHANNE BOLDUC, MARIE-CLAUDE CÔTÉ,

JOHANNE (JOAN) DUPONT, TANIA PLOURDE, SHIRLEY THOMAS AND NICOLE

TRUDEL

Plaintiff

v.

GAZ MÉTROPOLITAIN INC, a legal person established in the private interest, having its

head office at 1717, rue du Havre, Montréal (Québec) H2K 2X3

and

GAZ MÉTROPOLITAN LIMITED PARTNERSHIP, a corporation having its head office at

1717, rue du Havre, Montréal (Québec) H2K 2X3

Defendants

and

LINE BEAUDOIN, JOHANNE BOLDUC, MARIE-CLAUDE CÔTÉ, JOHANNE (JOAN)

DUPONT, TANIA PLOURDE, SHIRLEY THOMAS AND NICOLE TRUDEL, having elected

domicile at 360, rue Saint-Jacques Ouest, Montréal (Québec) H2Y 1P5

Victims

500-53-000204-030

and

2

ACTION TRAVAIL DES FEMMES DU QUÉBEC INC., a legal person established in the

private interest, having its place of business at 911, rue Jean-Talon Est, local 224,

Montréal (Québec) H2R 1V5

Complainant before the Commission des droits de la personne et des droits de la

jeunesse

and

SYNDICAT DES EMPLOYÉS DE GAZ MÉTROPOLITAIN INC. (CSN), duly certified

association of employees, having a place of business at 1717, rue du Havre, Montréal

(Québec) H2K 2X3

Interested party

_____________________________________________________________________

JUDGMENT

______________________________________________________________________

TABLE OF CONTENTS

SECTION 1. NATURE OF THE DISPUTE ......................................................................4

1.1 Origin of the dispute ...............................................................................................8

1.2 Chronology of the proceedings ..............................................................................8

SECTION 2. APPLICABLE LAW.................................................................................10

2.1 Nature and foundation of systemic discrimination................................................12

2.2 Particulars of the evidence in matters of systemic discrimination.........................17

2.2.1 Some manifestations of systemic discrimination............................................17

2.2.2 Utility of statistical evidence ...........................................................................20

2.3 Grounds of defence in cases of systemic discrimination......................................24

2.3.1 Requirements essential to safe and efficient performance of the work ..........25

2.3.2 Minimal requirements not likely to be reasonably accommodated .................27

SECTION 3. ANALYSIS OF THE EVIDENCE .............................................................30

3.1 Presence of women in blue-collar jobs at Gaz Métro ...........................................31

3.1.1 Circumstances of the special recruitment competition ...................................31

3.1.2 Issue of under-representation ........................................................................33

3.2 Description of the position of network operator and its prerequisites ...................41

3.2.1 Description of the duties.................................................................................41

3.2.2 Prerequisites according to the job profile .......................................................44

3.2.2.1 Class 3 driver’s licence............................................................................46

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3

3.2.2.2 Secondary V diploma ..............................................................................52

3.2.2.3 Non-traditional experience ......................................................................53

3.3 External selection process ...................................................................................55

3.3.1 Information sessions ......................................................................................56

3.3.2 Management of résumés................................................................................58

3.3.3 Pre-interview ..................................................................................................59

3.3.3.1 People interviewed, interviewers and general interview procedure.........59

3.3.3.2 Interview tools .........................................................................................61

3.3.3.3 Particular questions and themes of the interview....................................63

3.3.3.4 Nature and evaluation of the interview ....................................................69

3.3.3.5 Conclusions regarding the pre-interview.................................................76

3.3.4 Theoretical examination .................................................................................80

3.3.4.1 Procedure for the theoretical examination...............................................80

3.3.4.2 Evaluation of the theoretical examination................................................83

3.3.4.3. Bennett test............................................................................................86

3.3.4.4 Conclusions regarding the theoretical examination.................................89

3.3.5 Practical examination.....................................................................................90

3.3.5.1 Procedure for the practical examination..................................................90

3.3.5.2 Evaluation of the practical examination...................................................93

3.3.5.3 Conclusions regarding the practical examination....................................97

3.3.6 Medical examination ....................................................................................104

3.3.7 Pilot project ..................................................................................................107

3.3.8 Conclusions regarding the selection process...............................................109

3.3.8.1 Correlation between the duties, requirements and means of selection.109

3.3.8.2 Absence of criterion-related validation ..................................................110

3.3.8.3 Final conclusions regarding the selection process................................113

3.4 Gaz Métro’s institutional culture .........................................................................113

3.4.1 Prevailing models.........................................................................................114

3.4.2 Candidate profile sought ..............................................................................117

3.4.3 Organizational dimension of the special recruitment competition.................119

SECTION 4. REMEDIAL MEASURES.......................................................................125

4.1 Orders of a systemic nature ...............................................................................126

4.1.1 Imposing an affirmative action program .......................................................126

4.1.2 Modifying institutional policies and practices................................................133

4.2 Individual measures ...........................................................................................136

4.2.1 Measures related to material prejudice ........................................................136

4.2.2 Measures related to moral prejudice............................................................140

4.2.3 Punitive damages.........................................................................................146

4.2.4 Employment integration and other measures...............................................148

SECTION 5. CONCLUSIONS ....................................................................................151

500-53-000204-030

4

SECTION 1. NATURE OF THE DISPUTE

[1]

The Tribunal is seized of a motion introductive of suit in which the plaintiff, the

Commission des droits de la personne et des droits de la jeunesse (hereinafter referred

to as the “Commission”), alleges that the defendants, Gaz Métropolitain Inc. and the

Gaz Métropolitain Limited Partnership (hereinafter referred to together as “Gaz Métro”),

interfered with the right to equality of the victims Line Beaudoin, Johanne Bolduc, Marie-

Claude Côté, Joan Dupont, Tania Plourde, Shirley Thomas and Nicole Trudel by

applying a discriminatory hiring system to female candidates, which resulted in their

disproportionate exclusion from positions of network operator/trainee (hereinafter

“network operator”), traditionally held by male employees, the whole contrary to sections

10, 16 and 86 of the Charter of human rights and freedoms.¹

[2]

In short, the Commission alleges that Gaz Métro engaged in systemic

discriminatory hiring practices. Given the length of the conclusions sought and for

greater clarity, I cite below the full conclusions as they appear in the Commission’s

written arguments:

[TRANSLATION]

FOR THESE REASONS, THE PLAINTIFF COMMISSION, ACTING IN THE

PUBLIC INTEREST AND ON BEHALF OF THE COMPLAINANTS, ASKS THE

HUMAN RIGHTS TRIBUNAL TO:

ALLOW this motion;

ACKNOWLEDGE that the hiring system used by the defendants to fill the

position of network operator/trainee had discriminatory effects contrary to

sections 10, 16 and 86 of the Charter;

ACKNOWLEDGE that, on a number of occasions since 1995 and through the

recruitment and selection system used to fill the position of network

operator/trainee, the defendants interfered with the complainants’ right to equality

in employment, contrary to sections 10, 16 and 86 of the Charter;

ORDER the defendants to:

OVERHAUL the selection process and the hiring and selection criteria for the

position of network operator/trainee, or an equivalent position, in order to

eliminate the discriminatory biases against women;

VALIDATE the content and grading of the company’s hiring and selection

examinations in order to eliminate all discriminatory biases against women and to

ensure that the examinations make it possible to recruit and hire female

candidates with the essential qualifications and aptitudes required to perform the

work of network operator/trainee, or an equivalent position;

1 R.S.Q., c. C-12 (Charter).

500-53-000204-030

CEASE using hiring and selection examinations with a negative impact on

5

women without their being warranted by the qualifications and aptitudes required

for the employment of network operator/trainee, or an equivalent position;

MODIFY the system of candidate interviews in order to eliminate questions with a

discriminatory effect on women and take the necessary steps to ensure that the

people in charge of the interviews have clear and specific instructions to treat all

candidates without discrimination based on sex;

CEASE to rank candidates in order of grades on examinations for the position of

network operator/trainee, or an equivalent position, except in the case of

validation making it possible to establish the correlation between receiving a

higher grade on hiring examinations and better performance as a network

operator/trainee;

DRAW UP, when selecting people for the position of network operator/trainee, or

an equivalent position, two lists of candidates, i.e. a list of female candidates who

have the qualifications and aptitudes essential for the job and another list of

qualified male candidates;

HIRE, on a priority basis, women with the essential qualifications and aptitudes

required to perform the work of a network operator/trainee, in any external or

internal hiring, in accordance with the terms and conditions established in the

affirmative action program, the preferential appointment rate being set at 40%;

FACILITATE the integration of women into the technical network training

program by examining, in particular, the possibility of following and participating

in the program, and performing the work of a network operator/trainee in different

ways, while ensuring that the work is done safely and efficiently;

FACILITATE the integration of women into blue-collar jobs, particularly by setting

up a committee to fight sexual and sexist harassment at work, on which network

operators/trainees and the management of the company are represented;

ADOPT working tools and methods that foster the integration of women into non-

traditional jobs, by examining, in particular, the possibility of performing the work

of network operator/trainee (or an equivalent position) in different ways, while

ensuring that the work is performed safely and efficiently;

THE WHOLE, in the framework of an affirmative action program. And to that end,

ORDER the defendants to submit, within three (3) years, an affirmative action

program developed in consultation with the Commission des droits de la

personne et des droits de la jeunesse and in accordance with the Regulation

respecting Affirmative Action Programs;

500-53-000204-030

AND, IN ADDITION,

6

ORDER the defendants to HIRE Marie-Claude Côté, Johanne Bolduc and Shirley

Thomas as network operators/trainees, or in an equivalent position, as soon as

such positions become open, with recognition retroactive to April 1996 of all the

rights and privileges related to the position, including non-competitive seniority

and pension credits, payment of damages for the wage loss incurred, plus an

additional amount to compensate for adverse tax implications of the payment of

damages claimed during a taxation year;

ORDER the defendants to REINSTATE Line Beaudoin, Johanne (Joan) Dupont,

Tania Plourde and Nicole Trudel in the selection process at the stage at which

they would have been but for the discrimination against them and, should those

complainants pass the subsequent stages of the hiring process, OFFER them

positions as network operators/trainees as soon as such positions become open;

ORDER the defendants to PAY each of the complainants, namely, Line

Beaudoin, Johanne Bolduc, Marie-Claude Côté, Johanne (Joan) Dupont, Tania

Plourde, Shirley Thomas and Nicole Trudel, $20 000 (twenty thousand dollars) in

moral damages as a result of the discrimination they sustained because of their

sex and for interference in their right to the safeguard of their dignity;

ORDER the defendants to PAY Line Beaudoin, Johanne (Joan) Dupont, Tania

Plourde and Nicole Trudel each additional damages of $10 000 (ten thousand

dollars) for insults, humiliation and frustration resulting from the loss of a chance

and the impossibility of demonstrating that they had the aptitudes and

qualifications to hold a job as network operator/trainee at the time of their

candidacy for the position, without being subject to a selection process with

discriminatory biases;

ORDER the defendants to PAY each complainant, namely, Line Beaudoin,

Johanne Bolduc, Marie-Claude Côté, Johanne (Joan) Dupont, Tania Plourde,

Shirley Thomas and Nicole Trudel, an additional $10 000 (ten thousand dollars)

in punitive damages, considering the unlawful and intentional nature of the

discrimination they sustained;

THE WHOLE, with interest and the additional indemnity, in accordance with

article 1619 C.C.Q., as of service of the proposed remedial measures, as well as

full costs, including any cost of expert evidence, for the presence of the experts

in court and for the preparation of their reports.²

[3]

As for the complainant, Action travail des femmes du Québec inc. (hereinafter

referred to as “ATF”), it agreed with the contentions of the Commission and decided to

file additional arguments. It supported the conclusions sought by the Commission and

also asked that the affirmative action program (hereinafter referred to as the “AAP”)

2 Arguments of the Commission, April 5, 2007 at 72-75.

500-53-000204-030

7

developed by Gaz Métro and the Commission be presented to it so that it could

comment on it and make recommendations.

[4]

Gaz Métro mainly contended that the Commission did not discharge its burden of

demonstrating prima facie the existence of discriminatory elements in the company’s

hiring process. Gaz Métro also alleged that the under-representation of women in the

company was not, in and of itself, prima facie evidence of discrimination. The

defendants explained that each stage in the hiring process was discrimination-free and

that, at any rate, the victims’ failure at any of the stages was not the consequence of a

discriminatory system. They contended that the Commission’s evidence consisted only

in suspicions and theories, and that, although it was not perfect, the recruitment process

in effect was certainly not discriminatory. Moreover, Gaz Métro protested the

Commission’s claims that non-discrimination is defined in reference to the standard of

real equality. Lastly, Gaz Métro contested the justification for the individual claims on

behalf of the victims.

[5]

As regards the Syndicat des employés de Gaz Métropolitain inc. (CSN)

(hereinafter referred to as the “Syndicat”), it was impleaded solely because it signed a

letter of understanding (P-2) with the employer, providing that network operator

positions would be set aside on a priority basis for women and visible minorities, in

order to increase the representation of those groups in certain positions at Gaz Métro.

The Syndicat indicated that its involvement in the dispute was limited to letter of

understanding P-2, since it was never involved in the hiring process. It made no

representations about the merits of the motion or about the evidence, and it stressed

solely the importance of the qualifications of the employees recruited.

[6]

It also pointed out that it was decided, during the hearing, that the debate should

not be expanded in order to examine whether the collective agreement³was itself

discriminatory, the Tribunal having indicated at the time that it in no way challenged the

CSN agreement or the hiring process (or the [TRANSLATION] “internal” recruitment

process) agreed upon with the CSN-certified collective bargaining unit.⁴Therefore, the

Syndicat asked the Tribunal not to allow the conclusions of the Commission that would

require any interference whatsoever in the affairs of the CSN and, more specifically, to

strike the words [TRANSLATION] “or internal” from the following conclusion, should it

be allowed:

HIRE, on a priority basis, women with the essential skills and aptitudes required

to perform the work of a network operator/trainee, in any external or internal

3 D-1: copy of the collective agreement entered into between the Gaz Métropolitain Limited Partnership

and the Syndicat des employés de Gaz Métropolitain for the period from November 10, 1994 to

September 30, 1997; D-2: copy of the collective agreement entered into between the Gaz Métropolitain

Limited Partnership and the Syndicat des employés de Gaz Métropolitain for the period from February 25,

1998 to September 30, 2000.

4 Decision rendered orally, stenographic notes, February 22, 2006 at 144-145; decision rendered orally,

stenographic notes, October 11, 2006 at 9-10.

500-53-000204-030

8

hiring, in accordance with the terms and conditions established in the affirmative

action program, the preferential appointment rate being set at 40%.⁵

[7]

For the same reasons, the Syndicat also asked the Tribunal to dismiss the

following conclusion:

FACILITATE the integration of women into blue-collar jobs, particularly by setting

up a committee to fight sexual and sexist harassment at work, on which network

operators/trainees and the management of the company are represented.⁶

1.1

Origin of the dispute

[8]

The dispute stems from a complaint submitted by ATF to the Commission on

December 18, 1996, further to Gaz Métro’s rejection of the candidacies of a number of

women⁷in the special hiring competitions held beginning in 1995. The complaint alleged

in particular that the requirements, criteria and procedures of Gaz Métro made the

company’s selection process discriminatory as a whole in regard to women.

[9]

In August 2002, after several months of investigation, the Commission

recommended that Gaz Métro adopt various remedial measures to correct the

discriminatory situations the Commission had observed.⁸Gaz Métro did not follow those

recommendations, which led the plaintiff to institute judicial proceedings.

[10] On December 16, 2003, the Commission filed with the Tribunal a motion

introductive of suit on behalf of eight victims, namely, Line Beaudoin, Johanne Bolduc,

Marie-Claude Côté, Joan Dupont, Tania Plourde, Shirley Thomas, Nicole Trudel and

Danielle Varin. Ms. Varin subsequently discontinued her complaint.⁹

1.2

Chronology of the proceedings

[11] The hearing of the evidence began on October 25, 2004 and lasted 52 days over

a period of several months, ending on January 12, 2007. The Tribunal heard a total of

38 witnesses, including 10 expert witnesses. The Commission called Chantale Jeanrie¹⁰

5 Arguments of the Syndicat at 4.

6 Arguments of the Syndicat at 6.

7 P-25: complaint filed by Action travail des femmes, dated December 18, 1996, and written consents of

the victims, in a bundle.

8 P-23: proposed remedial measures CP-392.6 and service report.

9 Ms. Varin discontinued her complaint on January 15, 2006. On April 13, 2006, the Commission filed a

declaration of discontinuance in regard to that victim.

10 P-43: notice of expert evidence adduced by Chantale Jeanrie, dated August 2, 2004; P-43A: appendix

to Ms. Jeanrie’s expert report; P-44: notice of expert evidence adduced by Chantale Jeanrie, dated

January 13, 2005. Testimony: stenographic notes, February 15, 2005; stenographic notes, February 16,

2005; stenographic notes, February 17, 2005; stenographic notes, May 30, 2005.

500-53-000204-030

9

and Erika Boukamp Bosch,¹¹as well as Claude Yelle¹²and Marc Fortier,¹³as expert

witnesses. It also intended to have Jean Renaud testify as an expert witness in its

rebuttal evidence, but the Tribunal allowed Gaz Métro’s motion for dismissal of that

expert’s report.¹⁴ATF called Karen Messing as an expert witness.¹⁵Gaz Métro called

Denise Perron,¹⁶François Boulard,¹⁷Normand Pettersen,¹⁸Louis Laurencelle¹⁹and

Richard Joly²⁰to testify.

[12] The Tribunal rendered a number of interlocutory decisions during the

proceedings, but I will restrict myself here to recalling those that gave rise to written

reasons.

[13] The Tribunal first allowed a motion by Gaz Métro to disqualify Mtre. Rachel Cox,

ATF attorney.²¹Gaz Métro intended to have her testify as an ATF employee and the

Tribunal deemed that, in the interests of justice, the duties of attorney and witness were

incompatible. Mtre. Annick Desjardins ultimately appeared for ATF on June 29, 2005 in

place of Mtre. Cox.

[14] Then on January 18, 2006, the Tribunal allowed a joint motion by ATF and Mtre.

Rachel Cox to quash subpoenas duces tecum. It deemed that the documents Gaz

Métro was asking two witnesses, Mtre. Cox and Lise Gauthier, to provide were too

broad in scope.²²

11 P-57: expert report of Ms. Boukamp-Bosch dated December 2004. Testimony: stenographic notes,

February 17, 2005; stenographic notes, February 18, 2005.

12 P-64: Statistics Canada tables, 2001 Census. Testimony: stenographic notes, March 15, 2005.

13 P-90: report of Mr. Fortier, public accountant. Testimony: stenographic notes, January 12, 2007.

14 Decision rendered orally, stenographic notes, January 9, 2007.

15 A-6: expert report of Ms. Messing dated September 7, 2004. Testimony: stenographic notes, February

11, 2005.

16 D-80: expert report of Denise Perron. Testimony: stenographic notes, September 11, 2006;

stenographic notes, September 12, 2006.

17 D-74: expert report of François Boulard. Testimony: stenographic notes, June 19, 2006; stenographic

notes, June 20, 2006.

18 D-23: expert report of Normand Petterson dated October 20, 2004; D-84A: amended expert report of

Normand Petterson; D-84B: amended expert report of Normand Petterson, electronic version; D-84C:

tables in colour; A-19: personal notes of Normand Petterson. Testimony: stenographic notes, September

12, 2006; stenographic notes, September 13, 2006; stenographic notes, September 14, 2006;

stenographic notes, September 15, 2006; stenographic notes, October 10, 2006; stenographic notes,

October 11, 2006.

19 D-93A: note concerning verification of certain statistical aspects of the case CDPDJ v. Gaz

Métropolitain Inc.; D-93B: some special comments of a statistical nature on the case CDPDJ v. Gaz

Métropolitain Inc. Testimony: stenographic notes, December 8, 2006; stenographic notes, December 12,

2006.

20 D-103: report of Richard Joly, public accountant. Testimony: stenographic notes, January 12, 2007.

21 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Gaz Métro inc. (June

20, 2005), Montréal 500-53-000204-030, J.E. 2005-1303 (QC T.D.P.).

22 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Gaz Métro inc.

(January 18, 2006), Montréal 500-53-000204-030 (QC T.D.P.).

500-53-000204-030

10

[15] The Tribunal also allowed, on March 3, 2006, a joint motion by the Commission

and ATF for adjudication of the stenography costs of the hearing.²³The Tribunal

decided that Gaz Métro should alone pay the costs of its private stenographer and that

the other parties could obtain a copy of the stenographic notes by paying the costs

provided for by regulation.

[16] On August 1, 2006, the Tribunal allowed Gaz Métro’s motion contesting the

words [TRANSLATION] “costs to follow” in the declaration of discontinuance of Danielle

Varin.²⁴Considering article 264 of the Code of Civil Procedure,²⁵the Tribunal then

decided that the Commission had to bear the costs related to the discontinuance.

[17] Given the many witnesses who testified at the hearing, the scope of the evidence

presented by the parties and the factual and legal complexity of the dispute, the

Tribunal asked the parties to plead in writing. The Tribunal had initially ordered the

parties to send it the latest replies on or before June 5, 2007.²⁶However, at the parties’

request, the Tribunal granted several extensions of the deadlines for submitting

arguments, replies and additional notes. The Commission filed its written arguments on

April 5, 2007, ATF on April 10, 2007, the Syndicat on June 1, 2007 and Gaz Métro on

June 4, 2007. Subsequently, ATF submitted a reply on June 28, 2007 and the

Commission filed its reply on June 29, 2007. Lastly, Gaz Métro filed additional notes on

July 3, 2007. The Tribunal took the case under advisement on July 6, 2007.

[18] In order to ensure optimal consistency and clarity, the Tribunal has structured its

decision by first presenting an account and analysis of the applicable law (section 2),

followed by an analysis of the evidence (section 3), the remedial measures (section 4)

and the conclusions (section 5).

SECTION 2. APPLICABLE LAW

[19] Since allegations of systemic discrimination call for usually rather elaborate

factual evidence, the Tribunal believes it is worthwhile to first discuss the principal legal

rules applicable in that area in order to be better able to then discuss the relevant

elements of the evidence adduced by each party. Furthermore, given that the more

recent jurisprudential developments on the subject have occurred essentially in other

Canadian jurisdictions, the Tribunal believes it is useful to examine here certain rulings

by tribunals of first instance specializing therein that shed a helpful light on the factual

context proper to situations of systemic discrimination.

23 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Gaz Métro inc. (March

3, 2006), Montréal 500-53-000204-030, J.E. 2006-896 (QC T.D.P.).

24 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Gaz Métro inc.

(August 1, 2006), Montréal 500-53-000204-030, J.E. 2006-1871 (QC T.D.P.).

25 R.S.Q., c. C-25.

26 Minutes of January 12, 2007 at 1.

500-53-000204-030

11

[20] To properly conduct that exercise, I will successively discuss the nature of

systemic discrimination and its foundations (2.1), the particularities of the

evidence relevant to that type of allegation (2.2) and the grounds of defence

against evidence of systemic discrimination (2.3).

[21] The main provisions of the Charter that are relevant to this dispute read as

follows:

10. Every person has a right to full and equal recognition and exercise of his

human rights and freedoms, without distinction, exclusion or preference based on

race, colour, sex, pregnancy, sexual orientation, civil status, age except as

provided by law, religion, political convictions, language, ethnic or national origin,

social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the

effect of nullifying or impairing such right.

16. No one may practise discrimination in respect of the hiring, apprenticeship,

duration of the probationary period, vocational training, promotion, transfer,

displacement, laying-off, suspension, dismissal or conditions of employment of a

person or in the establishment of categories or classes of employment.

20. A distinction, exclusion or preference based on the aptitudes or qualifications

required for an employment … is deemed non-discriminatory.

49. Any unlawful interference with any right or freedom recognized by this

Charter entitles the victim to obtain the cessation of such interference and

compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition,

condemn the person guilty of it to punitive damages.

80. Where the parties will not agree to negotiation of a settlement or to arbitration

of the dispute or where the proposal of the commission has not been

implemented to its satisfaction within the allotted time, the commission may apply

to a tribunal to obtain, where consistent with the public interest, any appropriate

measure against the person at fault or to demand, in favour of the victim, any

measure of redress it considers appropriate at that time.

86. The object of an affirmative action program is to remedy the situation of

persons belonging to groups discriminated against in employment, or in the

sector of education or of health services and other services generally available to

the public.

An affirmative action program is deemed non-discriminatory if it is established in

conformity with the Charter. …

500-53-000204-030

88. If, after investigation, the Commission confirms the existence of a situation

12

involving discrimination referred to in section 86, it may propose the

implementation of an affirmative action program within such time as it may fix.

Where its proposal has not been followed, the Commission may apply to a

tribunal and, on proof of the existence of a situation contemplated in section 86,

obtain, within the time fixed by the tribunal, an order to devise and implement a

program. The program thus devised is filed with the tribunal which may, in

accordance with the Charter, make the modifications it considers appropriate.

90. Where the Commission becomes aware that an affirmative action program

has not been implemented within the allotted time or is not being complied with, it

may, in the case of a program it has approved, withdraw its approval or, if it

proposed implementation of the program, it may apply to a tribunal in accordance

with the second paragraph of section 88.

2.1

Nature and foundation of systemic discrimination

[22] Over the years, the Canadian courts have gradually clarified the nature of

systemic discrimination and the particular circumstances in which it has

developed. In the landmark ruling rendered on the subject by the Supreme

Court,²⁷Chief Justice Dickson defined and clarified the notion and underscored

its involuntary nature:

[S]ystemic 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”….

…

[S]ystemic discrimination is often unintentional. It results from the application of

established practices and policies that, in effect, have a negative impact upon the

hiring and advancement prospects of a particular group. 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.²⁸

[23] In one of the cases involving the federal Treasury Board, the Canadian Human

Rights Tribunal (hereinafter referred to as the “Canadian Tribunal”) explained in these

27 CN v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 (hereinafter referred to as

“Action Travail des Femmes”).

28 Ibid. at 1139 and 1143.

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13

terms the inequalities and disparities encountered in the wages and salaries paid to

women and men for similar duties:

According to expert opinion, systemic discrimination has no focus or origin, only

that it develops over time. It is an attitudinal phenomenon which undervalues

female work and thus differentiates against an individual or group based on

gender or sex. Research has documented the group of people most commonly

affected by this type of discrimination are females, and their wages and salaries,

relative to male wages and salaries, are lower. This kind of discrimination is

rooted in attitudes, beliefs and mind sets about work traditionally performed by

males and work traditionally performed by females.²⁹

[24] In Brome v. Ontario,³⁰the majority of the Court in turn described the social

foundations of systemic discrimination:

Systemic discrimination is a complex underlying social process which is revealed

by incidents, acts and consequences and is recognized by its impact on specific

classes of people. Policy and procedures underlie the system and personnel

visibly represent it. The current challenge for the Commission and the Courts is

to identify and grapple with the dimensions of systemic discrimination.³¹

[25] Let me also mention comments to the same effect by the federal Court of Appeal

in Public Service Alliance of Canada:

The concept of systemic discrimination, on the other hand, emphasizes the most

subtle forms of discrimination, as indicated by the judgment of Dickson, C.J. …. It

recognizes 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.³²

[26] According to a broadly shared understanding of the phenomenon, it is

established that the various manifestations of systemic discrimination in fact refer to:

… a continuing phenomenon which has its roots deep in history and in societal

attitudes. It cannot be isolated to a single action or statement. By its very nature,

it extends over time.³³

[27] The intangible nature of systemic discrimination, the forms of which are

substantially or entirely hidden and unconscious, was evoked in these terms by

MacFarland J. in Brome v. Ontario:

29 Public Service Alliance of Canada v. Canada (Treasury Board), 1996 IIJCan 1874 (C.H.R.T.) at para.

82.

30 Brome v. Ontario (Human Rights Commission), (1999) 171 D.L.R. (4th) 538 (Ont. Div. Ct.).

31 Ibid.

32 Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] F.C.A. No. 842

at para. 14.

33 Ibid. at para. 16.

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Systemic discrimination is insidious and by its very nature as difficult to define as

14

it is to pinpoint. It can include direct or overt discrimination as well as the more

subtle forms of discrimination such as adverse impact discrimination and

entrenched and long held discriminatory attitudes and beliefs.³⁴

[28] As opposed to cases of so-called “indirect” discrimination, in which an apparently

neutral measure usually results in the exclusion of all the members of the group to

which the victim belongs, one of the characteristics of systemic discrimination is the

disproportionate exclusionary effect, which, for the members of a group contemplated

by a prohibited ground of discrimination, stems from a set of practices, policies and

attitudes. Practices that generate systemic discrimination do not necessarily result in the

exclusion of all the members of a protected group inasmuch as some of them may be

subject to the discrimination without sustaining all its effects.

[29] That exclusion in turn fuels the biases also underpinning those exclusionary

practices. The facts adduced before the Canadian Human Rights Tribunal in Action

Travail des Femmes³⁵are to that effect, since the evidence established various types of

negative perceptions of, and attitudes toward, women doing manual work, even the very

opportunity for them to penetrate a workplace traditionally reserved for men.

[30] But the marked absence of women and, more broadly, groups of people

contemplated by the prohibition of discrimination in certain spheres of social activity in

turn generated the absence of consideration of their point of view, their experience and

some of their characteristics when institutional standards or norms were developed.

[31] In 1984, the Abella report on equality in employment³⁶identified two classic

situations at the root of systemic discrimination. The first refers to “a disparately

negative impact that flows from the structure of systems designed for a homogeneous

constituency”³⁷on people outside the environment who cannot meet the prerequisites

designed according to the characteristics of that same environment. According to the

Report, the solution is to:

… systematically eradicate the impediments to these options according to the

actual needs of the different groups, not according to what we think their needs

should be. And we have to give individuals an opportunity to use their abilities

according to their potential and not according to what we think their potential

should be. …

34 Brome v. Ontario (Human Rights Commission), supra note 30.

35 Action Travail des Femmes v. Canadian National, (1984) 5 C.H.R.R. D/2327 (C.H.R.T.; hereinafter

referred to as the “ATF case”).

36 Abella, Rosalie Silberman, Report of the Commission on Equality in Employment (Ottawa: Supply and

Services Canada, 1984).

37 Ibid. at 9. The second situation in the report concerns the practices, inspired by stereotyped

characteristics attributed to people belonging to protected groups, which have a detrimental effect on

them.

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… The objectives of breathing life into the notion of equality are to rectify as

15

quickly as possible the results of parochial perspectives which unfairly restrict

women, native people, disabled persons, and visible minorities.³⁸

[32] Syme v. Canada³⁹also illustrates the impact of practices adopted according to

homogeneous environments. The Supreme Court had to decide whether the fees that a

professional woman paid for her children’s care constituted a business expenses that

was deductible from gross income within the meaning of the federal income tax

legislation. The “classic” jurisprudence, which was developed in a context where the

presence of women in certain sectors of activity was very limited, if not non-existent,

was based on a traditional conception of a company viewed according to the needs of

businessmen alone. In a dissenting opinion, L’Heureux-Dubé J. explained the

consequences in these terms:

[W]hen only one sex is involved in defining the ideas, rules and values in a

particular domain, that one-sided standpoint comes to be seen as natural, obvious

and general. As a consequence, the male standard now frames the backdrop of

assumptions against which expenses are determined to be, or not to be, legitimate

business expenses. Against this backdrop, it is hardly surprising that child care was

seen as irrelevant to the end of gaining or producing income from business but

rather as a personal non-deductible expense.⁴⁰

[33] From the same standpoint, the study of the equality of the sexes in the legal

profession⁴¹chaired by Madam Justice Bertha Wilson, then sitting on the Supreme

Court, identified the cultural values prevailing in the Court as one of main causes of the

discrimination experienced by women lawyers, because:

[t]hat culture has been shaped by and for male lawyers. It is predicated on

historical work patterns that assume that lawyers do not have significant family

responsibilities. The “hidden gender” of the current arrangements for legal work

manifests itself in many ways, including: the extremely long and irregular hours of

work; assumptions about the availability of domestic labour to support a lawyer’s

activities at work; promotion within law firms which is incompatible with the child

bearing and child rearing cycles of most women’s lives; and the perceived

conflict between allegiances owed to work and family.⁴²

38 Ibid. at 4.

39 Syme v. Canada [1993] 4 S.C.R. 695.

40 Ibid. at 798. Considering the composition of the labour market at the time, Madam Justice L’Heureux-

Dubé believed that the notion of business expense must accordingly take into consideration the needs of

all workers: “The practices and requirements of businesswomen may, in fact, differ from those of

businessmen. … one of the critical differences in the needs of businessmen and businesswomen is the

importance of child care for business people with children, particularly women. … child care is vital to

women’s ability to earn an income. … In my view, Ms. Symes’ child care expenses come within the definition

of “the purpose of gaining or producing income”, at 798-799.

41 Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability, 1993.

42 Ibid. at 70.

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16

[34] We find another interesting illustration of this situation in the decision handed

down in first instance in Ayangma.⁴³The case concerned the refusal to hire a candidate

from a visible minority for a race relations consultant position, to the benefit of a White

candidate who was less qualified but more familiar with the work environment. After

noting the inequitable composition of the selection committee, from which a candidate

from a racial minority had been deliberately excluded, and the lack of planning in the

process followed, the Court found that the committee’s action showed, at the very least,

an unconscious bias in favour of people already in the environment, and, therefore,

probably not from visible minorities. It concluded that such an approach necessarily

generates discrimination toward the members of that group:

Systemic discrimination refers to a process problem as opposed to an attitudinal

problem. … The manner in which the Committee went about reviewing the

applicants for the Race Relations Consultant position — focussed as it was upon

“inside” experience — made it highly unlikely that any racial minority would be

able to win the competition. … in a single hiring process systemic discrimination

can often be found when people look at personal suitability, ie. how a person

would “fit in”. This usually means that an analysis is being made of how much the

person is like the people already there. That is part of the problem in the instant

case, with its focus on someone who already knew the system.

Those requirements may not be phrased in discriminatory terms but they are

very exclusive — excluding almost anyone who is different and specifically

excluding anyone who had not already had an opportunity to work in the system.

Since there were virtually no visible minorities in the system, the potential impact

upon them was much greater than upon Caucasians.⁴⁴

[35] These examples clearly show that, despite wholly legitimate motivations, the

criterion of “personal suitability” for a given work environment can, in fact, contribute to

the disproportionate exclusion of candidates belonging to groups now contemplated by

the prohibition of discrimination, who, in the past, remained outside environments where

various institutional standards and norms, nay, organizational cultures, were developed

without taking into consideration such people’s characteristics and needs.

[36] Hence, the Tribunal believes it is now appropriate to define systemic

discrimination as the cumulative effects of disproportionate exclusion resulting from the

combined impact of attitudes marked by often unconscious biases and stereotypes, and

policies and practices generally adopted without taking into consideration the

characteristics of the members of groups contemplated by the prohibition of

discrimination.

43 Ayangma v. Govt. of PEI, [2000] P.E.I.J. No. 97, (2000) PESCTD 74.

44 Ibid. at paras. 121 and 124; emphasis added. The decision was quashed on appeal, not because the

criteria applied were themselves erroneous, but because the Court essentially considered that there was

no intention in the case to deliberately exclude members of visible minorities from the selection committee

and process.

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2.2 Particulars of the evidence in matters of systemic discrimination

17

[37] The societal underpinnings of systemic discrimination, its subtle manifestations

and the fact that it stems from usually unconscious motivations are not without

consequence for the difficulties encountered by a plaintiff in establishing systemic

discrimination, by preponderant evidence, through its various manifestations.

[38] In that regard, the Federal Court of Appeal overturned, in Public Service Alliance

of Canada,⁴⁵the conclusion of the court of first instance that a degree of proof nearing

certainty and conviction was required in order to award the remedy sought because of

the systemic discrimination practised. According to Hugessen J.:

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. It is no valid

defence for the opposite party to say that things might have been otherwise, for

that will almost always be the case where the civil burden is in play. If a thing

probably happened in a certain way, then by definition it might possibly have

happened in a completely different way. It was error for the Tribunal to reject

evidence simply because it did not exclude other possibilities unfavourable to the

complainant. The Judge not only failed to identify that error but compounded it by

his repeated insistence on the requirement of “certainty” in the establishment of

the extent of the wage gap.⁴⁶

[39] In the report that contributed to the recognition of systemic discrimination by the

courts, the content of which is still useful today in that area, Abella J., then

commissioner, indicated the following:

It is not a question of whether this [systemic] discrimination is motivated by an

intentional desire to obstruct someone’s potential, or whether it is the accidental

by-product of innocently motivated practices or systems. If the barrier is affecting

certain groups in a disproportionately negative way, it is a signal that the

practices that lead to this adverse impact may be discriminatory.

That is why it is important to look at the results of a system.⁴⁷

2.2.1 Some manifestations of systemic discrimination

[40] On the scale of businesses, evidence of the disproportionate exclusion of the

members of groups protected from discrimination in employment therefore requires an

examination of the on-going policies, attitudes and concrete practices in matters of

recruitment, selection, hiring, promotion and working conditions, in order to determine to

45 Public Service Alliance of Canada v. Canada (Department of National Defence), supra note 32.

46 Ibid. at para. 33.

47 As cited by Chief Justice Dickson in Action Travail des Femmes, supra note 27 at para. 34; emphasis

added.

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18

what extent they contribute or not to that situation so that the corrective measures

required can be implemented to eliminate the discriminatory effects. When seized of

allegations of systemic discrimination in employment, Canadian courts thus examine the

respondent employer’s entire hiring and staffing processes so as to find the elements

that can explain the disproportionate exclusionary effect.

[41] In the AFT case, the examination of the consequences of employment practices

and systems led the Canadian Human Rights Tribunal to analyse the entire process

followed:

… to determine whether the practices that resulted in a very small number of

women in blue-collar jobs at CN are justified …

To do this, the Tribunal believes it is necessary to examine the whole process

rather than isolated parts of it. From the whole we can obtain an overall picture of

CN’s system for screening job applications.⁴⁸

[42] In that case, the obligation to pass certain mechanical tests and to have welding

knowledge disproportionately excluded female candidates from certain unskilled blue-

collar jobs. As women had a significantly higher rate of failure than men, the Canadian

Tribunal concluded that there was evidence of prima facie discrimination requiring

justification by the employer.

[43] A conclusion of systemic discrimination was also issued by the Canadian

Tribunal in Green.⁴⁹That case concerned more particularly the obligation for candidates

for a managerial position to pass a test that measured their aptitude to learn another

language and its effect was to exclude candidates who, like the complainant, had

dyslexia in the auditory processing of information.

[44] According to the Canadian Tribunal, a lack of comprehension of the nature of

learning disabilities, and of the steps required to accommodate them, coupled with

shortcomings in staff training, explained the general inability to adapt the theories

officially conveyed regarding employment equity to the practices established, at all

levels, in order to implement them:

[E]mployees involved in this matter, while having good intentions, had little or no

effective training in how to deal with the theory of accommodation. … they had

no authority to make a recommendation or a decision concerning the need to

accommodate a person with a learning disability whose ability to participate in

48 The AFT case, supra note 35 at paras. 19781 and 19782. That comprehensive approach led the

Tribunal to group the hiring practices into four phases in order to examine: (1) practices concerning

information and advertising about the positions offered at CN; (2) reception at the employment office; (3)

employment criteria; and (4) reception in the workplace.

49 Green v. Canada (Public Service Commission), 1998 2101 (C.H.R.T.).

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19

second language training could not be established by the usual methodology, the

Orientation Process.⁵⁰

[45] Since the Public Service Commission of Canada, the respondent in the case,

invoked the impossibility, for administrative reasons, of accommodating Ms. Green’s

disability, which was discovered after the test, the Canadian Tribunal also believed that

the institutional attitudes and existing practices prevented the Commission from

applying its own human rights policies. Once Ms. Green’s case was known, no greater

consideration was given to the possibility that the test constituted a systemic obstacle

for other people with learning disabilities. The Tribunal concluded that it is the acts and

attitudes of the employers that caused systemic-type discrimination against employees

with that disability.

[46] National Capital Alliance on Race Relations v. Canada (Department of Health &

Welfare)⁵¹dealt with allegations of systemic discrimination in staffing practices in effect

at Health Canada (hereinafter referred to as “HC”) against persons from visible

minorities wishing to fill managerial positions, in a context marked by the stated

determination to increase the number of employees from such minorities in the federal

government.

[47] The evidence showed that, in 1993, only one of the 118 senior management

positions was held by a person from that group, a ratio of 0.8%.⁵²The parties’ experts

could not agree on the rate of representation of minorities. The complainant’s expert

estimated the figure to be less than 10% of their availability and the defence’s experts at

30%. The Canadian Tribunal nevertheless concluded that, regardless of the figures

accepted, “it is clear that … there is a significant under-representation of visible

minorities in HC senior management”.⁵³

[48] Then, examining the staff practices in effect, the Canadian Tribunal noted that

recruitment for those positions was very low in the professional feeder groups with a

high proportion of the members of the excluded group (i.e. people from visible

minorities), which led the Tribunal to note the existence of a bottleneck. On the other

hand, recruitment was very high in groups with no visible minority representation.

[49] Furthermore, 65% of the staffing measures applied during the period studied

took the form of acting appointments generally made informally, with no notice or

competition, and without all the employees being systematically informed. Whites

obtained more of those appointments than members of racial minorities (45% compared

with 34%), the gap being greater among older, more educated employees having

accumulated more seniority and more supervisory responsibilities.

50 Ibid.

51 National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare), [1997]

IIJCan 1433 (C.H.R.T.).

52 Ibid. at 3.

53 Ibid. at 8.

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20

[50] The evidence explained that phenomenon by showing that the managers of

White employees asked them more often to submit their candidacy, whereas racial

minorities had to count more on their own efforts to find out about opportunities. More

concretely, 42% of White respondents had supervised other employees, compared with

32% for people from racial minorities. Furthermore, by sitting on a selection board,

Whites were nearly twice as likely to be associated in the hiring and promotion decision-

making processes.

[51] According to the Canadian Tribunal, the informal processes used for

appointments to acting positions also had a “chilling effect” on minorities, who feared

they would not be evaluated according to their qualifications or treated fairly given the

greater risk of biases in a non-standardized process.

[52] Lastly, one of the experts for the complainant had found, in the testimony of

certain victims and a memorandum written by the chief of staff relations, a marked

perception among certain senior officers that members of visible minorities were

culturally unfit for management positions: “Visible minorities are viewed by senior

management as culturally different within HC and are not considered suitable for

managerial positions”.⁵⁴According to that expert, such a situation fueled the stereotype

according to which there is only one way to successfully perform the duties of a job and

the belief that only one set of people from a more homogeneous culture can act

adequately.

[53] Having completed its analysis of the employment practices, the Canadian

Tribunal concluded that:

The failure of visible minorities to progress into management cannot be explained

by a lack of interest or lack of technical or professional skills on the part of these

visible minorities. …

There are a number of staffing practices of HC that have a disproportionately

negative effect on visible minorities in HC which the Tribunal finds to be

discriminatory.⁵⁵

[54] I will shortly discuss how under-representation of the members of a group

contemplated by the prohibition of discrimination can constitute one of the

manifestations of systemic discrimination in employment. But first, a few comments are

in order regarding the role of statistical evidence in that regard.

2.2.2 Utility of statistical evidence

[55] The Tribunal mentioned earlier that, in the jurisprudence concerning the

discriminatory effect of neutral employment standards, all (100%) people practising the

54 Ibid. at 28.

55 Ibid. at 27 and 30.

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21

same religion or with the same disability as the victim were also affected; the

discriminatory effect was therefore absolute. However, the situation was different in the

case of women or other members of protected groups, who are excluded

disproportionately from certain jobs or occupational opportunities. Given that, is there a

minimum percentage of disparity or under-representation below which it cannot be

concluded that systemic discrimination exists? In other words, what importance should

statistical evidence be given?

[56] The jurisprudence on the subject has concluded that statistical evidence is useful

if it is available and relevant to the allegations to be proven, but it is not necessary. By

indicating the disparities or differences between the number (or utilization rate) of

women or members of protected groups hired for a particular job and the number of

qualified women or members of those groups on the labour market (the availability rate),

statistical evidence can indicate the need to evaluate certain management methods or

“patterns of conduct”, including subjective and discretionary decisions that have

disproportionately exclusionary effects. That type of evidence can make it possible to

establish discrimination against those people in the hiring methods or systems used.

[57] Meiorin⁵⁶concerns the validity of a requirement consisting in passing a test of

aerobic capacity that disproportionately excluded female candidates for a job as a forest

firefighter in British Columbia. Without saying whether a specific percentage of disparity

was required or not, the Supreme Court concluded that there was prima facie evidence

of discrimination since the failure rate was 30%-35% among men and 65% among

women.

[58] In a unanimous judgment rendered in 2005 regarding an application for judicial

review,⁵⁷the Federal Court of Appeal quashed the decision of a Canadian Human

Rights Commission investigator who ignored statistical evidence, submitted by the

complainant during the investigation, that was both reliable and relevant on its face.

[59] In that case, there were allegations of systemic discrimination in employment by

the Royal Canadian Mounted Police against members of visible minorities. On the basis

of the data in the reports submitted by the employer, the complainant had estimated the

rate of attrition of candidates admitted to the training program for all cadets at 7% from

1996 to 2000. When candidates from visible minorities were excluded from the data for

the group as a whole, the rate of attrition dropped to 5.8%, whereas the rate of attrition

among cadets from those minorities was nearly 16%. Furthermore, even though they

accounted for only 12% of cadets during that period, visible minorities represented

nearly 28% of total attritions.

[60] Pointing out that the examination of a complaint must be based on a thorough

investigation by the Commission, the Federal Court of Appeal noted that, even though

56 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 536

(hereinafter referred to as “Meiorin”).

57 Tahmourpour v. Canada (Solicitor General), [2005] F.C.A. No. 543, 2005 FCA 113.

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22

the investigation report referred to certain statistics supplied by Mr. Tahmourpour, it

excluded those that, according to him, showed a much higher attrition rate among

minority cadets. According to Evans J., writing for the Court:

[T]he statistics provided by Mr. Tahmourpour to show different rates of attrition …

related to an allegation within the scope of the complaint.

…

[E]vidence of differential rates of attrition may suggest the existence of an RCMP

policy or practice concerning the training and hiring of cadets that tends to

deprive members of visible minorities of employment opportunities.⁵⁸

[61] The Federal Court of Appeal therefore concluded that the Commission’s refusal

to analyse that numerical data was tantamount to a breach of the duty of fairness and it

therefore remitted the matter to the Commission so that it could resume its investigation.

[62] In the decision rendered in 2005 in Radek,⁵⁹the British Columbia Human Rights

Tribunal examined various aspects of the evidence adduced in support of allegations of

systemic discrimination against people of Aboriginal origin and/or with a handicap, who

sought to obtain a service normally offered to the public, namely, access to a shopping

mall. The Tribunal commented as follows on the absence of statistical data in the case

of which it was seized and the consequences thereof:

In this case, for example, there was absolutely no evidence of the racial makeup

of the people entering International Village. We do not know if 5% or 25% of the

people attempting to enter the mall were Aboriginal. In the absence of this

information, it would, even with the best and most reliable information about the

racial makeup of persons ejected from the mall (which we did not have), be

impossible to determine if Aboriginal people were ejected from the mall in

numbers disproportionate to the rate at which they visited the mall. Such

evidence would be useful, and would strongly tend to suggest discrimination, if it

was available, but for the reasons I have given it is not. … A discriminatory effect

can also be proven in other ways. If, for example, the effect of the respondents’

policies and practices was that Aboriginal people tended to be wrongly viewed as

suspicious, and thus discriminated against, then that would be sufficient to

establish a negative or discriminatory effect, regardless of the proportion of

Aboriginal people so viewed in relation to the population as a whole. If that was

the effect of the respondents’ practices, it would not matter how many Aboriginal

people were affected, or what proportion they made up of the whole population of

visitors to the mall.

…

58 Ibid. at paras. 22 et 23.

59 Radek v. Henderson Development (Canada) and Securiguard Services No. 3, [2005] BCHRT No. 302.

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The evidence as a whole should be considered to determine if practices or

23

attitudes are present which have the effect of limiting persons’ opportunities due

to their membership in one or more protected groups. In this regard, evidence

about the attitudes of the respondents and their employees, evidence of the

written and unwritten policies of the respondents, and evidence of the

respondents’ actual practices, both generally and in particular circumstances,

may all be relevant to, and probative of, the question of whether systemic

discrimination is present.⁶⁰

[63] Easier to obtain in an employment context, because of the employer’s legal

obligations, than in a context of the provision of services, statistical evidence can also

be difficult to gather, if not inaccessible, for an alleged victim or victims, who depend

largely in that regard on the defence’s data collection and record-keeping policies.

Therefore, to ensure that human rights legislation achieves its remedial goal, the nature

of the evidence required in order to establish a situation of systemic discrimination can

vary according to the nature and context of each case.

[64] In the absence of statistical evidence in Radek, the British Columbia Tribunal

analysed in detail the internal policies (“site post orders”)⁶¹of the shopping mall,

designed to guide and oversee guards in interventions leading to the expulsion of

individuals. The Tribunal thus verified whether, despite their apparent neutrality, certain

elements would be likely to cause, on the basis of biases and stereotypes (such as the

abuse of narcotics or alcohol), discriminatory and unfavourable treatment of people of

Aboriginal original and those with a disability.⁶²

[65] In doing so, the Tribunal pointed out that those elements must be analysed

considering the fact that they are interrelated in a way that has a cumulative effect:

I discuss the effects on Aboriginal and disabled people of each of the significant

aspects of the site post order below. While I have separated out the various

elements of the site post order for ease of analysis, it must be remembered that

in practice the criteria listed in the site post order did not exist in hermetically

sealed compartments. In practice, guards would make decisions about people

entering the mall on the basis of a global assessment, in which these criteria

would play interrelated roles.⁶³

60 Ibid. at paras. 512 and 513.

61 For example, the written policy contained the following prescriptions: “zero tolerance for suspicious

people … zero tolerance for vagrants …”, as well as indications regarding clothing (“ripped and dirty

clothing”) and “attitudes when approached and non-willingness to answer any questions we may

propose”).

62 For example, “[m]any of the chronic health conditions which are prevalent in the Aboriginal community

can cause deficits in balance, gait, or appearance and can contribute to the likelihood that a non-

aboriginal person would perceive them to be ‘suspicious’, or appear to be intoxicated or stoned, or simply

unable to respond quickly to questioning from security personnel, and hence appear to have an ‘attitude

when approached’”, at para. 83. It follows that “[m]embers of the Aboriginal community may differentially

appear ‘suspicious’ to non-aboriginal people”, at para. 84.

63 Ibid. at para. 547.

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24

[66] The British Columbia Tribunal also drew a parallel between the application of the

elements of the shopping mall’s policy and the stereotypes frequently attributed to

members of Aboriginal populations.⁶⁴It conducted a comprehensive examination of the

evidence, which led it to conclude that the application of a policy containing vague and

ill-defined terms leaves room for arbitrariness and subjectivity. This was true, in

particular, of the terms “suspect” and “vagrant”, which, in the Tribunal’s opinion, entailed

a high risk that the guards, because of their biases and lack of human rights training,

would apply too easily to private individuals of Aboriginal origin and deny them access

to the shopping mall. In light of the evidence as a whole, the Tribunal concluded that

there was discrimination:

The opportunity to walk into a shopping mall and buy a cup of coffee, go for an

inexpensive meal, use a bank machine, or simply pass through on the way to

public transportation, is one which the majority of Canadians take for granted.

The practices of the respondents had the effect of systematically denying the

Aboriginal and disabled people of the Downtown Eastside that opportunity. It

made them strangers in their own community.⁶⁵

[67] Evidence of systemic discrimination thus rests essentially on a set of facts, such

as institutional policies, decision-making procedures, behaviours and attitudes that, in

an often apparently unconscious and innocuous way, have and maintain, when

combined, disproportionately exclusionary effects on members of groups contemplated

by the prohibition of discrimination. As useful as it is when available and relevant,

statistical evidence is not, in fact, indispensable in demonstrating discrimination.

2.3

Grounds of defence in cases of systemic discrimination

[68] After the plaintiff establishes proof of discrimination in employment, the employer

can avoid responsibility by showing that, in accordance with the requirements of section

20 of the Charter, the contested exclusion is “based on the aptitudes or qualifications

required for an employment”.

[69] To that end, the employer must demonstrate:

(1)

that the employer adopted the standard for a purpose rationally connected

to the performance of the job;

(2)

(3)

…;

that the standard is reasonably necessary to the accomplishment of that

legitimate work-related purpose. To show that the standard is reasonably

necessary, it must be demonstrated that it is impossible to accommodate

64 Referring to the expert evidence, the Tribunal mentioned several times those of the “drunken Indian”

and the “degenerate or degraded Indian”.

65 Ibid. at para. 606.

500-53-000204-030

25

individual employees sharing the characteristics of the claimant without

imposing undue hardship upon the employer.⁶⁶

[70] The Tribunal notes here the irrelevance of the second criteria stated in Meiorin,

i.e. that the employer adopted the particular standard in an honest and good faith belief

that it was necessary to the fulfillment of that legitimate work-related purpose. In

Québec law, the two requirements mentioned above are the only ones that apply since

the elimination, in the 1982 amendments to section 20, of the subjective component of

the defence of a justified occupational requirement:

[TRANSLATION]

By then substituting for the aptitudes and skills “required in good faith for” an

employment the aptitudes and qualifications “required by” an employment, the

legislator reinforced the objective criterion already implied in the previous version

of section 20 and, in doing so, indicated the thoroughness now required in

examining the justification invoked. Furthermore, the 1982 legislative amendment

also eliminated any reference to the prior requirement of good faith.⁶⁷

[71] Among the grounds explaining the approach established in Meiorin, the Supreme

Court mentioned its greater effectiveness in combating systemic discrimination. Bear in

mind that, as in the case at bar, Meiorin concerned an employment requirement (a test

measuring aerobic capacity) that disproportionately excluded women who wanted to

have a non-traditional job (forest firefighter) in British Columbia. I will now examine the

two requirements applicable in Québec law and focus more particularly on their effects

in a context of systemic discrimination toward women.

2.3.1 Requirements essential to safe and efficient performance of

the work

[72] Systemic discrimination in employment is characterized by, among other things,

disproportionate exclusionary effects stemming from institutional recruitment, hiring and

promotion policies that are, in general, apparently neutral. Hence, did the justification

test provided for in Meiorin first subject those policies and practices to a rationality test

that the conventional approach applied before that case did not require? According to

Meiorin:

[I]f a standard is classified as being “neutral” at the threshold stage of the inquiry,

its legitimacy is never questioned. The focus shifts to whether the individual

claimant can be accommodated, and the formal standard itself always remains

intact. The conventional analysis thus shifts attention away from the substantive

66 Meiorin, supra at note 56.

67 Dufour v. Centre hospitalier St-Joseph-de-la-Malbaie, [1992] R.J.Q. 825 at 843 (Rivet J.), judgment

quashed on appeal, in regard to another issue. That conclusion is inferred from the reasons of Beetz J. in

Brossard (City) v. Commission des droits de la personne, [1988] 2 S.C.R. 279. See also CDPDJ (Stortini)

v. De Luxe Produits de papier Inc., D.T.E. 2003T-288 (QC T.D.P.); Chantal Masse, “Le critère unifié de

l’affaire Meiorin dans le contexte de la défense prévue à l’article 20 de la Charte québécoise : la non-

application du volet subjectif relatif à la bonne foi de l’employeur”, in Barreau du Québec, Les 25 ans de

la Charte québécoise (Cowansville, Qc.: Yvon Blais, 2000) at 65.

500-53-000204-030

26

norms underlying the standard, to how “different” individuals can fit into the

“mainstream”, represented by the standard.⁶⁸

[73] The Supreme Court mentioned the criticism by certain authors of the limitations

of that approach:

Accommodation, conceived this way, appears to be rooted in the formal model of

equality. … Accommodation does not go to the heart of the equality question, to

the goal of transformation, to an examination of the way institutions and relations

must be changed in order to make them available, accessible, meaningful and

rewarding for the many diverse groups of which our society is composed.

Accommodation seems to mean that we do not change procedures or services,

we simply “accommodate” those who do not quite fit. …⁶⁹

[74] Subscribing to that analysis, the Supreme Court underscored the disadvantages

of its application to the case before it:

This case, where Ms. Meiorin seeks to keep her position in a male-dominated

occupation, is a good example of how the conventional analysis shields systemic

discrimination from scrutiny. This analysis prevents the Court from rigorously

assessing a standard which, in the course of regulating entry to a male-

dominated occupation, adversely affects women as a group. Although the

Government may have a duty to accommodate an individual claimant, the

practical result of the conventional analysis is that the complex web of seemingly

neutral, systemic barriers to traditionally male-dominated occupations remains

beyond the direct reach of the law. The right to be free from discrimination is

reduced to a question of whether the “mainstream” can afford to confer proper

treatment on those adversely affected, within the confines of its existing formal

standard. If it cannot, the edifice of systemic discrimination receives the law’s

approval. This cannot be right.⁷⁰

[75] Hence, to avoid maintaining, or even reinforcing, standards with a systemic

exclusionary effect, a strict application of the requirement of rationality provided for in

the first stage of the test in Meiorin is required. It is at that first stage that a tribunal

determines whether the purpose of a discriminatory standard is rationally connected

with the objective requirements of the employment concerned. A standard that does not

meet that requirement can simply not be maintained, and no measure can, a posteriori,

re-establish its validity within the meaning of the Charter. According to professor

Colleen Sheppard, this approach:

68 Meiorin, supra note 56 at para. 40.

69 S. Day and G. Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1993) Can. Bar Rev. 433 at

462.

70 Meiorin, supra note 56 at para. 42.

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… emphasizes the need to change the institutional status quo, rather than simply

27

according to special or exceptional treatment to individuals otherwise excluded or

disadvantaged by institutional norms, policies, or practices.⁷¹

[76] In short, that approach implies a thorough evaluation of the real utility of the

discriminatory rules in terms of their effects. In the opposite case, it requires their

reformulation, or even their transformation, so that they promote genuine substantial or

real equality (as opposed to purely formal equality).

[77] In Meiorin, the Supreme Court noted in that regard that the purpose of the

aerobic standard required of all candidates and disproportionately excluding women

was to identify employees or candidates who were able to perform the work of a forest

firefighter safely and efficiently. In that regard, it concluded that there was evidently “a

rational connection between this general characteristic and the performance of the

particularly strenuous tasks expected of a forest firefighter”.⁷²

[78] In contrast, the policies for monitoring the clientele of a shopping mall did not

meet the requirement of rationality in Radek,⁷³examined earlier. According to the British

Columbia Tribunal, there was no rational connection between the exclusion of people

who smelled badly or wore torn clothing, and mall security. Noting that an effort was

made to specifically exclude two subgroups of disabled persons, i.e. consumers of

narcotics and people with HIV, the Tribunal ruled that such discriminatory exclusion was

not connected with maintaining a secure environment.

2.3.2 Minimal requirements not likely to be reasonably

accommodated

[79] Equally important, the second stage, in Québec law, of the test in Meiorin is

aimed at evaluating whether the employer can, without undue hardship, reasonably

accommodate the excluded person or group by adopting a standard that does not have

that effect:

Employers designing workplace standards owe an obligation to be aware of both

the differences between individuals, and differences that characterize groups of

individuals. They must build conceptions of equality into workplace standards. By

enacting human rights statutes and providing that they are applicable to the

workplace, the legislatures have determined that the standards governing the

performance of work should be designed to reflect all members of society, in so

far as this is reasonably possible. Courts and tribunals must bear this in mind

when confronted with a claim of employment-related discrimination. To the extent

that a standard unnecessarily fails to reflect the differences among individuals, it

runs afoul of the prohibitions contained in the various human rights statutes and

71 Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Colombia (Public

Service Employee Relations Commission) v. B.C.G.S.E.U.” (2001) 46 McGill L.J. 533 at 550.

72 Meiorin, supra note 56 at para. 71.

73 Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), supra note 59.

500-53-000204-030

must be replaced. The standard itself is required to provide for individual

28

accommodation, if reasonably possible. A standard that allows for such

accommodation may be only slightly different from the existing standard but it is

a different standard nonetheless.⁷⁴

[80] To be as inclusive (or the least discriminatory) as possible and to accommodate

the potential contribution of all candidates with the capacity to perform the work safely

and efficiently, the standard that makes it possible to gauge that capacity must, unless

the employer is subjected to undue hardship: (1) be set at a minimum level at which it is

possible to meet those requirements; and (2) be adjusted according to the various ways

that candidates from certain groups (such as women or disabled people) can meet

them.

[81] In other words, the approach consists in first evaluating the intrinsic validity of

certain occupational requirements in order to ensure they correspond to the minimum

qualifications required to do the job concerned. If they do correspond to the minimum

qualifications, it must then be ascertained whether adjustments or modifications

allowing people otherwise excluded to be included can in fact be made without causing

undue hardship for the employer.

[82] Examining each requirement, it follows that the employer must first adopt a

standard “properly designed to ensure that the desired qualification is met without

placing an undue burden on those to whom the standard applies”.⁷⁵In Meiorin, after

noting that the standard related to the candidates’ aerobic capacity corresponded to the

average capacity of the firefighter employees and candidates, the Supreme Court found

that that average performance did not, however, make it possible to know whether the

so-called standard constituted “the minimum qualification required to perform the job

safely and efficiently”.⁷⁶According to the Court:

The polymorphous group’s average aerobic performance is irrelevant to the

question of whether the aerobic standard constitutes a minimum threshold that

cannot be altered without causing undue hardship to the employer.

In fact, the expert reports filed by the Government in these proceedings content

themselves with asserting that the aerobic standard set in 1992 and 1994 is a

minimum standard that women can meet with appropriate training. No studies

were conducted to substantiate the latter assertion and the arbitrator rejected it

as unsupported by the evidence.⁷⁷

74 Meiorin, supra note 56 at para. 68. See to the same effect para. 19 of Grismer: British Columbia

(Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R.

868.

75 Meiorin, supra note 56 at para. 65.

76 Ibid at para. 82; emphasis added.

77 Ibid at paras. 76 and 77.

500-53-000204-030

29

[83] An employer who meets its obligation of imposing an occupational requirement

that makes it minimally possible to perform the work safely and efficiently must then

ascertain whether it is possible, without incurring undue hardship, to meet that standard

by having the work performed in different ways or having recourse to alternative

methods that do not have discriminatory effects. It is then a matter of “measur[ing]

whether members of all groups require the same … capacity to perform the job safely

and efficiently and, if not, to reflect that disparity in the employment qualifications”.⁷⁸

The questions that a tribunal will examine to that end include the following:

(b) If alternative standards were investigated and found to be capable of fulfilling

the employer’s purpose, why were they not implemented?

(c) Is it necessary to have all employees meet the single standard for the

employer to accomplish its legitimate purpose or could standards reflective of

group or individual differences and capabilities be established?

(d) Is there a way to do the job that is less discriminatory while still accomplishing

the employer’s legitimate purpose?⁷⁹

[84] That dual obligation for the employer to adopt a standard both minimally

necessary to the safe and efficient performance of the work and likely to provide

reasonable accommodations, without undue hardship, raised this comment by professor

Sheppard concerning the approach established by the Supreme Court:

It is absolutely critical for McLachlin J. that institutional norms, policies, and

practices be scrutinized and overhauled whenever possible as part of the project

of securing greater substantive equality. Nevertheless, individual accommodation

remains essential as well. … It should not be an excuse to avoid scrutinizing the

underlying validity of institutional norms, but rather a mechanism to ensure

inclusion when revision of the underlying practices is not possible. Both

components are necessary and important.⁸⁰

[85] Bear in mind that the employer can invoke the following in particular as evidence

of undue hardship:

… financial cost, disruption of a collective agreement, problems of morale of other

employees, interchangeability of work force and facilities. The size of the

employer’s operation may influence the assessment of whether a given financial

cost is undue or the ease with which the workforce and facilities can be adapted to

the circumstances. Where safety is at issue both the magnitude of the risk and the

identity of those who bear it are relevant considerations. This list is not intended to

be exhaustive and the results which will obtain from a balancing of these factors

78 Ibid at para. 76.

79 Ibid at para. 65.

80 C. Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Colombia (Public

Service Employee Relations Commission) v. B.C.G.S.E.U.”, supra note 71.

500-53-000204-030

30

against the right of the employee to be free from discrimination will necessarily vary

from case to case.⁸¹

[86] Noting the absence of evidence adduced by the employer, in first instance,

regarding undue hardship that could have stemmed from a standard reflecting Ms.

Meiorin’s capacities and potential contribution, while making it possible to identify

women able to perform the work safely and efficiently, the Supreme Court concluded

that the employer did not establish that the aerobic standard constituted an occupational

requirement justified within the meaning of the British Columbia Human Rights Code.

[87] In Green, mentioned early, the Public Service Commission of Canada

contended, as respondent, that it was impossible to accommodate the complainant after

the language aptitude test was given, when her disability was discovered. The

Canadian Human Rights Tribunal commented as follows on the disparity between the

official policy of the body in regard to reasonable accommodation and its refusal to

apply it in the complainant’s case:

[T]he theory, as enunciated by Ms. Ward, is that “the Commission is a strong

proponent of human rights and will do everything. All its policies are reviewed

constantly to make sure that there is no discrimination. When we set policy, we

ensure that we look at the whole employment equity”. …

From the evidence it would appear that it did nothing to accommodate Ms. Green

because the after-the-fact finding of a learning disability did not fit neatly into

Public Service Commission policies and procedures which had been created to

administer the Treasury Board policy. No one in the … Commission appeared to

know how to step outside the rigidity of the practices and procedures established

in order to deal with this unusual situation.⁸²

[88] In Radek,⁸³the Tribunal concluded that reasonable accommodation of

handicapped people and people of Aboriginal origin implied that the shopping mall

adopt a policy explicitly recognizing human rights standards and that it accordingly train

employees responsible for its application.

[89] Having given an overview of the different rules related to the nature, foundations,

evidence and grounds of defence in systemic discrimination matters, I will now, without

further ado, broach the analysis of the evidence as submitted by the parties at the

hearing.

SECTION 3. ANALYSIS OF THE EVIDENCE

[90] In light of the prescriptions applicable to the evidence and defence in matters of

systemic discrimination, I now undertake an examination of the evidence adduced at the

81 Central Alberta Dairy Pool v. Alberta Human Rights Commission, [1990] 2 S.C.R. 489 at 520-521.

82 Green v. Public Service Commission of Canada, supra note 49.

83 Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), supra note 59.

500-53-000204-030

31

hearing bearing on the entire hiring process at Gaz Métro from 1995 to 1997.⁸⁴To that

end, I will successively examine the presence of women in blue-collar jobs in the

company (3.1), the description and prerequisites of the position of network operator

(3.2); the external recruitment process (3.3) and Gaz Métro’s institutional culture (3.4).

3.1 Presence of women in blue-collar jobs at Gaz Métro

[91] After a brief description of the circumstances that led to the special recruitment

competition, I will present the essential aspects of the evidence related to the question

of the under-representation of women in the position of network operator.

3.1.1 Circumstances of the special recruitment competition

[92] From 1974 to 1976, Gaz Métro had an average of roughly 200 blue-collar

workers, all male. Most of them worked in a plant in gas liquefaction. Carole Magnan,

manager of the employment office from 1992 to 1997 and director of human resources

for Gaz Métro at the time of her testimony, described them as having little schooling and

no technical training. Jean-Pierre Raymond, technical development advisor and the

person in charge of network trainees during the period in dispute, confirmed the lack of

schooling of those employees when they began network operation jobs. They had to be

organized into teams of three—one who knew how to read, one who knew how to weld

and a third who knew how to drive. Many adjustments had to be made so that the men

could do their work.

[93] Between 1987 and 1995, Gaz Métro took various steps related to employment

equity. As a supplier under federal contracts, Gaz Métro legally had to adhere, in 1990,

to the Federal Contractors Program, created in 1986, in the wake of the Abella

Commission’s Report on Equality in Employment (1984).⁸⁵The program is aimed at

businesses that employ at least 100 people and have contracts with the federal

government for amounts of $200 000 or more. Its objective is to impose on the

employers employment equity measures for various target groups, namely, women,

Aboriginal peoples, people with disabilities and members of visible minorities.

[94] Simultaneously, in 1993, in the framework of a succession plan, the position of

network operator took form at Gaz Métro, replacing several positions that had been

eliminated or merged with others.⁸⁶Only employees already employed by Gaz Métro

84 At the Commission’s request, the Tribunal agreed that data covering the period until 1998 be filed. In

addition, should the Tribunal be asked to rule on the feasibility of imposing an affirmative action program,

a few statistics from after that period would also be submitted.

85 R.S. Abella, supra note 36.

86 Robert Bédard, stenographic notes, January 16, 2006 at 183.

500-53-000204-030

32

were “recruited”.⁸⁷The Syndicat took part in that approach⁸⁸and the position was

governed by the collective agreement.⁸⁹

[95] Candidates for network operator positions were trained internally at Gaz Métro,

particularly by Robert Bédard and Serge Charbonneau. At first, in 1992, when training

for network operators was developed by Mr. Bédard and Jean-Pierre Raymond, among

others, it was designed to last three years. As of 1994, the training was condensed into

two years. Three months of probation applied to employees recruited outside Gaz

Métro.⁹⁰

[96] An employee was a network trainee for the first six months of training.⁹¹Paired

with an experienced network operator, the employee went through four different

programs, each including theoretical training and practical training in maintenance and

repair, connections, supervision and pressurization control.⁹²In the following six

months, the trainee became a network apprentice. Then, the last year, the trainee was a

junior network operator and gained greater knowledge in the four training modules

studied in the first six months. Only when the two years were over and after passing

each training module did a trainee obtain the title of network operator. If trainees failed

one of the stages, they were dismissed.⁹³

[97] Gaz Métro did not require candidates for the position of network operator to have

any previous experience in the field. On the contrary, the company believed that the

training given internally enabled employees to develop the skills required to safely and

efficiently perform their duties.⁹⁴

[98] From 1992 until 1995, only one woman held the position of network operator,

while the number of men declined from 143 to 132 during the same period. In an

information session for female candidates during the special recruitment competition.

Jean-Pierre Raymond mentioned the difficulties experienced by the woman in an

exclusively male environment. As for Carole Magnan, she said that the small proportion

of women was a concern for the company executives, who wanted to recruit more

women. [TRANSLATION] “In 1995, the number of candidates was deemed insufficient”.

[99] On June 2, 1995, Gaz Métro and the Syndicat signed a letter of understanding⁹⁵

aimed at allowing women and members of visible minorities to be given priority for

positions as network operators, in the network operation division, provided they had the

87 Robert Bédard, stenographic notes, January 17, 2006 at 57.

88 D-42: description of apprentice duties, for the Syndicat.

89 D-2, supra note 5.

90 P-5, document entitled “Modalité d’application du programme de formation continue” dated January

11, 1996 at 2.

91 P-5, supra note 89.

92 P-4: complete table of the technical network training program.

93 P-4, supra note 91; P-5, supra note 89 at 3.

94 Robert Bédard, stenographic notes, January 18, 2006 at 84.

95 P-2: agreement dated June 2, 1995.

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33

skills required. The agreement stipulated that 10 of the next 14 positions as network

trainees (that is, 71% of new positions) were to be set aside for people from either of the

two target groups. Recruitment would be carried out by consulting organizations that

worked with women looking for employment. The parties indicated in the agreement that

[TRANSLATION] “this remedial hiring measure in no way questions the qualification

criterion, which is paramount, and will not reduce requirements for anyone”.

[100] It was in that context that, in 1995, Gaz Métro initiated its operations to hire, on a

priority basis, women and members of visible minorities for trainee jobs. External

recruitment aimed at those two target groups was dubbed [TRANSLATION] “special

recruitment”. Through it, the seven complainants represented by the Commission

alleged that they suffered systemic discrimination based on sex.

3.1.2 Issue of under-representation

[101] As explained in the report⁹⁶prepared by Denise Perron, Gaz Métro’s expert

witness concerning employment equity, both the federal government and the Québec

government laid down regulations aimed at combating systemic discrimination in

employment. Thus, regardless of the specific regime to which an employer could be

subject in that regard, the employment equity or affirmative action programs generally

included various stages, particularly, an evaluation of personnel for the purpose of

determining whether or not certain groups of employees were under-represented, an

examination of the employment systems (policies and practices), the setting of

objectives along with positive measures or reasonable accommodation measures, and

the adoption of monitoring procedures. The businesses in which such programs were

set up also had to adopt an approach that promoted acceptance by the staff and the

success of the measures undertaken. Let me mention, to that end, the information given

to employees about employment equity, the designation of a senior executive to be in

charge of the program and the creation of a climate favourable to the integration of

employees from the target groups. In this section, I will restrict the discussion, however,

to an analysis of the evidence that will make it possible to determine whether women

were under-represented or not in the position of network operator at Gaz Métro at the

time of the facts relevant to the present dispute.

[102] According to the experts who testified on the subject, the under-representation of

people belonging to a target group is assessed by comparing the proportion of people

from the group in a company with the proportion of people qualified for the same

position outside the company. To that end, the percentage of women holding the

position of network operator at Gaz Métro must be established compared with the total

number of employees holding that position. That result is then compared to the

percentage of women qualified for the position on the regional employment market,

known as the [TRANSLATION] “availability rate” for qualified women for the position in

the labour market outside the company. That rate is a useful guide for the employer in

96 D-80: expert opinion of Denise Perron.

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34

setting quantitative objectives (hiring quotas) for the representation of workers from the

target groups.⁹⁷

[103] Érika Boukamp Bosch was the expert witness for the Commission for the

analysis and evaluation of staff and employment systems for employment equity

purposes according to federal legislation. She has worked in that field for a number of

years and, in particular, ensured the transition between different job categorization

systems in the Canadian provinces.

[104] At the hearing, Gaz Métro’s attorney raised an objection, which the Tribunal took

under advisement, regarding the admissibility of the evidence provided by Ms. Boukamp

Bosch concerning the federal employment equity system under federal legislation. Like

Denise Perron,⁹⁸the Tribunal believes that the nuances encountered in the employment

equity or affirmative action approaches proposed by one level of government or another

do not compromise their common objective. The Tribunal therefore overruled the

objection.

[105] According to Ms. Boukamp Bosch, the description of the position of network

operator⁹⁹and, particularly, the requirement that the candidate have only a Secondary V

education and experience make the position of network operator more of a semi-skilled

job than a skilled job requiring, upon hiring, credentials like those required in the various

construction trades. Furthermore, the fact that the position involved two years of on-the-

job training helped to broaden the pool of manual workers likely to be qualified, which is

not the case when specialization is required before hiring. In her opinion, the training

dispensed by the employer was a type of action that promoted employment equity.

[106] To strengthen her assessment, Ms. Boukamp Bosch analysed the situation at

Gaz Métro on the basis of data drawn from the 1991, 1996 and 2001 censuses, and

examined in particular two occupational groups in the National Occupational

Classification, applicable to suppliers contemplated by the Federal Contractors

Program. The first group (EEOG 12) concerned semi-skilled manual workers, while the

second (EEOG 14) encompassed other manual workers.¹⁰⁰

[107] For each of the periods between those years, the table of official data on the

representation of women on the labour market indicates, for those two groups of

workers, availability rates of 21% to 27%. When Ms. Bosch limited her analysis to the

97 D-80, supra note 96 at 7; P-57, supra note 11 at 4.

98 D-80, supra note 96 at 6.

99 P-3C: document entitled “Profil d’emploi-poste de stagiaire réseau” (network trainee job profile),

transmitted to ATF on May 30, 1995.

100 The National Occupational Classification consists of a total of 14 groups containing some 500 unit

groups or generic occupations. It was established by Human Resources Development Canada and

Statistics Canada in order to provide a detailed inventory of all jobs in the country.

500-53-000204-030

35

representation of women in the jobs of semi-skilled manual workers from 1991 to 1999,

their availability rate was 23.5%. After 1999, that rate dropped to 21.5%.¹⁰¹

[108] On the basis of the data in the annual reports published by Gaz Métro regarding

the employment equity program,¹⁰²Ms. Bosch noted that, in 1995, there were 9 women

out of a total of 378 semi-skilled manual workers. That rate of representation (2.4%)

was well below the availability rate (23.5%) for women in that occupational group in

Québec during the same period; 89 of the 378 workers should have been female in

order to reflect the availability rate for women. Applying that reasoning, the 80-woman

disparity dropped to a 76-woman disparity in 1996 and to a 71-woman disparity in

1997.¹⁰³

[109] The following table¹⁰⁴illustrates more particularly the representation of women

over the years in the position of network operator at Gaz Métro:

Table 1

Representation of women in the position of network operator

1976 1995 1996 1997 1998 1999 2000 2001 2002 2003

Women

Men

Women/

total

0

200

0%

1

132

5

110

7

110

6

96

5

99

4

92

4

119

7

127

7

129

<1% 4.3% 6.0% 5.9% 4.8% 4.2% 3.2% 5.2% 5.1%

1%: below 1%.

101 P-57, supra note 11 at 6.

102 In the framework of the Federal Contractors Program, Gaz Métro had to publish an annual report

containing statistics on the representation of the target groups on its staff. To that end, the employer used

software provided by the federal government. The Tribunal accepts those data, which were regularly

monitored for five consecutive years, from 1998 to 2003 (P-52 to P-56), as well as those of the previous

years (D-68).

103 P-57, supra note 11 at 7.

104 As regards 1976, the estimate of 200 was provided by Gaz Métro. The data for 1995 to 2000

inclusively are from Ms. Boukamp Bosch’s report, at 8. The data for subsequent years are from the Gaz

Métro annual reports (P-54, P-55 and P-56).

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36

[110] Ms. Boukamp Bosch noted that the presence of one woman out of a total of 133

employees holding the position in 1995 at Gaz Métro corresponded to a representation

rate of less than 1% (0.8%). To reflect the availability rate (23.5%) for semi-skilled

manual workers on the labour market at the time, Gaz Métro should have had 31

women in the position. She concluded that the degree of under-representation was such

that, to remedy it, Gaz Métro would have had to hire roughly 30 women in 1995, 22 in

1996, 20 in 1997 and 18 in 1998.¹⁰⁵For each of the years 1999 and 2000, the gap to be

filled in terms of the availability rate (21.5%) was 17 women.¹⁰⁶In any case, as we will

soon see, those numbers largely exceed the results obtained under the special

recruitment program.

Total number

of

employees

Representation

of women

Availability of

women

Source

(Availability)

Year

Difference

#

%

#

%

1995

133

1

0.8

31

23.5

-30

1991 census

1996

1997

1998

1999

2000

115

117

102

104

96

5

7

6

5

4

4.3

6.0

5.9

4.8

4.2

27

24

22

21

23.5

21.5

-22

-20

-18

-17

1991 census

1996 census

Table 2

Representation and availability of women in the position of network operator

(1995-2000)

[111] The following table, taken from Ms. Boukamp Bosch’s report,¹⁰⁷presents all the

data collected by her on the subject:

[112] Denise Perron, expert witness for Gaz Métro, used a different method to

determine the availability rate for women on the labour market in a group of positions

comparable to that of network operator. Like Gaz Métro, she used for her analysis one

of the generic occupations included in the group of semi-skilled manual workers (EEOG

105 P-57, supra note 11 at 9.

106 According to Ms. Bosch, the reduction in the gap to be filled over the years is not explained by the

increased hiring of women, but by the decrease in the number of semi-skilled workers at Gaz Métro, from

133 in 1995 to 96 in 2000.

107 P-57, supra note 11 at 9.

500-53-000204-030

37

12). The generic occupation she used is designated as code 7442. It includes more

specifically waterworks maintenance workers (subgroup 7442.1) and gas pipe

maintenance workers (subgroup 7442.2), to which the position of network operator

corresponds.

[113] According to Statistics Canada data, the availability rate for women in that

occupation included in the group of semi-skilled manual workers is 5.2%; that rate could

even be reduced, according to Ms. Perron, to take into consideration the fact that it

includes an irrelevant proportion of women assigned to waterworks maintenance. She

noted that 5 women, compared with 110 men, occupied the position of network operator

in 1996 (4.3% of staff) and that there were 7 women, compared with 110 men, in 1997

(5.9% of staff). She concluded their very small under-representation at Gaz Métro in

1996 (compared with an availability rate of 5.2% on the labour market) was completely

eliminated in 1997. In her opinion, there was therefore no generalized under-

representation of women in the position of network operator at Gaz Métro. Hence, Ms.

Perron did not feel it was essential to conduct a systematic examination of the effects of

the selection process on the hiring of female network trainees.¹⁰⁸

[114] Faced with two significantly divergent expert opinions, the Tribunal first wishes to

point out the following principle laid down by the Court of Appeal:

[TRANSLATION]

[T]he judge has the duty to examine all the evidence in order to form his or her

opinion and …, in the framework of his or her analysis, can accept or reject any

testimony, whether scientific or lay, and must determine the relative importance

of the evidence accepted in order to draw his or her conclusion. There is

therefore no evidence that, by definition, is a priority or must be favoured.¹⁰⁹

[115] Thus, in evaluating the probative value of the report and testimony of an expert,

the Tribunal must consider the reliability of the steps taken by the expert at the data

collection stage, the connection between his or her opinion and the factual evidence

gathered at the hearing, as well as his or her qualifications and impartiality. As Jean-

Claude Royer wrote:

[TRANSLATION]

The tribunal must assess the credibility of the expert witnesses, as well as the

scientific or technical value of the facts they relate or the opinions they express.

The general criteria for evaluating lay evidence applies to expert evidence. The

judge also takes into consideration the nature and purpose of the expert

evidence, the qualifications and impartiality of the expert, the scope and reliability

of the expert’s research, as well as the connection between the opinions

proposed and the evidence.¹¹⁰

108 D-80, supra note 97 at 23.

109 Charpentier v. Compagnie d’assurances Standard Life, 2001 1478 (Gendreau J.).

110 Jean-Claude Royer, La preuve civile, 3rd ed. (Cowansville, Qc.: Yvon Blais, 2003) at 313.

500-53-000204-030

38

[116] As regards the methods of analysis adopted by Ms. Boukamp Bosch and by Ms.

Perron in relation to the issue of under-representation, the Tribunal accepts more

readily the documented, rigorous and essentially objective explanations of Ms.

Boukamp Bosch.

[117] For example, in her report, Ms. Boukamp Bosch explained that the availability

rate according to which female representation at Gaz Métro must be measured can

sometimes be established more broadly, i.e. according to an occupational group (such

as EEOG 12), and sometimes more restrictively, i.e. in terms of a particular generic

occupation (such as that designated as code 7442). According to the instruction

manuals prepared in order to provide standard, adequate information for employers that

adopt employment equity measures, the availability rate established according to an

occupational group must be used particularly for clerical personnel (EEOG 10), semi-

skilled manual workers (EEOG 12) and other manual workers (EEOG 14). That is true

because those groups cover jobs that, first, have more “broad occupational

requirements”, indeed, skills that can be transposed from one job to another in the same

group and, second, sometimes include on-the-job training.¹¹¹

[118] In contrast, the specific availability rates for certain generic occupations are used

adequately for the occupational groups containing professionals (EEOG 3),¹¹²semi-

professionals and technicians (EEOG 4),¹¹³and skilled crafts and trades workers

(EEOG 9),¹¹⁴provided these workers are required to have specific qualifications, and

even belong to a professional order so that they can practice their trade or

occupation.¹¹⁵That approach is the one used by Ms. Perron, according to whom

[TRANSLATION] “the availability of women for the job of network operator is therefore

more significant than if it were analysed on the basis of a large pool of jobs”, such as

those in group EEOG 12 or EEOG-14.¹¹⁶

[119] The Tribunal must therefore observe that the analysis method used by Ms.

Boukamp Bosch in this complex field is more consistent with the prescriptions and

standards imposed on employers for the adequate establishment of the actual rate of

representation of various target groups among their personnel.

[120] In support of her approach, Ms. Perron also considered that the position of

operator did not constitute an entry-level job in the company. Having played a major role

in the special recruitment program, Sylvie Richard, staffing advisor at Gaz Métro,

111 P-57, supra note 11 at 7.

112 Advocates and notaries in Québec, mining engineers and psychologists are in that group.

113 That group includes industrial designers, air pilots and opticians.

114 Plumbers and sheet metal workers are part of that group.

115 P-57, supra note 11 at 5.

116 D-80, supra note 96 at 19.

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39

contradicted that, however.¹¹⁷Cross-examined by the Commission’s attorney, Ms.

Perron actually acknowledged that she did not examine the position of operator when

preparing her report. Furthermore, in 1996, she wrote the opposite in a document in

which she analysed in particular Gaz Métro’s experience as regards non-traditional

jobs:

[TRANSLATION]

The position of network operator is an entry-level function for manual and

technical jobs. For a few years, operator positions were filled by blue-collar or

white-collar personnel in the company.¹¹⁸

[121] Therefore, the Tribunal subscribes more to the conclusions of Ms. Boukamp

Bosch regarding a major under-representation of women in the position of network

operator at Gaz Métro, particularly since her opinion is supported by the testimony of

other experts.

[122] Claude Yelle, consulting analyst for the federal government recognized by the

Tribunal as an expert witness for the Commission, provided a complementary viewpoint

on the question of under-representation. Explaining the use of the tables shown on the

Statistics Canada Website, he used the requirement of a Secondary V diploma or the

equivalent in order to establish the availability rate for women on the labour market. For

the Montréal area, the pool of people meeting the basic criterion of the job at issue

totaled 999 200, 55% of whom were women, not considering those with an education

above the Secondary V level. Mr. Yelle’s evaluation supported the observation of under-

representation among women in the employment of network operator at Gaz Métro.

[123] Louis Laurencelle, expert witness for Gaz Métro as a methodologist and

statistician, was questioned about Ms. Boukamp Bosch’s conclusions on the basis of

the stenographic notes of February 18, 2006. Although he said availability rates

established for the labour market were not his field of expertise, he noted inaccuracies

in certain uses made of them. He explained that the employer’s subjective judgment

could play a role and the employer could manipulate the data in order to reduce the

number of positions to be filled by women. He confirmed expert Yelle’s opinion that

about 50% of the population, including a majority of women, had at least a Secondary V

diploma. Hence, according to him, there were more women than men who could meet

that employment criterion for the position of network trainee.¹¹⁹

[124] As the following table shows, the special recruitment process undertaken

between June 1995 and October 1997 did not make it possible to achieve the hiring

objectives of increasing the number of female network operators.

117 When cross-examined by the ATF attorney, Ms. Richard mentioned that [TRANSLATION] “the desire

to excel” is important because the position of network operator is an entry-level position that includes 24-

months of training and it can lead to a technician position.

118 P-81: survey on organizational practices in equity matters, at 27.

119 See also D-93: report prepared by the expert witness, dated August 17 and 22, 2006.

500-53-000204-030

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[125] Let me first point out that the June 1995 competition, in which two (2) female

candidates successively completed the entire selection process, was cancelled by the

Gaz Métro administration, without written notification or any other formality. In fact, from

June 1995 to October 1997, six (6) women out of total of twenty-eight (28) new network

operators were hired (21% of new staff). Nine (9) of the 28 employees, including one

woman, were recruited through the CSN’s bargaining unit, while 19 other candidates

were from other Gaz Métro units (internal hiring) or from outside the company.¹²⁰When

the year 1998 is also considered, 11 new male network operators were hired, so that

the female hiring rate then dropped to 15%, i.e. six (6) women out of a total of 39 new

network operators, from all sources.

Table 3

Source of candidates hired for the position of network operator

1995 1996 1997 1998

Total

Women from

inside the

company

Men from

inside the

company

Women from

outside the

company

Men from

outside the

company

Total

0

1

0

2

16

4

9

1

6

3

1

0

2

10

W 2

5

17

W 6

W 4

W 0

according to

sex

M 11 M 11 M 11 M 33

[126] Hence, despite the letter of understanding of June 2, 1995, under which women

and visible minorities were to be given priority for positions as network operators, the

evidence shows that the employer did not fill the 10 positions out of 14 set aside for

those groups with the agreement of the Syndicat.

[127] However, the Tribunal has some reservations about the actual utility of that

statistical evidence in this case because of the small number of candidates recruited

during the exercise and the difficulty—in fact, the impossibility in certain respects—of

obtaining accurate data on the exact number and the sex of the people who applied for

the job. In cross-examination, Sylvie Richard affirmed that, although the data are

120 The question of the hiring of network operators from [TRANSLATION] “the CSN bargaining unit” will

be discussed in section 3.4 of the decision.

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reliable in that regard, [TRANSLATION] “I cannot guarantee that no data are missing. I

would not be honest with you if I said that was absolutely impossible”.¹²¹

[128] So in that regard, the Tribunal accepts the observations of expert Louis

Laurencelle concerning the relative utility of statistical evidence in matters that do not

lend themselves to such utility. As I wrote earlier:

[TRANSLATION]

… Evidence of systemic discrimination thus rests essentially on a set of facts,

such as institutional policies, decision-making procedures, behaviours and

attitudes that, in an often apparently unconscious and innocuous way, have and

maintain, when combined, disproportionately exclusionary effects on members of

groups contemplated by the prohibition of discrimination. As useful as it is when

available and relevant, statistical evidence is not, in fact, indispensable in

demonstrating discrimination.¹²²

[129] Therefore, in order to determine whether the under-representation of women in

the employment of network operator is attributable to the phenomenon of systemic

discrimination, the Tribunal will now examine the whole of the selection process,

focusing on the experience of each complainant in that process.

3.2

Description of the position of network operator and its prerequisites

[130] This section consists in an examination of the documents issued prior to the

special recruitment at Gaz Métro and the prerequisites for the employment of network

operator. I will discuss successively the duties of network operators (3.2.1) and the

prerequisites according to the job profile (3.2.2), specifically the class 3 driver’s licence

(3.2.2.1), the secondary school diploma (3.2.2.2) and non-traditional experience

(3.2.2.3).

3.2.1 Description of the duties

[131] For reasons explained earlier,¹²³the position of network operator is an entry-level

manual job. Even before examining the prerequisites for the job and other prerequisites,

it is important to ascertain whether the description of the duties of network operators is

consistent with the job profile used for recruitment purposes.

[132] Normand Pettersen, Gaz Métro’s expert witness concerning selection, explained

in that regard that the list of duties essential to a job must first have a [TRANSLATION]

“critical” connection with the job itself.¹²⁴It is only then that the employee profile sought

can be established and that the requirements for the position can be determined. Then,

121 Sylvie Richard, stenographic notes, February 17, 2006 at 205.

122 See section 2.2.2 of this decision.

123 See section 3.1 on that subject.

124 Normand Pettersen, stenographic notes, September 15, 2006 at 253.

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on the basis of those requirements, appropriate selection instruments can be

developed.

[133] Chantale Jeanrie, expert in psychometrics and industrial psychology, explained

substantially the same thing, i.e. that generally the description of the position must

constantly be referred in order to evaluate the selection process. She continued by

saying that each duty in the description of the position must be analysed in terms of the

relevant KSAO (“knowledge, skills, ability, others”).¹²⁵If a correlation is lacking between

the various elements, i.e. the description of duties, the job profile and the selection

instruments, the entire recruitment process may be ineffective at best.

[134] According to Jean-Pierre Raymond and Robert Bédard, respectively Gaz Métro

technical development advisor–network maintenance and training development advisor,

the description of job-related duties used for recruitment in the relevant years is given in

Exhibit D-11, which lists various duties that network operators must perform.¹²⁶Each

duty is described in detail and associated with one of the main functions of the position

of network operator: emergency intervention, improvement and connection,

pressurization control and network monitoring.

[135] However, Exhibit D-11 is dated June 1998. So it appears to have been prepared

after the 1995 to 1997 recruitments and it is unlikely that Gaz Métro used it during that

period. As for Exhibit D-11A, which is identical to D-11 except that it includes

photographs illustrating the duties, Jean-Pierre Raymond prepared it in 2005 for the

purpose of this case.¹²⁷

[136] Lucien Aubé, a witness for Gaz Métro, was approached by the company in 1997

to overhaul its hiring process as regards the positions of network operator and service

employee. In his offer of services (P-74), he mentioned that no qualification profile

seemed to have been clearly established for those positions.

[137] Furthermore, Sylvie Richard, Gaz Métro staffing advisor, confirmed that no

formal job description existed at the time of the special competitions.¹²⁸As for Robert

Bédard and Jean-Pierre Raymond, they said that document D-11 had been in

preparation since 1992, that it was evolving and that it existed prior to 1998 in one form

or another.¹²⁹

[138] Expert Pettersen explained that no one at Gaz Métro showed him that Exhibit D-

11 was really used as a job description during the period at issue. He pointed out,

125 P-43, supra note 10 at 8; Chantale Jeanrie, stenographic notes, February 15, 2005 at 40 et seq.

126 Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 140; Robert Bédard, stenographic

notes, January 16, 2006 at 231-236.

127 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 126.

128 A-23 in a bundle: lists of required information. See also Normand Pettersen, stenographic notes,

September 13, 2006 at 111.

129 Robert Bédard, stenographic notes, January 16, 2006 at 234; Jean-Pierre Raymond, stenographic

notes, January 26, 2006 at 140-142.

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43

however, that if D-11 actually reflected the duties of network operators and if the

document was systematically used during the facts at issue, then it is crucial—the

[TRANSLATION] “cornerstone of the case”—because it is extremely detailed.¹³⁰He

later said, however, that he could not affirm that the duties listed in Exhibit D-11

constituted the important or critical duties of the position of network operator.¹³¹

[139] Moreover, document D-11 lists the manual duties of a number of jobs combined,

without containing all the duties proper to the position of network operator. For example,

the calculations and cartography that have to be done on site prior to installing a section

of pipe are not indicated, even though Gaz Métro mentioned the importance of the

application of calculations on site for network operators. Jean-Pierre Raymond felt that

D-11 showed more what a multidisciplinary network operator did after being trained, not

what was expected of a network trainee when appointed to the position.¹³²That was

confirmed by expert Pettersen.

[140] But even assuming that Gaz Métro’s managers and trainers were very familiar, in

1995 and subsequently, with the description of duties of the position of network operator

despite the non-existence of D-11, no witness was able to identify clearly the

qualifications essential to the position of network operator. Gaz Métro’s witnesses,

particularly Jean-Pierre Raymond, Sylvie Richard, Robert Bédard and Lucien Aubé,

themselves seemed confused about the qualifications essential to the position at issue

and about the time that Exhibit D-11 was prepared.

[141] Incidentally, bear in mind in that regard that Ms. Richard and Mr. Aubé confirmed

the absence of a real job description from 1995 to 1997. Besides, Mr. Bédard testified

that document D-11 was prepared from the perspective of occupational health and

safety, rather than recruitment.¹³³The Tribunal also recalls the explanations of experts

Chantale Jeanrie and Normand Pettersen that the description of duties essential to the

job must first be closely linked to the job before a job profile and a selection process can

be adequately developed. In that regard, Ms. Jeanrie explained that an analysis of the

position developed for selection purposes is used [TRANSLATION] “more to determine

what tasks are performed, … the distinctive tasks of the job, that is, those that make it

possible to determine who is a good employee—hence, who does the job adequately

and who does not”.¹³⁴Exhibit D-11 therefore could not serve as a basis for recruitment

for the position of network operator.

[142] So in this case, it has been established that no description of duties existed at

the time of the facts at issue and that, in any case, document D-11 has shortcomings

that prevent it from being considered an appropriate description of the duties. Since,

130 Normand Pettersen, stenographic notes, September 15, 2006 at 133-134 and 143.

131 Normand Pettersen, stenographic notes, September 15, 2006 at 251.

132 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 128.

133 Robert Bédard, stenographic notes, January 16, 2006 at 232-237; stenographic notes, January 25,

2006 at 144; Chantale Jeanrie, stenographic notes, February 15, 2005 at 44.

134 Chantale Jeanrie, stenographic notes, February 15, 2005 at 45.

500-53-000204-030

44

according to the experts, all the rest of the selection process must logically stem from

such a document and it did not exist at Gaz Métro from 1995 to 1997, that already

raises certain doubts about the following stages in the selection process, beginning with

the job profile.

3.2.2 Prerequisites according to the job profile

[143] What is called the job profile corresponds in fact to the qualifications required, i.e.

the requirements of the position of network operator as indicated on the recruitment

posters (P-3). Here are the requirements:

[TRANSLATION]

 Class 3 driver’s licence

 Mechanical, electrical, pneumatic and hydraulic qualifications

 Ability to do work requiring a degree of physical strength

 Secondary V schooling

 Expertise in related fields (civil engineering, building services), acquired in

vocational training or through experience, is relevant to this type of job.¹³⁵

[144] The recruitment posters for the competitions in July 1995 (P-3A), November

1996 (P-3B) and April 1997 (P-3D) are almost identical. As for poster P-3C, which also

concerns the 1995 competition, it is the job profile that Gaz Métro sent to ATF at its

request, and to other specialized organizations that were to promote the candidacies of

women. I note that on that poster the last of the above five requirements, relating to

expertise in related fields, was replaced with the following requirement:

[TRANSLATION] “Manual skills in working with mechanical parts of all size(s)”.

However, the main difference between P-3C and the other posters lies in the list of

experiences relevant to the job:

[TRANSLATION]

 Experience on construction sites, in horticulture, on a farm, on an

assembly line, or in waterworks, a refinery or an underground system;

 Handling of a variety of equipment: shovels, blowers, sprinkler systems,

air guns, mechanical parts;

 Lifestyle including repair and maintenance of a vehicle (changing tires, oil,

brakes, etc.).

[145] According to Gaz Métro’s witnesses, particularly Jean-Pierre Raymond and

Sylvie Richard, the purpose of that addition was to increase the possibility that women

would recognize themselves in the description of requirements and correspond more

readily with the profile sought.¹³⁶But, as Robert Bédard acknowledged in his testimony,

135 P-3A: job offer published in the Journal de Montréal on August 12, 1995; P-3B: job offer published in

La Presse on October 5, 1996; P-3C, supra note 100; P-3D: job offer published in the Journal de Montréal

on June 14, 1997.

136 Sylvie Richard, stenographic notes, February 9, 2006 at 174-175, stenographic notes, February 17,

2006 at 53; Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 149.

500-53-000204-030

45

men usually have those experiences.¹³⁷Besides, the list of relevant experiences was

not included in the notices of vacant positions posted internally by Gaz Métro.¹³⁸

[146] Furthermore, poster P-3C is the only one containing a list of the personal

qualities sought:

[TRANSLATION]

 Attentive, open;

 Flexible, but assured;

 Team spirit, likes to work with others: shows empathy;

 Concern for the clientele;

 A marked interest (because of occupational and para-occupational

experience) in non-traditional workplaces, manual work, work in difficult or

different climatic and physical conditions (becoming soiled with dirt);

 Wants to excel;

 Proactive, seeks solutions;

 Can influence others positively.

[147] These [TRANSLATION] “personal qualities” are not found in the other P-3 job

profiles or in the posters displayed internally, i.e. in the CSN-certified unit and

throughout the company. According to expert Chantale Jeanrie, it is difficult to link the

qualities mentioned as requirements to the duties of the position of network operator.¹³⁹

For example, she questioned the [TRANSLATION] “empathy” requirement, which,

according to her, is relevant to the positions of psychologist, guidance counselor, social

worker and other professional positions, but not to blue-collar positions.¹⁴⁰She

expressed the opinion that the number of desired qualities mentioned on poster P-3C

was altogether excessive.¹⁴¹

[148] According to Ms. Jeanrie, three types of requirements can be demanded by a

company in a recruitment: a job-entry requirement, a requirement absolutely essential to

the job and not a preference, and a requirement related to a characteristic found among

the pool of natural candidates for the position.¹⁴²

[149] Expert Normand Pettersen commented that the employer had no definition of

those [TRANSLATION] “personal qualities” and he considered that contrary to proper

practice.¹⁴³The only document that could be considered a glossary of the terms used in

the [TRANSLATION] “personal qualities” group was Exhibit D-57, which probably

belonged to François Messier, a colleague of Sylvie Richard at Gaz Métro. However,

137 Robert Bédard, stenographic notes, January 24, 2006 at 57-58.

138 D-51: request for personnel, November 11, 1996; D-56: notice of job vacancy.

139 Chantale Jeanrie, stenographic notes, February 15, 2005 at 61.

140 Chantale Jeanrie, stenographic notes, February 16, 2005 at 204-205.

141 Chantale Jeanrie, stenographic notes, February 15, 2005 at 59.

142 Chantale Jeanrie, stenographic notes, February 15, 2005 at 47.

143 D-84A, supra note 18 at 21-22.

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46

Mr. Messier never conducted interviews for the position of network operator and Sylvie

Richard, who was responsible for conducting them, never used glossary D-57.¹⁴⁴

[150] The Tribunal wonders about the relevance, at the time that the position was

posted in the special 1995 competition, of adding the requirement of non-traditional

experience and listing the [TRANSLATION] “personal qualities” sought. How can it be

explained that Gaz Métro, noting the under-representation of women in the position of

network operator in its company and wanting to correct it, decided to make a list of

required qualities irrelevant to the position and to add a requirement mainly met by

men?

[151] Lastly, the job vacancy notices were posted for widely varying periods of time

according to whether they were internal or external. For example, as regard the 1995

recruitment, the internal posting lasted longer than the external posting so as to allow as

many people as possible to know about the vacancy despite summer vacations. The

deadline posted for external candidacies was June 12, 1995 (D-36), while the deadline

posted for internal candidacies was August 30, 1995 (D-56). Since women could

essentially be recruited externally and since the company said it wanted to encourage

candidacies by women, the deadlines are surprising.

3.2.2.1 Class 3 driver’s licence

[152] A class 3 driver’s licence allows its holder to drive a straight truck, i.e. a truck with

three axles or more or a truck with two axles and a net weight of over 4500 kg.¹⁴⁵That

is one of the types of trucks used by Gaz Métro that its employees had to drive.

Furthermore a class 1 licence, which allows its holder to drive large trucks pulling semi-

trailers, and a class 2 licence, which allows its holder to drive buses with a seating

capacity of more than 24 passengers, “encompasses” in a way class 3, in that class 1

and class 2 driver’s licences allow their holders to drive the vehicles contemplated by

class 3.¹⁴⁶In that regard, Gaz Métro seemed to suggest that Joan Dupont wrongly

decided to take steps to obtain a class 1 licence;¹⁴⁷the same criticism was leveled at

Tania Plourde, who chose class 2.¹⁴⁸But those choices of licence class simply enabled

the women to do more than what was asked.

[153] To obtain a class 3 driver’s licence, one must first hold a class 5 licence (for

passenger vehicles) for at least two years. Once the medical file is accepted and the

knowledge test is passed, the person is issued a class 3 learner’s licence for a minimum

of three months, after which the person must pass the road test.¹⁴⁹

144 Sylvie Richard, stenographic notes, February 17, 2006 at 103-104.

145 P-37: information pamphlet explaining the steps in obtaining a Class 3 driver’s licence.

146 P-37, supra note 145.

147 Arguments of Gaz Métro, June 4, 2007 at para. 609.

148 Arguments of Gaz Métro, June 4, 2007 at para. 630.

149 P-37, supra note 145.

500-53-000204-030

47

[154] In the information session on the network operator position to which interested

women were invited in 1995, Jean-Pierre Raymond, Sylvie Richard and Carole Magnan

gave each woman a document¹⁵⁰describing the steps to follow to obtain a class 3

licence and the costs involved in each step. Excluding the practical training required to

obtain the licence, the costs were $111. The collective agreement negotiated between

Gaz Métro and the Syndicat in 1998 provided for the refund of that amount,¹⁵¹which

was not the case with the collective agreement of 1994,¹⁵²which was in force during the

special recruitment competitions. The costs of the driving courses required to obtain a

class 3 licence were added to the cost of the licence itself. In the 1995 information

session, the women present learned that the cost of the courses was approximately

$600.¹⁵³But Serge Fortin, chief of staffing at the Société de transport de Montréal,

stated in his testimony that the courses cost between $800 and $2500.¹⁵⁴André Gagné,

licence and registration clerk at the Société de l’assurance automobile du Québec,

estimated that the courses cost between $800 and $1500.¹⁵⁵

[155] It was adduced in evidence that, in 1995, women accounted for 3% of holders of

class 1, 2 or 3 licences in Québec;¹⁵⁶the same observation applies for the years

1996¹⁵⁷and 1997.¹⁵⁸Of the seven victims in this case, only Marie-Claude Côté and

Nicole Trudel had such a driver’s licence (class 1) in 1995;¹⁵⁹the other candidates held

a class 5 licence.

[156] Ordinarily, Gaz Métro required that candidates already have their class 3 licence

when applying for the position of network operator.¹⁶⁰That prerequisite was listed on

poster P-3 and others.¹⁶¹But in the framework of the special 1995 competition, Gaz

Métro set up a special measure whereby the candidates could begin the selection

process without having a class 3 licence, provided they had the licence when they were

hired.

150 D-47: steps in obtaining a class 3 licence.

151 D-2, supra note 5 at section 26.02.

152 D-1, supra note 5 at section 26.02.

153 Line Beaudoin, stenographic notes, January 31, 2005 at 198-199.

154 Serge Fortin, stenographic notes, February 3, 2005 at 78.

155 André Gagné, stenographic notes, February 3, 2005 at 62.

156 P-7A: Service des études et des stratégies en sécurité routière of the SAAQ, statistics on licence

holders as at 1995/06/01, dated April 17, 2002.

157 P-7B: Service des études et des stratégies en sécurité routière of the SAAQ, statistics on licence

holders as at 1996/06/01, dated April 16, 2002.

158 P-7C: Service des études et des stratégies en sécurité routière of the SAAQ, statistics on licence

holders as at 1997/06/01, dated April 17, 2002.

159 See Marie-Claude Côté, stenographic notes, February 2, 2005 at 69; Nicole Trudel, stenographic

notes, February 1, 2005 at 108.

160 See in particular Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 109-114.

161 It was only in job vacancy notice A-12, which was solely for internal employees, that it was indicated

that a class 3 or a class 5 licence was required. It was specified that the vacant position was in the

Québec City area and that the vehicles used by network operators in that area did not require the driver to

hold a class 5 licence.

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48

[157] The fact remains that, even in 1995, potential candidates had to have a class 3

licence before knowing whether they had been accepted for hiring. That implies that an

interested person had to spend several hundred dollars for training leading to a class 3

driver’s licence, without being in any way assured of ultimately having a job as a

network operator. Since an infinitesimal minority of holders of class 3 driver’s licences

were women, it is quite obvious that that requirement was a definite burden for them.

That prerequisite constituted a major obstacle that discouraged women from applying

for the job.

[158] Furthermore, although according to the evidence it is not possible to know

whether the seven victims in this case were or were not rejected on that basis, it is still

relevant to examine the discriminatory effect of the requirement of a class 3 licence.

Bear in mind that at issue here is, first and foremost, a broader case of systemic

discrimination. The individual cases of the victims are part of that context, not vice

versa. Hence, it is relevant to study the discriminatory nature of that prerequisite, even if

it is shown that it was not necessarily that requirement that was the reason for the

victims’ failure in their attempt(s) to obtain a job as a network operator.

[159] It is true in this case that the cost of the courses required to obtain a class 3

licence and the conditions under which it was obtained were the same for men and

women. In fact, the Commission is not contesting as discriminatory the conditions or the

prohibitive cost. Rather, the standard contested is the requirement, as formulated by

Gaz Métro, of a class 3 licence before being hired. Expert Jeanrie said the following in

that regard:

[TRANSLATION]

Here, the problem associated with the choice of that requirement was not its

relevance, but its timing. In this case, it was required before starting work, i.e.

candidates had to have the licence even before they submitted their candidacies.

…

[T]hree (3) or four (4) percent of women, if I recall correctly, were said to have a

class 3 licence.

Hence, the situation put women at a disadvantage in that they were prevented

from submitting their candidacies, whereas, at a later date, they would be able to

obtain that licence if they succeeded in the other stages.

Therefore, making that an entry requirement put female candidates at a

disadvantage.¹⁶²

[160] Even though the standard was apparently neutral and applied equally to

everyone, it is obvious that its effects were discriminatory to women. The context

prevailing in 1995 must be considered. Women were under-represented in the position

162 Chantale Jeanrie, stenographic notes, February 15, 2005 at 55-57.

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49

of network operator at Gaz Métro and the company set up special recruitment

competitions to correct that situation. But women were also extremely under-

represented in the pool of people holding class 3 driver’s licences, which Gaz Métro

required before hiring. As regards that requirement alone, the pool of qualified women

was quite small. Their only option was to hurry up and obtain that licence before being

hired, which, considering the cost of the preparatory courses, definitely had a “chilling

effect” on them. Therefore, in and of itself, that requirement disproportionately excluded

women.

[161] The Tribunal believes that the Commission discharged its burden of proving

prima facie that the requirement that the candidate have a class 3 driver’s licence

before being hired was discriminatory toward women, inasmuch as it excluded them

disproportionately from the position of network operator. It is therefore now necessary to

examine, in accordance with the test developed in Meiorin, whether Gaz Métro fulfilled

its obligation to justify that discriminatory standard.

[162] The first stage in that analysis requires the employer to demonstrate a rational

connection between the objective underlying the contested standard and the

performance of the work involved. The work contemplated in this case is the position of

network operator, in which employees often had to drive trucks and travel in order to

respond to emergency calls. As for the requirement that the candidate hold a class 3

licence before being hired, it met the objective of ensuring that the network trainees

were functional when they began their training period.

[163] However, the very objective of the immediate functionality of network employees

is questionable, despite the demonstrated extent and significance of the two years of

internal training and the entry-level status of the position. As Gaz Métro expressed the

desire to remedy the under-representation of women in the position of network operator,

those two objectives, namely, ensuring the functionality of trainees when they began

their training and hiring women on a priority basis for the position of network operator,

appear not only to compete with each other but to be incompatible. And even if the

justification for the objective of immediate functionality of trainees were not questioned,

the requirement formulated by Gaz Métro that network trainees hold a class 3 licence

before being hired would nevertheless not be rationally connected to that objective

since it was demonstrated that the first six months of the training period were spent

paired with an experienced employee, and therefore that the effectiveness of trainees

did not depend on the whether they held such a licence or not.

[164] For these reasons, the Tribunal finds that Gaz Métro did not prove the rationality

of the connection between the requirement of a class 3 licence at hiring and the

objective underlying that requirement. Furthermore, had I concluded the opposite, the

evidence still would not make it possible to conclude that the defendants established the

defence of undue hardship related to the accommodation requested, which constitutes

the second stage in the Meiorin test.

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50

[165] Under that second obligation, Gaz Métro also had to seek to reasonably

accommodate the women so that they could, with full equality, fill the position of network

operator. The jurisprudence is very clear that the reasonable accommodation measures

required for the full realization of the right to equality are an integral part of that right,

unless undue hardship results.¹⁶³It was therefore up to Gaz Métro to ensure that its

recruitment standards included reasonable accommodation measures, with no undue

hardship, so as to ensure the real equality of women upon being hired.¹⁶⁴

[166] In this case, the only easing of requirements granted by Gaz Métro in 1995 was

to accept that female candidates not have a class 3 licence when they submitted their

candidacy. However, they had to hold the licence when they were hired. But that

measure cannot be considered a reasonable accommodation inasmuch as it in no way

remedied the problem identified, since the female candidates still had make

arrangements to take, and had to pay for, the practical courses leading to a class 3

licence even before knowing whether they would be hired.

[167] Furthermore, as adduced in evidence, a network trainee was paired with an

experienced employee for the first six months of training.¹⁶⁵When travelling by truck,

the trainee was therefore always with a senior employee.¹⁶⁶As I mentioned earlier, a

class 3 learner’s licence that the apprentice had to hold for at least three months before

obtaining a full class 3 driver’s licence allowed the trainee to drive class 3 vehicles if

accompanied by a holder of a class 3 licence. Thus, a network trainee could simply

have a class 3 learner’s licence for the initial months of the training period, as the

trainee was working with an experienced employee. There is no doubt whatsoever that

that example of accommodation would allow the very small proportion of women who

have that type of licence to fill the position of network operator with full equality,

provided they could wait for confirmation that they were hired before seeking to obtain

their class 3 licence. When asked whether they had even contemplated the possibility of

such an accommodation, Jean-Pierre Raymond, as well as Sylvie Richard and Carole

Magnan, said they had not.¹⁶⁷

[168] Letter of understanding P-2 between Gaz Métro and the Syndicat clearly

stipulated that the same skills were going to be required of women seeking to be

recruited. But the accommodation required in this case is not tantamount to the lowering

163 See in particular Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 169;

Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525 at 544; Québec

(Commission des droits de la personne et des droits de la jeunesse) v. Sûreté du Québec, 2007

QC T.D.P. 13 at para. 79; Québec (Commission des droits de la personne et des droits de la jeunesse) v.

Québec (Procureur général) (March 9, 2005), Québec 200-53-000029-046, J.E. 2005-780 at para. 55

(QC T.D.P.).

164 See Meiorin, supra note 56 at para. 68.

165 Robert Bédard, stenographic notes, January 24, 2006 at 80-82.

166 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 120-121.

167 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 123-125; Sylvie Richard,

stenographic notes, February 17, 2006 at 68-72; Carole Magnan, stenographic notes, April 20, 2006 at

104-105.

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of quality standards. Rather, in the context of under-representation described, it was a

matter of promoting the real equality of women compared with men by making the

required adjustments to the usual standards so that women could demonstrate that they

were able to perform the work safely and efficiently.

[169] What is more, judging that the special 1995 measure did not bear fruit, Gaz

Métro decided, in 1996, to reinstate its usual rule that candidates had to have that

licence when they submitted their candidacies. That means the company raised no

further questions about the exclusionary effect of that standard, the real effectiveness of

the measure adopted in 1995 or the possibility of offering a true reasonable

accommodation measure likely to remedy the exclusionary effect.

[170] According to Jean-Pierre Raymond, granting the accommodation requested, i.e.

allowing network trainees to take steps to obtain a class 3 driver’s licence after it was

confirmed that they had been hired would impose an undue hardship on Gaz Métro. In

his testimony, Mr. Raymond explained that that measure would be too problematic

because the trainees would have to be absent from work in order to take the practical

courses required to obtain the licence, since the offices of the Société de l’assurance

automobile du Québec (SAAQ) were open only during the day, and that would be

[TRANSLATION] “unmanageable”.¹⁶⁸But the only time that the employees actually had

to go to the SAAQ was for the road test. Otherwise, they could practice beforehand

somewhere besides the SAAQ, using leased trucks.¹⁶⁹

[171] Mr. Raymond also mentioned that, in 1992, Gaz Métro had let two network

trainees obtain their class 3 licence during their training period, but the problems that

created at the time convinced the company of the need to demand the licence at the

start of the selection process. Around the end of the six months of network training, one

of the two people almost failed the road test for the licence; if the trainee had failed it,

Gaz Métro would have dismissed him. Mr. Raymond explained that, if that had been the

case, Gaz Métro would have invested six months of time and salary to train a network

operator who, having failed to obtain the licence at the end of the six-month training

period, would have had to be fired.¹⁷⁰So Gaz Métro did not want to risk needlessly

incurring such expenses.

[172] The Tribunal acknowledges that that risk could pose a certain hardship for Gaz

Métro. However, according to the relevant jurisprudence, “some hardship” is

acceptable, as long as it is not undue.¹⁷¹In this case, not only did Gaz Métro fail to

prove that coming to an arrangement with trainees who undertook to obtain their class 3

licence a few months after the start of their training period would cause it undue

168 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 110-111.

169 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 119-120.

170 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 109-111.

171 See Meiorin, supra note 56 at para. 62, citing Central Okanagan School District No. 23 v. Renaud,

[1992] 2 S.C.R. 970 at 984. See also Central Alberta Dairy Pool v. Alberta (Human Rights Commission),

supra note 80.

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hardship, but it was also adduced in evidence that the company did not even consider,

from a procedural standpoint, proposing such an accommodation.

[173] In addition, the Tribunal notes that accommodations or at least measures making

it easier to obtain a licence to drive heavy vehicles are found in companies comparable

to Gaz Métro. For example, in her testimony, Marie-Claude Côté said she obtained her

class 1 licence in 1993 in the very framework of internal training provided by Hydro-

Québec, and she did not even have to pay the cost.¹⁷²Serge Fortin, staffing advisor for

the Société de transport de Montréal (STM), explained in his testimony that the STM

requires candidates for the position of bus driver to have only a class 5 driver’s licence

at the outset. When a candidate is chosen, he or she is encouraged to take steps to

obtain a class 2 licence as soon as possible. According to Mr. Fortin, less than 1% of

candidates fail the preparatory courses for that type of licence. Noting that the high cost

of training for a class 2 licence reduced the number of women who registered for it, the

STM also came to an agreement with a financial institution to facilitate the granting of

loans to candidates who needed them. The STM also decided to have a monthly draw

for a $1000 bursary for a new employee who had become a driver during the month.¹⁷³

[174] In short, other large companies set up measures involving adjustments that

concretely facilitated access by women to non-traditional jobs. Gaz Métro, on the other

hand, did not even examine the possibility of a reasonable accommodation in the form

of a period of time in which women could obtain their class 3 licence after being hired.

Lastly, Gaz Métro did not prove that such an accommodation would constitute undue

hardship for the company. For all these reasons, even if the Tribunal had found a

rational connection between the requirement of a class 3 licence before being hired and

the objective of rapidly ensuring the functionality of trainees, Gaz Métro did not establish

to the Tribunal’s satisfaction that that requirement, which disproportionately excluded

female candidates for the position of network operation, was reasonably necessary.

3.2.2.2 Secondary V diploma

[175] As indicated earlier, one of the prerequisites listed in job profile P-3 is a

secondary school diploma. Women are not under-represented in the pool of people with

the diploma and were not under-represented during the period at issue.¹⁷⁴

[176] In this case, the Commission in no way contests the relevance of having

completed Secondary V in order to be hired for the position of network operator. First of

all, the victims all had a secondary school diploma when they submitted their

candidacies at Gaz Métro. It is therefore possible to affirm that none of those women

were rejected on that basis. But, inasmuch as certain aspects of the theoretical

172 Marie-Claude Côté, stenographic notes, February 2, 2005 at 69.

173 Serge Fortin, stenographic notes, February 3, 2005 at 75-79.

174 See section 3.1 for an analysis of that issue.

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examination used to evaluate basic Secondary V knowledge were apparently at a

higher level,¹⁷⁵that requirement potentially poses a problem.¹⁷⁶

[177] In addition, the Tribunal notes some easing of the rule regarding the secondary

school diploma in the internal recruitment at Gaz Métro. The various job profiles of the

people already employed by Gaz Métro indicate the requirement of a Secondary V

diploma [TRANSLATION] “or the equivalent”,¹⁷⁷which is not as strict a requirement as

that applied in the special competitions used to recruit women outside Gaz Métro.

3.2.2.3 Non-traditional experience

[178] I will first give, in rapid succession, the relevant experience listed in P-

3C: experience on construction sites; in horticulture; on a farm; on an assembly line, or

in waterworks, a refinery or an underground system; handling a variety of equipment:

blowers, sprinkler systems, air guns, mechanical parts; lifestyle including repair and

maintenance of a vehicle, etc.

[179] Although non-traditional experience is explicitly mentioned only in job profile P-

3C, used for external recruitment in 1995, that requirement was still indicated in

subsequent recruitments.¹⁷⁸However, although profile P-3C does not say that Gaz

Métro considered non-traditional experience to be a strict requirement for a job as a

network operator, and although non-traditional experience is indicated instead under the

heading of [TRANSLATION] “relevant experience”, Gaz Métro absolutely required

certain very special experience and rejected candidates on the basis of non-traditional

experience that was deemed irrelevant.

[180] For example, Line Beaudoin had worked in a slaughterhouse in 1978, at a time

when very few women worked in that field.¹⁷⁹She did automobile mechanics and liked

manual work. But she was told that she did not have [TRANSLATION] “the job

profile”.¹⁸⁰In that regard, Gaz Métro seemed to want to downplay the relevance of Ms.

Beaudoin’s non-traditional experience by pointing out that it dated back to 1978.¹⁸¹On

the evaluation sheet that Sylvie Richard filled out at the time of Ms. Beaudoin’s

interview, she noted that Ms. Beaudoin had [TRANSLATION] “no relevant training or

experience”.¹⁸²

175 A-8: partial qualification examination for service employees and comments; D-14: copy of the

preliminary report prepared by Lucien Aubé, professor at the department of education sciences of UQAM,

dated December 10, 1997 at 2.

176 See section 3.3.4 for an analysis of that issue.

177 D-51, supra note 138; D-56, supra note 138.

178 Sylvie Richard, stenographic notes, February 9, 2006 at 194.

179 Line Beaudoin, stenographic notes, January 31, 2005 at 205, 236-239 and 268-269.

180 Line Beaudoin, stenographic notes, January 31, 2005 at 204.

181 Arguments of Gaz Métro, June 4, 2007 at para. 594.

182 P-68A: evaluation sheets in a bundle, job applications submitted to Gaz Métro, Line Beaudoin.

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[181] As for Joan Dupont, she obtained a private aircraft pilot’s certificate in 1982 and

had worked in a sugar bush and on a dairy farm.¹⁸³In a telephone conversation with

Carole Magnan, human resources manager at Gaz Métro, Ms. Magnan explained to

Ms. Dupont that she perfectly matched the profile of the women the company was

looking for and advised her to take steps to obtain a class 3 driver’s licence.¹⁸⁴

However, in the interview, Jean-Pierre Raymond told her that, if she had been a

firefighter in the army or a lumberjack, he would have taken that into account, but that

her prior experience was not relevant to the job.¹⁸⁵Rather, Mr. Raymond asked her

whether she had knowledge of electricity or plumbing, to which she responded that, as

a single mother, the maintenance of her dwelling enabled her to know a bit in those

areas.¹⁸⁶It does not seem that Mr. Raymond noted that positive point, but continued

with questions about Ms. Dupont’s availability, given her family status.¹⁸⁷He concluded

the interview by saying she [TRANSLATION] “did not have the profile” and that the

selection process would go no further in her case. She therefore could not take the

theoretical examination because, even if she passed it, she did not have the proper

profile.¹⁸⁸Just as in Ms. Beaudoin’s case, it was noted on her evaluation sheet that she

had [TRANSLATION] “no training or experience whatsoever in non-traditional work”,¹⁸⁹

despite the experience mentioned earlier.

[182] [TRANSLATION] “Non-traditional” experience necessarily refers, in a woman’s

case at least, to a job usually held by men. Added in 1995, the requirement of non-

traditional experience therefore necessarily applied only to female candidates. The list

of relevant experience in P-3C is not exhaustiveit ends with “etc.”but note that Gaz

Métro’s interpretation of that criterion is highly subjective: the examples of Joan Dupont

and Line Beaudoin are eloquent in that regard. Not only must women alone meet an

additional requirement, but the requirement is evaluated restrictively, even arbitrarily, as

if there were only a very limited number of [TRANSLATION] “good responses”.

[183] That additional requirement imposed on women was apparently explained by

Gaz Métro’s wish to ascertain their real motivation in applying for the position of network

operator. The company seemed to believe that a number of the women just wanted to

find a good job. In fact, expert Denise Perron testified to that effect:

[TRANSLATION]

There are many womenand I believe the market still demonstrates this—who

are not interested in non-traditional jobs. They are not interested in non-

traditional jobs. But they are looking for a job. So I am going to show you a little

the approach they take. They are going … they are receiving social aid or

183 Joan Dupont, stenographic notes, February 1, 2005 at 38.

184 Joan Dupont, stenographic notes, February 1, 2005 at 39.

185 Joan Dupont, stenographic notes, February 1, 2005 at 49-50.

186 Joan Dupont, stenographic notes, February 1, 2005 at 49.

187 Joan Dupont, stenographic notes, February 1, 2005 at 49.

188 Joan Dupont, stenographic notes, February 1, 2005 at 50-52.

189 P-68C: evaluation sheets in a bundle, job applications submitted to Gaz Métro, Marie-Claude Côté.

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unemployment insurance. They are told: you should develop your employability,

55

so go take part in a group that will help you find a job and develop all that. The

women come to us. It’s true that they are not all interested in having a non-

traditional job. It is a gateway and what they want, like many people, is to get into

a large organization, get into an organization where they might be unionized,

where there is good pay and all that. And even, it was somewhat of a problem,

and then, the potential employer said, OK, the motivation of the women really

has to be verified. It was a bit of a problem in the organizations. They had women

they wanted … listen, it’s our mission to integrate them into non-traditional work.

Success is having them working in non-traditional jobs. And what we noted was

… well, in fact, once they were in the organization, they veered off toward a

traditional job. Yes, that was basically what I wanted to say.¹⁹⁰

[184] As I said, men did not have to meet that requirement and Gaz Métro did not

gauge their [TRANSLATION] “motivation”, at least not from that standpoint. The

Tribunal notes from the evidence that that different treatment of women based on non-

traditional experience excluded candidates who could not demonstrate their true

qualifications for the position of network operator. The result of that differentiation of

female and male candidates was therefore more serious [TRANSLATION] “screening”

of the women’s records. That is undeniably a discriminatory element based on sex.

[185] The Tribunal believes that, even considered in isolation, that discriminatory

requirement is not rationally connected to Gaz Métro’s objective of recruiting more

women for the position of network operator.¹⁹¹By forcing women to meet a requirement

that few of them were likely to meet, whereas there was already a significant under-

representation of women in the position offered, Gaz Métro actually imposed a condition

that could only feed the phenomenon. Given that, it is difficult, to say the least, to

conclude that such a requirement was rational.

3.3 External selection process

[186] According to the reports and testimony of the experts, each stage in the selection

process must meet validity, relevance and weighting criteria.¹⁹²If the stage meets those

criteria, the candidates are evaluated fairly and their success is accurately predicted.

More specifically, a selection tool is valid if it has no shortcomings in terms of its design,

standardization or administration. It is relevant if it measures knowledge, skills,

aptitudes and qualifications related to the job or the training to be given. It is properly

weighted if, first, the most significant, critical and frequent qualifications are given a

higher value than other desirable but less essential qualifications and, second, the

190 Denise Perron, stenographic notes, September 12, 2006 at 104-105.

191 The parties analysed the requirement of non-traditional experience as an element of the selection

instrument consisting in the interview, rather than as a prerequisite in itself, and the analysis will be

discussed again in section 3.3.3.3, which deals with the questions and themes of the pre-interview.

192 The expert witnesses who had the mandate to analyse the selection process more particularly and

who had more to say about it were Chantale Jeanrie, François Boulard, Normand Pettersen and Louis

Laurencelle. Denise Perron also discussed it incidentally.

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employer correctly evaluates the weight to be given to the qualifications measured at

that stage compared with those evaluated at other stages.

[187] The Tribunal wishes to make it clear that its conclusions regarding Gaz Métro’s

selection process will depend on the evidence as a whole. There is no doubt that

evidence based on presumption, recognized in civil matters, applies in the same

manner to discrimination cases.¹⁹³In civil law, more often than not, the judge considers

the evidence as a whole, without regard for the source of the evidentiary element.

Professor Royer explained the following on the subject, on the basis of a long line of

authorities:

[TRANSLATION]

In concrete circumstances, a litigant often takes the initiative to allege and prove

facts favourable to him or her, even if the obligation to convince rests with the

litigant’s adversary. Furthermore, the judicial conclusions generally stem from the

court’s evaluation of the evidence submitted by the parties, without it being

necessary to decide which party has the burden of persuasion.¹⁹⁴

[188] The Tribunal will successively analyse here, according to the chronological order

in which the stages in the selection process took place during the years at issue, the

information sessions (3.3.1), the management of résumés (3.3.2), the pre-interview

(3.3.3), the theoretical examination (3.3.4), the practical examination (3.3.5) and the

medical examination (3.3.6). It will then reach a conclusion on the process as a whole

(3.3.7). The main selection stages for the position of network operator, namely, the

interview, the theoretical examination and the practical examination, will be studied in

light of the three criteria of validity, relevance and weighting explained earlier.

3.3.1 Information sessions

[189] In June 1995, that is, at the very start of the special recruitment competition, Gaz

Métro organized information sessions for female candidates for the position of network

operator. The sessions took place in the presence of Jean-Pierre Raymond and Sylvie

Richard, sometimes assisted by Carole Magnan. The sessions lasted about two hours

and began with the screening of a video showing a male Gaz Métro employee, played

by an actor with a deep voice, and gas, represented by a high-pitched female voice.¹⁹⁵

All the other employees in the video were men, and [TRANSLATION] “the guys on the

team” were mentioned twice.

[190] Jean-Pierre Raymond then explained to the participants the various stages in the

internal training and mentioned that they would be dismissed if they failed any one of

them. He also explained the steps to take to obtain a class 3 driver’s licence, the costs

involved and the obligation to hold that licence before being hired. Participants were

193 See Compagnie minière Québec-Cartier v. Québec (Commission des droits de la personne)

(December 7, 1998) Québec 200-09-000495-942 at 28-29 (C.A.).

194 Jean-Claude Royer, La preuve civile, 3rd ed. (Cowansville, Qc.: Yvon Blais, 2003) at para. 191.

195 Line Beaudoin, stenographic notes, January 31, 2005 at 196.

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then given two documents, one about working conditions and the job profile (D-33), and

the other explaining the steps in obtaining a class 3 driver’s licence (D-47).

[191] The session was also an opportunity to describe the clothing and security

equipment supplied by Gaz Métro. In that regard, Mr. Raymond jokingly said that

women need only bring their [TRANSLATION] “drawers” and that everything else

(boots, pants, jackets, shirts, gloves, etc.) was provided by the company.¹⁹⁶Apparently,

he always cracked the same joke to both men and women when he led the information

session. Line Beaudoin, who attended a session, said that statement was greeted with

silence in the room.¹⁹⁷Mr. Raymond also took that opportunity to inform the women that

they would not be given any favours.¹⁹⁸He said only one women held the position of

network operator at the time and that it had been very difficult for her to make a place

for herself. He underscored the importance of [TRANSLATION] “being part of the

gang”.¹⁹⁹

[192] The Tribunal notes that the information provided by Jean-Pierre Raymond in the

sessions was, in a way, a set of additional difficulties to be overcome by the candidates:

[TRANSLATION] “don’t expect to get a free ride because you are women”; the only

woman in the position found it very difficult to be accepted; the video talked about

[TRANSLATION] “us guys”; there would be [TRANSLATION] “guy” jokes and even the

boss made them; to obtain the driver’s licence, you had to spend several hundred

dollars, and it had to be obtained before you were hired; just one failure during the two-

year training period would result in dismissal.²⁰⁰

[193] These comments, taken in isolation, may seem harmless. But made in the

context of an information session aimed at making women familiar with a position to

which they were to be given access on a priority basis, they underpinned a certain

negative perception of the place of women in the position. Rather than encouraging

women to submit their candidacy, the comments were no doubt likely to discourage

them, whether or not that was Gaz Métro’s intention.

[194] The information sessions were held on three occasions in 1995 and 20 to 30

people attended each session. In 1996, Gaz Métro abandoned them because it felt they

had not helped to recruit a significant number of women. That means the company did

not question the reasons that might explain the ineffectiveness of the information

sessions in achieving the objective sought; it preferred to simply cancel them.

196 Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 207.

197 Line Beaudoin, stenographic notes, January 31, 2005 at 251.

198 Line Beaudoin, stenographic notes, January 31, 2005 at 196.

199 Line Beaudoin, stenographic notes, January 31, 2005 at 197.

200 Line Beaudoin, stenographic notes, January 31, 2005 at 200.

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58

[195] Upon receipt of résumés, Gaz Métro selected candidates. Danielle Gauthier,

employment office clerk under the supervision of Carole Magnan in 1995, codified the

CVs and sent them to Ms. Magnan.²⁰¹Sylvie Richard then analysed them. While

requirements regarding knowledge, skills and physical strength were evaluated through

tests, requirements in terms of Secondary V schooling, the class 3 driver’s licence and

experience in a non-traditional job could disqualify a candidate if not met, i.e. the

candidate would not be called for an interview.²⁰²So on that basis, Ms. Richard decided

whether or not to call the candidates in for an interview.²⁰³Carole Magnan and Jean-

Pierre Raymond intervened in the selection process only when Ms. Richard asked them

for an opinion about a CV, which was rare.

[196] Normand Pettersen, an expert witness for Gaz Métro, admitted that choosing

CVs was an important stage in the selection process. He added that he did not analyse

that stage—although he should have—given that he did not have the necessary data

when he wrote his final report.²⁰⁴

[197] According to Danielle Gauthier, the CVs were kept for about six months if they

were rejected and for one or two years if the candidates were chosen for one of the

stages in the selection process, after which they were destroyed.²⁰⁵Despite that, Sylvie

Richard found in the archives the files of people who were not hired from 1995 to 1997.

So files that were supposed to have been destroyed were kept and Ms. Richard could

not guarantee the accuracy of the archived material. Furthermore, there is a list of the

archived files, but no list of the files that were destroyed.²⁰⁶The job of archiving was

often given to students employed by Gaz Métro during the summer²⁰⁷and the archive

boxes were not properly identified.

[198] Since then, documents have been lost or erroneously destroyed. Hence, the data

provided by Gaz Métro was often adjusted and revised during the hearing before the

Tribunal. Those changes considerably diminish their reliability and mar the company’s

credibility, given that it wanted to attract female candidates but was not careful in

handling the files transmitted by them.

[199] At this stage, the Tribunal formulates no particular conclusion about the

management of CVs, but merely observes its shortcomings.

201 Danielle Gauthier, stenographic notes, June 1, 2005 at 10.

202 Sylvie Richard, stenographic notes, February 9, 2006 at 185.

203 A-23, responses, 2b).

204 A-19, at 22; Normand Pettersen, stenographic notes, September 13, 2006 at 245.

205 Danielle Gauthier, stenographic notes, June 1, 2005 at 111 and 123-124. See also Sylvie Richard,

stenographic notes, February 9, 2006 at 66 and 173.

206 Danielle Gauthier, stenographic notes, June 1, 2005 at 111-112; Sylvie Richard, stenographic notes,

February 9, 2006 at 66.

207 Carole Magnan, stenographic notes, April 18, 2006 at 233.

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59

[200] I will first discuss, from a logical standpoint, the interview procedure (3.3.3.1),

then the interview tools (3.3.3.2) and a few particular questions and themes in them

(3.3.3.3). After describing the interview, I will deal with its nature and discuss the quality

criteria of an interview as a stage in the selection process (3.3.3.4). Lastly, I will draw

conclusions about that stage in the selection process (3.3.3.5).

3.3.3.1 People interviewed, interviewers and general interview

procedure

[201] A candidate could be disqualified at the interview stage, just as at the theoretical

and practical examination stages,²⁰⁸since in each case, candidates who did not meet

the company’s criteria were then eliminated. In Gaz Métro’s normal recruitment process,

the interview usually took place at the end of the selection process,²⁰⁹after the

candidates had passed the theoretical and practical examinations, and thus served to

confirm the selection of the candidate. But in the special competition held in 1995, the

interview was exceptionally held before the tests, and for the female candidates only.²¹⁰

However, Gaz Métro put an end to that procedure the following year. As for candidates

from the CSN unit within Gaz Métro, they did not have to undergo an interview because

they were presumed to have the required profile.²¹¹

[202] Note that, in 1995, not all the candidates were interviewed before taking the

examinations. Sylvie Richard explained that no criterion differentiated the candidates

who had to have an interview from those that could take the theoretical examination

immediately. A lack of time motivated the interviewers to interview certain candidates,

since they had until October 2, 1995 to fill the positions available.²¹²

[203] Jean-Pierre Raymond justified placing the interview at the beginning of the

selection process for the women by saying that they wanted to expand the pool of

female candidates. But according to expert Erika Boukamp Bosch, an interview is not

the appropriate way to expand a pool of female candidates.²¹³Expert Pettersen did not

believe that the pre-interview constituted different treatment of the women. He was of

the opinion that the order of stages in the selection process did not affect the ratios and

that the women who failed in the interview at the start would have also failed at the end

of the selection process.²¹⁴However, the theoretical and practical examinations made

the candidates more familiar with the job of network operator, which could but increase

208 Sylvie Richard, stenographic notes, February 17, 2006 at 83-84.

209 Sylvie Richard, stenographic notes, February 9, 2006 at 69.

210 D-84A, supra note 18 at 10.

211 Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 168.

212 Sylvie Richard, stenographic notes, February 17, 2006, at 79 and 83.

213 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 177.

214 Normand Pettersen, stenographic notes, September 13, 2006 at 127.

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their chances of success in the interview, not to mention that prior success on the two

examinations was likely to make a good impression on the interviewers.

[204] The experts agreed on the importance of the interviewers’ competence,

especially since the interviewers had to make a subjective judgment about the

candidates.²¹⁵During the years at issue, Sylvie Richard conducted interviews and took

notes. Jean-Pierre Raymond assisted her, unless he was on vacation.²¹⁶First, Ms.

Richard started out as a secretary who was promoted within the company and became

a staffing officer and finally a staffing advisor, but without completing her human

resources certificate.²¹⁷In that training, only a few days were devoted to selection

interviews.²¹⁸As for Mr. Raymond, who saw to the development of the position of

network operator over the years, he was very familiar with the job and [TRANSLATION]

“had it in mind” in the interviews, according to Normand Pettersen.²¹⁹Mr. Raymond took

only one staffing course when he studied for his management and marketing

certificate.²²⁰

[205] However, not only was Mr. Raymond not present for some interviews,²²¹but

when he was, his role was rather passive. He limited himself to explaining the position

of network operator and responding to more technical questions, if there were any.²²²In

addition, an agency conducted some interviews by phone.²²³In that regard, expert

Pettersen stressed the importance of always having the same evaluators conduct the

interviews.²²⁴

[206] In Ms. Richard’s opinion, the purpose of the pre-interview was to give women an

opportunity to demonstrate their relevant non-traditional experience.²²⁵She also wrote

to expert Pettersen that the interview was aimed at ascertaining the candidate’s

capacity to advance in the job.²²⁶But according to Mr. Raymond, the interview was in

keeping with Gaz Métro’s desire to have a new pool of candidacies by women.²²⁷

Hence, it seems that the objective underlying the interview was not clarified and the two

interviewers had a very different understanding of it: on the one hand, to get to know the

[TRANSLATION] “clientele”; on the other, to enable women to demonstrate their

215 See in particular François Boulard, stenographic notes, June 19, 2006 at 176-178.

216 Sylvie Richard, stenographic notes, February 9, 2006 at 68; Jean-Pierre Raymond, stenographic

notes, January 26, 2006 at 227; Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 42.

217 Sylvie Richard, February 17, 2006 at 189-190.

218 Sylvie Richard, February 17, 2006 at 189-190.

219 Normand Pettersen, stenographic notes, September 13, 2006 at 107.

220 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 169.

221 For example, he was absent from Shirley Thomas’s interview. See Jean-Pierre Raymond,

stenographic notes, January 27, 2006 at 151.

222 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 42.

223 That was particularly the case with Danielle Varin, who was a candidate for the position of network

operator in 1996. See Danielle Varin, stenographic notes, February 8, 2005 at 8-9.

224 Normand Pettersen, stenographic notes, September 13, 2006 at 196.

225 Sylvie Richard, stenographic notes, February 17, 2006 at 74 et seq.

226 A-23 in a bundle, point 7b).

227 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 151-152.

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experience. Furthermore, Ms. Richard and Mr. Raymond also implied that the interview

was to be used to ascertain whether the candidates had the job profile and whether they

could succeed in the internal training.

[207] In that context, the Tribunal notes that Gaz Métro decided to undertake a broad-

based pre-interview process without even clearly establishing its objective.

3.3.3.2 Interview tools

[208] Sylvie Richard developed her own interview checklist (P-8), which she has

invariably used since 1992, with the exception of question 6, on the integration of

women, which was added in 1995.²²⁸She developed checklist P-8 on the basis of the

various documents used for interview purposes (D-58 in a bundle), to which she added

questions from the question bank developed by a colleague, François Messier.

Checklist P-8 contains 18 questions, but Ms. Richard admitted that others were added

depending on the responses obtained. The Tribunal deems it useful for comprehension

purposes to reproduce the questions here:

[TRANSLATION]

1.

2.

3.

4.

Can you give me a brief summary of your career until now (training and

experience)?

What experience did you enjoy the most and why? What experience did

you enjoy the least and why?

Given what you know about the position, what leads you to believe you

are right for the job?

What aspects of the job interest you the most?

What aspects of the job interest you the least?

How is this position in line with your career plan?

How do you think a woman can properly integrate a non-traditional (male)

environment? (Particular expectations about your integration in terms of

support)

5.

6.

7.

8.

9.

Tell me about a situation you found stressful.

What attitudes and behaviour do you tolerate the least in other people?

Have you ever had a conflict with an immediate superior or a co-worker?

(Can you tell me something about it?)

10.

11.

12.

13.

14.

Give me an example of a situation in which you did not change your

decision even though others contested it.

Tell me about a situation in which your positive attitude motivated the

people around you.

Tell me about a situation in which another person really tried your

patience.

Tell me about a situation at work in which you were congratulated for the

effort you put into a job.

Tell me about a situation in which you helped to create a team spirit

around you.

228 Sylvie Richard, stenographic notes, February 9, 2006 at 70.

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15.

16.

17.

18.

How would people who know you well describe you (qualities,

shortcomings)?

What particular aspect of your personality have you been working on over

the past two years?

Apart from financial well-being, what particularly motivates you to go to

work every day?

Why would you like to work at Gaz Métro?

[209] Ms. Richard also designed her own model interview summary (P-47), which she

used to take notes; she preferred to use the evaluation checklist only as a reference.²²⁹

Besides the name of the candidate, the title of the position sought and the date of the

interview, P-47 contains the following information: the type of driver’s licence held,

experience, training, strengths, weaknesses and special notes. A heading was also

included for the candidate’s examination results, if she took any, and another, in the

upper right-hand corner, was a checklist where a few characteristic features of the

candidate could be noted. Having read the sheets filled out by Sylvie Richard for each

of the victims in this case, the Tribunal also notes that she wrote the name of the

organizationATF, for examplethe candidate was from. In addition, Ms. Richard gave

each candidate a rating: [TRANSLATION] “rejected”, “B”, “A” or “A+” according to her

general impression and the degree to which the candidate corresponded to the profile in

her opinion.²³⁰She explained at the hearing that an “A” rating indicated that the

candidate corresponded to the profile and that an “A+” rating meant that she

corresponded [TRANSLATION] “even more” to the profile. Which raises the question:

Even more than what?

[210] Ms. Richards stated in her testimony that she did not always take notes during

the interview. Sometimes, she made notes afterward, in which case she relied on her

memory.²³¹She made notes alone or with Mr. Raymond.²³²Expert Jeanrie explained

that that procedure, i.e. taking notes afterward, is not recommended because one must

rely more on memory than on the facts and, thus, a certain bias can be introduced into

the evaluation of the responses.²³³Furthermore, sheet P-47 was not always used from

1995 to 1997. Sometimes simple notes were taken during the interview instead. As for

Mr. Raymond, he simply referred to document P-29, a sort of job description that has

much in common with job profile P-3.

[211] Expert Jeanrie also considered that the absence of an evaluation checklist was a

shortcoming because the evaluation was therefore too subjective and vague. In her

opinion, it should have been determined how many points would be attributed to given

aspects and what value should be given to each response. Otherwise, biases could

affect the evaluation and it became more likely that the evaluation would reflect the

229 Sylvie Richard, stenographic notes, February 17, 2006 at 98.

230 Sylvie Richard, stenographic notes, March 15, 2005 at 131 et seq.

231 Sylvie Richard, stenographic notes, March 15, 2005 at 126 and 142.

232 Sylvie Richard, stenographic notes, February 9, 2006 at 75.

233 P-43, supra note 10 at 29; Chantale Jeanrie, stenographic notes, May 30, 2005 at 32.

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application of arbitrary criteria with no direct ink to the job.²³⁴She added that sheet P-8

is not a real interview checklist.²³⁵

[212] Expert Pettersen also felt that sheet P-47 was deficient, especially because the

questions had no expected responses, thus increasing the risk of error²³⁶since the

interviewers’ evaluation was merely general.²³⁷

[213] Moreover, according to expert Jeanrie, consistent note-taking is important in

evaluating candidates fairly.²³⁸An evaluator can, as he or she chooses, cite excerpts

from the candidates’ commentswhich is the modus operandi preferred by the

expertor note qualifications, but alternating between the two methods introduces a

bias.²³⁹

[214] In addition, Ms. Jeanrie indicated that the comments were noted in a general

manner, and were not organized according to each question, which fosters subjectivity.

Evaluation checklist P-47 also contained a section entitled [TRANSLATION] “Strong

points, weak points”, but interview checklist P-8 did not define what constituted a strong

point or a weak point. It would have been preferable, according to expert Jeanrie, to

refer specifically to the requirements of the position.²⁴⁰

3.3.3.3 Particular questions and themes of the interview

-

Evaluation of personal skills

[215] It was admitted that the theoretical and practical examinations given by Gaz

Métro were aimed at measuring technical and manual knowledge and skills. Through

the questions it contained, the interview was aimed essentially at measuring personal

qualities and interests corresponding to the requirements indicated in the job profile.

That means that the [TRANSLATION] “personal qualities” listed previously²⁴¹were

evaluated in the interview. In that regard, Sylvie Richard explained that the word

[TRANSLATION] “profile” on her evaluation sheet P-47 refers to those qualities.²⁴²She

also indicated that the responses given by the candidates on that subject had to be

related to the qualities listed in profile P-3C.

[216] According to Ms. Richard, there was a consensus at Gaz Métro regarding the

evaluation of personal qualities; those qualities were deemed to be required for the

234 P-43, supra note 10 at 32.

235 Chantale Jeanrie, stenographic notes, February 15, 2005 at 67.

236 A-19, supra note 18 at 33; Normand Pettersen, stenographic notes, October 11, 2006 at 41.

237 Normand Pettersen, stenographic notes, September 13, 2006 at 219.

238 Chantale Jeanrie, stenographic notes, May 30, 2005 at 29 et seq.

239 Chantale Jeanrie, stenographic notes, May 30, 2005 at 33.

240 Chantale Jeanrie, stenographic notes, February 15, 2005 at 68.

241 See section 3.2.1.2. supra for the list of these qualities.

242 Sylvie Richard, stenographic notes, March 15, 2005 at 133.

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position of network operator.²⁴³Expert Boulard confirmed only in part that it was

appropriate to require those qualities. First, he felt that the evaluation of personal

qualities should not be limited to [TRANSLATION] “white-collar” positions and that such

an evaluation has its place in the framework of access to the position of network

operator. He explained that, for example, the so-called quality of being [TRANSLATION]

“flexible, but assured” can constitute a relational quality sought not so much for the

performance of a duty as for the training period.²⁴⁴He also admitted that the people in

charge of hiring at Gaz Métro, particularly Sylvie Richard, never formally ascertained

whether there was a link between the questions asked and the qualities they wanted to

evaluate.²⁴⁵Despite that, Mr. Boulard said he gauged that link himself and noted that it

existed.

[217] In the opinion of expert Jeanrie, the themes broached in the interview were not

defined according to the requirements of the job, making the link between the qualities

sought and the qualities measured in the interview that much more complex.²⁴⁶For

example, in Line Beaudoin’s case, no strength was noted, not even in question 15:

“How do the people who know you well describe you?”. But the word [TRANSLATION]

“dishonest” is written, whereas Ms. Beaudoin certainly did not make that statement

herself.²⁴⁷What is more, not all the elements noted by Sylvie Richard were related to

the requirements appearing in the job profile.

[218] Having read the candidates’ evaluation sheets (P-68 in a bundle), the Tribunal

notes that certain remarks show a lack of respect for the candidates. For example, on

Line Beaudoin’s sheet, Ms. Richard also added the adjective [TRANSLATION]

“dishonest”, in the section on weaknesses, [TRANSLATION] “impertinent” and

[TRANSLATION] “pretentious”. More surprising, the Tribunal noted the subjectivity of

the evaluation sheets and the elements and comments they contain, such as

[TRANSLATION] “quick-witted”, [TRANSLATION] “cheerful”, [TRANSLATION] “likes

competence”, [TRANSLATION] “quick to criticize”, [TRANSLATION] “organized”,

[TRANSLATION] “arrogant”, [TRANSLATION] “pride”, [TRANSLATION] “curious”,

[TRANSLATION] “perfectionist”, [TRANSLATION] “a bit dense”, [TRANSLATION]

“dopey”,

[TRANSLATION]

“too

good-natured”,

[TRANSLATION]

“insolent”,

[TRANSLATION] “prying”, [TRANSLATION] “pretentious”, [TRANSLATION] “dishonest”,

etc., which apparently had no connection with the job.

-

Non-traditional experience

[219] During the special competitions to recruit women, the absence of non-traditional

experience deemed relevant in their careers led to rejection of their candidacies before

the theoretical and practical examinations. As I indicated earlier, an initial selection was

made on the basis of the CV. If the candidate had no non-traditional experience, the CV

243 Sylvie Richard, stenographic notes, March 15, 2005 at 133 et seq.

244 François Boulard, stenographic notes, June 19, 2006 at 188.

245 François Boulard, stenographic notes, June 19, 2006 at 108-109, 173-174 and 188.

246 P-43, supra note 10 at 27-30.

247 Chantale Jeanrie, stenographic notes, May 30, 2005 at 18-20 and 35.

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was withdrawn from the selection process. Then, at the interview stage, the women’s

non-traditional experience was evaluated subjectively and restrictively since, if the

experience was deemed insufficient and irrelevant, that was a reason for the

interviewers to conclude that a candidate did [TRANSLATION] “not have the profile” and

to refuse her access to the tests.

[220] For example, Line Beaudoin was not allowed to take the written and practical

examinations because Sylvie Richard and Jean-Pierre Raymond rejected her candidacy

at the time of the interview. She was notified that she did not have [TRANSLATION] “the

profile”.²⁴⁸But Ms. Beaudoin had worked as an inspector in a slaughterhouse, a non-

traditional environment at the time, where she was the only woman hired. Despite that,

on her evaluation sheet P-68, Sylvie Richard indicated [TRANSLATION] “no relevant

training or experience”.

[221] As for Joan Dupont, she called Gaz Métro in 1995 for information about the

position. She spoke with Carole Magnan and told her about her career. Ms. Dupont

obtained a private pilot’s licence in 1982 and also worked on a dairy farm and in a sugar

bush. Ms. Magnan told her at that time that she had the profile sought.²⁴⁹However, in

her interview, Jean-Pierre Raymond did not consider her experience relevant at all and

indicated that, in any case, she did not have [TRANSLATION] “the profile” and it was

therefore not justified for her to take the examinations.²⁵⁰As in Line Beaudoin’s case,

her evaluation sheet P-68 contained the comment [TRANSLATION] “no training and no

non-traditional experience”. In the opinion of Ms. Richard and Mr. Raymond, a private

pilot’s licence did not necessarily constitute experience in a non-traditional field.²⁵¹But

Umberto Tamboriello, civil aviation inspector at the ministère des Transports, stated in

his testimony that, in 1982, the year that Joan Dupont obtained her private pilot’s

licence, there were only four or five women out of roughly 60 civil aviation inspectors.²⁵²

Although Mr. Tamboriello did not provide exact figures for the number of female private

pilots at that time, the Tribunal has no trouble believing that it was quite uncommon for a

woman to hold such a licence in 1982.

[222] The five other victims in the case, namely, Tania Plourde, Marie-Claude Côté,

Shirley Thomas, Johanne Bolduc and Nicole Trudel, passed the interview stage and it

was confirmed that they had the right profile. From the standpoint of non-traditional

experience, Tania Plourde had training in the installation of electric power lines and had

worked in that field for Hydro-Québec. Marie-Claude Côté had also worked as an

installer of electric power lines for Hydro-Québec, and then took jointer training at that

company. She had also served in the Canadian Armed Forces. Shirley Thomas held a

diploma of college studies in petrochemistry and had done an internship at Petro-

Canada. She also had her own tree pruning business, in which she saw to everything.

248 Line Beaudoin, stenographic notes, January 31, 2005 at 204.

249 Joan Dupont, stenographic notes, February 1, 2005 at 39.

250 Joan Dupont, stenographic notes, February 1, 2005 at 50.

251 Sylvie Richard, stenographic notes, February 17, 2006 at 90.

252 Umberto Tamboriello, stenographic notes, October 11, 2006 at 195.

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Johanne Bolduc had a BA in civil engineering and had worked for several years as a

ballast inspector. Nicole Trudel was a welder, had a diploma of vocational studies (DVS)

in the driving of heavy vehicles and had worked for Canadian Pacific as a driver for the

transport of hazardous material.

[223] In his testimony, Jean-Pierre Raymond mentioned the experience of a woman

already working for Gaz Métro in order to say that the non-traditional experience sought

consisted in a job in garage mechanics, a job as a caretaker or a job with Canadian

National.²⁵³He made no mention whatsoever of the other experience listed in profile P-

3 and did not seem to consider the possibility that other experience could be equally

relevant.

[224] Hence, the evaluation by Sylvie Richard and Jean-Pierre Raymond of the non-

traditional experience required of the candidates was highly subjective and limited, and

it contributed to the wrongful rejection of certain candidates. The cases of Line

Beaudoin and Joan Dupont show that a given non-traditional experience could be

perceived differently depending on the individual. Thus, the vagueness of the notion of

non-traditional experience for the people in charge of conducting the interview and the

lack of clarity as regards the objectives of the interview made it easier for biases to be

introduced into the process in terms of the capacities and aptitudes of the women to

hold the position of network operator. Furthermore, since a candidate who did not meet

that requirement was eliminated and the requirement was imposed only on women, the

Tribunal deems, as it explained earlier,²⁵⁴that the requirement was discriminatory

toward women. Hence, the evaluation of non-traditional experience as an element of the

pre-interview definitely contributed to the requirement’s disproportionately exclusionary

effect on women.

-

Integration capacity of the women

[225] The sixth question in the interview, in which the candidates were asked how a

women could integrate a non-traditional environment like that of the position of network

operator, was only for women. According to Sylvie Richard, candidates who were

members of visible minorities were asked a similar question, namely, how they would

integrate a homogeneous White environment.²⁵⁵Mr. Raymond added that White men

were asked the opposite question, i.e. what they thought about the possibility of working

with women and with people from visible minorities.²⁵⁶But that was contradicted by

Sylvie Richard’s testimony.

[226] The question about the integration of women took several forms, including

verification of the way the candidate would react when men displayed sexist behaviour

or made disrespectful jokes. Johanne Bolduc answered that question by saying that, as

she had worked on construction sites, she believed it was better to ignore such jokes

253 Jean-Pierre Raymond, stenographic notes, January 27, 2006 at 32.

254 See section 3.2.4 supra for the Tribunal’s reasons in regard to that issue.

255 Sylvie Richard, stenographic notes, February 9, 2006 at 71-72.

256 Jean-Pierre-Raymond, stenographic notes, February 7, 2006 at 80.

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and attitudes.²⁵⁷Line Beaudoin believed it was preferable to take uncomfortable

situations of that type with humour.²⁵⁸

[227] Tania Plourde was asked what she would do to have the men accept her

ideas.²⁵⁹Shirley Thomas responded to a similar question by saying that, with time and

patience, the men would respect her.²⁶⁰Marie-Claude Côté was sure that integration

would not be a problem for her, since she had always worked in male environments.²⁶¹

[228] Sylvie Richard explained that there were expected [TRANSLATION] “good

answers” and other answers that were automatically considered [TRANSLATION]

“bad”.²⁶²For example, she found the response inadequate when a candidate said she

would not concern herself with integration since that was the company’s

responsibility.²⁶³But a response indicating that a sense of humour was necessary in a

male environment and that one must not get caught up in details was considered

positive.²⁶⁴Ms. Richard said that question 6 was, in fact, aimed at gauging the women’s

sense of humour. First establishing that a sense of humour was not a prerequisite per

se, but rather an ideal, she subsequently admitted that that quality was required to

integrate a male environment since it demonstrated the flexibility that the women had to

have.²⁶⁵But it is obvious that the men’s sense of humour could not be evaluated in the

same way.

[229] On that subject, expert Denise Perron expressed the opinion in her report that it

was not necessaryor rather that it should not be necessaryfor women to be better

from all standpoints than men in order to be given the same consideration.²⁶⁶

[230] In a sub-question of question 6, the candidates were asked to give their particular

expectations of Gaz Métro in terms of support for their integration. The women were

therefore initially evaluated according to the way they would integrate a traditionally

male environment and then they had to indicate how they expected to be supported to

that end. That is contradictory, especially since Sylvie Richard mentioned that a

response by a candidate that it was up to the employer to see to integration was judged

negatively. The responses that the interviewers expected from the candidates were

therefore antinomic and the contradiction makes the question about their integration

fraught, to say the least.

257 Johanne Bolduc, stenographic notes, January 31, 2005 at 39.

258 Line Beaudoin, stenographic notes, January 31, 2005 at 203-204.

259 Tania Plourde, stenographic notes, February 1, 2005 at 160.

260 Shirley Thomas, stenographic notes, February 8, 2005 at 85.

261 Marie-Claude Côté, stenographic notes, February 2, 2005 at 13.

262 Sylvie Richard, stenographic notes, February 9, 2006 at 83-84.

263 Sylvie Richard, stenographic notes, February 9, 2006 at 84.

264 Sylvie Richard, stenographic notes, February 9, 2006 at 84-85.

265 Sylvie Richard, stenographic notes, February 17, 2006 at 215.

266 D-80, supra note 16 at 15.

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[231] According to Normand Pettersen, question 6 gave the women a realistic warning,

whereas the men did not need such a [TRANSLATION] “disembellishment”.²⁶⁷He found

the question relevant and was not surprised that it was asked, since Gaz Métro had to

ensure that the female candidates were really interested in working in that environment,

to which they were supposedly not accustomed.²⁶⁸

[232] Denise Perron felt that such as a question was appropriate if its objective was to

provide for a way to support the women, but the question should therefore have been

asked only after the candidate was hired. ²⁶⁹

[233] In Chantale Jeanrie’s opinion, the question was problematic for several reasons.

The men were not asked it and it implied that the new employees were themselves

solely responsible for their own integration. It could also give rise to a [TRANSLATION]

“social desirability” bias in that the candidates were likely to give a response reflecting

their perception of what was expected of them in order to please, thus potentially

fiddling with the truth. Ms. Jeanrie therefore recommended that the question be

withdrawn.²⁷⁰In her testimony, she expressed the opinion that it is generally justified to

provide a somewhat [TRANSLATION] “realistic description of the job” in an interview so

that candidates are fully aware of the realities of the positionincluding the negative

onesthey are applying for. However, it is therefore important to proceed that way with

all candidates, not just one category of them.²⁷¹

[234] The Tribunal considers the question about the possible integration of women

problematic from a number of standpoints. First, women alone were asked the question.

Perhaps that simple fact is not sufficient to conclude that Gaz Métro placed the

women’s integration on their own shoulders, but that is not considering the

[TRANSLATION] “good responses”. Sylvie Richard’s testimony showed that she

expected the women to mention humour and that “relying on the enterprise” constituted

a bad response. Falling back on humour in order to integrate a non-traditional

environment that is potentially hostile to a given groupwomen in this caseis

tantamount to making the individuals, indeed the victims of such an environment,

responsible for their successful integration.

[235] Hence, the Tribunal notes that, through that question, Gaz Métro did not seek to

find out the measures it had to put in place to foster the integration of women, as the

company alleged, and that, at the very least, the question did not serve to achieve that

objective. What is more, not only is a sense of humour not a quality indicated in profile

P-3, but the evidence does not show that a sense of humour was required of men. That

means that, to be considered on the same footing as men, women had to do better.

Since women were likely to evaluated negatively as regards that aspect, the question

267 Normand Pettersen, stenographic notes, October 11, 2006 at 36. See also A-19 at 34.

268 Normand Pettersen, stenographic notes, September 13, 2006 at 203-204.

269 D-80, supra note 16 at 14; Denise Perron, stenographic notes, September 11, 2006 at 230-231.

270 P-43, supra note 10 at 31.

271 Chantale Jeanrie, stenographic notes, February 15, 2005 at 70-71.

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had a discriminatory exclusionary effect based on sex. Furthermore, the fact that none

of the seven victims in this case was rejected solely on that basis is not probative in a

broader context of systemic discrimination.

3.3.3.4 Nature and evaluation of the interview

-

Nature of the interview

[236] Experts Jeanrie, Boulard and Pettersen explained in turn what characterizes a

structured, semi-structured and unstructured interview, and expressed an opinion on the

nature of Gaz Métro’s interviews during the period at issue.

[237] According to expert Jeanrie, the degree to which an interview is structured has a

definite impact on its predictive value. She listed the four main factors that constitute a

structured interview: the interview is related to the essential elements of the position; the

questions are standardized and focus more on simulations that make it possible to

evaluate candidates’ behaviour rather than on their opinions; the interview is conducted

in a standardized manner; and an interview checklist links the questions, what they

measure, the responses and the respective value they are to be given.

[238] According to that, a classic interview, which is not very structured, is much more

subjective than a structured situational or behavioural interview.²⁷²Expert Jeanrie said

that those two types of interviews can be considered particularly valid.²⁷³

[239] In her opinion, a situational interview is the most structured form of interview,

because it is more predictive of future behaviour. It usually consists in questions in the

form of simulations, in which the candidate faces a dilemma and must say how he or

she would proceed. A list of responses accompanies each question and points are

given for the different responses possible.²⁷⁴

[240] A behavioural interview is based on the theory that past behaviour is the best

predictor of future behaviour. For example, if one of the requirements of the position is

team work, a candidate can be asked to relate an experience in which he or she had to

work as part of a team in an emergency situation. Sub-questions are then asked in

order to examine the principal theme in more depth. As with a situational interview, a

scale indicating the number of points for each type of response is provided.²⁷⁵

[241] Analysing Gaz Métro’s interview in light of the above four criteria for a structured

interview, Ms. Jeanrie reached the conclusion that it was neither situational nor

behavioural, but rather unstructured and classic.²⁷⁶She in fact believed the

272 P-43, supra note 10 at 27-29.

273 Chantale Jeanrie, stenographic notes, February 15, 2005 at 65.

274 Chantale Jeanrie, stenographic notes, February 15, 2005 at 62-63.

275 Chantale Jeanrie, stenographic notes, February 15, 2005 at 64-65.

276 Chantale Jeanrie, stenographic notes, February 15, 2005 at 65-66.

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standardization of administration of the interview and the questions asked were

deficient, the absence of a complete scale undermined the process and the interview

was not adequately linked to the job.²⁷⁷

[242] Expert Boulard also acknowledged the superiority of a structured interview and

behavioural questions. According to him, question checklist P-8 is structured but, since

unplanned sub-questions were sometimes added for certain candidates, he considered

Gaz Métro’s interview to be semi-structured.²⁷⁸In his opinion, interviews that were not

very structured were frequent in 1995 but, when interviewers properly mastered the type

of interview they conducted, their good judgment remedied the lack of structure.

[243] According to expert Pettersen, certain types of questions are preferable, for

example, behavioural questions or questions dealing with training and experience,

because they are generally more structured and geared to the job.²⁷⁹As for questions

about the candidates’ interests and opinions, and questions eliciting self-evaluations,

they are more debatable because they are likely to introduce a degree of social

desirability. Used with caution, those questions, which are widespread, are nevertheless

acceptable.

[244] In this case, he believed Gaz Métro’s interview was classic and contained

questions on training and experience, as well as on interests, objectives and

aspirations, questions eliciting self-evaluation, questions on opinions and attitudes, and

behavioural questions.²⁸⁰He considered questions 7, 9, 10, 11, 12, 13 and 14 to be

behavioural. However, he emphasized that it is generally recommended that follow-up

questions be planned.²⁸¹He indicated in that regard that, although such questions were

not included in checklist P-8, they were actually asked, in an unstructured manner. He

also shared Ms. Jeanrie’s opinion that the absence of an evaluation checklist linking the

questions to the expected responses reflected deficient standardization.²⁸²In his

testimony, Mr. Pettersen more specifically ranked the interview in this case in the next-

to-last position on a structure scale of 1 to 4, because the sub-questions were not

predetermined and the evaluation was general.²⁸³

[245] From the reports and testimony of experts Jeanrie, Boulard and Pettersen, the

Tribunal finds that Gaz Métro’s interviews had little structure and that the lack of

structure was very likely to affect their quality and predictive value. After determining the

nature of the interview in this case, I must analyse more specifically the quality criteria

of an interview, i.e. its relevance, validity and weighting.

277 P-43, supra note 10 at 29-33.

278 D-74, supra note 17 at 40.

279 Normand Pettersen, stenographic notes, September 13, 2006 at 190.

280 Normand Pettersen, stenographic notes, September 13, 2006 at 189.

281 Normand Pettersen, stenographic notes, September 15, 2006 at 191-192.

282 A-19, supra note 18 at 31-33 and 37.

283 Normand Pettersen, stenographic notes, September 14, 2006 at 48.

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-

Validity of the interview

[246] The Tribunal would like to point out that, according to the experts, an interview is

valid if it has no shortcomings in terms of design, standardization or administration. For

example, subjectivity and errors can mar the validity of that selection stage.

[247] In this case, the reasons that the design, standardization and administration of

the interview were found to be deficient were explained in the preceding pages. Let it

suffice here to go over certain elements briefly. First, the favourable or unfavourable

comments on the candidates’ evaluation sheets were chosen by Sylvie Richard and

introduced subjectivity into the evaluation, just as the [TRANSLATION] “social

desirability” questions were. Second, the rating of [TRANSLATION] “rejected”, “B”, “A”

or “A+” attributed by Sylvie Richard to each candidate according to her impression was

a source of systematic error. Hence, the candidates’ responses to the questions asked,

particularly question 6, but also question 7, were evaluated in either a discretionary

manner or strictly according to the [TRANSLATION] “good responses” expected. Sylvie

Richard admitted in her testimony that a candidate who responded to question 7“Tell

me about a situation you found stressful”by saying that she found it stressful to be

late in the morning in taking her children to school did not give the type of response

expected.²⁸⁴According to Ms. Richard, if a woman considered such a situation stressful,

she would not be able to deal with the stressconsidered greaterinherent in the

position of network operator. That is a very subjective opinion, on the basis of which the

candidates were, however, likely to be more or less severely penalized.

[248] In addition, the questions themselves varied from one candidate to another. The

technical questions that Joan Dupont was asked particularly concerned plumbing,

whereas those that Nicole Trudel and Marie-Claude Côté were asked mainly concerned

electricity. Line Beaudoin had to respond to a simulation of emergency operations in the

event of an explosion, when, in fact, how to deal with that type of situation was taught

only after a year of internal training.

[249] According to expert Pettersen, the lack of standardization is not detrimental to

the validity of the interview, but only means that [TRANSLATION] “it can fluctuate. If the

interviewers are not sexist, that should not play against [the candidates]”.²⁸⁵But since it

would be a very thorny matter indeed to try to determine whether the interviewersin

this case, Sylvie Richard and Jean-Pierre Raymondwere or were not sexist, it is

undeniable that greater standardization of the interview would have ensured more

objectivity.

284 Sylvie Richard, stenographic notes, February 17, 2006 at 115.

285 Normand Pettersen, stenographic notes, September 13, 2006 at 195.

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[250] Bear in mind that the note-taking was also seriously deficient. Expert Jeanrie

believed that the form of evaluation checklist P-47 tainted the validity of the interview.²⁸⁶

The comments noted on P-47 about the victims in this case do not make it possible to

arrive at a valid conclusion:

[TRANSLATION]

There is no way to determine in advance why [the responses to] questions like

that were noted and, here again, once information not part of what is sought is

noted, an error slips into the judgment to be made because importance is given

to information not sought.²⁸⁷

[251] It is also troubling that, because of a [TRANSLATION] “hesitation about the

profile”,²⁸⁸a number of candidates were withdrawn from the selection process

retroactively after being invited to take the examinations²⁸⁹and some had even already

passed the theoretical examination and, in a number of cases, the practical

examination. Ms. Richard admitted that the retroactive withdrawal was subjective.²⁹⁰In

her report, expert Jeanrie explained that the retroactive elimination procedure

demonstrated the preponderant role given the interview, or rather the [TRANSLATION]

“profile” evaluated in the interview, whereas the interview left much room for

subjectivity.²⁹¹

[252] In short, the evidence as a whole clearly shows the many obstacles to the validity

of the interview and the great subjectivity of its design and administration.

-

Relevance of the interview

[253] The interview meets the criterion of relevance if the questions are geared toward

measuring knowledge, skills, aptitudes and qualifications related to the work or training

of a network operator. As expert Boulard summed it up: [TRANSLATION] “[we do not

have] the right, in an interview that is part of a selection process, to have questions or

content unrelated to the job”.²⁹²

[254] First, even before the connection between what the interview measures and what

is required for the position of network operator is examined, those requirements

themselves must be relevant. In that regard, the Tribunal will reiterate its conclusions

about the job description and job profile. It has been established that there was no

document such as a job description for the position of network operator at the time of

the facts at issue and that, therefore, job profile P-3, which gave the requirements for

the position, was not appropriate, considering that its requirements were not related to

286 Chantale Jeanrie, stenographic notes, February 15, 2005 at 69.

287 Chantale Jeanrie, stenographic notes, May 30, 2005 at 28-29.

288 P-6: document on the July 1995 recruitment; Sylvie Richard, stenographic notes, February 17, 2006

at 91-95.

289 A-19, supra note 18 at 46.

290 Sylvie Richard, stenographic notes, February 17, 2006 at 94.

291 P-43, supra note 10 at 33.

292 François Boulard, stenographic notes, June 19, 2006 at 38.

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the position, especially in terms of the personal qualities.²⁹³The relevance per se of the

qualifications sought is therefore in doubt. Since the interview was based on false

premises, it could not readily measure the elements essential to the job.

[255] Second, the Tribunal nevertheless will examine the connection between the

interview and the job, assuming this time that the related duties and requirements were

justified. According to expert Jeanrie, demonstration of such a link implies a comparison

and a correlation between the qualifications measured and the qualifications required to

hold the position and undergo the internal training. In her testimony, Sylvie Richard tried

to establish the connections between the questions or the themes underlying the

questions, and the elements sought, which Gaz Métro wanted to measure. Since Ms.

Richard was the architect of the interview, in terms of both its design and administration,

no witness was better placed to give an opinion on that matter.

[256] However, the Tribunal notes myriad differences between her testimony of March

15, 2005 and her testimony on February 9 and 17, 2006. On March 15, 2005, Ms.

Richard explained that the strengths and weaknesses noted on evaluation checklists P-

68 were related to the job. Questioned on the subject, she spontaneously established

connections between the interview questions and the profile elements sought. To do so,

she used glossary D-57, which defines the skills sought for the job. However, it was

adduced in evidence that the document belonged to her colleague François Messier

and that she herself never used it. In February 2006, she seemed to find it more difficult

to make the same connections.²⁹⁴Be that as it may, Ms. Richard’s testimony

demonstrated that several groups of questions apparently served to measure the same

characteristics.

[257] Noting that certain evaluation sheets P-68 contained an indication concerning the

candidate’s capacity to perform in the position of network operator, although that

capacity was not measured in the interview, expert Jeanrie wondered about the lack of

objectivity leading to that indication. In addition, many subjective elements, such as

qualities/shortcomings on evaluation sheets P-68, were not required for the job and

were also not found in the questions asked or inspired by them.

[258] Ms. Jeanrie tried at the hearing to conduct the exercise herself, i.e. to connect

the themes and the questions in checklist P-8 with the elements noted on evaluation

sheets P-68. For example, on Marie-Claude Côté’s sheet, Ms. Jeanrie found the

responses to seven of the questions asked; that does not cover all the questions related

to the job profile.²⁹⁵She doubted that the interview was exhaustive and noted that the

qualities evaluated did not correspond to those required. In her opinion, questions

[TRANSLATION] “overshot the mark” and did not justify the written comments on the

293 See sections 3.2.1.1 and 3.2.1.2 supra for an analysis of these issues.

294 Sylvie Richard, stenographic notes, March 15, 2005 at 131 et seq.; stenographic notes, February 17,

2006 at 114-125.

295 P-43, supra note 10 at 27-30.

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sheets.²⁹⁶Ms. Jeanrie wondered about the questions for which no response appeared

on the evaluation checklist and concluded that was a shortcoming in the standardization

of the interview:

[TRANSLATION]

Was it because no notes were taken for those responses or was it because the

questions were not asked? It is impossible to say. But that leaves the possibility

that the questions were not asked, in which case, the situation definitely was one

of non-standardization, which, in an interview, is a source of significant error.²⁹⁷

[259] Expert Jeanrie also noted that the themes broached in the interview were not

restricted so as to correlate with the job requirements, a situation likely to confuse the

interviewers. According to her, for the interview process as a whole, the correlation

between the profile sought and the responses collected was inadequate.²⁹⁸

[260] In the opinion of expert Pettersen, only the critical and frequent elements were

representative of the employment and relevant to the interview.²⁹⁹That said, he felt that

the interview questions were indeed linked to the job. As to whether they measured

essential elements of the position of network operator, he believed that it was up to Gaz

Métro to decide.³⁰⁰He added that an interview cannot be absolutely perfect and that,

although the questions in this case were no doubt not the best ones possible, they were

still highly relevant.³⁰¹

[261] Furthermore, he disagreed with expert Jeanrie’s statement that the qualities

sought were related more to a white-collar position than to a blue-collar one. For that

issue, he relied on the people in charge at Gaz Métro, who knew the position well and

were therefore able, in his opinion, to judge the relevance of requiring those qualities.³⁰²

He also explained that interests in themselves are not such poor predictors. Rather,

according to him, inventories of interests are to be avoided. However, Gaz Métro did not

use such inventories, but measured interests through the interview, which is entirely

proper.³⁰³

[262] Expert Boulard felt that the interview definitely had a number of shortcomings,

but that it was still relevant, and that Mr. Pettersen was in the best position to measure

the impact of the shortcomings.³⁰⁴But Mr. Pettersen relied on Gaz Métro’s wisdom.

296 Chantale Jeanrie, stenographic notes, May 30, 2005 at 12-18.

297 Chantale Jeanrie, stenographic notes, May 30, 2005 at 30.

298 Chantale Jeanrie, stenographic notes, May 30, 2005 at 29.

299 See in particular Normand Pettersen, stenographic notes, September 15, 2006 at 224-225 and 245-

246.

300 Normand Pettersen, stenographic notes, September 15, 2006 at 245-249.

301 Normand Pettersen, stenographic notes, September 13, 2006 at 193; September 15, 2006 at 197-

198.

302 Normand Pettersen, stenographic notes, September 14, 2006 at 38-40.

303 Normand Pettersen, stenographic notes, September 14, 2006 at 51-53.

304 D-74, supra note 17 at 50-51.

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[263] In short, evaluation of relevance does not consist solely in associating, as Gaz

Métro did, two words or combinations of words that are part of the duties, requirements

and selection stages. In this case, although certain links existed between the content of

the questions and the elements of the job profile, they were insufficient.

-

Weighting of the interview

[264] As previously defined, the criterion of weighting of the interview concerns the

relative weight to give each qualification. Concretely, it is a matter of objectively

determining what value should be given to a given qualification or quality according to

whether it is very or hardly essential and frequent in the position of network operator.

The weighting must be applied to various elements measured in the interview, whether

they are considered separately or grouped by theme. Second, weighting also implies an

interrelation between the different stages in the selection process. For example, a

different value can be attributed to the interview, the theoretical examination and the

practical examination, according to what they each respectively evaluate.

[265] It is not contested that Gaz Métro did not attribute beforehand a point to each

question or a value to different types of responses to each question, so as to adequately

measure the most important characteristics. It is also obvious that, since a candidate

could be eliminated at each selection stage, the stages were not weighted with respect

to one another.

[266] For expert Pettersen, the absence of weighting of the questions in the interview

posed no problem. In any case, it is rare for interview questions to be weighted, except

in the case of a situational or behavioural interview.³⁰⁵

[267] Expert Chantale Jeanrie explained that technical qualifications contribute much

more to a network operator’s duties. Therefore, she believed that the number of

personal qualities mentioned in the job profile and examined in the interview was

excessive and introduced a high degree of subjectivity into the process.³⁰⁶In Line

Beaudoin’s and Marie-Claude Côté’s interviews, the qualities evaluated were not those

sought.³⁰⁷

[268] When characteristics other than those sought are noted, they are given

importance and are elements not measured in other candidates. Taking different

qualities into consideration or eliminating relevant qualities demonstrates the subjectivity

that permeates the interview and makes it impossible to weight the questions by theme.

[269] So according to the experts’ opinions, the predictive qualities measured in the

interview are considerably reduced if adequate weighting is not done. In this case, Gaz

Métro’s interview was not weighted, which helped to attribute a disproportionately

305 Normand Pettersen, stenographic notes, September 13, 2006 at 205.

306 Chantale Jeanrie, stenographic notes, February 15, 2005 at 59-61.

307 See P-68: bundle of evaluation sheetsGaz Métro employment applications.

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preponderant value to the notion of [TRANSLATION] “profile”, which itself was neither

weighted nor adequately defined.

3.3.3.5 Conclusions regarding the pre-interview

[270] The pre-interview did not make it possible to fairly evaluate the candidates, who

did not all undergo the same process under the same conditions, since they were not

asked the same questions and their responses were not evaluated the same way. Merit

evaluation requires that the qualifications of candidates be measured by standardized

means that limit subjectivity. If the criteria of validity, relevance and weighting proper to

a quality interview were not respected, it must be concluded that the interviews

conducted by Gaz Métro had no significant predictive value. Hence, certain candidates

were eliminated at the interview stage without regard to their actual qualifications. That

said, it is not up to the Tribunal to specifically suggest what Gaz Métro’s interview

process should have been. The Tribunal analyses the practices related to the interview

and exposes the interview’s shortcomings solely because that is the only way to

determine whether that selection instrument had discriminatory effects on the women or

not.

[271] The experts, mainly Chantale Jeanrie, Normand Pettersen and Louis

Laurencelle, tried to prove through statistics whether there were or were not

discriminatory biases.

[272] Expert Jeanrie used the so-called “four-fifths rule” of the American statistical

method drawn from the Uniform Guidelines on Employee Selection Procedures.³⁰⁸

According to that rule, there is a discriminatory effect when the ratio of the success rate

of the disadvantaged groupwomenis 80% below the success rate of the majority

groupmen.³⁰⁹

[273] Expert Pettersen disapproved of that method and added that it must not be

interpreted rigidly and absolutely, and was not a recognized professional standard in

psychometrics.³¹⁰He also criticized expert Jeanrie for combining samples that could not

be compared, in order to obtain a larger sample.³¹¹He admitted, however, that he did

not know whether Ms. Jeanrie had made adjustments allowing the samples to be

adequately compared.

[274] Use of the four-fifths rule was particularly criticized by expert Laurencelle, who

was not aware of it before the hearing since it is not used in statistics. He considered

the method less rigorous and honest than a statistical test.³¹²Furthermore, he noted

308 D-86: Uniform Guidelines on Employee Selection Procedures (1978).

309 P-43, supra note 10 at 3; Chantale Jeanrie, stenographic notes, February 15, 2005 at 21 et seq.

310 Normand Pettersen, stenographic notes, September 12, 2006 at 208-209 and 260-261; Normand

Pettersen, stenographic notes, September 13, 2006 at 21.

311 Normand Pettersen, stenographic notes, September 14, 2006 at 9.

312 Louis Laurencelle, stenographic notes, December 8, 2006 at 136-137.

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that Ms. Jeanrie did a certain calculation in statistics improperly and he made the

appropriate corrections.³¹³He believed that Ms. Jeanrie wrongly used the term

[TRANSLATION] “adverse impact”, which she related to discrimination, whereas the

term [TRANSLATION] “bias” was more appropriate in statistics.³¹⁴

[275] Referring to the work done by Mr. Pettersen, expert Laurencelle said that his

treatment of the data was generally adequate despite a few calculation errors and that,

if the data were accurate, the results arrived at were correct. Correcting Mr. Pettersen’s

calculations according to another statistical hypothesis test, Mr. Laurencelle established

that there was no bias whatsoever.

[276] Expert Laurencelle also reviewed the analyses and conclusions of experts

Jeanrie and Pettersen, and made the necessary corrections. According to him, the

basic proposition underlying the search for bias is that the context is [TRANSLATION]

“honest”, i.e. that [TRANSLATION] “the candidacies of the men and women were

spontaneous, that relatively more competent men (or women) were not pre-selected

and that, a priori, each candidate, regardless of sex, had an equal chance to qualify”.³¹⁵

[277] However, when informed, in cross-examination, of the requirement that the

candidate have a class 3 driver’s licence and of the numberextremely unequalof

men and women who held it, he felt that the analysis changed:

[TRANSLATION]

Q – If I told you that there were eight hundred sixty-five (865) women for ninety-

seven thousand seven hundred thirty-three (97 733) men …

A – Um-hum.

Q –... who hold a class 3 driver’s permit, that that was a requirement for applying

for the position, do you agree that the recruitment pool was disproportionate?

A – Well, if the recruitment pool was defined by those criteria, that is certainly not

comparable.³¹⁶

[278] In short, experts Jeanrie and Pettersen had more or less the same mandate, i.e.

to analyse the selection process from the standpoint of psychometrics and personnel

selection, and interpret the failure rate for women in the process for the years at issue.

[279] As regards Ms. Jeanrie, whose expertise is more in qualitative evaluation, the

Tribunal believes that, despite her assurance in testifying, the observations on which

she based her testimony from a statistical standpoint were not of great scientific

accuracy. The quantitative methodology she used, namely, the four-fifths rule, was not

convincing, given particularly that it is an American rule not accepted in Québec

313 Louis Laurencelle, stenographic notes, December 8, 2006 at 172-173.

314 Louis Laurencelle, stenographic notes, December 8, 2006 at 71-73.

315 D-93B, supra note 19 at 1.

316 Louis Laurencelle, stenographic notes, December 12, 2006 at 62.

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statistics. Furthermore, Ms. Jeanrie grouped the data from the competitions of 1995,

1996 and 1997 in order to increase the size of her sample, instead of analysing them

separately, for which expert Laurencelle in fact criticized her.³¹⁷The Tribunal concludes

that there was a certain lack of rigour in her quantitative analysis of the selection

process and it therefore views her conclusions in that area with caution.

[280] As for expert Pettersen, who specializes in the quantitative approach, he did not

clearly present the different reasoning that led him to conclude there was an absence of

bias and therefore did not really enlighten the Tribunal. In his testimony, he retracted

and contradicted his statements several times, not to mention that his comments

sometimes exceeded the limits of his competence, particularly regarding discrimination.

The Tribunal is therefore reluctant to base its conclusions on that expert’s results.

[281] Of the three experts, Mr. Laurencelle was most competent and had the greatest

expertise in statistics. He corrected, without much difficulty, the errors made by

Chantale Jeanrie and Normand Pettersen, and explained them well. His testimony was

clear, precise and articulate, and he did not hesitate to acknowledge, where required,

the limits of his expertise and mandate. The Tribunal therefore gives greater credibility

to his testimony. It particularly notes from it that the pool studiedthe samplewas too

limited for the analyses to be conclusive. Expert Laurencelle concluded his report as

follows:

[TRANSLATION]

[J]udging bias in the whole of the data considered must, above all, be based on a

detailed examination of the cohorts and of the selection stages each underwent.

The largely arbitrary nature of the comprehensive indices (in weighted and

unweighted average modes) and the presence of [TRANSLATION] “paradoxical”

effects provide a foundation that lends little credibility to the judgment.³¹⁸

[282] Even if the sample had been larger and had fostered more conclusive results, the

many changes made to the data produced by Gaz Métro in terms of the selection

process weaken the conclusions that could be drawn in the case from the statistical

evidence.

[283] Furthermore, keep in mind Radek,³¹⁹in which the British Columbia Human

Rights Tribunal handed down a decision concluding that a system was discriminatory,

but did not base the decision on statistical evidence and indicated that such evidence,

although useful and reliable, is not essential to proving systemic discrimination.

[284] Hence, the Tribunal bases its conclusions on the qualitative rather than the

quantitative analysis of the interview. In this case, the evidence and analyses of the

experts showed that the interview was poorly designed, poorly standardized and poorly

administered. In the opinion of many, those shortcomings were detrimental to the

317 Louis Laurencelle, stenographic notes, December 8, 2006 at 222.

318 D-93B, supra note 19 at 4.

319 Radek, supra note 59.

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candidates because they allowed long-standing biases against women to creep into the

interview process. One need only think of the evaluation of personal qualities and the

treatment given work experience in a non-traditional environment. The analysis of the

interview process and of the personal experience of each victim shows that the process

was largely coloured by the bias according to which women are unfit to hold such

positions as network operator that are traditionally reserved for men. Considering that,

the value given the experience of some of the victims was negligible.

[285] It was not Gaz Métro’s use of an interview as a selection tool that was

problematic in and of itself, but rather the fact that the tool, as designed, conveyed

stereotypes about women in non-traditional environments. Because of that, the

interview was a breeding ground for discrimination based on sex, considering above all

its lack of structure and of standardization.

[286] What is more, having noted as of 1996 that the measure was not yielding the

anticipated results,³²⁰Gaz Métro ceased using the pre-interview without, however,

further questioning the causes of its mitigated success.

[287] The preliminary nature of the interview for women only, which resulted in the

premature elimination of some of them, coupled with the discretionary evaluation of their

performance, additional requirements not imposed on men and the retroactive

withdrawal of female candidates from the selection process on the basis of a

[TRANSLATION] “hesitation about the profile”—that whole system contributed to the

disproportionate exclusion of the women from the position of network operator. So we

have here elements that, added together, reinforced one another until they had a real

exclusionary effect on women. That situation was undeniably related to sex. Therefore,

the disproportionately exclusionary effect was discriminatory for women.

[288] Gaz Métro contended that, even if the Tribunal concluded that the interview was

discriminatory, the discrimination was justified, according to the requirements set forth in

Meiorin. Hence, I should apply the first stage of the test established by the Supreme

Court and, to that end, determine whether the pre-interview and its questions were

rationally connected to the objective of recruiting more qualified women for the position

of network operator.

[289] Gaz Métro’s witnesses, mainly Jean-Pierre Raymond and Sylvie Richard,

justified shifting the interview in 1995 to before the examinations by the wish to better

know more about the women interested in holding the position of network operator and

by the determination to provide them with the opportunity to demonstrate their

capacities. Both witnesses considered that the personal qualities required were relevant

to the duties of network operator and that their evaluation in each candidate was

justified.

320 Sylvie Richard, stenographic notes, February 9, 2006 at 192-193; Jean-Pierre Raymond,

stenographic notes, January 27, 2006 at 66-67.

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[290] In the Tribunal’s opinion, given the known context of under-representation of

women in the position of network operator at Gaz Métro and considering the avowed

goal of the company to hire women on a priority basis, the very decision to subject the

candidates to a pre-interview, a stage at which they could be eliminated, is difficult to

justify. It is hard to understand how the addition of a preliminary disqualifying stage

applicable solely to the very group that the company apparently sought to encourage to

apply could mean that more members of the group would be hired. In addition, if the

intrinsic process of the interview and its questions are examined more specifically, it is

even more obvious that the interview was not rationally connected to the objective of

hiring women on a priority basis. Let me mention, for example, the inaccurate and highly

subjective evaluation of the women’s non-traditional experience, qualifications,

conception of integration into a male environment and vision of what constitutes a

stressful situation, the evaluation having been carried out so as to exclude the women

who did not respond in the only [TRANSLATION] “good” way wanted.

[291] Concluding that the interview was not rationally connected to the objective

pursued, the Tribunal does not believe it is necessary to pursue the analysis of the

second stage of Meiorin, namely, the defence of undue hardship stemming from the

accommodation measures sought. Therefore, the interview as a selection stage was

discriminatory and was not justified given the criteria defined in Meiorin.

3.3.4 Theoretical examination

3.3.4.1 Procedure for the theoretical examination

[292] Once the interview stage was successfully completed, the candidates then took

the theoretical examination, a written examination divided into several sections covering

general knowledge, mathematics, logic, mechanics, physics and electricity.³²¹It was

prepared in 1992 by Robert Bédard, Serge Charbonneau, Boris Sauvé and Jean-Pierre

Raymond on the basis of questions used by Gaz Métro since 1982.³²²

[293] In his testimony, Robert Bédard explained that the [TRANSLATION]

“measurement and evaluation” part of his work accounted for roughly 10% of his duties

and he admitted that he was not an expert in the subject.³²³He took courses in

education in the workplace but did not complete his certificate.³²⁴

[294] Mr. Bédard said he made changes to about 20% of the examination for each

recruitment in order to offset possible leaks.³²⁵Gaz Métro no longer has the exact

321 P-9: qualification examinations – network maintenance trainees, and D-32: results provided by Mr.

Bédard and Mr. Aubé.

322 Robert Bédard, stenographic notes, January 16, 2006 at 240-241.

323 Robert Bédard, stenographic notes, January 18, 2006 at 83.

324 Robert Bédard, stenographic notes, January 24, 2006 at 153-154.

325 Robert Bédard, stenographic notes, January 16, 2006 at 281.

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version of the examination used in June 1995, although subsequent versions (P-9A and

P-9B) are very similar to it.³²⁶

[295] Mr. Bédard also explained that, in 1997, the number of questions was increased

without the total weighting of the examination being increased, so as to give the

candidates an advantage.³²⁷He considered the written examination to be a work in

progress.³²⁸However, it seems that the correction key was not systematically adapted

so as to be consistent with the updated examination. Furthermore, although two

questions were cancelled after the candidates took the theoretical examination in July

1995,³²⁹it appears that some markers nevertheless graded them. Shirley Thomas

obtained 7/10 on question 39,³³⁰which was not supposed to be graded. Since the

points for that wrongly graded question were not included in the total mark,³³¹it cannot

be assumed that the errors had significant consequences.

[296] Calculators were prohibited in the examination, although many calculations

involved fractions and decimals,³³²whereas the use of calculators was always allowed

in Gaz Métro’s internal training.³³³What is more, Mr. Bédard mentioned that calculators

were allowed in theoretical examinations other than that for the position of network

operator.³³⁴

[297] Another measure put the candidates at a disadvantage: the so-called

[TRANSLATION] “negative” grading of the examination, according to which the markers

had to subtract points for incorrect answers. Mr. Bédard said that that type of grading

was used only for objective questions, so as to offset chance, and accounted for only

5% to 6% of the examination. Gaz Métro abandoned the negative grading practice in

1997.

[298] Some candidates explained that, when they were called to sit the theoretical

examination, they were advised to review their mathematical knowledge beforehand.³³⁵

It is appropriate to question the reason for Gaz Métro’s recommendation. Did the

company believe that the candidates did not have sufficient theoretical knowledge in the

subject to pass the examination or did it want to warn them that the examination was at

a level above Secondary V knowledge?

326 Robert Bédard, stenographic notes, January 17, 2006 at 91-101; stenographic notes, January 18,

2006 at 165-168.

327 Robert Bédard, stenographic notes, January 18, 2006 at 54-56.

328 Robert Bédard, stenographic notes, January 17, 2006 at 105-106.

329 Robert Bédard, stenographic notes, January 18, 2006 at 51-53.

330 P-69: admission examinations for employment with Gaz Métro.

331 D-32.1: Mr. Bédard’s results.

332 Robert Bédard, stenographic notes, January 18, 2006 at 68; stenographic notes, January 24, 2006 at

30-31.

333 Robert Bédard, stenographic notes, January 24, 2006 at 30.

334 Robert Bédard, stenographic notes, January 24, 2006 at 34-35 and 190-191.

335 See in particular Marie-Claude Côté, stenographic notes, February 2, 2005 at 15; Johanne Bolduc,

stenographic notes, January 31, 2005 at 42.

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[299] Johanne Bolduc testified that, about a week after the interview, Sylvie Richard

called her to inform her that she was considered to [TRANSLATION] “have the profile”

and could take the written examination. Ms. Bolduc admitted finding the examination

difficult, especially the calculation of decimals and fractions to be done without a

calculator.³³⁶She failed the examination. Ms. Richard informed her at the time that her

main weaknesses seemed to be in electricity and she advised her to study that subject

before taking the written examination again. Ms. Bolduc had a diploma of secondary

studies in technical drafting and a diploma of college studies in civil engineering.³³⁷She

therefore reviewed her secondary school course notes and her Cegep course notes in

electricity, as well as in physics and mathematics. She took the examination again in

1996, and failed it again. On her third try, in 1997, she passed it, without having taken

additional courses since 1995.

[300] Nicole Trudel has a diploma of vocational studies (DVS) in the driving of heavy

vehicles. During her training, she particularly took courses in mechanics. She too failed

the written examination in 1995. She tried again in 1997, but without success.³³⁸

[301] Tania Plourde has training in the installation of electrical power lines. She failed

the theoretical examination with a grade of 34%. Sylvie Richard told her again, however,

that she had a good profile for the position of network operator and suggested that she

take mathematics and physics courses in order to increase her chances of passing the

next time. Ms. Plourde followed her advice and registered at the Lakeshore/Baldwin-

Cartier school, where she took courses full time and did very well in them.³³⁹At the

same time, she obtained her class 2 driver’s licence. In addition, her employment

insurance officer agreed to extend her benefits so that the costs of the training would be

covered. She called Sylvie Richard several times to inform her of the steps she was

taking and her efforts, but Ms. Richard told her each time that it was not possible to take

the examination again.³⁴⁰

[302] Shirley Thomas has a diploma of college studies in petrochemistry. In 1995, after

the pre-interview, she was told that she had the ideal profile for the position of network

operator and that she was eligible to take the theoretical examination. Her grade was

52%. She took the examination again in 1996 and obtained the passing grade.

However, since she failed the practical examination stage, she had to take the written

examination over in 1997 in order to be reinstated in the selection process. She failed

on that third try.³⁴¹

[303] Marie-Claude Côté has training in the installation of electrical power lines.

According to Gaz Métro, she had the ideal profile. She failed the theoretical examination

336 Johanne Bolduc, stenographic notes, January 31, 2005 at 40.

337 Johanne Bolduc, stenographic notes, January 31, 2005 at 53.

338 Nicole Trudel, stenographic notes, February 1, 2005 at 107.

339 P-18: report card.

340 Tania Plourde, stenographic notes, February 1, 2005 at 162-173.

341 Shirley Thomas, stenographic notes, February 8, 2005 at 86, 95-96 and 99.

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on her first try, in 1995. As in the case of Tania Plourde, Ms. Richard advised Ms. Côté

to take additional courses in mathematics and physics. She then registered at the

Lakeshore/Baldwin-Cartier school and informed her employment insurance officer about

her efforts to obtain a position as a network operator at Gaz Métro. That training met

with success.³⁴²In 1996, she failed the written examination a second time. She finally

passed it in 1997, on her third try.³⁴³In her case, it was later, at the medical examination

stage, that her selection was thwarted.³⁴⁴

[304] According to expert Pettersen’s report, 78% of the women and 72% of the men

failed the theoretical examination in the recruitment competitions of 1995 to 1997.³⁴⁵

The Tribunal cannot help but be surprised by such a high rate of failure on an

examination that was supposed to measure basic Secondary V knowledge, whereas

those who took the examination all had that diploma and, in some cases, even more

advanced training.

3.3.4.2 Evaluation of the theoretical examination

-

Validity of the theoretical examination

[305] The validity of a selection test, as I mentioned earlier, depends on its design,

standardization and administration. The theoretical examination was designed by

Robert Bédard and Serge Charbonneau, and during the period at issue, Gaz Métro

never had it validated by experts outside the company. It seems that the instructions

given to markersor their understanding of themwas sometimes deficient in that

some examination questions were marked when they should not have been, as Mr.

Bédard had decided to cancel them.

[306] Furthermore, certain errors were found in the questions themselves and in the

correction key for the written test. For example, in question 17, an illustration shows an

object weighing 380 kilograms, whereas the question says that the object weighs 360

kilograms,³⁴⁶which can easily mislead candidates. Informed of that irregularity during

his cross-examination, Robert Bédard said there was indeed an error, but if candidates

systematically had given either of the correct responses possibleaccording to the

basic premise chosen, either 360 or 380 kilogramshe would have investigated and

noted the source of the problem.³⁴⁷

342 P-14: adult education report card of Marie-Claude Côté (1995-1996).

343 Marie-Claude Côté, stenographic notes, February 2, 2005 at 16-20, 38-39 and 45-47.

344 See section 3.3.6.

345 P-84: personal notes of Normand Pettersen at 46.

346 P-9A: qualification examination – Version B – network maintenance trainee – parts 1 and 2 (1995) at

10.

347 Robert Bédard, stenographic notes, January 25, 2006 at 105-106.

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84

[307] Question 7³⁴⁸also poses a problem because the expected response is, in fact,

not the correct one.³⁴⁹

[308] The Tribunal also notes certain disparities in the marking of the same questions.

For example, on the 1996 and 1997 exam papers of Danielle Varin, the grade for the

first question differs from one paper to the other, whereas the responses are almost

identical. That question required the candidate to define in a few words the functions of

the 10 listed parts of a motor-driven vehicle.³⁵⁰In the 1996, Ms. Varin described the

function of the transmission as follows: [TRANSLATION] “gives power to the wheel”. In

the 1997 examination, she wrote: [TRANSLATION] “makes the wheels turn”. Her

response was deemed acceptable in 1996 but not in 1997. Conversely, in 1996 she

responded that a battery serves as an [TRANSLATION] “energy-storage reservoir” and

she did not receive the corresponding points, whereas in 1997, her response was

[TRANSLATION] “stores energy”, which was considered a good response.³⁵¹The

Tribunal noted those anomalies by simply skimming the material and went no further in

its comparisons. However, those very simple flaws, which alone are perhaps not

disastrous, still cast doubt over the validity of the marking of the examinations and,

therefore, over the candidates’ results in that stage.

[309] Considering those observations, the validity of the theoretical examination is

uncertain.

-

Relevance of the theoretical examination

[310] The relevance of the written examination is established by demonstrating that it

measures the knowledge and aptitudes required for the job or training. Here is where

the correlation between the requirement of Secondary V and the examination questions,

as well as the Commission’s claim that the examination was at a level higher than

secondary studies, will be examined.

[311] In 1997, Gaz Métro gave Lucien Aubé, professor at the department of education

sciences at the Université du Québec à Montréal, a mandate to review the hiring

practices and tools, and to comment on the results of the examinations given in 1995.

Yves Ste-Marie teaches physical sciences and chemistry in secondary school. Mr. Aubé

asked Mr. Ste-Marie for his thoughts on the Gaz Métro qualification examinations, and

based his report for Gaz Métro on Mr. Ste-Marie’s responses.

[312] In his comments for Mr. Aubé, Mr. Ste-Marie wrote that Gaz Métro should allow

the use of a calculator and provide a list of useful formulas, since secondary school

students are entitled to them. He also pointed out the questions for which a calculator

and the formulas would have been particularly necessary. He commented on each

348 P-9B: qualification examination – Version A-2 – network maintenance trainee – parts 1 and 2

(February 1997).

349 Robert Bédard, stenographic notes, January 25, 2006 at 111-113.

350 P-9B, supra note 348.

351 P-69, supra note 330.

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85

question, pointed out in some cases that the response in the correction key was

incorrect, suggested changes, noted the questions that were too hard and identified

those above a basic Secondary V level.³⁵²According to his testimony, some questions

refer to notions learned in Cegep or to long out-of date education programs. He

indicated the questions that, in his opinion, should have been withdrawn and those that

should simply have been better written. He concluded the following:

[TRANSLATION]

After commenting on each question and dissecting the examination to a certain

extent, I believe that the problem lies in the fact that it is difficult to give such an

examination to a heterogeneous group of people with very different educational

backgrounds.³⁵³

[313] In his analysis of the relevance of the theoretical examination, Mr. Aubé

concluded that, to be able to answer the examination questions, one must have a

Secondary V diploma including a full science program, which he called a

[TRANSLATION] “strong Secondary V”.³⁵⁴According to him, the examination was at the

limit of the skills taught in Secondary V. He proceeded in the same way as Mr. Ste-

Marie and commented on the examination questions, in addition to giving each one a

difficulty rating and a discrimination rating. His observations matched those of Mr. Ste-

Marie as regards the use of a calculator, the formulas to be provided, the errors in the

correction key and the excessively high level of the examination. He nevertheless

concluded that the examination had no bias and gave all candidates an equal

opportunity to pass.

[314] On the basis of Mr. Aubé’s and Mr. Ste-Marie’s observations, certain questions

on the written examination seemed to place at a disadvantage young candidates and

those who had studied recently. In particular, imperial measures were used, whereas

metric measures had been used in the school system for over ten years at the time of

the facts at issue. In addition, one question implied knowledge of a 1981 motor

carburetor. In fact, if we add up their comments about questions that were improperly

formulated, incomprehensible or at a level above Secondary V, out of the 40 original

questions, only a few were acceptable and appropriate.

[315] The various experts heard by the Tribunal stated that only basic knowledge in

electricity, mechanics, mathematics, physics and logic was required in order to pass the

theoretical examination. Those experts, be they Ms. Jeanrie or Messrs. Boulard or

Pettersen, did not themselves verify the accuracy of that statement, but referred to what

Mr. Bédard told them.³⁵⁵Moreover, experts Jeanrie and Pettersen stressed that they

could not conclude the theoretical examination was relevant to the job and training.³⁵⁶

352 A-8, supra note 175.

353 A-8, supra note 175 at 8.

354 D-14, supra note 175 at 2.

355 See in particular Normand Pettersen, stenographic notes, September 13, 2006 at 111.

356 A-19, supra note 18 at 25; P-43 at 25.

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[316] In short, the relevance of the theoretical examination was compromised because

it was at a level above Secondary V, whereas the employment of network operator was

an entry-level position, and because Gaz Métro did not subject the examination to

criterion-related validation. That validation consists in verifying, once an employee has

held the position of network operator for a certain period of time, whether the

employee’s results on the theoretical examination adequately predicted his or her on-

the-job performance. Since Gaz Métro did not carry out that validation, it is difficult for

the company to say that the examination was relevant in term of the duties to be

performed in the job, especially considering the importance of the internal training that

enabled trainees to obtain the position of network operator.

-

Weighting of the theoretical examination

[317] Expert witness Chantale Jeanrie remarked that the questions were not attributed

the same number of points. She believed that it is generally more prudent to weight the

questions and sections of the examination equally, unless different weighting is justified.

She admitted she did not know whether such justification existed in this case, but she

explained that, if not, the Gaz Métro’s weighting was a source of error concerning the

skills to be measured.³⁵⁷

[318] As I alluded to earlier,³⁵⁸weighting also means, on a broader scale, that the

importance and weight of one stage in the selection process compared with another are

put into perspective, which Gaz Métro did not do in this case since candidates could be

eliminated at each stage.

[319] Accordingly, the weighting of the theoretical examination was inadequate.

3.3.4.3. Bennett test

[320] Some questions were taken from a mechanical aptitude test known as the

Bennett test.³⁵⁹In fact, roughly 15% of the questions in the theoretical examination

given by Gaz Métro were from that test.³⁶⁰The test places women at a disadvantage

and they do not do as well on it. A warning to that effect is found in the test manual:

The differences were not only statistically significant, but of such size as to have

practical meaning. Moreover, the differences between the means of the sexes

increased as grade level increased. Thus, when using the BMCT [Bennett

Mechanical Comprehension Test] one should expect differences between the

scores of male and female groups. … With expected differences in test scores

due to the sex of the examinee, use of BMCT combined group norms in selection

decisions may exacerbate adverse impact on females.³⁶¹

357 P-43, supra note 10 at 22-23.

358 See section 3.3.3.4 supra for the explanations.

359 A-17: Bennett Mechanical Comprehension Test.

360 A-19, supra note 18 at 25.

361 A-17, supra note 359 at 30.

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[321] In 1984, the Canadian Human Rights Tribunal, in the ruling in the AFT case,³⁶²

which was later upheld by the Supreme Court,³⁶³put the relevance of the Bennett test

into perspective. Let me cite here the following passage:

However, this does not mean that the Bennett test is never appropriate. … Thus

it appears that the Bennett test measures either abilities that are much higher

than what is required for unskilled entry-level jobs at Canadian National, or

knowledge that can be acquired on the job. The job tasks performed have never

been clearly defined in the past, so it has not been possible to validate the

Bennett test.

The method indicated by the experts for validating this test is called “criterion-

related validity,” which verifies the correspondence between the score obtained

on the test and the employee’s performance on the job once he has become

accustomed to it. …

CN has never validated its test. ... To determine whether the Bennett test is valid

for a particular job, it would first be necessary to carry out a job analysis. …

In conclusion, we believe that use of the Bennett test for entry-level positions not

requiring special qualifications constitutes prima facie discrimination and is not

justifiable on the basis of the requirements of the jobs applied for.³⁶⁴

[322] Here is the order rendered by the Canadian Tribunal regarding the Bennett test:

CN shall immediately discontinue the use of the Bennett test for entry-level

positions other than apprentice positions, and, within one year of the time of this

decision and for the same positions, shall discontinue all mechanical aptitude

tests that have a negative impact on women and are not warranted by the

aptitude requirements of the positions being applied for.³⁶⁵

[323] According to expert Jeanrie, there are too few studies of the Bennett test to

determine whether the differences in the results observed between men and women

stem from a bias or from a normal representation of their respective qualifications.

However, mere proof of those differences justifies, in her opinion, assessing the merits

of the test’s use. She added that the interpretation of such a test requires at least that

the evaluator be trained to some extent in interpreting psychometric tests, which did not

seem to be the case here.³⁶⁶

[324] As for expert Pettersen, he admitted that women’s results are not as good as

men’s on the Bennett test. In his opinion, the differences do not represent a bias since

women generally have less mechanical and spatial aptitude than men, and mechanical

362 The AFT case, supra note 35.

363 Action travail des Femmes, supra note 27.

364 The AFT case, supra note 35, paras. 19883-19885 and 19888; emphasis added.

365 Ibid. at para. 20030.

366 P-43, supra note 10 at 26.

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aptitude measured by the questions on the Bennett test is required for employment as a

network operator.³⁶⁷

[325] Expert Boulard felt that the use of the Bennett test posed no problem since its

content had already been validated and it measured the mechanical aptitude required

for the position of network operator.³⁶⁸

[326] Questioned about the Bennett test, Mr. Aubé said that the candidates with

practical mechanical knowledge could respond quite readily to the test questions.³⁶⁹

[327] In Action Travail des Femmes, Canadian National had used the Bennett test in

full without demonstrating that it adequately evaluated the qualifications required for the

job. In the case at bar, although Gaz Métro had taken from the Bennett test questions

totalling about 15% of the points on the theoretical examination, the number of points

allocated to the questions was sufficiently significant to decisively affect the final result

of a female candidate, i.e. her success or failure.

[328] In this case, five of the seven victims qualified for that stage in the selection

process.³⁷⁰Marie-Claude Côté failed twice, in 1995 and 1996, at that stage and passed

on her third try. Shirley Thomas failed in 1995 and passed the following year but failed

again in 1997, when she had to take the theoretical examination again in order retake

the practical examination she had failed in 1996. Johanne Bolduc failed the theoretical

examination in 1995 and the following year. She passed on her third try, in 1997. Nicole

Trudel failed twice, in 1995 and 1997, while Tania Plourde failed in 1995 and did not

take the examination again.

[329] Although that evidence is negligible from a statistical standpoint, and although it

does not make it possible to infer a causal relationship between the questions drawn

from the Bennett test and the results of the victims, their experience still illustrates the

difficulty that the candidates for the position of network operator had in passing the

theoretical examination given by Gaz Métro. Also considering that the evidence as a

wholes established preponderantly that the questions drawn from that test clearly

placed the women at a disadvantage, given that their mechanical knowledge was

generally more limited than that of the men, the Tribunal concludes that the use, in the

theoretical examination, of questions drawn from the Bennett test had a

disproportionately exclusionary effect on the women and that, as such, it contributed to

systemic discrimination against them in employment.

[330] To justify use of the test despite its discriminatory effects on women, Gaz Métro

had to demonstrate, first, that its use made it possible to adequately measure the

367 A-19, supra note 18 at 25-27; Normand Pettersen, stenographic notes, September 13, 2006 at 155-

158.

368 D-74, supra note 17 at 33.

369 Lucien Aubé, stenographic notes, May 30, 2005 at 152-156.

370 It will be recalled that Line Beaudoin and Joan Dupont were eliminated at the pre-interview stage.

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knowledge essential to the duties of the position of network operator. Like the Canadian

Human Rights Tribunal in the AFT case, I must, however, conclude that use of the

Bennett test was not justified in this case.

[331] First, as I said earlier,³⁷¹the duties of a network operator of the years at issue

were never clearly described. Hence, it is difficult to ensure that the Bennett mechanical

test, which clearly places women at a disadvantage, was valid in selecting the

candidates with the qualifications essential to the position of network operator.

[332] In addition, Gaz Métro never had recourse to criterion-related validation in order

to ensure that the results as a whole on the theoretical examination, and particularly in

the section containing questions taken from the Bennett test, were truly connected to

the performance of the candidates after being hired as network operators. Hence, the

Tribunal believes that Gaz Métro used a test that it knewor should have

knownplaced the women at a disadvantage, and it did not demonstrate a rational

connection between the duties of the position of network operator and the knowledge

measured by the questions drawn from the test.

[333] Although that conclusion suffices and it is therefore not necessary to also

examine the proportionality of the theoretical examination, bear in mind that, as in the

Canadian National case, the position of network operator is an entry-level position that

does not require any particular qualifications. Given this, the Tribunal wonders whether

the mechanical knowledge measured by the Bennett test was greater than the minimum

requirements to begin the job, considering that that knowledge can probably be

acquired in the two years of internal training.

3.3.4.4 Conclusions regarding the theoretical examination

[334] The choice of a qualitative rather than a quantitative analysis of the stages in the

selection process has been explained.³⁷²In that regard, all the conditions surrounding

the written examination for the years at issue, particularly the level of difficulty of the

examination questions, the negative marking, the prohibition on using a calculator and

the absence of a list of formulas, applied the same way to the men and women.

[335] At the same time, the examination questions from the Bennett test accounted for

some 15% of the points attributed to the responses and had a discriminatory

exclusionary effect on the women because their mechanical knowledge was more

limited than that of men. In the absence of evidence establishing the rationality of the

measure, Gaz Métro must accordingly modify the theoretical examination so as to

eliminate the questions with a discriminatory exclusionary effect on women.

371 See section 3.2.1 supra for an analysis of that issue.

372 See section 3.3.3.5 supra for the explanations.

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3.3.5 Practical examination

3.3.5.1 Procedure for the practical examination

90

[336] The practical examination was given in Boucherville, in a Gaz Métro warehouse

located near the company’s training centre. It was given by trainers, who also evaluated

performance on the exam. From 1995 to 1997, Robert Bédard, Serge Charbonneau,

Raymond Bissonnette and Pierre Bélanger performed those duties. Ronald Maise,

laboratory technician at the training centre during that period, installed the tools and

instruments required for the tests.³⁷³

[337] Generally speaking, the candidates who had passed the theoretical examination

took the practical examination. However, candidates who held an attestation of

vocational specialization (AVS) in the repair of natural gas-operated appliances from

institutions recognized by the ministère de l’Éducation were exempt from taking the

test.³⁷⁴

[338] According to the instruction manual for the evaluators of the practical

examination, the examination was aimed at measuring physical strength, manual skill,

mechanical skill and electrical skill (P-10). The six tests in the examination were as

follows:

[TRANSLATION]

(1)

Lift and carry a pneumatic drill over a distance of three metres, place the

drill end in a hole and return to the starting point without touching the

ground;

(2)

Dismantle into knocked-down parts and assemble, without joint

compound, a previously screwed 1½" union fitting;

(3)

(4)

Connect a water heater to a vertical, unsupplied pipe closed with a plug;

Cut and flair a straight piece of pipe and connect it to a fixed control

fitted with a propane adapter;

(5)

(6)

Connect an electrical circuit in a sequence of two switches in parallel

(series) operating two light bulbs in series (parallel);

Use a multimeter to measure the voltage and amperage, and select the

proper fuses.

[339] According to Robert Bédard, that version of the practical examination had been

in use since at least 1981.³⁷⁵It was reportedly not modified in 1995.³⁷⁶Mr. Bédard

373 Ronald Maise, stenographic notes, May 31, 2005 at 7 et seq.

374 Robert Bédard, stenographic notes, January 18, 2006 at 90-98.

375 Robert Bédard, stenographic notes, January 17, 2006 at 49.

376 Robert Bédard, stenographic notes, January 17, 2006 at 107-10.

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indicated that, for very good candidates, additional, more advanced operations could be

added.³⁷⁷In the same case, the evaluator could also interrupt the test.³⁷⁸Instruction

manual P-10 in fact mentioned those possibilities.

[340] The manual also indicated that a candidate’s grade on a test depended more on

the way the candidate proceeded than on the result obtained, even if the result was

excellent. Furthermore, the time allotted to each test was clearly established and was

decisive in the grading. The candidates were not informed, however, that they had a

limited amount of time in which to complete the tests and they therefore were not

concerned with acting quickly.

[341] In 1997, Johanne Bolduc took the practical examination but failed. During it, she

took all her time so as to do the tests well, as she did not realize that going slowly was

detrimental to her. She explained that, in such an examination, she did not dare to ask

the evaluator questions and she believed that, if the time counted, she would be so

informed.³⁷⁹She failed with a grade of 35% and, according to the evaluator’s

comments, she had particular difficulty with electricity.³⁸⁰The evaluator recommended

that, in anticipation of her taking the examination again, she buy a small electricity kit at

Radio Shack in order to familiarize herself in a simple way with electrical circuits.³⁸¹

[342] Shirley Thomas took the practical examination in 1996. She was given the wrong

test, the one for service employees rather than the one for network operators.³⁸²The

practical examination for the two positions overlapped, but the examination for network

operators dealt with mechanics and electricity in a proportion of about ⅔ to ⅓, whereas

the reverse was true in the case of the examination for service employees.³⁸³

[343] For the examination, she brought her own gloves and tape measure, but was told

their use was prohibited because all the equipment required was provided. She realized

that she would have no gloves at her disposal.³⁸⁴Although she ultimately passed the

examination, evaluator Serge Charbonneau wrote [TRANSLATION] “work not precise,

lack of application” on her evaluation.³⁸⁵But Robert Bédard explained that the objective

of the examination was not to make a good joint, but rather to produce an assembly that

worked.³⁸⁶

377 Robert Bédard, stenographic notes, January 17, 2006 at 63.

378 Robert Bédard, stenographic notes, January 16, 2006 at 306; stenographic notes, January 24, 2006

at 103.

379 Johanne Bolduc, stenographic notes, January 31, 2005 at 141.

380 Johanne Bolduc, stenographic notes, January 31, 2005 at 51.

381 Johanne Bolduc, stenographic notes, January 31, 2005 at 52.

382 P-69, supra note 330, Raymond Bissonnette, stenographic notes, May 31, 2005 at 219-221.

383 Robert Bédard, stenographic notes, January 18, 2006 at 48.

384 Shirley Thomas, stenographic notes, February 8, 2005 at 117.

385 P-69, supra note 30. Serge Charbonneau is deceased and therefore did not testify at the hearing.

However, his name is given as evaluator on Shirley Thomas’s evaluation.

386 Robert Bédard, stenographic notes, January 17, 2006 at 43.

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[344] As for the wrenches she had to use, she found them abnormally greasy.

Furthermore, she explained that she felt humiliated because she had to assemble pipes

[TRANSLATION] “on all fours on the floor”.³⁸⁷

[345] Ms. Thomas prepared for the practical examination by hiring a master electrician

to review notions about electricity, and by consulting another person concerning

piping.³⁸⁸But in the end she failed the examination with a grade of 47.2%.

[346] Marie-Claude Côté took the practical examination in 1997 and passed it with

60.4%. She was the only one of the seven victims in the case to pass it.

[347] Line St-Onge, candidate for the position of network operator in the 1995

competition, also testified about her experience in the practical examination, which she

failed. Finding herself alone with the evaluator during the test, she was rather

intimidated.³⁸⁹She was not familiar with most of the tools used in the examination. The

challenge was therefore to rapidly master those instruments and understand their use in

order to carry out exercises as rapidly as possible. In fact, she noticed that she was

timed.³⁹⁰

[348] In the exercise with the pipe cutter, she did not approach it properly and crushed

the pipe. Then, in doing another manoeuvre, she tried to undo a knot with both hands,

whereas she should have placed her foot on the tool. In both cases, she received no

instructions from the evaluator about the procedure to follow, of which she was

unaware. It was only after she did the exercises improperly that the evaluator showed

her the proper way, which proved to be very simple. She then asked if she could do the

tests again, but she was not allowed to. As Ms. St-Onge explained:

[TRANSLATION

It’s because it wasn’t … in my case, I thought I was going to take a test with

things I know how to use, that I knew about. But I was not familiar with the tools

and didn’t know how to use them. And no one showed me. They weren’t things

that it takes three (3) weeks to learn. They were things, as I said, that you learn

immediately, that are easy to do. And I would have liked to start over to really see

whether it was because I was clumsy with the tools or because I didn’t know how

to use them at the time of the test.³⁹¹

[349] It is nonetheless surprising that, despite Ms. St-Onge’s obvious ignorance of the

tools she was supposed to use, the evaluator did not give her a modicum of instructions

that could help her do the tests. In fact, Robert Bédard explained that, in such a case,

the evaluator usually provides the candidate with explanations so that the candidate can

progress in the test; that is actually indicated in instruction manual P-10.

387 Shirley Thomas, stenographic notes, February 8, 2005 at 118.

388 Shirley Thomas, stenographic notes, February 8, 2005 at 96-97.

389 Line St-Onge, stenographic notes, February 3, 2005 at 11.

390 Line St-Onge, stenographic notes, February 3, 2005 at 11-12.

391 Line St-Onge, stenographic notes, February 3, 2005 at 14-15.

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3.3.5.2 Evaluation of the practical examination

- Validity

[350] The design, standardization and administration of the practical examination,

which are characteristics of its validity, merit scrutiny here. Concerning its design

specifically, the evidence before the Tribunal provided very little information, besides the

fact that Robert Bédard and Serge Charbonneau prepared the examination together.³⁹²

According to expert Chantale Jeanrie, the lack of information about the origin and

preparation of the examination is a considerable shortcoming. Consequently, the validity

of the examination could not be demonstrated, in her opinion.³⁹³

[351] The standardization and administration of the examination also pose certain

problems, particularly in terms of the uniformity of the instructions given candidates.

According to manual P-10, the evaluator could, in the event of a major problem,

intervene and provide the candidate with a few tips, without, however, revealing the

solution to the test. Mr. Bédard confirmed that and indicated that periods of time were

set aside for the evaluator to intervene in order to enable the candidate to progress in

the test. Questioned in that regard, evaluator Raymond Bissonnette added that no

instruction manual contained the types of tips that could be given to candidates. Rather,

they acted by example, that is, evaluators watched more experienced trainers and

understood the limits to the assistance they could give candidates.³⁹⁴

[352] As for the time allotted for each test, Robert Bédard explained that it could be

extended [TRANSLATION] “at the discretion of the evaluator”.³⁹⁵

[353] Manual P-10 also mentions that the evaluator could ask a very good candidate

additional questions. But there was no list of additional questions. Mr. Bissonnette also

said here once again that example and experience enabled the trainer to ask

appropriate questions.³⁹⁶

[354] Since two different evaluators probably will not give the same tips or ask the

same additional questions, expert Jeanrie noted that not all the candidates were subject

to the same conditions in the practical examination, which diminished the

standardization of the examination and, therefore, considerably reduced its possible

predictive value.³⁹⁷

392 Robert Bédard, stenographic notes, January 16, 2006 at 180, 201 and 278; stenographic notes,

January 18, 2006 at 81; stenographic notes, January 25, 2006 at 173.

393 P-43, supra note 10 at 24.

394 Raymond Bissonnette, stenographic notes, May 31, 2005 at 221.

395 Robert Bédard, stenographic notes, January 24, 2006 at 103-104.

396 Raymond Bissonnette, stenographic notes, May 31, 2005 at 223.

397 P-43, supra note 10 at 25.

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[355] Expert Pettersen also noted that the instructions to be followed gave examiners a

certain leeway. He mentioned that the leeway was not negative per se, but it could be

so if the evaluators did not use it the same way.³⁹⁸

[356] In that regard, Robert Bédard indicated that the evaluators had internal training

as partners of more experienced evaluators so that evaluations would be standardized.

Mr. Bédard said, however, that that [TRANSLATION] “training” was not provided for

anywhere in writing and that it was actually an [TRANSLATION] “oral tradition”.³⁹⁹

Moreover, he admitted that intervention with the candidates necessarily differed

according to the evaluator and he again pointed out the leeway governing such

intervention.⁴⁰⁰

[357] First, expert Pettersen stressed the difficulty in perfectly structuring the questions

and tips, and providing for all the cases in which an evaluator might be called upon to

intervene.⁴⁰¹In his cross-examination, Mr. Bédard was unable to say what would merit a

mark of 2/4:

[TRANSLATION]

Q – Since you say [TRANSLATION] “with assistance”, [TRANSLATION] “pass

the examination with assistance”.

A – With assistance? Well …

Q – Does that result in two (2) points out of four (4)?

A – That means that … well, it depends on what you observe. OK? You can’t cut

it with a knife and say: [TRANSLATION] “Good, it’s certain that’s worth two (2)

points”. It depends on what was observed. Of course, it isn’t four (4). That we

agree on. After that, according to the … the type of assistance, the number of

times the evaluator had to intervene, well, then, it’s certain that that changes and

one can see, however, that, well, for each test, that aspect is … we take that into

account, but for each of the criteria.

So, if one candidate did well, that’s going to be worth four (4). And if, on a part,

we spent our time demonstrating or going back over it, it’s certain that points are

lost if you have to do the person’s work.

Q – My understanding of the correction key is that, when the candidate succeeds

with assistance, two (2) out of four (4) points are given. Am I wrong? That isn’t

the way it works exactly?

398 Normand Pettersen, stenographic notes, September 13, 2006 at 184.

399 Robert Bédard, stenographic notes, January 16, 2006 at 294; stenographic notes, January 24, 2006

at 98.

400 Robert Bédard, stenographic notes, January 24, 2006 at 94-102.

401 A-19, supra note 18 at 31 and 36.

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95

… to be very … to affirm that in regard to [TRANSLATION] “passing with

assistance”. What I can say is that there are, if many tips are given, then points

are lost. What is the ratio? Sorry, I can’t recall. I would very much like to give you

a more precise answer but it is … it is really according to what is observed.⁴⁰²

[358] In addition, the comments on the practical examination evaluation sheet (P-69)

for certain candidates refer to criteria unrelated to the job of network operator. For

example, Shirley Thomas’s evaluator noted that she lacked initiative. Not only is that

observation strange, considering that Ms. Thomas was an entrepreneur, but more

importantly, initiative is not a characteristic that was supposed to be measured in the

practical examination and it cannot be assumed that the other candidates were

evaluated on that basis. That definitely reduced the examination’s validity.

[359] Moreover, there seems to be some disparity among evaluators in the way the

candidates were graded. Evaluation form D-12 lists the requirements of each test in

detail and provides boxes for each so that the evaluator can check whether the

requirement was met and indicate the corresponding grade.

[360] Nowhere did Serge Charbonneau, who evaluated Shirley Thomas, indicate the

points for each requirement, but merely indicated whether each requirement was or was

not met. As for Raymond Bissonnette, Marie-Claude Côté’s examiner, he gave details

about each element and indicated the number of points obtained. In his testimony, Mr.

Bissonnette in fact admitted that he would not have filled out Shirley Thomas’s

evaluation the same way that Serge Charbonneau did.⁴⁰³Perhaps that difference in

method did not prejudice the candidates, but doubt subsists and it demonstrates

deficient standardization at the very least.

[361] Lastly, Gaz Métro never had the practical examination used in the years at issue

validated externally. Even Lucien Aubé and Yves Ste-Marie, who were mandated in

1997 to give their opinions regarding the quality of the selection process, merely

analysed the theoretical examination.

[362] For these reasons, the practical examination does not meet the criterion of

validity.

- Relevance

[363] The practical examination was intended to verify whether a candidate had two of

the requirements mentioned in job profile P-3, i.e. qualifications in electricity and

mechanics, and the ability to do work requiring a certain physical strength.

402 Robert Bédard, stenographic notes, January 25, 2006 at 133-134.

403 Raymond Bissonnette, stenographic notes, May 31, 2005 at 216 et seq.

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[364] According to Raymond Bissonnette, the practical examination was mainly aimed

at observing a candidate’s knowledge and handling of tools.⁴⁰⁴Robert Bédard explained

that the examination made it possible to observe the candidate’s logic in performing the

work, how the candidate handled the tools, the candidate’s ability to organize the work,

and the final result.⁴⁰⁵In that regard, Mr. Bédard indicated that a candidate who

organized the allotted time well in each test was looked on favourably.⁴⁰⁶

[365] In her report, expert Jeanrie did not discuss the relevance of the practical

examination. But she mentioned in her testimony that mechanics and hydraulics were

relevant requirements,⁴⁰⁷as was physical strength.⁴⁰⁸Expert Pettersen merely

mentioned, without elaborating, that the content of the examination was related to the

job of network operator.⁴⁰⁹Only expert Boulard prepared a table in which he suggested

certain links between the different tests and the requirements of the position.⁴¹⁰

[366] As regards the first test, the one involving a pneumatic drill, Mr. Boulard linked it

to the requirement of physical strength, which was, in his opinion, inherent in the

position. He linked the second test, which consisted in dismantling a connecting pipe, to

the manual skills required in all duties of a network operator. He linked the third and

fourth tests, respectively, the connection of a water heater and the fitting of a pipe, to

the mechanical skills required in the job. As for the last two tests, dealing with an

electrical circuit and the handling of a multimeter, Mr. Boulard associated them with the

required knowledge and skills in electricity. As regards the multimeter, he said that it is

an instrument usually found in the job of network operator, in which it is very frequently

used. Network operators do not have to make electrical circuits in the performance of

their duties but must know the general principles of those assemblies.

[367] At first glance, the tests appear relevant and related to the position in this case.

Nevertheless, keep in mind that, in the absence of a real description of duties, the

logical connections made between the tests and the corresponding duties are

debatable. What is more, the practical examination never underwent criterion-related

validation, which would have made it possible to attest the relevance of each test in

terms of the performance of network operators once they are working in the position.

Therefore, the relevance of the practical examinationobvious a priorishould have

been confirmed in an external analysis.

- Weighting

[368] The grading scale for the practical examination was as follows: a very good

performance merited four points, performance of the duty with no assistance merited

404 Raymond Bissonnette, stenographic notes, May 31, 2005 at 118.

405 Robert Bédard, stenographic notes, January 16, 2006 at 303.

406 Robert Bédard, stenographic notes, January 16, 2006 at 303-306.

407 Chantale Jeanrie, stenographic notes, February 15, 2005 at 50.

408 Chantale Jeanrie, stenographic notes, February 15, 2005 at 53.

409 A-19, supra note 18 at 30.

410 D-74, supra note 17 at 38.

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three points, performance with assistance or explanations merited two points, and no

points were awarded if the candidate could not complete the test. Furthermore,

performance time in each test was counted in the grade, but the candidates were not

informed of the time allotted. In addition, weighting for the time spent performing the

task was not indicated anywhere, as a number of points to be deducted if the time

allotted was not respected or as a number of points to be attributed for a task performed

within the time allotted. Hence, it is, in particular, impossible to know to what extent

Marie-Claude Côté was penalized when she did not have enough time to complete

certain tests in the practical examination.⁴¹¹

[369] Moreover, the Tribunal noted a wide variation in the grades obtained by a

candidate in two practical examinations, one taken in 1995 and the other in 1996. For

the same practical examination, Sylvie Lafleur was given a grade of 75% the first time

and 61.1% the second time.⁴¹²Ms. Lafleur’s evaluation sheets were not adduced in

evidence, so the Tribunal has no information that would enable it to know the reasons

for that disparity in grading, for example, whether she was evaluated by two different

examiners. Hence, the Tribunal can at most observe the surprising grading of two

identical tests administered to the same person, especially since her success on the

first examination indicated to the candidate that she went about the exam the right way

and could do the same the second time around.

[370] Also bear in mind here that a properly weighted selection examination implies

that its weight in the selection process as a whole is relative in terms of the other

selection stages. But Gaz Métro never attributed a weight to each stage in comparison

with the others; instead, a candidate could be eliminated at any stage.

[371] The Tribunal therefore concludes that the practical examination did not meet the

weighting requirement.

3.3.5.3 Conclusions regarding the practical examination

[372] Having concluded that the practical examination did not meet the quality criteria

of a stage in the selection process, thus reducing its predictive value, the Tribunal must

now rule on its discriminatory nature in light of the evidence in support of that allegation.

[373] Expert Laurencelle having clearly explained why an analysis of small

samplesi.e. the limited size of the groups of men and women who passed the

examinationcannot yield probative statistical evidence, the Tribunal has decided, as it

did in the case of the interview and the theoretical examination, not to base its ruling on

the statistical evidence provided for the most part by experts Pettersen and Laurencelle.

411 See P-69, supra note 330.

412 P-77: excerpts from the results of the written and practical examinations – notes made during

internal training – 3 candidates.

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[374] The principal mandate of Karen Messing, ergonomic expert for ATF, was to

analyse the practical examination. Concretely, her analysis dealt more specifically with

the tests of strength and manual skills, to the exclusion of the electricity tests. She

noted, from an ergonomic standpoint, morphological differences between men and

women and demonstrated their effects on their respective performances on the practical

examination.⁴¹³The Tribunal deemed that witness competent, credible and objective.

Throughout her testimony, Ms. Messing remained within the boundaries of her expertise

and based her testimony on the evidence, leaving very little leeway for subjective

assessment. In addition, her testimony was not contradicted. Hence, the Tribunal has

no hesitation in referring to it.

[375] Expert Messing explained that the corporal segments of women are generally

smaller than those of men.⁴¹⁴In most cases, men are taller and weigh more, their hands

are longer and wider, and so on. The proportion of men’s and women’s corporal

segments is also different. For example, women’s arms are shorter, proportionate to

their height, than men’s.⁴¹⁵Furthermore, the axis of the spine is more to the rear of the

axis of the hips in women. In men, both axes are centered.⁴¹⁶The size of women’s

chests is also a significant morphological difference.⁴¹⁷

[376] Ms. Messing pointed out a number of consequences of these anatomical

differences. First, women’s dynamic physical strength (in movement), i.e. their capacity

to handle loads, is affected.⁴¹⁸Since their arms are shorter proportionate to their height,

their muscles must work harder in a given exercise.⁴¹⁹In addition, the alignment of the

spine in women produces more impact on the lower back when straining, because

women have to use more strength to stabilize themselves. Therefore, any load seems

an average of 15% heavier to handle.⁴²⁰

[377] For these reasons, women can generally lift or lower (vertical movement) 65% of

the average maximum weight that men can handle. They can also pull or push

(horizontal movement) about 85% of the average maximum weight that men can

handle. Furthermore, women have 50% to 85% of the muscle strength of men,

according to whether upper or lower muscles are used.⁴²¹

[378] Expert Messing then discussed the tangible consequences of these differences

in a workplace traditionally occupied by men. She noted that work environments, tools

and equipment have generally been designed and adjusted according to the average

413 A-6, supra note 15.

414 A-6, supra note 15 at 1-2.

415 A-6, supra note 15 at 4.

416 A-6, supra note 15 at 4-5.

417 A-6, supra note 15 at 5.

418 A-6, supra note 15 at 6.

419 A-6, supra note 15 at 4.

420 A-6, supra note 15 at 5.

421 A-6, supra note 15 at 5.

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man, that is, a White North American male.⁴²²When the work instruments cannot be

adjustment to fit women’s dimensions, women’s workload and discomfort increases,

contributing to a reduced performance compared with their male counterparts, because

the installations do not allow them to use all their strength.⁴²³For example, women may

have more difficulty if work tables are too high for them, if tool handles are too big and if

protective gloves are too big.⁴²⁴

[379] In addition, women experience proportionally greater improvement than men

when they are trained to use their strength.⁴²⁵When women have working conditions

(tools, equipment, etc.) adapted to their morphology, their performance is just as good,

if not better, than that of men.⁴²⁶What is more, they have better results when they are

allowed to find the approach that suits them in a given situation,⁴²⁷which is sometimes

difficult because no women have been hired for a position. In her testimony, Ms.

Messing gave the example of an engine re-assembly shop where three women and

1500 men were employed. Everyone frequently had to screw bolts on and off. Because

of the wrench commonly used in the shop, one women had difficulty with the task and

her performance speed was about half that of her co-workers. When she could use a

longer wrench that was better adapted to her morphology, she performed the duty in

less time than her male co-workers.⁴²⁸

[380] In an environment adapted to male workers, like those usually prevailing in blue-

collar jobs, men have an undeniable performance advantage in a test of physical

strength or manual skill. Expert Messing concluded as follows:

[TRANSLATION]

[i]f a pre-hiring test, like the practical examination for the position of network

operator, is designed according to the characteristics and ways of doing things of

the average male, male-female differences are exaggerated in the test, and

women do not perform as well as they should, and not as well as men.⁴²⁹

[381] According to a study conducted with a colleague, the predictive value of a

practical examination is lower for women than for men, given that, in actual employment

conditions, women are able to use different techniques and develop strategies in order

to perform the same duties, but in their own way. In a test, they comply quite faithfully

with what is asked, even though the conditions are often not optimal for them.⁴³⁰

[382] The evaluators for Gaz Métro’s practical examination seemed to ignore the

impact of those differences between men and women on the women’s performance of a

422 A-6, supra note 15 at 4.

423 A-6, supra note 15 at 6, 7 and 11.

424 A-6, supra note 15 at 3.

425 A-6, supra note 15 at 6.

426 A-6, supra note 15 at 6-7.

427 A-6, supra note 15 at 8 and 12-13.

428 Karen Messing, stenographic notes, February 11, 2005 at 21-22.

429 A-6, supra note 15 at 13.

430 Karen Messing, stenographic notes, February 11, 2005 at 38.

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given task. For example, Robert Bédard mentioned that the practical examination was

used, first and foremost, to observe and judge how the candidates organized their work

in a test. According to Ms. Messing’s explanations, women almost always approach a

task differently and find a way to organize and carry out the task in a way more suitable

for them. If an evaluation has as its standard only one way of doing things based on that

of men, it is necessarily tainted by bias that penalizes women.

[383] Ms. Messing focused particularly on the pneumatic drill test and explained with

myriad details why it was not adapted to women.⁴³¹In this case, not only did the seven

victims pass that test, but examiners Raymond Bissonnette and Robert Bédard said that

no candidate had ever failed it.⁴³²The Tribunal nevertheless believes that that is a

revealing example of the unsuitable conditions for women prevailing at Gaz Métro.

Robert Bédard explained in his testimony that, to ensure the fairness of the process, the

uniformity of the environment and of the circumstances in which men and women took

the practical examination was promoted. As seen previously, that approach

corresponds much more to the definition of formal equality than to that of real equality,

which takes into account the different ways of performing work in a safe and efficient

manner, and the adjustments required to that end.

[384] What is more, in the specific case of Shirley Thomas, certain parts of the

practical examination also seem to have been directly discriminatory. She took the

practical examination in unusual conditions, on the floor in a humiliating position, with

slippery tools that were likely to pose a hazard if not prevent her from doing the exercise

properly. Furthermore, she was prohibited from using her own gloves on the ground that

all the material required was provided on the examination premises, although she was

given none.

[385] Lastly, the exemption of candidates with an AVS was another link in the chain of

the system that, at Gaz Métro, perpetuated the discrimination against women and kept

their being hired for the position of network operator at a marginal level. Note that the

only type of AVS leading to the exemption concerned the repair of natural gas-operated

appliances. Hence, although they both held AVSs in the installation of power lines,

Marie-Claude Côté and Tania Plourde were not given a comparable exemption.

[386] Moreover, according to government data, no women in the greater Montréal area

held an AVS in natural gas-operated devices from 1994 to 1998, compared with 91 men

who did.⁴³³Robert Bédard, who taught courses leading to an AVS, confirmed that he

431 A-6, supra note 15 at 8-9.

432 Raymond Bissonnette, stenographic notes, May 3, 2005 at 115 and 119; Robert Bédard,

stenographic notes, January 16, 2006 at 300.

433 P-42: Tables prepared by Ms. Bastien indicating the representation by sex of those who earned

diplomas in the appliance repair course from 1995 to 1997, Monik Bastien, stenographic notes, February

9, 2005 at 11-12.

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that he never had a woman in his courses.⁴³⁴Hence, there is no doubt that the only

candidates exempt from the practical examination were men.

[387] Let me point out that that exemption is not completely automatic, but rather

discretionary. The decision to exempt a candidate or not depending on the results of the

training leading to the AVS lies with the training centre, i.e. mainly Robert Bédard and

Serge Charbonneau. According to the data collected from the various recruitment

campaigns held from 1995 to 1997, Mr. Robeluna, a man holding an AVS, was

exempted from the theoretical examination and the practical examination in 1995

because he had recently completed his AVS training and it was assumed that his

knowledge was up-to-date.⁴³⁵

[388] In the October 1997 recruitment, Mathieu Belzile was also exempted from the

practical examination although he did not hold an AVS. The training centre deemed that

the good grade he obtained on a practical examination taken in the framework of the

1996 recruitment exempted him from taking the examination again.⁴³⁶But Sylvie

Lafleur, who had successfully completed the selection process in 1995, had to take the

same examinations again in 1996.⁴³⁷

[389] Considering the absence of accommodation measures adapted to the physical

characteristics of the female candidates in the practical examination, the different

conditions imposed on some of them and the exemption granted only to men, the

Tribunal concludes that the practical examination had a disproportionate exclusionary

and discriminatory effect on women. An examination of the arguments of Gaz Métro in

support of the examination is therefore necessary.

[390] According to the stages in the method set forth in Meiorin, I must first ascertain

the rationality of the connection between the actual duties in the job of network operator

and the purpose of the measure.

[391] Jean-Pierre Raymond mentioned that the objective of the practical examination

was to recruit candidates able to succeed in the two-year training and effectively

perform the duties of a network operator.⁴³⁸

[392] According to Mr. Bédard, the principal designer and evaluator of the practical

examination, and Gaz Métro’s expert witnesses, the examination was connected to

success in the training, the effectiveness of the candidate once hired and respect for the

safety rules in manoeuvres. For example, a candidate who [TRANSLATION] “forced”

434 Robert Bédard, stenographic notes, January 18, 2006 at 91-93.

435 D-59: 1995 recruitment, new data; D-61: April 1996 recruitment results; D-62: November 1996

recruitment results; D-63: April 1997 recruitment results; D-64: October 1997 recruitment results;

Normand Pettersen, stenographic notes, October 10, 2006 at 15.

436 D-60: 1997 recruitment results.

437 P-77, supra note 412.

438 Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 203.

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parts in order to connect them could cause a distortion in the system, or even a gas

leak.⁴³⁹

[393] Furthermore, the practical examination particularly had to show whether the

candidate was able to make verifications using a multimeter. Mr. Bédard said in that

regard that a candidate was not required to demonstrate advanced techniques worthy of

a specialist. Rather, the candidate had to choose the best instrument from among those

in the multimeter, correctly interpret the measurement taken and check whether the

batteries were good.⁴⁴⁰

[394] Mr. Bédard also indicated that the basic concepts, such as atmospheric

pressure, would not be specifically reviewed in the internal training. The trainers merely

went over them. Therefore, the candidate had to know those concepts in order to

understand, without too much trouble, how they interact.⁴⁴¹

[395] Expert Boulard confirmed the need for the practical examination as administered,

on the ground that the internal training covered material at a rapid pace. In his opinion,

candidates who did not have the basic knowledge could not keep up. Hence, it would be

illogical to hire certain candidates and inevitably find, three weeks later, that they could

not develop the required skills because they did not, from the start, have the basic

knowledge needed.⁴⁴²However, the Tribunal noted that Mr. Boulard admitted in his

testimony that his statements concerning the essential nature of the practical

examination did not stem from an analysis he conducted as an expert. They were

simply a reflection of what Robert Bédard had told him.⁴⁴³

[396] The evidence of record showed, however, that the tests in the practical

examination measured knowledge that did not always take long to learn. Some of the

knowledge concerned tricks of the trade, which merely had to be explained before they

could be used correctly in performing the tasks. That reasoning applies to, among other

things, safety procedures. A candidate who, in an examination, does not know how to

carry a pneumatic drill safely may perform the task in a way that could cause injury. But

simple instructions by the evaluator would enable the candidate to act safely. In that

type of situation, to which the victims in particular were exposed, not having executed a

manoeuvre correctly in the practical examination was therefore in no way a prediction of

the candidate’s effectiveness once she held the position.

[397] Generally speaking, the Tribunal believes that the aspects invoked by Gaz Métro

give the practical examination a degree of rationality in terms of the job of network

operator. However, as I indicated in the analysis of the relevance of that selection tool, it

is still, if not difficult, at least hazardous, in the absence of an adequate description of

439 Robert Bédard, stenographic notes, January 17, 2006 at 39-40.

440 Robert Bédard, stenographic notes, January 17, 2006 at 60-61.

441 Robert Bédard, stenographic notes, January 17, 2006 at 29.

442 François Boulard, stenographic notes, June 19, 2006 at 94-95.

443 François Boulard, stenographic notes, June 20, 2006 at 22-23 and 51.

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the actual duties, to establish a true correspondence between them and the mandatory

stages in the selection process, including the practical examination.

[398] However, the Tribunal believes that Gaz Métro manifestly failed to meet its

second obligation according to Meiorin, that is, to establish the proportionality of the

practical examination. To that end, Gaz Métro had to demonstrate first that the tests in

the practical examination were at a minimum level, so as to enable all the candidates

able to do the work in a safe and efficient manner to be hired. The company therefore

also had to establish that those requirements were adjusted according to the different

ways that candidates in certain groupswomen in this casecould meet them. In other

words, Gaz Métro had to show that it was impossible, without undue hardship, to

accommodate the female candidates by adapting the examination so as to enable them

to be evaluated according to their actual abilities to perform the duties essential to the

position of network operator.

[399] First, the Tribunal notes from the evidence that, given its efforts to train network

operators and its dual objective of ensuring the effectiveness of the distribution network

and the safety of its employees and the public, Gaz Métro sought candidates with the

best knowledge and skills; hence the main abilities measured in the practical

examination exceeded those required in order to be hired as a network operator.

[400] Expert Pettersen actually stated that he was in favour of the approach according

to which work on the gas networks required that no risk be incurred in terms of the

candidates’ competence, from the time they were hired. In his opinion, the job of

network operator was one in which incompetence could prove decisive, which justified

the rejection of good candidates to the benefit of the best ones. Commenting on the

practical examination as a stage in the selection process, he said: [TRANSLATION]

“[W]e can’t give everyone a chance here”.⁴⁴⁴He went further, saying that it was more

harmful for Gaz Métro to hire an incompetent candidate than to reject a person despite

his or her competence. So in the name of caution, the company had to minimize the risk

of error. Mr. Pettersen added, however, in regard to the minimum level of the safety

requirements of the practical examination: [TRANSLATION] “Are there data that show

that level is essential? I haven’t seen any.”⁴⁴⁵

[401] Second, that situation also reflects the reality of work environments marked by

the absence of women,⁴⁴⁶where apparently neutral standards are established

according to a homogeneous male milieu, without taking into account physical

characteristics proper to women that are likely to affect the way they perform a task.

[402] In fact, it was in those circumstances that Gaz Métro, with a supposed concern

for fairness, compelled women to take a practical examination that included no

accommodation measure, since any change was automatically associated with a

444 Normand Pettersen, stenographic notes, September 14, 2006 at 74.

445 Normand Pettersen, stenographic notes, October 11, 2006 at 73.

446 See section 2.1 of my decision.

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reduction in the requirements to which men were subjected. By doing that, the company

applied the [TRANSLATION] “usual” requirements that had served it well in the past but

were at the expense of a woman’s right to equality in employment.

[403] In that regard, the Tribunal notes Ms. Messing’s conclusions that a practical

examination designed by and for men, like the one in this case, cannot adequately

evaluate the performance of women and, therefore, reliably establish their effectiveness

once they are hired for the position. As Ms. Messing explained, women have and

develop ways of doing things[TRANSLATION] “techniques”that differ from those of

men, and forcing women to use the same methods as men is tantamount to imposing

an additional requirement on them.

[404] Considering the evidence of record, the Tribunal therefore cannot conclude that

Gaz Métro established preponderantly that it could not, without undue hardship,

accommodate the female candidates by making changes adapted to their physical

characteristics and allowing them, in the examination, to proceed differently from the

men in order to establish their actual capacities to hold the position of network operator

safely and efficiently.

3.3.6 Medical examination

[405] After successfully passing the various stages in the selection process, the

candidates underwent a medical examination. In the case of the seven victims here,

only Marie-Claude Côté succeeded in all the prior selection stages and reached that

ultimate stage.

[406] At the time of that stage, Ms. Côté was 21 weeks pregnant.⁴⁴⁷The physician told

her she had to notify the employment office that she was pregnant.⁴⁴⁸In his report,⁴⁴⁹he

issued an opinion about her aptitude to work with temporary restrictions concerning the

lifting of heavy weights, difficult corporal positions, physical exertion, overtime and so

on. Although it appears relatively obvious in reading the restrictions that they were

issued because of pregnancy, the report does not explicitly mention it. Shortly

thereafter, Marie-Claude Côté learned that she had not been chosen for the position of

network operator.⁴⁵⁰

[407] Jean-Pierre Raymond stated that he was never informed of the results of

candidates’ medical examinations and that he therefore was not informed of Marie-

Claude Côté’s pregnancy.⁴⁵¹Sylvie Richard qualified that and indicated that, even

though the medical office did not transmit detailed information about an examination,

Gaz Métro still received the medical report indicating a candidate’s degree of medical

447 Marie-Claude Côté, stenographic notes, February 2, 2005 at 50.

448 Marie-Claude Côté, stenographic notes, February 2, 2005 at 50.

449 P-68C.2, supra note 189.

450 Marie-Claude Côté, stenographic notes, February 2, 2005 at 50-51.

451 Jean-Pierre Raymond, stenographic notes, February 7, 2006 at 103 and 113.

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aptitude.⁴⁵²She also explained that Mr. Raymond had all the necessary freedom to

ultimately reject a candidate whose employment restrictions were deemed incompatible

with the duties to be performed.⁴⁵³It is therefore entirely likely that he read Marie-

Claude Côté’s medical report, easily deduced from all the restrictions that she was

pregnant and decided on that basis not to hire her, judging that her condition would

prevent her from undergoing the training properly.

[408] It was, in fact, at a time that coincides perfectly with the medical appointment that

the people in charge at Gaz Métro said they had doubts about Ms. Côté’s qualifications

and decided to withdraw her from the selection process, on the ground that she would

not be able to complete the training.⁴⁵⁴Carole Magnan approved the initial decision of

Jean-Pierre Raymond not to hire Marie-Claude Côté.⁴⁵⁵Ms. Magnan explained that they

were entirely certain that Marie-Claude Côté would not complete the training leading to

the position of network operator:

[TRANSLATION]

If we had had the least doubt, we would have offered it to her. She was a person

with an excellent profile but we were convinced that she would not succeed and it

was from that standpoint that I supported the decision of Ms. Richard and Mr.

Raymond.⁴⁵⁶

[409] Sylvie Richard, Jean-Pierre Raymond and Carole Magnan reportedly felt that

Marie-Claude Côté’s candidacy should be rejected because her results on the tests

were relatively weak and she successfully completed the selection process only on her

third try.⁴⁵⁷But Sylvie Richard pointed that there is no limit to the number of times one

can go through the process at Gaz Métro and a candidate from an FTQ unionized

sector tried five times before succeeding.⁴⁵⁸Furthermore, Robert Bédard confirmed that

it is common practice for Gaz Métro personnel to submit their candidacy again after they

fail, without there being a maximum number of possible tries.⁴⁵⁹

[410] In addition, Carole Magnan stressed the importance of having motivated

candidates and the company’s concern with verifying candidates’ level of motivation.

Cross-examined about Marie-Claude Côté’s specific case, she said Ms. Côté seemed

[TRANSLATION] “very motivated”,⁴⁶⁰as she had tried three times to succeed in the

selection process, had the appropriate driver’s licence and truly wanted to take part in

the pilot project.

452 Sylvie Richard, stenographic notes, February 9, 2006 at 226.

453 Sylvie Richard, stenographic notes, February 17, 2006 at 76.

454 Carole Magnan, stenographic notes, April 19, 2006 at 43; stenographic notes, April 20, 2006 at 119.

455 Carole Magnan, stenographic notes, April 19, 2006 at 42; Sylvie Richard, stenographic notes,

February 9, 2006 at 128.

456 Carole Magnan, stenographic notes, April 20, 2006 at 190.

457 Carole Magnan, stenographic notes, April 19, 2006 at 43; stenographic notes, April 20, 2006 at 119;

Sylvie Richard, stenographic notes, February 9, 2006 at 134.

458 Sylvie Richard, stenographic notes, February 17, 2006 at 169.

459 Robert Bédard, stenographic notes, January 17, 2006 at 55-56.

460 Carole Magnan, stenographic notes, April 20, 2006 at 190.

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[411] Jean-Pierre Raymond also said that the medical examination that accepted

candidates had to undergo was usually a mere formality prior to beginning network

operator training.⁴⁶¹Thus, the medical examination itself did not constitute an additional

stage at which candidates could be eliminated, along with the stages of the interview,

the theoretical examination and the practical examination.

[412] However, sending candidates for the medical examination involved costs for Gaz

Métro. Hence, it goes without saying that all candidates were not invited to undergo

one, but only those who passed the examinations and were chosen by the company.⁴⁶²

At that stage in the process, the decision of the people in charge of hiring was already

taking shape through the other stages in the selection process and they had an

opportunity to confirm it. In other words, the candidates invited to undergo a medical

examination were unofficially assured of obtaining the job.

[413] In short, there is a major contradiction in the testimonies of Carole Magnan,

Jean-Pierre Raymond and Sylvie Richard: at first, in their eyes, Marie-Claude Côté was

an excellent candidate. She corresponded perfectly to the profile sought and showed

uncommon motivation to hold the position of network operator. Encouraged by the

company to succeed in the selection process, she ultimately did and was sent to

undergo the medical examination. It was only after the examination that doubts arose,

supposedly about her inability to complete the internal training, doubts that culminated

in an absolute certainty that she would fail in the future.

[414] Accordingly, although there is no direct evidence that the decision to reject

Marie-Claude Côté was based on her pregnancy, the Tribunal believes that the

presumptions that her candidacy was rejected owing to discriminatory considerations

are serious, specific and corroborating. The context of the decision, the explanations of

Sylvie Richard, Carole Magnan and Jean-Pierre Raymond that the medical examination

was a mere formality for candidates chosen at the end of the selection process, and the

concomitance of Marie-Claude Côté’s medical examination report and the decision not

to hire her all logically contribute to the conclusion that the refusal to hire her was

discriminatory because it was based on her pregnancy, which could be inferred from the

information in the report.

[415] Bear in mind as well that, to arrive at such a conclusion, it is not necessary for

the evidence to show that the decision was solely motivated by Marie-Claude Côté’s

pregnancy. On the contrary, it is sufficient only that that element have been taken into

consideration and have contributed to her rejection for it to be considered

discriminatory.⁴⁶³

461 Jean-Pierre Raymond, stenographic notes, January 26, 2006 at 168; stenographic notes, January 27,

2006 at 67; stenographic notes, February 7, 2006 at 120.

462 Sylvie Richard, stenographic notes, February 17, 2006 at 75-76.

463 See in that regard Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2

S.C.R. 279; Québec (Commission des droits de la personne et des droits de la jeunesse) v. École

supérieure de ballet contemporain de Montréal, 2008 Q.C. TDP 19 at para. 122; Québec (Commission

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[416] For these reasons, the Tribunal concludes that the evidence establishes

preponderantly that Marie-Claude Côté was not hired for a discriminatory reason based

on her pregnancy, after having succeeded in all the stages of a process tainted by

discrimination toward women.

3.3.7 Pilot project

[417] In the fall of 1995, Louise Buzit-Beaulieu did an internship at Gaz Métro in the

framework of her BA in psychosociology. At the end of a discussion with Carole

Magnan, it was decided that her internship project would deal with the issue of women

whom Gaz Métro wanted to hire because they had the proper profile, but who then

failed the theoretical examination.⁴⁶⁴Ms. Buzit-Beaulieu set up a pilot project to help

some women gain access to the job of network operator.

[418] Among the women who failed the theoretical examination, only the five

candidates who obtained the highest results were chosen to participate in the project,

including Marie-Claude Côté and Shirley Thomas. When Tania Plourde heard about the

pilot project, she showed great interest in participating in it and contacted Sylvie

Richard. Ms. Richard responded, however, that Ms. Plourde’s grade on the theoretical

examination was too low for her to be included in the group, which was made up of the

five best women only.⁴⁶⁵

[419] Initially, the pilot project was to consist of three stages: first, an evaluation of the

candidates’ psychological profile; second, practical tests in order to determine their

shortcomings; and third, additional customized training to correct their shortcomings and

enhance their chances of successfully completing the selection process. Ms Buzit-

Beaulieu informed the candidates that Gaz Métro was negotiating with the Commission

des écoles catholiques de Montréal (CECM) and the Société québécoise de

développement de la main-d’œuvre (SQDM) so that the supplementary training would

become a reality.⁴⁶⁶Carole Magnan explained the steps taken with the SQDM from that

standpoint.⁴⁶⁷

[420] Only two meetings ultimately took place. The five women were first invited to a

practice test at the Boucherville training centre in the presence of Louise Buzit-Beaulieu

and Robert Bédard. No grades were given at that point and the exercise was to be used

des droits de la personne) v. Petite-Rivière-Saint-François (Municipalité de), [1993] R.J.Q. 2279 at 2282-

2283 (T.D.P.); Québec (Commission des droits de la personne) v. Lessard, Beaucage, Lemieux inc.

(1992), 19 C.H.R.R. 441 (QC T.D.P.); Québec (Commission des droits de la personne) v. Lalonde

(October 2, 1992), Val D’Or 615-53-000001-911, J.E. 92-1629 (QC T.D.P.).

464 Louise Buzit-Beaulieu, stenographic notes, January 25, 2006 at 14.

465 Tania Plourde, stenographic notes, February 1, 2005 at 168-170.

466 Louise Buzit-Beaulieu, stenographic notes, January 25, 2006 at 24-25.

467 Carole Magnan, stenographic notes, April 19, 2006 at 18.

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to determine the candidates’ individual difficulties and to give them advice so that they

could improve and eventually pass the practical examination.⁴⁶⁸

[421] Marie-Claude Côté recounted in particular that, in regard to a pipe connection

that she seemed incapable of making, Mr. Bédard told her she should have asked for a

tape measure so as to be able to perform the task requested. Ms. Côté explained that

the toolbox at her disposal contained no tape measure, but that Mr. Bédard had one in

his hands. However, given the relatively formal framework of the test, she did not dare

to ask him for it.⁴⁶⁹

[422] Then, in the electricity exercise using a multimeter, she was misled. She verified

an electrical wire and noted that it was good. Subsequently, Robert Bédard told her that

her result was distorted by the fact that she was leaning on the metal table, which was a

conductor.⁴⁷⁰However, in his testimony, Raymond Bissonnette explained that leaning

on a metal table would have no effect on the electrical work performed in the

exercise.⁴⁷¹Since Robert Bédard is a seasoned evaluator, the question arises as to

whether Marie-Claude Côté was or was not deliberately misled.

[423] Ms. Côté said that Mr. Bédard made an effort, after each test, to explain her

errors and show her the proper way to proceed.⁴⁷²According to her, the exercises were

not difficult to understand once Mr. Bédard had explained them to her.

[424] Shirley Thomas said she had to do exercises requiring a tape measure and a

calculator without, however, being able to use the tools, which were not in the box to

which she had access.⁴⁷³Subsequently, Ms. Thomas received a telephone call from

Gaz Métro in which she was told that she had not passed the test.⁴⁷⁴But no grade was

supposed to be given on the practical test.

[425] The second gathering was supposed to be a four-hour session on stress

management. According to Shirley Thomas, it was more an evening of discussion

among the candidates.⁴⁷⁵Marie-Claude Côté added that the five women talked about

their personal experiences in non-traditional environments and received no stress

management training.⁴⁷⁶On that occasion, Ms. Buzit-Beaulieu again notified the

candidates that she was awaiting the result of negotiations between the CECM, the

SQDM and Gaz Métro that were to culminate in supplementary training designed

specifically for them.

468 Robert Bédard, stenographic notes, January 18, 2006 at 124-130.

469 Marie-Claude Côté, stenographic notes, February 2, 2005 at 28-29.

470 Marie-Claude Côté, stenographic notes, February 2, 2005 at 32.

471 Raymond Bissonnette, stenographic notes, May 31, 2005 at 174.

472 Marie-Claude Côté, stenographic notes, February 2, 2005 at 31.

473 Shirley Thomas, stenographic notes, February 8, 2005 at 117.

474 Shirley Thomas, stenographic notes, February 8, 2005 at 87.

475 Shirley Thomas, stenographic notes, February 8, 2005 at 93.

476 Marie-Claude Côté, stenographic notes, February 2, 2005 at 36.

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[426] But there was no follow-up to that meeting. Tired of having no news, Ms. Côté

contacted Carole Magnan, who told her that the pilot project had been abandoned.⁴⁷⁷In

the subsequent meeting between Ms. Côté, Ms. Magnan and ATF representatives in

particular, a colleague of Ms. Magnan explained to Ms. Côté that Louise Buzit-Beaulieu

was just an unpaid intern, not an employee of Gaz Métro, and that the pilot project was

a personal initiative in the framework of her internship, not an activity directed by the

company.⁴⁷⁸

[427] The Tribunal believes that the idea underlying the aborted pilot project was quite

positive and it could have met with success if it had been completed and included

supplementary training for the women, as planned. The lack of oversight of the intern in

charge of the project, the cavalier management of the general process (illustrated in

particular by the deficient organization of the workshop devoted to stress management

and the absence of notification of the principal people involved that the project had been

abandoned)—all those aspects make the project confusing and improvised, although it

fueled the hopes of the participants, who were promised an golden opportunity to be

reinstated in the selection process.⁴⁷⁹

3.3.8 Conclusions regarding the selection process

[428] Having reviewed each stage in the external selection process during the years at

issue, the Tribunal will now focus on certain general elements or elements more

generally related to the selection process. I will first return to the correlation between the

duties, requirements and means of selection (3.3.8.1), followed by a discussion of the

effects of the absence of criterion-related validation (3.3.8.2). I will then give my final

conclusions. (3.3.8.3).

3.3.8.1 Correlation between the duties, requirements and

means of selection

[429] As mentioned at the beginning of this examination of the external recruitment

process,⁴⁸⁰the selection instruments must be developed in accordance with the

requirements for the job, which themselves must stem directly from the essential duties

of the position. The requirements indicated in the recruitment notices and those

measured throughout the selection process must be justified by the need to have those

qualifications in order to perform the duties essential to the job.

[430] According to the evidence in this case, there was no description of the essential

duties of the position of network operator at the time of the facts at issue. So it was

difficult for Gaz Métro to justify the requirements in job profile P-3, particularly since the

477 Marie-Claude Côté, stenographic notes, February 2, 2005 at 38.

478 Marie-Claude Côté, stenographic notes, February 2, 2005 at 42-43.

479 See in particular Marie-Claude Côté, stenographic notes, February 2, 2005 at 39-42.

480 See section 3.2.1 supra for further explanations.

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job of network operator was an entry-level position for which two years of internal

training were planned. In turn, because of that situation, the selection tests could not be

properly developed according to the essential duties of the position.

[431] At the hearing, Carole Magnan mentioned that she herself and her colleagues

were disappointed to see, after the special 1995 competition, that so few women had

successfully completed the selection process. She explained that situation by the wide

disparity between the basic qualifications required for the position of network operator

and those of the women available on the job market.⁴⁸¹Like her colleagues, she did not

further question the underlying causes of the women’s high rate of failure, which should

have compelled them to take a critical look at Gaz Métro’s selection process and ways

of doing things.

[432] In addition, Carole Magnan, as well as Jean-Pierre Raymond and Sylvie Richard,

often stressed the candidates’ capacity to learn, which, in this case, refers to their ability

to complete the training given internally. Although success in that long training period

depended greatly on that capacity, experts Boulard and Pettersen felt that Gaz Métro

did not measure the candidates’ learning capacity.⁴⁸²

3.3.8.2 Absence of criterion-related validation

[433] As mentioned earlier, criterion-related validation is a special form of verification of

the correlation between a candidate’s performance on a selection examination and his

or her subsequent performance in training and on the job. The exercise makes it

possible to evaluate the essential nature of the skills measured by the selection tools

and to confirm or deny their true predictive value.⁴⁸³

[434] Expert Normand Pettersen explained the purpose of criterion-related validation

as follows:

[TRANSLATION]

[T]he idea is always the same: what is observed using the instrument, i.e. the

candidates’ responses, must constitute a representative sample of the response

they would have had on the job.

…

[I]t is statistical validation in which the results using the measurement instrument

and, then, once the people are hired, the results on the job are compared to see

481 Carole Magnan, stenographic notes, April 20, 2006 at 90-94.

482 D-74, supra note 17 at 21; François Boulard, stenographic notes, April 20, 2006 at 129 et seq.;

Normand Pettersen, stenographic notes, September 14, 2006 at 20. See also Robert Bédard,

stenographic notes, January 25, 2006 at 138.

483 D-74, supra note 17 at 5-6; François Boulard, stenographic notes, June 19, 2006 at 147-151;

Normand Pettersen, stenographic notes, October 10, 2006 at 164-165.

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to what extent those who had good results using the instrument actually

performed well once they were hired.⁴⁸⁴

[435] Robert Bédard contended that he himself and his colleagues conducted such a

validation, with the result that the selection tests were adequate because they reflected

the level of success during training.⁴⁸⁵But in reality, that exercise consisted in having

three female service employees who were on the job take the examination in order to

see how they would do and, depending on the case, whether adjustments were

necessary.⁴⁸⁶

[436] In his testimony, Mr. Pettersen also said Gaz Métro was concerned about

verifying the correlation between the rate of success on the examinations and the

training dispensed internally.⁴⁸⁷Without a real criterion-related validation having been

conducted by external experts, the company nevertheless administered a

[TRANSLATION] “pre-test” to female service employees on the job in order to see

whether adjustments to the practical examination were required before the examination

was given to candidates for the position of network operator.⁴⁸⁸According to him, the

pre-test was not perfect or even completely suitable, but [TRANSLATION] “it was better

than nothing” and [TRANSLATION] “not bad”.⁴⁸⁹

[437] Expert Chantale Jeanrie emphasized that a criterion-related validation process

involves an analysis beyond appearances. It is a complex and rigorous exercise that

implies a strict comparison between the various elements of the selection examinations

and the various elements of the position of network operator.⁴⁹⁰

[438] Gaz Métro never gave an external mandate for the analysis of the selection

process using the criterion-related validation method. When the company retained the

services of Lucien Aubé in 1997, it was solely to verify the relevance of the theoretical

examination; the special recruitment competitions were in fact already over. Carole

Magnan confirmed that Gaz Métro never felt it was worthwhile to proceed with criterion-

related validation of its recruitment process since the process was in the hands of

internal [TRANSLATION] “specialists”, particularly Jean-Pierre Raymond and Robert

Bédard.⁴⁹¹But Gaz Métro’s obligation in this case was to ensure that its selection

process was discrimination-free. Informed of marked and chronic female under-

representation in the position of network operator, coupled with the disproportionate

rejection of female candidates, the company should have conducted an authentic

criterion-related validation of its process.

484 Normand Pettersen, stenographic notes, October 10, 2006 at 161, 164-165.

485 Robert Bédard, stenographic notes, January 16, 2006 at 285; Robert Bédard, stenographic notes,

January 17, 2006 at 106.

486 Robert Bédard, stenographic notes, January 16, 2006 at 285.

487 Normand Pettersen, stenographic notes, September 13, 2006 at 150.

488 Normand Pettersen, stenographic notes, September 14, 2006 at 166-167.

489 Normand Pettersen, stenographic notes, 14 September 2006 at 169-170.

490 Chantale Jeanrie, stenographic notes, February 15, 2005 at 71-73.

491 Carole Magnan, stenographic notes, April 20, 2006 at 94-95.

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[439] Accordingly, no evidence makes it possible in this case to believe that a

candidate who obtained 60%, 65% or 70% on an examination would necessarily have a

performance superior to a candidate who failed. Given the scant data submitted to the

Tribunal regarding the results of candidates on the tests versus those obtained in

internal training, the correlation is uncertain, to say the least. Katia Laliberté obtained

62% on the theoretical examination and 75% on the practical examination; whereas her

training results were 97%. Monique Béland obtained 62.9% on the theoretical

examination and 86.1% on the practical examination, but she obtained several grades

above 90% in training, including 99%, and never had a grade below 79.6%. As regards

Sylvie Lafleur, she had 68% on the theoretical examination and 75% on the practical

examination in 1995 and 70.1% and 61.1% in 1996, while in training, her grades varied

from 74.4% to 97.5%.⁴⁹²Brigitte St-Cyr was hired in 1997 instead of Marie-Claude Côté

because her results on the tests were slightly higher.⁴⁹³Unfortunately, she failed the

fourth training module and was therefore dismissed.

[440] It is not by considering only the results of a few candidates that the Tribunal can

weigh the consequences of the absence of criterion-related validation of the selection

process. The Tribunal has said on several occasions that, since Gaz Métro did not see

to that validation, it was hazardous to conclude that the company’s recruitment process

could reliably predict the capacities of the candidates once they were on the job. Given

the other factors explained earlier that ensured that certain selection stages

disproportionately excluded women, the absence of validation reinforced the

discriminatory elimination of the candidates and made it possible for a process that

wrongly rejected them to continue.

[441] The Tribunal also believes that that situation is connected with the great

importance that Gaz Métro placed on the candidates’ profile, a criterion that even led

the company to retroactively withdraw certain candidates from the selection process

even though they had successfully completed the various stages.

[442] Sylvie Richard actually admitted that a candidate could be excluded from the

selection process at any time, i.e. withdrawn retroactively following a decision stemming

from the interview.⁴⁹⁴As regards the special competition in July 1995, roughly a dozen

women were withdrawn from the process because of a [TRANSLATION] “hesitation

about the profile”.⁴⁹⁵Some of them had passed the theoretical examination, some had

even passed the practical examination, before being rejected.⁴⁹⁶Ms. Richard

acknowledged that using a [TRANSLATION] “hesitation about the profile” as a reason to

492 P-77, supra note 412.

493 See D-60, supra note 436; Jean-Pierre Raymond, stenographic notes, February 7, 2006 at 101-104.

494 Sylvie Richard, stenographic notes, February 17, 2006 at 91.

495 P-6, supra note 288.

496 P-6, supra note 288; Sylvie Richard, stenographic notes, February 17, 2006 at 91-95.

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reject a candidate was in itself much more subjective than relying, for example, on the

results of the theoretical examination.⁴⁹⁷

[443] Gaz Métro actually invoked a hesitation about Marie-Claude Côté’s learning

capacity in an attempt to justify its refusal to hire her in 1997, despite her having passed

the various stages in the selection process. However, the Tribunal concluded that the

evidence showed preponderantly that Ms. Côté’s rejection was based instead on her

pregnancy, of which the employer was informed in light of the restrictions accompanying

the medical declaration of her aptitude to carry on the employment of network operator.

3.3.8.3 Final conclusions regarding the selection process

[444] Already weak because of the absence of a correlation between the duties of the

job, the requirements formulated and the means of selection, Gaz Métro’s selection

process was also contaminated by subjectivity, arbitrariness and a broad power of

discretion by the main employees of the company assigned to it. These elements,

combined with the under-representation of women in blue-collar jobs, particularly in the

position of network operator, biases regarding the presence of women in a context of

non-traditional employment and the incompetence of the people responsible for

recruiting women in the special competitions, fueled and maintained a recruitment

system tainted by discrimination toward women.

[445] The Charter asks us to ensure the recognition and concrete exercise of a true

right to equality for women, embodied particularly in an egalitarian hiring system where

an employer’s policies, requirements or decisions do not have a more negative impact

on women and do not exclude them disproportionately. Hence, in order not to

perpetuate the discriminatory system of recruitment for the position of network operator

at Gaz Métro, the mechanics of the system, in which is interwoven the policies,

decisions and behaviours contributing to its maintenance, must be demonstrated.

3.4 Gaz Métro’s institutional culture

[446] Let us briefly recall that systemic discrimination toward women in employment is

the result of the application of established methods, practices and policies of

recruitment and hiring that are not designed to promote discrimination but that, because

of the under-representation of women in certain workplaces, are characterized by the

absence of consideration of their point of view, experience and characteristics.

Discrimination is then maintained through an institutional culture permeated with biases,

prejudices and unconscious stereotypes that favour the people already in the workplace

and gear candidate selection toward people similar to those already holding the job,

thereby perpetuating the exclusion of people who have not had an opportunity to

penetrate the workplace.

497 Sylvie Richard, stenographic notes, February 17, 2006 at 95.

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[447] Having concluded that, in the special recruitment competition held from 1995 to

1997, Gaz Métro did not sufficiently adapt its selection process, which was basically

designed to deal with employment applications by male candidates, I will now examine

certain established practices during that period in order to determine whether they were

more broadly in keeping with an organizational culture that was or was not conducive to

the recruitment of women for the position of network operator, traditionally held by men.

3.4.1 Prevailing models

[448] Gaz Métro’s organizational culture, particularly in regard to network operators,

was homogeneous because it was essentially male. That situation is explained by the

very small number of women who held that job and was apparent in both the actions

and words of the managers, trainees (apprentices or graduates), trainer-evaluators and

human resource department personnel.

[449] Whether they were men or women, they were all systematically trained by their

predecessors in the image of employees already working there, in order to perpetuate

the same ways of doing things. Closely supervised, they had to absorb the

organizational culture transmitted by their superiors in order to advance. Robert Bédard,

trainer-examiner, in fact referred to Gaz Métro’s [TRANSLATION] “oral tradition” and

[TRANSLATION] “big family”. Carole Magnan said the following in her testimony:

[TRANSLATION]

We know we are investing in those people for a long period of training for the job,

and realize that, once they are in the system, they apply for other positions. But

experience shows that they apply for and obtain other jobs on the basis of their

qualifications. There are no … at Gaz Métro, people don’t leave. We don’t have

very high turnover. So it is important that we verify … ensure that people are well

aware of what they face when they come to Gaz Métro for network-type jobs.⁴⁹⁸

[450] Ms. Magnan mentioned that, until 1995, [TRANSLATION] “ninety percent (90%)

of CSN positions were filled internally”.⁴⁹⁹The practice provided for in the collective

agreement negotiated between Gaz Métro and the Syndicat according to which vacant

network operator positions first had to be offered [TRANSLATION] “internally” to

employees, almost all male, who were members of the CSN-certified unit, was also in

keeping with that spirit.

[451] According to the evidence submitted to the Tribunal, the different treatment of

these potential candidates gave them some advantages over others outside the

company. For example, network operator positions to be filled were posted in that unit

for a longer period of time than externally.⁵⁰⁰Because they were assumed to have the

profile sought, candidates from that unit were also exempt from the obligation to

undergo an interview, on the basis of which they could be disqualified. Lastly, the

498 Carole Magnan, stenographic notes, April 18, 2006 at 268-269.

499 Carole Magnan, stenographic notes, April 20, 2006 at 174.

500 See section 3.1.1.

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question arises as to what extent they were likely to know the content of the

examinations (practical and theoretical) by communicating with other candidates

working in the company who had taken them and with network operators on the job.

[452] In that regard, the Tribunal notes the opinion of Ms. Boukamp Bosch, who

believed that, even though that practice negotiated between Gaz Métro and the

Syndicat was adopted to their mutual satisfaction, it still perpetuated male

predominance in network operator jobs. She believed that was why, in this context, the

employer had to focus its efforts on external recruitment, in order to remedy the weak

representation of women.

[453] Internal recruitment of network operators proved to be an ideal way to hire

people similar to those already employed and to ensure the maintenance of a

homogeneous environment. That situation can, in turn, unconsciously fuel the belief that

there is only one proper way to perform the duties of the job, and that only candidates

from the dominant group and those who succeed by the same means can fully meet the

requirements of the position.

[454] The letter of understanding signed with the Syndicat in order to set aside

positions for women and visible minorities on a priority basis in fact provided that the

practice [TRANSLATION] “in no way call into question the qualification criterion, which

is paramount, and will not result in lower requirements for anyone”. Questioned about

the scope of that aspect of the agreement, Ms. Magnan said the following:

[TRANSLATION]

It was applied so as to respect the fact that the male or female candidates hired

would have passed the stages in the selection process as provided for in the

program and the collective agreements. In that sense, there was no question of

our reducing in anyway respect for that agreement. …

It was agreed with the union people that it was not a question of lowering the

requirements. In fact, with all the women we might deal with, no one wanted to

find herself in a situation in which a perception would be created that they had

obtained the position because they were women, without consideration for their

qualifications.⁵⁰¹

[455] The Tribunal noted the correlation established at Gaz Métro between a measure

consisting in adapting a hiring standard according to the needs of an excluded group

and a lowering of occupational standards for members of that group. This is apparent

from the response given by Carole Magnan when cross-examined:

[TRANSLATION]

Q-

In your opinion, would allowing network trainees to obtain their driver’s

licence during their training period mean a lowering of the requirement?

501 Carole Magnan, stenographic notes, April 18, 2006 at 260.

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A- Yes. In a context where all the other employees obtained their driver’s

116

licences at the same time when they were appointed. In our opinion, that

was a lowering of the requirements.⁵⁰²

[456] That erroneous understanding of the nature of reasonable accommodation

measures means that the inequality invoked here in regard to women is in fact purely

formal inequality, as opposed to real inequality. The approach chosen consisted in

treating these people in a manner identical to that of the members of the dominant

group and it impeded reasonable accommodation practices that would enable the

employer to avail itself of the diversity and richness of complementary qualifications.

[457] In that regard, the Tribunal notes the testimony of expert witness Karen Messing,

who emphasized the extent to which the absence of women in certain traditionally male

environments makes it difficult to identify adaptation measures to be taken to promote

women’s integration. Women are in the best position to develop ways of performing a

non-traditional task in a manner adapted to their physiology, which, in return, enables

the employer to acquire knowledge useful to accommodating them.

[458] Because of differences (genetic and environmental in origin) between men and

women, women can develop ways of performing a task that differ from those of men

and are better adapted to their morphology and psychology. The more freedom women

have to develop, use and transmit that knowledge, the better they will succeed in

performing the tasks.⁵⁰³

[459] Designed to select male candidates, the written and practical examinations in the

selection process were not adapted for other groups likely to have characteristics that

differed from those of the dominant group. The questions taken from the Bennett test

were retained despite the caveat in the instruction manual about their negative effects

on women.⁵⁰⁴The gloves and tools supplied to women in the practical tests were those

used by men, despite the women’s different morphology. Robert Bédard, trainer-

evaluator, explained, in all good faith, that the examinations were exactly the same for

everyone, for the sake of honesty.

[460] The video screened during the information sessions in June 1995 twice

mentioned [TRANSLATION] “the guys on the team”, indicating to the women from the

start the homogeneous composition of the work environment. Jean-Pierre Raymond did

not change his words of welcome and candidly admitted that his joke about

[TRANSLATION] “underwear” remained the same, whether he was talking to men or

women. In his comments, he pointed out the difficulties encountered by the sole woman

who held the position of network operator and the importance of [TRANSLATION]

“being part of the gang”. Given that, it was expected that the women would act like men

502 Carole Magnan, stenographic notes, April 20, 2006 at 182.

503 A-6, supra note 15 at 13.

504 A-17, supra note 359 at 30. See also section 3.3.4.3 for an analysis of that issue.

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when their aptitudes were evaluated and in regard to the attitudes of the dominant

group.

[461] Those unconscious biases and those attitudes fueled the conviction that only

women able to reproduce the same behaviour and ways of doing things as those of the

dominant male group could make a positive contribution to the health of the company.

That organizational culture was even communicated to the outside intervening parties

that dealt with Gaz Métro. For example, although his comments on the availability pool

contradict that reasoning, consultant and expert witness Normand Pettersen explained

the lower rate of recruitment of women by the employer’s difficulty in finding qualified

candidates.

[462] In that context, it appears wholly normal to ensure that the women eventually

hired be able to adapt to the dominant culture. The search for female candidates with

the [TRANSLATION] “job profile” is entirely consistent with that viewpoint.

3.4.2 Candidate profile sought

[463] The under-representation of women in the position of network operator at Gaz

Métro also affected the type of female candidates sought in the special recruitment

process, as the employer essentially targeted candidates with characteristics largely

similar, at first glance, to those of male employees holding the job or at least female

candidates likely to easily integrate a male work environment. In other words, since the

employer was satisfied with the work performed by a very homogeneous labour pool, it

was difficult for it to evaluate how other types of employees could perform in a similar

manner. In the absence of concrete or conclusive data on the impact of diversification of

its personnel, it sought to recruit new employees [TRANSLATION] “in the image” of

those on the job or assumed to be able to readily adapt to the characteristics of the

dominant environment.

[464] According to the evidence adduced before the Tribunal, the female candidates

whose CVs or job applications did not mention any experience in a non-traditional

employment sector were automatically excluded from the recruitment process for the

position of network operator.⁵⁰⁵That was so, according to Ms. Richard, because

[TRANSLATION] “[a] person who demonstrated no experience or training in a non-

traditional sector, as limited as it may have been, could have great difficulty passing the

theoretical or practical examination.⁵⁰⁶But, as that witness acknowledged, candidates

invited to take the two examinations passed them but were still rejected because of a

[TRANSLATION] “hesitation about the profile”. Furthermore:

[TRANSLATION]

A. That’s why candidates were told that the choice was based on a mix of the

interview, the profile and the theoretical and practical examinations. …

505 Sylvie Richard, stenographic notes, February 9, 2006 at 193.

506 Sylvie Richard, stenographic notes, February 17, 2006 at 91.

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Q. Would you agree that the interview, considerations related to the interview,

118

hesitation about the profile, would you agree that they have a subjective

element?

A. Yes.

Q. Yes.

A. Yes. Always according to the profile.

Q. Always according to the profile. And that was certainly more subjective and

much more subjective than a written examination. Would you agree?

A. It goes without saying.⁵⁰⁷

[465] In addition, as the Tribunal noted earlier, during the pre-interview in particular,

non-traditional experience deemed relevant was interpreted very restrictively, being

limited in practice to the work identified in job description P-3 or to experience similar to

that of male employees in the position.⁵⁰⁸

[466] According to Sylvie Richard, the purpose of the pre-interview specifically

introduced at the beginning of the recruitment process in 1995 was to enable

candidates to provide more information for their files and to ascertain whether they had

[TRANSLATION] “the profile” to hold the position of network operator. From that

standpoint, question 6, asked only of women,⁵⁰⁹very particularly sought to measure

their capacity to deal with a homogeneous environment composed of male blue-collar

workers. The [TRANSLATION] ‘”right” response was that of a female candidate capable

of humour and flexibility, qualities that Ms. Richard emphasized, because the candidate

would be more likely to become part of and integrate, even [TRANSLATION] “blend

into”, the homogeneous environment without too much friction or too many rough

patches. The [TRANSLATION] “wrong” response, on the other hand, was if the

candidate said the employer was solely responsible for her successful integration:⁵¹⁰

Q. I am going to ask more specifically why it takes a sense of humour to

integrate a male environment.

A. I would say that’s a small part of what we were talking about this morning,

regarding flexibility. You have to know … I think it would be difficult for

someone to integrate a male environment who was always in a bad mood or

who would be shocked at the least little thing. You really do need a sense of

humour.⁵¹¹

[467] Considered by expert Normand Pettersen as a realistic warning about the

situation that the women hired would have to face, question 6 should have, according to

Denise Perron, been asked at the end of the selection process as a support tool for the

women. Chantale Jeanrie recommended that it simply be withdrawn because of the

problems mentioned.

507 Sylvie Richard, stenographic notes, February 17, 2006 at 94-95.

508 See section 3.3.3.3.

509 Remember that it was worded as follows: “According to you, how can a women integrate well into a

non-traditional (male) environment?”. P-8: evaluation checklist.

510 Sylvie Richard, stenographic notes, February 9, 2006 at 84 et seq.

511 Sylvie Richard, stenographic notes, February 17, 2006 at 215.

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[468] Specific responses were also expected regarding stressful situations and the

presence of children in the home. The company believed that women could not comply

with the schedule because of family constraints and that they would have to take out-of-

place jokes and stressful situations with a sense of humour, in addition to being

empathetic and flexible with their male co-workers. Those requirements were not,

however, applied to men; it seemed unacceptable to force the dominant group to

change its behaviour. Here again, the approach was one of formal equality in that an

attempt was made to [TRANSLATION] “fit” different people into the existing system on

the basis of an unconscious belief in the superiority of the dominant group to which the

minority group necessarily had to adapt.

[469] That situation recalls the opinion of Denise Perron:

[TRANSLATION]

Women who integrate a non-traditional work environment face many learning

situations and still find it difficult to have to demonstrate to certain co-workers or

immediate superiors that they have all the qualifications required to perform their

work.

In theory, that should not be so. Women do not have to have a greater sense of

humour than men. They do not have to demonstrate day after day that they

manage stress better than their male co-workers. They do not have to perform

better.⁵¹²

[470] The Tribunal also notes from the evidence the contradictory expectations of the

interviewers, who anticipated that the women would first rely on their personal

resources in order to deal with a male work environment and then indicate the way they

would like to be supported by the company in the event of difficulty.⁵¹³

3.4.3 Organizational dimension of the special recruitment

competition

[471] As recognized beginning in the late 1980s, in the wake of the Abella report on

equality in employment and of the ruling in Action Travail des femmes, the

implementation of hiring measures to counter the under-representation of women in

traditionally male employment environments requires the energetic mobilization of all

the parties concerned (employer, union and employees), not to mention the decisive

contribution and the exemplary value of the involvement of the company’s senior

management. Because of the complexity and multiple factors contributing to the

maintenance of systemic discrimination, the elimination of the under-representation of

women requires a firm determination to combat it on the part of top management, which

must send a clear message to all levels of the company in that regard and assign

professional resources that are competent in the field.

512 D-80, supra note 96 at 15.

513 See section 3.3.3.3.

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[472] The evidence accepted by the tribunal of first instance in the AFT case is

eloquent on the subject. In its ruling, the Canadian Human Rights Tribunal cited

excerpts from the Boyle/Kirkman report, an exhaustive study of the under-

representation of women in Canadian National’s blue-collar jobs, conducted in the early

1970s, at the request of the company’s senior management. According to the report, the

“lack of definitive executive management commitment” constituted one of the specific

areas targeted by the recommendations made:

The majority of CN managers have established their priorities in the order in

which they feel their performance will ultimately be measured, i. e. a reflection of

their interpretation of top management’s concerns. Allotting time and energy from

their busy schedules to manage their people properly and to provide special

attention to eliminate discrimination against women have not been viewed as

integral components of their jobs and, therefore, do not receive the necessary

attention.

The Executive management of CN is committed to equal opportunity for all

people. The commitment alone, however, is not sufficient to accomplish

significant results in the area of women. …

Clearly, top management must recognize that the motivation to change must be

created through executive directive.

Specifically, CN executive management needs to:

1. Get involved in demonstrating their commitment and in measuring their

managers on progress against pre-set goals.

2. Require that each major department define their own specific problems;

develop detailed programs for solving them; and set concrete targets for line

managers to achieve.⁵¹⁴

[473] That aspect of the evidence probably contributed to the conclusion reached by

the Canadian Human Rights Tribunal that Canadian National had established hiring

practices at the root of the complaint of systemic discrimination, filed in December 1981,

knowing their exclusionary effect on women:

We have already shown, at the beginning of this judgment, that Canadian

National knew several years before the complaint was filed that its hiring

practices had a negative effect on the employment of women and that women

were under-represented at Canadian National compared with their general

employment situation. Yet Canadian National continued these hiring practices,

knowing their consequences. The proclamation of the Canadian Human Rights

Act, which did not take Canadian National by surprise, as can be seen from the

testimony in the proceeding, has not resulted in any marked changes in its hiring

practices.

514 The AFT case, supra note 35, para. 19610 at D/2335.

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We therefore believe that CN “meant what [it] did” … Certainly it cannot be said

121

that the hiring practices being challenged by Action Travail des Femmes were

purely accidental.⁵¹⁵

[474] In the case at bar, Denise Perron also stressed the importance of the

commitment by senior management to the implementation of measures to foster the

equality of women employed in non-traditional positions:

[TRANSLATION]

Practice has shown that, in companies generally, the integration of women in

non-traditional jobs requires a major investment by women, employers, unions,

supervisors and co-workers.

The testimony showed that, as early as 1985, the process of integrating women

into non-traditional jobs (where less than one third of the work force was female)

required changes in mentality and attitudes among the different socioeconomic

partners and women themselves …

Women who seek non-traditional blue-collar jobs often need specific support to

help them clear the obstacles that their male co-workers do not encounter.⁵¹⁶

[475] At Gaz Métro, Sylvie Richard and Jean-Pierre Raymond played a very active

role—in fact a decisive one—in the operational implementation of the agreement

reached with the union for the recruitment of women on a priority basis for the position

of network operator. Carole Magnan, who was more involved in planning the

intervention and saw that measures were deployed to meet, in particular, the hiring

objective of October 2, 1995, indicated the following:

[TRANSLATION]

Any organization of the staffing process was managed by the advisor responsible

for the position, like any recruitment process she had to manage.⁵¹⁷

[476] But before the special recruitment in 1995, Ms. Richard did secretariat work

involving statistics. She advanced in the company and became a staffing officer, and in

1995, a staffing advisor. At the time, her training in selecting personnel boiled down to a

course lasting a few days, taken at the École des hautes études commerciales and a

human resource management certificate she did not complete.⁵¹⁸As for Mr. Raymond,

who saw to the development of the position of network operator over the years and was

well aware of its components, he was not always present during the interviews. If he

was, his role was rather passive.

[477] Furthermore, despite their good faith, Ms. Richard and Mr. Raymond had a very

different understanding of the purpose of the candidates’ interviews. In short, for one of

them, it was a matter of becoming acquainted with the [TRANSLATION] “clientele” and

515 Ibid. at paras. 19776 and 19777 at D/2373.

516 D-80, supra note 96 at 11.

517 Carole Magnan, stenographic notes, April 18, 2006 at 235.

518 Sylvie Richard, stenographic notes, February 17, 2006 at 189.

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for the other, of enabling women to demonstrate their prior experience.⁵¹⁹Given that,

the Tribunal finds it hazardous, to say the least, for a large-scale process of pre-

interviews to be undertaken without even clarifying their underlying objective.

[478] The interview checklist used was prepared in 1992 by Ms. Richard, who also

designed her own summary sheet.⁵²⁰The Tribunal stressed earlier the inconsistency of

the marks attributed to different candidates, not to mention the irregularity of the notes

taken about them.⁵²¹It will also be recalled that, according to Chantale Jeanrie, the two

items did not correspond to any recognized form of interview, whereas according to

Louis Laurencelle, the risk of error was increased because of the absence of explicitly

anticipated responses in the interview summary.

[479] During the special recruitment from 1995 to 1997, certain initiatives were also set

up, then withdrawn, without assessment or a true analysis of the factors likely to explain

their mitigated success. For example, the initial steps taken with organizations working

with women looking for employment and the information sessions preceding the

submission of candidacies were both rapidly abandoned, despite their potential.

[480] The Tribunal also recalls the reinstatement, beginning in 1996, of the

requirement that the candidate hold a class 3 driver’s licence no later than the time the

candidacy was submitted. Here again, it was quite simply preferred to return to the

condition applied in the past rather than analyse the factors likely to explain the

candidates’ difficulty in complying with the additional time period granted in the June

1995 recruitment,⁵²²whereas an evaluation would probably have led to a search for a

reasonable accommodation measure.

[481] Moreover, after the 1995 recruitment, the interview held prior to the

examinations, an interview which—need it be repeated—could be disqualifying, was

eliminated.⁵²³Judging that the interview was not conclusive, Gaz Métro decided to go

back to [TRANSLATION] “the old method”, which consisted in giving access to the

examinations after an analysis of the CV in order to ascertain [TRANSLATION]

“whether the person had a minimum of experience or training in non-traditional work”.⁵²⁴

Here again, the employer quickly returned to the prior practice, which was not, however,

very satisfactory from the standpoint of hiring women for the position of network

operator.

[482] Furthermore, students hired for the summer were often responsible for archiving

the files and the evidence showed deficient identification of the archive boxes and

519 See section 3.3.3.1 in that regard.

520 P-47: staff evaluation checklist used.

521 See section 3.3.3.2.

522 Note that the candidates were allowed an additional period of time to obtain a class 3 driver’s licence,

i.e. by the date of their hiring rather than the date they submitted their candidacy.

523 Sylvie Richard, stenographic notes, February 17, 2006 at 83-84.

524 Sylvie Richard, stenographic notes, February 9, 2006 at 193.

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botched management of the CVs received during the special recruitment competition,

which made it more difficult for Gaz Métro to know where it stood in regard to its

objectives, while keeping a bank of potential candidates. In her testimony, Ms. Magnan

actually acknowledged that [TRANSLATION] “the people assigned to that work … were

minimally supervised. … hence, the system was more or less organized and orderly”.⁵²⁵

[483] And what about the pilot project under the supervision of Louise Buzit-Beaulieu?

Despite the interest of the approach initially planned, the lack of supervision of the

temporary intern and the abandonment of the training activities initially planned, without

adequately informing the participants, reflect a degree of improvisation and, all things

considered, a lack of interest on the part of management in an activity that nonetheless

nurtured the hopes of candidates who wanted to be reinstated in the selection process.

Several years later, those who took part in the experience remain bitter. Marie-Claude

Côté said that, after the stress management workshop, she tried to contact Gaz Métro

several times, without success, in order to find out when the training sessions would

begin:

[TRANSLATION]

A. No one called me. Nothing happened. So I was worried. I called, I called and I

called. It was always the same news. They were waiting, they were waiting.

Q. Um-hum.

A. Then, … the last time I called, I was transferred to Carole Magnan. Ms.

Magnan told me that the pilot project would not go forward and that, in any

case, the examinations had to be passed in order to be hired by Gaz

Métropolitain.⁵²⁶

[484] Having failed the theoretical examination a second time after the pilot project was

cancelled, Ms. Côté said the following about why she then participated in a meeting at

Gaz Métro:

[TRANSLATION]

Well, I so wanted to tell them that we were not numbers and that … they

shouldn’t set up fake pilot projects, then … you know? I wanted to go tell them,

you know, that I was a human being and that … you know?⁵²⁷

[485] Furthermore, despite the laudable intentions of the Gaz Métro staff assigned to

the special recruitment competition, the Tribunal notes its lack of knowledge and, above

all, its lack of competence in finding the causes of the known and chronic female under-

representation among blue-collar workers, particularly in the position of network

operator, and the means to overcome it. In the Tribunal’s opinion, the lack of

competence of the staff responsible for the recruitment competition explains, at least in

part, the amateur way in which the project was conducted.

525 Carole Magnan, stenographic notes, April 18, 2006 at 234.

526 Marie-Claude Côté, stenographic notes, February 2, 2005 at 37-38.

527 Marie-Claude Côté, stenographic notes, February 2, 2005 at 42.

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[486] Moreover, despite Ms. Magnan’s comment that [TRANSLATION] “top

management was always given a yearly presentation on the annual report, they always

supported us in developing results associated with the equity program”,⁵²⁸the Tribunal

notes that Gaz Métro’s top executives were markedly absent from the process, and

even during the trial, which also contributed to the mitigated results of the recruitment

process.

[487] The Gaz Métro staff members summoned to testify before the Tribunal were, for

the most part, technicians, secretaries, a secretary promoted to the position of advisor,

a former intern, a manager and a director. No high-level manager established the

company’s determination to remedy the under-representation of women in blue-collar

jobs or confirmed that such intentions were the reason for the special recruitment

competition.

[488] In the company’s top management, responsibility for implementing the program

essentially rested with Carole Magnan, of the human resources department. In her

testimony, she was unable to name any rigorous or systematic means deployed to

mobilize other managers, directors or executives for the special recruitment competition.

Rather, she said she did not want to shake things up and adopted an [TRANSLATION]

“inch-by-inch” approach:

[TRANSLATION]

[W]e had decided on a strategy of providing regular information without, however,

shaking things up. I would say our approach was more “inch-by-inch”; we wanted

to work gradually on the issue of equal access and beliefs.⁵²⁹

[489] Testifying about her collaboration with the CSN’s committee on the status of

women, Ms. Magnan indicated that work had to be done [TRANSLATION] “behind the

scenes” because otherwise, women would have been [TRANSLATION] “singled out”,

which, to her mind, would have resulted in reprisals:

[TRANSLATION]

We were also working with them [the CSN committee] behind the scenes, I would

say. I won’t hide the fact that women in non-traditional work are not necessarily—

I think it is the same everywhere in other fields as well—interested in being

singled out because they expose work situations in which they might be isolated,

bullied or anything else.⁵³⁰

[490] Furthermore, although the human resources department staff members were

impatiently awaiting the women’s grades on the selection examinations and despite the

testimony of Carole Magnan regarding the disappointment with their high rate of failure,

the evidence at the hearing showed that the search for appropriate remedial measures

was rather deficient. In cross-examination, Ms. Magnan mentioned that, in 1989, Gaz

528 Carole Magnan, stenographic notes, April 18, 2006 at 204; see also, to the same effect, the

stenographic notes of April 19, 2006 at 14-15.

529 Carole Magnan, stenographic notes, April 18, 2006 at 165.

530 Carole Magnan, stenographic notes, April 18, 2006 at 203-204.

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Métro acknowledged the need to validate the selection examinations and criteria, as a

way to correct various hiring rules and practices.⁵³¹But it was only in 1997 that, to that

end, the employer used the services of Lucien Aubé, whose validation exercise—need it

be repeated—was not conducted according to the candidates’ sex:

A. In ninety-five (‘95), we found that the exercise conducted by Mr. Raymond

and Mr. Bédard in ninety-two (‘92), the involvement of Mr. Charbonneau in

the matter, the involvement of our internal experts, the overhaul of the

examinations, the seriousness of the analysis, the caveats regarding our

intentions, the notion of accuracy and the notion of validity meant that we

believed our examinations truly evaluated … We believed that the

examinations were valid and that we did not need to validate them. They

were not evaluated by outside people; they were revised by our internal

experts. I would say our specialists, rather than our experts, our specialists.

Q. So there was no need for validation?

A. That’s right.⁵³²

[491] So despite a written agreement and Gaz Métro’s talk affirming its determination

to significantly increase female staff in the position of network operator, in the final

analysis many major shortcomings in the special recruitment competition raised doubts

about the importance that the company actually gave the operation, which essentially

contributed to maintaining the disproportionate exclusion of women from the position of

network operator.

SECTION 4. REMEDIAL MEASURES

[492] A number of candidates mentioned before the Tribunal that they found Gaz

Métro’s selection process to be an abnormally long ordeal, strewn with encouragements

and false hopes so that they would undertake and pursue an approach that was, to all

intents and purposes, destined to fail. Some of them invested years of preparation and

additional schooling in order to, year after year, take in vain examinations that never

enabled them to obtain the position of network operator.

[493] Having concluded that various aspects of Gaz Métro’s recruitment process were

discriminatory and that, more broadly, its institutional culture was coloured by biases

and unconscious prejudices unfavourable to women, the Tribunal must now determine

the appropriate remedies in the circumstances.

[494] In contrast to many cases of so-called “direct” or “indirect” discrimination,

remedial measures for situations of systemic discrimination include, in addition to

measures imposed in favour of each victim personally, certain orders aimed at

correcting the effects of the disproportionate exclusion of a group by targeting the

structural and institutional aspects at the root of that type of discrimination. By referring

531 Carole Magnan, stenographic notes, April 20, 2006 at 96-97. The witness was referring to Exhibit P-

24 at 20.

532 Carole Magnan, stenographic notes, April 20, 2006 at 95.

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to examples drawn from the jurisprudence, I will illustrate hereinafter the main principles

applicable in that area and will first focus on orders of a systemic nature (4.1), then on

individual remedial measures (4.2).

4.1

Orders of a systemic nature

[495] The characteristics of systemic discrimination call for remedies consistent with its

multiple and wholly specific causes. In Action Travail des Femmes,⁵³³the Supreme

Court established the following:

[I]n attempting to combat systemic discrimination, 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. …

MacGuigan J. [of the Federal Court of Appeal] stressed in his dissent that “the

prevention of systemic discrimination will reasonably be thought to require

systemic remedies”….⁵³⁴

4.1.1 Imposing an affirmative action program

[496] Evidence of a situation of systemic discrimination gives rise to the establishment

of affirmative action programs (hereinafter referred to as “AAPs”), under which it is

possible to hire, on a priority basis, people from the disproportionately excluded group

and to pursue a dual objective. If a standard favourable to the victim group must be

temporarily imposed in order to erase a distinctive situation,⁵³⁵it is also paramount that

remedial measures not target solely the elimination of specific practices at the root of

the discriminatory effects but also their structural, organizational and functional

components.

[497] The generally involuntary nature of systemic discrimination has led Canadian

tribunals to recognize the need “to refer to historical patterns of discrimination in order to

design appropriate strategies for the future”.⁵³⁶As Dickson J. said:

To render future discrimination pointless, to destroy discriminatory stereotyping

and to create the required “critical mass” of target group participation in the work

force, it is essential to combat the effects of past systemic discrimination. In

doing so, possibilities are created for the continuing amelioration of employment

opportunities for the previously excluded group. … Specific hiring goals … are a

rational attempt to impose a systemic remedy on a systemic problem.⁵³⁷

533 Action Travail des Femmes, supra note 27.

534 Ibid at 1145.

535 Commission scolaire des Samares v. Commission des droits de la personne et des droits de la

jeunesse, [2000] R.J.Q. 2542 (C.A.).

536 Action Travail des Femmes, supra note 27 at 1141, citing MacGuigan J. in his Federal Court of

Appeal dissenting opinion.

537 Ibid. at 1145; emphasis added.

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[498] In Québec, the rules for the establishment and deployment of AAPs are set forth

in Part III of the Charter. Such programs can be established “in employment, or in the

sector of education or of health services and other services generally available to the

public”.⁵³⁸

[499] If proof is adduced before a tribunal of “the situation of persons belonging to

groups discriminated against in employment”,⁵³⁹the Commission can seek to “obtain,

within the time fixed by the tribunal, an order to devise and implement [an affirmative

action] program. The program thus devised is filed with the tribunal which may, in

accordance with the Charter, make the modifications it considers appropriate”.⁵⁴⁰

[500] The provisions of the Charter are supplemented by the Regulation respecting

Affirmative Action Programs⁵⁴¹(hereinafter referred to as the “Regulation”), which

provides for their main components in more detail, including the following:

(1)

(2)

(3)

(4)

the objectives sought in regard to the greater representation of target

group members;

the steps required to remedy the effects of an observed discriminatory

situation;

a time-table for attaining the objectives and implementing the measures

proposed to that end;

the control mechanisms that would allow for assessing progress made

and problems encountered in carrying out the program and for

determining any required adjustments.⁵⁴²

[501] According to the Regulation, the objectives of an AAP are established taking into

consideration, among other things, an analysis of staff, availability and, more broadly,

the employment procedures in the undertaking, with a view to identifying:

the rules, directives, policies, decisions, contracts, agreements and the like, as

well as the way they are applied, which though apparently neutral have a

discriminatory effect in the management of the undertaking, without being

necessary for purpose of security or administrative efficiency.⁵⁴³

[502] It is particularly in that context that the procedures and requirements for

recruitment, promotion and transfer, the working conditions, and the training and

upgrading in a company are scrutinized.

538 Charter, s. 86.

539 Ibid; emphasis added.

540 Charter, s. 88.

541 Regulation respecting Affirmative Action Programs, R.Q. c. C-12, r.0.1.

542 Ibid. s. 2.

543 Ibid. ss. 3 et seq.

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[503] The measures deemed necessary to correct the effects of systemic

discrimination include equal opportunity measures designed to eliminate the

discriminatory practices in the company’s management and corrective measures that,

with a view to eliminating the effects of discrimination against a group of people,

“temporarily accord … certain preferences to its members”.⁵⁴⁴

[504] An employer to which an AAP applies must fulfil certain specific obligations: (1)

make its employees aware of the various types of measures adopted; (2) entrust

responsibility for implementing the program to an employee in a position of authority;

and (3) file with the Commission an annual report explaining all the activities initiated in

that context, the progress made, the problems encountered and any changes it would

like to see in the program.⁵⁴⁵

[505] The Charter gives the Commission the power to supervise the administration of

such programs.⁵⁴⁶In the event that one of the parties refuses to abide by the program

or new facts require modifications to the established program, the Commission can

apply to a tribunal to issue executory orders in that regard:

91. A program contemplated in section 88 may be modified, postponed or

cancelled if new facts warrant it.

If the Commission and the person required or having consented to implement the

affirmative action program agree on its modification, postponement or

cancellation, the agreement shall be evidenced in writing.

Failing agreement, either party may request the tribunal to which the commission

has applied pursuant to the second paragraph of section 88 to decide whether

the new facts warrant the modification, postponement or cancellation of the

program.

All modifications must conform to the Charter.

[506] In Commission scolaire des Samares, the Court of Appeal concluded that, once

the Human Rights Tribunal is seized by the Commission of an initial request to

implement such a program, the Tribunal, whose jurisdiction in that regard is provided for

in section 111 of the Charter, is the only authority empowered to settle disputes

stemming from the program’s application or decide whether new facts require

modifications:

[TRANSLATION]

[T]he rule is simple: The Tribunal initially seized of the matter settles the

subsequent problems. … The Human Rights Tribunal was created in 1990, at a

time when the implementation of an affirmative action program was permitted,

even by judicial means. At that time, the courts of general law were the only ones

with jurisdiction to dispose of requests for remedies made by the Commission

544 Ibid. s. 7.

545 Ibid. ss. 9-11.

546 Charter, s. 89.

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des droits de la personne. With the creation of the Human Rights Tribunal, the

129

legislator added a specialized judicial tribunal that, as a general rule, can be

seized of a matter only by the Commission. … for a ruling to be made regarding

a disagreement, the employer is obliged to accept the forum chosen by the

Commission des droits de la personne at the time of the request for

implementation of the affirmative action program.⁵⁴⁷

[507] The Court of Appeal stressed in these terms the particular logic of the system

provided for by the legislator, who:

[TRANSLATION]

… wanted and permitted the adjustment of orders as the situation of employees

and modifications in the state or condition of the employer concerned evolved.

That special legislative regime is, we note, a form of structural injunction, a

remedy according to which the judge monitors the application of his or her orders

and modifies them at times so that they achieve the ultimate remedial objective

sought.⁵⁴⁸

[508] Thus, that legislative empowerment allows the Tribunal to remain seized of a

case in which it ordered the implementation of an AAP, so that it can ascertain whether

the program abides by the requirements of the Charter at the time it is submitted, and

can modify, postpone or cancel it on the basis of new facts.

[509] In Action Travail des Femmes, the sole question before the Supreme Court

concerned the legality of the Canadian Human Rights Tribunal order. According to the

order, it was essential to impose an AAP on Canadian National so that the proportion of

women working in blue-collar jobs in that company would reflect at least approximately

the proportion (13%) of those holding similar jobs in the country as a whole. To achieve

that, the Canadian Tribunal had ordered the employer to set aside for women 25% of

the non-traditional positions to be filled in the future, during each quarter, until the

objective of 13% women was reached in that type of employment.

[510] The Supreme Court believed that those temporary preferential hiring measures

fostered the creation of a critical mass of female employees from the group whose

members were disproportionately excluded, thereby counteracting the cumulative

effects of the systemic discrimination and the biases underlying it. The Supreme Court

concluded that the order was lawful.

[511] The Canadian Tribunal had also ordered Canadian National to implement other

special temporary measures incidental to the implementation of the AAP, namely, to

undertake a publicity campaign to encourage women to apply for non-traditional

positions, and to appoint within two months of the decision “a person responsible with

full powers to ensure the application of the special temporary measures and to carry out

547 Commission scolaire des Samares v. Commission des droits de la personne et des droits de la

jeunesse, supra note 536, at paras. 22, 26 and 27; emphasis added.

548 Ibid. at para. 27.

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any other duties assigned to him by CN to implement this decision”.⁵⁴⁹Lastly, the

Tribunal ordered the employer to periodically submit to the Canadian Human Rights

Commission, throughout the duration of the program, detailed reports on the various

measures taken and the results obtained under the program.

[512] An eloquent illustration of the diversity and scope of the orders likely to be issued

for the implementation of an AAP is found in a more recent decision of the Canadian

Human Rights Tribunal. The Tribunal allowed the recourse of the complainants, who

were visible minorities and alleged systemic discrimination by the authorities of Health

Canada in the process leading to the appointment of managers.⁵⁵⁰

[513] As regards temporary corrective measures, the Canadian Tribunal ordered, in

particular, the appointment by the employer of members of visible minorities to certain

permanent senior management positions “at the rate of 18% a year (twice the rate of

availability) for five years, in order to reach 80% proportional representation of this

designated group into this category within this time frame”.⁵⁵¹Furthermore, to ensure

that the objective of those measures was achieved within the time frame, various

measures were imposed, i.e. the implementation of a special reporting measure for the

managers responsible for hiring new recruits, an obligation to explicitly mention the

existence of the AAP in all staffing notices for the positions to be filled, the appointment

of a person responsible with full powers to ensure the implementation of all the

temporary measures.

[514] The Canadian Tribunal also ordered Health Canada to have recourse to external

recruitment sources by making particular use of media aimed more specifically at visible

minorities and the unofficial networks of visible minorities within Health Canada itself

and in other federal departments and agencies. Various upgrading courses and

programs had to be offered more particularly to members of visible minorities in order to

enhance their qualifications, and training programs in supervising a cross-culturally

diverse workforce had to be given to current managers. Lastly, Health Canada had to

periodically report to the Canadian Human Rights Commission on the results of the

operation throughout its duration, by means of detailed quantitative reports.

[515] In her testimony before the Tribunal, Erika Boukamp Bosch mentioned that, to

correct the significant under-representation of women in the blue-collar job category at

Gaz Métro, an AAP containing preferential hiring measures should be implemented in

the company.

[516] Supplementing the analyses in her report on the rate of female representation

compared with the rate of female availability in regard to the position of network

549 The AFT case, supra note 35, para. 20030 at D/2416.

550 National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare), supra note

51.

551 Ibid. at para. 191 (1); emphasis added.

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operator,⁵⁵²Ms. Boukamp Bosch commented at the hearing⁵⁵³on the fact that, in 2003,

Gaz Métro had only 15 women in its 287-person semi-skilled manual labour category,⁵⁵⁴

a rate of representation of 5%. At the time, the rate of availability of women in that

category of employment was 21.5% according to the 1996 federal census. To bridge the

6.5% gap, 47 more women therefore had to be hired as semi-skilled manual workers.⁵⁵⁵

That situation led the expert witness to express the following opinion:

R. [B]etween nineteen ninety-seven (1997), … and two thousand and three

(2003), the company has one (1) additional woman in its workforce in this

semiskilled manual labour. The representation has gone up somewhat, it’s

now five per cent (5%) of the workforce, but that’s largely a result because

the semiskilled manual workforce became smaller. … [S]o whatever they did

in terms of hiring and so on has not made a significant impact on the gap

because the gap remains substantial. …

Q. [I]n light of the data that you have observed and in terms of the

representation levels that you have observed both in your report and here

before you, what in your opinion would be appropriate hiring objectives?

R. Now, the Act doesn’t define really how… what reasonable progress is, but the

Act requires to review your plans every three (3) years. So in that context, I

would definitely think that the company would have to step up its hiring rate,

they may want to hire at forty per cent (40%) or higher. Theoretically, you

would set it higher, theoretically, you would say, well maybe sixty per cent

(60%), but that becomes unreasonable under the Act, so.⁵⁵⁶

[517] Ms. Boukamp Bosch was referring to the provisions of the federal employment

equity legislation. According to the legislation, employers must make a reasonable effort

to make satisfactory progress with a view to achieving employment equity, which is

ultimately aimed at the full participation of under-represented groups. Hiring objectives

must therefore be established considering different factors such as equity toward the

other candidates or groups seeking to be hired, the rate of staff turnover and the hiring

volume.⁵⁵⁷

[518] In light of those parameters, Ms. Boukamp Bosch explained why it is preferable

to impose a preferential hiring rate above the rate of availability of women in semi-

skilled blue-collar jobs, in order to reduce the substantial gap between that rate (21.5%)

and their rate of representation (5%):

R. [I]f you continue to hire at that rate, you’re never going to breach that gap

because that gap is quite substantial. Yes, you’re only going to breach the

gap if finally your workforce is zero because the only progress made really by

552 See in that regard section 3.1.2.

553 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 21 et seq.

554 Note that that category, to which the position of network operator belongs, is part of the National

Occupational Classification: see section 3.1.2.

555 Ms. Boukamp Bosch was referring to Table 7 of Exhibit P-56, i.e. Gaz Métro’s 2003 annual report in

the framework of its participation in the federal employment equity program.

556 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 22, 23 and 25.

557 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 24.

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women is because the workforce became smaller, so relatively the

132

percentage of women went up. So, based on that, I would say the company

would probably have to hire… four (4) out of every ten (10) hires should be

women to make some reasonable progress.

Q. [A]nd if I put to you that, let’s say, in recent years, hypothetically, the hiring

rate has perhaps been in this group between ten (10) and thirteen per cent

(13%), would that be adequate in your view?

R. That would be below the minimum availability, first; and second, that would

never lead to an acceptable workforce because you hire… you continue to

hire under minimum availability rather than, as I suggest, that you would have

to hire at an accelerated rate, given the large gap that remains.⁵⁵⁸

[519] Cross-examined by Gaz Métro’s attorney, Ms. Boukamp Bosch acknowledged

that, in the absence of specific scientific data on the subject, her recommendation was

based on all the Gaz Métro data brought to her attention and on her experience in the

field.⁵⁵⁹Although she promised to provide, before the end of the trial, data issued by

Human Resources Development Canada for employers, she did not do so.

[520] France Landry, AAP advisor for the Commission, testified about the steps in

implementing the programs. They consist successively in diagnosing the under-

representation, developing the program itself, implementing it and, lastly, evaluating

it.⁵⁶⁰In that context, she gave four criteria to be considered in determining a preferential

hiring rate (or preferential appointment rate): (1) a sufficiently high rate to make it

possible to achieve results; (2) a rate that leaves leeway for other groups likely to avail

themselves of such measures; (3) a rate adapted to the change in the representation of

the group in question; (4) a rate adjusted according to the number of positions to be

filled.⁵⁶¹She indicated that the fewer positions to be filled, the higher the rate of

preferential appointment should be, and vice versa.

[521] Denise Perron did not comment on Ms. Boukamp Bosch’s recommendation

concerning a 40% preferential hiring rate for women in the position of network operator.

She essentially concluded that there was no under-representation of women in the

position of network operator. She also stressed the reasonableness of the numerical

hiring objective to which an employer can be subjected as part of an affirmative action

program.

[522] For the reasons mentioned earlier,⁵⁶²the Tribunal believes that Ms. Boukamp

Bosch’s analysis of the under-representation of women in the position of network

operator at Gaz Métro is superior to Ms. Perron’s. Considering the relevant legislative

provisions, their reception in Canadian law and the evidence adduced at the hearing,

the Tribunal feels it is necessary for Gaz Métro to establish an AAP, consistent with

558 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 26.

559 Erika Boukamp Bosch, stenographic notes, February 18, 2005 at 188 et seq.

560 France Landry, stenographic notes, March 15, 2005 at 60.

561 France Landry, stenographic notes, March 15, 2005 at 73.

562 See section 3.1.2.

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Charter provisions, in order to ensure, within a reasonable period of time, that women

are represented in the position of network operator at their rate of availability on the

labour market.

[523] To that end, the Tribunal notes the logic of the uncontradicted arguments of Ms.

Boukamp Bosch concerning the determination of an appropriate numerical hiring

objective. However, the rate of availability and Gaz Métro’s data on which her

recommendation was based date back to 2003. Hence, the Tribunal deems it preferable

for Gaz Métro and the Commission to determine an adequate preferential hiring rate on

the basis of data collected in the analysis of staff and availability that must be conducted

and according to the hiring forecasts for the position of network operator or its current

equivalent. Unless the data collected differ significantly from those analysed by Ms.

Boukamp Bosch, the parties must develop an AAP with a numerical hiring objective

comparable to the one recommended by that expert.

[524] To be consistent with the Charter and the applicable regulation, the AAP must

also include a set of additional measures. Let me mention the preparation of a timetable

for achievement of the objectives determined beforehand, identification of monitoring

measures that make it possible to gauge the progress achieved and adjustments to be

made, and the designation of an employee in a position of authority to be in charge of

applying the program.

[525] Given the evidence of discrimination already in the record and the additional

steps to be taken before it is realistically possible to implement the AAP, the Tribunal

grants Gaz Métro three months to develop the program in collaboration with the

Commission. After that deadline, Gaz Métro must submit the AAP to the Tribunal, which

may, “in accordance with the Charter, make the modifications it considers

appropriate”.⁵⁶³The Tribunal having also decided, during the trial, not to render any

order likely to affect the application of the collective agreement binding the employer

and the Syndicat, the AAP will concern the recruitment and hiring processes conducted

outside Gaz Métro ([TRANSLATION] “externally”) and those conducted

[TRANSLATION] “internally”, i.e. in the company, excluding, however, the CSN-certified

bargaining unit represented in this case by the Syndicat.

4.1.2 Modifying institutional policies and practices

[526] In order to “break a continuing cycle of systemic discrimination”,⁵⁶⁴the

permanent measures to neutralize institutional policies and practices are aimed at

thoroughly modifying the hiring procedure, and even the working conditions of the

members of a group disproportionately excluded. The measures may take various

forms, a few examples of which are provided in the jurisprudence.

563 Charter, second paragraph of s. 88.

564 Action Travail des Femmes, supra note 27 at 1143.

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[527] In the AFT case,⁵⁶⁵the Canadian Human Rights Tribunal ordered permanent

measures to neutralize common policies and practices. The employer had to

discontinue the physical tests not required of male candidates. It also had to discontinue

any mechanical aptitude test that disproportionately excluded women if it was not

warranted by the aptitude requirements of the positions being applied for. Furthermore,

Canadian National had to discontinue the requirement for welding experience for almost

all entry-level positions; modify its system for the dissemination of information on

positions available so as to improve visibility, and change the practices of the hiring

office in regard to female candidates and the system of interviewing candidates; provide

greater oversight of the role played by foremen in hiring; and maintain the adoption of

measures to counteract any form of sexual discrimination or harassment.

[528] In Green,⁵⁶⁶the Canadian Human Rights Tribunal concluded that the Public

Service Commission, the Treasury Board and Human Resources Development Canada

engaged in systemic discrimination against their employees with auditive learning

disabilities. Since the evidence showed a poor understanding by the staff of the nature

of the learning disabilities and effective measures to take them into consideration, the

Tribunal issued various remedial orders regarding the institutional procedures and

practices of the respondents. Let me mention the creation of an employee training

program concerning mechanisms to effect the accommodation of persons with learning

disabilities in their employment; the implementation of a procedure to review cases

where an individual with a disability does not come within the parameters of established

policies or procedures; a review of policies to ensure that they consider the needs of

candidates and are integrated into the training program for employees; the development

of a method for testing the aptitude of each individual that takes into consideration his or

her disability and the nature of the compensatory strategies used by that person.

[529] The importance of providing training for employees was also recognized in

Radek.⁵⁶⁷The British Columbia Human Rights Tribunal noted first that the facts in the

case did not make it possible to impose an AAP because the systemic discrimination

was against the Aboriginal clientele of a shopping mall and was engaged in by the

security guards of a company that no longer provided security services there. Stressing

that it was essential for the measures remedying that type of discrimination to be

adapted to the context proper to each case, the Tribunal accordingly imposed on the

owner of the mall various systemic measures, including the obligation to give all security

guards anti-discrimination training. The security guards must also be given adequate

explanations regarding applicable policies and receive support in performing their work

without discrimination. The members of the public who are concerned about the

behaviour of certain guards must have access to an effective internal complaint

mechanism.

565 The AFT case, supra note 35.

566 Green v. Canada (Public Service Commission), supra note 49.

567 Radek v. Henderson Development (Canada) Ltd., supra note 59.

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[530] The British Columbia Tribunal explained the general nature of the orders it issued

by the scant information it had regarding the more recent practices in force in the

shopping mall. It was of the opinion that the situation nevertheless provided the parties

with an opportunity to build new policies together, and the owner with an opportunity to

better understand the needs of the clientele served by the mall. To that end, the

Tribunal ordered the owner to consult with Ms. Radek and encouraged it to consult

various community organizations such as those involved with disabled and Aboriginal

persons. The Tribunal also reserved its jurisdiction for a period of six months in order to

rule, at the parties’ request, on any disagreement requiring additional orders.

[531] A much more exhaustive approach was taken by the Canadian Human Rights

Tribunal in the case opposing the National Capital Alliance on Race Relations and the

federal Department of Health.⁵⁶⁸When the personal skills of the members of visible

minorities were evaluated for managerial positions, the employer had to not only

evaluate the candidates experience but also the qualifications sought. Called upon to

establish selection juries composed of members of different communities with a view to

encouraging a bias-free process, Health Canada also had to see to the:

training to all managers and human resource specialists on strategies to recruit,

promote and retain visible minorities by providing guidelines and training on bias-

free selection and recruitment practices. This will also include sensitizing them to

diversity and employment equity issues, including systemic barriers.⁵⁶⁹

[532] The administrators also had to attend workshops on human rights legislation and

the benefits of a diverse workforce. In addition, Health Canada had to define clearly

beforehand the qualifications required for the managerial positions to be filled and

ensure that the criteria were known to everyone. Health Canada also had to develop in

advance the parts of the selection process aimed at assessing the qualifications needed

for certain positions, which would also be used when filling acting appointments.

[533] In the case at bar, some of the conclusions sought by the Commission in the

framework of the imposition of an AAP are linked to more permanent hiring policies and

measures. The facts as adduced and the rules applicable to them lead the Tribunal to

also order Gaz Métro to eliminate from the hiring process for the position of network

operator, or its current equivalent, criteria that disproportionately exclude women

without being warranted by the requirements of the position, for example, the obligation

to hold a class 3 driver’s licence when hired, the need for female candidates to have

prior experience in a non-traditional job and the use of mechanical questions taken from

the Bennett test.

[534] In that regard, the Tribunal deems it essential for Gaz Métro to adopt selection

criteria and tools that meet the requirements of criterion-related validation in order to

568 National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare), supra note

51.

569 Ibid. at para. 190 (3).

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ensure a better correlation between the actual requirements of the position of network

operator, or its current equivalent, and the qualifications and skills gauged in the

candidates for the position. Furthermore, so that female candidates for the position can,

in full equality with men, demonstrate their qualifications in terms of the actual

requirements of the position, Gaz Métro must adapt certain selection tests and tools and

equipment used in the tests, as well as in the training and on the job, to women’s

physical characteristics. Gaz Métro must also see that the people in charge of the

design and administration of the selection tools and tests deal equally, without

discrimination based on sex, with female candidates for the position of network

operator, or its equivalent. To that end, they must be given instructions including training

regarding the components of, and the measures to remedy, systemic discrimination in

employment against women.

[535] Lastly, from the perspective of fostering the development at Gaz Métro of an

institutional culture that is more sensitive to the sometimes more insidious, sometimes

more blatant, aspects of systemic discrimination in employment against women, the

Tribunal also deems it desirable for Gaz Métro to set up a joint committee composed of

representatives of management and women in the position of network operator, or its

current equivalent, in order to fight sexual and sexist harassment at work.⁵⁷⁰

4.2

Individual measures

[536] According to section 49 of the Charter, any unlawful interference with a right or

freedom recognized by the Charter entitles the victim to obtain the cessation of such

interference and compensation for the material or moral prejudice resulting therefrom,

not to mention punitive damages if the interference is both unlawful and intentional.

When the Commission acts in those circumstances on behalf of a victim, it applies to a

tribunal in order to obtain, “where consistent with the public interest, any appropriate

measure against the person at fault or to demand, in favour of the victim, any measure

of redress it considers appropriate at that time”.⁵⁷¹In Canada, specialized human rights

tribunals have also granted remedial measures of that nature in cases in which there

was a finding of systemic discrimination.

4.2.1 Measures related to material prejudice

[537] Having concluded, in Green,⁵⁷²that the discrimination against employees with an

auditory learning disability was systemic, the Canadian Human Rights Tribunal

reiterated the principle of restitution to the original position (restitutio in integrum). It

accordingly ordered the defendant to compensate for the wages lost by the complainant

and pay her a lump sum of $69 895.25, an amount corresponding to the period between

570 Note that, in Québec law, harassment in the workplace on the basis of sex also constitutes sexual

discrimination: Habachi v. CDPDJ [1999] R.J.Q. 2522 (C.A.); the Court of Appeal upheld the Tribunal’s

conclusion to that effect.

571 Charter, s. 80.

572 Green v. Canada (Public Service Commission), supra note 49.

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the start of the discrimination and start of the proceedings. The Canadian Tribunal also

ordered the employer to pay her a total amount equal to monthly payments of $825.66

to cover the period of the proceedings. Added to those amounts was a gross-up to

compensate the complainant for the adverse tax implications stemming from the lump-

sum receipt of those amounts. The amount of the gross-up was to be determined by the

compensation department of one of the respondents, and the Tribunal would retain

jurisdiction in the event of the parties’ disagreement.

[538] As a supplement, the Canadian Tribunal also ordered the adjustment of the

pension provided for by the employer in order to reflect the salary the victim would have

received in the management position she would have obtained but for the discrimination

against her; the payment, on all the amounts owed the victim, of compound interest at

the Canada Savings Bonds rate, calculated from the date of the discriminatory practice;

and the payment of $4057.22 for the costs of legal advice.

[539] The awarding of compensation for the loss of chance is examined in

Ayangma.⁵⁷³The Prince Edward Island Human Rights Commission had concluded that

the refusal to hire a candidate from a visible minority as a race relations consultant was

more broadly part of a hiring process coloured by unconscious bias in favour of people

who were already part of the system, to the exclusion of minority candidates. In favour,

in principle, of the awarding of such material compensation, the Court concluded,

however, that there was no evidence in support of that claim:

The primary difficulty lies with the total lack of any evidence of any damages

suffered by the plaintiff. It would appear that there was a loss of chance, but the

plaintiff has produced no evidence regarding his efforts in this regard and

whether or not his subsequent employment resulted in any actual loss. There is

thus no basis upon which to award any type of special damages.⁵⁷⁴

[540] Authors Baudouin and Deslauriers characterize material compensation on the

ground of loss of chance in Québec civil law as follows:

[TRANSLATION]

The jurisprudence also compensates for the loss of a chance. In that case, it is

not the actual loss that the court seeks to compensate, but rather the

disappearance, because of the wrongful act, of the chance to either avoid a loss

or realize a profit.

The theoretical difficulty is that the prejudice for which a claim is made is not only

in the future but, by its very definition, random. If the wrongful act had not

occurred, no one could say with certainty whether the loss could have been

avoided or the profit realized. However, the courts, recognizing that the simple

573 Ayangma v. Govt. of PEI, supra note 43.

574 Ibid. at para. 142.

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loss of chance can constitute direct prejudice, can award damages as an

exception.⁵⁷⁵

[541] Laferrière v. Lawson,⁵⁷⁶still the landmark ruling in that field, defines the scope

that the theory of the loss of chance must have, more particularly in medical

responsibility matters.⁵⁷⁷Considering the difficulties of proof in this area and,

particularly, proving the nature of the causal link required, the Supreme Court

established in that ruling that causation must be determined according to the usual

system of preponderant probability. Accordingly, the loss of a simple chance cannot

constitute damage that can be compensated and “the theory of loss of chance [should

not] be introduced into the civil law of Quebec in matters of medical responsibility …”.⁵⁷⁸

[542] However, more generally, Gonthier J. was careful to mention certain situations

conducive to that type of compensation, even if it is not certain that the alleged fault

caused the damage. He wrote the following on behalf of the majority:

[I]t is no obstacle to recovery that the damage in question was not certainly caused

by the alleged fault; it is sufficient that it is made real and credible by a combination

of factual and statistical evidence. Accordingly, a judge may, without violating the

general rules of causation, link the fault to contingent damage, provided that he or

she is satisfied that such a link has been established with sufficient evidence as to

that which would normally occur or that which follows in the normal course of

events.

…

Where the fault of the defendant has already been established and where no other

identifiable competing causal factors have been identified, it may be open to the

judge to evaluate the damages according to the chance alone.⁵⁷⁹

[543] The Tribunal has ordered the payment of that type of damages in different

situations in which there was no systemic discrimination. In Boucher,⁵⁸⁰a person with a

visual disability was not allowed to retake a written examination that included

accommodation measures. According to the Tribunal, although it was not certain that

the person would have obtained the position upon completion of the selection process,

the failure sustained further to the refusal to grant him any accommodation deprived him

of the chance to be on the list of candidates able to perform a job in the public service.

575 Jean-Louis Baudouin and Patrice Deslauriers, La responsabilité civile, 7th ed., Vol. 1 (Cowansville,

Qc.: Yvon Blais, 2007) at 355.

576 Laferrière v. Lawson [1991] 1 S.C.R. 541.

577 The Supreme Court in fact refers to it in a more recent ruling on a similar question: St-Jean v.

Mercier, [2002] 1 S.C.R. 491.

578 Laferrière v. Lawson, supra note 576 at 608.

579 Ibid. at 602-603.

580 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Québec (Procureur

général) (March 9, 2005), Québec 200-53-000029-046, J.E. 2005-780 (QC T.D.P.).

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That loss called for restitution assessed at $1000.00 by the Tribunal, given that the

victim obtained a permanent job a few months later.

[544] In another case, in which discrimination based on civil status and a handicap in a

hiring process was found,⁵⁸¹the Tribunal stated that no one knew what would have

happened in the victim’s career if she had obtained the position she wanted. Inasmuch

as the variety of a person’s experience is likely to enrich the person’s CV and increase

the person’s potential value on the labour market, the Tribunal considered that the

missed chance could have been a springboard for her toward new occupational

horizons. The Tribunal therefore deemed that the alleged loss of chance appeared real

and that she had to be compensated in the amount of $2500.00.

[545] Lastly, the Tribunal also ordered the payment of $2500.00 for loss of chance to a

candidate who was not hired on the ground of age. The Tribunal mentioned that, in

addition to moral prejudice, an individual can also sustain direct prejudice because of

loss of a chance resulting from the discriminatory rejection of his candidacy, which

definitively closed the door to a position or employment without his enjoying the same

consideration as the other candidates in the evaluation of their files. Hence, although it

was not certain that he would have obtained the position after completing the selection

process and although the employer was not obliged to offer him the position, the sole

fact that his candidacy was rejected so cavalierly and on a discriminatory ground

resulted in [TRANSLATION] “loss of a chance” and required restitution.⁵⁸²

[546] In the case at bar, in which seven victims oppose Gaz Métro, the Tribunal

believes that only Marie-Claude Côté must receive compensation for loss of salary. The

difference between her and the other victims is that she was the only one to have

successfully completed, in 1997, all the stages in the selection process before

undergoing a medical examination. For the reasons given earlier,⁵⁸³the Tribunal does

not accept the employer’s contention that the rejection of her candidacy retroactively, in

a manner of speaking, was explained by a reasonable doubt about her capacity to

successfully undergo the training process inherent in the position of network operator.

The Tribunal concludes that it was more likely that, in the circumstances, Gaz Métro’s

change of mind, which was surprising to say the least, is instead explained by the

information in Ms. Côté’s medical report and, more specifically, by her pregnancy.

[547] Hence, Gaz Métro must pay Ms. Côté an amount equivalent to the salary she

would have received as of October 1997, for the first six months of her training as a

network trainee. That amount must be established according to the report,⁵⁸⁴which was

uncontested on that point, of Marc Fortier, public accountant presented as a witness by

581 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Institut Demers inc.,

[1999] R.J.Q. 3101 (QC T.D.P.); discontinuance on appeal.

582 Québec (Commission des droits de la personne et des droits de la jeunesse) v. Nicolet (Ville de),

[2001] R.J.Q. 2735 (QC T.D.P.).

583 See section 3.3.6.

584 P-90, supra note 13.

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the Commission. The Tribunal believes that it cannot award more in that regard since it

cannot know for certain whether Ms. Côté would have passed the disqualifying

examination provided for at the end of that period. Should that situation have adverse

tax implications because of the payment, for lost salary, of that lump sum during a

single taxation year, Gaz Métro must also pay Ms. Côté a lump sum established in

accordance with the method in the report⁵⁸⁵prepared by Richard Joly, public accountant

presented as a witness by Gaz Métro.

[548] The Tribunal also awards $10 000.00, i.e. the total amount sought for the loss of

a chance, to Johanne Bolduc and Shirley Thomas each, who, after passing the

theoretical examination, were not allowed to complete the selection process because

they failed the practical examination. Bear in mind that the Tribunal has concluded that

the practical examination had a disproportionately exclusionary effect on the women,

preventing them from demonstrating their real qualifications and skills with a view to

filling the position of network operator.

[549] As for the other victims, namely, Line Beaudoin, Joan Dupont, Nicole Trudel and

Tania Plourde, the Tribunal assesses at $5000.00 their respective loss of a chance.

Note that the first two women were excluded at the pre-interview stage, whereas the

last two failed the theoretical examination. Accordingly, the Tribunal believes that these

four victims also lost a chance to be hired as network operators, but to a lesser degree

than those who passed those stages of the selection process.

4.2.2 Measures related to moral prejudice

[550] Evidence of moral damages sustained by a victim of systemic discrimination also

makes it possible to obtain compensation in that regard. In Ayangma,⁵⁸⁶mentioned

earlier, the tribunal of first instance concluded that no evidence was adduced by the

complainant of prejudice of that nature.⁵⁸⁷

[551] In Radek,⁵⁸⁸the complainant was personally awarded $15 000.00 in

compensation for moral prejudice stemming from interference with her dignity as an

Aboriginal woman having sustained discrimination by the security guards of a shopping

mall. The Tribunal stressed that the damage to Ms. Radek occurred in a broader social

context:

When one considers the historical reality of racism suffered by Aboriginal

Canadians generally, and in Ms. Radek’s case in particular, it is reasonable to

conclude that the impact on her of the discrimination she suffered from the

585 D-103, supra note 20.

586 Ayangma v. Govt. of PEI, supra note 43.

587 The complainant appealed from the Tribunal’s conclusions in regard to damages. The Appeal

Division of the Supreme Court of Prince Edward Island dismissed the main appeal but allowed the

incidental appeal of the provincial government: (2001) PESCAD 22.

588 Radek v. Henderson Development (Canada) Ltd., supra note 59.

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respondents may have been especially severe. As in tort law, the perpetrator of

141

discrimination takes its victim as it finds her. If past traumatic experience make a

person more vulnerable to the effects of repeated instances of discrimination, it is

the discriminator, not the victim, who must bear the compensatory burden.⁵⁸⁹

[552] In the case at bar, the Tribunal believes that the moral damages sought must be

awarded individually, according to the evidence adduced at the hearing. Marie-Claude

Côté was the victim who sustained the greatest prejudice. Remember that she passed

the interview stage in 1995 and was told that she had the right profile. However, the

same year, she failed the theoretical examination. Sylvie Richard told her she was an

excellent candidate and that she should take mathematics and physics courses with a

view to taking the examination again. Ms. Côté took part in the pilot project and failed

the theoretical examination again, in 1996. She passed it in 1997, after which she

underwent the medical examination, the last stage prior to hiring. Restrictions were

indicated in her medical report. Her candidacy was rejected. Feeling [TRANSLATION]

“completely shattered”⁵⁹⁰after the pilot project was abandoned and after failing the

theoretical examination for the second time, she testified as follows about the whole

process she underwent at Gaz Métro:

[TRANSLATION]

Well, that was the longest process I ever had to go through for a job. …

It affected me in many ways. As regards the pilot project in particular, you know, I

had made such an effort and that … really affected me inside and, you know, I

wondered … I wondered about it. …

I found it so inconceivable that … yes. I wondered about it afterward and I even

went through another process. But what I tell myself now, my question, what

hurts me most in all that is that in ninety-five (‘95), I was … I was the best, and

they were ready to let me in a pilot project. Then in ninety-seven (‘97), I had

passing grades and I wasn’t taken. I don’t understand it. So … it’s really beyond

my understanding … I have trouble expressing it, because … In any case, that

raised all kinds of questions in my mind. I had to take many steps, an enormous

number of steps and, in spite of all of them, nothing happened. It was very

disappointing. Great disappointment. And I felt it wasn’t serious and …

…

First, what happened? It seems to me that I did what I had to do … you know. I

asked myself and always wondered what happened, why. And it wasn’t clear and

no one gave me explanations. I felt like a number and … If I had been told

something else, maybe it would have been different. But that’s what I was told. I

can live with it and … you know. There aren’t tons of good employers. It’s hard

for a women to find a job in a non-traditional workplace. In the private sector,

they don’t have affirmative action programs. We all realize that … it’s hard out

there. It’s difficult to explain, but that’s still the reality. You know, you take a

589 Ibid. at para. 647; emphasis added.

590 Marie-Claude Côté, stenographic notes, February 2, 2005 at 40-42.

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linemen’s course, but where can you go with it, apart from Hydro? Contractors,

142

they … they’re he-men. They see you coming and you’re five (5) feet tall. Those

people don’t hire you. Yeah, it’s true. You find barriers everywhere. Where are

the affirmative action programs for you? They’re useful in any case.

…

That’s what happens when you hear such lies, you know. Affirmative action

programs, well … I don’t believe in them any more. Sorry.⁵⁹¹

[553] The Tribunal therefore finds that the $20 000.00 sought in moral damages is

appropriate in Ms. Côté’s case.

[554] Gaz Métro must also pay five other victims $15 000.00 each.

[555] After being told by Sylvie Richard that she had the ideal profile, Johanne Bolduc

passed the theoretical examination only on her third try, in 1997. She then failed the

practical examination, with a grade of 35%. The evaluator suggested that she buy an

electricity kit at Radio Shack in order to prepare to take the examination again. Here is

the substance of her testimony regarding the damage sustained:

[TRANSLATION]

Well I actually found the written exam, I found it hard. Not hard in the sense of

hard to do, but to see the exam as connected with a mainly manual job to be

done … also, I knew there were a few calculations involved, but first I found it a

little difficult to make the link between the two (2).

But I also found that, with my experience, it was difficult … psychologically,

because I had also submitted many other applications, too. I had a few

interviews. Everywhere, I had more or less the ideal profile, but it was never …

How can I say it? I had a spouse who gave me lots of support, because I was

discouraged by having to go through the process three (3) times and, in the end,

see that nothing came of it. It was pretty hard.

In fact, I had two (2) young children and I had to find part-time work to make ends

meet. That wasn’t easy either.

It was a feeling of rejection to a certain extent that I felt at Gaz Métropolitain.⁵⁹²

[556] Despite her airplane pilot’s licence and her jobs on a dairy farm and in a sugar

bush, Joan Dupont was told by Jean-Pierre Raymond that her experience in non-

traditional work was not relevant and that she did not have the profile. She had already

taken steps to obtain a class 3 driver’s licence and had studied for the tests. She

testified as follows:

591 Marie-Claude Côté, stenographic notes, February 2, 2005, pp. 71-74.

592 Johanne Bolduc, stenographic notes, January 31, 2005 at 70-71.

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[TRANSLATION]

143

[I] was very disappointed because I had studied for those tests. I went to libraries

and the friend who supported me in the steps I took also gave me books on

electricity, among other things, and helped me prepare for my examination.

…

I felt I was at a turning point in that I had … my son, given that he had reached

the age of eleven (11), I felt a little like I was at a turning point in my career. And

after looking for work in job search clubs and by myself, too, I realized that non-

traditional work, it was … in any case, I wanted to go for it.

…

In my case … it’s because I had a lot of … I really placed a lot of hope in that job.

For me, it was like truly taking up a challenge, because I was very aware that I

wasn’t … that … in any case, that truly represented a challenge I really wanted to

take up. When I saw that it didn’t pan out, but rather quickly, that I didn’t get very

far in the process, I was very disappointed. But it’s certain that I questioned a

little the path I had taken.

…

I applied in many places and all, but I can tell you that being given the answer on

the spot, that was the first time that happened in my life and I really ran to the

washroom because I … in any case, I was really disappointed, you know,

because I had made such an effort. I had actually set the process in motion to

get my class 3 licence and all that. I had studied.⁵⁹³

[557] Tania Plourde failed the written examination in 1995. Sylvie Richard told her she

had the right profile and suggested that she submit her candidacy again after taking

mathematics and physics courses. She obtained her class 2 licence, but despite her

interest, she could not be part of the pilot project because she was not among the five

best candidates. She called Sylvie Richard several times and Ms. Richard told her each

time that there was no opening. She stopped calling during the summer of 1996. She

questioned her career path and ultimately took a course in legal techniques, which she

completed in 2000. She then realized that she really preferred manual work out-of-doors

and she reactivated her card in order to work in the construction industry. Here is how

she summarized her experience with Gaz Métro:

[TRANSLATION]

At first, I was thrilled. I was, as I wanted to say earlier, on a high. I was geared

up. I said: “Great …”. I said … I saw that as a wonderful opportunity to

experience something else, to see, to learn. And then, as the process went

along, well, I slowly, not quickly, became disenchanted. I told myself … I even

asked myself: “Do they really want this?”. You know …

593 Johanne (Joan) Dupont, stenographic notes, February 1, 2005 at 50-51, 54 and 58-61.

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That was it. That made me … I even lost confidence at one point. As I said

144

earlier, you know. I went back to Cegep because of that. I asked myself. I said:

“Listen, you know, maybe I made a mistake. Maybe I’m not made for this”. You

know, I really … in any case. I … That discouraged me. I really lost confidence.

Hearing that I was … I had the ideal profile, that I would be … And it was also the

way it was put, the way I was told. And it was a whole series of events, innuendo,

looks, that meant that, yes, damn it, you know, probably, you know, I would have

a chance to see, to experience something else. And it was a good company, Gaz

Métropolitain. No reason to hide that either. It’s like Hydro-Québec. And in the

end, to be told: “Well, listen, call back, call back again, call back again”. Well, that

was really discouraging.⁵⁹⁴

[558] In 1995, Shirley Thomas succeeded in the interview, in which she was told that

she had the ideal profile. At the time, she had her own tree-pruning business. She failed

the theoretical examination the same year, then participated in the pilot project. She

passed the theoretical examination in 1996, but failed the practical examination.⁵⁹⁵She

tried again the following year, but failed the theoretical examination. According to her

testimony:

[TRANSLATION]

It was terrible. They built us up and then it came to nothing. I felt crushed, good

for nothing. I couldn’t get over it after my DCS marks. It was beyond belief to get

such marks. In any case, you know, I was really fed up with them and all the

other companies offering non-traditional work, because, every time you apply, it’s

always the same, you know. Nothing ever happens. Are you afraid to get dirty,

Ma’am? If they saw me after a day’s work …

…

So … I was discouraged, broken.⁵⁹⁶

[559] As for Line Beaudoin, in 1995 she attended an information session following

which she was called for an interview. A few days later, Sylvie Richard left her a

message on her answering machine informing her that she did not have the job profile

and had not been accepted:

[TRANSLATION]

No, I didn’t have an opportunity to go on to another stage in the selection

process. I would so have wanted to pass that stage, to go and see, to be able to

take the written or physical tests and have a chance to see for myself how I’d do.

Because it’s as if … well, I would have liked to be able to test that aspect. It was

something important to me.

…

594 Tania Plourde, stenographic notes, February 1, 2005 at 185-186.

595 The Tribunal recalls that she was given the wrong test, the one for service employees rather than the

one for network operators.

596 Shirley Thomas, stenographic notes, February 8, 2005 at 114-115.

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In fact, when I had to find all my papers, including my tax returns, I realized that,

145

since nineteen ninety-five (1995), I'd been getting poorer, like a lot of people in

fact, but if I had had access to that position, it would definitely have been a clear

improvement for me financially and also from the standpoint of my quality of life.

So I had to tighten my belt, sometimes drastically, in order to make do until the

end of the tax year. I had to use … people helped me out financially.

Those were particularly difficult years between nineteen ninety-five (1995) and

nineteen ninety-eight (1998). I took a lot of steps to find a job. The labour market

being what it was, it wasn’t always easy, even if you had specific training.

So, for me, being able to work in a position, even if it was a non-traditional one,

and with what Gaz Met seemed to want in terms of qualifications, it seemed to

me that aspect was completely open to me.

…

So I was simply very disappointed and some of my dignity as a woman was

taken from me because it was as if I were told that, because I’m a women, the

position was simply not open to me. So that was how I experienced it, really a lot

like rejection.

…

Well I told myself that, because I’m female, I don’t have the same chances,

simply because of my sex, to hold a position that would be well-paid, stable, with

job security and fringe benefits, like one at Gaz Met, a company with a very good

reputation in that regard. So I had hoped to have access to all that, to those

benefits.

…

Yes, at one point, psychologically, I found myself with no safety net, too. Despite

the fact that I have friends and all that, you still need a minimum amount of

money to live and you ultimately begin to question yourself. So that was, I would

say, a rather dark period for me.

And also the fact that, in the other steps I took, there wasn’t necessarily … I had

tiny contracts here and there, but I … I found that hard, and was also dissatisfied

with myself and said to myself … it’s as if I had trouble making my place in the

world and making a proper living.⁵⁹⁷

[560] Lastly, the Tribunal assesses at $10 000.00 the moral prejudice sustained by

Nicole Trudel. She first failed the theoretical examination in 1995, then again in 1997.

Here is the evidence adduced in that regard in her testimony:

597 Line Beaudoin, stenographic notes, January 31, 2005, pp. 205-206, 208-211.

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[TRANSLATION]

146

Well, it was a job I wanted. That’s certain. It was a good job, and I like physical

work and I like driving, too. It was really a job I wanted, for the long term.

…

Of course it was a disappointment because I had a lot riding on that job, given

that … I was really encouraged because I truly believed that I had what it took to

be in that line of work. And, yes, I was very disappointed … that my candidacy

was not accepted.⁵⁹⁸

4.2.3 Punitive damages

[561] The Charter penalizes in a particular manner intentional discriminatory acts. If

proof of such acts is adduced, a tribunal can order the person who engaged in the

discrimination to pay punitive damages, which are to have a dissuasive effect for the

future. As established by the Supreme Court, unlawful interference in the right to

equality in employment is also intentional:

when the person who commits the unlawful interference has a state of mind that

implies a desire or intent to cause the consequences of his or her wrongful

conduct, or when that person acts with full knowledge of the immediate and

natural or at least extremely probable consequences that his or her conduct will

cause. This test is not as strict as specific intent, but it does go beyond simple

negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to

the consequences of his or her wrongful acts will not in itself satisfy this test.⁵⁹⁹

[562] In Green, the Canadian Human Rights Tribunal mentioned the moral prejudice

that ten years of institutional discrimination caused the victim, who was evaluated as

“totally dedicated and committed” and had continued to be the consummate

professional in her employment duties. The Tribunal stressed the deeper impact of the

employer’s refusal to take her disability into consideration, a refusal “exacerbated by its

practices and attitudes”:

[O]n a balance of probabilities, Ms. Green’s self-evaluation that her career was

“over” was correct. The discriminatory practice of the employer led to ten years of

employment doldrums for Ms. Green. In her own words, her career had become

a “job”.

… but for the discriminatory practice of her employer, there is a reasonable

likelihood that Ms. Green’s career would have bloomed further and promotions

well beyond the PM-6 level would have moved Ms. Green along her career

path.⁶⁰⁰

598 Nicole Trudel, stenographic notes, February 1, 2005 at 117 and 120.

599 Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand [1996] 3 S.C.R.

211 at para. 121.

600 Green v. Canada (Public Service Commission), supra note 49.

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147

[563] Therefore, the Canadian Tribunal ordered the respondents to pay the victim the

maximum of $5000.00 provided for at the time, in subsection 53(3) of the Canadian

Human Rights Act,⁶⁰¹if the discriminatory practice was engaged in “wilfully or

recklessly”.

[564] In the AFT case,⁶⁰²the Canadian Human Rights Tribunal concluded that the

intentional nature of the discriminatory hiring practice was an element relevant to its

discretion in imposing an affirmative action program or not. Bear in mind that, in light of

the report prepared at its request on the situation of women in the company, the

Tribunal concluded that Canadian National established its hiring practices while aware

of their exclusionary effects.

[565] As indicated earlier, the Tribunal believes, in the case at bar, that the operational

staff who designed and administered the recruitment competitions held from 1995 to

1997 at Gaz Métro did not have the knowledge and, even less so, the expertise

required to set up an effective process to recruit women for the position of network

operator.

[566] As regards the company’s top management, it will be recalled, first, that Gaz

Métro knew, as of 1989, that it had to correct various hiring rules and practices by

conducting a criterion-related validation of its selection tests and tools.⁶⁰³Let me also

point out its participation in the Federal Contractors Program, set up in the wake of the

Abella report (1984) and the ruling in Action Travail des Femmes (1987) regarding

systemic discrimination in employment against women. In that context, Gaz Métro must

have been aware of the extent of the chronic problem of female under-representation in

blue-collar jobs and therefore of the need to implement measures capable of remedying

that complex phenomenon.

[567] The problem of under-representation still existed in 1995. But when the company

decided to recruit women on a priority basis, it gave employees untrained in that field

responsibility for carrying out a recruitment process that, two years later, resulted in a

trifling number of newly hired women.

[568] Apart from the role played by Carole Magnan, the evidence of record is silent

regarding the involvement of top management in the issue, which, as a leader among

Québec companies, Gaz Métro most certainly should have dealt with more strictly and

with more professionalism. The Tribunal also noted the complete absence of Gaz Métro

senior officers at the trial, during which a number of witnesses testified regarding the

company’s hiring practices and their disproportionately exclusionary effects on female

candidates for the position of network operator from 1995 to 1997.

601 Canadian Human Rights Act, R.S.C. 1985, c. H-6.

602 The AFT case, supra note 35 at para. 19778.

603 See to that effect the testimony of Carole Magnan, as mentioned in section 3.4.3.

500-53-000204-030

148

[569] For all these reasons, the Tribunal believes that Gaz Métro showed more than

simple negligence and more than a wild and foolhardy lack of concern. Despite its legal

obligations, the scope of which it had to realize, the company relied, in a manner of

speaking, on some of its employees and, despite the absence of conclusive results, it

let the operations continue with no deep thought about the causes of the difficulties

encountered or the means to effectively remedy them. In that context, the Tribunal

believes that the company had to be aware of the [TRANSLATION] “extremely

probable” consequences of its decisions and acts.

[570] Accordingly, the victims in this case are entitled to obtain from the defendants

punitive damages, formerly called “exemplary damages”, because of the exemplary

nature and the dissuasive effect contemplated by that remedial measure. As regards

Marie-Claude Côté, who went through a discriminatory process and who was not hired

because of her pregnancy, the Tribunal awards the full amount of punitive damages

sought, i.e. $10 000.00. Gaz Métro must also pay $7500.00 to each of the six other

victims in that regard.

4.2.4 Employment integration and other measures

[571] Section 49 of the Charter also provides for the right of a victim of unlawful

interference to have the interference cease. In cases of discrimination in hiring or during

employment, its application has given rise to remedial measures distinct from those of

general law:

[TRANSLATION]

In private law, the reinstatement in their employment of employees dismissed in

a discriminatory manner or relieved of their duties on the ground of a refusal to

agree to undesired sexual advances is part and parcel of that objective of

correction of a violation of fundamental rights. To give effect to the novelty of the

proceedings and applications that may stem from that provision, Québec courts

have set aside the traditional rule that wrongful dismissal cannot give rise to

reinstatement by court order. Hence, they have recognized that victims of

discriminatory dismissal can be reinstated in their employment, such a

mandatory order being the appropriate means to obtain the cessation of the

interference with the Charter-protected right.⁶⁰⁴

[572] In Larocque,⁶⁰⁵the Supreme Court determined the remedial measures that the

Tribunal could order in a situation where discrimination based on the handicap of a

applicant for a position as a police officer stemmed from a hiring standard provided for

in a provincial regulation. In doing so, it considered that the Court of Appeal should not

have limited itself to a purely declaratory remedy by concluding that no order to cease

604 Sylvie Gagnon, “Quelques observations critiques sur le droit à une réparation selon la Charte des droits

et libertés de la personne” in Barreau du Québec and Tribunal des droits de la personne (ed.), La Charte

des droits et libertés de la personne : Pour qui et jusqu’où? (Cowansville, Qc.: Yvon Blais, 2005) 261 at 307-

308.

605 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine

de Montréal, [2004] 1 S.C.R. 789.

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the infringement could be issued in the absence of a wrongful act. According to LeBel

J., with whose reasons the Court agrees:

[E]nactments such as the Quebec Charter occasionally require intervention that

is in no way related to the law of civil liability. It is sometimes necessary to put an

end to actions or change practices or procedures that are incompatible with the

Quebec Charter even where there is no fault within the meaning of the law of civil

liability. The law of civil liberties may draw upon the law of civil liability where

circumstances warrant. The law of delict does not set limits on the enforcement

of the law of civil liberties. Thus, in the context of seeking appropriate recourse

before an administrative body or a court of competent jurisdiction, the

enforcement of this law can lead to the imposition of affirmative or negative

obligations designed to correct or bring an end to situations that are incompatible

with the Quebec Charter.⁶⁰⁶

[573] In the other jurisdictions in Canada, specialized tribunals responsible for

awarding restitution in the case of interference with human rights are also empowered

to order measures to put an end to the interference. As certain authors have noted:

“Such remedial powers include the power to reinstate and where the individual has lost

promotional opportunities, the tribunal may even reinstate that person at a higher

position”.⁶⁰⁷

[574] In Uzoaba,⁶⁰⁸the division of first instance of the Federal Court upheld an order to

that effect issued by the Canadian Human Rights Tribunal, which concluded that

Correctional Service Canada had evaluated an employee in a discriminatory manner,

on the ground of his race. Rothstein J., since appointed to the Supreme Court, upheld

the order to reinstate the employee “on the first reasonable occasion” at a higher level

than the one he held. Justice Rothstein pointed out, to that end, the precedence of the

provisions of the Canadian Human Rights Act over those of the federal Public Service

Employment Act, as well as the fact that the Tribunal issued its order in accordance with

the evidence available to it:

[T]he jurisdiction of the Public Service Commission and the process respecting

promotions within the Public Service must give way in those rare exceptions

where promotions have been denied based on discriminatory reasons and where

a Tribunal, acting within its jurisdiction under the Act, orders a promotion in order

to remedy the results of discriminatory action taken by the employer. …

…

606 Ibid. at para. 26. According to the Supreme Court, the appropriate remedy consisted in this case in a

declaration of the right, along with an order enjoining the defendant to examine the appellant’s candidacy

without taking his handicap into consideration.

607 Anne L. MacTavish and Andrew J. F. Lenz, “Civil Actions for Conduct Addressed by Human Rights

Legislation – Some Recent Substantive and Procedural Developments”, (1996) 4 C.L.E.L.J. 375 at 386.

608 Canada (Attorney General) v. Uzoaba, (1996) 26 C.H.R.R. D/428 (F.C.).

500-53-000204-030

While an order of reinstatement at a higher level is an extraordinary remedy, it is,

150

in my view, recognized by the Act, provided the order is circumscribed by the

limitation “on the first reasonable occasion” and by other limitations in the Act. …

…

There was some evidence indicating a serious possibility Dr. Uzoaba would have

attained the level of WP-5 by the time of the Tribunal’s decision.⁶⁰⁹

[575] Green⁶¹⁰also provides an example of that type of remedy in a context of

systemic discrimination. The Canadian Human Rights Tribunal added to the material

and punitive damages awarded various other orders including the immediate

appointment of Ms. Green, without a competition and for an indeterminate duration, to a

position at a higher level than the one she held; the concomitant payment of the

corresponding salary even in the case where no position of that nature was available

immediately; admission to the program of French courses, which she had been denied;

the removal and elimination from any file held by the employer containing any negative

prognosis that she had obtained on the language aptitude tests; and her registration for

a management course adapted to her new position, with a view to her further

advancement to executive levels in the federal civil service.

[576] According to the evidence of record in this case, Marie-Claude Côté would have

been hired as a network operator but for the discrimination against her based on her

pregnancy. Therefore, the Tribunal finds it wholly appropriate to order Gaz Métro to hire

her as a network operator or for the current equivalent position, as soon as such a

position becomes open, with recognition, retroactive to October 1997, of all the rights

and privileges related to that position, including pension credits and non-competitive

seniority, in a way that does not affect third party rights.

[577] As regards the other victims, two of them were rejected in the pre-interview,⁶¹¹

two others after taking the theoretical examination⁶¹²and the last two after taking the

written examination.⁶¹³Given the Tribunal’s conclusions regarding the discriminatory

nature of the pre-interview and the practical examination, all these candidates were

subjected to a selection process in which they were likely to be rejected because of the

discrimination practised at the very start, in the pre-interview, and at the end, in the

practical examination. In those circumstances, none of these candidates was able to

demonstrate that she had the qualifications and aptitudes required to perform the duties

of the position of network operator, or its current equivalent.

609 Ibid. at paras. 20, 24 and 25.

610 Green v. Canada (Public Service Commission), supra note 49.

611 Line Beaudoin and Joan Dupont.

612 Nicole Trudel and Tania Plourde.

613 Johanne Bolduc and Shirley Thomas.

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151

[578] Therefore, the Tribunal believes that they must be reinstated in a selection

process free of discriminatory bias, at the stage where they would have been but for the

discrimination practised against them. Furthermore, Gaz Métro must offer the position of

network operator or its current equivalent to the women who complete the remaining

stages in the process, as soon as such a position becomes available.

SECTION 5. CONCLUSIONS

CONSIDERING that the defendants, through the recruitment and selection system used

to fill the positions of network operator/trainee, interfered with the victims’ right to

equality in employment, contrary to sections 10, 16 and 86 of the Charter of human

rights and freedoms;

CONSIDERING that the defendants’ recruitment and hiring process involved systemic

discrimination that disproportionately excluded women from the manual work of network

operator/trainee, or an equivalent position;

CONSIDERING the defendants’ obligation to provide a discrimination-free workplace

and to ensure female representation corresponding to the rate of availability of women

in manual jobs;

CONSIDERING the need to overhaul the recruitment process, the hiring criteria and the

selection tools for the position of network operator/trainee, or an equivalent position, in

order to:

 eliminate their bias and requirements that are discriminatory in regard to women

without being warranted by the qualifications and aptitudes required for such a

position;

 establish an adequate correlation between receiving a higher grade on the hiring

examinations and better performance;

 allow the recruitment and hiring of female candidates with the qualifications and

aptitudes required to hold such a position;

CONSIDERING that the integration of women into non-traditional jobs requires the use

of tools and working methods adapted to them, while allowing the safe and efficient

performance of the work of network operator/trainee, or an equivalent position;

FOR THESE REASONS, THE TRIBUNAL:

ALLOWS the motion in part;

ORDERS the defendants to:

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DEVELOP, within three (3) months, in consultation with the Commission

152

des droits de la personne et des droits de la jeunesse, an affirmative

action program consistent with the prescriptions of the Charter of human

rights and freedoms and the Regulation respecting Affirmative Action

Programs, and including in particular the measures hereinafter set out;

HIRE, on a priority basis, in accordance with the conditions established in

the said affirmative action program, women with the essential

qualifications and aptitudes required to perform the work of network

operator/trainee, or an equivalent position, at a preferential appointment

rate set at 40%, unless the data collected significantly diverge from those

analysed by expert witness Erika Boukamp Bosch;

PREPARE, when recruiting for the position of network operator/trainee, or

an equivalent position, two lists of candidacies, one of female candidates

and the other of male candidates with the essential qualifications and

aptitudes for the job, with the female candidates on each list placed in the

order determined by the results obtained in the selection tools and

examinations that have undergone criterion-related validation;

CEASE requiring that female and male candidates for the position of

network operator/trainee, or an equivalent position, hold a class 3 driver’s

licence beforehand;

CEASE requiring that female candidates for the position of network

operator/trainee, or an equivalent position, have prior experience in a non-

traditional job;

ENSURE that the hiring examinations and selection tools undergo

criterion-related validation so that only the qualifications and aptitudes

essential to performing the work of network operator/trainee, or an

equivalent position, are required;

ADOPT the measures required so that the people in charge of designing

and administering the interviews and practical examinations have clear

and specific instructions aimed at treating the female candidates for the

position of network operator/trainee, or an equivalent position, without

discrimination based on sex;

MODIFY the interview system so as to remove questions with a

discriminatory effect on female candidates for the position of network

operator/trainee, or an equivalent position;

500-53-000204-030

MODIFY the theoretical examination so as to remove questions, taken

153

from the Bennett test, with a discriminatory effect on female candidates for

the position of network operator/trainee, or an equivalent position;

ADAPT to the physical characteristics of women the selection

examinations, tools and working methods used in recruitment, the

technical network training program and the position of network

operator/trainee, or an equivalent position, while making it possible to

safely and efficiently perform the work in various ways in such a position;

SET UP a committee to fight sexual and sexist harassment at work, on

which network operators/trainees and the management of the company

are represented;

FILE with the Tribunal, within three (3) months, the said affirmative action

program containing the measures mentioned in particular, so that it can

ensure the program is consistent with the Charter of human rights and

freedoms and the Regulation respecting Affirmative Action Programs and,

if it is not, that the Tribunal modify the program so that it is;

AND IN ADDITION, THE TRIBUNAL ORDERS the defendants to:

PAY Marie-Claude Côté:



material damages corresponding to six months of salary loss

incurred as of October 1997, the amount to be established in

accordance with the report of public accountant Marc Fortier;

should she sustain an adverse tax impact, an additional amount

will be established according to the method of expert Richard

Joly to compensate for it;



PAY Johanne Bolduc and Shirley Thomas $10 000.00 in material

damages for the loss of a chance to demonstrate their aptitudes and

qualifications to hold employment as a network operator/trainee without

being subject to a selection process containing discriminatory bias;

PAY Line Beaudoin, Johanne (Joan) Dupont, Nicole Trudel and Tania

Plourde $5000.00 in material damages for the loss of a chance to

demonstrate their aptitudes and qualifications to hold employment as a

network operator/trainee without being subject to a selection process

containing discriminatory bias;

PAY Marie-Claude Côté $20 000.00 to compensate for the moral

prejudice she sustained because of discrimination against her based on

sex and pregnancy;

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154

PAY Line Beaudoin, Johanne Bolduc, Johanne (Joan) Dupont, Tania

Plourde and Shirley Thomas $15 000.00 to compensate for the moral

prejudice they sustained because of discrimination against them based on

sex;

PAY Nicole Trudel $10 000.00 to compensate for the moral prejudice she

sustained because of discrimination against her based on sex;

PAY Marie-Claude Côté $10 000.00 because of the intentional nature of

the unlawful interference with her right not to be subjected to hiring

discrimination based on sex and pregnancy;

PAY Shirley Thomas, Line Bolduc, Line Beaudoin, Johanne (Joan)

Dupont, Tania Plourde and Nicole Trudel $7500.00 because of the

intentional nature of the unlawful interference with their right not to be

subjected to hiring discrimination based on sex;

HIRE Marie-Claude Côté for a position as network operator/trainee, or an

equivalent position, as soon as a position is open, with recognition

retroactive to October 1997 of all the rights and privileges related to that

position, including non-competitive seniority and pension credits;

REINSTATE in a discrimination-free selection process Shirley Thomas,

Line Bolduc, Line Beaudoin, Johanne (Joan) Dupont, Tania Plourde

and Nicole Trudel, at the stage where they would have been but for the

discrimination against them and, should they qualify, OFFER them

positions as a network operator/trainee, or its current equivalent, as soon

as such positions are open;

THE WHOLE with interest and the additional indemnity, in accordance

with article 1619 C.C.Q., as of service of the proposed remedial

measures, as well as full costs, including any cost of expert evidence, for

the presence of the experts in court and for the preparation of their

reports.

__________________________________

Michèle Rivet, President

500-53-000204-030

155

Mtre. Béatrice Vizkelety

Mtre. Athanassia Bitzakidis

Commission des droits de la personne et des droits de la jeunesse

360, rue Saint-Jacques, 3^eétage

Montréal (Québec) H2Y 1P5

For the Commission des droits de la personne et des droits de la jeunesse – Plaintiff

Mtre. Pierre-L. Baribeau

Mtre. Véronique Morin

Lavery, de Billy

1, Place Ville-Marie, # 4000

Montréal (Québec) H3B 4M4

For Gaz Métropolitain Inc and

Gaz Métropolitain Limited Partnership – Defendants

Mtre. Annick Desjardins

Canadian Union of Public Employees

565, boulevard Crémazie Est, # 7100

Montréal (Québec) H2M 2N9

For Action travail des femmes du Québec Inc. – Complainant before the Commission

des droits de la personne et des droits de la jeunesse

Mtre. Suzanne P. Boivin

200, avenue Laurier Ouest, # 475

Montréal (Québec) H2T 2N8

For Mtre. Rachel Cox, counsel for Action travail des femmes du Québec Inc. –

Complainant before the Commission des droits de la personne et des droits de la

jeunesse

Mtre. Lise Lanno

Pépin & Roy

2100, boulevard de Maisonneuve Est, # 501

Montréal (Québec) H2K 4S1

For the Syndicat des employés de Gaz Métropolitain Inc (CSN) – Interested party

2004-10-25/2004-11-01/2005-01-31/2005-02-01 to 2005-02-03/2005-02-07 to 2005-02-09/2005-02-11/2005-02-

15 to 2005-02-18/2005-02-21/2005-02-25/2005-02-28/2005-03-01/2005-03-04/2005-03-15/2005-05-30 and

Hearing dates:

2005-05-31/2005-06-01/2005-06-09/2006-01-16 to 2006-01-18/2006-01-24 to 2006-01-27/2006-02-07/2006-02-

09/2006-02-17/2006-02-22/2006-04-18 to 2006-04-20/2006-06-19 and 2006-06-20/2006-09-11 to 2006-09-

15/2006-10-10 and 2006-10-11/2006-12-08/2006-12-12/ 2007-01-09 and 2007-01-10/2007-01-12

500-53-000204-030

156

AUTHORITIES AS CITED BY THE PLAINTIFF,

THE COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA

JEUNESSE

Canadian Human Rights Commission and Chopra v. Department of National Health and

Welfare, (1998) CHRR D/98-057;

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),

[1987] 1 S.C.R. 1114;

Commission des droits de la personne du Québec v. Commission scolaire régionale

Chauveau, [1993] R.J.Q. 929 (QC T.D.P.);

Commission scolaire régionale Chauveau v. Commission des droits de la personne du

Québec, [1994] R.J.Q. 1196 (C.A.);

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999]

3 S.C.R. 3;

Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Montreal (City); Quebec (Commission des droits de la personne et des droits de la

jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665;

Ontario Human Rights Commission (OHRC), Policy and Guidelines on Racism and

Racial Discrimination, June 9, 2005, 43, http://www.ohrc.on.ca;

C. Agocs, Racisme émergeant en milieu de travail: Preuve qualitatives et quantitatives

d’une discrimination systémique, (2004) 3: 3 Diversité canadienne 27;

Action travail des femmes v. Canadian National, (1984) 5 C.H.R.R. D/2327 (C.H.R.T.);

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970;

Premakumar v. Air Canada, D.T.E. 2002T-659 (C.H.R.T.);

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497;

Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15;

Société de l’assurance automobile du Québec v. Commission des droits de la personne

et des droits de la jeunesse, [2005] R.J.Q. 11 (C.A.);

Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202;

500-53-000204-030

157

Commission des droits de la personne et des droits de la jeunesse v. Industries

acadiennes inc., [2006] R.J.D.T. 473 (QC T.D.P.);

Université Laval v. Commission des droits de la personne et des droits de la jeunesse,

[2005] R.J.Q. 347 (C.A.);

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3;

Sinclair v. Bacon, [1994] R.J.Q. 289 (C.A.);

Québec (Comm. des droits de la personne) v. Société d’électrolyse et de chimie Alcan

ltée, [1987] D.L.Q. 340 (C.A.);

Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Communauté urbaine de Montréal, [2004] 1 S.C.R. 789;

Roy v. Québec (Ministère des Transports), [1994] C.A.L.P. 1645; Montréal (Ville de)

and Syndicat canadien de la fonction publique, section locale 301, D.T.E. 97T-1078

(T.A.);

Jean-Louis Baudouin and Patrice Deslauriers, La responsabilité civile, 5th ed.,

(Cowansville, Qc.: Yvon Blais, 1998);

Commission des droits de la personne et des droits de la jeunesse v. Québec

(Procureur général), [2005] R.J.D.T. 1110 (QC T.D.P.);

Commission des droits de la personne et des droits de la jeunesse v. Nicolet (Ville de),

[2001] R.J.Q. 2735 (QC T.D.P.);

Malhab v. Métromédia C.M.R. Montréal inc., [2003] R.J.Q. 1011 (C.A.);

Syndicat des employées et employés de métiers d’Hydro-Québec, section locale 1500

(SCFP-FTQ) v. Fontaine, J.E. 2007-149 (C.A.);

Quebec (Public Curator) v. Syndicat national des employés de l’Hôpital St-Ferdinand,

[1996] 3 S.C.R. 211.

500-53-000204-030

158

AUTHORITIES AS CITED BY THE DEFENDANTS,

GAZ MÉTROPOLITAIN INC. AND GAZ MÉTROPOLITAIN LIMITED PARTNERSHIP

(1)

DISCRIMINATION:

ACCOMMODATION

NOTION,

PRESUMPTION

AND

REASONABLE

Action Travail des Femmes v. Canadian National, (1984) 5 C.H.R.R. D/2327;

Action Travail des Femmes v. Canadian National, [1987] 1 S.C.R.;

Anctil and industries Malbec inc., D.T.E. 2005T-279 (C.R.T.);

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143;

Calgary (City) vs. Weitmann, (2001) 45 C.H.R.R.D/155;

Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970;

McGill University Health Centre (Montréal General Hospital) v. Syndicat des employés

de l’hôpital Général de Montréal, [2007] SCC 4;

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999]

3 S.C.R. 3;

Commission des droits de la personne et des droits de la jeunesse v. Institut Demers

inc., [1999] R.J.Q. 3101;

Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536;

Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525;

Commission scolaire St-Jean-sur-Richelieu v. Commission des droits de la personne du

Québec, [1994] R.J.Q. 1227 (C.A.);

Compagnie Minière Québec-Cartier v. Commission des droits de la personne du

Québec, REJB 1998-0915 (C.A.);

Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15;

Drolet v. Lelièvre, R.E.J.B. 2001-27488 (S.C.);

Hadji v. Montréal (Ville de), D.T.E. 96T-1321 (T.D.P.);

J. (M.) vs. Companion, (2002) 214 NFLD. *P.E.I.R. 183. (C.A.);

500-53-000204-030

159

Lavoie v. Boudreau, J.E. 84-736 (C.A.);

Longpré v. Thériault, [1979] C.A. 258;

Morris vs Canada (Armed Forces), 2001 CarswellNat 3502 (C.H.R.T.);

Premakumar v. Air Canada, 2002 IIJCan 23561 (C.H.R.T.);

Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Montréal (City); Quebec (Commission des droits de la personne et des droits de la

jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665;

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec

(Attorney General), [2004] 2 S.C.R. 185;

Québec (Ville de) v. C.D.P., [1989] R.J.Q. 831 (C.A.);

Rousseau v. Tremblay, R.E.J.B. 2001-23051 (S.C.);

Syndicat québécois des employées et employés de service, section locale 298 (F.T.Q.)

and Sœurs de la présentation de Marie, province of Montréal, D.T.E. 2005T-942 (T.A.);

Syndicat des professionnelles et professionnels du réseau de la santé et des services

sociaux de l’Outaouais (CSN) and CLSC de Hull, D.T.E. 2002T-1025 (T.A.);

Syndicat québécois des employées et employés de service, section locale 298 (F.T.Q.)

and Centre d’hébergement St-Georges, D.T.E. 2006T-942 (T.A.);

Vallée v. Commission scolaire Vallée-de-Mistassini, D.T.E. 95T-982 (T.D.P.).

(2)

THE “CLEAN HANDS” DOCTRINE

Galvan Metal inc. v. Ville de Saint-Léonard, EYB 1989-76788 (S.C.);

Syndicat des employés de magasins et de bureau de la Société des alcools du Québec

v. Société des alcools du Québec, EYB 1992-75078 (S.C.);

Trudel v. Clairol Inc. of Canada, [1975] 2 S.C.R. 237.

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(3) SPECIAL STATUS OF THE COMMISSION AS A GOVERNMENT

INVESTIGATIVE ORGANIZATION ACTING AS PROSECUTOR

Alberta Human Rights and Citizenship Commission v. Alberta Motor Association, [1998]

A.G. No. 1375;

Anonuevo v. General Motors of Canada Ltd. (No. 3), (1998) 32 C.H.R.R. D/322;

Commission des droits de la personne et des droits de la jeunesse v. Centre de la petite

enfance Les Pandamis (Gardeurois), 2006 QC T.D.P. 11;

IMP Group Ltd. v. Dillman, [1995] N.S.J. No. 326, (C.A.);

Ontario (Human Rights Commission) v. Ontario (Board of Inquiry into Northwestern

General Hospital), [1994] 115 D.L.R. (4th) 279;

Morris Manning, “Abuse of Power by Crown Attorneys” in The Abuse of Power and the

Role of the Independent Judicial System in its Regulation and Control (Richard de Boo

Limited, 1979) (excerpts).

(4) IMPARTIALITY AND OBJECTIVITY REQUIRED OF AN EXPERT

Beaudoin v. Banque de développement du Canada, REJB 2004-54067 (S.C.);

Béchard, Donald, L’expert : recevabilité, qualification et force probante (Congrès annuel

du Barreau du Québec 2002);

Couture v. Général Accident, REJB 2000-19815 (S.C.);

Fortin v. Compagnie d’assurances Wellington, B.E. 2000BE-416 (S.C.);

M. (D.) v. B. (D.), REJB 1999-11836 (S.C.);

Poulin v. R., [1975] C.A. 682;

Protection de la jeunesse – 763, J.E. 95-1202 (C.Q.);

Royer, Jean-Claude, La preuve civile, 3rd ed. (Cowansville, Qc.: Yvon Blais).

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(5) THE AMERICAN FOUR-FIFTHS RULE (EEOC)

W. Biedzynski, Kenneth et al., American Jurisprudence: A Modern Comprehensive Text

Statement of American Law, 2nd ed., Thomson West, Volume 45A, Job discrimination,

2002 at 410-413;

Clady v. County of Los Angeles, 70 F. 2d 1421, United States Tribunal of Appeals for

the Ninth Circuit (1985);

Jones v. Pepsi-Cola Metropolitan Bottling Company, 871 F. Supp. 305 United States

Tribunal for the District of Michigan (1994);

Perez v. Pavex Corp., 2007 U.S. Dist. LEXIS 6092 U.S. District Tribunal for the Middle

District of Florida, Tampa Division (2007);

Spence v. City of Philadelphia, 2004 U.S. Dist. LEXIS 28996 (2004), (affirmed by the

Tribunal of Appeal for the Third Circuit, 2005 U.S. App. LEXIS 19728).

(6)

DAMAGES

CDPDJ v. Centre hospitalier de l’Université de Montréal, Pavillon Notre-Dame, D.T.E.

2000T-1006;

CDPDJ v. Garderie en milieu familial des petits Anges, [2004] R.J.Q. 2335;

CDPDJ v. Montréal (Ville de), [2000] R.J.Q. 2151;

CDPDJ v. Nicolet (Ville de), [2001] R.J.Q. 2735;

CDPDJ v. Montréal (Services de police de la Communauté urbaine de), [2002] R.J.Q.

824;

CDPDJ v. Sûreté du Québec, D.T.E. 2000T-634;

CDPDJ v. Québec (Procureur Général), [2005] R.J.D.T. 1110.

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AUTHORITIES IN SUPPORT OF THE ADDITIONAL NOTES, AS CITED BY THE

DEFENDANTS, GAZ MÉTROPOLITAIN INC.

AND GAZ MÉTROPOLITAIN LIMITED PARTNERSHIP

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of

Human Rights), [1993] 3 S.C.R. 863;

Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157;

Health Services and Support – Facilities Subsector Bargaining Assn. v. British

Columbia, 2007 SCC 27;

Canada (Human Rights Commission) v. Canadian Airlines International Limited, [2006]

1 S.C.R. 3, 2006 SCC 1.

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163

Legislation

Canadian Human Rights Act, R.S.C. 1985, v. H-6;

Regulation respecting Affirmative Action Programs, R.Q. c. C-12, r.0.1.

Jurisprudence

National Capital Alliance on Race Relations v. Canada (Department of Health &

Welfare), [1997] IIJCan 1433 (C.H.R.T.);

Public Service Alliance of Canada v. Canada (Treasury Board), [1996] IIJCan 1874

(C.H.R.T.);

Public Service Alliance of Canada v. Canada (Department of National Defence), [1996]

F.C.A. No. 842;

Ayangma v. Govt. of PEI, [2000] P.E.I.J. No. 97, (2000) PESCTD 74;

Brome v. Ontario (Human Rights Commission), (1999) 171 D.L.R. (4th) 538 (Ont. Div.

Ct.);

Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R.

279;

Canada (Attorney General) v. Uzoaba, (1996) 26 C.H.R.R. D/428 (F.C.);

CDPDJ (Stortini) c. De Luxe Produits de papier Inc., D.T.E. 2003T-288 (QC. T.D.P);

Central Alberta Dairy Pool v. Alberta Human Rights Commission, [1990] 2 S.C.R. 489;

Charpentier v. Compagnie d’assurances Standard Life, 2001 1478;

Commission scolaire des Samares v. Commission des droits de la personne et des

droits de la jeunesse, [2000] R.J.Q. 2542 (C.A.);

Dufour v. Centre hospitalier St-Joseph-de-la-Malbaie, [1992] R.J.Q. 825 at 843;

Green v. Public Service Commission of Canada, 1998 2101(C.H.R.T.);

Laferrière v. Lawson [1991] 1 S.C.R. 541;

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Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), [2005]

B.C.H.R.T.D. No. 302, 2005 BCHRT 302;

St-Jean v. Mercier, [2002] 1 S.C.R. 491;

Syme v. Canada [1993] 4 S.C.R. 695;

Tahmourpour v. Canada (Solicitor General), [2005] F.C.A. No. 543, 2005 FCA 113.

Doctrine

Abella, Rosalie Silberman, Report of the Commission on Equality in Employment

(Ottawa: Supply and Services Canada, 1984);

Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability

(1993);

Sheilagh Day and Gwen Brodsky, “The Duty to Accommodate: Who will benefit?”

(1993) Can. Bar Rev. 433;

Gagnon, Sylvie, “Quelques observations critiques sur le droit à une réparation selon la

Charte des droits et libertés de la personne”, in Barreau du Québec and Tribunal des

droits de la personne (ed.), La Charte des droits et libertés de la personne : Pour qui et

jusqu’où ? (Cowansville, Qc.: Yvon Blais, 2005);

Anne L. MacTavish and Andrew J. F. Lenz, “Civil Actions for Conduct Addressed by

Human Rights Legislation – Some Recent Substantive and Procedural Developments”,

(1996) 4 C.L.E.L.J. 375;

Masse, Chantal, “Le critère unifié de l’affaire Meiorin dans le contexte de la défense

prévue à l’article 20 de la Charte québécoise: la non-application du volet subjectif relatif

à la bonne foi de l’employeur”, in Barreau du Québec, Les 25 ans de la Charte

québécoise (Cowansville, Qc.: Yvon Blais, 2000) at 65;

Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British

Colombia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.” (2001) 46

McGill L.J. 533.